The Issue This is a license discipline case in which the Respondent has been charged by Amended Administrative Complaint with numerous violations of Section 458.331(1), Florida Statutes. The violations charged include allegations of insufficient record-keeping, allegations of assisting unlicensed persons to practice medicine, allegations regarding deceptive or misleading statements made in the practice of medicine, and allegations of failure to practice medicine at the required level of care and skill. The Respondent disputes all of the alleged violations.
Findings Of Fact Basic background facts The Respondent is, and has been at all times material and relevant to this proceeding, a licensed physician, having been issued license number ME 0008519 by the State of Florida. Facts regarding DEA inspection On or about September 20, 1988, Drug Enforcement Administration (DEA) investigators Gayle Roux and Jeffrey Gilbert made an inspection of the Respondent's premises located at 16400 N.E. 19th Avenue, North Miami Beach, Florida. At the time of the inspection mentioned immediately above, the Respondent was a registered practitioner with the DEA, having been issued DEA number AW6475847. At the conclusion of the inspection described above, DEA agents Roux and Gilbert were critical of certain aspects of the Respondent's record-keeping practices. However, the evidence regarding the Respondent's record-keeping was too vague and incomplete to afford a basis for concluding whether the criticisms of the two DEA agents were warranted. Cocaine hydrochloride is a salt derivative of cocaine. Both cocaine hydrochloride and cocaine are Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Cocaine is a highly addictive substance with a high potential for abuse. The substances in the possession and control of the Respondent at the time of the DEA inspection described above included cocaine hydrochloride and morphine, as well as other controlled substances. Morphine is a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. The Respondent recorded dispensing information regarding cocaine hydrochloride in patient files, and also recorded some dispensing information in his computer records. The Respondent regularly engaged in the dispensing or administering of controlled substances, but such activity was not a large portion of his medical practice. In other words, he did a small amount of such dispensing and administering on a regular basis. The Respondent charged patient L. C. for the cocaine hydrochloride he dispensed to her. Facts regarding Sphenopalatine Ganglion Blocks The Respondent allowed his nurse, Juliana Wilson, an individual who was not licensed to practice medicine or nursing in the State of Florida, to administer Sphenopalatine Ganglion Blocks to patients when the Respondent was not in his office and without the Respondent's supervision. A Sphenopalatine Ganglion Block involves a tropical intranasal application of cocaine hydrochloride. The application of Sphenopalatine Ganglion Blocks for the treatment of pain constitutes the practice of medicine. The Respondent also provided patient L. C. with 25 grams of a 50 percent dilution of cocaine hydrochloride, on a monthly basis, for patient L. C. to self-administer Sphenopalatine Ganglion Blocks on a daily basis at times when the Respondent was not present. Facts regarding ozone therapy Ozone is represented by the chemical formula O3. Ozone is a strong oxidant. Ozone is generally considered a poisonous substance. Ozone is generally accepted for use as a water purification agent. There is no recognized legitimate medical use of ozone other than as a sterilization agent for materials outside the human body. There is no legitimate medical literature that supports the use of ozone in the treatment of human patients, despite the fact that ozone does kill bacteria and viruses. Ozone is not approved by the Food and Drug Administration to treat human diseases. The intravenous injection of ozone for the treatment of AIDS, cancer, or other illnesses constitutes the practice of medicine. As part of the ozone therapy, the Respondent gave intravenous injections of ozone to patients as a form of treatment. During the course of the treatment of patients B. C. and S. A., the Respondent provided intravenous injections of ozone. The Respondent treated patient S. A. for lymphadenopathy and/or lymphadenitis. Lymphadenopathy is an enlargement of the lymph glands. Lymphadenitis is an inflammation of the lymphatic system. Neither lymphadenopathy nor lymphadenitis should be treated with ozone or hyperbaric oxygen or any form of oxygen therapy and it was clearly below an acceptable level of care to treat patient S. A. with these modalities. The Respondent treated patient B. C. for the Epstein-Barr virus. The Respondent, by treating patient B. C.'s Epstein-Barr virus with ozone, subjected patient B. C. to a treatment of no approved benefit with certain toxicities that might have been harmful and was, at best, useless. In view of patient B. C.'s complaints, it was quackery for the Respondent to administer ozone therapy to the patient. There is no existing cure or successful treatment for AIDS that is accepted by the general medical community. There are, however, helpful treatments. The ozone treatments administered by the Respondent to patients B. C. and S. A. were not administered as part of a controlled experiment. The Respondent did not have a research protocol on file with the FDA regarding the use of ozone therapy to treat patients B. C. and S. A. Utilization of any treatment modality which has not been accepted by the medical community, for which there is no recognized medical literature, for which there is no consensus of medical thought, and which is not approved by the FDA, requires a research protocol. It is a sham to allege that ozone therapy benefits patients in any way. It is grossly incorrect and is a gross violation of the standards of practice to utilize a form of treatment which is neither accepted by the medical community nor accepted by FDA. The use of ozone treatments on patients S. A. and B. C. constituted a gross violation of the standard of care. Facts regarding treatment billing statements During the course of the treatment of patients B. C. and S. A., the Respondent provided intravenous injections of ozone and indicated a procedure code of 99182 on the treatment statements. Procedure code 99182 is a procedure code recognized by Blue Cross Blue Shield of Florida to indicate subsequent hyperbaric oxygen pressurization. Hyperbaric oxygen treatments occur by placing a patient within a pressure chamber and either pressurizing the chamber with oxygen and having the patient breath oxygen, or pressurizing the chamber with air and having the patient breath oxygen through a mask. The patient's body and lungs are thereby exposed to an environment of pressure that is greater than normal atmospheric pressure. Hyperbaric oxygen is used to treat such conditions as decompression sickness (commonly known as "the bends") and carbon monoxide poisoning. The Respondent did not have a hyperbaric oxygen chamber in his office during the period of treatment of patient B. C. The treatment statements were provided to patients A. S. and B. C. by the Respondent for purpose of insurance reimbursement. The Respondent did not place patient S. A. under any form of pressurization. It was fraudulent to bill patient S. A. for subsequent oxygen treatment when patient S. A. was not exposed to any form of pressurization and the Respondent indicated to patient S. A. that he was being treated with an ozone injection. The Respondent billed patients S. A. and B. C. for hyperbaric oxygen treatments when, in fact, he provided ozone injections to the patients. It was fraudulent to bill the patients' insurance company for hyperbaric oxygen when, in fact, the Respondent provided ozone injections to patients S. A. and B. C. The treatment statements furnished by the Respondent included the following language: "Professor and Chairman, American Board of Pain Medicine." The language "Professor and Chairman, American Board of Pain" implies that the Respondent has received formal recognition as a specialist. The American Board of Pain Medicine was not recognized as an approved specialty board of the American Board of Medical Specialties during the years 1988 through 1990. Facts regarding prior discipline Upon review of the Board of Medicine's Final Order in Department of Professional Regulation v. Willner, DPR case numbers 49222 and 73220, DOAH case numbers 86-2064 and 87-1599, the First District Court of Appeal upheld seven of ten violations found by the Board against the Respondent. The findings of guilt in those cases were based upon the Respondent's violation of Section 458.331(1)(u), Florida Statutes, human experimentation without consent [two counts]; violation of Section 458.331(1)(h), Florida Statutes, failing to file a report required by federal law; violation of Section 458.331(1)(t), Florida Statutes, substandard treatment; violation of Section 458.331(1)(d), Florida Statutes, false, deceptive, or misleading advertising; violation of Section 458.331(1)(1), Florida Statutes, soliciting patients through the use of fraud; and violation of Section 458.331(1)(n), Florida Statutes, exploiting patients for financial gain. As a result of those findings of guilt, the Respondent's license to practice medicine was suspended for one year, his license was placed on probation for two years, and he was required to pay a $7,000.00 administrative fine.
