ALJDEC decisions subject to certification as final

19A-45528-MDX · Arizona Medical Board · 2019-05-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 6, 2019, at 9:00 a.m. APPEARANCES: The Arizona Medical Board (“the Board”) was represented by Roberto Pulver, Esq., Assistant Attorney General; Kang Lu, M.D. (“Respondent”) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. Respondent is the holder of Board-issued License No. 45528 for the practice of allopathic medicine in the State of Arizona. 2. On March 8, 2019, the Board issued Interim Findings of Fact, Conclusions of Law and Order for Summary Suspension of License against Respondent under A.R.S. § 32-1451.02(B), finding that he had committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(a), namely A.R.S. § 32- 3208(A), and that the public health, safety, or welfare imperatively required emergency action under A.R.S. § 32- 1451(D).[1] 3. The Board referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. A hearing was held on May 6, 2019. The Board submitted 18 exhibits and presented the testimony of its Investigations Manager, Raquel Rivera. Respondent submitted seven exhibits and testified on his own behalf. Hearing Evidence 4. Ms. Rivera was not the investigator assigned to Respondent’s case. The investigator assigned to the case, RaeAnne Blaski, worked part-time for the Board and was not available to testify at the hearing. Ms. Rivera learned about this case when it was opened and was familiar with the complaint against Respondent. 5. On or about February 13, 2019, the Federation of State Medical Boards (“FSMB”) issued a Disciplinary Alert Report, informing the Board that the Massachusetts Board of Registration in Medicine (“the Massachusetts Board”) had summarily suspended Respondent’s license to practice medicine in Massachusetts. The FSMB attached to its report the Massachusetts Board’s February 7, 2019 Order of Temporary Suspension.[2] 6. According to the FSMB profile for Respondent, he is Board- certified in diagnostic radiology and is licensed to practice medicine in 48 states.[3] 7. On February 15, 2019, Board staff sent a letter to Respondent, informing him that the Board had received a complaint against him and had opened an investigation into whether further review was required.[4] 8. On February 20, 2019, Board staff sent a letter to Respondent, requesting that he provide court documentation and dispositions and related documents from the Massachusetts Board. The allegations included that Respondent had failed to notify the Board of criminal charges that had been filed against him within 10 days, contrary to the mandatory reporting requirements of A.R.S. § 32-3208(A), and that he had committed unprofessional conduct by (1) Being convicted of or pleading guilty to a felony, in violation of A.R.S. § 32-1401(27)(d); (2) Having action taken against him by another licensing jurisdiction, in violation of A.R.S. § 32- 1401(27)(p); (3) Procuring or attempting procure a license by fraud, misrepresentation, or knowingly taking advantage of a mistake of another person or an agency, in violation of A.R.S. § 32-1401(27)(bb); and (4) Knowingly making a false or misleading statement to the Board, in violation of A.R.S. § 32-1401(27)(kk). The February 20, 2019 letter also asked Respondent to disclose whether other states had taken any actions against his licenses in those states.[5] 9. Ms. Rivera testified that, before Board staff sent the February 20, 2019 letter to Respondent, the Board had not received from Respondent any notifications of arrests or criminal charges. Ms. Rivera testified that Respondent had failed to report to the Board being charged with a felony, had pled guilty to a felony in Canada, had failed to disclose the felony in Canada on his 2018 application to renew his Arizona license, and had his license summarily suspended by the Massachusetts Board. Ms. Rivera stated that the Board offered Respondent an interim consent agreement to resolve the matter. 10. On February 20, 2019, Respondent sent an email to Board staff, stating that he was working through the appeal process with the Massachusetts Board. Appellant also stated in relevant part as follows: As for the INTERIM CONSENT AGREEMENT, I wish to reserve my rights to due process and any administrative hearing to which I may be entitled, and I shall in the near future request, in writing, release and/or modification of the Interim Consent Agreement, accompanied by information demonstrating that I am safe to practice medicine. It is my best understanding and belief that I have acted within my rights and the meaning of the law, and upon this basis I shall seek exoneration.

