The Issue The issues to be resolved in this proceeding concern whether the Petitioner's rights and benefits under the Florida Retirement System (FRS), should be forfeited for the reasons alleged in the Notice of Forfeiture of Retirement Benefits dated March 12, 2007.
Findings Of Fact The Division of Retirement (Division) is an Agency of the State of Florida charged with the responsibility of managing, governing and administering the Florida Retirement System (FRS) on behalf of the Department of Management Services. The FRS is a public retirement system as defined in Florida law. It provides benefits to local and state employees, including teachers, state legislators, local public officials, and public employees employed by local or state agencies which are members of the FRS. The Petitioner, Russell S. Lawler, was employed as a state employee by the Department of Health from August 1983 until he resigned his position in January 2004. Because he was employed by the Department of Health, the Petitioner became a participant in the FRS public retirement system as of August 1983. His benefits in the FRS became vested after 10 years, or in August 1993. On March 12, 2007, the Respondent Agency sent the Petitioner a Notice of Action to Forfeit Retirement benefits, in evidence as Respondent's exhibit six. The Division thus advised the Petitioner that it was proceeding under Section 112.3173(3), Florida Statutes, which provides that a public employee who is convicted of specified offenses committed prior to retirement, or who is terminated by reason of admitted commission, aid, or abetment of a specified offense, will forfeit all rights and benefits under the FRS. The Notice went on to list the six specified offenses in Section 112.3173(2)(e), Florida Statutes, which provide for the forfeiture of retirement benefits. The specified offenses include the committing, aiding, or abetting of embezzlement of public funds; of theft by a public officer or employee from his or her employer; bribery in connection with public employment; any felony specified in Chapter 838, except Sections 838.15 and 838.16, Florida Statutes; the committing of an impeachable offense, or The committing of any felony by a public officer or employee who, willfully and with intent to defraud the public or the public agency for which the public officer or employee acts or in which he or she is employed of the right to receive the faithful performance of his or her duty as a public officer or employee, realizes or obtains, or attempt to realize or obtain, a profit, gain, or advantage for himself or herself or for some other person through the use or attempted use of the power, rights, privileges, duties, or position of his or her public office or employment position. Ultimately, through the testimony of the Respondent's sole witness, Mr. Gaines and through Respondent's concession in its Proposed Recommended Order, the Division elected to proceed against the Petitioner solely under Section 112.3173(2)(e)6., Florida Statutes, the above-quoted statutory provision, which is the so-called "catch all" provision. After receiving this Notice from the Division the Petitioner submitted a timely Petition challenging the forfeiture of his retirement benefits on April 2, 2007. On April 26, 2007, the Petitioner submitted an Amended Petition to the Division, which was ultimately referred to the Division of Administrative Hearings and the undersigned Administrative Law Judge, who conducted the hearing on the above date. The Respondent Division, in essence, maintains that the Petitioner, who was employed as a pharmacist by the Department of Health, stole certain controlled substances or drugs from the Department of Health pharmacy where he was employed, and was convicted of illegal possession of controlled substances. It contends that such conduct constitutes violation of paragraph six of the above-quoted statutory provision, is the commission of a felony violative of that provision, and that forfeiture of his retirement benefits is appropriate. At the hearing the Respondent sought to introduce the following documents into evidence: the arrest and booking report dated December 31, 2003, (Respondent's Exhibit one); the state attorney's information dated January 16, 2004, as Respondent's Exhibit two; the plea of guilty entered by the Petitioner in that underlying criminal case, and the negotiated sentence, which is one document, dated March 14, 2004, as Respondent's Exhibit three; the Judgment of Conviction dated March 15, 2004, as Exhibit four and the related Judgment and Restitution Order of April 5, 2004, as Respondent's exhibit five. The Respondent was not the custodian of the records for the Respondent's Exhibits one, two, three, four, and five, which were obtained from the Clerk of Circuit Court in and for Duval County, Florida, and not from the Respondent's own maintained records. No foundation was laid for their admission under the business records exception to the hearsay rule, because no witness was called who could lay such a foundation. Moreover, they were clearly and admittedly acquired by the Respondent Division solely for the purpose of pursuing the forfeiture action against the Petitioner, the instant litigation. They were not shown to be business records maintained in the regular course of business by an appropriate foundation witness. They are also proffered as being admissible within the public records exception to the hearsay rule contained in Section 90.803(4), Florida Statutes, and as party admissions and, for that reason, admissible over hearsay objection. The admissibility issues are dealt with in the Preliminary Statement and in the Conclusions of Law below. Respondent's Exhibits one and two are inadmissible for the reasons delineated herein. Respondent's Exhibits three, four, and five have limited admissibility. Exhibit three, the Plea of Guilty and Negotiated Sentence is admissible as a party admission. The Judgment of Conviction, Respondent's Exhibit four, and the related Judgment and Restitution Order, Respondent's Exhibit five, are deemed, under Florida law, to be inadmissible under the public records exception to the hearsay rule contained in Section 90.803(4), Florida Statutes. They are not admissible to show the underlying facts upon which they are based or rendered. As judgments they have specific limited statutory admissibility under Section 92.05, Florida Statutes, merely to show that they were entered and they are valid. There is also limited authority to the effect that the Judgment of Conviction, to the extent that it is based upon the Guilty Plea, and therefore subsumes it, presumably can be admitted as a party admission. Since the guilty plea in the underlying criminal case related to this proceeding has been admitted as a party admission, such in this case is a distinction without any evidential or legal difference. The Respondent also proffered into evidence the deposition transcript of Deputy Chris Lavalley who is an officer of the Duval County Sheriff's Office. The deposition was noticed on July 19, 2007, with the deposition to be conducted (which it was) on August 13, 2007. The notice advised the Petitioner that the deposition was being taken for purposes of discovery, for use at trial, or for any other purpose for which it may be used under the applicable laws of Florida. On July 23, 2007, the Respondent noticed its serving of Answers to the Petitioner's Interrogatories in which the Respondent did not list Deputy Lavalley as a witness in that discovery response. During the deposition and thereafter the Respondent never notified the Petitioner's counsel that Detective Lavalley would not be called or available as a witness at the hearing, which was scheduled for August 22, 2007. Detective Lavalley was the author of the arrest and booking report contained in Respondent's exhibit one and was the arresting officer in the underlying criminal proceeding related to this forfeiture proceeding. The Respondent and Respondent's counsel made no showing before, during, or after the hearing in this case that Detective Lavalley was an unavailable witness as a predicate to an attempted introduction of Detective Lavalley's deposition (Respondent's Exhibit seven). The record reflects that Detective Lavalley is, or was, at times pertinent, an officer of the Duval County Sheriff's Office and this hearing was conducted in Jacksonville, in Duval County, Florida. There was no showing that he was beyond 100 miles from the hearing site or any other reason why he would be an unavailable witness. 