The Issue The issue in this case is whether policies of Respondent which are utilized in the course of investigations of Respondent’s law enforcement officers constitute rules subject to requirements of Chapter 120 Florida States; and, if so, whether such rules constitute an invalid exercise of delegated legislative authority contrary to requirements of Section 120.56 and Section 120.54, Florida Statutes (Supp. 1996).
Findings Of Fact Stipulated Facts The parties have jointly stipulated to the following factual statements set forth in paragraphs numbered 1-10. Petitioner Schluter has been employed by Respondent’s Division of the Florida Highway Patrol, serving the past eight years as an airplane pilot. A career service employee with permanent status, Schluter grieved his September 1996 dismissal from Respondent’s employment under collective bargaining agreement procedures existing between the State of Florida and the Florida Police Benevolent Association. A final decision has not yet been reached. In August 1995, Schluter was informed by Respondent that a complaint had been filed against him and that an investigation of the complaint was being conducted by Respondent. To facilitate Respondent’s investigation, the following conditions were imposed upon Schluter at the time he was placed on administrative duty: Schluter was not informed of the nature of the complaint filed against him, nor provided a description of the charges, nor provided a copy of the complaint. However, at the time of his administrative interview, Schluter was provided the written statements of all witnesses, including the person making the initial complaint. Schluter was removed from his duties as an airplane pilot and assigned to remain in his home during his duty hours each day. Schluter was specifically assigned his home as his duty station, was required to be available to contact on his home telephone, and was forbidden to leave his home without permission from his superiors. The change in work site was communicated to Schluter by memorandum dated August 23, 1995, assigning him to administrative duties at the Bradenton Station, and September 5, 1995, reassigning him to administrative duties at his residence. Schluter was denied the right to work off-duty police employment during his non- duty hours during the pendency of the investigation. He was not denied the right to work off-duty in non-police employment. The conditions on Schluter remained in place during the duration of the investigation which continued for approximately one year. Respondent has a policy of removing law enforcement officers under investigation, in certain circumstances, from their normal duties, and assigning them indefinitely to remain in their own residences as a duty station. Officers subject to this directive are permitted to leave their residences during duty hours only with the permission of their agency superiors. This policy has not been adopted as a rule pursuant to Section 120.54, Florida Statutes. Application of this policy to Petitioner Schluter was based upon the circumstances of his case and policy guidelines of the Florida Highway Patrol. Respondent has a policy of ordering its law enforcement officers who are under investigation, in certain circumstances, to have no contact with any person who may be a witness in the investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent rationalizes this policy as an effort to comply with Section 112.533, Florida Statutes. Respondent has a policy of prohibiting law enforcement officers under investigation, in certain circumstances, from earning extra compensation by working in police off-duty employment. This policy has not been adopted as a rule in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that police off-duty employment is not possible after Respondent has removed an officer’s gun, badge, police vehicle, and other indicia of authority. Law enforcement officers employed by Respondent have the right by virtue of a contract between the Florida Police Benevolent Association and the Florida Department of Management Services, acting as agent for the Governor of Florida to work in police off-duty employment. Article 16 of the current collective bargaining agreement provides for employment outside state government, including police employment. Respondent has a policy of denying public records access to records and information gathered during the course of an investigation of a law enforcement officer which are not related to a written complaint against the officer. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for this policy is that it is undertaken pursuant to Section 112.533, Florida Statutes, and FHP guidelines. To persons whom she interviewed, the primary investigator specifically identified Petitioner Schluter as the subject of the investigation. She identified him as the object of her investigations to employees of Respondent, to his private friends and associations, to other private persons, to his bank and to merchants in the community. Respondent contends Schluter was identified only where it was necessary to do so to effect the investigation and pursuant to investigative procedures and Section 112.533, Florida Statutes. Respondent has a policy of providing every witness from whom an investigator seeks information with the identity of the person under investigation. This policy has not been adopted in substantial compliance with Section 120.54, Florida Statutes. Respondent’s rationale for the policy is that an officer under investigation may be revealed during the course of the investigation in order to conduct a witness interview and with confidentiality maintained in the context of the overall investigation. Other Facts The Florida Association of State Troopers, Inc., (FAST) is a non-profit Florida corporation, composed of Florida Highway Patrol active troopers, reserve and retired troopers, and auxiliary troopers. Approximately 1000 members of FAST are law enforcement officers currently employed by Respondent. The primary purposes of FAST are to provide representation of its members, to advance the interests of its members with the Florida Highway Patrol (FHP) and to improve treatment of its members employed by the FHP. An additional purpose of FAST is to promote the enforcement of laws protecting law enforcement officers. FAST provides legal representation to its members in matters directly relating to their employment with the FHP and to members for matters occurring off-duty which are related to their employment. Both FAST and Petitioner Schluter have standing to bring this proceeding With regard to Respondent’s policy of assigning those officers who are under investigation to indefinitely remain in their own residences as a duty station, the criteria for imposition of that policy is set forth in the FHP Policy Manual and specifically FHP Policy 8.01-9. While the term “home duty” is not specifically mentioned in FHP Policy 8.01-9, the same criteria are utilized in making a home duty assignment. These include circumstances involving physical or psychological fitness for duty evaluations of an employee; investigations of criminal allegations; investigations of policy violations by an employee for which dismissal is a penalty; instances where it has been determined that an employee would interfere with an investigation; instances where on-duty status of the employee would result in damage to property or be detrimental to the best interest of the state; and instances where there is possibility of injury to the employee or others if permitted to remain in an on-duty locale. Testimony offered by Respondent at the final hearing that promulgation of FHP Policy 8.01-9 as a rule is impracticable, is not credited in view of the existence of the policy and its enumerated criteria, its general applicability to a class of persons, and its effect upon substantial and personal interests when an individual is required to use his personal home as a work station i.e., Petitioner Schulter had no choice, other than insubordination, except to comply with the home assignment, use his home as his work station ,and thereby incur increased home operating expenses. As stipulated by the parties, Respondent has an policy, not promulgated in accordance with requirements of Section 120.54, Florida Statutes, of ordering law enforcement officers under investigation to have no contact with any potential witnesses. Petitioner Schluter received two directives or orders requiring his compliance with this policy. Respondent’s enforcement of this policy deprived Petitioner Schluter of most of his social contacts and affected his substantial interest since his social contacts were generally FHP troopers and other Respondent employees. Schluter was virtually cut-off from most social contacts as a result. Every citizen has a strong personal interest in personal and private associations. Respondent presented no creditable or persuasive evidence that it would be impractical to develop a rule governing whether a “no contact” order should issue to an employee, or that Respondent’s ability to grant a waiver from such a published rule would not mitigate any practicality problems that could be otherwise encountered. Similarly, Respondent’s Patrol Policy 5.10, also not promulgated in compliance with Section 120.54, Florida Statutes, documents Respondent’s off-duty police employment policy for members assigned to administrative leave in the course of an on-going investigation. The policy prohibits off-duty police employment for FHP members assigned to administrative leave in conjunction with an on-going investigation. As established by testimony at the final hearing, this policy encompasses the same criteria as that used in determining whether to place an employee on administrative or home duty. Schluter was substantially affected by Respondent’s off-duty police employment policy in that he was relieved from all law enforcement and aircraft duties with Respondent, inclusive of all indicia of his law enforcement authority (badge, gun and motor vehicle) with a resulting loss of approximately $1,000 per month in additional, private income. Respondent maintains that the off-duty police employment policy for members assigned to administrative leave ought not be promulgated as a formal administrative rule because of the ever-changing environment regarding off-duty employment and need for constant change in such policies. Contrary to Respondent’s position, the impracticability of promulgation of this policy is not credited in view of testimony by Respondent’s witness at hearing that prohibition of off-duty police employment for employees on administrative leave is not likely to change in the future. In the course of an investigative interview on November 10, 1995, Petitioner Schluter was denied access to lists of persons interviewed or written statements of persons interviewed, contrary to provisions of Section 112.532(1)(d), Florida Statutes. Respondent’s admitted policy of denying public access to records and information gathered during the course of an investigation of a law enforcement officer affects individual rights to access of such information and denies access to accused officers of an information avenue which may be utilized in preparation of a defense to charges Respondent may level against an officer. Additionally, Respondent’s blanket prohibition of access ignores those exceptions to confidentiality of such information set forth in Section 112.533(2), Florida Statutes; exceptions which permit access to review of certain investigation records. The investigation of Petitioner Schluter was initiated without a written complaint and his substantial interests were affected by Respondent’s no access policy. The impracticability of a rule addressing access, as well as providing prior notice to individuals like Schluter and others who may be similarly situated, of written investigation records within the scope of statutory limitations has not been demonstrated by Respondent. It is Respondent’s admittedly unpromulgated policy to identify the individual person who is the subject of the investigation to every witness interviewed in the course of an investigation. There is no statement of this practice in the FHP manual. The practice affects the substantial interest of individuals such as Petitioner Schluter by identifying him to his social and work contacts as a person under investigation. While maintaining that rule-making on the topic of when to identify the subject of an investigation in an interview in the course of an investigation is impractical, testimony by Respondent’s witness at final hearing establishes that investigations of the type involving Petitioner Schluter generally require that the investigation subject’s identity be disclosed to the interviewee. Consequently, testimony that promulgation of this policy is impractical is not credited. Respondent has an unwritten policy of refusing to allow the legal representative of a law enforcement officer to speak on the record during the course of an administrative or investigative interview with an officer, or to permit a consultation between an employee and counsel prior to the employee’s answer to a question. Any information or argument counsel for an employee desires to place on the record must be presented through the employee. Such a policy affects the substantial interest of officers who are the subject of investigation by impinging upon their right to counsel, statutorily codified in Section 112.532, Florida Statues, and impedes the effectiveness of counsel. The policy is applied in all such interviews. Impracticability of a rule addressing the role of counsel representing an employee in an administrative interview has not been creditably addressed by Respondent.