Respondent attached to his email a Memorandum of Record stating that “[i]t is my wish that all concerned parties will respect my right to the presumption of innocence until they may be fully decided and/or adjudicated.”[6] 11. On February 21, 2019, Ms. Blaski responded to Respondent’s email, confirming his understanding that, if he did not sign the Interim Consent Agreement, the Board would summarily suspend his license.[7] Ms. Rivera testified that the Interim Consent Agreement included a practice restriction that was reportable. 12. The Board submitted a Lookup Detail View from the Illinois Department of Financial and Professional Regulation showing that, on February 14, 2019, Respondent’s license to practice medicine in Illinois had been summarily suspended based on the Massachusetts’ Board’s summary suspension.[8] 13. On March 1, 2019, Respondent sent an email to Ms. Blaski, to which he attached multiple legal memoranda that he had filed with the Massachusetts Board, contesting its jurisdiction to summarily suspend his medical license and asserting his Constitutional right to keep and bear arms.[9] 14. On March 1, 2019, Ms. Blaski sent a memorandum to the Board that summarized the results of her investigation, including a history of at least three weapons-related offenses involving Respondent.[10] The results of her investigation are summarized below in reverse chronological order. 15. On January 27, 2019, Respondent was pulled over by the Auburn Police Department for a motor vehicle infraction with a female passenger. After police interviewed Respondent and his passenger, they determined that he had given her money in exchange for sex. During the officers’ pat-and-frisk of Respondent, they discovered a Glock handgun in his waistband and a handgun magazine in his left pants pocket. The Glock was loaded with a magazine of 15 9mm bullets. Police reviewed Massachusetts Firearms Licensing records and determined that Respondent did not possess a current, active license to carry and that a previous license had been revoked by the Brookline Police Department in 2003.[11] 16. As a result of the incident, Respondent was charged with possession of a large capacity firearm, possession of a large capacity feeding device, possession of ammunition, and sexual conduct for a fee.[12] Charges were pending at the time the Board summarily suspended Respondent’s license.[13] 17. On October 13, 2018, Respondent had been arrested by Canadian border agents for attempting to cross the border with three pistols, a Glock, a Ruger, and a Noricon, one of which was loaded and not properly stored. Respondent also had an ammunition magazine that was prohibited in Canada. Respondent initially told Canadian border authorities that he did not have any defensive weapons, then disclosed that he had only one defensive weapon.[14] 18. After Respondent had been in Canadian custody for 36 days, he pled guilty in the Court of Quebec for importing three restricted firearms and three prohibited devices consisting of ammunition storage magazines. In deciding Respondent’s case, the Canadian court stated the following: [55] In this case, the accused is the only person responsible for his own misfortune since he chose to not answer honestly either on the first or the second step of the inspection.

[56] He was not only bearing one (1) restricted weapon in his trunk but he had two (2) plus one loaded weapon inside his car between the two front seats.

[57] As mentioned in Nur, the Supreme Court of Canada wrote:

“[1] Gun-related crime poses grave danger to Canadians. Parliament has therefore chosen to prohibit some weapons outright, while restricting the possession of others. The Criminal Code, R.S.C. 1985, c. C-46, imposes severe penalties for violations of these laws.”

[58] In the present matter, the Court considers the absence of prior convictions of the accused, the fact that he is a good citizen and a health professional. But the Court also takes into consideration the fact that he lied twice to the authorities and that he is still persisting in his view and conception even in front of the Court regarding his notion of importation of weapon[s].[15]

