The Issue Whether the Petitioner's application for licensure as a real estate salesperson should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission operates within the Department of Business and Professional Regulation and is the entity responsible for certifying to the Department that an applicant for licensure under Chapter 475 is qualified to practice as a real estate broker or salesperson. Sections 475.02 and .181, Florida Statutes (2001). On or about June 12, 2001, Mr. Parker submitted his application for licensure as a real estate salesperson to the Commission. In the application, Mr. Parker answered "yes" to Question 9, which asks in pertinent part: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? . . . If you answered "Yes," attach the full details including dates and outcome, including any sentence and conditions imposed, on a separate sheet of paper. Mr. Parker attached to his application the results of a North Carolina criminal records check, which consisted of a cover sheet and three pages. Relevant to this proceeding, the information attached to Mr. Parker's application establishes the following: On May 26, 1994, Mr. Parker was found guilty of misdemeanor larceny; there is no indication that he received a sentence or paid a fine, court costs, or restitution. On June 29, 1995, Mr. Parker was found guilty of driving while impaired; he was sentenced to one year's unsupervised probation and paid either a fine or court costs in the amount of $160.00. On July 8, 1996, Mr. Parker waived trial on a charge of passing a worthless check; he paid either a fine or court costs in the amount of $60.00 and restitution in the amount of $76.30. On July 31, 1998, Mr. Parker was convicted of misdemeanor larceny; he was sentenced to six month's unsupervised probation and paid either a fine or court costs in the amount of $130.00. On June 12, 2000, Mr. Parker was found guilty of violating a domestic violence protective order; he was sentenced to six month's unsupervised probation and paid either a fine or court costs in the amount of $186.00. On August 6, 2000, Mr. Parker was charged with driving while impaired and driving without a license in his possession; trial was scheduled for February 21, 2001, but no disposition is indicated in the materials Mr. Parker provided. Mr. Parker admits to having driven while impaired in August 2000, but he has not been in trouble since his arrest on this charge. He completed an alcohol treatment program and has not consumed alcohol for one and one-half years. Mr. Parker understands that he has had problems in the past and believes that he has done better in the past two years. He moved to Florida in January 2001 in order to make a new life. At the time of the hearing, he was employed as a server at a restaurant. In that job, he routinely handles up to $1,000.00 in cash each day and always turns the money over to management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying the application of Robert L. Parker for licensure as a real estate salesperson. DONE AND ENTERED this 26th day of June, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2002. COPIES FURNISHED: Robert L. Parker 44 Douglas Drive Boynton Beach, Florida 33435 Donna K. Ryan, Esquire Department of Business and Professional Regulation Hurston North Tower 400 West Robinson Street, Suite N308 Orlando, Florida 32801-1772 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Dean Saunders, Chairperson Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a liquor store and sells alcoholic beverages on the premises under a license issued by Petitioner, sold beer to a person under the age of 21, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Holiday Liquors 2002, Inc., d/b/a Holiday Liquors ("Holiday"), has held a license to sell alcoholic beverages at retail. Consequently, Holiday is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). On March 23, 2007, five agents of the Division placed under surveillance the liquor store that Holiday operates, covertly watching for sales to underage buyers. At around 10:45 p.m., Special Agent Eric Scarbrough observed a woman enter the store and purchase a six-pack of beer. To Agent Eric Scarbrough the woman appeared to be young——too young, perhaps, to purchase alcohol legally. Agent Scarbrough and his partner followed the woman's car as she drove away from the store's premises. Soon, they pulled her over, making a "traffic stop." The agents could see the six-pack in the car, in plain view. According to Agent Scarbrough, whose testimony in this regard the undersigned credits as true, the woman identified herself to him as Edith Rosario and produced her driver license, which showed November 6, 1986, as her date of birth. Agent Scarbrough confiscated the beer and issued the woman a Notice to Appear. Later that night, he also gave a Notice to Appear to the licensee's agent, Jakia Bergum, charging her with one count of selling alcohol to a person under the age of 21.1 Notwithstanding the foregoing, the undersigned is unable to find that the alleged underage buyer ("Ms. Rosario") was, in fact, under the age of 21 on March 23, 2007. This is because the Division did not offer any nonhearsay evidence in support of the woman's age. (Ms. Rosario did not testify at hearing.) The evidence being insufficient as to a material element of the Division's case (i.e. the age of the alleged underage buyer), it must be concluded, as a matter of ultimate fact, that Holiday is not guilty of selling alcoholic beverages to a person less than 21 years of age, as charged in the Administrative Action [Complaint].
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Holiday not guilty of the instant charge. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2008.