The Issue Whether the Respondent should be suspended and dismissed from her employment with the school district.
Findings Of Fact The Petitioner is charged by Florida law with the operation, control, and supervision of all School District employees. Respondent has been employed by the Petitioner since 1993 as a full-time school bus driver. Accordingly Respondent is classified as non-instructional school personnel. On February 1, 1991, Respondent completed an employment application with the Petitioner. Such application included a security check form. This form required Respondent to answer three specific questions regarding her criminal history. Such questions were: Have you ever received a penalty from a judge or a law enforcement agency or do you currently have charges pending as the result of an arrest? Has a penalty or conviction ever been withheld, delayed or turned over to another agency or has probation been required as the result of your being arrested? Have you ever applied for and received an expungment of an arrest? If your answer to question 1, 2, or 3 is yes, complete the following. If more space is needed, attach an additional sheet. As to each question posed, Respondent answered by checking the box "No." For the area to be completed if any answer were "Yes," Respondent wrote "N/A." Subsequent to the submittal of the application noted above, Respondent was employed part-time by the School Board. On January 4, 1993, Respondent completed a second application for employment with the School Board and again submitted a Security Check form. This second form contained the following questions: Have you ever been convicted or received a penalty (imprisonment, probation, fines, court costs, etc.) from a judge or a law enforcement agency for a crime other than minor traffic infractions? Has a penalty or conviction ever been withheld (adjudication withheld) or delayed or has probation been required as the result of your being arrested? Do you currently have charges pending as the result of an arrest? Have you ever received an expungement (charges erased) of an arrest or a pardon of a conviction? (Any sealed record should be included.) If you responded YES to any of the above questions, give details below. If more space is needed, attach an additional sheet. On the Security Check form executed in 1993, Respondent checked "Yes" and "No" for the first question; "No" to questions 2, 3, and 4; and inserted "N/A" to the portion to be completed if any answer were "YES." Shortly after completing the application, Respondent began her full-time work with the School District. On or about September 30, 1997, Chief Kelly's office received a request for investigation regarding the alleged current arrest of a school employee, Respondent. While conducting this investigation, it was verified that Respondent had a current arrest but that she also had had a previous arrest for aggravated battery. According to court records, the accuracy of which Respondent does not dispute, Respondent was arrested in 1988 for aggravated battery, pled guilty to the lesser offense of battery, and was adjudicated guilty. As a result of the plea, Respondent was placed on probation for six (6) months, was directed to pay probation costs, and was ordered to make restitution for the victim's medical bills. The investigation was completed and the foregoing findings were presented to the Respondent who was offered, by way of a disciplinary conference, an opportunity to respond to the allegations. Respondent was asked to share any mitigating or exculpatory evidence with regard to the alleged falsification of the Security Check forms. Such disciplinary conference occurred on November 10, 1997. Respondent did not deny the prior history nor offer any information to enlighten school officials as to why she had failed to disclose the criminal matter from 1988. At hearing Respondent maintained that a Public Defender had advised her at the time of the plea that the incident would not affect her employment. Respondent admitted that she recalled being on probation for the incident from 1988. Respondent did not request assistance nor seek advice regarding the forms for employment. Respondent completed high school and did not, prior to completing the Security Check form and submitting it to the Petitioner for employment purposes, indicate that she did not understand the questions posed or the information sought from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County, Florida enter a Final Order sustaining the suspension and dismissal of the Respondent from her employment with the School District. DONE AND ENTERED this 28th day of August, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1998. COPIES FURNISHED: Dr. Joan Kowal Superintendent School District of Palm Beach County 3340 Forest Hill Boulevard West Palm Beach, Florida 33406 Frank T. Brogan Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Virginia Tanner-Otts, Esquire School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Lee Rosenberg, Esquire School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Mamie Washington Kendall, Esquire 141 South Main Street, Suite 211 Belle Glade, Florida 33430
The Issue Whether the Petitioner has presented clear and convincing evidence that she is of good moral character so as to receive an exemption from disqualification from employment transporting adults who are developmentally disabled, under Section 435.07, Florida Statutes (1995).
Findings Of Fact Petitioner was found guilty of prostitution under Section 796.07, Florida Statutes (1973), on December 21, 1973, in Dade County, Florida. Adjudication of guilt was withheld and Petitioner was placed on probation for a period of six (6) months. Petitioner successfully completed probation. Petitioner was found guilty of driving under the influence, and two companion civil traffic infractions, in Dade County, Florida on or about June, 1974. Adjudication of guilt was withheld and Petitioner was placed on probation for a period of three (3) months. Petitioner successfully completed probation. Petitioner was convicted of a misdemeanor charge of possession of marijuana on April 2, 1982 in Pinellas County, Florida and was sentenced to time served in the county jail. Petitioner has not been arrested or convicted for any criminal offense since 1982. Petitioner is currently employed by Brevard County, Florida as a Vehicle Operator I, para-transport, assigned to the Space Coast Area Transit (SCAT) section. As a condition to Petitioner’s employment she is required to have a commercial driver’s license (CDL) with a P endorsement, Class B. Her duties with SCAT require that Petitioner pick-up and return people needing home transportation, including developmentally disabled individuals. When Petitioner is assigned to pick up handicapped persons, she does not operate a bus along a scheduled route, but picks up individuals at their home or other locations as indicated on a manifest provided at the beginning of each work day. Petitioner did not disclose her criminal record on her employment application for her position with SCAT. Employment screening under Florida law was not being required by Petitioner’s employer at the time that Petitioner applied for her position with SCAT. No evidence was introduced to show Petitioner was required to make such a disclosure at the time she was hired. At the time that she completed her employment application Petitioner was under the impression that she did not have to disclose the prostitution charge. Petitioner believed that this charge would be removed from her record after she successfully completed probation. As to the remaining charges, assuming Petitioner was required to disclose her prior criminal record, Petitioner believed that disclosure of those charges were appropriate but chose not to disclose them on the application for fear that if she did she would not be hired. At the time that Petitioner filled out and signed her application for employment, she knew that she was not disclosing this information. At the time that Petitioner applied for the position with SCAT she was separated from her husband and not receiving any financial assistance from him. Petitioner was under financial pressure as she was the sole support for herself and her teenage son who lived with her. Petitioner did not disclose her prior criminal record to her Department Director, Don Lusk, prior to the July 11, 1996 exemption hearing. She did discuss her history with Mr. Lusk after the hearing. Petitioner’s reasons for not disclosing this information was that she was embarrassed by these facts and wanted to put them behind her. She did not believe that the prostitution charge had to be disclosed. Lusk felt that Petitioner’s explanations to him were candid and would not effect her employment status. In regard to the 1973 prostitution charge, Petitioner, who was then 22 years old, was unemployed and in need of money. A casual acquaintance of hers suggested that she could make some money by offering sex for money and that the acquaintance could make all of the arrangements. Petitioner agreed, let her acquaintance make the arrangements, and went with her to meet some men. The men turned out to be undercover police officers who arrested Petitioner. No sex acts took place and no evidence was presented that any would have taken place but for Petitioner’s arrest. This was Petitioner’s first and only act of solicitation. There is no evidence which indicates that Petitioner has again been involved in any act of prostitution since the 1973 incident. Leona McKinney, Petitioner’s immediate supervisor during the entire time of her employment with SCAT; Don Lusk, SCAT’s Director; and Jeffrey Herndon, Petitioner’s supervisor at her previous employment as a tour bus driver escort at Spaceport USA, Kennedy Space Center, Cape Canaveral, Florida, all indicated that there have never been any problems with the Petitioner’s job performance or related duties as a bus driver. Her employment history has been good. No complaints had ever been made or filed against her in connection with the performance of her job duties. Lusk indicated that he was satisfied with Petitioner’s performance of her duties. In his opinion, Petitioner did not pose any danger to SCAT’s clientele. Both Lusk and Herndon indicated that, based on Petitioner’s employment history with them, and notwithstanding her failure to have disclosed the prior criminal charges, that her employment would be continued and that she would be eligible for rehire. The failure of Petitioner to obtain an exemption will affect her employability with SCAT. Without an exemption, the Petitioner would not be able to perform the duties required of SCAT vehicle operator to transport developmentally handicapped individuals. This would pose scheduling problems for SCAT. Petitioner drinks socially and responsibly. Petitioner appears to handle stress in her life adequately without recourse to alcohol or drug use. Although SCAT performs random drug testing of all its employees, including Petitioner, there is no record of any adverse drug test results on Petitioner. There is no evidence that Petitioner has ever endangered any of the people whom she transports while driving for SCAT or while she drove for Spaceport USA. Petitioner testified with candor and credibility, and is worthy of belief. Petitioner has demonstrated that she is rehabilitated and will not present a danger to disabled adults if continued employment is allowed.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner’s request for exemption from disqualification for employment in transporting developmentally disabled adults be GRANTED.RECOMMENDED this 6th day of February, 1997, at Tallahassee, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997. COPIES FURNISHED: Burton J. Green, Esquire 43 South Atlantic Avenue Cocoa Beach, Florida 32931 Carmen Sierra, Esquire District 7 Legal Office Department of Children & Families 400 West Robinson Street Orlando, Florida 32801-1782 Gregory D. Venz, Agency Clerk Department of Children & Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard Doran, Esquire Department of Children & Families 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the scheduled final hearing.
