Findings Of Fact The Respondent, Randy Lee Pomerantz, is currently eligible for licensure and is licensed in the State of Florida as a general lines, property, casualty, surety, and miscellaneous lines insurance agent. On or about May 30, 1989, the Respondent, along with one of his former employees, was charged by Information in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, in Case No. 89-20405, with fifteen felony counts and three misdemeanor counts. The fifteen felony counts included one count of a RICO violation, one count of scheme to defraud, three counts of grand theft in the second degree, and ten counts of grand theft in the third degree. On or about July 13, 1990, the Respondent entered a plead of nolo contendere to Count VIII of the information, which was one of the counts charging grand theft in the third degree in violation of Section 812.014, Florida Statutes. The prosecutor entered a nolle prosequi as to all other counts insofar as they related to the Respondent. Adjudication of guilt was withheld on Count VIII. The Respondent was placed on probation for three years and ordered to pay restitution in the amount of $2,325.03. The Respondent's plea of nolo contendere to Count VIII of the Information was a plea of convenience. The Respondent did not commit the acts alleged in Count VIII of the Information. As the Respondent explained at the hearing, at the time of his plea his wife was about to give birth and he did not feel he could take a chance on a "roll of the dice" with a jury trial.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Insurance and Treasurer issue a Final Order in this case dismissing the Amended Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of February 1991. MICHAEL PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of February 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-4430 The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraphs 1, 2, and 4: Accepted. Paragraph 3: Rejected as contrary to the greater weight of the evidence. Although it is likely that the facts alleged in Count VIII of the Information related to the transaction of insurance business in this state, such is not established by clear and convincing evidence. And, in any event, the matter is irrelevant in light of the findings that the Respondent's plea was a plea of convenience and that the Respondent was not guilty of the crime charged. Findings proposed by Respondent: COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Ted Crespi, Esquire 110 Tower, Suite 815 110 S.E. 6th Street Fort Lauderdale, Florida 33301 Tom Gallagher Bill O'Neil State Treasurer and General Counsel Insurance Commissioner Department of Insurance The Capitol, Plaza Level and Treasurer Tallahassee, Florida 32399-0300 The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether or not, the following facts constitute a violation of 464.21(1)(b) and (d), F.S.: On January 2, 1977, Officer J.W. Carlyle of the Jacksonville Beach Police Department, Jacksonville Beach, Florida, acting in an undercover capacity, purchased from the licensee for $10.00, six capsules of what the licensee represented to him to be mescaline, which was in fact liver pills and/or vitamins. Upon being arrested for the possession and sale of a controlled substance, at that time the licensee threw to the ground, a vial containing six foil packets which upon analysis proved to be phenoharbitol, a controlled substance. Whether or not, the following facts constitute a violation of 464.21(1)(b) and (d), F.S.: Licensee was charged with felony of possession of a controlled substance, to wit: phenobarbital, in Case No. 77-249 CFS in the Circuit Court of Duval County, Florida. On April 27, 1977, following a plea of nolo contendere, licensee was found guilty of the charge, adjudication was withheld and she was placed on probation for a period of two years, with a special condition that she enroll and follow through with a drug treatment program, in- patient if necessary. There were several other substantive violations found in the Administrative Complaint, specifically in paragraphs 1, 2 and 5 of that complaint. These substantive paragraphs were withdrawn from consideration upon the Motion to Withdraw by the Petitioner's attorney and the agreement of the Respondent's attorney.
Findings Of Fact Theresa Kathleen Stewart, R.N., holds License No. 73310-2, with the State of Florida, Board of Nursing. In the course of the hearing, the following factual stipulation was entered into between the parties: On January 2, 1977, Officer J. W. Carlyle of the Jacksonville Beach Police Department, acting in an undercover capacity, purchased from the licensee for $10.00 six capsules of what the licensee represented to be mescaline. In fact, the substance was liver pills and/or vitamins. Upon being arrested for the possession and sale of a controlled substance, at that time, (January 2, 1977), the licensee threw to the ground the vial containing six foil packets which upon analysis proved to be phenobarbital, a controlled substance. The charges brought from the arrest for the possession and sale of the alleged mescaline were dropped when the chemical analysis of the substances proved them to be liver pills and/or vitamins. Out of the events of January 2, 1977, the licensee was charged with a felony of possession of a controlled substance, to wit: phenobarbital, in Case NO. 77-249 CFS, in the Circuit Court of Duval County, Florida. On April 27, 1977, following a plea of nolo contendere, licensee was found guilty of the charge, adjudication of guilt was withheld and she was placed on probation for a period of two years with a special condition that she enroll and follow through with a drug treatment program, in-patient if necessary. Based upon the facts recited, the Petitioner claims that the Respondent has violated 464.21(1)(b)(c) and (d), F.S. which states: "GROUNDS FOR DISCIPLINE-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (b) Unprofessional conduct which shall include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which proceeding, actual injury need not be established." An examination of the facts stipulated to as the basis for consideration of this case, do not constitute a sufficient showing that the Respondent has been guilty of unprofessional conduct within the meaning of 464.21(1)(b), F.S. The second substantive violation alleged by the Petitioner pertains to 464.21(1)(c), F.S., which reads as follows: "GROUNDS FOR DISCIPLINE.-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (c) Habitual intemperance or addiction to the use of controlled substances as set forth in chapter 893." Again, an analysis of the facts presented did not warrant the conclusion that the Respondent is guilty of habitual intemperance or addiction to the use of controlled substances found in 893, F.S. The third substantive violation asserted by the Petitioner pertains to 464.21(1)(d), F.S., whose provisions are: "GROUNDS FOR DISCIPLINE-- The board shall have the authority to deny a license to any applicant or discipline the holder of a license or any other person temporarily authorized by the board to practice nursing in the state whose default has been entered or who has been heard and found guilty by the board of: * * * (d) Engaging in the possession, sale or distribution of controlled substances as set forth in chapter 893, [for any other than legitimate purposes]." The facts agreed to in this cause establish that the Respondent was in possession of a controlled substance as set forth in 893, F.S., for other than legitimate purposes. Therefore, the licensee is held accountable for the penalties which may be imposed from such possession.