12. The Respondent presented as its sole witness Mr. Ira Gaines, a benefits administrator in the Division's Bureau of Benefits Calculation. Mr. Gaines had no personal knowledge or competency to testify concerning any facts underlying the acts for which the Petitioner received the felony conviction at issue. He was not the custodian of the records of the Duval County Clerk or Circuit Court. He did establish he validly had access to the Division's own records in the pursuit of his regular duties and business for the Division and his bureau. He thus was able to establish that the name of the Petitioner and the Petitioner's Social Security number in the records of the Division, of which he had direct knowledge and access to, were the same as those depicted on the Respondent's exhibits. It was thus established that the defendant in the underlying criminal proceeding at issue is the same Russell S. Lawler as the Petitioner in this case, who is subject to this forfeiture proceeding. Mr. Gaines testified that in order for a retiree's benefits to be subject to forfeiture, that the retiree must be convicted of "a felony that related with the employment of that employer . . ." He also established, as the Respondent has conceded, that Section 112.3173(2)(e)6., Florida Statutes, is the specific and only offense for which forfeiture of the Petitioner's retirement benefits is sought in this proceeding. The Petitioner pled guilty to possession, actual or constructive, of a controlled substance (codeine) and is shown by the related judgment of conviction to be convicted of a third- degree felony in violation of Section 893.13(6)(a), Florida Statutes. Exhibit four shows that he was adjudicated guilty of such. The plea of guilty and negotiated sentence contained in Respondent's Exhibit three also shows that the court was to reserve jurisdiction for restitution. Respondent's Exhibit five, the Judgment and Restitution Order, shows restitution in the amount of $860.00 was to be made to the Department of Health and the Victim Compensation Trust Fund of the Office of the Attorney General. The above findings are all that the Respondent's evidence shows concerning the felony of which the Petitioner was convicted. The Respondent did not adduce any substantial, persuasive evidence or witnesses concerning the nature of the Petitioner's duties at the Department of Health or how those duties had any relationship to the crime the Respondent alleges to be the basis for the forfeiture action herein. The above admissible evidence does not show, for instance, where the Petitioner obtained the illegal controlled substances, possession of which, actual or constructive, he was convicted of, nor is there preponderant, persuasive evidence to show that, even though the order in exhibit five requires restitution to the Department of Health, what the restitution was for or for what purpose it was to be made. To presume more facts than shown on the face of that order would be speculation, and would not be based on admissible evidence. It could be for a number of reasons, such as to pay investigative costs to the Department of Health, or for other reasons, since it was based on a negotiated plea and restitution. Even if Exhibit five could be deemed to show that the Department of Health was a victim of a crime committed by the Petitioner, there was no preponderant, persuasive evidence by which it might be found that the Petitioner actually deprived his employer of anything of value, or acted at any time with the intent to defraud his employer, the public, and the Department of Health of the right to receive the faithful performance of his duties as a public officer or employee. There was no preponderant, persuasive evidence to show that the Petitioner realized, obtained, or attempted to realize or obtain a profit, gain, or advantage for himself or for some other person, by the use or attempted use of the power, rights, privileges, duties, or position of his public office or employment position. There was simply no evidence adduced to show what his duties were or to show how the function of his duties or his employment position might have a relationship to the crime for which he pled guilty and was convicted. Thus, there is no preponderant, persuasive, admissible evidence which is competent to show that a specified offense, as contemplated in Section 112.3173(2)(e)1-6, Florida Statutes, was committed. The Petitioner has filed a Motion for Attorney's Fees pursuant to Section 57.105, Florida Statutes, and provided the Respondent notice of his intent to seek attorney's fees under that section.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Management Services, Division of Retirement, finding that the Petitioner's retirement benefits should not be forfeited and that all such benefits be restored. DONE AND ENTERED this 30th day of January, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 30th day of January, 2008.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of his disability in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact In October 1995, Mr. Meiselman suffered a traumatic brain injury as a result of a serious automobile accident, caused by a drunk driver. Due to the traumatic brain injury, among other things, he suffers from short-term memory loss, seizures, and depression. Because of the short-term memory loss, tasks performed by Mr. Meiselman must be repetitive. Mr. Meiselman’s seizures are mostly petite-mal, not grand-mal, and he takes medication for them. When he has a seizure, he gets embarrassed about his disability and very frightened and does not want to be around people. Also, during a seizure, he thinks about the drunk driver who caused the accident and curses during the seizure. Further, when he has a seizure, Mr. Meiselman needs to “cool-down,” but, if that does not calm him and ease the seizure, an ambulance needs to be called. In September 1997, Mr. Meiselman was approved for social security disability by an administrative law judge of the Social Security Administration (SSA ALJ). At the hearing before the SSA ALJ, medical evidence was presented supporting an organic mental disorder, producing memory impairment and disturbance in mood; and supporting an affective disorder, producing major depression. The SSA ALJ found that Mr. Meiselman had “impairments” of a “closed head injury and major depression,” which were considered “severe”; and that the impairments prevented Mr. Meiselman from “maintaining appropriate levels of attention and concentration, and interacting with others on a sustained basis.” Additionally, the SSA ALJ found that Mr. Meiselman's activities of daily living (ADLs) were restricted or limited to the moderate level. It is not disputed that Mr. Meiselman suffers from a disability because of his memory and cognitive difficulties. On or about April 16, 2001, Mr. Meiselman completed an application for employment with the Clerk. At or about the time of his application, Mr. Meiselman submitted to the Clerk’s Human Resources office information regarding his approximate two-year lapse in employment and disability, as determined by the SSA, including his memory impairment and his suffering from seizures.2 However, Human Resources had no record of such information. On June 18, 2001, Mr. Meiselman was employed by the Clerk in the position of Archives Coordinator. He was placed in the Archives Department at the Clerk’s Deerfield location in the Warehouse. The manager of the Warehouse was Freddie Allen. Among other things, Mr. Meiselman’s work involved repetitive work and very little driving, both of which were needed in order for him to properly function in the position. No accommodation was requested by Mr. Meiselman. No accommodation was offered by the Clerk. Mr. Meiselman’s training for working in the Warehouse took six months. Normally, the training takes no more than one month. During Mr. Meiselman’s probationary period, he received monthly evaluations from Mr. Allen. No deficiencies were noted by Mr. Allen on the evaluations. Mr. Meiselman’s last evaluation in November 2001 reflected a ranking of above average in all of the categories being evaluated, except one, in which he received a ranking of excellent. After his probationary period, Mr. Meiselman received yearly performance appraisals. For the period of June 18, 2002, through June 18, 2003, his overall performance was rated as