Findings Of Fact Upon receipt of the Petition for Relief at DOAH, an Initial Order was issued on October 8, 2010, requiring Petitioner to coordinate a joint response to provide certain information within seven days or to file a unilateral response, if a joint response was not possible. Petitioner did not respond to the Initial Order. On October 15, 2010, Respondent submitted a unilateral response indicating that Petitioner had not contacted Respondent to coordinate a response. The undersigned issued a Notice of Hearing on November 5, 2010, scheduling the final hearing for December 8, 2010, at the Martin Luther King, Jr., Administrative Center in Naples, Florida. The notice included citations to the procedural statutes and rules governing the hearing and information about the parties' obligation to appear at the hearing with their witnesses and evidence. With the Notice of Hearing, the undersigned issued an Order of Pre-hearing Instructions, which required the parties to exchange witness lists and copies of their proposed exhibits at least seven days before the final hearing and to file their witness lists with DOAH. The Order warned that failure to comply with these requirements "may result in the exclusion at the final hearing of witnesses or exhibits not previously disclosed." The foregoing Orders and notice were mailed to Petitioner at his address of record in New York, New York, and none of these envelopes was returned as undeliverable. Petitioner resides in New York, but as specified in the FCHR Determination of No Cause, Petitioner is a frequent visitor to Naples, Florida, where his mother lives in a condominium she owns at Park Shore Landings. Indeed, it was Petitioner's rental of a unit at Park Shore Landings, on multiple occasions spanning multiple weeks that gave rise to Petitioner's complaint filed with FCHR. On November 23, 2010, Respondent filed a Motion for Continuance because of difficulties coordinating Petitioner's deposition to accommodate Petitioner's holiday travel plans and scheduling conflicts. A continuance was granted for good cause shown, and the final hearing was rescheduled for February 15, 2011, at 9:00 a.m., in Naples, at a location to be determined at a later date. The Order stated that the previous Order of Pre-hearing Instructions remained in full force and effect. An Amended Notice of Hearing was issued on December 9, 2010, to specify the hearing location: Martin Luther King, Jr., Administrative Center, 5775 Osceola Trail, Naples, Florida. This notice repeated the hearing date (February 15, 2011) and time (9:00 a.m.). The notice also reiterated that the parties were required to appear at the time and place of the hearing with their witnesses and evidence and that failure to appear may result in dismissal. The notice listed the name, address, and telephone number for the hearing room contact person at the hearing site. The notice was mailed to Petitioner at his address of record and was not returned undeliverable. On December 15, 2010, Respondent filed a notice of taking Petitioner's deposition in Naples on December 22, 2010, at a court reporter's office near the scheduled location for the final hearing. On February 2, 2011, the undersigned issued another Amended Notice of Hearing to advise that any party desiring a court reporter had to make arrangements at the party's own expense, with notice to the other party and to the undersigned. This notice repeated the final hearing date (February 15, 2011), time (9:00 a.m.), and location (Martin Luther King, Jr., Administrative Center, 5775 Osceola Trail, Naples). The notice also repeated the name, address, and telephone number for the hearing room confirmation contact person. Like all previous notices of hearing, the notice reiterated that parties were required to appear at the time and place of the hearing with their witnesses and evidence and that "[f]ailure to appear at this hearing may be grounds for entry of an order of dismissal." On February 8, 2011, in accordance with the Order of Pre-Hearing Instructions, Respondent filed its witness list, with names and addresses for five witnesses and a certification that Respondent's exhibits had been provided to Petitioner. No witness list was filed by Petitioner. On February 10, 2011, Respondent gave notice to the undersigned and to Petitioner that Respondent had retained a court reporter to record the February 15, 2011, final hearing. The undersigned traveled from Tallahassee to Naples on Monday, February 14, 2011, and stayed overnight at a hotel in Naples, in order to convene the hearing scheduled for 9:00 a.m., the next morning. On February 15, 2011, the undersigned arrived at the noticed hearing location at approximately 8:30 a.m. Counsel for Respondent (from Tampa) and four of Respondent's witnesses were already present. Arriving at the same time as the undersigned was Respondent's fifth witness and the court reporter. At 9:00 a.m., the undersigned went on the record to convene the scheduled hearing to allow counsel for Respondent to enter his appearance for the record and to announce that Petitioner had not appeared or contacted anyone to explain his absence. The undersigned then recessed the hearing for 20 minutes in case Petitioner was running late. At 9:12 a.m. (as time-recorded by the undersigned's mobile phone), the undersigned called her assistant at DOAH to determine whether Petitioner had called DOAH or submitted anything in writing that would explain his failure to appear for the scheduled hearing. The undersigned's assistant stated that no calls or filings had been received and that she would call the undersigned on her mobile phone immediately, if Petitioner contacted her. Meanwhile, to make sure that Petitioner was not on the premises unable to find the hearing room, one of Respondent's representatives checked at the front desk, where anyone entering the building would have to check in and go through the security procedures, and verified that Petitioner had not arrived. Shortly after 9:20 a.m., the undersigned went back on the record to state that Petitioner had still not appeared, nor had Petitioner contacted DOAH or someone at the hearing site. The undersigned recited the steps taken to verify the absence of contact by Petitioner; reviewed the file, noting the multiple notices and Orders mailed to Petitioner; and confirmed Petitioner's address of record to which the notices and Orders were mailed and not returned as undeliverable. Respondent represented that Petitioner did not show up for the first deposition scheduled in coordination with Petitioner's calendar, but that Petitioner did appear the second time his deposition was set. Respondent also represented that Petitioner did not provide Respondent with a witness list or copies of any proposed exhibits. Respondent had no other information about Petitioner's whereabouts or intentions. Based on Petitioner's failure to appear and present a prima facie case to meet his burden of proof, the convened hearing was adjourned shortly before 9:30 a.m. Those present took some time to pack up computers and files and move furniture to restore the room to its prior configuration. Thus, it was after 9:30 a.m., when the undersigned exited the building, after checking again at the front desk to verify there was still no sign of, or word from, Petitioner. The undersigned drove to a hotel located eight minutes from the hearing site. Upon arrival, the undersigned's mobile phone rang, but could not be answered before the call went to voice mail. A voice mail message was left by the undersigned's assistant, time-recorded at 9:51 a.m. The message was that the undersigned's assistant had just spoken with Mr. Ziolkowski, who had called to say that he was at the hearing site, but no one was there. Petitioner told the assistant that he had been at the emergency room until an hour earlier (i.e., until 8:45 a.m.), and he went straight to the hearing site. The undersigned's assistant asked Petitioner why he had not called sooner, and his only response was that he did not have his mobile phone; but when asked how he was calling her then, he said he was calling from his mobile phone, and he gave the assistant his mobile phone number, which had not been provided previously. Petitioner then asked the undersigned's assistant about rescheduling the hearing. She explained that she had no authority to address his request; if Petitioner wanted the undersigned to consider a request for relief, it had to be submitted in writing and should provide any explanation and documentation he had as to why he could not be at the hearing and why he could not call. A memorandum from Mr. Ziolkowski was filed at DOAH by fax on February 16, 2011, at 2:40 p.m. The one-page memorandum, with no attachments and no certificate of service indicating service on Respondent, stated in pertinent part: Please accept my apologies for not being able to communicate with you yesterday regarding my delayed appearance to your courtroom. I was in the emergency room at Naples Community Hospital until 8:11 am Tuesday (2/15/11). I went straight from the hospital to the Administrative center and I didn't have my mobile phone or directions to the Administrative center and finally I reached the Administrative center at approximately 9:30 a.m. Petitioner ended the memorandum with a request to reschedule the final hearing. Copied onto the bottom of the page was a small label, perhaps a hospital-issued identification bracelet bearing Petitioner's name and date of birth, a reference number and several other numbers, "NCH 02/15/11," and a bar code. The undersigned issued a Notice of Ex-Parte Communication with the memorandum attached, which was mailed to both parties. On February 28, 2011, Respondent filed its Objection to Petitioner's Request for Re-Hearing. Respondent's objection asserted that the documentation offered by Petitioner was insufficient to prove that Petitioner was at Naples Community Hospital until 8:11 a.m. on February 15, 2011, because the identification label only showed a date, February 15, 2011, which could be as early as 12:01 a.m., or as late as many hours after the scheduled hearing. Petitioner chose not to provide the documentation that he apparently had to show the precise time that he left the emergency room--8:11 a.m. (more than 30 minutes earlier than he told the undersigned's assistant on the telephone). Such documentation would also likely reveal such information as the time of day or night when Petitioner was clocked in at the emergency room; why Petitioner presented at the emergency room; what, if anything, was wrong with Petitioner; and whether he received any treatment or whether treatment was deemed unnecessary. Respondent's objection went on to note that even assuming the accuracy of Petitioner's stated departure time of 8:11 a.m., from Naples Community Hospital, that hospital has only two campuses, "one of which is six minutes and the other is fifteen minutes away from the location of the hearing." Respondent's objection concluded, "At bottom, Petitioner was not in the emergency room at the time of the hearing, had ample time to attend the hearing, and has provided no evidence to support his request to re-schedule the duly-noticed February 15, 2011 hearing."