Recommendation On the basis of all of the foregoing findings of fact and conclusions of law, it RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Count One of the Amended Administrative Complaint because of insufficient proof. Concluding that the Respondent is guilty of the violations alleged in Counts Two, Three, Four, Five, and Six of the Amended Administrative Complaint. Imposing the following administrative penalties against the Respondent: (a) Revocation of the Respondent's license to practice medicine, and (b) assessment of administrative fines totaling $20,000.00 comprised of a $5,000.00 fine for violation of each of the following Counts: Two, Three, Four, and Five. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of September 1993. MICHAEL M. 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 20th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6795 The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties. Proposed findings submitted by Petitioner: Paragraphs 1, 3, 3: Accepted. Paragraphs 4, 5, and 6: Rejected as not supported by persuasive clear and convincing evidence. To the contrary, the testimony of the two DEA agents, Roux and Gilbert, was vague, ambiguous, and incomplete. The testimony of both of these witnesses was seriously undermined during the course of cross-examination. Paragraphs 7, 8, 9, 10, and 11: Accepted. Paragraph 12: Rejected as not supported by persuasive clear and convincing evidence. To the contrary, the testimony of the two DEA agents, Roux and Gilbert, was vague, ambiguous, and incomplete. The testimony of both of these witnesses was seriously undermined during the course of cross-examination. Paragraph 13: Accepted in part and rejected in part. It is clear that the Respondent recorded dispensing information in patient files. It is clear that he also recorded some dispensing information in his computer records, but the testimony as to the nature of those computer records is somewhat incomplete. Paragraphs 14, 15, and 16: Rejected as not supported by persuasive clear and convincing evidence. To the contrary, the testimony of the two DEA agents, Roux and Gilbert, was vague, ambiguous, and incomplete. The testimony of both of these witnesses was seriously undermined during the course of cross- examination. Paragraph 17: Accepted in substance. Paragraphs 18, 19, 20, 21, 22, 23, 24, 25, and 26: Accepted. Paragraphs 27, 28, and 29: Accepted in substance. Paragraph 30: Accepted. Paragraph 31: Rejected as contrary to the greater weight of the evidence and as not supported by persuasive competent substantial evidence. Paragraph 32: Accepted. Paragraph 33: Rejected as not supported by competent substantial evidence. There is no evidence of injection of liquid ozone (although there may have been injection of liquids containing ozone). Paragraphs 34, 35, 36, 37, and 38: Accepted. Paragraphs 39: Rejected as based on speculation. Paragraphs 40, 41, 42, 43, 44, and 45: Accepted. Paragraph 46: Accepted in substance. Paragraph 47: Accepted Paragraph 48 and 49: Accepted in substance. Paragraph 50: Rejected as subordinate and unnecessary generalities. Paragraphs 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, and 63: Accepted. Paragraphs 64, 65, and 66: Accepted in substance. Proposed findings submitted by Respondent Paragraph 1: Rejected as constituting conclusions of law, rather than findings of fact. Paragraphs 2 and 3: Accepted. Paragraph 4: First two lines and first word of third line accepted. Remainder is rejected as conclusions of law rather than findings of fact. Paragraph 5: Rejected because there is a general lack of clear and convincing evidence as to what took place when the DEA agents inspected the Respondent's premises. Paragraph 6: First clause up to the comma is accepted; the remainder is reejected as a conclusion of law rather than a proposed finding of fact. Paragraph 7: Accepted in substance; the DEA agents did not conduct an audit. Paragraph 8: Rejected as conclusions of law, rather than proposed findings of fact. Paragraph 9: Subordinate and unnecessary details in view of other findings on related subjects. Paragraph 10: Contrary to the greater weight of the evidence. Paragraph 11 and 12: Accepted in substance. Paragraph 13: Rejected as conclusion of law and as, in any event, irrelevant to the issues in this case. Paragraph 14, 15, and 16: Rejected as contrary to the greater weight of evidence. Paragraph 17: Literally true, but irrelevant because the treatment statements contain a statement reading "Professor and Chairman, American Board of Pain and Medicine." Paragraph 18: Rejected as constituting legal arguments rather than proposed findings of fact. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Arthur B. Skafidas, Esquire Mr. Chris Hinson, Legal Intern Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Max R. Price, Esquire Mr. Joel M. Berger Dental Legal Advisors, Inc. 1550 Madruga Avenue, #230 Coral Gables, Florida 33146
The Issue The issue is whether Respondent engaged in an unlawful employment action with regard to Petitioner Billy J. Ford.
Findings Of Fact Mr. Ford is an African-American living in Panama City, Florida. He was born on December 22, 1967. Hanson Pipe is a company that manufactures pre-cast concrete pipe and other structures. It has its headquarters in Charlotte, North Carolina. Some of these pipes and structures manufactured by Hanson Pipes are fabricated for purchase by the Florida Department of Transportation (DOT). Hanson Pipe's Panama City Plant is in the company's eastern region. Hanson Pipe has a total of 61 plants and has 3,500 employees in its eastern region. The plant in Panama City at which Mr. Ford worked during times pertinent, which eventually became a Hanson Pipe facility, was acquired from WPC of Florida, Inc. (WPC) by Hanson Pipe, on July 17, 2004. The principal of WPC was George Wright (Mr. Wright). The plant manager, during times pertinent, was Michael Bascetta, a white person. His assistant was Renwick Chisolm, an African-American. Mr. Ford's first job with WPC was operating a forklift. He would receive printed directions and would load products onto trucks in accordance with those directions. Mr. Wright eventually promoted Mr. Ford to yard foreman. As such, he supervised four people and checked newly manufactured structures and turned in paperwork at the end of the work day. Subsequently he was promoted to Quality Control Technician. As Quality Control Technician (QC Technician), Mr. Ford would ensure that designated standards were met, including standards required by DOT. However, the stamp denoting acceptability would have to be applied by Gracie Dowdy or Terry Pittinger because they were certified quality control technicians, and Mr. Ford was not. When Hanson Pipe took over the WPC's Panama City plant, procedures remained largely unchanged, although some employees noticed that Hanson Pipe was more "strict." One procedure that was changed was the quality control procedure. Hanson Pipe recognized that only American Concrete Institute certified persons could sign off on product quality when the product was destined for DOT use and believed that the method used by WPC did not conform to DOT requirements. Hanson Pipe understood that the failure to comply with state-mandated procedures could result in DOT's District Materials Office withdrawing the plant from the list of qualified plants. This would result in the refusal of DOT to purchase their product. DOT publishes a Materials Manual that sets forth requirements for contractors selling materials to it. Section 6.3.7.2(D) of the DOT Materials Manual requires plants such as the Hanson Pipe plant in Panama City to have enough quality control technicians to "maintain adequate inspection and testing during the production of structures for Department projects." DOT requires that these technicians be certified as American Concrete Institute (ACI) Field Testing Technician, Grade I. DOT requires that all product bought by them have an approval stamp affixed by the ACI-certified technician who inspects the product. In order to adequately comply with this requirement, Hanson Pipe, through plant manager Bascetta, informed Mr. Ford that he would have to pass the ACI examination so that he could become certified. Although Mr. Bascetta was the person who informed Mr. Ford of this, the decision was made by Dana Butterfield, the Quality Control Manager for 20 Hanson Pipe facilities. Mr. Butterfield's office is in Green Cove Springs, Florida. There was no evidence adduced that indicated Mr. Butterfield was aware of Mr. Ford's race. Mr. Ford was given books to help him prepare for the examination and time to study them. Hanson Pipe paid for Mr. Ford's travel to Orlando to take the test, his testing fees, and his hotel expenses. He took the test September 11, 2004, but did not pass it. Hanson pipe paid Mr. Ford's expenses to take the test a second time on November 6, 2004, but he failed it again. When Mr. Butterfield learned on December 6, 2004, that Mr. Ford had failed the test yet again, he told Mr. Bascetta that Mr. Ford was no longer qualified to be quality control technician. Mr. Bascetta, not wishing to discharge Mr. Ford, offered him a position as a forklift driver at a salary of $10.56 per hour. Mr. Ford accepted this reduction from his former $13 per hour. Mr. Bascetta designated Montie Foster, a white employee, as quality control technician. He was informed that he would have to take and pass the ACI certification examination as a condition of holding that position. Mr. Foster took the examination twice, failed it twice, and resigned. Justin Perky was thereafter hired. He took the examination and passed it. He therefore was able to continue in the position of quality control technician. Mr. Ford believed his demotion represented a form of discrimination and harassment, and his attitude began to deteriorate as is demonstrated by the events related hereinafter. On December 8, 2005, Mr. Ford called Webber Ferguson, Hanson Pipes's Employee Relations Manager, on the telephone. Mr. Ferguson works in