average. The performance appraisal reflects the Assistant Director of Support Services, Deborah Hitchcock, as the evaluator. Mr. Meiselman received an overall rating of average even though, on June 18, 2002, he received an “Oral Warning” for “unprofessional conduct” from Mr. Allen for an incident that occurred on May 28, 2002. Mr. Meiselman and another employee engaged in a verbal confrontation, but no physical contact, disrupting the work of fellow employees. Also, during that appraisal period, on February 12, 2003, Mr. Meiselman appeared to have experienced a medical incident that concerned Ms. Hitchcock to the degree that she authored an “Incident Report.” Mr. Meiselman was assisting in the unloading of boxes from a truck. Afterwards, Ms. Hitchcock observed him walking down a corridor; and he was pale, sweaty, incoherent, not responding to her attempts to talk with him, and repeatedly attempting to push open doors that required a key card to open. Other employees took measures to cool him down and paramedics were called. Mr. Meiselman was treated for heat- related problems and was permitted to drive himself home. Ms. Hitchcock was informed by Mr. Allen and another employee, Tom Williams, that they had observed Mr. Meiselman exhibiting the same conditions and behavior on prior occasions. Mr. Allen was aware of Mr. Meiselman's traumatic brain injury.3 Additionally, once, Mr. Allen observed Mr. Meiselman sweating abnormally and asked Mr. Meiselman whether anything was wrong. Mr. Meiselman responded that he was having a seizure, but Mr. Allen did not call an ambulance. The next day, February 13, 2003, Ms. Hitchcock asked Mr. Meiselman whether his conditions and behavior on the previous day were a health concern. He informed her that he believed that he had become overheated and that he was having a blood test performed later. Mr. Meiselman did not state to Ms. Hitchcock that he had suffered a seizure. Nor did he indicate to her that he suffered from seizures. On February 14, 2003, by memorandum, Ms. Hitchcock requested Mr. Meiselman to obtain clearance from his physician to return to work for full job-related duties at the Warehouse. Further, she informed him that he was not to use ladders and that she would also advise Mr. Allen of the restriction. On or about February 21, 2003, Mr. Meiselman obtained and submitted the clearance to return to “full activity at work” from his physician. He returned to work without any restrictions. For the period of June 18, 2003, through June 17, 2004, Mr. Meiselman’s overall performance was rated as needs improvement, with continued employment to be evaluated. The signature page was not attached to the performance appraisal. However, an inference is drawn and a finding of fact is made that Ms. Hitchcock was also the evaluator on this performance appraisal. On January 30, 2004, Ms. Hitchcock gave Mr. Meiselman an "Oral Warning" for his "quality of work" regarding a situation involving the destruction of public documents. Some boxes of parking citations were missing and could not be located. The subject boxes were public documents and, in compliance with Florida's public records law concerning retention, were not scheduled for destruction. Mr. Meiselman was in charge of the destruction of such boxes in compliance with Florida's public records law. The determination was made that the boxes had been destroyed and that they were destroyed contrary to Florida's public records law concerning retention. Mr. Meiselman was held responsible for the error. On March 5, 2004, Ms. Hitchcock gave Mr. Meiselman an "Informal Write Up" for his "quality of work" and "carelessness." The previous day, March 4, 2004, she was unable to locate a record disposition form in Mr. Meiselman's office that she needed. Ms. Hitchcock had previously advised Mr. Meiselman in writing about organizing and completing his disposition forms and files and reporting his dispositions in order for others to complete the tasks and to be able to locate documents in his absence. She informed him in the Informal Write Up that future issues in quality of work or carelessness would result in progressive discipline. On May 17, 2004, Ms. Hitchcock issued Mr. Meiselman a Corrective Action Statement (CAS) for his "carelessness" and "quality of work." She considered his work performance as inadequate. This action by Ms. Hitchcock was the first step of progression discipline. The CAS advised Mr. Meiselman, among other things, of the specific nature of his performance deficiencies and the detrimental effect of those deficiencies. Further, the CAS advised him that the consequence of his failure to improve his work performance would result in "continued progressive discipline, up to and including suspension or termination." Ms. Hitchcock met with Mr. Meiselman to review the CAS with him. In attendance, also, was Mr. Allen at Ms. Hitchcock's request. As Mr. Meiselman was reviewing the CAS, Mr. Allen observed a negative change in Mr. Meiselman's facial expression, which caused Mr. Allen to be concerned. Mr. Allen positioned himself between Mr. Meiselman and Ms. Hitchcock and asked Mr. Meiselman to calm down, which he (Mr. Meiselman) did. Even after the CAS, Ms. Hitchcock did not observe improvement in Mr. Meiselman's work performance. As a result, she prepared a second CAS and submitted it to the Clerk's Chief Director of Human Resources, Patricia Mosely, for review. After reviewing the pending second CAS, Ms. Mosely met with Mr. Meiselman. She reviewed the pending second CAS with him and indicated to him that it would jeopardize his continued employment. As an option, Ms. Mosely offered Mr. Meiselman a position in the Central Courthouse mailroom as a clerk. She advised him that, if he accepted the mailroom clerk's position, the pending second CAS would not be approved. The mailroom position was a lower position; but, it required repetitive tasks to be performed, which was what Mr. Meiselman indicated that he needed in a position, and was less demanding. Furthermore, he was able to perform the essential function required in the mailroom position. Additionally, during the meeting, Ms. Mosely asked Mr. Meiselman whether he was able to perform the physical aspects of his job in the Warehouse. He responded that he had a condition, but did not indicate what the condition was or whether the condition prevented him from performing his duties. Ms. Mosely provided the Clerk's "Physician's ADA [Americans with Disabilities Act] Questionnaire" to Mr. Meiselman and indicated to him that it needed to be completed in order for the Clerk to recognize a medical condition or disability. Mr. Meiselman accepted the position. The pending second CAS was not issued. The Physician's ADA Questionnaire was not returned to Ms. Mosely. On August 9, 2004, Mr. Meiselman began working at the mailroom. His supervisor was David Tomkins. Mr. Tomkins was already aware of Mr. Meiselman as a result Mr. Meiselman having worked at the Warehouse. Sometime after Mr. Meiselman began working at the mailroom, Mrs. Meiselman came to the mailroom and informed his co-workers about his seizures; this embarrassed him. She explained to Mr. Meiselman's co-workers what happens to him when he has a seizure and what they should do--let him cool-off and, if necessary, call an ambulance. Additionally, she provided the mailroom staff with her telephone numbers, which were placed in the mailroom. Mr. Tomkins had some knowledge of seizures because his wife suffered from grand-mal seizures, which were more severe than Mr. Meiselman's seizures. However, Mr. Tomkins had no knowledge of petite-mal seizures, which is the kind of seizure experienced by Mr. Meiselman. The Clerk did not offer and Mr. Meiselman did not request any accommodations at the mailroom when he began his new position. For the first month of his four-month probationary period in the mailroom clerk's position, Mr. Meiselman received a performance evaluation. For the period of August 9, 2004, through September 9, 2004, he received a performance rating of good, which indicated that he performed at a competent and dependable level and that he met the performance standards of the job. The performance evaluation was signed by the evaluator, Mr. Tomkins, on September 27, 2004, Ms. Hitchcock on September 28, 2004, and the Chief Director of Support Services, Crystal Pressey, on September 28, 2004. A few days later, on October 1, 2004, Mr. Meiselman signed the performance evaluation. He made comments