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 Petitioner, John Ziolkowski's, Petition for Relief. DONE AND ENTERED this 8th day of March, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2011.
The Issue The issues in this case are whether Respondent: (1) made deceptive, untrue, or fraudulent representations in or related to the practice of medicine; (2) failed to keep appropriate medical records with respect to Patient T.G.; (3) fell below the minimum acceptable standard of care in his treatment of T.G.; misrepresented or concealed a material fact during the course of the disciplinary process; and/or (5) improperly interfered with Petitioner's investigation. If so, it will be necessary to determine whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines, or take some other action.
Findings Of Fact At all times relevant to this case, Dr. Choy was licensed to practice medicine in the state of Florida, having been issued license number ME 74815. The Department has regulatory jurisdiction over licensed physicians such as Dr. Choy. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department has charged Dr. Choy with medical malpractice, which is a disciplinable offense pursuant to section 458.331(1)(t)1, Florida Statutes, both for allegedly failing to inform his patient, T.G., that a CT scan performed in June 2008 revealed the presence of a potentially malignant tumor in her pancreas, and for failing to refer T.G. to a specialist for further investigation of this finding. The Department alleges, as well, that, after an attorney representing T.G.'s family contacted Dr. Choy following T.G.'s death in 2010, Dr. Choy altered his medical records to make it appear as though he not only had informed T.G., in and after June 2008, that she might have pancreatic cancer, but also had urged her repeatedly to see a specialist. Based on these allegations,1/ the Department has charged Dr. Choy with: one, making deceptive, untrue, or fraudulent representations in the practice of medicine, an offense under section 458.331(1)(k); two, failing to keep legally sufficient medical records in compliance with Florida Administrative Code Rule 64B8-9.003, an offense under section 458.331(1)(m); and, three, misrepresenting or concealing material facts during, and improperly interfering with, a disciplinary proceeding, which are separate offenses under sections 458.331(1)(gg) and 458.331(1)(hh), respectively. The events giving rise to this dispute began on May 13, 2008, when Dr. Choy's longtime patient, T.G., presented with complaints of left lower quadrant pain and a change in bowel habits. T.G., who was then 77, had a number of medical conditions for which she had been seeing Dr. Choy, including diabetes, hypertension, depression, heart disease, and arthritis. Reviewing the results of blood work ordered the previous month, Dr. Choy diagnosed T.G. with anemia and ordered another blood test to determine if the condition persisted. In addition, Dr. Choy ordered a CT scan of T.G.'s abdomen and pelvis. T.G. went to the lab to have blood drawn on May 13. The next day, Dr. Choy received the test results, which showed that T.G. remained anemic. Dr. Choy suspected that T.G. might have colon cancer. He made a note on the lab report that T.G. should be prescribed a medication for her anemia and that she needed to "be referred to a GI specialist for eval[uation]." Following the customary procedure in Dr. Choy's office, an employee called T.G. on May 19 to inform her of these instructions and wrote "5/19 done" at the top of the lab report. T.G. underwent the CT scan of her abdomen and pelvis on June 17, 2008. The radiologist's three-page report was faxed to Dr. Choy on June 19. On the first page of the report, which discusses the abdominal scan, it is stated that "[t]here is a large lobulated malignant tumor mass in the tail of the pancreas . . . ." On the next page, the third of four enumerated impressions based on the abdominal CT scan reads: "Large malignant tumor mass tail of the pancreas as described." Also on page 2, following the report of the abdominal procedure, is the interpretation of the pelvic CT scan, which resulted in a finding of diverticulosis but was otherwise negative. Dr. Choy reviewed the report and wrote "ok" on page 1, next to the first impression from the abdominal scan, which was: "Old healed calcified granulomatous disease right lower lobe." On page 2, adjacent to the impressions from the pelvic scan, Dr. Choy wrote the following note:2/ At some point after Dr. Choy wrote the foregoing note, the report was scanned into his office's electronic medical records system. Also, a hard copy of the report of T.G.'s CT scan was placed in a traditional patient chart, as was done with all lab reports that Dr. Choy's office received. On June 19, 2008, someone from Dr. Choy's office called T.G. at 3:34 p.m. and spoke with her (or someone in her home) for nearly five minutes. Dr. Choy testified that he personally placed this call, a claim the Department disputes. The identity of the caller is immaterial, however, because the main purpose of the call was, most likely, to schedule an appointment for T.G., so that Dr. Choy could go over the recent blood work and CT scan with T.G. in person. T.G. was not told during this phone call about the tumor that had been observed in her pancreas, but she was probably given Dr. Choy's recommendations for managing diverticulosis, as indicated by a handwritten note at the top of page 2 of the CT scan report, which says, "6/19/08 Done." T.G. returned to Dr. Choy's office on June 30, 2008. Unfortunately, there is no reliable contemporaneous record of what Dr. Choy communicated to T.G., if anything, about the finding of a tumor in her pancreas. Dr. Choy testified that he did not use words such as "cancer" or "mass" in front of T.G., both to avoid upsetting her and because he is a "soft person" who "hate[s] to give people bad news." Dr. Choy thinks that he might have told T.G. there was a "spot" on her pancreas (although he is not sure he used that term), and he clearly recalls having advised T.G. to "see a specialist" because——he recalls telling her——although he "didn't know what it was," it "could be bad." The Department disputes that Dr. Choy said even that much. In support of its position that Dr. Choy failed to disclose to T.G. the radiologist's finding of a pancreatic tumor, the Department focuses on Dr. Choy's electronic medical records, in which——as originally prepared——he made no mention of a pancreatic mass. For example, at the time of T.G.'s June 30, 2008, visit, Dr. Choy wrote that the patient did not have "[a]bdomenal [sic] pain," and he typed the following notes regarding his impressions and diagnoses: ZZ-Dr Peter V Choy; Z-VP EKG; Anemia Iron Deficiency – 2809 repeat Test if no Improvement we will refer pt to GI evaluation;Diabetes w/ unspecified complication-250.90; Hyperlipidemia-2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism- 2449; Declining Function-7993; Depression- 311; Vertigo-7804 This record, made at or around the time of the June 30, 2008, visit, is silent about the potentially malignant tumor that had recently been seen in T.G.'s pancreas. Dr. Choy testified that his contemporaneous records are not silent as to the pancreatic mass because when he saw T.G. on June 30, 2008, he wrote an additional note on the hard copy of the CT scan report, creating the following:3/ That Dr. Choy inserted the reference to a pancreatic tumor after June 19, 2008, is proved by the existence of the digital copy of the CT scan report——converted via scanner from paper to electronic file that day——which does not contain the reference. Because Dr. Choy did not put a date on the subsequent note, however, his testimony is the only evidence that it was made on June 30, 2008. The Department contends that Dr. Choy's testimony in this regard is not credible. The undersigned agrees with the Department. There are a number of reasons for rejecting Dr. Choy's testimony. To begin, Dr. Choy's account requires one to imagine that, when making his original notes, Dr. Choy jotted down a treatment plan for diverticulosis while simultaneously failing to acknowledge the ominous finding of a pancreatic tumor, despite being aware of the potentially terminal condition. Further, Dr. Choy would have the undersigned believe that, just as he was soft-pedaling the CT scan results in conversation with T.G., he was writing "malignant tumor" on the report——using the type of words he (credibly) denies uttering in T.G.'s presence. The reference to the pancreatic tumor looks out of place, moreover, in the section of the report discussing the pelvic scan, which did not find the mass, atop the previous notes relating to diverticulosis, which the pelvic scan did reveal. Finally, there is the undisputed fact, which will be discussed in depth below, that Dr. Choy altered many other medical records after questions were raised concerning his treatment of T.G.