Hanson Pipe's Charlotte, North Carolina office. Mr. Ferguson provides employee relation support for 61 Hanson Pipe plants in the eastern United States. Mr. Ford complained about his demotion and asserted that Mr. Bascetta was mistreating him. He also alleged that he was a victim of discrimination. In response, Mr. Ferguson went to the plant and conducted an investigation. He interviewed Mr. Hanson, Mr. Bascetta, and some of the minority employees. He found no evidence of discrimination. He did not generate a written report because there was insufficient evidence adduced indicating discrimination or mistreatment of employees. Mr. Ford had some unexcused absences and on January 10, 2005, was "written up" for failure to appear for work on a Saturday as he had agreed to do. He responded to this by threatening to call Hanson Pipe's Human Resources Department. On March 21, 2005, Roy Myers was terminated from his job with Hanson Pipe. Mr. Myers bore the working title, "yard foreman," but he was paid the same as Mr. Ford. There was no job description for "yard foreman," and in fact, no job description for any position in Hanson Pipe. Mr. Ford wanted to be the "yard foreman," but Mr. Bascetta did not need a position like that and therefore did not move Mr. Ford into what was a nonexistent position. Mr. Ford believes this was a manifestation of prejudice. On April 27, 2005, Mr. Ford requested a training topic outline he had signed earlier in the day. By the time Mr. Bascetta took the time to obtain it, he was informed that Mr. Ford had departed the plant. On April 29, 2005, Mr. Bascetta was informed by several employees that Mr. Ford had turned in his uniforms. He did not inform management that he was terminating his employment and indicated to someone that he would return Monday, May 2, 2005. In fact, he never returned. On May 2, 2005, he called the plant office to announce that he had quit. No evidence was adduced that would indicate that Mr. Bascetta is prejudiced toward African-Americans. To the contrary, Mr. Ford said, "I couldn't really say" that Mr. Bascetta was prejudiced. Mr. Ford and other employees would have breakfast with Mr. Bascetta from time to time. Mr. Ford was invited to Mr. Bascetta 's home for a barbeque on one occasion. In the fall of 2005, Mr. Bascetta left Hanson Pipe and opened his own pre-cast concrete operation in Freeport, Florida. He employed Mr. Chisolm as his plant manager. It is unlikely that Mr. Bascetta would seek out and hire an African-American as his plant manager, if he were prejudiced.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Mr. Billy J. Ford's Employment Complaint of Discrimination and Amended Employment Complaint of Discrimination be dismissed. DONE AND ENTERED this 14th day of June, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 14th day of June, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Billy J. Ford 4028 Charles Circle Pace, Florida 32571 Ganesh Chatani, Esquire Fowler White Boggs Banker P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32301 Jerry Girley Qualified Representative 1350 Vickers Lake Drive Ocoee, Florida 34761 Kevin D. Zwetsch, Esquire Fowler White Boggs Banker P.A. Post Office Box 1438 Tampa, Florida 33602 Heather N. Jarrell, Esquire Fowler White Boggs Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Tampa, Florida 33602 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues presented in this cause are promoted through an Administrative Complaint brought by the Petitioner against Respondent dating from April 18, 1983. By that Complaint, Respondent is charged with various violations of Chapters 455 and 466, Florida Statutes and Rule 21G-14.04(4), Florida Administrative Code. In particular, it is contended that Respondent in the course of the treatment of dental patients committed various acts of misconduct with those three female patients. These accusations include sexual misconduct, administration of nitrous oxide to himself, consuming beer while treating patients, and bribery.
Findings Of Fact At all times pertinent to these proceedings, Respondent, William Terry Woodward, has held a current and valid license from the Board of Dentistry in Florida. That license number is 0004046. During the relevant times of this Administrative Complaint, Respondent was practicing dentistry at 2425 West University Boulevard, Jacksonville, Florida. SHERRY MARTIN Respondent had treated Sherry Martin as his dental patient beginning 1977 through the initial part of 1981. In February, 1931, Martin had four teeth extracted by the Respondent. In all, Martin saw the Respondent approximately five or six times related to the extractions. Two visits involved the extraction of the teeth and the other visits concerned the placement of packing and the removal of that packing associated with the suturing of the wounds. One of the visits by Mrs. Martin occurred on March 3, 1981. She had made arrangements for this visit by contacting the office of the Respondent on the morning of March 3, 1981. She was given an appointment for late that afternoon. The purpose of the visit was to have packing examined where food had been trapped in the location of one of the extractions. Her specific complaint was that her gum had grown over the packing. Martin arrived at the Respondent's office at approximately 5:00 p.m. Subsequent to her arrival, a dental assistant placed Martin in an area referred to as the "middle treatment room." Martin was the last patient to be seen by Dr. Woodward on this date. In addressing the problem with the packing which was involved with a dry socket experienced by the patient, Respondent elected to utilize nitrous oxide to sedate the patient. This was an appropriate choice of anesthesia. While treating the patient on this date, Respondent was drinking a beer in her presence and inquired of Mrs. Martin if she would have opposition to this consumption and she responded she would not. The treatment course started at approximately six o'clock and lasted for more than an hour. During the course of the treatment, Martin was moved from the "middle treatment room" to the "end treatment room" for the conduct of the procedure. While providing this treatment, Respondent was not attended by any other person and the lights in the "end treatment room" were off. In this regard, the last remaining office worker, a cleaning woman, left the office building prior to the conclusion of the treatment. Dr. Woodward's father was in and out of the office building while involved in mechanical repairs on a well and pump which served the Respondent's office building. He, as was the case with Regina Gullman, the cleaning woman, was not in the building during the entire course of the treatment of Sherry Martin. While the treatment was being given to Martin, there were interruptions related to conversations in the office dealing with Respondent's father's work and a telephone call which took fifteen to twenty minutes for the Respondent to conclude. This call dealt with air conditioning problems being experienced in the office. Respondent also left the building to examine his father's repair work. Eventually, the Respondent addressed the irritation which Martin was complaining about by removing the packing and washing out the socket where the tooth had been extracted. While Martin was undergoing treatment on March 3, 1981, she claims to have been undressed and sexually assaulted by the Respondent and to have seen the Respondent use nitrous oxide on himself. At the time of the sexual assault, Mrs. Martin states that her clothes had been removed and that she was nude and Dr. Woodward was on top of her while she was reclined in a dental treatment chair and he was having intercourse with her. No corroborative testimony from other witnesses, nor tangible evidence in corroboration was offered in support of these allegations made by the witness Martin. Expert opinion testimony relating to the debilitating properties of nitrous oxide, the physical examination of Mrs. Martin and effects, and lay testimony have been reviewed in an effort to determine the veracity of Mrs. Martin's claims. After weighing that evidence, the proof is not convincing that the facts referred to in this paragraph concerning the actions of the Respondent transpired. MARGARET WRIGHT Margaret Wright was seen as a patient of the Respondent beginning in the fall of 1980. On November 4, 1980, Wright was seen by the Respondent for treatment respecting a permanent plate. Specifically, Woodward fitted and placed the permanent plate. This procedure took between forty-five minutes and an hour. The time of the treatment was late in the afternoon. Nitrous oxide was used to comfort the patient when her teeth were being ground to facilitate the installation of the partial plate. The utilization of nitrous oxide was an appropriate choice of anesthesia. While the treatment was being administered to Mrs. Wright, no other office staff personnel were present with Dr. Woodward and the lights were off. Before removing the mask through which the nitrous oxide was being administered, Woodward kissed the patient Wright on the cheek and asked her if she minded if he had a beer. She replied that she did not and he left the room and returned with a beer. He then removed the mask and helped the patient stand up by the treatment chair. Woodward then stood up against the counter in the patient treatment room, with his back to it, and pulled Wright toward him and put his arms around her and kissed her on the mouth. Wright had not encouraged Woodward's advances and pushed Woodward away. This embrace was seen by the cleaning woman, Regina Gullman. Wright asked Woodward who the individual was, to which he replied, "Did she see us?", and Wright stated that she did. It was around 7:30 p.m. when the patient left the building with Dr. Woodward. Wright had asked the Respondent to give her a ride home because it was raining hard and her son, who had brought her to the office, had left. When they exited through the kitchen area, Regina Gullman, the cleaning girl, was still in the