Recommendation At the conclusion of the factual stipulation, the parties were given an opportunity to present matters in aggravation and mitigation. Counsel for the Petitioner waived the opportunity to submit matters in aggravation. The Respondent presented mitigation. Some of the items of mitigation may be found in the Respondent's Exhibits 1 through 3 admitted into evidence. Exhibit 1 is a letter from a counselor with the Peninsula Manpower Training Skills Center in Hampton, Virginia. This letter states that the Respondent is enrolled in a horticulture class at the Vocational Technical Education Center of Hampton, Virginia, and is maintaining excellent grades and attendance standards. It also states that Respondent is working part-time at a local florist. The second Respondent's exhibit is a letter from the Commonwealth of Virginia, Department of Corrections, Division of Probation and Parole Service, District 19. This is a letter from the Probation/Parole Officer, Drug/Alcohol Specialist, who states that the Respondent is doing well in her probation period. The final Exhibit No. 3, by Respondent, is a letter from a Rehabilitation Counselor with the Drug Rehabilitation Program of the City of Hampton, Virginia, which shows that Respondent is progressing well in the drug rehabilitation program. Respondent at present lives with her husband and eighteen months old child. It is the Respondent's desire that she be given probation for the offense, in order to allow her a clean record, should she apply for a license to be a registered nurse in the State of Virginia. It is her intention to make such application if possible. After considering the nature of the factual stipulation and the matters offered in mitigation, it is recommended that the license of Respondent to practice nursing in the State of Florida be suspended for a period of two years. DONE and ENTERED this 25th day of October, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Herbert V. Kelly, Jr., Esquire 2600 Washington Avenue First and Merchants National Bank Building Post Office Box 78 Newport News, Virginia 23607 Ms. Theresa Kathleen Stewart 5927 Madison Avenue Newport News, Virginia 23605 William Travis, Esquire 4611 Pinewood Road Jacksonville, Florida 32210
The Issue The issue in this case is whether Petitioner should discipline Respondent for his failure to file fingerprint and abuse-registry screening forms for one of his employees, in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code, and failure to employ a person certified in first aid, in violation of Rule 10M-12.004(1), Florida Administrative Code.
Findings Of Fact Petitioner issued Respondent license number 288-7 on February 15, 1988, for the operation of a child-care facility at 261-B S. Central Avenue in Oviedo, Florida. The license was amended on October 3, 1988. On November 15, 1988, Larry D. Lowe, a Human Services Program Analyst employed by Petitioner, conducted an inspection of the subject facility. At the conclusion of the inspection, he prepared a checklist noting deficiencies as to background screening. Specifically, Mr. Lowe noted that the fingerprint cards and abuse-registry forms had not been completed for an employee named Cindy Samons and that these omissions were in violation of Rule 10M-12.002(1)(d)(2), Florida Administrative Code. Mr. Lowe gave Ms. Samons a copy of the checklist, which gave Respondent until November 22, 1988, to submit the required forms. Mr. Lowe returned to the subject facility on December 28, 1988, and discovered that the forms had been completed and placed in the employee's file, but they had never been submitted to Petitioner. Thus, Petitioner had never had the chance to conduct the necessary background screening on Ms. Samons, who was at the time the sole employee at the facility. Mr. Lowe recommended an administrative fine of $360 based upon a daily fine of $10 for the 36-day period between the initial corrective due date and the date of the follow-up inspection. On October 11, 1988, Ms. Marilyn Willming, R.N., who is a public health nurse with the Seminole County Public Health Unit, performed a medical inspection of the subject facility and discovered that, among other things, no employee on the premises had obtained a current first-aid certificate and that this omission was in violation of Rule 10M-12.004(1), Florida Administrative Code. Ms. Willming gave one of the employees a copy of the medical inspection checklist, which gave Respondent until October 25, 1988, to correct this problem. Flora Kavitch, R.N., who is also an employee of the Seminole County Public Health Unit, conducted a reinspection of the facility on December 23, 1988, and discovered, among other things, that the facility still had no employee with a current first-aid certificate. She recommended an administrative fine of $780 based upon a daily fine of $10 for the 78-day period between the date of the initial inspection and the date of the follow-up inspection. Each of the above-described deficiencies is a condition or occurrence related to the operation and maintenance of a facility and indirectly or potentially threatens the physical or emotional health, safety, or security of the children.
Recommendation In view of the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order imposing an administrative fine against Respondent in the amount of $1140. ENTERED this 1st day of August, 1989, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 1989. COPIES FURNISHED: James A. Sawyer, Jr. District 7 Legal Counsel Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 911 Orlando, Florida 32801 Hilton J. Soto 6501 Palmetto Drive Winter Park, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Hilton J. Soto Little Theresa Child Care 261-B South Central Avenue Oviedo, Florida 32765 =================================================================
The Issue The issues in this case are whether Petitioner has demonstrated, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and, if so, whether Respondent’s intended action to deny Petitioner’s request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact Respondent is the state agency that regulates the provision of services to individuals with developmental disabilities (referred to by the Agency as its clients), pursuant to chapter 493, Florida Statutes (2015).1/ The Agency’s clients are a vulnerable population, consisting of individuals whose developmental disabilities include intellectual disability, cerebral palsy, autism, spina bifida, Prader-Willi syndrome, and Down syndrome. These individuals often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. They are at a heightened risk of abuse, neglect, and exploitation by those who provide services to them. Petitioner is a 42-year-old female who worked for a short period of time (from April 14, 2015, to October 2, 2015) as an independent contractor for Peak Provider, Inc., which is a service provider regulated by the Agency to provide in-home and community-based services to the Agency’s clients. Petitioner worked as a supported living coach, providing supported living services to adults with developmental disabilities in their homes. This means that she provided “assistance to adult clients who require[d] ongoing supports to live as independently as possible in their own homes, to be integrated into the community, and to participate in community life to the fullest extent possible.” § 393.063(39), Fla. Stat. (defining supported living services). These services include assisting clients with paying bills and balancing checkbooks, and taking clients out in the community, for shopping, medical appointments, or other activities. Petitioner’s supported living coach job was a “direct service provider” position of special trust, because she provided services directly to the Agency’s clients, she had access to clients’ living areas, and she had access to client funds or personal property. As a direct service provider, Petitioner was required to undergo level 2 background screening pursuant to chapter 435, Florida Statutes, upon being retained by Peak Provider on April 14, 2015. See § 393.0655, Fla. Stat. Petitioner underwent level 2 background screening, which