—— and particularly about whether he had told her she might have pancreatic cancer. In sum, the undersigned does not credit the annotated CT scan report as evidence tending to establish that Dr. Choy notified T.G. in June 2008 that there was a suspicious mass in her pancreas. The next time T.G. saw Dr. Choy was September 3, 2008. The entries that he made in the patient's electronic medical record for this visit were, originally, silent about the possibility that T.G. might have cancer of the pancreas. He noted that T.G. was "[d]oing well with no change in clinical status" although she reported "[a]domenal [sic] [p]ain," which she had not complained about on June 30, 2008. Dr. Choy recorded T.G.'s various diagnoses in the electronic patient chart, making no mention of the pancreatic mass. This pattern was repeated during the several visits which followed, on January 19, 2009; February 11, 2010; and March 31, 2010. Dr. Choy's contemporaneous records of these visits say nothing about T.G.'s pancreatic tumor or his efforts, if any, to follow the condition. When T.G. returned to Dr. Choy's office on June 24, 2010, she complained of abdominal pain and abnormal weight loss. Dr. Choy reviewed T.G.'s blood tests, which indicated that she was again anemic and might have liver disease. Concerned, and having forgotten the 2008 scan, Dr. Choy ordered additional blood tests and a CT scan of T.G.'s abdomen and pelvis. After leaving Dr. Choy's office, T.G. went to the lab, where her blood was collected on June 24. The test results, which were reported on June 28, 2010, showed that her platelets were low, suggesting a blood disorder. For that reason, Dr. Choy referred T.G. to Dr. Luis Villa, a hematologist and oncologist whom T.G. had wanted to see. Dr. Villa saw T.G. on July 1, 2010. In a letter to Dr. Choy that he prepared on the same day, Dr. Villa advised that T.G. "look[ed] great; certainly, younger than her stated age." Dr. Villa believed that laboratory data for T.G. were suggestive of chronic liver disease, and he recommended that Dr. Choy order additional tests. Dr. Villa informed Dr. Choy that he had "reassured [T.G.] that there is nothing acute here that necessitate[s] immediate attention." On July 7, 2010, T.G. returned to Dr. Choy's office for a follow-up visit. During this visit, Dr. Choy noted Dr. Villa's recommendation and recorded (for the first time) a differential diagnosis of "potential malignancy," to be ruled out. Dr. Choy ordered more tests, including an abdominal CT scan. T.G. underwent a CT scan on July 15, 2010, her second, two years after the previous scan had first detected a pancreatic mass. A report of the results of this CT scan was delivered to Dr. Choy's office on July 16, 2010. The report indicated that T.G. had "a large mass at the level of the pancreatic tail." T.G. had an appointment to see Dr. Choy for a follow- up examination on July 19, 2010. That morning, however, T.G.'s son, being worried about how weak T.G. suddenly had become, took her directly to the hospital, without stopping at Dr. Choy's office. Dr. Choy signed the order to admit T.G. to Mercy Hospital, where she was received on July 19 at 1:11 p.m. carrying a diagnosis of pancreatic cancer with possible metastasis to the liver. Although Dr. Choy did not see T.G. in his office that day, as expected, a record of the upcoming visit was created in Dr. Choy's electronic medical records system. Somehow, a record of the canceled visit was thereafter transmitted to T.G.'s HMO as if Dr. Choy had seen T.G. in his office as scheduled, making it appear that he had performed an examination which in fact had not occurred. The Department alleges that Dr. Choy submitted a false insurance claim in connection with the canceled appointment. This contention is rejected as unproved. There is no persuasive evidence that Dr. Choy received any payment for the July 19th appointment which, as it happened, T.G. could not keep, and more important, the evidence is insufficient to establish, clearly and convincingly, that Dr. Choy intended to deceive the HMO. The simplest and likeliest explanation for the July 19th office- visit note is that, owing to the unexpected change of plans, someone got the paperwork confused and made a mistake. The day after she was admitted to Mercy Hospital, T.G. underwent a liver biopsy, which revealed a "metastatic tumor of pancreatic origin." Sometime in July 2010, after the pathology report confirmed T.G.'s diagnosis, T.G.'s family requested that Dr. Choy's office provide them with copies of T.G.'s medical records. Dr. Choy's staff complied with this request, printing the electronic medical records on July 27, 2010, and delivering them to a family member. The set of records provided at this time went back only as far as January 19, 2009, and thus omitted the notes for T.G.'s appointments with Dr. Choy in 2008. On August 8, 2010, T.G. passed away due to liver disease and acute renal failure. On August 19, 2010, Dr. Choy received a letter from an attorney representing T.G.'s family, which requested copies of T.G.'s records. At this point, Dr. Choy feared that T.G.'s family would bring a medical malpractice lawsuit against him, and he "panicked" because he had never been sued before and did not have liability insurance. On reviewing the records, Dr. Choy concluded that some of the language was "ugly" and "didn't look right" as written. Wanting to make the records "as presentable as possible" for the lawyer, Dr. Choy decided to edit the electronic text. He then proceeded to delete some entries and add others without identifying any of the alterations. As a comparison of the original text to the revised text clearly reveals, Dr. Choy's self-confessed concern was obviously owing to the remarkable absence of any notes in the medical records pertaining to the possibility that T.G. might have pancreatic cancer as stated in the radiologist's report interpreting the June 2008 CT scan. This is apparent from the fact that, without significant exception, the sole purpose of the alterations is plainly to correct that particular, glaring deficiency. The covertly amended records convey the impression that Dr. Choy timely informed T.G. of the CT scan results and repeatedly urged her to see a specialist to investigate the findings further. Indeed, if one were unaware of the original, unaltered records, his review of the revised records would provide little or no cause to criticize Dr. Choy's handling of T.G.'s case. The inevitable inference is that Dr. Choy knew the original records would be persuasive, if not conclusive, evidence of his failure to inform T.G. of her potentially fatal condition, in violation of the standard of care, so he secretly (or so he thought) doctored the records to turn them into evidence that he had satisfied the standard of care. To see just how incriminating the alterations are, it is helpful to place the original and revised texts, respectively, side-by-side, as below. In the following table, the language printed in boldface identifies deletions from the original, contemporaneous record and additions to the much-later revised record (misspellings in original): Visit Date Contemporaneous Record Revised Record 6/30/08 ZZ-Dr Peter V Choy; Z-VP ZZ-Dr Peter V Choy; Z-VP EKG; Anemia Iron EKG; Anemia Iron Deficiency Deficiency – 2809 repeat – 2809 And abdominal pain Test if no Improvement we with and abnormal CT scan. will refer pt to GI We will refer pt to GI evaluation;Diabetes w/ evaluation for possible GI unspecified complication- malignancy of the 250.90; Hyperlipidemia- Pancreas;Diabetes w/ 2724; Hypertension-4019; unspecified complication- Hypertensive Heart Disease without HF 402.90; Hypothryoidism- 2449; Declining Function- 7993; Depression-311; Vertigo-7804 250.90; Hyperlipidemia- 2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism-2449; Declining Function-7993; Depression-311; Vertigo- 7804 9/03/08 A- Medically Stable; ZZ- Dr Peter V Choy; Z-VP EKG; Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism- 2449; Declining Function- 7993; Depression-311; Vertigo-7804 -; Abdominal Pain Unknown ET – 78900; Anemia – 2859 Pt was advice again to see a GI Dr. The possibility of a Ca of the pancreas was discuss with the pt; ZZ-Dr Peter V Choy; Z-VP EKG; Diabetes w/ unspecified complication-250.90; Hyperlipidemia-2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism-2449; Declining Function-7993; Depression-311; Vertigo- 7804 1/19/2009 Malaise and Fatigue and Malaise and Fatigue and Other -780.79; Declining Other -780.79; Declining Function-7993; Dizziness Function-7993; Dizziness and Giddiness - and Giddiness - 780.4;Diabetes mellitus 780.4;Diabetes mellitus Uncontrolled-25002; ZZ- m Uncontrolled-25002; ZZ- m Resently admitted to BH Resently admitted to BH with CHF Possible angina with CHF Possible angina Pectoris before Pectoris before admittion admittion Dr. Peter V Weight Loss Abnormal- Choy; Z-VP EKG; Diabetes 783.21; Abdominal Pain w/ unspecified Unknown ET – 78900 Possible complication-250.90; ca of the Pancreas; ZZ-Dr. Hyperlipidemia-2724; Peter V Choy; Z-VP EKG; Hypertension-4019; Diabetes w/ unspecified Hypertensive Heart complication-250.90; Disease without HF Hyperlipidemia-2724; 402.90; Hypothryoidism- Hypertension-4019; 