The Issue The issue is whether Petitioner should be exempt from disqualification for employment in a position of trust, pursuant to section 435.07, Florida Statutes.1/
Findings Of Fact AHCA is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed by AHCA. See § 408.809(1)(a), Fla. Stat. (employees subject to screening); § 408.803(9), Fla. Stat. (definition of “licensee”). Petitioner was required to participate in Respondent’s background screening process because he sought employment in a position providing direct services to residents of a health care facility licensed by AHCA under chapter 400, Florida Statutes. Petitioner underwent the required background screening, which revealed: On or about May 6, 1996, in Case No. 1995MM007600, Petitioner was adjudicated guilty of Battery under section 784.03(1)(a)1., Florida Statutes. At the time of this offense, Petitioner and Teresa Poole, the alleged victim, resided together or shared the same dwelling. On or about May 15, 2002, in Case No. 2002CF000065, Petitioner pled no contest to Battery under section 784.03(1)(a)1., a misdemeanor. Adjudication was withheld. At the time of this offense, Petitioner was residing with or was sharing the same dwelling with Erica Goode, the alleged victim. On or about July 6, 2009, in Case No. 2009MM000294, Petitioner pled no contest to Battery under section 784.03(1)(a)1. Christine Crowley, the alleged victim, and Petitioner are related by blood and have previously resided together in the same dwelling. Christine Crowley is Petitioner’s biological sister. Each of the above-referenced battery charges constitutes Domestic Violence under section 741.28, Florida Statutes. Under sections 435.04(3) and 408.809(4)(e), Florida Statutes, the above-referenced criminal offenses disqualify Petitioner from providing services in a health care facility licensed by AHCA, unless AHCA grants Petitioner an exemption pursuant to section 435.07. In addition to his disqualifying offenses, Petitioner's background screening revealed: On or about September 18, 1998, in Case No. 1998CF000638, Petitioner was arrested for Aggravated Battery under section 784.045(1)(a)1. Although Petitioner was not ultimately convicted, at the time of this charged offense, Petitioner was residing with or had previously resided with the alleged victim, Christina McCullum, in the same dwelling. A conviction of this charge would constitute Domestic Violence under section 741.28. On or about September 21, 1998, in Case No. 1998CT003202, Petitioner pled no contest to Driving While License Suspended (With Knowledge) under section 322.34(2), Florida Statutes. Petitioner maintains that he did not actually have knowledge. On or about February 1, 1999, in Case No. 1999CT00187, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about February 24, 1999, in Case No. 1998CT004442, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about January 25, 1999, in Case No. 1999CF000264, Petitioner was arrested for Burglary under section 810.02(3)(b) and Battery under section 784.03(1)(a)1. At the time of these offenses, Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about April 14, 1999, in Case No. 1999MM000766, Petitioner was arrested for Assault under section 784.011. Petitioner was not ultimately convicted. On or about July 14, 1999, in Case No. 1999CF2483, Petitioner was arrested for Aggravated Battery under section 784.045. Petitioner was not ultimately convicted. At the time of this alleged offense, the Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about December 12, 1999, in Case No. 1999CF000727 (later transferred to 1999MM002249), Petitioner was arrested for Battery under section 784.03(1)(a)1. and Resisting without Violence under section 843.02. At the time, Petitioner had previously resided with the victim, Christina McCullum in the same dwelling. The battery charge constitutes Domestic Violence under section 741.28. Petitioner was adjudicated guilty of the above-referenced Resisting without Violence charge and sentenced to a year of probation with a special condition of completion of a Batterer’s Intervention Program. i. On or about July 30, 2002, in Case No. 2002MM007400, Petitioner was charged for giving a worthless check under section 832.05(2), but the charges were ultimately dismissed. On or about November 5, 2003, in Case No. 2003CF000692, Petitioner was charged with Aggravated Battery under section 784.045(1)(a)1. Petitioner was not ultimately convicted. On or about March 18, 2004, in Case No. 2004CF000185, Petitioner was charged with Dealing in Stolen Property, under section 812.019(1). Petitioner was not ultimately convicted. On or about June 3, 2009, in Case No. 2009CF000362, Petitioner was charged with Burglary under section 810.02(3)(c) and Petit Theft under section 812.014(3)(a), Florida Statutes. Petitioner was not ultimately convicted. At the time of the above- referenced charges, Petitioner was the former spouse of, and had previously resided with, the alleged victim, Erica Goode/Crowley in the same dwelling. On or about June 26, 2009, in Case No. 2009MM000678, Petitioner was arrested for Battery under section 784.03(1)(a)1. and Disorderly Conduct (Affray) under section 870.01(1). Petitioner was not ultimately convicted. On or about July 9, 2009, in Case No. 2009MM000721, Petitioner was charged with violating a No Contact Order issued by the first appearance judge in the case referenced above. Petitioner was not ultimately convicted. On or about August 21, 2009, in Case No. 2009MM000922, Petitioner was arrested for Battery under section 784.03(1)(a)1. Petitioner was not ultimately convicted. At the time of this arrest, Petitioner was residing in the same dwelling with the alleged victim, Michelle Vanhoose. On or about January 2011, in Case No. 2010CF000620, Petitioner was adjudicated guilty of Aggravated Stalking under section 784.048(3), Florida Statutes. Licensed professionals under the Department of Health may work at a facility licensed by AHCA, if granted an exemption by the Department of Health, but may only work within the scope of that professional license, unless AHCA itself grants the applicant an exemption. Petitioner does not have an active license or exemption from disqualification from the Department of Health. Petitioner does not dispute that he has disqualifying offenses and subsequent