STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION (BOARD OF MEDICAL ) EXAMINERS), )

)

Petitioner, )

)

vs. ) DOAH Case No. 85-1749

) (DPR# 0054670)

ROBERTO CUESTA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case in Miami, Florida, on October 9, 1985, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing by the following counsel:

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Leonard Sussman, Esquire

7195 Southwest 47th Street, Suite 101

Miami, Florida 33155 ISSUES

Whether disciplinary action should be taken against Respondent's license to practice medicine and surgery based on the violations of Section 458.331(1), Florida Statutes, alleged in the Administrative Complaint filed in this proceeding.

BACKGROUND

On May 21, 1985, the Petitioner filed an Administrative Complaint against Respondent alleging that Respondent had violated Section 458.331(1)(f), Florida Statutes, by failing to report to the Department any person who the licensee knows is in violation of Chapter 458, Florida Statutes, or of the rules of the Department or the Board Section 458.331(1)(g), Florida

Statutes, by aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to Chapter 458, Florida Statutes, or to a rule of the Department or the Board: Section 458.331(1)(i), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 458.331(1)(x), Florida Statutes, by violating any provision of Chapter 458, Florida Statutes, a rule of the Board or the Department, or a lawful order of the Board or the Department previously entered in a disciplinary hearing; and Section 458.331(1)(h), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician, by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duty, in violation of Section 837.06, Florida Statutes.

By an Election of Rights form executed on May 22, 1985, Respondent requested a formal hearing. Accordingly, this case was referred to the Division of Administrative Hearings for assignment of a Hearing Officer.

On or about June 22, 1985, Respondent filed a Motion to Dismiss or for a More Definite Statement requesting that Counts One and Four of the Administrative Complaint be dismissed or, in the alternative, that the Petitioner be required to provide a more definite statement of the legal theory which provided the basis for the charges contained in Counts One and Four of the Administrative Complaint. By an order dated July 16, 1985, the Petitioner was directed to file a more definite statement of the legal theory which forms the basis for Counts One and Four of the Administrative Complaint. Petitioner failed to correctly respond to the order dated July 16, 1985. At the formal hearing, Respondent renewed his Motion to Dismiss, citing the failure of Petitioner to file a more definite statement as a basis for the dismissal of Counts One and Four of the Administrative Complaint. In response, Petitioner voluntarily dismissed Count Four of the Administrative Complaint. Count One was dismissed by the Hearing Officer at the formal hearing because of the Petitioner's failure to correctly respond to the order of July 16, 1985.

Subsequent to the hearing, a transcript of the proceedings at hearing was filed with the Division of Administrative Hearings on November 12, 1985, and the parties were allowed until November 26, 1985, within which to file their post-hearing submissions with the Hearing Officer. Due to the unfortunate circumstances wrought by Hurricane Kate, all parties were unable to file their post-hearing submissions until December 2, 1985. Both parties filed proposed recommended orders containing, inter alia, proposed findings of fact and conclusions of law.

Careful consideration has been given to the parties' post- hearing submissions in the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by all parties are contained in the appendix attached to this Recommended Order and incorporated therein.

FINDINGS OF FACT

Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence at the hearing, I make the following findings of fact.

1. Respondent is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0014346. Respondent's last known address is 2298 S.W. 8th Street, Miami, Florida 33155.

   
   

2. On or about January 8, 1978, Respondent signed a Form B-

   1 which was addressed to Rafael A. Penalver, M.D., the Director, Office of International Medical Education, University of Miami, School of Medicine, in Miami, Florida. The Form B-1 contained the following sworn statement:

   
   

   This is to certify that Armando R. Vicente born in Cuba and a graduate from the Universidad Central del Este on 1977 was legally engaged in the practice of medicine) from December, 1977, to present in Dominican Republic. I have known the applicant since 1958 and was acquainted with him/her during the time he practiced medicine. I was also engaged in the practice of medicine in U.S.A. during the years of 1967 to present.

   
   

3. Respondent and Vicente have known each other since late in the 1950's. In the 1950's, Respondent, who was at that time a salesman for a medical supply company, was a friend of Santiago Moya, Vicente's uncle. From time to time, Respondent would see Vicente. Later, Respondent began to go to medical school in Cuba. Vicente, who was a teenager, was also interested in going to medical school. Therafore, Vicente and Respondent would talk about medical school. Also, during 1959 and 1960 Respondent would occasionally see Vicente at the University of Havana. When the Bay of Pigs invasion occurred, Respondent was jailed and eventually left Cuba in 1961.