2449; Declining Function- Hypertensive Heart Disease 7993; Depression-311; without HF 402.90; Vertigo-7804; Congestive Hypothryoidism-2449; Heart Failure-428.0 Declining Function-7993; associatted with Actos Depression-311; Vertigo- 7804; Congestive Heart Failure-428.0 2/11/10 A- Medically Stable; ZZ- Dr Peter V Choy; Z-VP EKG; Trigger finger on the right great finger.; Contusion Foot-924.20; Back Pain Lower-7242 and in the thoracic area;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Congestive Heart Failure- 428.0; Hypothryoidism- 2449; Back Pain Lower- 7242; Neuropathy Peripheral-3569 Trigger finger on the right great finger.; Contusion Foot-924.20; Back Pain Lower-7242 and in the thoracic area;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Congestive Heart Failure- 428.0; Hypothryoidism-2449; Back Pain Lower-7242; Neuropathy Peripheral-3569 3/31/10 A- Medically Stable; ZZ- Dr Peter V Choy; Z-VP EKG;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Hypothryoidism-2449; Back Pain Lower-7242; Neuropathy Peripheral- 3569; Hypertensive Heart Disease with HF 402.91 Dr Peter V Choy; Z-VP EKG; Weight Loss Abnormal-783.21 Again case was discuss with the Pt and she was advice of the abnormal finding;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Hypothryoidism-2449; Back Pain Lower-7242; Neuropathy Peripheral-3569; Hypertensive Heart Disease with HF 402.91 The alterations are clear and convincing proof of the material fact that Dr. Choy did not tell T.G. that the June 19, 2008, CT scan report stated she had a "[l]arge malignant tumor mass" in her pancreas, for a simple reason: he was unaware that a tumor mass was described in the report. This latter fact is evident from Dr. Choy's alarm, in August 2010, about the deficiencies in the records. Why, only then, did Dr. Choy realize that the records "didn't look right?" What did Dr. Choy know, without question, in August 2010, that he might not have known earlier? The answer, of course, is that in August 2010 Dr. Choy knew that the 2008 CT scan report disclosed the existence of a large mass in T.G.'s pancreas, a grave finding that should have been conspicuously noted in T.G.'s medical records. Dr. Choy's admission that the records looked "ugly" to him in August 2010 is revealing because, in fact, the records look bad only in the light of the 2008 CT scan results; but for that report, they would appear to be at least adequate, notwithstanding a few typographical errors. The bottom line is that if the CT scan report had contained no references to a pancreatic mass, then T.G.'s original medical records would have looked alright. The undersigned readily infers, therefore, without hesitation, that T.G.'s medical records looked fine to Dr. Choy when he originally wrote them because, when he originally wrote them, he was unaware that the 2008 CT scan report described a tumor mass in T.G.'s pancreas. Only later, after learning the full contents of the 2008 CT scan report, did the incriminating nature of the contemporaneous medical records become clear to Dr. Choy, who then, in his panic, made the costly mistake of tampering with the evidence. Dr. Choy's failure to read the 2008 CT scan report closely enough to take notice of its critical finding regarding T.G.'s pancreas, whatever the cause of that failure was, is sufficient to explain his failure to tell T.G. that she might have pancreatic cancer. Simply put, Dr. Choy did not tell T.G. about the pancreatic mass because he did not know of its existence. The parties stipulated that the minimum standard of care required that, within a reasonable time after June 19, 2008, Dr. Choy both: (1) notify T.G. that the results of the June 2008 CT scan suggested she had a mass in her pancreas; and (2) refer T.G. to an appropriate specialist for further evaluation and treatment of the pancreatic mass. Being unaware of the finding regarding a pancreatic mass, Dr. Choy did neither. Thus, his treatment of T.G. fell below the standard of care. T.G.'s family ultimately elected not to sue Dr. Choy, but in July 2011, T.G.'s son filed a complaint with the Department alleging that Dr. Choy had provided T.G. with substandard care. This consumer complaint set in motion the investigation which led to the instant proceeding. In connection with its investigation, the Department requested a copy of all T.G.'s electronic medical records from Dr. Choy going back to T.G.'s first visit in 1999. These medical records were printed from Dr. Choy's office computer system on July 27, 2011, and delivered to the Department in August 2011. On August 23, 2011, a Department investigator interviewed Dr. Choy regarding his care of T.G. The investigator——who was in possession not only of the recently produced records, but also copies of the records Dr. Choy's office had provided to T.G.'s family back in July 2010, before Dr. Choy had tampered with the electronic documents——asked Dr. Choy to explain why there were two different versions of the office notes for T.G.'s January 19, 2009, visit. After some initial hesitation, Dr. Choy admitted that he had altered the records to reinforce his case after learning he might be sued for malpractice. During the course of discovery in this proceeding, the Department asked Dr. Choy whether he had made any other changes to T.G.'s records besides the ones previously identified. Dr. Choy compared the printouts of T.G.'s untampered-with records given to the family in July 2010, which covered office visits from January 19, 2009, forward, to the fabricated versions provided to the Department in August 2011, and was unable to identify any additional changes. Neither the Department nor Dr. Choy was able to retrieve copies of T.G.'s original electronic records for the office visits prior to January 19, 2009, because Dr. Choy had overwritten the computer files when he altered the documents in August 2010. Consequently, the Department retained a forensic computer expert, who managed to recover the authentic records from a backup. Armed at last with a full set of T.G.'s medical records as they had looked on the dates Dr. Choy saw T.G., the parties were finally able to identify the changes Dr. Choy subsequently made to the office notes for the visits of June 30 and September 3, 2008. Ultimate Factual Determinations The Department has established by clear and convincing evidence that Dr. Choy made deceptive, untrue, or fraudulent representations in the practice of medicine. He did so by deliberately altering T.G.'s medical records with the intention of fabricating evidence to support his claim that he had timely informed T.G. about the mass in her pancreas, when in fact the authentic, contemporaneous records make no mention of the pancreatic mass. Dr. Choy is therefore guilty of the offense defined in section 458.331(1)(k), Florida Statutes. The Department has established by clear and convincing evidence that Dr. Choy failed to identify, as such, any of the material, after-the-fact revisions he made to T.G.'s medical records, so that the office notes appeared to be contemporaneous accounts of the patient's course of treatment, when in fact they were not, in violation of Florida Administrative Code Rule 64B8- 9.003(4). Dr. Choy is therefore guilty of the offense defined in section 458.331(1)(m). The Department has established by clear and convincing evidence that Dr. Choy committed medical malpractice in his treatment of T.G., by failing to timely inform her of the pancreatic mass seen in the CT scan in June 2008, and by failing to timely refer T.G. to a specialist for further investigation of the mass. Dr. Choy is guilty of the offense defined in section 458.331(1)(t)1. The Department has established by clear and convincing evidence that Dr. Choy concealed the material fact that he had altered the original, contemporaneous records of T.G.'s care and treatment when he knowingly produced T.G.'s revised medical records to the Department in August 2011 without disclosing that the records were not what they purported to be. Dr. Choy is guilty of the offense defined in section 458.331(1)(gg). The Department failed to prove that Dr. Choy interfered with its investigation. Dr. Choy was reasonably cooperative throughout the investigation, during the course of which, however, he committed the additional offense of concealing a material fact from the Department, for which he will be disciplined. Dr. Choy is therefore not guilty of the offense defined in section 458.331(1)(hh).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Choy guilty of the offenses described in sections 458.331(1)(k), 458.331(1)(m), 458.331(1)(t)1, and 458.331(1)(gg), Florida Statutes. It is further RECOMMENDED that the Board of Medicine revoke Dr. Choy's medical license and impose an administrative fine of $4,000. DONE AND ENTERED this 15th day of April, 2014, in Tallahassee, Leon County, Florida. S 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.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2014.
The Issue The question presented was whether the application of Julian L. Toler for a guard license should be granted or denied.