criminal history, but claims his application and entire file support his rehabilitation by clear and convincing evidence. AHCA received Petitioner’s application for exemption in accordance with sections 408.809 and 435.07, on or about June 15, 2017. AHCA conducted a telephonic hearing with Petitioner on August 2, 2017. During the telephonic hearing, in addition to discussing the results of Petitioner’s background screening, as evidence of his rehabilitation, Petitioner pointed out that he has been working, getting an education, and has not been arrested in six years. Petitioner also submitted several positive letters of recommendation from close friends and family. After the telephonic hearing, AHCA denied Petitioner’s request for an exemption and sent Petitioner the Denial Letter, signed by AHCA’s manager for the Background Screening Unit, Samantha Heyn, on behalf of AHCA. Although Ms. Heyn did not attend AHCA’s telephonic hearing with Petitioner, she previously spoke to Petitioner in a phone call about his exemption request. In making the decision to deny Petitioner’s application, Ms. Heyn and pertinent AHCA staff with the background screening unit considered Petitioner’s entire case file, including all submissions received from Petitioner and his explanations during the teleconferences. AHCA also considered the time elapsed since the offenses, the nature and harm to the victims, the circumstances surrounding the offenses, Petitioner’s history since the offenses, and all other supporting documentation provided by Petitioner before deciding to deny Petitioner's request for exemption from disqualification. Petitioner testified that he has ambitions to work as a licensed health care professional. During the administrative hearing, Petitioner testified that he is in his current predicament because of vindictive people falsely accusing him of crimes, and AHCA personnel who have labeled him a criminal. Similarly, during his earlier teleconference with AHCA, Petitioner stated that he was in his current situation due to racism, labeling, vindictive people out to destroy him, and other factors out of his control. Petitioner’s statements at the initial teleconference with AHCA were conflicting as to whether the courses he took for batterer’s intervention and anger management were court-ordered, conditions of a plea deal with prosecutors, or fully voluntary outside of the criminal justice system. Petitioner was arrested for violent and domestic crimes after taking each course. While Petitioner has stated that he takes full responsibility for his actions, his other statements at the teleconference and at the administrative hearing reflect a lack of candor and an unwillingness to accept responsibility for his past criminal episodes. While the letters of recommendation from close family and friends, successful educational pursuits, and a clean record for the last six years demonstrate progress toward rehabilitation, this fairly recent success does not annul Petitioner's extensive criminal history, lack of candor, and unwillingness to accept responsibility. The records of successful exemption applicants offered by Petitioner were not helpful to Petitioner’s case. The criminal backgrounds were not the same as Petitioner’s and the evidence was insufficient to permit a useful comparison between the facts and circumstances of those applicants with those of Petitioner. In view of all of the evidence, it is found that Petitioner failed to meet his burden to prove by clear and convincing evidence of rehabilitation when he presented his case to AHCA, and the evidence presented at the final hearing failed to demonstrate that AHCA abused its discretion in denying Petitioner’s request for exemption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 16th day of March, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 16th day of March, 2018.
The Issue The issue in this proceeding is whether Petitioner should be granted an exemption from employment disqualification.
Findings Of Fact The Agency for Persons with Disabilities provides services to disabled clients. As part of its responsibilities, the Agency oversees the background screening process of caregivers, as well as any exemptions should a caregiver be disqualified by his or her background. Towards that end, the Agency’s primary concern in considering requests for exemption is the health and safety of the clients served by the Agency. Petitioner applied for an exemption from disqualification pursuant to section 435.07, Florida Statutes (2015). The application included two letters of recommendation regarding Petitioner’s character. Those letters were from people who knew Petitioner in the community or around town, but were neither detailed nor informative about the extent of their knowledge, the length of time the writers had known Petitioner, or any rehabilitation efforts by Petitioner. Additionally, the application for exemption included Petitioner's explanation of the events surrounding her multiple criminal convictions. In her explanation and at hearing, Petitioner admitted her criminal history but attempted to blame the other parties involved in the events that led to the police being summoned. Although she claimed remorse in her application, Petitioner did not appear particularly remorseful about her criminal past. Ms. Lynne Daw received and reviewed Petitioner’s exemption application packet prepared by the Department of Children and Families. The exemption packet contained the application; the requestor’s criminal history; information and questionnaires from the applicant; educational background and references; any documents that the applicant wished to submit on his or her behalf, as well as information that the background screening office had obtained, such as Florida Department of Law Enforcement reports; and other law enforcement documents. Ms. Daw testified to the steps followed and individuals who reviewed Petitioner’s request for an exemption. The evidence showed that the Department complied with its review process and ultimately determined to deny Petitioner’s request for an exemption from disqualification. Petitioner began her criminal activity on January 11, 2009, when at a local bar in Gretna, she engaged in a verbal altercation with her “live-in” boyfriend who was also the father of her son. The