STATE OF FLORIDA BOARD OF CHIROPRACTIC MEDICINE FINAL ORDER. THIS MATTER came before the Board of Chiropractic Medicine (Board) at a dulynoticed

Transcription

1 Final Order No. DOH MQA STATE OF FLORIDA BOARD OF CHIROPRACTIC MEDICINE FILED DATE - APR Department o Ith tv Agency Clerk DEPARTMENT OF HEALTH, Petitioner, VS. Case No.: License No.: CH9768 BRIAN DAVID MUTO, D.C., Respondent. FINAL ORDER THIS MATTER came before the Board of Chiropractic Medicine (Board) at a dulynoticed public meeting on April 8, 2016, in Orlando, Florida. Petitioner filed an Administrative Complaint seeking disciplinary action against Respondent's license to practice as a chiropractic physician. A copy of the Administrative Complaint is attached to and incorporated as part of this Final Order. Petitioner was represented by Christopher Dierlam, Assistant General Counsel. Respondent was present with his counsel, Michael D'Lugo, Attorney at Law. Petitioner and Respondent have stipulated to a disposition of this case. After considering the presentation of the parties and reviewing the record of the case, the Board voted to REJECT the Settlement Agreement. The Board offered a counter Settlement Agreement which incorporates all of the terms of the original settlement with the following terms: Ethics and Boundaries Examination. Within one (1) year of the filing of this Final Order, Respondent shall take and pass the Ethics and Boundaries Examination (E & B) administered by the National Board of Chiropractic Examiners (NCBE).

2 Payment of Costs. Pursuant to Section (4), Florida Statutes, the Department is authorized to collect costs for investigation and prosecution. The evidence presented to the Board was that the costs associated with this matter total one thousand forty-nine dollars and forty-eight cents ($1,049.48). The costs shall be paid in the manner set forth in the incorporated Settlement Agreement. Respondent accepted the terms of the counter settlement on the record at the hearing. IT IS THEREFORE ORDERED that the Board's proposed Counter Settlement Agreement is adopted and Respondent is hereby ordered to reimburse the Department costs in the amount of $1, This Final Order shall become effective upon filing with the Clerk of the Department of Health. DONE AND ORDERED this 090 `t day of /4(k- -, BO OF CHIROPRACTIC MEDICINE Anthony B on behalf o ey, D.B.A., r xecut e Director evin Fogarty, D.C., hair CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to: Brian Muto, D.C., 7663 Cumberland Road, Largo, Florida and by electronic mail to his counsel of record, Michael D'Lugo, Wicker Smith O'Hara Mccoy & Ford, P.A., mdlugo@wickersmith.com; and by electronic mail to: Christopher Dierlam, Assistant General Counsel, Department of Health, cluistopher.dierlam@fihealth.gov; and Deborah B. Loucks, Assistant Attorney Gepierill, Ofticeof, the Attorney General, deborahloucks@myfloridalegal.com, on, lay Apney Work

3 STATE OF FLORIDA BOARD OF CHIROPRACTIC MEDICINE DEPARTMENT OF HEALTH, PETITIONER,. CASE NO BRIAN DAVID MUTO, D.C. RESPONDENT. SETTLEMENT AGREEMENT Respondent, Brian D. Muto, referred to as the "Respondent," and the Department of Health, referred to as "Department" stipulate and agree to the following Settlement Agreement and to the entry of a Final Order of the Board of Chiropractic Medicine, referred to as "Board,"- incorporating the-stipulated F-acts-and Stipu-lated-Di-sposition in - this matter. Petitioner is a state agency charged with regulating the practice of chiropractic medicine pursuant to Section 20.43, Florida Statutes, and Chapter 456, Florida Statutes, and Chapter 460, Florida Statutes. Page 1 of 12

4 STIPULATED FACTS 1. At all times material hereto, Respondent was a licensed chiropractic physician within the State of Florida, having been issued License Number The Department charged Respondent with violations of Chapter 460, Florida Statutes, in an Administrative Complaint that was filed and properly served upon Respondent. A true and correct copy of the Administrative Complaint is attached hereto as Exhibit "A". 3. For the purposes of these proceedings, Respondent neither admits nor denies the allegations of fact contained in the Administrative Complaint. STIPULATED CONCLUSIONS OF LAW 1. Respondent admits that in his capacity as a chiropractic physician he is subject to the provisions of Chapters 456 and 460, Florida Statutes, and the jurisdiction of the Department and the Board. 2. Respondent admits that the facts alleged in the Administrative Complaint, if proven, would constitute violations of Chapter 460, Florida Statutes, as alleged in the Administrative Complaint. Page 2 of 12