on the evaluation, which included that he had a "disability of a traumatic brain injury," and that, because of his disability, he had problems remembering his duties that were not done repetitively. Mr. Meiselman did not request any accommodation for his disability. Again, he did not submit the Physician's ADA Questionnaire. The Clerk did not offer any accommodation for Mr. Meiselman's disability. Even though his first month's performance was rated as good, Mr. Meiselman's experienced subsequent problems. On November 15 and 16, 2004, Mr. Meiselman was late for work two hours and four and one-half hours, respectively. He advised Mr. Tomkins that he had a doctor's appointment on each of the days. However, Mr. Meiselman had neither called-in nor requested the time-off in advance, as he had been instructed to do. On November 17, 2004, Mr. Tomkins, along with Ms. Hitchcock, met with Mr. Meiselman regarding the proper procedure for requesting time-off and reporting emergency time- off from work. During the meeting, Mr. Tomkins requested Mr. Meiselman to read his (Mr. Meiselman's) calendar card, which contained two separate notations by Mr. Tomkins that Mr. Meiselman had been counseled by him (Mr. Tomkins) about requesting leave for medical situations. After reading the calendar card, Mr. Meiselman raised his voice, shouted, and became argumentative; he eventually calmed down, but, afterwards, said very little, mostly staring. The proper procedure for requesting time-off and reporting emergency time- off from work was explained to Mr. Meiselman, and he was provided with an application for leave. At the conclusion of the meeting, Mr. Tomkins requested Mr. Meiselman to initial the back of the calendar card to indicate that he (Mr. Meiselman) had read the calendar card; and that the meeting, regarding the proper procedure for taking time-off from work, had taken place. However, instead of initialing the back, Mr. Meiselman wrote a comment on the back and the front of the calendar card. On February 10, 2005, Mr. Tomkins sent an employee, Annie Baugh, to assist in the mailroom. Almost immediately after arriving in the mailroom, Mr. Meiselman accused her of being a spy for management and spying on him. Additionally, a mail basket was not in its usual location, and, while sorting some letters, Mr. Meiselman threw some of the letters on the floor and into Ms. Baugh's back. She requested Mr. Meiselman to pick-up the letters off the floor, so she would not slip and fall, and to stop hitting her in the back with the letters. Mr. Meiselman stopped hitting her in the back with the mail and began to pick-up the mail when he slipped and cut his arm. Mr. Meiselman wiped the blood from his arm on the edge of Ms. Baugh's desk; the blood being on the desk frightened her. Ms. Baugh reported the incidents. On February 11, 2005, a CAS was issued by Cathy Kellerman, the Court Operations Manager, to Mr. Meiselman, regarding the incidents on February 10, 2005, for "misconduct," "behavior," and "violation of personnel policies." Additionally, his previous violations of personnel policies were taken into consideration. This CAS was Mr. Meiselman's second CAS. He was given a two-day suspension and, among other things, as advised to seek counseling regarding his anger and provided contact information for counseling. Regarding the incidents on February 10, 2005, Mr. Meiselman denied and denies that he did anything in anger, but that he acted in a joking manner; and that he intentionally hit Ms. Baugh in the back with the mail, but that it was accidental. Further, he denied and denies that he put blood on the desk. The evidence is more persuasive that Mr. Meiselman committed the acts and conduct complained of on February 10, 2005. On May 2, 2005, Mr. Meiselman was counseled by Ms. Kellerman for taking inappropriate breaks. He was taking three, five-minute breaks in the morning and one in the afternoon. She advised him that he was entitled to only one, 15-minute break in the morning and in the afternoon. Mr. Meiselman informed Ms. Kellerman that he had submitted doctor's notes to Human Resources indicating that he needed the breaks that he was taking. On May 11, 2005, Ms. Kellerman checked with Human Resources, regarding the doctor's notes, but, no doctor's notes were on file. That afternoon, she saw Mr. Meiselman taking two breaks and, again, counseled him regarding the breaks. Further, she provided him with the Physician's ADA Questionnaire. About two days later, around mid-day on May 13, 2005, Ms. Kellerman was notified that Mr. Meiselman was having a seizure. She had no knowledge that he suffered from seizures. Immediately, Ms. Kellerman went to the mailroom. She found Mr. Meiselman sitting down at his desk, with his eyes closed. Ms. Kellerman got his attention, and he opened his eyes and told her that he had had a seizure, but did not need medical attention. Ms. Kellerman continued to try to talk to Mr. Meiselman when he began writing in a forceful manner on his desk with a pencil and stated that he was "going to kick their fucking asses." She became very concerned for Mr. Meiselman and the safety of the other workers. Ms. Kellerman tried to get Mr. Meiselman to stand-up in an effort to get him to Human Resources, but he could not stand. She then left the mailroom to get the assistance of the Assistant Director of Human Resources, Bob Hosto. Ms. Kellerman and Mr. Hosto returned to the mailroom and found Mr. Meiselman sitting at his desk, with his eyes closed. Mr. Meiselman opened his eyes; saw Mr. Hosto; and began stating over and over again that he did not want Mr. Hosto to be there, and, at the same time, pounding his fist on his desk over and over again and louder and louder. Eventually, without looking at anyone in particular, Mr. Meiselman shouted "get the fuck out of here." At that point, Ms. Kellerman was concerned for the safety of Mr. Hosto, herself, and the staff in the mailroom. She immediately left to get an officer from security or the Broward Sheriff's Office (BSO). Mr. Hosto also left the mailroom. Shortly thereafter, Ms. Kellerman and Mr. Hosto returned to the mailroom, but, Mr. Meiselman was gone. He had left the mailroom and clocked-out of work. On that same day, May 13, 2005, Mr. Meiselman's neurologist, Fernando Norona, M.D., provided a statement regarding Mr. Meiselman's brain injury. The statement indicated, among other things, that Mr. Meiselman suffered a traumatic brain injury, which caused Mr. Meiselman's current seizure disorder; and that Mr. Meiselman needed to take short frequent breaks during the day in order not to cause severe fatigue, which could trigger mini-seizures. No statement from Dr. Norona or any other physician, regarding Mr. Meiselman's traumatic brain injury, his seizures, and his need for frequent breaks, had been submitted to the Clerk prior to Dr. Norona's statement of May 13, 2005. On May 16, 2005, a third CAS was issued by Kathy Dean, the Director of Court Services, Division I, to Mr. Meiselman for "misconduct" and "behavior." The third CAS addressed the incident on May 13, 2005; the violations of the Clerk's written policies as a result of the incident; and the previous disciplinary actions taken against Mr. Meiselman. The final determination, based on progressive discipline, was the termination of Mr. Meiselman, on that same day, May 16, 2005; however, the third CAS indicated that he would be permitted to resign, if he so chose to do so. Additionally, on May 16, 2005, Mr. Meiselman wrote a statement on the third CAS. His statement indicated, among other things, that he had had two seizures on May 13, 2005; that he had become nervous and scared before Mr. Hosto arrived; that he had calmly told Mr. Hosto that everything was fine and requested Mr. Hosto to leave him alone, but that Mr. Hosto would not and kept pushing; and that he had a scheduled appointment with his doctor to have his medication increased, with the low dosage of his medication probably being the cause his seizures and behavior on that day. Mr. Meiselman was terminated on May 16, 2005. He was terminated in accordance with the Clerk's progressive discipline. At no time was the Physician's ADA Questionnaire returned to the Clerk. Mr. Meiselman's income for the year 2002 was $38,771; for the year 2003 was $39,114; for the year 2004 was $32,929; for the year 2005 was $8,881; for the year 2006 was $800; and for the year 2007 was $13,204, which was benefits paid from pension and annuities.
