14-001283PL Department Of Health, Board Of Medicine vs. Roberto E. Rivera, M.D.
 Status: Closed
Recommended Order on Tuesday, July 1, 2014.


View Dockets  
Summary: Petitioner proved by clear and convincing evidence that New Jersey took action against Respondent's New Jersey medical license, and Respondent did not report the New Jersey action to the Florida Board of Medicine.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF HEALTH,

11BOARD OF MEDICINE,

14Petitioner,

15vs. Case No. 14 - 1283PL

21ROBERTO E. RIVERA, M.D.,

25Respondent.

26_______________________________/

27RECOMMENDED ORDER

29Pursuant to notice, an administrative hearing was conducted

37in Tallahassee, Florida, on May 20, 2014 , before Lisa Shearer

47Nelson, an administrative law judge assigned by the Division of

57Administrative Hearings. Respondent, who is incarcerated in the

65State of New Jer sey, participated by telephone.

73APPEARANCES

74For Petitioner: Diane K. Kiesling, Esquire

80Hillary A. Ryan, Esquire

84Department of Health

87Prosecution Services Unit

904052 Bald Cypress Way, Bin C - 65

98Tallahassee, Florida 32399

101For Respon dent: Roberto E. Rivera, M.D., pro se

110Inmate #E - 12 15

115Bergen County Jail

118160 South River Street

122Hackensack, New Jersey 07601

126STATEMENT OF THE ISSUE

130The issue presented is whether Respondent, Roberto Rivera ,

138M.D. (Dr. Rivera or Resp ondent) , violated section 458.331(1)(b)

147and (kk), Florida Statutes (2012) , as alleged in the

156Administrative Complaint, and if so, what penalty should be

165imposed.

166PRELIMINARY STATEMENT

168On September 24, 2013, Petitioner, Department of Health

176(Petitioner or t he Department) , filed an Administrative Complaint

185against Respondent, alleging violations of section 458.331 (1) (b)

194and (kk). On December 2, 2013, Respondent filed an Election of

205Rights form disputing the allegations contained in paragraphs 6 -

21517 of the Adm inistrative Complaint and requesting a hearing

225pursuant to section 120.57 , Florida Statutes. On March 18, 2014,

235the case was referred to the Division of Administrative Hearings

245for assignment of an administrative law judge.

252The case was noticed for hear in g to occur o n May 20, 2014.

267Petitioner asked that Respondent be able to appear by telephone,

277due to his incarceration out of state. Respondent preferred to

287appear by video teleconference. Inquiries were made regarding

295the ability of the Division to co nduct a video teleconference

306with an out - of - state facility. However, to do so was problematic

320in light of firewall and safety concerns. Accordingly,

328arrangements were made for Respondent to appear by telephone.

337Respondent also filed a Motion to Postpone Future

345Proceedings, requesting that his Florida license be suspended but

354that no further action with respect to his Florida license be

365taken until all criminal proceedings in New Jersey are

374completed. 1/ Petitioner opposed the motion, and by Order dated

384Ap ril 15, 2014, the Motion was denied.

392The hearing began and concluded as scheduled. At hearing,

401Petitioner presented no witnesses. PetitionerÓs Exhibits 1 - 4

410were admitted into evidence. Respondent testified on his own

419behalf but submitted no exhibits.

424A one - volume T ranscript of the proceedings was filed with

436the Division on June 4, 2014, and the Dep artment provided a copy

449of the T ranscript to Respondent. A Scheduling Order was issued

460extending the time for the filing of proposed recommended orders

470to June 20, 2014. Both parties timely filed Proposed Recommended

480Orders that have been carefully considered in the preparation of

490this Recommended Order.

493FINDING S OF FACT

4971. Respondent is a medical doctor licensed in the State of

508Florida, having been issue d license number ME 54313. Respondent

518did not dispute his status as a licensed medical doctor in this

530proceeding.

5312. Petitioner is the state agency charged with regulating

540the practice of allopathic medicine in the State of Florida,

550pursuant to section 2 0.43 and chapters 456 and 458, Florida

561Statutes.

5623. Respondent is also licensed as a medical doctor in the

573State of New Jersey.

5774. No evidence was presented regarding RespondentÓs board

585certification or lack thereof.

5895. The licensing authority regulat ing the practice of

598medicine in the State of New Jersey is the New Jersey State Board

611of Medical Examiners (New Jersey Board), within the Department of

621Law and Public Safety, Division of Consumer Affairs.

