STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

v. ) CASE NO. 88-0748

)

GERALD A. TOBEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on March 29, 1988, in Tallahassee, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Don Royston, Esquire

Department of Health and Rehabilitative Services, District 3

1000 Northeast 16th Avenue, Building H Gainesville, Florida 32609

For Respondent: No Appearance

The issue is whether the clinical laboratory technologist license held by Respondent, Gerald A. Tobey (Tobey), should be revoked or otherwise penalized based on the facts alleged in the Administrative Complaint.

On the afternoon prior to the hearing, Tobey filed a letter requesting a continuance. No copy was served on Petitioner. By telephone, the Hearing Officer advised Tobey that the request for continuance was denied. Tobey indicated that he would not appear for the hearing.

At formal hearing Petitioner, Department of Health and Rehabilitative Services (HRS), presented the testimony of Nancy Chapman and had five exhibits admitted in evidence. HRS waived the filing of the transcript and the filing of a proposed order.

FINDINGS OF FACT

1. Gerald A. Tobey holds a clinical laboratory technologist license in the specialities of microbiology, chemistry, and hematology. He has been so certified since 1976. In 1985, Tobey allowed his license to become delinquent, but it was reinstated at his request.

   
   

2. In July, 1987, Tobey requested certification to add the specialty of immunohematology to his license. The application he filed asked in Question 9

   if he had ever been convicted of a felony or crime involving moral turpitude. Tobey left the question blank. HRS wrote to him requesting an answer. Tobey responded by letter dated September 23, 1987, indicating that the answer was "No."

   
   

3. In fact, Tobey pleaded guilty and was adjudicated guilty on February 4, 1985, of the offense of causing a minor to participate in harmful or obscene motion picture exhibitions, shows or presentations, a felony. In exchange for the guilty plea, one count of sexual battery on a minor, his daughter, was nolle prossed.

   
   

4. The crime is undeniably a crime involving moral turpitude.

   
   

5. Tobey was sentenced to 36 months in a facility operated by the Department of Corrections.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

7. Section 483.21, Florida Statutes (1987), states the grounds for disciplinary action against the license of clinical laboratory personnel. Subsection 483.21(5), includes the ground of:

(5) Having been convicted of a felony or of any crime involving moral turpitude under the laws of any abate or of the United States. The record of conviction or a certified copy thereof shall be conclusive evidence of such conviction.

In the present case, a certified copy of the conviction was admitted into evidence. Additionally, a finding has been made that such conviction did occur. The crime was both a felony and one involving moral turpitude.

The Petitioner has presented a prima facie case to support the allegations of the Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter

a Final Order revoking the clinical laboratory technologist license of Gerald A. Tobey.

DONE and ENTERED this 6th day of April, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1988.

COPIES FURNISHED:

Don Royston, Esquire

HRS District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, Florida 32601

Gerald A. Tobey

364 Blue Parrot

Lady Lake, Florida 32659

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 88-000748

Orders for Case No: 88-000748