Conclusions For Petitioner: Glen Meiselman, pro se 8067 Mizner Lane Boca Raton, Florida 33433 For Respondent: Thomas H. Loffredo, Esquire GrayRobinson, P.A. 401 East Las Olas Boulevard, Suite 1850 Fort Lauderdale, Florida 33301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Glen Meiselman against the Broward County Clerk of Court. DONE AND ENTERED this 3rd day of September, 2010, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 3rd day of September, 2010.
Findings Of Fact Petitioner was, at all times pertinent to these proceedings, an employee of Respondent in its Miami District Office. Petitioner began her employment with Respondent on September 18, 1974, in the position of Secretary During her employment, she was promoted to Secretary II and then to Secretary III. The position of Secretary III was subsequently reclassified to the position of Secretary Specialist. Petitioner's immediate supervisor since 1982 was Dr. Arnold Cortazzo, Respondent's District Program Administrator. At the time of the alleged event of discrimination, Petitioner was employed as a Secretary Specialist and was under the immediate supervision of Dr. Cortazzo. On January 30, 1987, Respondent published a Job Opportunity Announcement for the position of Staff Assistant in the Miami District Office. Dr. Cortazzo prepared the Position Description which included the following descriptions of duties and responsibilities, and the respective percentages of time for each: 15% - Conducts client satisfaction surveys and reports on results to Program Manager. 15% - Conducts follow-up studies on Vocational Rehabilitation clients, compiles and analyzes results, and submits findings to Program Manager. 10% - Performs special assignments for Program Manager such as monitoring the action plans, surveys, and requests for information. 15% - Coordinates the work flow of the District XI Division of Vocational Rehabilitation Office. 05% - Orders forms and supplies of the District Program Office. 10% - Checks for accuracy monthly attendance and leave reports for District Program Office. Also keeps record of accumulative leave earned and used. Distributes monthly leave report to district offices. 25% - Acts as liaison to Support Staff Council, assists the training coordinator in training support and clerical staff. 05% - Other related duties as required. The Position Description for the Staff Assistant position set forth the following as being the knowledge, skills, and abilities necessary to perform the job: Knowledge of office procedures and practices. Knowledge of the principles and techniques of effective verbal and written communication. Knowledge of the methods of data collection. Knowledge of basic arithmetic. Ability to understand and apply applicable rules, regulations, policies, and procedures. Ability to deal with the public in a tactful and courteous manner. Ability to perform basic arithmetical calculations. Ability to work independently. Ability to utilize problem solving techniques. Ability to plan, organize, and coordinate work assignments. Ability to communicate effectively verbally and in writing. Ability to establish and maintain effective working relationships with others. The Position Description for the Secretary Specialist position held by Petitioner in 1987 contained the following duties and responsibilities and the percentage of time for each: 35% - Transcribes dictation from dictating equipment or rough drafts from Program Manager. Types documents for Program Manager. 12% - Receives and reads incoming mail for Program Manager, screens items which can be handled personally, and forwards the rest to Program Manager. Screens Program Manager's incoming calls. 05% - Maintains calendar tickler file for Program Manager on important correspondence and documents, follows up on work in process to insure timely reply or action. 03% - Acts as office receptionist in the absence of other secretarial/clerical staff. 35% - Assembles and summarizes information upon request of Program Manager from files and documents in the office or other available sources. 05% - Composes and signs routine correspondence of a nontechnical nature from verbal instructions of Program Manager. 02% - Keeps Program Manager's calendar by scheduling appointments and conferences with or without prior clearance. 03% - Files Program Manager's correspondence and other materials and maintains the Program Manager's file. The following were listed as the knowledge, skills, and abilities required for the Secretary Specialist position: Knowledge of the techniques for handling telephone calls in a courteous and efficient manner. Skill in typing. Ability to transcribe dictation using notes or a dictating machine. Ability to organize files and other records. Ability to perform basic arithmetical calculations. Ability to use correct spelling, punctuation, and grammar. Ability to type letters, memoranda and other standar business forms in correct format. Ability to operate general office equipment. Ability to handle telephone calls in a courteous and effective manner. Ability to plan, organize, and coordinate work assignments. Ability to communicate effectively verbally and in writing. Ability to establish and maintain effective working relationships with others. At the times pertinent to this proceeding, Dr. Cortazzo was the Program Manager referred to by the job descriptions for both the Staff Assistant position and the Secretary Specialist position. The deadline for the filing of applications to fill the Staff Assistant position was set for February 12, 1987. Prior to the deadline, six applications for the position were received for the position. One applicant withdrew her application prior to the interview stage. Included among the applications received in a timely manner were the application of Petitioner and the application of Eulalia Diaz. The applicants were asked to resubmit their applications because the original applications were misplaced. Consequently, the applications in Respondent's files are replacement applications that were received after the advertized deadline. Dr. Cortazzo prepared a list of criteria to be used in the ranking of the applicants and a list of interview questions. Dr. Cortazzo thereafter interviewed the remaining five applicants and asked each of them the same interview questions. Dr. Cortazzo then selected three finalists for the position. Both Petitioner and Ms. Diaz were among the three finalists. Prior to his interviews, Dr. Cortazzo had asked that the four Human Services Program Administrators employed by Respondent in the District interview the top three candidates and to recommend to him their top candidate for the position. Dr. Cortazzo made no effort to influence the interview process followed by these administrators. These administrators were unanimous in their recommendation of Eulalia Diaz as the top candidate for the position. After receiving the recommendation from the four Human Services Program Administrators, Dr. Cortazzo ranked the three finalists using the criteria he had previously developed. Ms. Diaz received the highest ranking of the three finalists. Dr. Cortazzo thereafter made the decision to employ Ms. Diaz as the Staff Assistant. Petitioner's alleged handicap had no bearing on Dr. Cortazzo's decision to hire Ms. Diaz as the Staff Assistant. Petitioner has a congenital deformity of the right leg which resulted from her umbilical cord being wrapped around her right leg at birth. As a consequence, her right leg did not fully develop. She has circulation problems in her right leg and her right leg is both shorter and weaker than her left. Petitioner cannot sit, stand or walk for long periods of time. She wears an orthopedic shoe and walks with a slight limp and an unsteady gait. During the course of her employment with Respondent, she has had to utilize crutches on two occasions for brief periods of time after her right leg had become infected from a cut. Her condition has had, at most, a minimal impact on her ability to perform her job. During the period of time of July 1977 to October 1986, Petitioner received thirteen job evaluations. For each of these evaluations, Petitioner received an overall evaluation of either outstanding or exceeds performance standards. The last six of these evaluations were by Dr. Cortazzo. There was a conflict in the testimony as to the duties Petitioner was actually performing. Petitioner contends that the job description for the Secretary Specialist position does not adequately describe the duties she was actually fulfilling. Petitioner contends that she was essentially performing the duties and responsibilities of the Staff Assistant before the position was created. Respondent contends that the duties Petitioner was performing were primarily secretarial and that the job descriptions and the skills required to fill these positions are separate and distinct. This dispute is resolved by finding that the Secretary Specialist job description adequately describes the job Petitioner was performing and that she was not essentially performing the duties and responsibilities that were expected of the Staff Assistant.