6296. On January 7, 2013, the Hearing Committee of th e New

641Jersey Board entered an Order of Temporary Suspension and Report

651of Hearing Committee to the Board ( Committee Order). The

661Committee Order was issued nunc pro tunc to December 20, 2012,

672the date an evidentiary hearing was conducted before the

681Committ ee.

6837. The Committee Order temporarily suspended Dr. RiveraÓs

691license to practice medicine, effective December 20, 2012, with

700the suspension to continue until such time as the New Jersey

711Board considered the record at its next scheduled meeting, and

721until further order of the New Jersey Board. The Committee Order

732also required Dr. Rivera to immediately cease the practice of

742medicine in New Jersey; to surrender his original medical

751license, biennial registration, New Jersey controlled dangerous

758substances (CDS) registration and Drug Enforcement Administration

765(DEA) registration to the New Jersey Board office pending further

775Order of the New Jersey Board; and to comply with the directives

787regarding licensees who have been disciplined, which were

795attached to the Committee Order and incorporated by reference.

804The Committee Order was subject to review and ratification by the

815full New Jersey Board at its meeting scheduled for January 9 ,

8262013.

8278. The New Jersey Board considered the Committee Order at

837its meeting on January 9, 2013 . At that time, the Board voted to

851ratify and adopt, in its entirety, the Committee Order, and on

862January 17, 2013, the New Jersey Board issued an Order Continuing

873Temporary Suspension of License (Continued Suspension Order).

880The Conti nued Suspension Order adopts, in its entirety, the

890Committee Order; continues the suspension of Dr. RiveraÓs medical

899license in New Jersey pending review following completion of

908plenary proceedings in the matter; and stayed those further

917proceedings at the request of Dr. Rivera , until the resolution of

928the criminal charges pending against him following his arrest on

938November 17, 2012 , in Ridgewood, New Jersey.

9459. The Committee Order , standing alone, does not constitute

954action by the licensing authority of another jurisdiction.

962However, the Committee Order as ratified by the Continuing

971Suspension Order does constitute action by the licensing

979authority of another jurisdiction.

98310. Respondent did not report either New Jersey action to

993the Florida Board of Me dicine within 30 days.

1002CONCLUSIONS OF LAW

100511 . The Division of Administrative Hearings has

1013jurisdiction over the parties and the subject matter of this

1023proceeding pursuant to sections 120.569 and 120.57(1), Florida

1031Statutes (2013).

103312. This is a proceedin g in which Petitioner seeks to

1044suspend RespondentÓs license to practice medicine. Because

1051disciplinary proceedings are considered to be penal in nature,

1060Petitioner is required to prove the allegations in the

1069Administrative Complaint by clear and convincin g evidence. DepÓt

1078of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

10921996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

110213. Clear and convincing evidence Ðrequires more proof than

1111a Òpreponderance of the evidenceÓ but less than Òbeyond and to

1122the exclusion of a reasonable doubt.ÓÑ In re Graziano , 696 So.

11332d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court,

1145the standard:

1147entails both a qualitative and quantitative

1153standard. The evidence must be credible;

1159the memories of the witnesses must be clear

1167and without confusion; and the sum total of

1175the evidence must be of sufficient weight to

1183convince the trier of fact without

1189hesitancy.

1190In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(citing, with

1201approval, Slomowitz v. Walker , 429 So . 2d 797, 800 (Fla. 4 th DCA

12151983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

1228ÐAlthough this standard of proof may be met where the evidence is

1240in conflict, it seems to preclude evidence that is ambiguous.Ñ

1250Westinghouse Elec. Corp. v. Shule r Bros. , 590 So. 2d 986, 989

1262(Fla. 1991).

126414. The Administrative Complaint contains t wo counts

1272against Dr. Rivera , charging h im with violations of section

1282458.331(1)(b) and (kk). Section 458.331 provides, in pertinent

1290part:

1291(1) The following acts consti tute grounds

1298for denial of a license or disciplinary

1305action, as specified in s. 456.072(2):

1311* * *

1314(b) Having a license or the authority to

1322practice medicine revoked, suspended, or

1327otherwise acted against, including the

1332denial of licensure, by the licens ing

1339authority of any jurisdiction, including its

1345agencies or subdivisions. The licensing

1350authorityÓs acceptance of a physicianÓs

1355relinquishment of a license, stipulation,

1360consent order, or other settlement, offered

1366in response to or in anticipation of the

1374filing of administrative charges against the

1380physicianÓs license, shall be construed as

1386action against the physicianÓs license.