altercation caused both to be escorted from the bar, where the affray continued in the parking lot with the police eventually being summoned. During the altercation, Petitioner attempted to pepper spray the boyfriend by reaching around the police officer who was between them with a can of pepper spray in her hand. Petitioner was arrested and entered a plea of nolo contendere to domestic assault, a second-degree misdemeanor, on January 28, 2009. The plea was accepted by the court. Adjudication was withheld and a fine of $200.00 was imposed. From the court records, Petitioner completed the terms of her sentence in 2009 when she paid the fine. Petitioner attributed the altercation to the bad break-up she and her boyfriend were going through at the time or had just gone through. The conviction for domestic violence was the only disqualifying offense in regards to Level 2 background screening. However, around February 15, 2013, Petitioner was intoxicated at a local bar “screaming at the top of her lungs” and threatening to discharge a weapon. The police were again summoned to the bar. Petitioner continued to engage in a verbal altercation with another woman over some past love interest and threw her keys at her. She was arrested, placed in handcuffs, slipped out of them and continued to yell. Ultimately, she was charged with disorderly conduct and resisting an officer without violence. Petitioner entered a plea of nolo contendere to the charge of disorderly conduct. The court accepted the plea, withheld adjudication and imposed a fine. From the court records, Petitioner has made payments on the imposed fine, but has not paid the fine in full and has not completed her sentence. At hearing, Petitioner blamed the incident on the other women and indicated that somehow such behavior was less serious because the people involved all knew each other. More troubling is that Petitioner denied using and/or misusing alcohol in her application for exemption when her record clearly demonstrates that she does use alcohol to the point that it has led to at least one criminal conviction. The evidence showed that Petitioner, who was 35 at the time of hearing, was 32 years of age at the time of her last conviction, three years ago, and 28 at the time of her disqualifying domestic violence conviction, seven years ago. She currently works as a security officer and holds a certificate as a certified nursing assistant. Evidence showed that she has not received any exemptions from disqualification for these professions. Although Petitioner claims that she now only goes home to take care of her three children, the evidence did not demonstrate that she has removed herself from the rowdy drinking and bar life she has lived in the past. In this case, the good character of Petitioner was not attested to by character witnesses, who knew the Petitioner on both a personal and professional level. As indicated, the two reference letters were not helpful on the issue of character or rehabilitation. As noted, the evidence showed that Petitioner’s disqualifying crime occurred seven years ago. However, the evidence was insufficient to demonstrate that, since her conviction, she has rehabilitated herself to the extent she has either controlled her use of alcohol or her anger. To her credit, Petitioner is taking care of her young disabled daughter. But, such evidence covering only a short period of time does not on these facts constitute clear and convincing evidence of rehabilitation. Given these facts, the denial of the exemption is consistent with and supported by the evidence adduced at the hearing. The Department did not abuse its discretion in denying an exemption to Petitioner. As such, the Petitioner’s request for an exemption from disqualification should be denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner an exemption from employment disqualification. DONE AND ENTERED this 31st day of May, 2016, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 31st day of May, 2016. COPIES FURNISHED: Shamika Williams 91 Henry Drive Gretna, Florida 32332 Tracie Hardin, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue in this case is whether the part of Department of Environmental Regulation Rule 17-103.170, Florida Administrative Code, which charges appellants $.50 per page for preparation and transmittal of records on appeal from final DER action, constitutes an invalid exercise of delegated legislative authority.
The Issue The issue is whether the medical license of Respondent, Elizer F. Castro, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint. The Petitioner, Department of Professional Regulation, Board of Medical Examiners, (DPR) presented the testimony of David F. Scales, M.D., John E. Danson, and Steven J. Clark, M.D. Petitioner's Exhibits 1-3 were admitted in evidence. Respondent presented his own testimony and that of Melvin Greer, M.D., by deposition. Respondent's Exhibit 1 was admitted in evidence. DPR recalled John E. Danson for rebuttal. The transcript of the proceedings was filed on November 2, 1987. The deposition of Melvin Greer, M.D., was filed on November 24, 1987. The parties agreed that they would file proposed findings of fact and conclusions of law within ten days following the filing of the Greer deposition. DPR filed its proposed findings of fact and conclusions of law on December 4, 1987. Respondent's proposed order was filed on December 11, 1987, and is therefore untimely. It has not been considered. The proposed findings of fact submitted by DPR have been considered and a specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times relevant, Elizer F. Castro, M.D., was a licensed physician in the State of Florida, having been issued license number ME 0029506. Dr. Castro treated a patient, A.S., from May 9, 1983, to September 23, 1986. Dr. Castro treated A.S. for narcolepsy. A.S. was formerly treated by David Scales, M.D., of Jacksonville, Florida. Dr. Scales, a neurologist, treated A.S. for narcolepsy from December 16, 1982, until March or April, 1983. At that time, Dr. Scales discontinued treatment because he had received outside information that A.S. was a known drug dealer. Narcolepsy is a sleep disorder in which the patient has an uncontrollable urge to fall asleep at inappropriate times. Diagnosis of narcolepsy can only be made through a patient