office. A man was observed outside the office next door when they had exited through the back door of Dr. Woodward's office, and Woodward pushed Wright back into his office. Wright then asked the Respondent if he was allowed to have patients after hours and he replied, "I just don't want any talk started." Respondent and Wright waited for a few minutes until the individual had gone back in the other office building. They then went to the Respondent's car and he took Wright home. When they arrived at the patient's home, Woodward asked her if she would like to have dinner with him some time and she told him to come see her at work and she would talk to him. She told Woodward that she worked at a restaurant. Woodward did, in fact, come and see her. ANNA S. GERMAIN Anna S. Germain was a dental patient of the Respondent's, who had been fitted for braces by the Respondent. On one visit in early 1981 for the purpose of making adjustments to the orthodontics, particularly related to an arch wire, Germain was seen by the Respondent at approximately 4:30 p.m. in the afternoon. Nitrous oxide was used on the patient for purposes of comfort while Respondent was installing a new arch wire. While the nitrous oxide gas was being administered to the patient, Shirley Black, the receptionist, came to the treatment room and told Dr. Woodward goodnight and left the office. During the course of this treatment of the patient Germain, Dr. Woodward was unattended by other office personnel. The Respondent asked Germain if she minded if he got a beer, and she replied "no." Respondent left the room and returned with a beer. He then continued his work on the patient and while leaning over her, kissed her on the mouth. The patient pushed him away and indicated that she did not appreciate his advances. Respondent replied that he "had wanted to do that for a long time." The overture by Dr. Woodward was not solicited. At the time Woodward kissed her, she could taste beer on his breath. This established the fact that he drank a beer in her presence while she was undergoing treatment. Woodward finished the adjustments to the braces and the patient left the office. On a subsequent date, following the incident referred to in the prior paragraph, Germain returned to the Respondent's office to pay an outstanding bill of her grandmother's owed to the Respondent. Woodward spoke to Germain in the office and then followed her out to her car. He then asked her if she had heard about the news of his successful defense in the criminal court related to Sherry Martin. Germain responded that she had, in that her mother had told her about it. Woodward asked Germain if anyone had come to see her, an attorney or someone from the Department of Regulation, and she replied that they had not. He told her that if anyone did come to see her, that she was to forget what had happened in the incident of early 1981 reported above and that he would take care of her outstanding dental bill. At that time, that dental bill was approximately $800.00. In this conversation, Woodward encouraged Germain to reply to questions to the effect, "You don't know anything." DR. JOHN R. HOLLAND Dr. John R. Holland is a practicing dentist in Jacksonville, Florida, the community in which the Respondent practices. As a consequence, Dr. Holland was qualified for purposes of establishing community standards for dental care within the dental community of Jacksonville, Florida, related to acceptable standards of ethical and professional conduct for dentists within that community. Dr. Holland is a graduate of Florida State University and the University of North Carolina Dental School. He has practiced general dentistry in Jacksonville for approximately nine years and is a member of various societies and associations related to the practice of dentistry. His testimony established that kissing patients while treating those patients, drinking beer in the presence of those patients while they are undergoing treatment, treating a patient using nitrous oxide with no one in attendance and turning off the lights during the course of treatment with no one in attendance, constitute violations of acceptable ethical and professional standards related to the Jacksonville dental community. This testimony was based upon hypothetical questions related to facts pertaining to the patients Martin, Wright, and Germain.
The Issue The issue in the case is whether the Petitioner was harassed on the basis of national origin or discriminated against on the basis of a disability.
Findings Of Fact The Petitioner began employment with the Respondent in the summer of 1994 and was terminated from his employment on July 28, 1999. The Respondent operates a machine shop where different types of large metal parts are fabricated according to customer order. The Petitioner was employed as a "mill operator" in the "caterpillar" department. As a mill operator, the Petitioner was required to load metal parts into machines for further processing, check the quality of his work, and return the parts to a container of finished parts. At all times material to this case, the Respondent had a policy prohibiting employee harassment on the basis of numerous grounds including "national origin." The policy provided that any employee who believed that such harassment was occurring should report it immediately to a supervisor or to another company official. The non-harassment policy was included in the employee handbook. The Petitioner received the handbook when the Respondent employed him and was aware of the policy. The Petitioner, of Polish origin, asserted that at various times he was harassed on the basis of national origin; specifically, he was sometimes addressed as "pollock" by some co-workers. Although the evidence establishes that employees, perhaps including the Petitioner, occasionally referred to each other by ethnic slurs (i.e., "pollock," "speedy Gonzalez," and "buddha") the testimony regarding such incidents was anecdotal, and the times and dates of such references are uncertain. The evidence fails to establish that the Petitioner was subjected to a hostile work environment or was harassed on the basis of national origin. Other than as set forth herein, the evidence fails to establish that the Petitioner or any other employee ever advised a supervisor or a manager that co-workers were making ethnic references or that any employee felt harassed by the behavior. In March 1998, a note was taped to the men's restroom door reading "Polish Department – Jerry's [sic] Office." The Petitioner reported the note to his supervisor. A meeting was held with the Petitioner's co-workers on March 16, 1998, where the Respondent's managers advised the employees that such behavior was not acceptable and that similar events in the future would result in disciplinary action against the perpetrators. The Petitioner also asserts that he was discriminated against on the basis of an alleged disability. In December 1998, the Petitioner had a total replacement of his right hip. He was medically cleared to return to work on March 1, 1999, with restrictions of not working more than 10 hours per day for two weeks and not lifting more than 20 pounds. The Petitioner reported for work on March 4, 1999, but was sent home by his supervisor because there was no work that met his restrictions, particularly the weight restriction. Generally the metal parts involved in the Respondent's manufacturing process weighed in excess of 20 pounds. By March 18, 1999, the restrictions were lifted and the Petitioner returned to work without incident until July 1999. On July 6, 1999, the Petitioner received a written warning from a plant supervisor who determined that the Petitioner was not properly inspecting parts being produced in the Petitioner's machine. An excessive number of parts were not within acceptable fabrication tolerances and had to be "re- worked." The warning specifically provided that failure to improve the quality and inspection of parts would result in termination of employment. On July 27, 1999, the Petitioner reported hip pain to his physician and was again placed on a restricted workload that included no lifting of weight in excess of 20 pounds and no "twisting" until the physician determined that the pain had been resolved. Based on the medical restrictions and his experience, the Respondent was unable to locate work suitable for the Petitioner. The Petitioner's employment was terminated because there were no jobs available that complied with the Petitioner's medical restrictions. Review of the Petitioner's performance evaluations establishes that he was generally an average worker who was sometimes warned about becoming too involved in other employees' activities. His evaluations of August 1996 and September 1998 contained references to such involvement and indicated that he should "spend less time worrying" about other employees. The 1996, 1997, and 1998 performance evaluations suggested that the Petitioner obtain additional training in order to advance his career. The Respondent offered a program to fund such training, and notices regarding the training were posted on a bulletin board accessible to employees, but the Petitioner did not take advantage of the program. At the time of the July 1999 medical restrictions, the Petitioner's skill set did not qualify him to perform tasks other than as a mill operator using the machine for which he was originally employed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief filed by Jerzy Josefik in this case. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 30th day of May, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jerzy Jozefik 9605 Southwest 27th Avenue Ocala, Florida 34476 Grant D. Petersen, Esquire Ignacio J. Garcia, Esquire Haynsworth Baldwin Johnson & Greaves LLC 600 North Westshore Boulevard, Suite 200 Tampa, Florida 33609-1117 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner created a sanitary nuisance in violation of Florida Administrative Code Rules 64E- 6.022(1)(l) and 64E-6.022(1)(q) and, if so, the proper penalty.