1391* * *

1394(kk) Failing to report to the board, in

1402writing, within 30 days if action as defined

1410in paragraph (b) has been taken against

1417oneÓs license to practice medicine in

1423another state, territory, or country.

142815. Disciplinary provisions such as section 458.331 must be

1437strictly construed in favor of the licensee. Elamariah v . DepÓt

1448of ProfÓl Reg. , 574 So. 2d 164 (Fla. 1 st DCA 1990); Taylor v.

1462DepÓt of ProfÓl Reg. , 534 So. 2d 782, 784 (Fla. 1 st DCA 1988).

1476Disciplinary statutes must be construed in terms of their literal

1486meaning, and words used by the Legislature may not be expanded to

1498broaden their application. Latham v. Fla. CommÓn on Ethics , 694

1508So. 2d 83 (Fla. 1st DCA 1997); see also Beckett v. DepÓt of Fin.

1522Svcs. , 982 So . 2d 94, 100 (Fla. 1st DCA 2008); Dyer v. DepÓt of

1537Ins. & Treas. , 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

154916. Count I of the Admin istrative Complaint charges

1558Respondent with violating section 458.331(1)(b), based upon the

1566New Jersey Board taking action against his license on or about

1577January 7, 2013, and January 17, 2013.

158417. The January 7, 2013 , Order is an Order of the Hearing

1596Com mittee of the New Jersey Board, as opposed to an Order of the

1610New Jersey Board itself. By its terms, it was subject to Ðreview

1622and ratification, by the full Board of Medical Examiners at its

1633next meeting currently scheduled for January 9, 2013. Ñ Based

1643up on a strict reading of section 458.331(1) (b), the undersigned

1654cannot conclude that the January 7, 2013 , Order, standing alone,

1664constitutes action Ðby the licensing authority of another

1672jurisdiction.Ñ

167318. Petitioner relies on the decision in Department o f

1683Health, Board of Medicine v. Drew Fenton, M.D. , Case No. 12 - 3594

1696(DOAH July 29, 2013), for the premise th at a temporary order

1708constitutes action against a license by another jurisdiction.

1716The issue presented in Fenton focused on the authority of the

1727adm inistrative law judge to issue a temporary suspension, and the

1738statutory authority relevant to that proceeding made it clear

1747that the ALJ had that authority. Here, the issue is not the

1759temporary nature of the action, but the identity of the body

1770taking it . While there may well be some authority for its

1782position , the Department presented nothing to support the premise

1791that action by a committee of the New Jersey Board, as opposed to

1804action by the Board itself, fits within the phrase Ðaction by the

1816licensin g authority of another jurisdiction.Ñ

182219 . However, when the New Jersey Board took action as

1833memorialized by its Order January 17, 2013, it ratified and

1843adopted, in its entirety, the Committee Order, and the Committee

1853Order was incorporated into the Januar y 17, 2013 , Order of the

1865New Jersey Board. Taken together, the Orders constitute action

1874taken by the licensing authority of another jurisdiction.

188220 . Respondent contends that the Orders do not constitute

1892action against his license because the plenary a ction in the

1903underlying case has not been completed. However, the Orders

1912continue to prohibit Dr. RiveraÓs practice of medicine, pending

1921resolution of the criminal matters currently pending against

1929him. 2/ There is no question that suspension of Dr. River aÓs

1941license is an action taken against it. Petitioner has proven

1951Count I of the Administrative Complaint by clear and convincing

1961evidence.

196221. Count II charges Respondent with failing to notify the

1972Florida Board of Medicine of the action taken by the New Jersey

1984Board. Dr. Rivera admits that he did not notify the Florida

1995Board, but states he did not do so because he has been in jail

2009since before the New Jersey action and did not have access to

2021anything that would be necessary to notify the Board. Petitio ner

2032asserts that Respondent has been able to respond in writing in

2043these proceedings, and his incarceration does not excuse his

2052failure to notify the Florida Board. As a practical matter,

2062while Dr. Rivera was most likely able to notify the Board, there

2074is no indication that he had access to the BoardÓs address at the

2087time he should have completed the notification. Given the other

2097matters pending against him, it is likely that the requirement

2107that he notify Florida licensing authorities of his suspension

2116w as relatively insignificant in his list of priorities.