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's charge of discrimination against Respondent. DONE AND ENTERED this 1st day of October, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6823 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1 and 2 are rejected as being conclusions of law. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order and are rejected in part as being conclusions of law. The proposed findings of fact in paragraph 4, 5, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6 and 7 are rejected as being contrary to the greater weight of the evidence. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-2, 4, 7, 9-11, and 13-19 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-6, 8, 12, and 20-21 are rejected as being unnecessary to the conclusions reached. (There are two paragraphs numbered 3, both of which are rejected as being unnecessary to the conclusions reached.) Copies furnished: Edward A. Dion, Esquire Assistant General Counsel Department of Labor and Employment Security 2562 Executive Center Circle West, Suite 131 Tallahassee, Florida 32399-0657 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32399-1570 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, Esquire General Counsel 307 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0658 Gladys Laroche 455 N.E. 159th Street North Miami Beach, Florida 33162 Arnold Cortazzo Department of Labor and Employment Security 401 N.W. Second Avenue, Room S221 Miami, Florida 33128 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road --Suite #240 Building F Tallahassee, Florida 32399-1570
The Issue Whether Respondent violated Sections 491 and 455, Part II, Florida Statutes (1999) (currently Section 456, Florida Statutes), and the rules promulgated pursuant thereto; and if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: At all times material, Respondent held license number LSW 4434 to practice clinical social work in the State of Florida. Petitioner is the state agency that licenses and has regulatory jurisdiction of Clinical Social Workers. Section 491.009(2), Florida Statutes. From November 1996 until late 1997, Respondent had a joint practice with Gerardo Olivera, M.D., at 501 East Olympia Avenue in Port Charlotte, Florida. On January 3, 1998, Respondent relocated her practice, Creative Care Enlightened Path to Healing ("Creative Care"), to 22091 Elmira Boulevard, Port Charlotte, Florida. Respondent provided therapeutic services to patient C.L., who sought counseling to help deal with her father's death. C.L. knew Respondent as Dr. Deborah Olivera, and believed Respondent was a physician. Respondent never clarified with C.L. that she held only a clinical social work license. Respondent prescribed the medications Pamelor, Klonopin and Soma to C.L. Pamelor is a trade name for nortriptyline, an antidepressant. Klonopin is a trade name for clonazepam, an anticonvulsant generally used to prevent epileptic seizures. Soma is a trade name for carisoprodol, a muscle relaxant. Respondent would telephone the prescriptions in for C.L., who would then pick them up from the pharmacist. Social workers are not allowed to prescribe medications. Prescribing medication is outside the scope of practice for a clinical social worker. A social worker can discuss medications with a patient but is not permitted to recommend that the patient change medication. Social workers are not allowed to write out prescriptions. On at least one occasion, Respondent did not show up for an appointment with C.L. Respondent moved her office location without telling C.L., who felt "abandoned" by her therapist. Respondent did not take notes during her counseling sessions with C.L., and spent large portions of the sessions talking about herself and her own problems. Respondent would also embark on "odd" conversational tangents during the sessions, such as complaining that the weather system called "El Nino" was misnamed because "El Nino" means "little boy," and a little boy would not do the things that "El Nino" did. C.L. believed that Respondent did nothing to help her with her emotional problems. Respondent provided counseling services to S.S. from June 1997 until November 1998. In January 1998, S.S. began working for Respondent at Creative Care. S.S. worked at Creative Care until November 1998, when the clinic was closed by Medicaid fraud investigators. S.S. was employed as the office manager, under Respondent's direct supervision. Her job duties included scheduling patients, billing, running business errands, and running personal errands for Respondent. S.S.'s children received counseling from Respondent from June 1997 until October 1998. While working for Respondent, S.S. opened an American Express account. S.S. was the primary cardholder. At Respondent's direction, S.S. charged business expenses for Creative Care to her American Express card. S.S. obtained a second card under this account in the name of Deborah Vasta, a name used by Respondent. As the primary cardholder, S.S. was responsible for paying charges made on the card issued in the name of Deborah Vasta. Respondent gave S.S. the authority to enter into contracts on behalf of Creative Care. S.S. signed as the personal guarantor of a contract between Sanwa Leasing Corporation and Creative Care for the lease of computer equipment. S.S. agreed to sign as guarantor because Respondent was unable to obtain credit in her own name due to past financial difficulties. In February or March 1998, S.S. became the corporate treasurer of Creative Care and held that position until February 1999, when S.S. asked to be removed. S.S. did not have access to corporate funds. When Respondent was away on vacation, S.S. bought furniture for the office and for Respondent's home, and paid office expenses, using her own bank account or credit cards. Respondent did not reimburse S.S. for these purchases. Respondent used S.S.'s car as her own. Respondent was involved in a traffic accident while driving S.S.'s car and did not reimburse S.S. for the cost of repair. A "dual relationship" occurs when a therapist has a relationship with a patient outside of the therapeutic relationship. Dual relationships are not prohibited, but are viewed with special concern within the social work profession because of the inherent inequality in the therapist-patient relationship. The dual relationship does not absolve the therapist of her duty of care to her patient. The Board's expert, Sherry Mills, testified that it is always inappropriate for a therapist to hire a patient while the therapist is still treating the patient. Thus, Respondent's employment of S.S. was an inappropriate dual relationship and a violation of the minimum standards of Respondent's profession. Respondent's borrowing money from S.S. and allowing S.S. to make purchases on behalf of Respondent's business were absolutely inappropriate. Respondent prescribed medication for S.S.'s children by writing the prescriptions on blank forms that had been signed by medical doctors. Respondent did not consult with the doctors prior to prescribing the medication for S.S.'s children. Respondent also prescribed medication for S.S. without consulting a physician. Respondent submitted fraudulent Medicaid billings for services allegedly rendered to S.S.'s children. Beginning in October 1997, Respondent provided counseling services to K.M. K.M. was a child whose parents were divorced. K.M. lived in Florida with her mother. K.M.'s father, whose insurance paid for Respondent's treatment, lived in Vermont. In a letter dated October 22, 1997, K.M.'s father, A.M., wrote Respondent requesting copies of counseling records for his child. Included