The Court sentenced Respondent to one additional day in jail. The Canadian Court noted that the maximum penalty for Respondent’s offense was five years’ imprisonment.[16] 19. The Canadian court also noted that Respondent mentioned that he was required to declare every year if he had pled guilty for a criminal offense when he renewed his physician’s license.[17] 20. Respondent submitted his 2019 application to the Massachusetts Board to renew his license. He answered negatively to Questions 17(a) and 17(b), inquiring whether he had been charged with a criminal offense or if charges had been resolved during the applicable time period. Respondent did not disclose his arrest and conviction in Canada in 2018.[18] 21. On or about April 12, 2015, officers with the Palmer Police Department pulled Respondent over for a traffic stop and he refused multiple times to cooperate by providing his driver’s license and vehicle registration.[19] When police searched Respondent, he was found to be carrying a knife. Respondent was charged with misdemeanor disorderly conduct.[20] 22. Ms. Rivera testified that misdemeanor disorderly conduct is a reportable offense, but that Respondent did not report the charge to the Massachusetts Board.[21] 23. According to the Massachusetts Board’s order summarily suspending Respondent’s license, on his 2015 application to renew his Massachusetts license, Respondent answered “yes” to both questions about whether he had been criminally charged and whether charges had been resolved. Respondent explained that, in September 2014, Massachusetts State Police had charged Respondent with Carrying a Dangerous Weapon (Knife) and Motor Vehicle Operator Refusing to Identify Self. The criminal charge of Carrying a Dangerous Weapon was Nolle Prosequi, while the court decriminalized the Refusing to Identify Self charge.[22] 24. Ms. Rivera testified that Respondent had not disclosed to the Board the 2014, the 2015, the 2018, or the 2019 charges. Ms. Rivera testified that the Board’s statute does not consider the outcome of criminal charges: Licensees are required to report criminal charges to the Board within 10 days. Ms. Rivera explained that, if the charges were later dismissed, the Board would close the case. Because the Board’s files are confidential, a physician’s report of being charged with a crime would not be a black mark on his record after the charge was dismissed. 25. The Massachusetts Board’s order summarily suspending Respondent’s license found that he had failed to report the 2018 Canadian weapons charge and conviction on his the 2019 license renewal application, which he submitted to the Massachusetts Board on December 31, 2018.[23] 26. The Town of Brookline, Massachusetts Police Department revoked Respondent’s licenses to carry firearms on June 24, 2003, based on four categories of events, including an incident on June 14, 2002, false statements to police officers, noise complaints in his building, and his seeking counseling for psychological problems in April 2003.[24] Ms. Rivera testified that Respondent had not provided any evidence of his authority to carry a firearm in Massachusetts in 2019. 27. Ms. Rivera testified that A.R.S. § 32-1451.02(B) requires the Board to summarily suspend a physician’s license after another jurisdiction has summarily suspended his license to practice allopathic medicine in that state unless the physician consents to a practice restriction under the Board’s general authority under A.R.S. § 32-1451(D). Ms. Rivera testified that, in her opinion, Respondent has demonstrated a repeated patterns of untruthfulness and failure to abide by laws enacted for the public safety. In her opinion, Respondent cannot be regulated under the Medical Practice Act. 28. Respondent testified that he did not report charges to licensing authorities for his own lawful reasons. Respondent denied that he had any intent to violate any law and submitted legal memoranda that he had submitted to the Canadian court and the Massachusetts Board about his right to keep and bear arms under the U.S. Constitution. 29. Respondent testified that he did not report the January 27, 2019 arrest and charge to the Board because he was confined. After his release, he was informed of the Board’s investigation, so the Board was already aware of the arrest. Respondent testified that he reported the arrest and charges to other Boards that licensed him. Respondent testified that the incident was still under litigation. 30. Respondent argued that the Canadian court lacked jurisdiction over him and that he made a special appearance to contest the Canadian court’s jurisdiction.