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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MEDICINE,

Petitioner,

vs. Case No. 14 - 1283PL

ROBERTO E. RIVERA, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was conducted

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

Nelson, an administrative law judge assigned by the Division of

Administrative Hearings. Respondent, who is incarcerated in the

State of New Jer sey, participated by telephone.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Hillary A. Ryan, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

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

Inmate #E - 12 15

Bergen County Jail

160 South River Street

Hackensack, New Jersey 07601

STATEMENT OF THE ISSUE

The issue presented is whether Respondent, Roberto Rivera ,

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

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

Administrative Complaint, and if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On September 24, 2013, Petitioner, Department of Health

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

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

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

Rights form disputing the allegations contained in paragraphs 6 -

17 of the Adm inistrative Complaint and requesting a hearing

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

the case was referred to the Division of Administrative Hearings

for assignment of an administrative law judge.

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

Petitioner asked that Respondent be able to appear by telephone,

due to his incarceration out of state. Respondent preferred to

appear by video teleconference. Inquiries were made regarding

the ability of the Division to co nduct a video teleconference

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

in light of firewall and safety concerns. Accordingly,

arrangements were made for Respondent to appear by telephone.

Respondent also filed a Motion to Postpone Future

Proceedings, requesting that his Florida license be suspended but

that no further action with respect to his Florida license be

taken until all criminal proceedings in New Jersey are

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

Ap ril 15, 2014, the Motion was denied.

The hearing began and concluded as scheduled. At hearing,

Petitioner presented no witnesses. PetitionerÓs Exhibits 1 - 4

were admitted into evidence. Respondent testified on his own

behalf but submitted no exhibits.

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

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

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

extending the time for the filing of proposed recommended orders

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

Orders that have been carefully considered in the preparation of

this Recommended Order.

FINDING S OF FACT

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

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

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

proceeding.

2. Petitioner is the state agency charged with regulating

the practice of allopathic medicine in the State of Florida,

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

Statutes.

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

State of New Jersey.

4. No evidence was presented regarding RespondentÓs board

certification or lack thereof.

5. The licensing authority regulat ing the practice of

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

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

Law and Public Safety, Division of Consumer Affairs.

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

Jersey Board entered an Order of Temporary Suspension and Report

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

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

the date an evidentiary hearing was conducted before the

Committ ee.

7. The Committee Order temporarily suspended Dr. RiveraÓs

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

the suspension to continue until such time as the New Jersey

Board considered the record at its next scheduled meeting, and

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

also required Dr. Rivera to immediately cease the practice of

medicine in New Jersey; to surrender his original medical

license, biennial registration, New Jersey controlled dangerous

substances (CDS) registration and Drug Enforcement Administration

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

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

regarding licensees who have been disciplined, which were

attached to the Committee Order and incorporated by reference.

The Committee Order was subject to review and ratification by the

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

2013.

8. The New Jersey Board considered the Committee Order at

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

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

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

Temporary Suspension of License (Continued Suspension Order).

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

Committee Order; continues the suspension of Dr. RiveraÓs medical

license in New Jersey pending review following completion of

plenary proceedings in the matter; and stayed those further

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

the criminal charges pending against him following his arrest on

November 17, 2012 , in Ridgewood, New Jersey.

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

action by the licensing authority of another jurisdiction.

However, the Committee Order as ratified by the Continuing

Suspension Order does constitute action by the licensing

authority of another jurisdiction.

10. Respondent did not report either New Jersey action to

the Florida Board of Me dicine within 30 days.

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

Statutes (2013).

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

suspend RespondentÓs license to practice medicine. Because

disciplinary proceedings are considered to be penal in nature,

Petitioner is required to prove the allegations in the

Administrative Complaint by clear and convincin g evidence. DepÓt

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

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

13. Clear and convincing evidence Ðrequires more proof than

a Òpreponderance of the evidenceÓ but less than Òbeyond and to

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

2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court,

the standard:

entails both a qualitative and quantitative

standard. The evidence must be credible;

the memories of the witnesses must be clear

and without confusion; and the sum total of

the evidence must be of sufficient weight to

convince the trier of fact without

hesitancy.

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

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

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

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

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

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

(Fla. 1991).