Findings Of Fact The Department of Health, Duval County Health Department (Department), is the state agency charged with enforcing the statutory and regulatory provisions pertaining to septic tank installations and repairs in Florida, pursuant to Section 381.0065, Florida Statutes, and Florida Administrative Code Sub-Chapter 64E-6. Mr. Hoag is registered as a Septic Tank Contractor pursuant to Florida Administrative Code Rule 64E-6.019. He was issued registration no. SR0911053. It was necessary to install a new septic tank at residences located at 8817 and 8821 Bellrose Avenue, in Duval County, during March 2004. The owner of the premises, Ben Lewis, contracted with Florida Septic Tank Service, Inc., to accomplish this work. A repair application was submitted to the Department on March 8, 2004, and was approved. Florida Septic Tank Service, Inc., engaged Mr. Hoag, of Plumbing and Contracting by Hoag, to accomplish the plumbing portion of the operation. Sometime on April 8, 2004, the exact time not being estimated, Mr. Hoag disconnected the stub from the residences that ran to the former septic tank. This was done so that pipes could be run to a new septic tank. He neither connected the line that he disconnected to the new septic tank nor capped the pipe. Mr. Hoag requested the occupants of the residences to refrain from using the sanitary facilities within the residences until he was able to continue his work on April 9, 2004. Despite this request, the facilities were used between April 8, 2004, and April 9, 2004. On April 9, 2004, sometime prior to 11:45 in the morning, Colleen Bierbach, an inspector with the Department, entered the premises of 8817 and 8821 Bellrose Avenue and observed household wastewater and human fecal matter on the ground at the terminus of the stub. Pictures were taken that memorialized the nature of the deposits. Inspector Scott Turner, of the Department, issued a citation to Mr. Hoag that indicated that the offense occurred at 11:45 a.m. on April 9, 2004. The citation reflected a violation of Section 386.041(1)(a), Florida Statutes, and Florida Administrative Code Rule 64E-6.022(1)(l) and (q). With regard to Florida Administrative Code Rule 64E-6.022(1)(l), the citation charged only that he committed, "Gross negligence, incompetence, or misconduct which causes no monetary harm to a customer." The citation was accepted by Mr. Hoag on April 15, 2004. Mr. Hoag's failure to either connect the line to the new septic tank or to cap the outflow line, caused an unsanitary and unsafe condition to exist at 8817 and 8821 Bellrose Avenue, Duval County, on April 9, 2004. No evidence was adduced as to the exact time that the pipe was opened on April 8, 2004, or as to the exact time that the pipe was closed and the area decontaminated on April 9, 2004.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Duval County Health Department, dismiss the citation issued to Mr. Hoag on April 9, 2004. DONE AND ENTERED this 15th day of February, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of February, 2006. COPIES FURNISHED: Catherine R. Berry, Esquire Department of Health 515 West Sixth Street Jacksonville, Florida 32206-4311 Robert J. Hoag Plumbing & Contracting by Hoag Post Office Box 7931 Jacksonville, Florida 32238 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issues to be determined are whether: (1) a violation of section 556.107(1)(a), Florida Statutes, occurred; (2) relating to a “high-priority subsurface installation” under section 556.116(1)(b); (3) which proximately caused an “incident” under section 556.116(1)(c); (4) for which a fine may be imposed against the violator in an amount not to exceed $50,000.00.
Findings Of Fact Stipulated Facts Sunshine 811 is the free-access notification system established under the Underground Facility Damage Prevention and Safety Act (the Act). See §§ 556.101 – 556.116, Fla. Stat. (2017). Section 556.105(1)(a) requires an excavator before beginning any excavation or demolition to provide Sunshine 811 with certain information that will allow a utility company to mark the location of underground facilities in the area of the proposed excavation. On January 8, 2018, Francisco Plascencia, an employee and agent of Medalist, was operating a trackhoe excavator on the property located at or around 1380 SE Cove Road, Stuart, Florida. While Medalist was digging to uproot a tree, the trackhoe excavator ruptured a six-inch underground gas- distribution main owned and operated by Peoples Gas. Before beginning the excavation, Medalist did not “call 811” or otherwise notify Sunshine 811 about the excavation. Accordingly, the excavation site did not contain “locate marks” identifying on the surface of the earth the location of the six-inch underground gas main. The Parties Medalist is owned by Jeremy LeMaster who is a licensed building contractor. Since 2007, Medalist has built over 500 homes in Martin County. Peoples Gas is the utility company that owns and operates the underground gas-distribution main that is the subject of this proceeding. Peoples Gas is a member operator of Sunshine 811 and submitted the High Priority Subsurface Installation Incident Report and Commitment regarding the incident at 1380 SE Cove Road, Stuart, Florida. The Incident Joshua Turpie is the senior utility technician with Peoples Gas who performs line locates when Peoples Gas gets tickets from Sunshine 811. Mr. Turpie testified that if a contractor or homeowner calls Sunshine 811 before digging, it comes to him and he has a 48-hour window in which to mark the location of any underground gas line. This is done by placing flags, painting the ground and taking pictures. On the morning of January 8, 2018, Mr. Turpie responded to a location on Cove Road at the request of his supervisor, Scott Tinney. Mr. Tinney informed him that a drastic drop in gas pressure was occurring, and it seemed to be in the area of Mr. Turpie’s location. At the location, Mr. Turpie found fire trucks and police cars, and saw that a gas-distribution main was ruptured. After assessing the situation and further discussing it with his supervisor, who was now on-site, he assisted Peoples Gas contractor with the “make safe” operation. This entailed fully exposing the gas main and using a “squeeze off tool” to clamp the main at a location upstream of the rupture to stop the flow of gas. Mr. Turpie arrived on scene at 9:40 a.m. and the gas flow was stopped at 11:15 a.m. At the scene, Mr. Turpie also checked on his computer and saw that this particular gas- distribution main was designated as a high priority main because “it feeds basically everything in Stuart.” An outage at this type of main would have a high customer impact. This particular gas main serviced 50 percent residential and 50 percent commercial customers. For excavation work in the area of a high-priority gas main, Mr. Turpie would not only have flagged and marked the location, but also would have called the excavator and explained the high-priority nature of the gas main. In addition, a notification letter would also be sent to the excavator regarding the high-priority gas main and providing the contact information of relevant Peoples Gas employees. Peoples Gas would also have the opportunity to determine if it needed to place an employee on-site during excavation. A contractor for Peoples Gas repaired the gas main. Peoples Gas employees also “locked off” every customer’s meter. Four hundred and nine individual meters had to be physically locked off before restoration efforts could begin. Restoration involved re-introducing gas to the system, purging the lines of air, and physically turning on each meter, checking gas appliances, and checking for leaks. This process was labor intensive and involved deploying 36 Peoples Gas employees from around the state and two contractors from Miami. Peoples Gas set up a command center to which the employees from around the state reported. There, the teams were provided with outage lists of the metered customers in order to conduct the process of restoring service. Service restoration continued through the evening of January 9. On the morning of January 10, the deployed employees were sent back home and the local teams completed restoring service to residences. Community Impact At the location of the gas main rupture, first responders (i.e., fire rescue and police) set up a command center, redirected traffic away from that part of Cove Road, and evacuated nearby residences and a nearby school. The customers without service during the outage included two hospitals, four nursing homes, a fire station, schools, a correctional facility, a church, businesses, and residences. Property Damage and Service-Restoration Costs Ruth Weintraub is the Peoples Gas supervisor for Damage Prevention & Public Awareness. Ms. Weintraub testified that she did an accounting of the expenses incurred as a result of the gas line rupture. Ms. Weintraub calculated the amount based on: (i) lost gas in the line; (ii) labor; (iii) equipment; (iv) lodging and meals; (v) charges from the third•party contractors; and (vi) administrative costs. The amount was no less than $127,000.00, which would increase as Peoples Gas finalized its accounting. Medalist’s Actions Mr. LeMaster testified that he was alerted to