was processed by the Department of Children and Families (DCF) on the Agency’s behalf. By letter dated September 30, 2015, DCF notified Petitioner that her background screening results revealed a criminal offense that disqualified Petitioner from continuing to work in her position of special trust. As a result of her disqualification, Petitioner’s position with Peak Provider was terminated on October 2, 2015. The DCF letter informed Petitioner that she may be able to apply for an exemption from disqualification. Petitioner was familiar with that process, since she had recently applied for and received exemptions from disqualification from two other state agencies: the Agency for Health Care Administration (AHCA), which issued an exemption on February 5, 2015; and the Department of Juvenile Justice (DJJ), which issued an exemption on May 22, 2015. Within a few days after she was terminated by Peak Provider, Petitioner submitted an application seeking an exemption from disqualification for positions of special trust within the Agency’s purview. The purpose of an exemption application is to demonstrate to a state agency that the applicant should not be disqualified from employment in positions within the regulatory purview of that agency. Applicants must set forth “clear and convincing evidence of rehabilitation” from their disqualifying offense. Factors to be addressed with regard to rehabilitation include the circumstances surrounding the disqualifying offense, the time period that has elapsed since the disqualifying offense, the nature of harm caused to the victim, and the history of the applicant since the disqualifying offense. In assessing rehabilitation, the state agency reviewing an exemption application may consider evidence that the applicant has been arrested for or convicted of other crimes since the disqualifying offense, even though the subsequent criminal incidents would not themselves be disqualifying offenses. Petitioner’s Disqualifying Offense The disqualifying offense identified in DCF’s letter notifying Petitioner of her background screening results was an August 16, 1994, probation violation in reference to a September 1991 aggravated assault offense. The evidence established that Petitioner committed the underlying offense in May 1991, when she was 17½ years old. An information was filed in September 1991, charging Petitioner with aggravated assault, a felony. In October 1991, Petitioner pled guilty to the charge. Petitioner was adjudicated guilty, sentenced to five years of probation, and ordered to pay restitution to the victim. At hearing, the Agency’s representative testified that the Agency did not consider the aggravated assault offense itself to be a disqualifying offense, because Petitioner was a minor when she committed the offense. However, the Agency determined that Petitioner’s conviction in 1994 for violating probation was a disqualifying offense, because her probation was revoked and, in accordance with section 948.06, Florida Statutes, the original charge was reopened and sentence was imposed for the aggravated assault felony conviction. The Agency’s position that the aggravated assault felony conviction was not considered a disqualifying offense does not appear to be supported by the background screening laws in chapter 435, Florida Statutes. The aggravated assault offense was a felony to which Petitioner pled guilty. It is a disqualifying offense under level 2 background screening standards even though Petitioner was a minor when she committed the offense. The Agency did not explain or offer any support for the notion that a disqualifying offense does not count as a disqualifying offense if it is committed by a minor; the background screening laws provide otherwise. Petitioner gave her explanation of the circumstances surrounding the aggravated assault offense, both in the “arrest narrative report” she submitted with her exemption application and at hearing. Petitioner wrote in her arrest narrative report that she and a girl she went to school with were arguing over a boy when the girl’s mother “jumped in my face with a knife.” Petitioner wrote that she was fearful, and was only trying to defend herself. She wrote that she and the mother struggled over the knife, “and in the process [the mother] got cut on the leg.” Petitioner’s described an incident in which she was more the victim than the girl’s mother: it was the mother who brandished the knife, and Petitioner was only acting in self-defense by struggling with the mother over the knife. Petitioner did not accept responsibility for cutting the victim with a knife. Instead, Petitioner used a more neutral, passive description, acknowledging only that in the process of struggling for the knife, the mother “got cut on the leg” as if it just happened. Nonetheless, Petitioner did not plead self-defense, when charged with aggravated assault; she pled guilty. Petitioner’s description is inconsistent with the police report. The police report described Petitioner as the aggressor who “came after [the other girl] with a knife” and that the girl’s mother--the victim--attempted to stop Petitioner, but was knocked to the ground. The police report then stated that while the victim was on the ground, Petitioner cut the victim not once, but twice, on the inside thigh of the left leg and on the right calf; Petitioner then fled the area and the victim went to a hospital emergency room where she was treated for the knife wounds. Petitioner did not attempt to explain the discrepancies between her description of this incident and the description in the police report.2/ According to the court records, after Petitioner pled guilty to aggravated assault, she did not accept the consequences of her offense by steadfastly carrying out the terms of punishment imposed by the court. Instead, as a young adult, Petitioner was found guilty of violating the terms of the probation imposed for the aggravated assault felony conviction not just in September 1994, but multiple times in 1992, 1993, and 1994. For example, in 1993, Petitioner was found to have violated the probation condition requiring her to not violate any laws. She violated that condition by committing retail theft, for which she was adjudged guilty and convicted in March 1992. Petitioner pled guilty to violating probation, her probation was revoked, she was placed on community control for one year, and ordered to perform 50 hours of public service work. Then, in September 1994, she was found to have violated the community control order by not properly conducting herself, which she admitted in a revocation of community control hearing. The community control was revoked, and she was sentenced to two months in jail, just a few months before her 21st birthday. Length of Time Since Disqualifying Offense Whether measured from the offense itself, the adjudication of guilt, or the completion of the punishments imposed (and revised), it plainly has been a long time since Petitioner’s disqualifying offense. She is now 42; she had completed all punishments for the aggravated assault offense before she turned 21. To her credit, Petitioner has not been convicted of another disqualifying offense. Although Petitioner was arrested several times for crimes that would have been disqualifying offenses if Petitioner was prosecuted and convicted, that was not the case. These incidents are not considered as additional disqualifying offenses; however, they have some bearing on the issue of Petitioner’s rehabilitation, as discussed below. Nature of Harm Caused to the Victim In describing the aggravated assault incident, Petitioner said that there was only a single minor cut to the mother’s leg. As noted above, the police report more precisely described not one cut, but two cuts, on the victim’s left inner thigh and the right calf, and that the knife wounds were treated at a hospital emergency room. Regardless of how many or how serious the cuts were, the harm inflicted by Petitioner was serious enough that she was charged with, and pled guilty to, aggravated assault, which means that she committed an assault (intentional, unlawful threat by words or act to do violence to another) with a deadly