2125Nonetheless, it is undisputed that Dr. Rivera did not notify the

2136Florida Board as required. The circumstances related to this

2145failure go to mitigation as opposed to providing an excuse for

2156non - compli ance. Petitioner has proven Count II by clear and

2168convincing evidence.

217022. The Board has adopted disciplinary guidelines which

2178provide notice of a range of appropriate penalties for

2187disciplinary violations. Florida Administrative Code Rule 64B8 -

21958.001(2) (b) provides that, for action taken against a license in

2206another jurisdiction, the penalty for a first offense ranges from

2216imposition of discipline comparable to the discipline which would

2225have been imposed if the substantive violation had occurred in

2235Flor ida, to suspension or denial of the license until the license

2247is unencumbered in the jurisdiction in which disciplinary action

2256was originally taken, and a fine of $1,000 to $5,000.

226823. For a violation of section 458.331(1)(kk) (failure to

2277report action by another jurisdiction), the guideline penalty for

2286a first offense is an administrative fine of $1,000 to $5,000, a

2300reprimand, and 50 to 100 hours of community service, to denial or

2312revocation of the license and payment of $5,000.

232124. Due consideration has been given to the aggravating and

2331mitigating factors outlined in rule 64B8 - 8.001(3). As noted

2341above, consideration has been given to RespondentÓs limited

2349ability to see to his own affairs given his current incarceration.

2360His incarceration also renders i mpractical any requirement for

2369community service.

2371RECOMMENDATION

2372Based on the foregoing Findings of Fact and Conclusions of

2382Law, it is RECOMMENDED that the Florida Board of Medicine enter a

2394Final Order finding that Respondent has violated section

2402458.331(1 )(b) and (kk), Florida Statutes (2012). It is further

2412recommended that the Board suspend his Florida license to

2421practice medicine until such time as his New Jersey license is

2432unencumbered; and impose an administrative fine of $1,500.

2441DONE AND ENTERED thi s 1st day of July , 2014 , in Tallahassee,

2453Leon County, Florida.

2456S

2457LISA SHEARER NELSON

2460Administrative Law Judge

2463Division of Administrative Hearings

2467The DeSoto Building

24701230 Apalachee Parkway

2473Tallahassee, Florida 32399 - 3060

2478(850) 488 - 9675

2482Fax Filing (850) 921 - 6847

2488www.doah.state.fl.us

2489Filed with the Clerk of the

2495Division of Administrative Hearings

2499this 1st day of July , 2014.

2505ENDNOTE S

25071/ The course of action suggested by Respondent seemed in many

2518respects to be a proposa l for settlement of the current

2529p roceedings. In any event, it i s a proposal which the

2541undersigned has no authority to approve, as the Board of Medicine

2552is the agency with final order authority in this case.

25622/ The basis for the New Jersey action is no t before the Division

2576and any statements contained within the New Jersey Orders with

2586respect to that factual basis would be hearsay , and therefore

2596cannot be used t o support a finding of fact. § 120.57(1)(c),

2608Fla. Stat . The same cannot be said with respec t to whether the

2622Orders , which are admissible to show that the action was taken by

2634the New Jersey Board , the controlling issue in this proceeding.

2644The undersigned makes no finding with respect to the basis for

2655the New Jersey BoardÓs action.

2660COPIES FURNI SHED:

2663Diane K. Kiesling, Esquire

2667Department of Health

26704052 Bald Cypress Way Bin C - 65

2678Tallahassee, Florida 32399

2681Roberto E. Rivera, M.D., Inmate #E - 1215

2689Bergen County Jail

2692160 South River Street

2696Hackensack, New Jersey 07601

2700Roberto E. Rivera, M.D.

270482 L a Salle Drive

2709Yonkers, New York 10710

2713Allison M. Dudley, Executive Director

2718Division of Medical Quality Assurance

2723Boards/Councils/Commissions

2724Department of Health

27274052 Bald Cypress Way

2731Tallahassee, Florida 32399

2734Jennifer A. Tschetter, General Counsel

2739D epartment of Health

27434052 Bald Cypress Way, Bin A02

2749Tallahassee, Florida 32399 - 1701

2754NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2760All parties have the right to submit written exceptions within

