-HESEIVED © STATE OF FLORIDA / FEB 2 4 2003 BOARD OF RESPIRATORY CARE ADMINISTRATIVE 1? DEPARTMENT OF HEALTH, Petitioner, . p b>-113sh& vs. Casé No. 2002-30442 EDWARDO LOUIS FISCHER, Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW Petitioner, Department of Health, (hereinafter “Petitioner”) by and through its undersigned counsel and files its Administrative Complaint against Respondent, EDWARDO LOUIS FISCHER, (hereinafter “Respondent”) and alleges: NATURE OF THE ACTION 1. This is an action to impose administrative penalties related to the investigation and prosecution of the allegations against Respondent pursuant to Sections 456.072 and 468.365, Florida Statutes. JURISDICTION AND VENUE 2. This tribunal has jurisdiction pursuant to Sections 120.569 and 120.57, Florida Statutes. 3. Venue shall be determined pursuant to Rule 28-106.207, Florida Administrative Code. PARTIES 4. Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of respiratory care pursuant to Section 20.43, Florida Statutes, and Chapters 456’ and 468, Florida Statutes. 5. At all times material hereto Respondent has been licensed as a certified respiratory therapist, having been issued license number CRT 4214 on or about July 15, 1989. 6. Respondent's last known address is 9025 South Saddlecreek Drive, Boca Raton, Florida 33496. COUNT! 7. On or about August 14, 2001, Respondent was employed by Lincare as a respiratory therapist. 8. On or about August 14, 2001, Respondent visited the home of PW for the purpose of delivering a nebulyzer ordered by PW from Lincare for treatment of her asthma. 9. While in the home of PW, Respondent engaged in sexual intercourse with PW. 10. Pursuant to Section 468.365(1)(q), Florida Statutes, the Board may take action against the license of any licensee who exercises influence within a respiratory care relationship for the purpose of engaging a patient in sexual activity. A patient is ‘Formerly Chapter 455, Part tl; see Chapter 2000-160, Laws of Florida. 2 presumed to be incapable of giving free, full, and informed consent to sexual activity with the patient's respiratory care practitioner or respiratory therapist. 11. Respondent violated Section 468.365(1)(q), Florida Statutes. COUNT Il 12. Petitioner realleges and incorporates by reference the allegations in paragraphs 7 through 9 above. 13. Section 456.072(1)(u), Florida Statutes, provides that the Board may take action against the license of any licensee who engages in or attempts to engage in sexual misconduct as defined and prohibited in Section 456.063(1), Florida Statutes. 14, Section 456.063(1) defines sexual misconduct in the practice of a health care profession as violation of the professional telationship through which the health care practitioner uses such relationship to engage or attempt to engage the patient or client, or an immediate family member, guardian, or representative of the patient or client in, or to induce or attempt to induce such person to engage in, verbal or physical sexual activity outside the scope of the professional practice of such health care profession. 15. Respondent violated Section 456.072(1)(u), Florida Statutes. COUNT Ill 16. On or about December 6, 2002, Respondent was ADJUDICATED GUILTY of one count of SEXUAL BATTERY UPON A PHYSICALLY INCAPACITATED PERSON (1* degree felony) and one count of LEWD OR LASCIVIOUS BATTERY UPON A PERSON 65 YEARS OF AGE OR OLDER (2 degree felony), violations of Sections 794.011(4)(f) and 825.1025(2)(a)(b), Florida Statutes, respectively. 17, Section 468.365(1)(c), Florida Statutes, subjects a licensee to discipline including suspension and revocation for being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to respiratory care services or to the ability to deliver such services. 18. Section 456.072(1)(c), Florida Statutes, subjects a licensee to discipline including suspension and revocation, for being convicted, or found guilty of, entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the licensee’s profession. 19. SEXUAL BATTERY UPON A PHYSICALLY INCAPACITATED PERSON and LEWD OR LASCIVIOUS BATTERY UPON A PERSON 65 YEARS OF AGE OR OLDER are crimes related to the practice of or the ability to practice respiratory therapy . and to the delivery of respiratory therapy services. 20. Respondent violated Sections 456.072(1)(c) and 468.365(1)(c), Florida Statutes. CLAIM FOR RELIEF- WHEREFORE, Petitioner respectfully requests the BOARD OF RESPIRATORY CARE to enter an order imposing one or more of the following penalties pursuant to Section 456.072, Florida Statutes and Rule 64B32-5.001, Florida Administrative Code: | a. Revocation or suspension of Respondent's license; b. Restriction of Respondent's practice; c. An administrative fine: d. A reprimand; e. Probation; and/or f. Any other penalty the Board deems appropriate. Dated this \A_ day of st , 2003. Respectfully submitted, CHARLES J. CRIST, JR. Attorney General 9g one PL-01 The Capitol Tallahassee, Florida 32399-1050 (850) 414-3300 PCP: Rappa, Friday DATE: February 13, 2003 NOTICE OF HEARING RIGHTS AND ASSESSMENT OF COSTS RESPONDENT IS HEREBY NOTIFIED THAT HE/SHE HAS THE RIGHT TO REQUEST AN ADMINISTRATIVE HEARING PURSUANT TO SECTIONS 120.569 AND 120.57, FLORIDA STATUTES. SPECIFIC OPTIONS FOR ADMINISTRATIVE ACTION ARE SET OUT IN THE ATTACHED EXPLANATION OF RIGHTS. ALL REQUESTS FOR HEARING MUST BE MADE WITHIN 21 DAYS OF RECEIPT AND SENT TO LEE ANN GUSTAFSON, SENIOR ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF LEGAL AFFAIRS, PL-01 THE CAPITOL, TALLAHASSEE, FLORIDA 32399-1050. 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

Docket for Case No: 03-001733PL