   
   

4. In approximately 1965, Armando R. Vicente came to) the United States. At that time Vicente was 22 years old. Upon his arrival in Florida, Vicente went to work at Jackson Memorial Hospital, working in the Hematology Department, and also worked

   at another hospital in Miami Beach, Florida. In November 1968, Vicente opened a medical laboratory in Miami, Florida.

   
   

5. In 1967 Respondent started practicing medicine at Jackson Memorial Hospital. In 1968 or 1969 he became aware that Vicente was in Miami and Respondent began to see Vicente on a regular basis, partly because a friend from Respondent's home town worked at Vicente's medical laboratory and Respondent would go to visit at Vicente's laboratory. In 1972 when Respondent opened his own medical clinic for the private practice of medicine, he became one of Vicente's clients and Vicente's medical laboratory did all of the lab work for Respondent's patients. This business relationship lasted until a few months before the hearing. Although the details in the record are a bit sparce, it is obvious that Respondent and Vicente had a regular and continuous social and business relationship for many years and that they also traveled in the same social circle and had many mutual friends.

   
   

6. In January or February of 1977, Respondent went to the Dominican Republic where he happened to meet Vicente and talked to Vicente at the Ambassador Hotel and at the home of a mutual friend, Dr. Baquero, who practices psychiatry in the Dominican Republic. During their conversations, Vicente told Respondent that he had completed his course work at the Universidad Central del Este and that he was doing his internship at hospitals in the Dominican Republic. In addition, they discussed Vicente's plans for the future, including whether Vicente intended to practice in Florida, and talked about mutual friends. Vicente also told Respondent about some of his supposed experiences as an intern. Vicente asked Respondent the types of questions which Respondent asked when Respondent was an intern in medical school. In June or July of 1977, Respondent returned to the Dominican Republic and again saw Vicente. Again they had conversations similar to those they had had during January or February. From the conversations which Respondent had with Vicente, Respondent was of the impression that Vicente was attending medical school in the Dominican Republic at the Universidad Central del Este (U.C.E.) which is located in San Pedro de Macoris, and that Vicente, in the course of his medical education, had interned in a hospital in the Dominican Republic in 1977. Working in a hospital as an intern is accepted by the government of the Dominican Republic as legally practicing medicine.

7. During his visits to the Dominican Republic, Respondent did not actually see Vicente at U.C.E. or see Vicente at any hospital in the Dominican Republic.

8. During the time that Vicente was supposedly in school at U.C.E., Respondent would talk to friends of Vicente and was told that Vicente was going to medical school in Santo Domingo.

   
   

9. In 1978, Vicente asked Respondent to sign an affidavit for Vicente regarding Vicente's graduation from medical school and Vicente's practice of medicine. Prior to Respondent's signing the affidavit, Vicente told Respondent that he (Vicente) had graduated from the medical school at the Universidad Central del Este and had completed his internship. Vicente also showed Respondent what Vicente said was his diploma from the Universidad Central del Este. The diploma was a very authentic looking document, but it was a forgery. Nevertheless, it was an excellent forgery and would be very difficult to distinguish from a legitimate diploma issued by the Universidad Central del Este. Respondent had no reason to suspect that the diploma was a forgery. Quite to the contrary, due to his long relationship with Vicente, his knowledge of Vicente's background, and his having seen Vicente in the Dominican Republic, it was very plausible for Respondent to accept the diploma at face value. Respondent signed the Form B-1 described above. When the Form B-

   1 was presented to Respondent for signature, it was partially

   completed. Vicente had completed the portion of the affidavit pertaining to his graduation from medical school and his medical practice. Respondent completed the remainder of the affidavit himself and signed the form in the presence of a notary. At the time Respondent signed the Form B-1, he sincerely and reasonably believed that all statements in the form were true and he had no reason to doubt the truth of any of those statements.

   
   

10. At the time Respondent signed the Form B-1 which is described above, Respondent knew that the Form B-1 was part of the application process for foreign medical graduates to take the licensure examination to become a physician in Florida.

    
    

11. The Board of Medical Examiners expects, and reasonably so, that when a person signs a sworn document such as a Form B-1, the person signing the document has personal knowledge of the facts set forth in the document. As of 1978 the Board did not have any published standards as to the quality of personal knowledge they deemed to be sufficient for such purposes.