Findings Of Fact The record in this case reveals that the Division of Licensing, Department of State had indicated that it would deny Toler's application for a license on the basis that he had deliberately failed to reveal his arrest. Julian L. Toler is an applicant for a guard license issued by the Division of Licensing, Department of State. Toler filed his application, Exhibit 2, with the Division of Licensing, Department of State. Question 13 on that application asked "Have you ever been arrested?" with a box indicating yes and a box indicating no. Toler testified that he had checked the box no in response to question 13. The Department of State introduced evidence showing that Toler was arrested for unlawfully conspiring to violate the Internal Revenue Laws of the United States in 1939. Toler subsequently entered a plea of guilty to the charge and was placed on three months probation. Toler stated that he had not remembered the arrest and the entering of the plea when he filled out the application. The Department of State asked Toler to explain what appeared to be an arrest record in Ft. Pierce, Florida for passing a worthless bank check approximately 11 years ago. Toler explained that at that time he was the captain of a shrimp boat which was based in Carolina, and subsequent to the fishing season there he had moved the shrimp boat to Ft. Pierce, Florida where he continued fishing for shrimp. While there, the shrimp boat developed engine problems which he had repaired. The boat was owned by a company which employed Toler as captain of the boat. Toler had been given a blank check by the owner of the boat to use to cover any expenses. Toler used this check to pay for the repairs on the boat. Subsequently, he was contacted by a deputy sheriff and advised that the check was not good. Toler advised the deputy that he could not do anything about it at that time but that he would contact the owner of the boat and bring the money to the sheriff's department on the following Monday. On the Monday in question, Toler paid the money at the sheriff's office where he was photographed and fingerprinted. Toler stated that he did not feel that he had ever been arrested. The Department offered no evidence of arrest in Ft. Pierce. In his own behalf Toler introduced a letter from Marvin R. Self indicating that Toler had been employed with Self's company from 1973 until 1976 during which time he was a reliable and responsible employee. Mr. Self further states within his letter that he would not hesitate to vouch for Toler's honesty or character.
Recommendation Based upon the foregoing findings of fact and conclusions of law the Hearing Officer recommends that the Division of Licensing, Department of State issue a class F license to Julian Toler as an unarmed watchman, guard, or patrolman employee. DONE AND ORDERED this 21st day of July, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1978. COPIES FURNISHED: Julian Lloyd Toler 3041 South West 60th Avenue Ft. Lauderdale, Florida 33314 Gerald Curington, Esquire Assistant General Counsel Department of State New Capitol Building Tallahassee, Florida 32304 Marvin Sirotowitz, Bureau Chief Division of Licensing The Capitol Tallahassee, Florida 32304
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.
Findings Of Fact It was stipulated that the Respondent was certified as a law enforcement officer by the Petitioner on April 1, 1978. He holds certificate number 99-002304. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with enforcing the qualification and practice standards for law enforcement officers embodied in Chapter 943, Florida Statutes. Sometime in November, 1986, Diane Bouchard was traveling north on U.S. 1 in Nassau County. She acknowledged that she was traveling in excess of the lawful speed limit and believes she was traveling at approximately 60 miles per hour. Shortly after passing a truck weighing station, she observed a Nassau County Sheriff's patrol car, which had just passed her, turn around and follow her. She observed the blue light on that vehicle illuminate, at which point she turned to the side of the road and stopped. Mrs. Bouchard knew Officer Crews and he was acquainted with her and her family, including her husband. Mrs. Bouchard testified that Respondent got out of his patrol car and approached her vehicle while she was sitting in her parked vehicle behind the wheel. He did not ask her to get out of the vehicle. She says that he asked for her driver's license and she complied, handing Respondent her license. Mrs. Bouchard then testified that Respondent, while standing approximately 4 inches from her car door, told her that he had "clocked" her speed at approximately 75 miles per hour. He remarked that there was an $80 fine for such a traffic infraction and "points" which could be assessed against her driving record for a speeding violation. She stated that while he was standing next to her car door making these remarks, he began rubbing his penis through his clothing, becoming visibly sexually aroused. At approximately this same time, Mrs. Bouchard states that the Respondent told her that "we could work something out" regarding the ticket. Mrs. Bouchard then testified that the Respondent's actions and statement were taken by her to mean that he was attempting to extort sexual favors from her in return for forbearing to issue her a traffic citation. She maintains that she became extremely frightened as a result of these actions and attempted to dissuade the Respondent by reminding him that he knew her family. She maintains that the Respondent then stood alternately looking at her and looking at her driver's license for several more minutes and then announced that he was going to "let her go." She then drove home, according to her statement. Mrs. Bouchard maintains that she became very upset at this episode and was particularly sensitive to being victimized in this way because she had been sexually abused for approximately 13 years by her stepfather, even after she was married. She was reluctant to reveal the incident to her husband, but because she began having nightmares about the incident her husband became concerned, and so she told him about the episode approximately a week after the accident. She felt, however, according to her testimony, that no one would believe her if she reported the incident to law enforcement authorities. Approximately three months after the incident, however, she did report the matter to personnel of the Nassau County Sheriff's Department. The alleged incident supposedly occurred in close proximity to a truck weighing station at which a law enforcement officer was present and in close proximity, in the other direction, to a public campground. The incident occurred during daylight hours at approximately 5:30 or 6:00 p.m. on U.S. 1, a heavily traveled highway in Nassau County. The weigh station and campground are approximately a quarter of a mile apart. A Department of Transportation patrol car was at the weigh station and both the weigh station and the campground were in sight of the place where Mrs. Bouchard was allegedly stopped. Officer Crews was in uniform in a marked, Nassau County Sheriff's Patrol car. Mrs. Bouchard conceded that she had been speeding when she was pulled over and that Officer Crews never asked her to get out of her car. She conceded that he did not threaten her, touch her or actually expose himself to her. He did not write her a ticket. Mrs. Bouchard testified the reason she thought Officer Crews was "coming on" to her was because she associated certain gestures he was making with things her stepfather had done to her in the past. Mrs. Bouchard was referring to the history of sexual molestation of herself by her stepfather which she says occurred for an approximate 13-year-period after her mother kidnapped her from her natural father and she went to live with her mother and stepfather. During this time period and during the time in which Mrs. Bouchard elected not to report this alleged conduct by the Respondent, she and her husband were working at a garage that serviced Sheriff department vehicles and at which another police officer was employed. Police officers were frequent visitors to the garage, but she waited over three months before she spoke to anyone in law enforcement concerning this incident. Captain Chuck Moser of the Nassau County Sheriff's Department testified on behalf of the Petitioner. He interviewed Mrs. Bouchard on January 6, 1987. She told him that the above-described incident had occurred approximately 3 months earlier. She described the incident to Captain Moser much in the same way in which she described it in her testimony at hearing. Captain Moser did not reveal any other knowledge concerning the incident in question, and the Respondent, other than what Mrs. Bouchard had told him. Fuller Crews testified on his own behalf. He is 58 years old and has been married for the past 16 years. He was employed by the Nassau County Sheriff's Department from April 1, 1978 to November 10, 1987. In 1986, he was a lieutenant in the civil division and a traffic patrolman. He knows Mrs. Bouchard and her family and has even been fishing with her husband. In his work with the Sheriff's office, he has made several hundred traffic stops during his career. He does not remember every person that he ever stopped for a traffic infraction, nor did he make a practice of issuing a traffic citation to every person he stopped. Officer Crews often simply told offenders that he would let them go if they promised to slow down, or otherwise warned them with a lecture, depending upon the particular offender's attitude. He has no recollection of stopping Mrs. Bouchard, but does not deny that he may have done so. He adamantly denies ever asking Mrs. Bouchard for sex in exchange for forbearing giving her a traffic citation or making gestures which implied that intent. He stated that if he made any gestures in the act of getting out of his car and walking up to Mrs. Bouchard's car, it would have been in the nature of adjusting his gun belt or brushing his cigarette ashes off his trousers. The testimony of the Respondent and Mrs. Bouchard thus conflicts. There were no other witnesses to the episode. It is found that, even if Mrs. Bouchard did indeed feel that the Respondent was making sexual advances to her in return for his refraining from writing her a traffic citation, that her impression was mistaken. In reaching this finding, the Hearing Officer is mindful of the Respondent's apparent sincerity and candid demeanor on the witness stand, his past unblemished record, including his apparent record as a decent citizen and family man, as well as the unrebutted testimony concerning his past friendly relations with Mrs. Bouchard and her family. Mrs. Bouchard, on the other hand, while she may not have overtly lied about the circumstances of the incident, was mistaken in her impression of the Respondent's demeanor and intent in confronting her about the traffic infraction. It is found, based in part of Mrs. Bouchard's own testimony, that her impression of the Officer's intent in approaching her and manner of conversing with her, during this episode, was affected by her admitted past history of being sexually molested for a long period of time by her stepfather, such that she quite likely could have mistakenly associated some gestures, movements and comments made by the officer with a sexual advance or overture, when in fact the Respondent intended no such activity. Thus, Mrs. Bouchard's opinion, however sincere she holds it, is sufficiently colored and affected by her emotional situation, arising out of her past personal history, so that it cannot be considered competent evidence against the Respondent and cannot establish that the incident occurred as she described it. There is no other substantial evidence that would establish that the Respondent failed to maintain good moral character in regard to this incident, which is the only such incident charged in the Administrative Complaint.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Administrative Complaint filed against Fuller W. Crews, Sr. should be dismissed in its entirety. DONE AND ENTERED this 4th day of December, 1989 in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER NO. 89-1400 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. 4 Accepted. Accepted. Accepted. 7.-17. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and as not in accordance with the clear and convincing evidence of record. 18. Accepted. Respondent's Proposed Findings of Fact 1.-13. Accepted. COPIES FURNISHED: Joseph F. White, Esquire Department of Law of Enforcement P.O. Box 1489 Tallahassee, FL 32302 Robert J. Link, Esquire Howell Lyles and Milton 901 Blackstone Building P.O. Box 420 Jacksonville, FL 32201 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL 32302
The Issue The issues for disposition in this case are whether Respondent committed willful violations of section 106.07(7), Florida Statutes (2014), when its campaign treasurer failed to notify the filing officer that Respondent had not received funds, made contributions, or expended reportable funds during four 2014 reporting periods; and, if so, whether Respondent is subject to civil penalties in view of the holding in PAC for Equality v. Department of State, Florida Elections Commission, 542 So. 2d 459 (Fla. 2d DCA 1989).