weapon. See § 784.021, Fla. Stat. (defining crime of aggravated assault, unchanged since 1975). Petitioner said that she made amends for the minor cut by reimbursing the victim for the small medical bill to treat the wound. Petitioner did so, however, pursuant to court order as part of her sentence for the offense. Indeed, had she not paid the restitution ordered, she would not be eligible to apply for any exemptions from disqualification. Petitioner’s History of Positive Accomplishments Since the disqualifying offense, Petitioner demonstrated that she has worked hard on her education. She did not finish high school on schedule, but later completed the requirements to receive her GED certificate of graduation in June 1997, when she 23 years old. More recently, Petitioner went to Gulf Coast State College, and in July 2012, she earned an associate in applied science degree in the legal assisting/paralegal field. Then, attending St. Petersburg College, she earned an associate in arts degree in May 2013. Continuing at St. Petersburg College, she received a bachelor of applied science degree in the fields of public safety administration and criminal justice in July 2014. By all accounts, Petitioner has done very well in school, making the President’s Honor List/Dean’s List on several occasions during her college studies. Petitioner testified that she is currently enrolled in online coursework offered by Liberty University, and is working on her master of arts degree in human service counseling with a minor in addiction recovery. While no documentation was provided with regard to this endeavor, Petitioner testified that she expects to graduate in May 2016. Petitioner submitted a number of reference letters with her exemption application and more letters at hearing.3/ A good number of these letters appear to be written by individuals involved in her various educational programs. Several of these letters were written to recommend Petitioner for admission to a graduate program, while others were written to recommend her for employment. Some of the letters are quite old, such as a general reference letter written ten years ago by a circuit judge who taught a criminal procedure class in which Petitioner was an “outstanding” student at Gulf Coast Community College, offering the opinion that she can be successful “in whatever activity she is pursuing.” These letters are somewhat helpful only in a very general sense to confirm what is shown by Petitioner’s educational achievements--that Petitioner has worked hard to better herself through education. However, these letters do not really address the issues for determination in this proceeding, in that the letters fail to indicate that the authors know of Petitioner’s background germane to this proceeding, including the disqualifying offense and subsequent arrests and convictions for non-disqualifying offenses; as such, they cannot offer meaningful perspective as to Petitioner’s rehabilitation. While Petitioner is to be commended for her hard work and scholastic achievements, they do not provide the clear and convincing evidence that Petitioner is rehabilitated from her disqualifying offense, or that Petitioner’s non-disqualifying criminal history does not present concerns about her rehabilitation. Petitioner also provided some information about her employment history. At the time she filed her exemption application, she was not working, having just been terminated by Peak Provider. Prior to that job, she worked as an event specialist for Advantage Sales & Marketing in Clearwater from September 2009 to September 2012. Petitioner also worked as a client service coordinator for H&R Block in Clearwater from December 2007 to April 2010. When she lived in Panama City, she worked as an assistant cook for Laguna Christian Retreat from August 2005 to November 2007. The only two reference letters that were written recently (both in October 2015), obtained by Petitioner to respond to a letter identifying omissions from her exemption application, were from a Peak Provider co-worker, who wrote to recommend Petitioner for employment, and from Petitioner’s supervisor in the job she held from 2005 to 2007. Neither letter demonstrated knowledge of Petitioner’s background at issue in this case. The letter from Petitioner’s supervisor from ten years ago offered only a general statement that Petitioner has paid her debt to society and should be given a second chance. Petitioner’s exemption request noted that she was undergoing stress because her background was keeping her from getting or keeping a stable job. However, Petitioner had only recently obtained exemptions issued by two different state agencies. By the time of the hearing, Petitioner testified that she secured a job in December 2015 working for a home health agency as a home health aide. Petitioner qualified for that job because of her exemption from disqualification issued by AHCA. Petitioner testified that her real passion is juvenile justice. She presented evidence that she started her own non- profit organization in 2009 to carry out her dream of helping troubled youth. The program she envisions, described in the non- profit materials, would “promote and establish a strong network support with the school system and juvenile court system. We will form a partnership with local school district and juvenile court system. Our primary goal is to target at risk youth and to break habits that are leading our youth in trouble in school and in the streets.” She put it this way in an October 1, 2015, letter that she wrote to submit with her exemption application: I would like to open up a youth center for at-risk youth and a drug rehabilitation center to give back to the community and make a difference in people [sic] lives. I feel my past experiences will be a great asset to youth who are headed down the wrong path. I have not only been down that road they are traveling but I can relate too [sic] many of their issues and help them overcome them. Why not choose a person to work with youth that has overcome the same obstacles they are faced with, has the insight on their challenges and has hands on experience as a juvenile delinquent? Petitioner testified that her non-profit organization has not reached the operational stage. She blamed her background as a stumbling block that has kept her from progressing beyond creating the organizational structure to operations. Although she testified that the organization is not operational because of her background, she was unable to explain why her DJJ exemption would not allow her to move forward and begin at least a portion of the program she envisions. Petitioner explained that she would not be able to fully implement her dream program because she would want to include substance abuse counseling, a program regulated by DCF, requiring a DCF exemption from disqualification. However, the exemption application at issue in this case, submitted in response to being disqualified from working for Peak Provider, seeks an exemption from the Agency, not from DCF. Apparently realizing this when questioned at hearing, Petitioner retreated from her statement that an exemption would allow her to carry out her dream. Instead, she said that an exemption from Respondent would provide her with another option, and that she had “fun” as a supported living coach providing services to adults with developmental disabilities. While need for an exemption is not a criterion, to the extent Petitioner sought to justify her request as needed to remove the stress in her life caused by being unable to carry out her dreams and being unable to support her family with a job, those justifications were proven incorrect or no longer true. Petitioner was offered the opportunity to present evidence in her exemption application of her history after the disqualifying offense of positive contributions she has made in the various communities in which she has lived. Examples might include participating in volunteer work for religious or charitable organizations, schools, shelters, libraries, community centers for the elderly or for the needy, or any of the myriad of similar opportunities for becoming involved in one’s