5 1 Respondent agrees that the Stipulated Disposition in this case is fair, appropriate and acceptable to Respondent. STIPULATED DISPOSITION 1. Letter of Concern: Respondent shall receive a Letter of Concern from the Board of Chiropractic Medicine. 2. Fine: The Board of Chiropractic Medicine shall impose an administrative fine of $15, against Respondent's license, to be paid by Respondent to the Department of Health, Com 9fiance Management Unit, Bin C76, Post Office Box 6320, Tallahassee, Florida , Attention: Board of Chiropractic Medicine Compliance Officer, within three years of the Final Order accepting this Settlement Agreement. All fines shall be paid by cashier's check or money order. Any change in the terms of payment of any fine imposed by the Board must be approved in advance by the Probation Committee of the Board. RESPONDENT ACKNOWLEDGES THAT THE TIMELY PAYMENT OF THE FINE IS HIS LEGAL OBLIGATION AND RESPONSIBILITY, AND RESPONDENT AGREES TO CEASE PRACTICING IF THE FINE IS NOT PAID AS AGREED TO IN THIS Page 3 of 12

6 SETTLEMENT AGREEMENT, SPECIFICALLY: IF WITHIN THREE YEARS OF THE DATE OF FILING OF THE FINAL ORDER, RESPONDENT HAS NOT RECEIVED WRITTEN CONFIRMATION FROM THE BOARD OF CHIROPRACTIC MEDICINE COMPLIANCE OFFICER THAT THE FULL AMOUNT OF HIS FINE HAS BEEN RECEIVED, RESPONDENT AGREES TO CEASE PRACTICING UNTIL SUCH TIME AS WRITTEN CONFIRMATION IS RECEIVED BY RESPONDENT FROM THE BOARD OF CHIROPRACTIC MEDICINE COMPLIANCE OFFICER. 3. Reimbursement of Costs: Pursuant to Section , Florida Statutes, Respondent agrees to pay the Department for any and all costs incurred in the investigation and prosecution of this case. Such costs exclude the costs of obtaining supervision or monitoring of the practice, the cost of quality assurance reviews, any other costs Respondent incurs to comply with the Final Order, and the Board's administrative costs directly associated with Respondent's probation, if any. Respondent agrees that the amount of Department costs to be paid in this case is currently $ but shall not exceed $1, Respondent will pay costs to Payments, Department of Health, Compliance Management Unit, Bin C- Page 4 of 12

7 76, P.O. Box 6320, Tallahassee, Florida , within three years from the date of filing of the Final Order in this cause. All costs shall be paid by cashier's check or money order. Any change in the terms of payment of any fine imposed by the Board must be approved in advance by the Probation Committee of the Board. RESPONDENT ACKNOWLEDGES THAT THE TIMELY PAYMENT OF THE COSTS IS HIS LEGAL OBLIGATION AND RESPONSIBILITY AND RESPONDENT AGREES TO CEASE PRACTICING IF THE COSTS ARE NOT PAID AS AGREED TO IN THIS SETTLEMENT AGREEMENT, SPECIFICALLY: IF WITHIN THREE YEARS OF THE DATE OF FILING OF THE FINAL ORDER, RESPONDENT HAS NOT RECEIVED WRITTEN CONFIRMATION THAT THE FUILL AMOUNT OF THE COSTS NOTED ABOVE HAS BEEN RECEIVED BY THE BOARD OFFICE, RESPONDENT AGREES TO CEASE PRACTICING UNTIL SUCH TIME AS WRITTEN CONFIRMATION IS RECEIVED BY RESPONDENT FROM THE BOARD OF CHIROPRACTIC COMPLIANCE OFFICER. 4. Continuing Education Risk Management: Within one year of the date of the filing of a Final Order in this cause, Respondent Page 5 of 12

8 shall attend six hours of Board approved Continuing Education in Risk Management, three of which must be laws and rules. Respondent shall submit documentation in the form of certified copies of the receipts, vouchers, certificates, or other papers, documenting completion of this course. All such documentation shall be sent to the Department of Health Compliance Unit, Bin C76, P. 0. Box 6320, Tallahassee, FL , Attention: Board of Chiropractic Medicine Compliance Officer, within 13 months from the date of filing of the Final Order in this /cause regardless of whether some or any of such documentation was provided previously during the course of any audit or discussion with counsel for the Department. These hours shall be in addition to all those hours required for renewal of licensure; and unless otherwise approved by the Board, said continuing education course(s) shall consist of the formal, live lecture format. 5. Continuing Education Ethics and Boundaries: Within one year of the date of the filing of a Final Order in this cause, Respondent shall attend six hours of Board approved Continuing Education in Ethics and Boundaries. Respondent shall submit documentation in the form of certified copies of the receipts, vouchers, Page 6 of 12