[25] Respondent explained that he did not believe that he committed an actual crime and contested the Canadian court’s jurisdiction by asking it to answer 20 questions. Because the Canadian court was unable to answer the questions, it lacked jurisdiction over him. Respondent testified that he was convicted under the Canadian Customs Act, but that he had not violated the act because he had not imported the firearms and ammunition into Canada. Therefore, that the firearms and ammunition were not subject to taxation because he was keeping the guns for personal security, not for sale. Respondent testified that he accepted the plea agreement because otherwise, the matter would drag on forever. Respondent testified that he entered the plea without due process safeguards being in place. If he had been allowed to make his arguments, he would have been exonerated. 31. Respondent testified that he did not hurt anyone or damaged any property. The judgment is a nullity. Respondent testified that he has no intention of defrauding the Board. Respondent argued that, for there to be a valid complaint, there must be a statement from the aggrieved party. The limited powers of government require a verified statement from an aggrieved party. 32. Respondent testified that, in Palmer, he was pulled over with his wife at the time and child. He demanded to know what probable cause the police had for the stop, but they could not tell him. Respondent testified that the charges of carrying a knife and disorderly conduct were dropped. Because he did not have time to contest the charge of failure to provide identification, he paid a fine. 33. Respondent disputed whether he had ever been arrested or charged, since the police did not have any authority for the acts that they took against him. He acknowledged that he had been handcuffed. 34. Respondent testified that he has sued the people involved in the three cases, arguing that he did nothing wrong and that police initiated acts of violence against him and his family. Respondent did not submit any judgments in his favor that vindicated his legal arguments. 35. Respondent testified that he believed the Brookline Police Department’s revocation of his permit to carry was arbitrary and capricious. Only 24% of applicants are granted a permit to carry in Brookline and 75% of applicants are denied for no good reason. In contrast, in neighboring towns, 97% of applicants are granted licenses to carry.[26] Respondent testified that he hired an attorney to sue the police chief, but did not submit any judgment reinstating his permit to carry firearms. Respondent testified that he could get a weapon anywhere else. Respondent submitted his Missouri Revolver/Pistol License.[27] 36. Respondent testified that, because arms are excluded from government control, he does not need a permit to possess or bear firearms.[28] Respondent also submitted his Closing Statement to the Massachusetts Board, contesting its charges against him [29] / / / / CONCLUSIONS OF LAW 1. The Board is the duly constituted authority for licensing and regulating the practice of allopathic medicine in the State of Arizona. This matter lies within its jurisdiction.[30] 2. The Board bears the burden of proof to establish cause to sanction Respondent’s license to practice allopathic medicine and factors in aggravation of the penalty by clear and convincing evidence.[31] Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.”[32] 3. The Board established by clear and convincing evidence that the Massachusetts Board summarily suspended Respondent license. A.R.S. § 32-1451.02(B) provides that “[t]he board shall order the summary suspension of a license pending proceedings for revocation or other action if a medical regulatory board in another jurisdiction in the United States has taken the same action because of its belief that the public health, safety or welfare imperatively required emergency action.” (Emphasis added.) “The word ‘shall’ normally indicates a mandatory provision while ‘may’ generally indicates a permissive one.”[33] A.R.S. § 32- 1451(D) provides in relevant part as follows: If the board finds, based on the information it receives . . . , that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, the board may restrict a license or order a summary suspension of a license pending proceedings for revocation or other action. If the board takes action pursuant to this subsection, it shall also serve the licensee with a written notice that states the charges and that the licensee is entitled to a formal hearing before the board or an administrative law judge within sixty days.