community. Petitioner fairly summarized her showing in this regard in her PRO: “Petitioner stated that she is not involved in any community activities because her background will not allow her to be a part of much now. She stated she would love to be more involved in community activities. Petitioner reports attending church.” While Petitioner may have voiced the right sentiment in stating that she would love to be more involved, that statement is not credible. Petitioner is unreasonably using her background as an excuse for her lack of involvement in community services. Petitioner presented no evidence that she has sought to provide volunteer services in the church or in the community, but was turned down because of her background. There appears to be plenty of room within the background screening requirements for Petitioner to volunteer in a variety of programs, perhaps with limits on the number of hours she could volunteer in any one area, and perhaps with supervisory requirements. This would be one way to develop more compelling evidence that she is making good choices in her free time and making positive contributions that not only improve herself (such as with her educational achievements), but also help others in need. Petitioner generally alluded to having overcome a troubled background, but did not offer much detail to explain what problems she has or had endured, and what she has done to cope with her troubles. In response to a question in the exemption application regarding whether she receives any form of counseling, she responded vaguely that she gets counseling at her church, as needed. No specifics were offered. No documentation or testimony was presented with regard to the counseling she has obtained at her church, such as a description of the nature of the counseling services she referred to and how often she has availed herself of those services. Here, too, a better showing could be made, such as by offering testimony of a pastor or other church official who could attest to Petitioner’s rehabilitation that may be evident from her drawing on church resources for support. In response to a question in the exemption application about alcohol or drug use, Petitioner stated that she used to drink alcohol, but does not now drink alcohol, and has never “abused” drugs (notably not stating that she has not used drugs). She stated that she completed substance abuse and alcohol courses in 1992, 2004, and 2010. She only provided documentation for a substance abuse awareness course completed on January 26, 2004, but not for any others. While she claimed these courses were taken “for educational purpose” (PRO, p. 7), it appears that the courses may have been taken close in time to an arrest involving drugs or alcohol. The documented 2004 course, in particular, was completed within the 12-month probationary period for Petitioner’s nolo plea to possession of drug paraphernalia, discussed below; her probation conditions specifically required her to complete such a course during her probation. The reasonable inference is that Petitioner completed this coursework because it was required as part of her punishment for drug or alcohol-related criminal offenses. Petitioner’s Subsequent Criminal History Since the Agency did not consider Petitioner’s disqualifying offense to be the 1991 aggravated assault offense, the Agency did not consider Petitioner’s criminal record of arrests and convictions for non-disqualifying offenses between the 1991 aggravated assault offense and the September 1994 probation violation. However, this information was collected and reported as part of the background screening results, and Petitioner was asked to submit documentation, if available, with her exemption application and to explain the circumstances of each criminal arrest and conviction reported. Petitioner’s arrest narrative report provided her description of 24 criminal incidents, spanning the time period from June 20, 1990, when Petitioner was a little over 16 years old, through January 16, 2010, when Petitioner was about to turn 36 years old. Between the 1991 aggravated assault conviction and the 1994 probation violation, the arrest narrative report itemized eight arrests resulting in criminal charges. Only one of these incidents occurred when Petitioner was still a minor. The others were: battery in January 1993 and battery again in May 1993 (both battery charges dropped by prosecutor); assault and disorderly conduct in July 1993 (adjudicated guilty); assault in August 1993 (adjudicated guilty); grand theft auto in January 1994 (charge dropped); battery in March 1994 (charge dropped); stalking in July 1994 (charge dropped); and aggravated battery and disorderly intoxication in July 1994 (first charge dropped, nolo plea to disorderly intoxication, adjudication withheld).4/ Petitioner’s record reveals many non-disqualifying criminal incidents after the September 1994 probation violation; the arrest narrative report identifies 13 criminal incidents after September 1994. In eight of these instances, Petitioner pled guilty or nolo contendere to a variety of misdemeanor charges, including fleeing and attempting to elude police (1997); passing worthless checks (1999, 2000, and 2007); retail theft (2000); possession of drug paraphernalia (2003); and driving under the influence of alcohol (2010). During this same time span, Petitioner was also arrested and charged on several other occasions, but the charges were dropped for a variety of reasons. These include a 1996 arrest and felony charge of aggravated battery with a deadly weapon; a 1998 arrest in Georgia on five counts of forgery; a 1999 arrest for domestic aggravated battery; a 2001 criminal reckless driving charge in Miami-Dade County; a 2002 arrest for felony child abuse; and a December 2002 arrest for possession of cocaine in addition to possession of drug paraphernalia--the cocaine charge was dropped in 2003 when Petitioner pled no contest to the drug paraphernalia charge. Petitioner offered little by way of detail regarding these incidents. She claimed no recollection of any incident that was not documented through official records. When Petitioner did provide some detail, in most instances Petitioner blamed someone or something besides herself; Petitioner was an innocent and falsely accused bystander. For example, with regard to the March 1996 charge of aggravated battery with a deadly weapon, Petitioner acknowledged that the charge stemmed from a fight that broke out at a club she had attended, and the victim accused Petitioner of hitting her with a bottle. However, according to Petitioner, she was not trying to hurt the victim, but was instead trying to help the victim who was “under the influence of drugs and alcohol.” Petitioner claimed that the charge was dropped because it was determined that the victim was not being truthful; instead, the court records reflect that a Nolle Prosequi was filed because the state was “unable to locate the victim after the defendant was arraigned.” With regard to the November 1998 forgery charges in Georgia, after stating that she was “not sure of all the specifics verbatim,” Petitioner excused this incident as follows: “I was falsely accused for something I didn’t do.” Petitioner submitted records from Georgia, including the arrest report, which stated that Petitioner was arrested at K-Mart when she tried to use a forged check in the amount of $631.25 to pay for merchandise. The arresting officer stated that Petitioner gave several different names during the investigation, and that when she was arrested, she had four other forged checks in her possession. Petitioner did not attempt to reconcile her statement that she was falsely accused for something she did not do with the officer’s contrary description in the police report. At hearing, Petitioner noted that these forgery charges should not have been revealed as part of her criminal history, because her request to have them expunged was granted. However, the documents are in evidence, and some or all of them were provided by Petitioner. If the charges were being considered as disqualifying offenses, the fact that they were expunged might make a difference, but they