9 certificates, or other papers, documenting completion of these courses. All such documentation shall be sent to the Department of Health Compliance Unit, Bin C76, P. 0. Box 6320, Tallahassee, FL , Attention: Board of Chiropractic Medicine Compliance Officer, within.13 months from the date of filing of the Final Order in this cause regardless of whether some or any of such documentation was provided previously during the course of any audit or discussion with counsel for the Department. These hours shall be in addition to all those ihours required for renewal of licensure; and unless otherwise approved by the Board, said continuing education course(s) shall consist of the formal, live lecture format. 6. Florida Chiropractic Laws and Rules Examination: Within one year of the filing date of this Final Order, Respondent shall take, and pass, the Florida Chiropractic Laws and Rules Examination administered by the Florida Department of Health, Division of Medical Quality Assurance, or its designated agents. Page 7 of 12

10 7. Suspension Language: Respondent's license is hereby SUSPENDED fora period of six months, with credit for the time Respondent's licensed was suspended pursuant to the emergency suspension order filed on or about November 23, STANDARD PROVISIONS 1. Appearance: Respondent is required to appear before the Board at the meeting of the. Board where this Settlement Agreement is considered. 2. No. Force or Effect Until Final Order: It is expressly understood that this Settlement Agreement is subject to the approval of the Board and the Department. In this regard, the foregoing paragraphs (and only the foregoing paragraphs) shall have no force and effect unless the Board enters a Final Order incorporating the terms of this Settlement Agreement. 3. Addresses: Respondent must keep current residence and practice addresses on file with the Board. Respondent shall notify the Board within ten days of any changes of said addresses. 4. Future Conduct: In the future, Respondent shall not violate Chapter 456 or 460, Florida Statutes, or the rules promulgated Page 8 of 12

11 pursuant thereto, or any other state or federal law, rule, or regulation relating to the practice or the ability to practice chiropractic medicine. Prior to signing this Settlement Agreement, the Respondent shall read Chapters 456 and 460, Florida, Statutes, and the Rules of the Board of Chiropractic Medicine, at Chapter 64B2, Florida Administrative Code. 5. Violation of Terms of Settlement Agreement Considered Violation of Final Order: It is expressly understood that a violation of the terms of this Settlement Agreement Shall be considered a violation of a Final Order of the Board, for which disciplinary action may be initiated pursuant to Chapters 456 and 460, Florida Statutes. 6. Purpose of Settlement Agreement: Respondent, for the purpose of avoiding further administrative action with respect to this cause, executes this Settlement Agreement. In this regard, Respondent authorizes the Board to review and examine all investigative file materials concerning Respondent prior to or in conjunction with consideration of the Settlement Agreement. Respondent agrees to support this Settlement Agreement at the time it is presented to the Board and shall offer no evidence, testimony or argument that disputes Page 9 of 12

12 or contravenes any stipulated fact or conclusion of law. Furthermore, should this Settlement Agreement not be accepted by the Board, it is agreed that presentation to and consideration of this (Settlement Agreement and other documents and matters by the Board shall not unfairly or illegally prejudice the Board or any of its members from further participation, consideration or resolution of these proceedings. 7. No Preclusion of Additional Proceedings: Respondent and the Department fully understand that this Settlement Ag'rerment and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or the Department against Respondent for acts or omissions not specifically set forth in the Administrative Complaint attached as Exhibit A. 8. Waiver of Attorney's Fees and Costs: Upon the Board's adoption of this Settlement Agreement, the parties hereby agree that with the exception of costs noted above, the parties will bear their own attorney's fees and costs resulting from prosecution or defense of this matter. Respondent waives the right to seek any attorney's fees or costs from the Department and/or the Board in connection with this Page 10 of 12

13 matter under Florida Statutes, Chapte s 57, 120, 456, and 460, or on any other basis. 9. Waiver of Further.0roce ural Steps: Upon the Board's adoption of this Settlement Agreement, Respondent expressly waives all further procedur I steps and expressly waives all rights to seek judicial review of or to o herwise challenge.or co test the validity of the Settlement Agreement and the Final Order of the Beard incorporating said Settlement Agreement. SIGNEDthis dy. of 104,r L. j I, D Muto, D.C. N T IARY BLOCK ON F LLOWING PAGE] Pageilof 2

14 Before identity is known to me by Identification) and who, under rd Brian Mu 0, D.C.t whose (type of at his signature appears above. Sworn to and. subscribed day of :SNAtEttaccoY MYCOLSISSION FF I WIRE& Much a nig sanded Thro tictielynagicumoreqn No slic Sthte Printed, me: ScOv\vA Commis s tm No.: CoMmi n Expires:. ri da (\k,ccotter. ' APPROVED. this day of )47a" John H. :instrong, MD Surgeon eneral ançlecreary of Health BY: Christoph r Ray Dierlamt; Assiltarn eneral Counsel Dep rtn-e;t.., of Health Pros cutio 1 Services Unit 40 Ba d.cypress Way, Bin C-65 Tall hass4, FL (850) Ext.8220i FAX (50): I. Florida Ba i :# Pge:2of 12