the incident by a text from a field supervisor who had called 911 to report the event. Mr. LeMaster arrived at the scene within approximately 30 minutes after getting the text, and remained at the site until there was complete clearance. Mr. LeMaster testified that his employees are trained in Sunshine 811 procedures. “[T]hey don’t dig without having locates.” He surmised that Mr. Plascencia thought he was doing a good thing by using the trackhoe to remove a tree which was in the center of a staked driveway at the job site. Mr. Plascencia was not instructed to remove the tree. In fact, the only work to be done that day was the placement of silt fences. Prior to this incident, Medalist had never hit any underground lines and always contacted Sunshine 811 before digging. Mr. LeMaster testified that Mr. Plascencia was immediately terminated for not following company policy and procedures. Sunshine 811 Lance Horton is the manager for Pipeline Safety & Occupational Services at Peoples Gas. Mr. Horton also served on the Board of Directors of Sunshine 811. He explained that the Sunshine 811 call and locate procedure is “a damage prevention program in the effort . . . to protect underground facilities, not just gas but also electric, communication facilities, water, [and] sewer.” It is important to prevent “incidents such as this,” which put utility employees, first responders, and members of the public in peril.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was licensed as an Installer A-Installation, Service and Repair of LP Gas Appliances and Equipment in the state of Florida. At all times material to this proceeding, Respondent was an Independent Contractor working for Peoples Gas Systems, Inc. (Peoples Gas) pursuant to an Agreement For Contracted Work dated April 16, 1990, executed by the Respondent and Peoples Gas on May 9, 1990. Under this agreement the work to be performed by the Respondent, among other things, was to turn on gas for customers of Peoples Gas using procedures found in Peoples Gas Safe Job Procedure Manual. On January 31, 1991 in accordance with the above referenced agreement, and pursuant to a written work order from Peoples Gas, Respondent proceeded to the residence of Steven J. and Debra J. Fernaays, Jr. located at 4336 20th Street, St. Petersburg, Florida for the purpose of conducting a Liquefied Petroleum Gas (LP Gas) service which consisted of turning the gas on at the residence. The gas had been turned off by Peoples Gas in August 1990 at the request of the previous owners. Upon arriving at the Fernaays' residence at 2:15 p.m. the Respondent: (a) determined what gas appliances were in the home; (b) determined that all gas valves to the stove burners and oven were closed and that the stove had no pilot lights (stove had electronic ignition); (c) determined that the gas valve to the water heater was closed; (d) determined that the main valve on the outside tank was closed (at this point it was discovered that there was no test-tee located in back of the regulator for use in performing the manometer test); (e) loosened the nut on the first coupling to the rear of the regulator to remove the bonnet (a bonnet is a plug-like device used to prevent gas from escaping a tank after a "turn-off"). There was no bonnet in place so the nut was retightened on the coupling; (f) turned on the gas by opening the main valve and heard the system "lock-up", but did not hear the regulator "singing" (which indicates that the system is filled with gas and there are no noticeable gas leaks in the system); (g) attempted to light the burners on the stove but could not because there was no gas getting to the stove, so the stove burners were turned off and the main valve at the tank was turned off; (h) followed the gas line from the tank checking each coupling until the bonnet was located and removed, retightened all couplings that had been loosened; (i) turned the gas back on at the tank, heard the system "lock-up" but did not hear the regulator singing. Checked all couplings around the tank, those on the lines going to the house and inside the house up to the water heater for leaks with soapy water but no leaks were found; (j) lit the pilot light and main burner on water heater and found the flame height and color to be normal which indicated proper gas pressure at water heater; (k) checked the balance of fittings inside the house that were visible for leaks with soapy water but found no leaks; (l) lit all stove burners and oven and found flame height and color to be normal which indicated proper gas pressure at the stove; (m) advised Debra Fernaays, who was present in the house during the "turn-on", that the control knob on the oven valve was missing and that she should not use oven until it was replaced. Also, brought Debra Fernaays' attention to the odor of the gas that had escaped while purging the lines of air so she could recognize the odor of the gas in the event of a leak and; (n) went outside to write ticket. After clearing nose of gas odor came back in the house to make a "sniff-test" but did not detect any odor of gas. The Respondent then left the Fernaays' residence at approximately 3:00 p.m. Within a few minutes (4-5) of leaving the Fernaays' residence, Respondent contacted Peoples Gas to advise the service department that he had not performed the water manometer test on the gas system at the Fernaays residence because there was no test tee. Respondent was placed on hold and because the telephone was not covered and there was a hard rain, he hung-up. Respondent then proceeded to find another telephone out of the rain which took approximately 20-30 minutes. This time Respondent was put through to Robert Louth, Service Manager Supervisor thereupon Respondent explained what he had done to check the gas system at the Fernaays but had not performed the water manometer test because of the missing test-tee, and asked for instructions. Louth advised Respondent that the matter would be taken care of the next morning. The telephone conversation between Louth and Respondent occurred at approximately 3:30 p.m. on January 31, 1991 and at approximately 6:30 p.m. that same day the Fernaays' residence was destroyed by an explosion as a result of gas leaking from the system and being ignited. The Fernaays were in the home at the time of the explosion and both suffered burns to their bodies as a result of the explosion. The Respondent always carried two manometers in his service truck and had those manometers with him when he arrived at the Fernaays' residence on January 31, 1991 but because the type work Respondent had contracted for with Peoples Gas did not require him to carry extra fittings, such as a test tee, he did not have a test tee with him on that day. This was the first instance that Respondent could remember where he did not perform a manometer test in connection with numerous turn-ons for Peoples Gas. The procedures used by the Respondent in turning on the gas at the Fernaays's residence on January 31, 1991 was in accordance with the Peoples Gas Safe Job Procedural Manual. The method used by the Respondent to check for gas leaks in the Fernaays' gas system is not as accurate as the manometer test for testing a gas system for gas leaks, particularly where small or minor leaks are concerned. However, the Respondent's method is an acceptable and appropriate method that is acceptable within the industry just as the test described in Appendix D, b.(2), Suggested Method For Checking Leakage, of NFPA No. 54, 1988 edition adopted by Rule 4B-1.001, Florida Administrative Code, and incorporated by reference in Rule 4B-1.023, Florida Administrative Code, which is also not as accurate as the manometer test described in Appendix D, b.(1), NFPA No. 54, 1988 edition where there may be small or minor leaks but it is a suggested method under the rule for checking gas leakage. During the evening of January 31, 1991 after the explosion and again during the day of February 1, 1991, Martin Brett employed by the Department as an LP Gas Inspector, several employees from Peoples Gas (Department has filed an Administrative Complaint against Peoples Gas in this matter) and Bill Buckley, owner S.E.A., Inc. were involved in rummaging through the debris at the site of the Fernaays' residence and extracting the different parts of Fernaays' gas system, particularly the piping, which was ultimately delivered to the S.E.A. warehouse by either S.E.A. or Peoples Gas. After delivery of the pipe to the S.E.A. warehouse, S.E.A. attempted to reconstruct the configuration of the pipe lines as they existed before the explosion. Under this reconstructed configuration there was a gas pipe line of approximately 1/2 inch in diameter that terminated in either the closet or in the ceiling of the area around the closet that was not capped. It was the Department's contention, based on the reconstructed configuration, that this pipe was uncapped at the time of turn-on by Respondent and that it was the gas leaking from this uncapped line that eventually ignited and destroyed the Fernaays' home. There was insufficient evidence to show that Brett or anyone from the Department exercised any control over the removal, transporting, storing or reconstruction of the configuration of the pipe. Neither Bill