history and patient information regarding symptoms, past illnesses, past physicians, prior medications, sleep patterns and the existence of features associated with the disease such as cataplexy, nightmares and sleep paralysis. According to Dr. Castro, he took such a patient's history and performed a complete physical examination during the first visit by A.S. on May 9, 1983. Dr. Castro also asserted that he called Dr. Scales' office immediately following the first visit with A.S. and was advised by the physician's assistant that A.S. had been treated by Dr. Scales for narcolepsy. However, Dr. Castro's medical records, including the patient information sheet, do not contain any documentation of the history, specific examination results, or the phone calls to Dr. Scales' office. The first page of the medical records regarding A.S. which is entitled "Patient Information" reflects information regarding tests which were done on August 5, 1983, at Jacksonville Memorial Medical Center following involvement of A.S. in an automobile accident. Clearly this information was not given to Dr. Castro during the first visit of May 9, 1983 (despite Dr. Castro's testimony to the contrary), because these tests were not even done until three months after the first visit. Hence, these tests cannot be relied on by Dr. Castro to support his clinical diagnosis of narcolepsy because the tests postdate the diagnosis and because Dr. Castro never sought copies of the test results. Both Dr. Clark, DPR's expert, and Dr. Greer, Dr. Castro's expert, expressed the opinion that the medical records maintained by Dr. Castro failed to reflect an adequate history upon which to make the clinical diagnosis of narcolepsy. It is also important to perform certain tests in order to rule out other etiologies or problems which can complicate or confuse a physician in the diagnosis of narcolepsy. Here, Dr. Castro's records do not reflect any such testing prior to Dr. Castro's diagnosis of narcolepsy in A.S. In diagnosing narcolepsy in A.S., Dr. Castro acknowledged that his diagnosis was based on the representations of A.S. that he had narcolepsy and had been treated in the past for narcolepsy. Dr. Castro also stated that he did a physical examination, took an extensive patient history, and spoke to Dr. Scales' office for confirmation of the narcolepsy diagnosis. Dr. Castro did not record any of this in the patient records. Dr. Castro treated A.S. for narcolepsy by prescribing Preludin, 75 milligrams, three times per day. A.S. told Dr. Castro that that was medication he had been receiving and that was the dosage he had been receiving form Dr. Scales. In order to follow A.S. on this medication, Dr. Castro began by prescribing 45 tablets for a fifteen day supply. Dr. Castro saw A.S. at fifteen day intervals for the first few visits in order to monitor his progress and to examine him for side effects. Only after assuring himself that the dosage was correct and any side effects were being effectively managed, did Dr. Castro began prescribing the Preludin on a monthly basis. After November, 1983, Dr. Castro saw A.S. on a monthly basis to monitor his medication. Preludin is the brand name for phenmetrazine hydrochloride, which is a sympathomimetic amine and Schedule II controlled substance. The Physician's Desk Reference (PDR) is compiled by drug companies and contains data on all drugs, including indications for use, contraindications, adverse side effects, and recommended dosages. The PDR states that the maximum safe dose of Preludin is one 75 milligram tablet per day. The PDR also reflects that Preludin is contraindicated with hypertension. Dr. Castro was treating A.S. for hypertension. While Dr. Castro was prescribing Preludin in dosages beyond those set forth in the PDR, his prescription was not inappropriate. According to Dr. Greer, prescribing Preludin three times a day is a dosage that would be within a medically safe range and would be within the range appropriate within a physician's professional practice. Additionally, that prescription and dosage, being monitored on a monthly basis for side effects, would be within the range of sound medical practice. The dosage prescribed by Dr. Castro is also within the appropriate range that would be used on a patient of this type who had hypertension, as long as the physician also follows the hypertension. Here, Dr. Castro prescribed medication for A.S.'s hypertension and, according to Dr. Greer, that medication and treatment was appropriate. Dr. Castro's records reflect that A.S. was not referred for any consultations with other specialists until November 20, 1986. According to Dr. Greer, waiting two and one-half years to refer a patient for consultation with a neurologist to confirm the diagnosis of narcolepsy would be inappropriate unless the doctor had gotten additional information to confirm the diagnosis. Here, Dr. Castro asserts that he did receive additional information in the form of telephone confirmation by Dr. Scales' physician's assistant which confirmed the diagnosis of narcolepsy. Dr. Castro did not record this in his medical records. Dr. Castro practiced medicine within the community standard in his diagnosis and treatment of A.S. His failure was in the lack of documentation throughout his treatment of A.S.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medical Examiners, enter a Final Order, and therein: Dismiss Counts II, III, IV, and V of the Administrative Complaint. Find Elizer F. Castro, M.D., guilty of violating Section 458.331(1)(n), Florida Statutes, as set forth in Count I of the Administrative Complaint. Assess a fine in the amount of five hundred ($500) dollars. Order Elizer F. Castro, M.D., to attend and complete continuing medical education in the area of record keeping. DONE AND ENTERED this 17th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4106 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(2); 4(3); 5(4); 6 & 7(5-7); 8(7); 9(8); 10(8); 14(10); 15(11); 16(11); 17(11); and 18(12). Proposed findings of fact 11, 12, 13, and 19-23 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Clyde E. Wolfe, Esquire 1 Corporation Square, Suite B-10 St. Augustine, Florida 32086 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue is whether Petitioner’s request for exemption from disqualification should be granted.