    
    

12. In approximately May of 1978, Vicente submitted an application for the Florida State Board of Medical Examiners Continuing Education Program, along with the supporting documentation which included the Form B-1 described above. The Application for the Florida State Board of Medical Examiners Continuing Education Program was submitted as part of the application for licensure as a physician in Florida.

13. Vicente applied for licensure in Florida under the provisions of Section 458.311(1)(b), Florida Statutes, and Rule 21M-22.11, Florida Administrative Code, which provided that the Board of Medical Examiners would establish continuing education courses designated to qualify for licensure those individuals who were former resident nationals of the Republic of Cuba and were residents of Florida on July 1, 1977.

    
    

14. Upon approval by the Board of Medical Examiners of the applicant to participate in the continuing education program established by the Board, the applicant would have to complete the continuing education program. Upon completion of the continuing education program, the applicant would take the licensing examination.

    
    

15. The application submitted by Vicente in May of 1978 was not timely filed with the Board of Medical Examiners. Vicente subsequently reapplied and was approved to take the continuing medical education program approved by the Board of Medical Examiners for Cuban nationals. After completing the program, Vicente applied and reapplied on several occasions to take the licensure examination to practice medicine in Florida.

    
    

16. At the time of Vicente's initial applications for approval to take the licensure examination and the Florida State Board of Medical Examiners Continuing Medical Examination Program, the Board did not make any independent attempts to verify an applicant's medical education.

    
    

17. In making the determination that an applicant is eligible to take the licensure examination, the office of the Board of Medical Examiners reviews the applicant's entire application file. When multiple applications are filed, the applications may be compared to determine if the applications are consistent. Further, the applicant may not be required to resubmit some information from earlier applications if such information was satisfactory when initially submitted. Following normal procedure and applying it to the present case, the Board office would have considered the May 1978 applications submitted by Vicente as part of the file to be reviewed in determining whether Vicente was eligible to take the licensure examination.

    
    

18. On approximately April 13, 1983, the Board of Medical Examiners wrote to U.C.E. requesting information from U.C.E. about Vicente's graduation from the medical school at U.C.E. In response, a letter was received from Juan A. Silva Santos, the Dean of Medicine at U.C.E., which stated that Vicente had registered at U.C.E. for the August 1977 semester and then "withdrew at the end of that semester in March, 1977 (sic)." Because of confusion regarding the dates contained in the letter,

    the Board of Medical Examiners requested further clarification. In response, the Board of Medical Examiners received a letter from Dr. Silva dated June 17, 1983, which stated that Vicente did not complete the curriculum of the medical school and, therefore, did not graduate.

    
    

19. On August 13, 1983, the above-described letters were presented to the Board of Medical Examiners and were considered in conjunction with the application of Armando R. Vicente. Based on its consideration of the application and the above-referenced letters, the Board issued a Final Order on September 13, 1983, denying Vicente's application based upon the June 17, 1983, letter described above which was written by Dr. Silva.

    
    

20. On August 22, 1983, the Board of Medical Examiners received a letter dated August 11, 1983, which purported to be from Lic. Piedad Licelott Noboa Mejia, Secretary General for U.C.E., and Dr. Silva, the Dean of Medicine at U.C.E. The letter stated that Vicente completed the curriculum of U.C.E.'s medical school and received a diploma issued under Folio (page) number 1 and registration number 67. However, this letter was a forgery and was not sent by U.C.E.

    
    

21. Armando R. Vicente Moya has never graduated from U.C.E. Vincente enrolled in U.C.E. in August 1977. In June of 1977, Vicente had been given leave to take examinations to validate grades or credits which Vicente said he received from the University of Havana. The University of Havana would not confirm transcripts from prior students who left Cuba. Therefore, U.C.E. allowed students to take examinations to validate or confirm the information contained in any transcripts produced by its students pertaining to courses taken at the University of Havana. There was no record that Vicente ever took or passed the examinations necessary to confirm or validate the grades or credits which he claimed to have received from the University of Havana. Furthermore, there is no record that Vicente ever passed any courses at U.C.E. At the end of the first semester, Vicente withdrew from U.C.E. in March 1978. Vicente did not complete or receive credit for any of the twelve (12) semesters at U.C.E. which make up the medical degree program, including premedical training.