are not considered here as disqualifying offenses. Instead, as Petitioner was informed at the hearing, statements in the records in evidence related to those charges can be considered, such as the statement that Petitioner gave different names to the investigating officer. Moreover, to the extent Petitioner herself offered a description of the incident that was inconsistent with the arrest report, the unexplained inconsistencies have a bearing on Petitioner’s credibility. Despite being informed at hearing as to how this evidence might be considered, Petitioner still offered no explanation for the inconsistencies. With regard to the periodic worthless check offenses, Petitioner explained her first worthless check offense for which she was adjudged guilty in April 1999 this way: “I didn’t know how to balance my checkbook properly back then.” Her second worthless check offense in 2000 was explained as follows: “I think I wrote a check to pay my furniture bill and my paycheck didn’t post in time to cover the total amount.” Petitioner offered no explanation for the May 2007 worthless check charge, stating that “to be honest I do not remember this charge.” Petitioner blamed several of the more serious charges on a boyfriend whom she accused of “constantly abusing me physically, emotionally and verbally.” She said that the domestic aggravated battery charge in December 1999 occurred because she “finally got the courage to fight him back,” and noted that the charges against her were dropped after investigation. By the same token, she filed a complaint against the boyfriend, which was investigated by the state attorney’s office, and she was notified in April 2000 that prosecution was not warranted against the boyfriend. Three years later, Petitioner blamed “the same abusive boyfriend” when she was arrested and charged with possession of cocaine and possession of drug paraphernalia. Petitioner claimed that the boyfriend was “hiding drugs in my home which I knew nothing about,” but she pled no contest to possession of drug paraphernalia, rather than risk losing at trial. A different picture was painted by a DCF investigation report on allegations that Petitioner and her paramour were making and selling drugs out of the home, that the house was known as a “drug house” in the community, and that Petitioner and her paramour were arrested on the drug charges while a child was present. The DCF report verified the threatened harm to a child by exposure to substances, and also verified child neglect. While no findings are made herein with regard to the truth of the facts stated in the DCF report, Petitioner was aware that this and eight other DCF investigation reports were put in evidence by Respondent, and Petitioner chose not to address them at all. Petitioner’s most recent criminal charge and conviction was just over five years ago, for driving under the influence of alcohol in Alabama. Petitioner disclaimed any responsibility for the incident, seeming to blame a state trooper for improperly accusing her of being “on something,” then taking her to jail when she refused to take a breathalyzer test “because I know my rights.” Petitioner asserted that a field test was administered, which she “passed with no problem.” No evidence was offered to support that assertion. The arrest report did not mention a field test, nor did Petitioner offer the testimony of any witness, such as her sister who was a passenger in the car. Petitioner offered several sweeping statements, both in her exemption request and at hearing, to the effect that she accepted responsibility for all of her wrongs, and that she was very remorseful for everything she did wrong. However, in explaining each individual incident, she did not accept responsibility, did not concede that she did wrong, and expressed little or no remorse. The strongest expression of any remorse was in Petitioner’s statement that ten years after the aggravated assault disqualifying offense, she saw the victim at church and apologized, and said that the victim forgave her. Yet even with that, Petitioner’s narrative description in 2015 of the incident made it sound like Petitioner was acting in self-defense and should be considered the real victim. At the hearing, Petitioner exhibited frustration and borderline anger at being questioned about her past and having to explain herself. Petitioner made it clear that she is weary of being asked to explain the long list of criminal arrests, charges, and convictions in her background. As she stated in her exemption request and repeated at hearing, “I think I have paid my debt to society . . . my past has haunted me long enough.” However, while Petitioner may have paid her debt to society in terms of completing all of the punishments imposed under the criminal justice system, that does not equate to entitlement to an exemption from the Agency to serve its vulnerable clients. It was Petitioner’s choice to apply for an exemption from the Agency. By doing so, she took on the burden of proving her rehabilitation, upon consideration of her history since the disqualifying offense. Petitioner believes that she should be given a second chance, and that giving her an exemption would give her the opportunity she believes she deserves to prove herself. Two other agencies have given Petitioner such a chance. Although her submissions to these agencies were not offered in evidence, she succeeded in convincing both agencies to issue exemptions from disqualification for programs they regulate. Petitioner has embarked on proving herself worthy of that chance in her current job, for which she qualified by virtue of AHCA’s exemption. The Agency took those other exemptions into account in reviewing Petitioner’s application, but also considered the differences in the types of services that could be provided, and the clients who would be served, in positions of special trust within the Agency’s purview. The Agency believes that greater caution is required because of the Agency’s vulnerable clientele and also because of the nature of the services Petitioner would be able to provide to these vulnerable people. The Agency’s view is reasonable in this case. For example, Petitioner’s history skirting around violent incidents is of heightened concern for this vulnerable population. Petitioner’s history with crimes involving theft, forgery, and issuing worthless checks is of heightened concern because of duties that include helping adults with developmental disabilities gain independence by helping them shop, pay bills, balance checkbooks, and manage budgets. The Agency also considered Petitioner’s history of traffic infractions and driver’s license issues since the disqualifying offense, including the following: failure to obey a traffic sign in August 1997; driving with a suspended license in September 1997; speeding in February 2000; failure to yield to a pedestrian in May 2001; driving a vehicle in unsafe condition in December 2001; failure to obey a traffic control device in July 2008; the 2010 DUI conviction previously mentioned in Alabama; driving while license suspended or revoked in October 2010; suspension of Petitioner’s driver’s license in July 2011 for PIP cancellation; operating a motor vehicle without a driver’s license in October 2011; and suspension of her driver’s license again in March 2015 for PIP cancellation. In addition, Petitioner’s driver’s license records show that she completed two driver’s school courses, one identified as substance abuse treatment in September 2010, and the other identified as DUI school, completed in March 2011. Petitioner offered no explanation of these records in evidence. All things considered, Petitioner failed to demonstrate rehabilitation by clear and convincing evidence. Instead, her history subsequent to the disqualifying offense reflects a pattern of criminal incidents over a long period of time, providing reasonable concern that Petitioner would pose a risk of danger as a direct service provider to the Agency’s clients. While it has been over five years since the last criminal conviction, Petitioner’s traffic infractions have continued, causing some concern that Petitioner has not completely rid herself of bad choices that present risks to others, at least in positions where Petitioner’s duties include transporting clients to medical appointments and on community outings. And significantly, in 2015 (in the exemption application) and 2016 (at hearing), Petitioner has not demonstrated that she takes responsibility for her past actions, that she recognizes the seriousness of her long history of criminal incidents that cannot simply be erased or go without explanation, or that she is truly remorseful.