4. Because Respondent acknowledged that the Massachusetts Board summarily suspended his Massachusetts medical license and that he rejected the Board’s offer of a consent agreement for a practice restriction, the Board established by clear and convincing evidence cause to summarily suspend Respondent’s Arizona medical license. 5. A.R.S. § 32-3208(A) provides that “[a] health professional who has been charged with a misdemeanor involving conduct that may affect patient safety or a felony after receiving or renewing a license or certificate must notify the health professional's regulatory board in writing within ten working days after the charge is filed.” (Emphasis added.) Respondent does not dispute that he was charged with possession of a large capacity firearm, possession of a large capacity feeding device, possession of ammunition, and sexual conduct for a fee in Auburn in 2019, charged with importing three restricted firearms and three prohibited ammunition storage magazines in Canada in 2018, and disorderly conduct in Palmer in 2015, and that he did not report being charged with these crimes to the Board at any time. The Board has therefore established by clear and convincing evidence that Respondent committed unprofessional conduct as defined by A.R.S. § 32-1401(27)(a).[34] 6. Respondent argued that, as an American citizen, under the U.S. Constitution and various common law interpreting it, he should be allowed to carry weapons, as long as he does not hurt anyone or damage property. Respondent argued that, therefore, the police did not have authority to arrest him and that the courts did not have authority to charge or convict him in Auburn, Canada, or Palmer. In Arizona, even a well-taken appeal from an adverse judgment does not suspend the effect of the judgment.[35] Respondent has not submitted any final judgment to establish that any court has accepted any of his arguments to set aside a conviction or to find his arrest unlawful. Respondent’s persistent reliance on legal arguments that have not been accepted by courts and his continued insistence on carrying weapons and ammunition, regardless of the laws regarding his right to carry such things in the states and countries in which he travels, is concerning. Although none of the allegations in this matter involve Respondent's ability to practice medicine, a respect for the rule of law is an inherent part of regulation. Respondent’s insistence on the rightness of his own legal opinions and interpretations, despite repeated contrary outcomes in the courts of Massachusetts and Canada, indicates that, at this time, he cannot be regulated. Respondent’s acts of unprofessional conduct furnish grounds for the Board to revoke his license to practice allopathic medicine in Arizona under A.R.S. § 32-1451(M).[36] RECOMMENDED ORDER Based on the foregoing, it is ordered that on the effective date of the final order in this matter, IT IS ORDERED affirming the Board’s summary suspension of Respondent Kang Lu, M.D.’s License No. 45528 for the practice of allopathic medicine in the State of Arizona. IT IS FURTHER ORDERED that Respondent Kang Lu, M.D.’s License No. 45528 for the practice of allopathic medicine in the State of Arizona shall be revoked. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification. Done this day, May 21, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Patricia E. McSorley, Executive Director Arizona Medical Board ----------------------- [1] See the Board’s Exhibit 14. [2] See the Board’s Exhibit 1. The Board also submitted the exhibits that supported the Massachusetts’ Order of Temporary Suspension. See the Board’s Exhibit 2A – 2P. [3] See the Board’s Exhibit 4. [4] See the Board’s Exhibit 3. [5] See the Board’s Exhibit 5. [6] The Board’s Exhibit 6. [7] See the Board’s Exhibit 7. [8] See the Board’s Exhibit 9. [9] See the Board’s Exhibit 12. [10] See the Board’s Exhibit 15. [11] See the Board’s Exhibit 2(A); see also the Board’s Exhibit 2(N) (2003 Brookline Police Department revocation of Respondent’s license to carry firearms). [12] See the Board’s Exhibit 2(A) at 18 of 160. [13] See the Board’s Exhibits 2(B) and 2(C). [14] See the Board’s Exhibit 2(M). [15] The Board’s Exhibit 2(O) at 151 – 152 (footnote omitted). [16] See the Board’s Exhibit 2(O) at ¶ 50. [17] See id. ¶ 39. [18] See the Board’s Exhibit 2(P). [19] See the Board’s Exhibit 2(K) at 78 of 160. [20] See id. at 71 of 160. [21] See the Board’s Exhibit 2(J) at 59 of 160. [22] See the Board’s Exhibit 2 at 7 ¶ 19/ [23] See the Board’s Exhibit 2 at 10 of 160, ¶ 26. [24] See the Board’s Exhibit 2(N) at 97 of 160. [25] See Respondent’s Exhibit C. [26] See Respondent’s Exhibit A. [27] See Respondent’s Exhibit B. [28] See Respondent’s Exhibits E and F. [29] See Respondent’s Exhibit G. [30] See A.R.S. § 32-1401 et seq. [31] See A.R.S. §§ 41-1092.07(G)(2) and 32-1451.04; A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [32] Black’s Law Dictionary at 596 (8th ed. 1999). [33] State v. Seyrafi, 201 Ariz. 147, 150 ¶ 17, 32 P.3d 430, 433 (App. 2001) (citing Walter v. Wilkinson, 198 Ariz. 431, 432 ¶ 7, 10 P.3d 1218, 1219 (App. 2000)). [34] A.R.S. § 32-1401(27)(a) includes among the definitions of unprofessional conduct “[v]iolating any federal or state laws, rules or regulations applicable to the practice of medicine.” [35] See Arizona Downs v. Superior Court, 178 Ariz. 73, 76, 623 P.2d 1229, 1232 (1981) (citations omitted). [36] A.R.S. § 32-1401(M) provides in relevant part as follows: Any doctor of medicine who after a formal hearing is found by the board to be guilty of unprofessional conduct, to be mentally or physically unable safely to engage in the practice of medicine or to be medically incompetent is subject to censure, probation as provided in this section, suspension of license or revocation of license or any combination of these, including a stay of action, and for a period of time or permanently and under conditions as the board deems appropriate for the protection of the public health and safety and just in the circumstance. The board may charge the costs of formal hearings to the licensee who it finds to be in violation of this chapter.

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826