    
    

22. Respondent did not have actual personal knowledge of the facts contained in the Form B-1 described above, as they pertain to Vicente's medical education and medical practice. However, Respondent did have knowledge of information (albeit incorrect information) which was sufficient to cause Respondent to believe he had personal knowledge regarding Vicente's medical education and medical practice.

    CONCLUSIONS OF LAW

    
    

23. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

24. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. See Section 120.57(1), Florida Statutes, and Section 455.225(4), Florida Statutes.

    
    

25. The Board of Medical Examiners is empowered to revoke or suspend the license of, or otherwise discipline, any physician who violates any of the following provisions of Section 458.331(1), Florida Statutes:

    
    

    1. Aiding, assisting, procuring or advising any unlicensed person to practice medicine contrary to Chapter 458, or to a rule of the Department or the Board;

       
       

    2. Failing to perform any statutory or legal obligation placed upon a licensed physician; and

       
       

    3. Making or filing a report which the licensee knows to be false, intentionally or! negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity of a licensed physician.

       
       

26. Petitioner has the burden of proof in this license disciplinary case and must prove clearly and convincingly that the alleged violations of the above-cited statute occurred. Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981); Robinson v. Florida Board of Dentistry, 447 So. 2d 930 (Fla. 3d DCA 1984); and Sneij v. Department of Professional Regulation, 454 So. 2d 795 (Fla. 3d DCA 1984).

    
    

    Conclusions regarding Count One

    
    

27. Count One of the Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(f), Florida Statutes,

    by failing to report to the Department any person who the licensee knows is in violation of Chapter 458, Florida Statutes, or the rules of the Department or the Board.

    
    

    By order dated July 16, 1985, the Petitioner was ordered to file a more definite statement of the legal theory which forms the basis for Count One of the Administrative Complaint. The Petitioner's response to that order failed to address Count One. Citing such failure, the Respondent moved to dismiss Count One at the beginning of the hearing. The Hearing Officer reserved ruling on the motion until after the presentation of all of the Petitioner's evidence. When the motion to dismiss was renewed, it was granted and Count One of the Administrative Complaint was ordered dismissed for failure to comply with the order of July 16, 1985. Accordingly, Count One should be dismissed in the Final Order in this case.

    
    

28. Yet another reason for dismissing Count One of the Administrative Complaint is that Section 458.331(1)(f), Florida Statutes, by its express terms applies only to violations of which a licensee has knowledge. Even though the Petitioner was permitted to offer evidence in support of Count One before it was ordered dismissed at the hearing, the evidence in this record is insufficient to establish that the Respondent actually knew that Vicente was in violation of any part of Chapter 458, or of the rules of the Department or Board, or that he failed to report any such violation. Without question, it is often difficult to prove a negative--to affirmatively prove that something did not

    happen--but it can be done, and without such proof, the violation alleged in Count One must be dismissed.

    Conclusions regarding Count Two

    
    

29. Count Two of the Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(g), Florida Statutes,

    
    

    by aiding, assisting, procuring or advising any unlicensed person to practice medicine contrary to Chapter 458, Florida Statutes, or to a rule of the Department or the Board.

    
    

    For the reasons set forth below, the evidence in this case is insufficient to establish that the Respondent violated Section 458.331(1)(g), Florida Statutes, when he signed a Form B-1 for Armando R. Vicente. Unlike Dr. Maniglia and Dr. Macedo who were dealing with a total stranger (see orders published at 5 FALR 1988-A through 1993-A) or Dr. Marti and Dr. Escar who were dealing with someone who was only a casual acquaintance about