with this letter was a court order providing A.M. with access to K.M.'s records. A.M. received no response to this request for records. On January 6, 1998, A.M. sent a memorandum to Respondent requesting copies of the treatment records for K.M. The memorandum also stated that A.M. was "appalled" by a sworn affidavit that Respondent had submitted to the Vermont court on December 9, 1997. In the affidavit, Respondent stated that K.M. had no desire to visit her father in Vermont because K.M. was in fear that she would not be safe and that A.M. was unwilling and unable to protect K.M. from sexual abuse perpetrated by his step-daughter. A.M. testified that the statements in the affidavit were untrue and slanderous. Respondent made no effort to contact A.M. despite his willingness for her to do so. A.M. made at least 25 separate attempts to contact Respondent, but was never able to speak with her or obtain any correspondence with her. In December 1998, A.M. sent another letter to Respondent requesting copies of K.M.'s records. The letter was sent via certified mail delivery to Respondent and was returned to A.M. as "Refused." A.M.'s Florida attorney made several attempts to contact Respondent, as did A.M.'s insurance company. Respondent did not reply to the attorney or the insurance company. By letter dated March 5, 1999, the Agency for Health Care Administration ("AHCA") advised Respondent that there was a pending investigation regarding her license to practice. The letter was sent to Respondent's address on record with the Board and was returned by the post office with a label stating "Moved, Left No Address, Unable to Forward, Return to Sender." The AHCA investigator obtained a South Carolina address for Respondent from a Medicaid fraud investigator and in June 1999, re-sent the notification letter to Respondent. Respondent never contacted the investigator regarding the investigation. The Board office records indicate that Respondent has listed three addresses with the Board. The original address on file was 1320 N.W. 3rd Terrace in Cape Coral. On February 6, 2001, Respondent notified the Board that her address of record should be changed to 2234 Stella Street in Fort Myers. On March 28, 2001, Respondent notified the Board office that her address of record is 101-A Fairview Avenue, also in Ft. Myers. On December 7, 2000, in Charlotte County circuit court, Respondent entered a plea of guilty to one count of racketeering, a first degree felony; one count of conspiracy to racketeer, a first degree felony; one count of Medicaid provider fraud, violation of Section 409.920(2)(a), Florida Statutes, a third degree felony; and one count of grand theft, a second degree felony. The plea agreement provided that Respondent would be sentenced to seven years in the Department of Corrections with 65 months suspended. Respondent received credit for 19 months served. Respondent was placed on 15 years' probation subject to the following terms: payment of costs of prosecution; payment of circuit court costs; payment of costs of investigation to the Medicaid Fraud Control Unit; and payment of restitution to various individuals and agencies.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a final order finding that Deborah A. Hulbert is guilty of all counts of all five Administrative Complaints, assessing a fine of $10,000 and revoking her license in accordance with Section 456.072(2)(d), Florida Statutes; Rule 64B4-5.001, Florida Administrative Code; and the Board's penalty guidelines. It is, further, RECOMMENDED that Deborah A. Hulbert be required to pay all costs related to the investigation and prosecution of these cases as required by Section 456.072(4), Florida Statutes. DONE AND ENTERED this 26th day of February, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2002. COPIES FURNISHED: Deborah Ann Hulbert 101 A Fairview Avenue Fort Myers, Florida 33905 Deborah B. Loucks, Esquire Agency for Health Care Administration 2727 Mahan Drive Post Office Box 14229 Tallahassee, Florida 32317-4229 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
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 At issue in this proceeding is whether the Respondent, Brian Pitts, treasurer for Justice-2-Jesus, a political committee, willfully violated Section 106.07(1), Florida Statutes, by failing to file a Campaign Treasurer's Report for the first quarter of 2008 (referred to herein as the 2008 Q1 CTR).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is the treasurer for Justice-2-Jesus, a political committee that registered with the Division of Elections (Division) on December 12, 2007. Justice-2-Jesus registered by filing an "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations" form, or Form DS-DE-6. Justice-2-Jesus designated Respondent, Brian Pitts, as its treasurer. Respondent signed the document, giving as his address 1119 Newton Avenue South, St. Petersburg, Florida. Also on December 12, 2007, Justice-2-Jesus filed a "Registered Agent Statement of Appointment," Form DS-DE 41, naming Calvester Benjamin-Anderson as its registered agent. Respondent signed the document and gave 1119 Newton Avenue South, St. Petersburg, Florida as the address of the registered agent. The Division sent a letter, dated December 14, 2007, to Respondent acknowledging receipt of the Form DS-DE-6 and providing information about the Division's electronic filing system for CTRs. The letter informed Respondent that all political committees that file reports with the Division are required to do so by means of the electronic filing system. The Division's letter concluded with the following paragraph, set out in bold type: All of the Division's publications and reporting forms are available on the Division of Elections' web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapter 106, Florida Statutes, 2006 Committee and Campaign Treasurer Handbook, 2007-2008 Calendar of Reporting Dates, and Rule 1S- 2.017, Florida Administrative Code. The Division's letter also enclosed a sealed envelope containing PIN numbers to allow Respondent secure access to the Division's electronic filing system in order to submit CTRs for Justice-2-Jesus. A CTR lists all contributions received and expenditures made during a given reporting period. The 2008 Q1 CTR is the report that a campaign treasurer should have filed on behalf of his committee at the close of the first quarter of 2008. Respondent's 2008 Q1 CTR was due to be filed on or before April 10, 2008. Candidates and political committees have been required to file their CTRs electronically since 2004. § 106.0705(2), Fla. Stat. The CTR data may be uploaded using any of several proprietary programs that have been approved by the Division. These programs carry a fee for their use. As an alternative, the treasurer may enter the CTR information directly into the Division's electronic filing system at no cost. The Division has published an online "Electronic Filing System (EFS) User's Guide" (the Guide) to explain the use of the electronic filing system. The Guide contains help menus to assist the user in completing the data entry for a CTR. The Guide is available in a PDF format that can be read online or downloaded to the user's computer at no cost. A user may also make a public records request to the Division for a hard copy of the Guide. The Division will provide the hard copy at a cost of $0.20 per double-sided page, or approximately $4.80 for the 47-page Guide. On or about April 11, 2008, the Division sent Respondent a letter informing him that it had not received the 2008 Q1 CTR for Justice-2-Jesus, which had been due on April 10, 2008. On or about April 25, 2008, the Division