Findings Of Fact Petitioner is the entity responsible for investigating complaints and enforcing Florida's election and campaign financing laws, chapters 104 and 106, Florida Statutes. § 106.25, Fla. Stat. Respondent is a political committee organized for the purpose of sponsoring and supporting a constitutional initiative to conserve and protect Florida’s scenic beauty, which is primarily directed to restrictions on billboards along Florida highways. Respondent has been a registered political committee since 2002. Prior to 2014, Respondent suspended its campaign to gather petitions to place the constitutional initiative on the ballot. Respondent has not abandoned the campaign, and the initiative remains legally active. Prior to 2014, Respondent’s most recent financial activity was an expenditure of $61.25 in the first quarter of 2011. Respondent’s assets during 2014 consisted of $157.50 held in a bank account. There were no contributions received or expenditures made by Respondent during the times pertinent to this proceeding. Respondent’s treasurer is Mr. Crescimbeni. Mr. Crescimbeni acknowledged his responsibility as treasurer to accurately report to the Division of Elections the contributions received and expenditures made by Respondent, and the dates of each. The reporting requirements were contained in a political committee handbook and copy of the Florida statutes that are provided by Petitioner to all political committees. Mr. Crescimbeni acknowledged having received and read both documents. Although some reporting requirements have changed since Mr. Crescimbeni’s receipt of the political committee handbook, Mr. Crescimbeni believed that he understood the reporting requirements. Mr. Crescimbeni understood that, since Respondent neither received contributions nor made expenditures, the requirement to submit a treasurer’s report was statutorily waived, though there was a requirement to notify the filing officer that a report was not being filed. In 2013, section 106.07 was amended, creating 33 reporting periods for calendar year 2014, significantly more than existed prior to the amendments. Ch. 2013-37, § 9, Laws of Fla.3/ Reports for the 33 reporting periods in 2014 were statutorily waived pursuant to section 107.07(7), inasmuch as there were no contributions or expenditures. Notifications of no activity were filed for each of the 33 reporting periods in 2014, all of which were timely, except the four identified in the Order of Probable Cause. The M5 Filing Period The notification of no activity for the 2014 M5 reporting period of May 1 through May 31, 2014, was due by midnight on June 10, 2014. The notification of no activity for the 2014 M5 reporting period was filed on Saturday, June 14, 2014, at 11:50:59 a.m. On the morning of Saturday, June 14, 2014, Mr. Crescimbeni picked up Respondent’s mail from the post office. He then traveled to his office, where he opened the mail. Among the items received was a notice from the Division of Elections advising Respondent that its M5 report had not been received by the filing deadline. The letter was dated June 11, 2014, and bore a postmark of June 12, 2014. When Mr. Crescimbeni realized his error, he immediately uploaded the report of no activity at 11:50 a.m. on the morning of June 14, 2014. Mr. Crescimbeni testified credibly that “[m]y delayed filing of the M5 notification of no activity was neither deliberate nor a repeated failure. It was simply an oversight and nothing more.” The P1 Report The notification of no activity for the 2014 P1 reporting period of June 1 through June 20, 2014, was due by midnight on Friday, June 27, 2014. The notification was filed on Saturday, June 28, 2014, at 9:34:11 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the PI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The G1 Report The notification of no activity for the 2014 G1 reporting period of August 23 through 29, 2014, was due by midnight on Friday, September 5, 2014. The notification was filed on Saturday, September 6, 2014, at 3:52:33 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the GI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The D2 Report The notification of no activity for the 2014 D2 reporting period of October 25, 2014, was due by midnight on Sunday, October 26, 2014. The notification was filed on Monday, October 27, 2014, at 10:12:15 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the D2 notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. As to each of the four notifications of no activity referenced above, Mr. Crescimbeni credibly testified that the delay was: [T]he result of my temporary inattention and each such delay was a simple and inadvertent omission on my part that was promptly remedied . . . . I was never indifferent to the required filings of notifications of no activity. Each such delay by me in making such filing of said notification was not intentional. Each such delay was not deliberate, purposeful, or with any intent or consciousness on my part to avoid the notification of “no” activity. Mr. Crescimbeni’ testimony is accepted. There was no evidence adduced at the hearing suggesting there to have been any financial or political advantage or benefit that could reasonably be derived from the late filing of the four notifications of no activity referenced above. The Commission does not investigate willfulness and does not make a finding of willfulness until after the determination of probable cause in a Probable Cause Hearing.
Findings Of Fact The Respondent, Michael L. Illes, holds law enforcement certificate number 02-24636. On or about December 1981, while on duty, the Respondent responded to a call from Deborah Raybin regarding a malfunctioning alarm system at her home in Broward County, Florida. At said time, the Respondent was employed by the Broward County Sheriff's Department in the capacity of a deputy sheriff. The Respondent went to the Raybin home in the routine course of his duties. The Respondent admitted having been to the Raybin home after December 1981 in response to further false alarms and on other occasions not related to his duties. However, no competent evidence was introduced that the Respondent harassed Ms. Raybin by going to her home while either on duty or off duty. No evidence was received in support of the allegations that the Respondent, while on duty, went to the Raybin home and offered pornographic movies to Ms. Raybin. The only competent evidence presented was the credible testimony of the Respondent that while at the Raybin house on official business on or about June 19, 1982, he was asked by Ms. Raybin for a video tape. Respondent admitted that on the night of June 23, 1982, he arrived at the Raybin house with said video tape. At that time, prior to his ringing Ms. Raybin's doorbell, Respondent was stopped by his shift supervisor and another officer of the Broward County Sheriff's Department. They were there in response to a telephone call from a person whose identity was not established by competent evidence. The Respondent was out of his assigned patrol zone and had not checked out of his patrol car (unit). While proceeding to the Sheriff's Department prior to the beginning of his shift, Respondent made a traffic arrest of a driver for driving while under the influence. Respondent was involved in booking the arrested driver until after 12:00 midnight on the evening of June 23, 1982. Thereafter, he went to the Raybin house. On the night shift, the policy regarding leaving an assigned patrol area was flexible, particularly during those periods in which on-duty personnel were on break or eating. While on break, officers were not required to be in their patrol zones. Respondent would have been entitled to a break at the time he was at the Raybin house. Conflicting testimony was received concerning whether officers were required to check out of their units while on break. The shift supervisor stated that officers were required to check out when on break or at meals. Respondent stated that the night shift officers did not customarily check out on breaks because criminals monitored their radio reports and committed crimes when they knew that the officers were on break or at meals. Neither side could substantiate their testimony with any written policy. No evidence was received regarding when officers would report that they were on break, i.e., when they left their assigned zone, when they arrived at a break location, or when they left their units. Based upon the testimony received and the fact that officers wore portable radio units, it is found that officers were required to check out if they intended to be away from their units for more than a few minutes. When stopped by his shift supervisor, the Respondent was wearing his police radio. Respondent's uncontroverted and credible testimony was that he had stopped at the Raybin house on his way to his break location to drop off the tape Ms. Raybin had requested and had not intended to remain at the Raybin house longer than was necessary to drop off said tape.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed against the Respondent, Michael L. Illes, be dismissed. DONE and RECOMMENDED this 22nd day of August, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1983. COPIES FURNISHED: William H. Ravenell, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Charles T. Whitelock, Esquire 1244 SE Third Avenue Fort Lauderdale, Florida 33316 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission 408 North Adams Street Post Office Box 1489 Tallahassee, Florida 32302