277015 days from the date of this Recommended Order. Any exceptions

2781to this Recommended Order should be filed with the agency that

2792will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 12/19/2014
Proceedings: (Agency) Final Order filed.
PDF:
Date: 12/19/2014
Proceedings: Department's Response to Respondent's Exceptions filed.
PDF:
Date: 12/19/2014
Proceedings: Respondent's Exceptions to Recommended Order of July 1, 2014, submitted by the Division of Administrative Hearings filed.
PDF:
Date: 12/18/2014
Proceedings: Agency Final Order
PDF:
Date: 10/20/2014
Proceedings: Order Vacating Final Order and Rescheduling Hearing until December, 2014 filed.
Date: 08/11/2014
Proceedings: Motion to Access Costs in Accordance with Section 456.072(4) Medical Records filed (not available for viewing).
PDF:
Date: 08/11/2014
Proceedings: Agency Final Order filed.
PDF:
Date: 08/07/2014
Proceedings: Agency Final Order
PDF:
Date: 08/07/2014
Proceedings: Agency Final Order
PDF:
Date: 07/14/2014
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 07/01/2014
Proceedings: Recommended Order
PDF:
Date: 07/01/2014
Proceedings: Recommended Order (hearing held May 20, 2014). CASE CLOSED.
PDF:
Date: 07/01/2014
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 06/19/2014
Proceedings: (Petitioner's) Proposed Recommended Order filed.
PDF:
Date: 06/09/2014
Proceedings: Respondent`s Proposed Recommended Order filed.
PDF:
Date: 06/04/2014
Proceedings: Scheduling Order.
PDF:
Date: 06/04/2014
Proceedings: Letter to Roberto Rivera from Diane Kiesling enclosing transcript filed.
Date: 06/04/2014
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 05/20/2014
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 05/19/2014
Proceedings: Respondent's Petition for Adminiistrative Hearing before the Department of Administrative Hearing (Disputed Issue of Martial Fact) filed.
PDF:
Date: 05/13/2014
Proceedings: Letter to Judge Nelson from Roberto Rivera information regarding the hearing on May 20, 2014 filed.
PDF:
Date: 05/06/2014
Proceedings: Notice of Serving Copies of Petitioner's Exhibits to Respondent filed.
PDF:
Date: 05/06/2014
Proceedings: Notice of Appearance of Co-Counsel (Hillary A. Ryan) filed.
PDF:
Date: 04/16/2014
Proceedings: Letter to Roberto Rivera, M.D. from Diane Kiesling in response to Judge's Order filed.
PDF:
Date: 04/15/2014
Proceedings: Order Denying Motion to Postpone Further Proceedings.
PDF:
Date: 04/10/2014
Proceedings: (Petitioner's) Response in Opposition to Respondent's Motion to Postpone Further Proceedings filed.
PDF:
Date: 04/08/2014
Proceedings: Respondent's Brief Motion to Postpone Furture Proceedings filed.
PDF:
Date: 04/08/2014
Proceedings: Respondent's Certification before the Department of Administrative Hearings filed.
PDF:
Date: 04/08/2014
Proceedings: Respondent's Motion to Postpone Furture Proceedings filed.
PDF:
Date: 03/31/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/31/2014
Proceedings: Notice of Hearing (hearing set for May 20, 2014; 9:00 a.m.; Tallahassee, FL).
PDF:
Date: 03/31/2014
Proceedings: Respondent's Response to Initial Order filed.
PDF:
Date: 03/28/2014
Proceedings: Order on Motion to Appear by Telephone.
PDF:
Date: 03/27/2014
Proceedings: Respondent's Response to Initial Order filed.
PDF:
Date: 03/25/2014
Proceedings: (Petitioner's) Motion for Telephonic Hearing filed.
PDF:
Date: 03/25/2014
Proceedings: Petitioner's Unilateral Response to Initial Order filed.
PDF:
Date: 03/19/2014
Proceedings: Initial Order.
PDF:
Date: 03/19/2014
Proceedings: Notice of Serving Petitioners First Request for Production of Documents, First Set of Interrogatories, and First Request for Admissions to Respondent filed.
PDF:
Date: 03/18/2014
Proceedings: Administrative Complaint filed.
PDF:
Date: 03/18/2014
Proceedings: Election of Rights filed.
PDF:
Date: 03/18/2014
Proceedings: Agency referral filed.

Case Information

Judge:
LISA SHEARER NELSON
Date Filed:
03/18/2014
Date Assignment:
03/19/2014
Last Docket Entry:
12/19/2014
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related Florida Statute(s) (4):

Related Florida Rule(s) (1):