15 DEPARTMENT OF HEALTH, STATE OF FLORIDA BOARD OF CHIROPRACTIC MEDICINE PETITIONER, v. CASE NO BRIAN DAVID MUTO, D.C., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through undersigned counsel, files this Administrative Complaint before the Board of Chiropractic Medicine against Respondent, Brian David Muto, D.C., and in support thereof alleges: 1. Petitioner is the state department charged with regulating the practice of Chiropractic Medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 460, Florida Statutes. 2. At all times material to this Complaint, Respondent was licensed to practice as a chiropractic physician within the state of Florida, having been issued License Number CH Respondent's address of record is th Street North, Saint Petersburg, FL DOH v. Brian David Muto, D.C. Case No

16 4. His last known address is 7663 Cumberland Road, Largo, Florida On or about December 15, 2014, in the Circuit Court of the Sixth Judicial Circuit, in and for Pinellas County, Florida, in Case Number CF007413)000(NO-N, the Respondent entered a plea of nolo contendere to, and had adjudication withheld for, sale or delivery of testosterone propionate, a third-degree felony violation of Section (1)(a)2, Florida Statutes. 6. On or about December 15, 2014, in the Circuit Court of the Sixth Judicial Circuit, in and for Pinellas County, Florida, in Casel Number CF007415)000(NO-N, Respondent entered a plea of nolo contendere to, and had adjudication withheld for, possession of testosterone propionate, a thirddegree felony violation of Section (6)(a), Florida Statutes. 7. On or about December 15, 2014, in the Circuit Court of the Sixth Judicial Circuit, in and for Pinellas County, Florida, in Case Number CF007416)000(NO-N, the Respondent entered a plea of nolo contendere to, and had adjudication withheld for, sale or delivery of testosterone propionate, a third-degree felony violation of Section (1)(a)2, Florida Statutes. 8. On or about December 15, 2014, in the Circuit Court of the Sixth Judicial Circuit, in, and for Pinellas County, Florida, in Case Number CF007417>000(NO-N, Respondent entered a plea of nolo contendere to, DOH v. Brian David Moto, D.C. Case No

17 and had adjudication withheld for, possession of testosterone propionate, a thirddegree felony violation of Section (6)(a), Florida Statutes. 9. The crimes to which Respondent pled guilty relate to the practice and/or the ability to practice as a chiropractic physician. 10. Section (1)(c), Florida Statutes (2014), subjects a licensee to discipline for being convicted, or found guilty of, regardless of adjudication, a crime in any jurisdiction which relates to the practice of chiropractic medicine, or the ability to practice chiropractic medicine. 11. Pursuant to Section (1)(c), Florida Statutes (2014)) a plea of nolo contendere is considered a conviction. 12. Respondent entered pleas of nolo contendereto crimes related to the practice or the ability to practice as a chiropractic physician, and was convicted, when he entered nolo contendere pleas to one or more of the following: a. Two counts of sale or delivery of testosterone propionate; and/or b. Two counts of possession of testosterone propionate. 13. Based on the foregoing, Respondent violated Section (1)(c), Florida Statutes (2014), by being found guilty of a crime in any jurisdiction which relates to the practice of chiropractic medicine or to the ability to practice chiropractic medicine. D01-1 v. Brian David Muto, D.C. Case No

18 WHEREFORE, Petitioner respectfully requests that the Board of Chiropractic Medicine enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED on this WL. day of 6e cevvaw" John H. Armstrong, MD, FACS Surgeon General & Secretary FILED Department Of Health Deputy Clerk CLERK cra_muiraa. DEC DATE DEC Christopher R. Dierlam, Esq. Assistant General Counsel Florida Bar No.: Florida _Department of Health _ Office of the General Counsel 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL Telephone (850) ext Facsimile: (850) Christopher.Dierlamflhealth.gov PCP Date: December 3, 2015 PCP Panel Members: Christopher Fox, D.C. and Sal LaRusso, D.C. DOH v. Brian David Muto, D.C. Case No

19 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section and , Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule (2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule (4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule (5), Florida Administrative Code. Please be advised that mediation under Section 120,5731 Florida Statutes, is not available for administrative disputes involving this agency action. NOTICE REGARDING ASSESSMENT-OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456,072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. DOH v. Brian David Muto, D.C. 5 Case No