Findings Of Fact Respondent is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. Petitioner is seeking employment with Always Promoting Independence, LLC, and Supporting Independence/Honor Health Care Management, both service providers are regulated by Respondent. Petitioner wants to work as a direct service provider, which requires background screening. The results of Petitioner’s background screening revealed a history of criminal offenses. Respondent relies on the Department of Children and Families Background Screening Unit (“Department”) to initially receive exemption from disqualification requests and to compile documents related to such requests. On February 8, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire (“Questionnaire”), various criminal records, character references, and other various documents (the “Exemption Packet”), to the Department seeking to demonstrate support for the granting of an exemption from employment disqualification. The Department subsequently forwarded the Exemption Packet to the Agency for review. To begin its exemption review, Respondent considered Petitioner’s disqualifying offense. In May 1991, Petitioner committed the disqualifying offense of “Fraudulent Use of Credit Card” (six counts). Petitioner pled nolo contendere to the disqualifying offense and adjudication was withheld. She was sentenced to 24 months’ probation and payment of fines and court costs. She completed her term of probation early. In its continued exemption review, Respondent considered the following non-disqualifying offenses, which Petitioner obtained subsequent to her May 1991 disqualifying offense: an arrest for “Aggravated Assault with a Firearm” in August 1997 (a violation of section 784.021, Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in October 2007 (a violation of section 322.34(2), Florida Statutes); an arrest for “Driving While License Suspended with Knowledge” in September 2008 (another violation of section 322.34(2)); an arrest for “Possession of Cannabis” in March 2012 (a violation of section 893.13(6)(b), Florida Statutes); and a conviction for “Possession of Drug Paraphernalia” in March 2012 (a violation of section 893.147(1)). Petitioner received notification by letters dated September 22, 2015, and January 12, 2016, from the Department, Respondent’s background screening entity, of her disqualification from employment due to criminal history. The specific disqualifying offense listed in both letters was “Fraud-Illegal Use of Credit Cards,” a violation of section 817.61, Florida Statutes. Petitioner provided details of the circumstances surrounding the disqualifying offense. In short, Petitioner indicated she gave three “associates” a ride to the mall in exchange for their promise to buy her a new pair of shoes. She left the Champs sports store with her shoes, expecting one of her companions to pay for them. She was in her car when her companions ran from the store with a security guard in pursuit. They told her to start the car which she refused because she believed she had not done anything wrong. Unfortunately for her, one of her companions had attempted to pay for her new shoes with a stolen credit card. She and her companions were arrested and charged with credit card fraud. Petitioner provided documentation of the charge, the disposition after her no contest plea, and the fact that her probation was terminated early. Petitioner provided explanations for all but one of the non-disqualifying offenses that ranged from the gun charge being at the end of a “bad relationship” (her then-girlfriend falsely accused her); to she was pulled over for a broken taillight, then charged with driving with a suspended license (she claimed she paid her tickets and the license was reinstated, although no records were provided on this point); to she was pulled over for having too dark a window tint in her car and cannabis was found (she testified it was not hers), but, since no one confessed to ownership, all were cited for possession; and finally to no explanation at all for the 2007 driving with a suspended license charge. Petitioner accepted little responsibility for her criminal offenses and concluded with the statement that she has no current involvement with any court system; she stated she is in “good standing.” Petitioner indicated on her Questionnaire that there was no harm to any victim or property, including damage or injury, in her past. Petitioner indicated on her Questionnaire that there were no stressors in her life at the time of the disqualifying offense. Regarding current stressors in her life, Petitioner testified she is unable to provide for her family and she is eager to obtain and keep steady employment. Petitioner listed her educational achievements as a diploma from Clearwater High School (1988), an Associate in Arts degree from Tampa Tech in computer engineering (1991), and an Associate in Science (“A.S.”) degree from St. Petersburg College in human services (2014). Petitioner indicated on her Questionnaire that she has received no counseling for any reason. Petitioner indicated on her Questionnaire that she has no history of alcohol and drug abuse. Petitioner indicated on her Questionnaire that she is involved with a community organization known as “Parents that Care.” As to expressing remorse or accepting responsibility for her actions, Petitioner testified she completed her probation early and that she no longer surrounds herself with negative influences and people. Petitioner’s recent work history has been stable. Her work history since 2009 indicates she has worked for two groups providing direct support/in-home support staff: Supporting Independence/Honor Health Care Management (2012-present) and Peaceful Dreams, Inc. (2009-2012). In addition to the criminal records submitted, Petitioner also offered affidavits of good moral character, written personal statements, IRS W-2 Forms, a copy of her A.S. degree from St. Petersburg College, and three letters of reference attesting to her character. The letters were written by people who have known Petitioner for many years and who believe her to be hard-working, reliable, and caring. Petitioner also submitted a copy of an exemption from disqualification she had received from the Agency for Health Care Administration (“AHCA”) dated May 27, 2014. Jeffrey Smith, regional operations manager for the Suncoast Region, testified that the Agency reviewed all the provided documentation provided by Petitioner, the information provided on the Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her educational record, her character references, and