Buckley as an individual or as the owner of S.E.A. nor the employees of Peoples Gas were working for the Department in regard to removing, transporting, storing or reconstructing the pipe. None of the employees of Peoples Gas, Bill Buckley or Martin Brett testified at the hearing in regard to the removal, transporting, storing or reconstructing the pipe. The only witness called by the Department to testify was Edgar Lee Martin, Jr., employed by the Department as an LP Gas Inspector/Supervisor, who did not become involved in the investigation until February 5, 1991, which was after the removal, transporting, storing and reconstruction of the pipe had been completed. Martin relied solely on what he heard from Brett and Buckley in reaching the conclusion that there was an uncapped gas line pipe in the Fernaays' gas system on January 31, 1991 at the time of the turn-on, and it was gas leaking from the uncapped pipe that ignited and destroyed the Fernaays' home. Roger Owens, the Respondent's expert witness in the area of analysis of explosions caused by gas, opined that assuming there was a "lock-up" of the system and no singing of the regulator after the "lock-up" at the time Respondent turned on the gas at the Fernaays on January 31, 1991 and that the flames were of proper height when the stove burners and water heater were lit, there could not have been such a significant leak (open pipe 1/2 inch diameter) at the time of the turn-on by Respondents as alleged by the Department. There was insufficient evidence to show that the configuration of the gas lines as reconstructed by S.E.A., Inc. was of the same configuration as existed in the Fernaays' gas system on January 31, 1991 at the time Respondent turned on the gas at the Fernaays' residence. Likewise, there was insufficient evidence to show that there were any fittings within the gas line configuration as existed in the Fernaays gas system on January 31, 1991 that Respondent failed to check for leaks. There was insufficient evidence to show that there was an open fitting in the Fernaays' gas system at the time Respondent turned on the gas on January 31, 1991 as indicated by the reconstructed configuration of the gas lines by S.E.A., and as alleged by the Department. The uncontroverted testimony of Respondent that when he turned the gas on for the second and last time he heard the system "lock-up", and although close enough to hear the regulator "sing", did not hear the regulator sing is credible. This testimony along with the testimony of Roger Owens supports the position that there was no leaks in the system at the time Respondent turned the gas on at the Fernaays' residence on January 31, 1991, and specifically no open fitting of approximately 1/2 inch in diameter in the system as alleged by the Department.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order dismissing the administrative complaint against the Respondent, Norman J. Smith. DONE and ENTERED this 26th day of August, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Other than that the Respondent did not perform a manometer test which is adopted in Findings of Fact 5 and 8, proposed finding of fact 3 is rejected as not being supported by substantial competent evidence in the record. Adopted in Findings of Fact 4 and 8. Adopted in substance in Finding of Fact 6 except for that portion concerning an "uncapped pipe" which is rejected as not being supported by substantial competent evidence is the record. Not stated as a finding of fact but what the expert witness testified to, however, see Findings of Fact 4, 10 and 17. Rejected as not being supported by substantial competent evidence in the record. Rulings on Proposed Finding of Fact Submitted by the Respondent Respondent's proposed finding of fact are set out in unnumbered paragraphs which shall be referred in this Appendix as numbers 1 through 19. Covered in the Preliminary Statement, otherwise unnecessary as it goes to the credibility of the witness rather than being a finding of fact. - 6. Adopted in substance in Findings of Fact 11, 12, 13, 14 and 15. 7. - 8. More of an argument than a finding of fact, otherwise subordinate, or unnecessary, or not material or relevant. Adopted in substance in Findings of Fact 3, 7 and 8. - 15. Adopted in substance in Finding of Fact 4. 16. - 17. Adopted in substance in Finding of Fact 5. Not stated as a finding of fact by what Martin testified to, otherwise unnecessary or subordinate or not material or relevant. Adopted in Finding of Fact 4. COPIES FURNISHED: Lisa S. Santucci, Esquire Department of Insurance and Treasurer 412 Larson Building Tallahassee, FL 32399-0300 Zala L. Forizs, Esquire Blasingam, Forizs & Smiljanich, P.A. P.O. Box 1259 St. Petersburg, FL 33731 Tom Gallagher, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The issue is whether Dr. Namen is entitled to a re-grading of the score which he received on the written clinical portion of the podiatry examination given in Orlando in July 1990.
Findings Of Fact Dr. Namen is a candidate for licensure as a podiatrist and sat for the clinical portion of the podiatry examination administered in Orlando in July 1990. At the time of the final hearing, Dr. Namen challenged the Department's grading of his answers to questions 3, 47, 118, and 145. At the final hearing, the expert for the Department, Dr. Warren Simmonds, agreed with Dr. Namen that the challenges to the grading of questions 3 and 118 had merit. Dr. Namen's score was increased so that Dr. Namen would be entitled to a passing score if the answers he gave to either of the two remaining questions under challenge, questions 47 and 145, were correct. Question 145 is based on case history #50, concerning a patient with a painful left ankle. Although the case history does not state directly that the joint is inflamed, it does state that "the joint is slightly warm" which is an indication of the presence of inflammation, which is confirmed by the patient's report of pain in the joint. Question 145 asked which of a number of possible treatments was the "least indicated (emphasis in original)." Dr. Simmonds testified that the answer chosen by the Board, "systemic adrenal corticosteroid therapy," was the least indicated treatment because of the side effects of steroids. Dr. Simmonds believes that steroids should not be used unless there is some acute inflammatory reaction which needs to be controlled. The best treatment, or the treatment of choice, is a non-steroidal anti-inflammatory drug. Dr. Namen contends Tylanol is the least indicated treatment because all available choices other than Tylanol were anti-inflammatory drugs, and the case history provides an indication of inflammation. Tylanol relives pain but has no anti-inflammatory effect, and is therefore the least appropriate treatment. The question stem is somewhat unusual because it asks the candidate for the "least indicated" treatment. Since Tylanol has no anti-inflammatory effect at all, Dr. Namen's testimony was persuasive that the "least indicated" treatment was Tylanol. Among the remaining choices, systemic adrenal corticosteroid therapy is the least appropriate among that group, but all answers within that group are better answers than administration of Tylanol. Question 47 is based on case history 19 concerning the appropriate dose of anesthetics to be used in a procedure for the removal of toe nails on a 58- year-old, Caucasian male weighing 150 pounds. The case history states that a certain combination of two anesthetics was used, bupivicaine and lidocaine. The question asks "how close to toxic dose would use of the entire amount bring the patient." The Department's answer was that the stated dose would be within 96 percent of a toxic dose; Dr. Namen believed that the use of the anesthetics in the amounts stated would bring the patient only within 66 percent of a toxic dose. The crux of the question is whether the toxicities for the two anesthetics interact in such a way that their toxicities must be added, or whether the correct answer involves only the calculation of the toxicity of the drug with the higher level of toxicity. On balance, the Department's answer is the most persuasive. The article in the Journal of Anesthesiology written by deJong and Bonin concludes, based upon their research which is described in the article, that local anesthetic toxicity for lidocaine and bupivicaine are essentially additive. The letter from Dr. Orta only states that the administration of both the lidocaine and bupivicaine at the doses described in the question are "well below toxic level." This observation does not answer the question posed, which is just how far below the toxic level use of the mixture stated would bring the patient. The letter from Dr. Padron, also a board certified anesthesiologist offered by Dr. Namen, says that "studies on compounding local anesthetics were done in animals and it was found that the toxicity was synergistic rather than additive," but no study was offered in evidence. The study in the Journal of Anesthesiology the Department offered into evidence is to the contrary. The evidence based on actual research is more persuasive. Dr. David's letter only reports in a hearsay fashion the opinion of an unidentified pharmacologist, and is entitled to little weight.