    whom they knew very little (see Recommended Order in DOAH Case Nos. 85-1724 and 85-1726 issued March 4, 1986), the Respondent in this case was dealing with a person who had been a family friend for approximately twenty years and with whom he had had a regular and continuing social relationship for approximately ten years and regular and continuing business relationship for approximately six years prior to the time of the signing of the fateful Form B-1. On the basis of the findings of fact regarding the long-standing relationship between the Respondent and Vicente, regarding the statements the Respondent heard from Vicente and from mutual friends of the Respondent and Vicente, regarding the Respondent's visits to the Dominican Republic where he saw Vicente, and regarding Respondent's having seen Vicente's diploma (which is a quite good forgery), it can only be concluded that the Respondent sincerely believed, on the basis of what reasonably appeared to him to be first hand knowledge, that Vicente really was a graduate of the Universidad Central del Este and really had performed a lawful internship at a hospital in the Dominican Republic. The convincing evidence in this case leaves matters somewhat doubtful as to just what Vicente was doing in the Dominican Republic in 1977. In all probability he was performing some type of work at the Carl T. George Hospital in the Dominican Republic because his conversations with the Respondent describing his experiences convinced the Respondent that he was working as an intern, but it is most doubtful that he was lawfully working there as an intern or a resident because Vicente never completed his medical school education at the Universidad Central del Este. Some of the information in the Form B-1 is without doubt erroneous, but the Respondent sincerely believed it to be true and also sincerely believed that he had sufficient personal knowledge about his friend he had known for over twenty years and had done business with for approximately six years to certify in good faith that his friend was a graduate of the Universidad Central del Este and had lawfully practiced medicine in the Dominican Republic. In a case like this in which the Respondent acted in good faith and sincerely (although mistakenly) believed that he possessed personal knowledge of Vicente's medical education and experience, the proof is insufficient to establish a violation of Section 458.331(1)(g), Florida Statutes. Accordingly, Count Two must be dismissed.

    Conclusions regarding Count Three

    
    

30. Count Three of the Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(i), Florida Statutes, "by making or filing a false report which the licensee knows to be false." As noted in the findings of fact and as discussed in the preceding paragraph regarding Count Two, the Respondent sincerely believed, on the basis of information which he reasonably believed constituted personal knowledge, that the

    information in the Form B-1 was true. Respondent did not know that some of that information was false. Absent proof that the Respondent knowingly filed a false report there is no violation of Section 458.331(1)(i), Florida Statutes, and Count Three must be dismissed.

    
    

    Conclusions regarding Count Four

    
    

31. Count Four of the Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(x), Florida Statutes,

    
    

    by violating any provision of Chapter 458, Florida Statutes, a rule of the Board or Department, or a lawful Order of the Board or the Department previously entered in a Disciplinary Hearing.

    
    

    At the hearing, counsel for the Petitioner voluntarily dismissed Count Four of the Administrative Complaint. Accordingly, Count Four should be dismissed.

    
    

    Conclusions regarding Count Five

    
    

32. Count Five of the Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(h), Florida Statutes,

by failing to perform any statutory or legal obligation placed upon a licensed physician. The specific statutory or legal obligation which Respondent is alleged to have violated is set forth in Section 837.06, Florida Statutes, which provides that whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in Sections 775.082 775.083, or 775.084, Florida

Statutes.

For the several reasons which follow, Count Five must also be dismissed. First, as noted in the findings of fact and as discussed above regarding Count Two [see paragraph 6 of these conclusions of law], the evidence in this case is insufficient to establish that the Respondent knowingly made a false statement.

Further, there is no evidence that the Respondent had any intent to mislead a public servant. Second, I seriously doubt that the legislative intent in enacting subsection (h) of Section

458.331(1), Florida Statutes, was to bootstrap into the Medical Practice Act every conceivable statutory violation of which a human being is capable, especially when note is taken of the broad scope of subsection (c) of the subject statutory provision. Rather, the language of subsection (h) would appear to limit the scope of its application to obligations placed upon a licensed physician in his or her capacity as licensed physician. Read literally, without limiting the statutory language to obligations of physicians qua physician, subsection (h) would authorize disciplinary action every time a licensed physician forgot to pay his property tax or renew his driver's license on time. The language of the statute must be given a more narrow meaning.

When the subject statutory language is construed to encompass only obligations imposed on physicians qua physicians, such construction would not encompass a violation of Section 837.06, Florida Statutes, because the last mentioned statute applies to everyone. (Of course, conviction of a violation of Section 837.06, Florida Statutes, might well be a violation of subsection

(c) of Section 458.331(1), Florida Statutes.) As a final matter regarding subsection (h) of Section 458.331(1), Florida Statutes, it should be noted that by its terms, it only addressed failures to perform; it does not address improper or incorrect performance. For all of these reasons, Count Five should be dismissed.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Board of Medical Examiners enter a Final Order in this case dismissing all charges against the Respondent, Roberto Cuesta, M.D.

DONE AND ORDERED this 12th day of March, 1986, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1986.

COPIES FURNISHED:

Leonard Sussman, Esquire 7195 S.W. 47th Street Suite #101

Miami, Florida 33155

Stephanie A. Daniel, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

APPENDIX

The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. By way of preface to the specific rulings which follow, I feel constrained to make the following observations regarding three of the principal witnesses in order that the parties may more clearly understand the basis for certain of the findings of fact. With regard to conflicts between the testimony of the Respondent and the witness Carlos Ramirez, I have generally tended to credit the testimony of the Respondent, largely on the grounds that the Respondent's version was more consistent with other evidence.