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner, Jenella Brown’s, request for an exemption from disqualification. DONE AND ENTERED this 11th day of May, 2016, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2016.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be determined are whether Driving Under the Influence (DUI) with property or personal damage and DUI manslaughter, are crimes that relate to the practice of, or the ability to practice, dentistry, within the meaning of section 466.028(1)(c), Florida Statutes, as alleged in the First Amended Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts At all times material to this proceeding, Respondent, Matthew Moye, D.D.S., was a dentist within the State of Florida, having been issued license number DN16032 on August 2, 2002. Respondent’s address of record with the Department is Marion Correctional Institution, Post Office Box 158, Lowell, Florida 32663. Respondent began his private dental practice, Big Bend Dental, in 2009. Respondent offered the following procedures in his practice: composite fillings; crown and bridgework, including preparing teeth for crowns; root canals; dentures; extractions, including molar and wisdom teeth extractions; Botox; and lip fills. Respondent has never been the subject of a disciplinary action against his license to practice dentistry. On or about October 31, 2010, while under the influence of alcohol, Respondent was involved in a motor vehicle collision in which he lost control of his vehicle on the Harbor Island Bridge in Tampa, Florida. Respondent struck three people with his vehicle, killing two, and caused property damage. On November 7, 2013, Respondent pled guilty to, and was convicted of, two counts of first-degree misdemeanor DUI with Property or Personal Damage and two counts of second-degree felony DUI Manslaughter based on the above incident. Respondent’s sentence included: 12 years of incarceration; 10 years of probation following release from incarceration; and Permanent revocation of driver’s license. Respondent has not practiced dentistry since being incarcerated. Other Findings of Fact Dr. Johnson testified that dentists operate from a position of trust, and that there is an expectation of professionalism and good judgment on the part of persons holding a license to practice dentistry. Upon his review of the police reports and court documents related to Respondent’s crime, he opined that the acts described therein evince recklessness and a lack of good judgment. As a result, he believed that the crimes affected Respondent’s practice or ability to practice dentistry. On cross-examination, Dr. Johnson candidly admitted that his opinion as it related to DUI Manslaughter was based on how he felt about that crime, and on his personal principles. He reviewed no journals or professional publications. He did not review court decisions or Board of Dentistry final orders. He was aware of no general consensus in the dental community as to whether DUI Manslaughter is a crime related to the practice or ability to practice dentistry. He had no training in substance abuse impairment, and could not state whether a single DUI could be used to diagnose alcohol abuse or impairment. As to evaluating whether an act affects the practice of dentistry, Dr. Johnson testified that “at some point along the way, there’s always going to be personal opinion. You know, could be somebody like mine. Could be a personal opinion on the Board of Dentistry.” What is clear from the totality of Dr. Johnson’s testimony is that his opinions reflect his personal belief as to whether DUI Manslaughter affects the practice or ability to practice dentistry, an opinion influenced by his self-perception as “a very black-and-white person.” Despite the stipulation as to his expertise, Dr. Johnson could identify nothing in his education or experience that made him an expert in crimes that affect the practice of dentistry, other than his years as an experienced, well-regarded, and respected oral and maxillofacial surgeon. The legislature’s 2013 amendment of section 90.702, Florida Statutes, was intended to replace the Frye standard of opinion testimony, which allows “pure opinion” testimony, with the Daubert standard, which does not. Chapter 2013-107, sections 1 and 2, Laws of Florida. In 2017, the Supreme Court declined to adopt the legislative change under its authority over procedural matters in Florida courts. In re: Amendments to the Fla. Evidence Code, 210 So. 3d 1231 (Fla. 2017). Whether the Supreme Court’s decision to decline to adopt the Legislature’s Daubert amendment bears on the issue at DOAH, an executive branch agency, is an interesting question, but one for another day. In this case, Dr. Johnson’s testimony comes down to a matter of weight. Were his testimony directed to a particular standard-of-care on the part of a licensed dentist, the undersigned would have no problem accepting his years of experience as a suitable basis for an opinion on that issue. Dr. Johnson’s opinion that the “act” of deciding to drive a vehicle while intoxicated is evidence of recklessness or lack of judgment that can reasonably affect the ability to practice dentistry. However, Dr. Johnson’s subjective belief that the unintentional outcome of that act evinces a greater lack of trustworthiness, or shows a higher degree of reckless behavior or poor judgment, does not rise to the level of competent, substantial evidence to support a finding that DUI Manslaughter is any more related to the practice of dentistry than is a DUI. There is insufficient evidence to support a finding that the act of driving under the influence of alcohol, regardless of the outcome of that act, is directly related to Respondent’s ability to provide effective and safe treatment of his patients. As it pertains to this case, the behavior that reflects on Respondent was his decision to get behind the wheel of his car while intoxicated. That is the conduct for which there is some evidence that demonstrates that Respondent exhibited “reckless behavior” and a “lack of judgment.” Counsel for Petitioner presented a well-researched and articulate analysis of the reasons underlying the legislature’s policy decision to classify incidents of impaired driving resulting in death as manslaughter. The basis for that policy decision is that a death resulting from DUI is the result of a presumptively negligent and culpable act, i.e., getting behind the wheel of a vehicle. However, the cases cited by Petitioner highlight the “policy choice” made by the Legislature to impose a heightened penalty for a DUI that results in death. The citation to State v. Hubbard, 751 So. 2d 552 (Fla. 1999), is certainly apropos, and worthy of repeating: We recognize that the Legislature accords disparate treatment to DUI and DUI manslaughter, for example. On the one hand, driving while drunk is a misdemeanor which requires at least three convictions to earn a year's imprisonment. § 316.193(2)(a) 2.c., Fla. Stat. (1995). It will only become a third-degree felony carrying a potential of five years' imprisonment upon a fourth or subsequent conviction. § 316.193(2)(b), Fla. Stat. (1995). In contrast, a drunk driver whose operation of his or her automobile causes the death of another is guilty of a second-degree felony, carrying a potential fifteen-year prison term. The Legislature clearly has made the policy choice to impose more severe sanctions on the drunk driver who kills someone than on the drunk driver who is fortuitously caught before possibly killing someone. While that may seem a bit unfair, it is hardly irrational. Id. at 565 n. 29. (emphasis added). There has been no such express legislative “policy choice” here. Rather, as it relates to this case, the Legislature has chosen to sanction conduct only to the extent that it relates to the practice of dentistry.1/ The motivation for legislative policy decisions and regulatory decisions are entirely different. See, Nadia N. Sawicki, Character, Competence, and the Principles of Medical Discipline, 13 J. Health Care L. & Pol’y 285, 295 (2010). (“Unlike criminal law, which is aimed at punishing wrongdoers, or civil law, which is aimed at victim compensation, professional discipline seeks to protect public welfare by incapacitating or rehabilitating dangerous physicians.”). The fact that the Legislature elected to punish DUI Manslaughter more severely than DUI based on the result of the act is not sufficient grounds to impose a different regulatory penalty for the same “act” based on the result. There has been no express “policy choice” by the Department that an act is more worthy of a different regulatory sanction based on its result. Again, it is the voluntary act of driving while intoxicated that reflects on the ability to practice dentistry, not the unintended, even tragic, result. The tragic outcome of Respondent’s reckless act of driving while impaired, though it certainly affects how Respondent’s behavior is treated from a criminal perspective, has little to do with whether it affects the clinical quality of his work, the quality of his patient care, or his ability to practice dentistry. The nature of the violation in this case has fairly been characterized as one of “character,” and not “competence.” As observed by Professor Sawicki, “many of the most serious disciplinary actions taken on the basis of criminal convictions involve criminal misconduct with no immediately apparent impact on patient safety or public health.” Sawicki, supra at 304. The incident here was not shown to have any effect on Respondent’s technical qualifications or abilities to practice dentistry. There was no suggestion that the DUI was the result of a broader pattern of alcohol abuse that affected Respondent’s practice of dentistry at the time of the incident. Given the terms of his probation after he is released -- neither driving nor alcohol consumption will be allowed -- there will be no possibility of a recurrence of the violation. Thus, the violation is directed to societal issues of trust and judgment, rather than ability and competence. The evidence in this case is sufficient to demonstrate that the act of driving while impaired is one that generally demonstrates recklessness and a lack of good judgment, and that such attributes can be correlated to one’s ability to effectively practice dentistry. The evidence in this case was not sufficient to demonstrate that the crime of DUI Manslaughter involves any greater degree of recklessness, or a heightened degree of poor judgment than does a DUI. Furthermore, the undersigned rejects the contention that Respondent’s inability to practice dentistry during his period of incarceration is a basis for revocation of his license. Petitioner pointed to no requirement that a licensed dentist engage in any minimum number of practice hours to maintain a license. Any necessary practical experience can be addressed in reasonable conditions as addressed herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order: determining that Respondent violated sections 456.072(1)(c) and sections 466.028(1)(c) and (mm), as a result of the recklessness and lack of judgment exhibited by his decision to drive while under the influence of alcohol; placing Respondent’s license on probation for a period of one year, to commence upon his release from incarceration, with appropriate terms of probation to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5-13.005(3)(d)2.; imposing an administrative fine of $10,000 to be paid within a reasonable period of time from Respondent’s release from incarceration; requiring reimbursement of costs to be paid within a reasonable period of time from Respondent’s release from incarceration; requiring completion of an ethics course; requiring 100 hours of community service to be performed concurrently with that required as a condition of Respondent’s probation; and requiring an evaluation from the Professionals Resource Network. DONE AND ENTERED this 14th day of June, 2018, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2018.
The Issue The issue in the case is whether, pursuant to sections 475.17(1)(a) and 475.181(2), Florida Statutes, Petitioner has the required honesty and good character to be entitled to take the examination for licensure as a licensed real estate sales associate.
Findings Of Fact On January 7, 2013, Petitioner filed the Application for licensure as a real estate sales associate. In response to a question asking if she had ever been convicted or found guilty of, or entered a plea of no contest or guilty to, a crime, Petitioner disclosed one crime: exploitation of an elderly person. Although providing a detailed explanation of what she viewed as extenuating circumstances for the exploitation offense, Petitioner failed to disclose any other offenses. In addition to this offense, which is a 1999 conviction for the exploitation of an elderly person for more than $20,000, Petitioner was convicted at the same time of two other offenses that are undisclosed in the Application: organized fraud for $20,000 to $50,000 and grand theft. These three offenses are second-degree felonies bearing the same disposition date of May 12, 1999, based on Petitioner's plea of no contest to the three charges. The court withheld adjudication and sentenced Petitioner to three years' probation, 300 hours' community service, restitution of $1598, and court costs. These offenses arose out of Petitioner's persuading an aged neighbor to cosign a note, so that Petitioner could purchase a car. The neighbor also lent Petitioner $1000, so that Petitioner could obtain insurance for the vehicle. Fifteen years later, Petitioner continues to assert her innocence in this matter, although she does not deny the transactions described above in connection with these three convictions. Petitioner claims that she was poorly represented by a public defender and that the entire matter was the result of an overprotective out-of-state son who visited his aged mother and happened to notice a credit card charge for the insurance premium. At the very least, Petitioner lacks insight into the serious nature of her bad conduct in this matter. In addition to failing to disclose two of three of the offenses described above, the Application also fails to disclose two earlier criminal matters. In 1989, Petitioner was charged with disorderly conduct and resisting arrest without violence, both misdemeanors. The record is undeveloped as to these charges, although it appears that Petitioner pled no contest to at least one of them, and the court withheld adjudication on both of them. Also, in 1990, Petitioner pleaded no contest to a third- degree felony of grand theft, for which the court withheld adjudication and sentenced Petitioner to restitution of $450 and other special conditions. Petitioner claims to have forgotten about these older criminal matters. Without regard to the legitimacy of this explanation as to the 1989 misdemeanor offense, it is unlikely that Petitioner had forgotten about the 1990 felony offense because, in this case, she had stolen a gold bracelet owned by a woman with whom her husband was romantically linked. Under these circumstances, Petitioner has failed to prove, not only that she has the requisite honesty and good character for licensure, but also that sufficient time and subsequent good conduct provide the necessary assurance that her licensure would not present an undue risk to the public and investors.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order denying the Application. DONE AND ENTERED this 10th day of March, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2014. COPIES FURNISHED: Thomas Leslie Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399 Evelyn Lozado Apartment 305 3001 South Ocean Drive Hollywood, Florida 33019 Darla Furst, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