Recommendation It is therefore, RECOMMENDED that a final order be entered by the Department of Professional Regulation raising Dr. Namen's score, and designating him as having successfully completed the examination in clinical podiatry. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of April 1992. WILLIAM R. DORSEY, JR. 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 April 1992.
The Issue The issue for determination is whether Respondent, a custom slaughterer, committed violations of Chapter 585, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against the permit granted him by Petitioner.
Findings Of Fact Respondent is Wayne Brannon, operator of a custom slaughtering or processing establishment. Respondent operates the establishment subject to regulation by Petitioner and is the holder of permit no. C-20, issued by Petitioner. On March 6, 1991, Dr. James O. Whidden and Terry D. Watson conducted an inspection of Respondent's establishment. Watson observed Respondent pull a water sample from the facility's plumbing and run a test on that sample to determine the chlorine content of the water. Watson also observed that the test failed to reveal the presence of any chlorine in the water. Upon noting the test results, Respondent remarked to Watson that "I forgot to put any in it." This was a reference to Respondent's failure to put chlorine in his personally-owned water system used to provide water to the facility. Still grease was present on the wall of the establishment's processing room and was observed by Whidden who also noted the lack of hot water at a hand wash basin in the facility. Sausage sticks in the processing room were observed by Whidden. Some of the sausage sticks had not been cleaned. Artificial lighting in the slaughter area of Respondent's facility at the time of the inspection by Whidden and Watson was approximately 25-30 foot candle power, below the 50 foot candle power required by Petitioner's regulations. At the time of the inspection, Respondent was actively processing animals. He was butchering hogs and was in the process of cutting up the carcasses of three hogs killed that day, preparatory to grinding the meat up for sausage. These carcasses, which had been recently killed, were the only ones which did not bear the stamped message "not for sale". Beef carcasses in the facility's cooler were appropriately stamped. In the course of the inspection, Respondent was informed by Whidden that several violations had been noted that would have to be corrected and would require a temporary closure of the facility. When Whidden mentioned closing the facility, Respondent became angry. He ordered Whidden and Watson to leave his property and not to return. Specifically, he told them "don't get off the public road if you come back this way." The two men complied with Respondent's directive and left.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered suspending Respondent's permit for a period of six months, provided such suspension shall terminate earlier if Respondent takes adequate measures to correct noted deficiencies and thereby comply with rules of the Department of Agriculture and Consumer Services. DONE AND ENTERED this 2nd day of December, 1991, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1991. COPIES FURNISHED: CLINTON H. COULTER, ESQ. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES THE CAPITOL TALLAHASSEE, FL 32399-0810 WAYNE BRANNON ROUTE 1, BOX 109-A WELLBORN, FL 32094 HON. BOB CRAWFORD COMMISSIONER OF AGRICULTURE THE CAPITOL, PL-10 TALLAHASSEE, FL 32399-0810
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Veterans Gas and Appliance Co., Inc., trading as Veterans Gas Company, now holds and has at all pertinent times has held a license issued by petitioner. Petitioner has licensed respondent as a "[d]ealer in liquefied petroleum [LP] gas, in appliances and in equipment for use of such gas and installation." Petitioner's Exhibit No. 1. Respondent has been in business for 25 years or so, at least. (T.48) On December 8, 1983, Clyde K. "Ken" Wallace, a gas serviceman in respondent's employ, was at the office of the Veterans Gas Company in Fort Walton, when a Mr. Wright telephoned, requesting that LP gas be delivered to the Ships Chandler in Destin, Mr. Wright's place of business. Mr. Wallace set out by himself for Destin in a bulk-fill truck to make the delivery. When he arrived, he found he could not enter the driveway, so he parked on the south side of U.S. Highway 98 about 15 feet from the Ships Chandler tank. He knew where the tank was because he had filled it the previous winter, the last time he had been there. Standing with two young ladies in the doorway of the Ships Chandler, Mr. Wright greeted him, saying something like, "I'm glad to see you. We're freezing." Mr. Wallace set right to work. Initially unable to remove the dome which blocked access to the underground tank, he asked Mr. Wright for a claw hammer. With the hammer he succeeded in removing the dome, and then announced he was going to turn off the service valve, which is the valve that allows gas to enter the building from the tank. Mr. Wright asked him not to turn the valve off, saying he was going to ignite the pilot light in his furnace, and disappeared into the store. Mr. Wallace took the dust cap off and, hooking up the hose to the fill valve, pumped one hundred gallons of LP gas at the rate of 25 to 30 gallons a minute, according to the meter on the truck. Before introducing LP gas into the tank, Mr. Wallace never turned off the service valve or any other valve through which LP gas flowed before passing through the regulator and into the system of pipes. In fact, he never touched the service valve, and did not know for sure whether it was on or off. Furnace apparently lit, Mr. Wright reemerged from his store after a few minutes, a check in hand to pay for the gas. Earlier on, at some point during their conversation, Mr. Wright asked Mr. Wallace whether he knew if nearby shop owners heated with gas or otherwise used gas, or something to that effect. Mr. Wallace said he did not know. The question arose because the complex had been a motel with central gas heat before it had been remodeled into shops and offices; and the conversion had taken place since the preceding winter. Mr. Wright wondered aloud whether or not his neighbors owed him money for gas. Mr. Wallace saw Mr. Wright enter one shop door, leave, enter another, leave, and so forth, presumably inquiring of the people inside whether they used gas. By the time he disengaged the hose and closed the fill valve, Mr. Wright was nowhere to be found. Mr. Wallace indicated on the invoice that it had been paid, dropped it on a desk or counter in the Ships Chandler, and left. After Mr. Wallace had driven off, an explosion occurred causing a fire and injuries to two persons. Explosion, fire and injuries occurred not in the Ships Chandler, but on the premises occupied by Way and Associates, Inc. Whoever did the remodeling cut the gas line and neglected to cap it, so that LP gas pumped into the Ships Chandler tank, ended up in a space between the dry wall and the outside wall in the building Way and Associates, Inc. occupied. Ignition of the LP gas accumulated there caused the explosion. Respondent had nothing to do either with the remodeling or with the initial installation of the gas pipes. If Mr. Wallace had followed standard industry practice, he would have turned off the service valve before pumping LP gas into the fill valve of an empty system. After pumping LP gas into the tank, he would have turned off the pump; he would have asked Mr. Wright to turn off all appliances, and, once the appliances were off, he would have turned the service valve back on to charge the system. Then he would have turned the service valve off again, in order to listen carefully. If he had done that, he would have heard LP gas moving through the regulator, even after the service valve was closed, and he would have realized that gas was leaking. Mr. Wallace, who started working for respondent in July of 1982, is qualified as a gas service man but not as a gas appliance service man. Like other new drivers respondent hires, Mr. Wallace went out with an older driver or the manager to learn the route and safety procedures for at least two weeks before going out on his own, but he was never told to check for leaks when introducing LP gas into an empty system.