14. The Administrative Complaint contains t wo counts

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

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

part:

(1) The following acts consti tute grounds

for denial of a license or disciplinary

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

* * *

(b) Having a license or the authority to

practice medicine revoked, suspended, or

otherwise acted against, including the

denial of licensure, by the licens ing

authority of any jurisdiction, including its

agencies or subdivisions. The licensing

authorityÓs acceptance of a physicianÓs

relinquishment of a license, stipulation,

consent order, or other settlement, offered

in response to or in anticipation of the

filing of administrative charges against the

physicianÓs license, shall be construed as

action against the physicianÓs license.

* * *

(kk) Failing to report to the board, in

writing, within 30 days if action as defined

in paragraph (b) has been taken against

oneÓs license to practice medicine in

another state, territory, or country.

15. Disciplinary provisions such as section 458.331 must be

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

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

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

Disciplinary statutes must be construed in terms of their literal

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

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

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

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

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

16. Count I of the Admin istrative Complaint charges

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

New Jersey Board taking action against his license on or about

January 7, 2013, and January 17, 2013.

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

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

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

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

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

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

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

constitutes action Ðby the licensing authority of another

jurisdiction.Ñ

18. Petitioner relies on the decision in Department o f

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

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

constitutes action against a license by another jurisdiction.

The issue presented in Fenton focused on the authority of the

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

statutory authority relevant to that proceeding made it clear

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

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

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

position , the Department presented nothing to support the premise

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

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

licensin g authority of another jurisdiction.Ñ

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

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

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

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

New Jersey Board. Taken together, the Orders constitute action

taken by the licensing authority of another jurisdiction.

20 . Respondent contends that the Orders do not constitute

action against his license because the plenary a ction in the

underlying case has not been completed. However, the Orders

continue to prohibit Dr. RiveraÓs practice of medicine, pending

resolution of the criminal matters currently pending against

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

license is an action taken against it. Petitioner has proven

Count I of the Administrative Complaint by clear and convincing

evidence.

21. Count II charges Respondent with failing to notify the

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

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

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

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

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

asserts that Respondent has been able to respond in writing in

these proceedings, and his incarceration does not excuse his

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

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

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

time he should have completed the notification. Given the other

matters pending against him, it is likely that the requirement

that he notify Florida licensing authorities of his suspension

w as relatively insignificant in his list of priorities.

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

Florida Board as required. The circumstances related to this

failure go to mitigation as opposed to providing an excuse for

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

convincing evidence.

22. The Board has adopted disciplinary guidelines which

provide notice of a range of appropriate penalties for

disciplinary violations. Florida Administrative Code Rule 64B8 -

8.001(2) (b) provides that, for action taken against a license in

another jurisdiction, the penalty for a first offense ranges from

imposition of discipline comparable to the discipline which would

have been imposed if the substantive violation had occurred in

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

is unencumbered in the jurisdiction in which disciplinary action

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

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

report action by another jurisdiction), the guideline penalty for

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

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

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

24. Due consideration has been given to the aggravating and

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

above, consideration has been given to RespondentÓs limited

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

His incarceration also renders i mpractical any requirement for

community service.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Final Order finding that Respondent has violated section

458.331(1 )(b) and (kk), Florida Statutes (2012). It is further

recommended that the Board suspend his Florida license to

practice medicine until such time as his New Jersey license is

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

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

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of July , 2014.

ENDNOTE S

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

respects to be a proposa l for settlement of the current

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

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

is the agency with final order authority in this case.

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

and any statements contained within the New Jersey Orders with

respect to that factual basis would be hearsay , and therefore

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

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

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

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

The undersigned makes no finding with respect to the basis for

the New Jersey BoardÓs action.

COPIES FURNI SHED:

Diane K. Kiesling, Esquire

Department of Health

4052 Bald Cypress Way Bin C - 65

Tallahassee, Florida 32399

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

Bergen County Jail

160 South River Street

Hackensack, New Jersey 07601

Roberto E. Rivera, M.D.

82 L a Salle Drive

Yonkers, New York 10710

Allison M. Dudley, Executive Director

Division of Medical Quality Assurance

Boards/Councils/Commissions

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399

Jennifer A. Tschetter, General Counsel

D epartment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.