her exemption from AHCA. Following a review of all the documentation included in the Exemption Packet, Agency Director Barbara Palmer advised Petitioner by a letter dated May 27, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to provide clear and convincing evidence of her rehabilitation. Mr. Smith testified the Agency considered all the documentation submitted by Petitioner in her Exemption Packet, as well as the additional documents provided prior to and at the hearing. He did not find that the documentation negated or refuted the official records of the disqualifying and non- disqualifying offenses. Further, the fact that the non-disqualifying offenses related to Petitioner’s driving is relevant to the position for which she seeks an exemption from disqualification. A direct service provider is often called upon to transport individuals entrusted to her care. Petitioner’s statement that her license was reinstated and that she received no more driving citations after the offenses described above was refuted by Mr. Smith, based upon subsequent driving records regarding Petitioner. Mr. Smith also noted two additional reports from the Department in which Petitioner was named the alleged perpetrator. One report showed some indicators of child abuse (cuts/punctures/bites/excessive corporal punishment), and the other report involved allegations of exploitation of a vulnerable adult, specifically, one with a developmental disability, but resulted in no official findings of exploitation. The Agency’s clients are a vulnerable population, consisting of individuals whose developmental disabilities are defined as intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid syndrome. Without the Agency’s services, these clients would require institutionalization. Petitioner testified passionately that she enjoys working with individuals with disabilities. Working in this field inspired her to return to school to earn a degree in human services. She testified that working with persons with disabilities is her long-term goal. She admitted she made some “foolish mistakes” when she was younger, but that she now accepts responsibility for her actions. She also testified that she believed her exemption should be granted because another agency, AHCA, had granted her an exemption from disqualification. Respondent countered with the fact that this vulnerable population requires being able to rely on the direct care provider’s good character and trustworthiness. Individuals entrusted with the care of the disabled are often called upon to make decisions of a financial, medical, and social nature. The Agency must weigh the benefit against the risk when considering granting an exemption. Petitioner’s history shows poor judgment on her part, and she provided testimony that was inconsistent with the documentation of her criminal history and the report and allegations of abuse or neglect from the Department. Petitioner admitted to use of a credit card of a vulnerable adult, which showed poor judgment on her part. Additionally, the close proximity of Petitioner’s most recent arrest (2012) to her request for exemption demonstrates her issues with the law are not limited to the distant past. Finally, Respondent, pursuant to section 435.07(5), Florida Statutes, considered the exemption given Petitioner by AHCA. The exemption from AHCA, however, is neither binding on the Agency nor does such exemption follow the same criteria or involve the same service population as the exemption sought from Respondent. The granting of an exemption from employment disqualification would allow Petitioner to be employed as a direct service provider to Agency clients. The undersigned appreciates Mr. Smith’s thoughtful and comprehensive assessment of Petitioner’s criminal history and fitness to hold a position of trust, and finds his testimony at hearing and reasons for recommending the denial to be credible and reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 19th day of October, 2016, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 19th day of October, 2016. COPIES FURNISHED: Rosemary Brinson 1010 Eldridge Street Clearwater, Florida 33755 Jeannette L. Estes, Esquire Agency for Persons with Disabilities 200 North Kentucky Avenue, Suite 422 Lakeland, Florida 33801 (eServed) Lori Oakley, Acting Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 11, 1990, and issued certificate number 4-90-502-02. On May 31, 1990, Dawn Rees was working in concert with the Police Department of Williston, Florida, and the Florida Department of Law Enforcement as a confidential informant regarding illegal drug activity in the Williston area. In the course of her work, Rees would meet with various individuals and attempt to buy illegal drugs. As a prelude to each of these meetings, Rees would be searched by law enforcement officials to determine that she had no illegal drugs on her person. Then, she would be "wired" or fitted with sonic monitoring equipment and sent to negotiate the illegal drug purchase. Upon her return from the drug rendezvous, Rees would turn over any contraband purchased by her and submit again to a personal search. Rees' conversations with the persons from whom she sought to buy drugs was monitored and recorded by authorities via the broadcast of those communications to them through the "wire" worn by Rees. On the evening of May 31, 1994, Rees went to the residence where Respondent lived and spoke with William Lynch, a friend of Respondent who also resided in the house, concerning the purchase of an ounce of marijuana. The conversation between Lynch and Rees took place on the front porch of the residence. Lynch told Rees that he could get the marijuana for her. Later that evening, Rees, equipped with the hidden listening device described above, returned and entered the residence to get the promised marijuana. Sometime later, Rees left the residence and met with law enforcement authorities. As stipulated by the parties at the final hearing, a field test of the substance obtained from Lynch in the residence by Rees, and provided to authorities that night, identified the drug as marijuana. As established by Rees' testimony at the final hearing, she was involved in several other investigations as a confidential informant during the same general time span that she was also involved in the drug purchase at Respondent's residence. Rees testified from the basis of her recollection of events that had occurred several years prior to final hearing. Respondent was present and operating a "Nintendo" game when Rees entered the house. Respondent engaged in conversation with Rees, but