Further, I found the Respondent to be sincere, candid, accurate, and honest in his testimony. Accordingly, I have given a great deal of weight to the Respondent's testimony. I found the witness Armando R. Vicente to be otherwise. Accordingly; I have given very little weight to Mr. Vicente's testimony except to the extent that it was corroborated by other reliable evidence or constituted admissions against interest.

RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER

The following paragraphs of the findings of fact submitted by the Petitioner have been accepted and included in the findings of fact in this Recommended Order at least in substance and in most instances in their entirety. Editorial modifications have been made in some instances in the interests of accuracy and clarity; as well as when consolidating similar proposals submitted by both parties. Paragraphs 1; 2; 3, 9; 10; 11; 12,

13, 14, 15, 16, 17; 18, 19; 20; 21; 22, and 23.

Paragraphs 4 and 5 are rejected as constituting irrelevant and unnecessary details.

Paragraph 6 is accepted in its entirety with the exception of the last sentence, which is somewhat of an understatement. (Additional findings have been made regarding the nature of the relationship between the Respondent and Armando R. Vicente.)

The first sentence of paragraph 7 is rejected as constituting irrelevant and unnecessary details. The remainder of paragraph 7 is accepted with additional details regarding the nature of the relationship between the Respondent and Armando R. Vicente.

Paragraph 8 is rejected on the basis that I have resolved conflicts in the evidence contrary to most of the facts proposed in this paragraph.

The first sentence of paragraph 24 is accepted with minor clarification and with additional facts expanding upon the nature of Respondent's knowledge and belief. The remainder of paragraph

24 is rejected as contrary to the greater weight of the persuasive evidence.

Paragraph 25 is rejected on the grounds that it is not supported by persuasive competent substantial evidence and is contrary to the greater weight of the evidence.

RULINGS ON PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT

The following paragraphs of the findings of fact submitted by the Respondent have been accepted and included in the findings of fact in this Recommended Order at least in substance and in most instances in their entirety. Editorial modifications have been made in some instances in the interests of accuracy and clarity; as well as when consolidating similar proposals submitted by both parties: 1, 2, 3, 4, 15, and 17.

Paragraph 5 is rejected as constituting argument rather than proposed findings of fact.

Paragraph 6 is rejected as constituting primarily argument about the credibility of witnesses rather than proposed findings of fact. To the extent findings are proposed in this paragraph, they are rejected as subordinate.

The first two sentences of paragraph 7 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact. The last sentence of paragraph 7 is accepted.

The first five sentences of paragraph 8 are accepted. The last two sentences of paragraph 8 are rejected as constituting legal argument and/or subordinate facts.

Paragraphs 9 and 10 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact.

The substance of the first three sentences of paragraph 11 is accepted. The last two sentences of paragraph 11 are rejected as constituting argument about the credibility of witnesses rather than proposed findings of fact.

Paragraph 12 is rejected as for the most part constituting argument rather than proposed findings of fact. To the extent findings are proposed; they are rejected as subordinate.

With the exception of the last sentence; all of paragraph 13 is rejected as for the most part constituting argument rather than proposed findings of fact. The substance of the last sentence of paragraph 13 is accepted.

The fourth sentence of paragraph 14 is accepted with the deletion of the last clause. The remainder of paragraph 14 is rejected as constituting argument or as proposing irrelevant and/or subordinate facts.

Paragraph 16 is accepted in substance, but only as to when and where the Respondent and Vicente met and as to what Vicente told the Respondent he was doing.

Paragraph 18 is rejected as constituting argument about the credibility of some of the evidence rather than constituting proposed findings.

Paragraph 19 is rejected as constituting argument about the credibility of some of the evidence rather than constituting proposed findings. Further, the implications of the arguments are rejected as being contrary to my resolution of credibility issues.

The substance of the first two sentences of paragraph 20 is accepted. The remainder of paragraph 20 is rejected as irrelevant commentary about testimony rather than proposed findings on a material issue.

Paragraphs 21, 22, and 23 are rejected as constituting argument rather than proposed findings of fact.

Docket for Case No: 85-001749

Orders for Case No: 85-001749