did not observe the later exchange of money for marijuana between her and Lynch. The exchange, as established by Lynch's candid and credible testimony, took place in a back bedroom of the house, out of the presence of Respondent. Respondent testified that he had no knowledge of the transaction or the presence of illegal drugs in the house. Accordingly, Rees' testimony, absent further corroboration by other direct admissible evidence, that Respondent knew illicit drugs were on the premises and observed the drug transaction, cannot be credited. A transcript, presented at the final hearing and purportedly derived from the tape of conversations had between Rees and persons in the residence garnered via the "wire" worn by Rees, offers no proof in support of a contention that Respondent was aware of the presence or sale of illegal drugs on the premises. As established by the credible testimony of Respondent, and corroborated by Lynch, Respondent was unaware of the presence of illicit drugs in the residence or the sale of such drugs in the residence at any time, contrary to allegations of the Administrative Complaint. Later, Lynch moved out of the residence. Respondent was arrested several months later in connection with the incident. By stipulation of the parties, it is established that those charges were subsequently nolle prossed by the Office of the State Attorney, 8th Judicial Circuit of Florida. The evidence presented by Petitioner of Respondent's knowledge and possible participation in the possession and sale of an illicit drug, marijuana, as charged in the Administrative Complaint, is met by Respondent's credible denial of any knowledge as to the alleged events. Further, Respondent's assertion of innocence is corroborated by the testimony of William Lynch. It is concluded that there is insufficient evidence to establish that Respondent knew that drugs were in the house on the night in question or that Respondent knew of the drug sale to Dawn Rees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the charges contained in the Administrative Complaint. DONE and ENTERED in Tallahassee, Leon County, Florida, this 10th day of June, 1994. DON W. DAVIS 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 10th day of June, 1994. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1-2 Accepted. 3-4 Rejected, the transcript reference shows that Respondent was arrested on February 5, 1991, following the May, 1990 incident. 5-6 Accepted. 7-8 Subordinate to HO's findings on these points. Specifically, Ms. Rees is found to have been mistaken about the content of her conversations with Respondent and without a basis to draw the conclusion that Respondent was a willing and knowledgeable participant in illegal activity. Subordinate to HO findings. Respondent had the transcript admitted to show its lack of probative value. At no time does Respondent adopt the transcript in order to prove the case against himself. Rejected, relevance. Accepted. Rejected, relevance. Accepted. Rejected, weight of the evidence. Respondent's Proposed Findings None submitted. COPIES FURNISHED: Pauline Ingreham-Drayton Attorney at Law Florida Department of Law Enforcement 711 B Liberty Street Jacksonville, Florida 32202 Richard Bova, Jr. 624 S.W. 70th Terrace Gainesville, Florida 32608 Leon Lowry, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
Findings Of Fact The following findings of fact are based upon the stipulation of the parties: The Respondent pharmacy, Drug Mart, Inc., of Lake Wales, doing business as Drug Mart, is a corporation holding community pharmacy permit number 0007122. The Respondent Gerald W. Gettel is a pharmacist licensed under the laws of the State of Florida, license number 0015091, whose last known address is 168 Poe Drive, Winter Haven, Florida 33890. Pursuant to Section 465.081, Florida Statutes, Gettel was employed as the pharmacy department manager at Drug Mart, Inc., of Lake Wales, 608 Lake Wales Plaza, Lake Wales, Florida 33853. On or about March 30, 1982, when inspected, the Respondents did not have on file Schedule II controlled substance prescriptions for the period of June 1980 through and including August 1980. If a hearing had been held in this case, Respondent Gettel would have testified that the destruction of the Schedule II controlled substance prescriptions mentioned above was unintentional . Gettel's testimony would have been supported by two witnesses whose affidavits are attached to this Recommended Order as Exhibits A and B. At a hearing, Gettel would have testified he could reproduce from computer records all of the dispensing information contained on the original prescriptions but admits it is accepted practice of pharmacists to maintain the original Schedule II controlled substance prescriptions for a period of two years. It is specifically stipulated that Schedule II controlled substance prescriptions are not subject to the exceptions provided by Section 893.07(4)(b), Florida Statutes. The responsibility for maintaining Schedule II controlled substance records is imposed upon the pharmacy manager (per the stipulation of the parties; however, the law is contrary). The permit holder, Drug Mart, Inc., of Lake Wales, is not directly responsible for the maintenance of said records. The Respondent Gettel notified the Drug Enforcement Administration of the destruction of the subject prescriptions. (See Exhibits C and D attached hereto.) At a hearing, Gettel would have stated that he also notified the Board of Pharmacy and would have introduced a letter and certified mail receipt relating to this notice to the Board. (See Exhibit E attached hereto.) If called to testify, the custodian of records of the Board of Pharmacy would state that the Board does not have a copy of the above-referenced letter (Exhibit E) in Respondent Gettel's file or in the Board's records of correspondence relating to lost or destroyed drugs or records. At a hearing, the Petitioner would offer no testimony contrary to the tendered testimony of Respondent Gettel and the referenced exhibits regarding the destruction of the subject records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Administrative Complaint filed against the Respondents be dismissed. DONE AND ENTERED this 3rd day of May, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1984. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Gerald W. Gettel 168 Poe Drive Winter Haven, Florida 33880 Drug Mart, Inc., of Lake Wales 608 Lake Wales Plaza Lake Wales, Florida 33853 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wanda Willis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