sent Respondent a second letter informing him that it had not received the 2008 Q1 CTR for Justice-2-Jesus. Both letters were sent to 1119 Newton Avenue South, St. Petersburg, Florida, the address provided by Respondent on the Form DS-DE-6 for Justice-2-Jesus. Neither letter was returned to the Division as undeliverable or unclaimed. At the hearing, Respondent did not deny receiving these letters in April 2008. On or about July 10, 2008, the Division sent to Calvester Benjamin-Anderson, the registered agent for Justice-2- Jesus, a final notice that Respondent had failed to file the 2008 Q1 CTR for Justice-2-Jesus. The letter was sent certified mail, return receipt requested. Ms. Benjamin-Anderson signed for the letter on or about July 14, 2008. Respondent testified that he attempted to hand-deliver a paper copy of the 2008 Q1 CTR to the Division, but that a Division employee told him that he was required to file all reports for his committee electronically. The Division's records indicate that Respondent had filed Justice-2-Jesus' 2007 Q4 CTR and its 2007 SR2 report2/ electronically, prior to the due date for the 2008 Q1 CTR. Erin NeSmith, a supervisor in the Bureau of Election Records, testified that Respondent came into the Division's offices on November 20, 2008. Respondent asked Ms. NeSmith questions about the 2008 Q1 CTR. She told him that the matter had already been referred to the Commission because Respondent had not filed the report despite repeated notices, but that Respondent still needed to file the 2008 Q1 CTR. Respondent explained to Ms. NeSmith that he had not filed the report because he had been busy and had a lot of items to pull together for the report. As of August 10, 2009, Respondent had yet to file the 2008 Q1 CTR for Justice-2-Jesus. At the hearing, Respondent testified that he had at least 50 contributions and 80 to 100 expenditures to report for the first quarter of 2008. Respondent testified that the due date for the 2008 Q1 CTR fell during the legislative session, when Respondent was extremely busy at the Florida Capitol. The Division's offices are open only during normal business hours, when Respondent was unavailable, and thus Respondent was unable to phone the Division for assistance in preparing the reports. Respondent defended his subsequent failure to file the report as something in the nature of a protest against the Division's electronic filing requirement and its alleged refusal to provide him with a paper copy of the Guide to facilitate his preparation of the report. Respondent complained that the vendors who provide Division-approved data uploading programs charge prohibitively expensive fees. He further complained that the alternative means of filing, direct entry of the data onto the Division's electronic filing system, is difficult and confusing without a paper copy of the Guide for assistance. Respondent acknowledged the availability of the Guide in printable PDF format, but asserted that purchasing printer cartridges and paper sufficient to print the Guide and other necessary Division handbooks would cost between $80.00 and $120.00. Respondent did not acknowledge the Division's willingness to print the Guide for $0.20 per double-sided page pursuant to a public records request. Respondent testified that he has assisted several other persons in preparing and filing their electronic reports to the Division. On behalf of Justice-2-Jesus, Respondent has electronically filed several reports to the Division subsequent to the due date for 2008 Q1 CTR. Willfulness is a question of fact. § 106.25(3), Fla. Stat. See Beardslee v. Fla. Elections Comm'n, 962 So. 2d 390, 393 (Fla. 5th DCA 2007); McGann v. Fla. Elections Comm'n, 803 So. 2d 763, 764 (Fla. 1st DCA 2001). Florida Administrative Code Rule 2B-1.002 provides: For purposes of imposing a civil penalty for violating Chapter 104 or 106, F.S, the following definitions shall apply: A person acts "willful" or "willfully" when he or she knew that, or showed reckless disregard for whether his or her conduct was prohibited or required by Chapter 104 or 106, F.S. "Knew" means that the person was aware of a provision of Chapter 104 or 106, F.S., understood the meaning of the provision, and then performed an act prohibited by the provision or failed to perform an act required by the provision. "Reckless disregard" means that the person disregarded the requirements of Chapter 104 or 106, F.S., or was plainly indifferent to its requirements, by failing to make any reasonable effort to determine whether his or her acts were prohibited by Chapter 104 or 106, F.S., or whether he or she failed to perform an act required by Chapter 104 or 106, F.S. The evidence established that Respondent was well aware of the requirement to file the 2008 Q1 CTR on behalf of Justice-2-Jesus. Shortly after Respondent filed the committee's initial paperwork, the Division sent him an acknowledgement letter directing him to the Division's website for information about the electronic filing of campaign treasurer's reports. Respondent could have downloaded the Guide or any other Division publication. At the hearing, Respondent claimed no lack of knowledge of the filing requirements. After he failed to file the 2008 Q1 CTR, Respondent received two letters from the Division notifying him of the failure. Despite these notices, Respondent never filed the report. The evidence established that Respondent electronically filed two reports with the Division prior to the due date of the 2008 Q1 CTR, and filed several electronic reports after the due date of the 2008 Q1 CTR. These facts demonstrate Respondent's knowledge of the filing requirements and ability to prepare an electronic report. Respondent has acted willfully in his failure to file the 2008 Q1 CTR for Justice-2-Jesus. At the hearing, Respondent asserted that Justice-2- Jesus was indigent, but offered no financial data to support the assertion.
The Issue The issue in this case is whether StorageTek or Memorex was the lowest responsive and responsible bidder for the BOR's Invitation to Bid No. K-1178-3, issued as agent for the Northwest Regional Data Center for the purchase of certain data processing equipment.
Findings Of Fact Based on the stipulations of the parties, the testimony of the witnesses, and the exhibits admitted into evidence, I make the following findings of fact: The Florida State University Purchasing Department, acting as agent for the Northwest Regional Data Center ("NWRDC") issued an Invitation to Bid for a contract to supply and service certain computer memory storage equipment to NWRDC. NWRDC is a data processing center under the direct jurisdiction of the BOR. StorageTek and Memorex are both vendors of data processing equipment such as that specified in the BOR's Invitation to Bid No. K-1178-3 ("the ITB"). StorageTek is presently operating --its business as a going concern and a debtor- in-possession under Chapter 11 of the Bankruptcy Code. Memorex is a wholly owned subsidiary of the Burroughs Corporation. In addition to the specification of certain data processing equipment, the ITB required 5 years of maintenance for the equipment to be supplied by the vendor. StorageTek and Memorex both filed timely responses to the ITB which were responsive to the technical portions of the ITB. Both bids contained a warranty of the bidder's ability to perform. The total prices of the StorageTek and Memorex bids were $892,293.00 and $1,026,919.00, respectively. The BOR preliminarily disqualified the StorageTek bid for failure to satisfy the financial capability requirements of the ITB and proposed to award the contract to Memorex. StorageTek timely filed its Notice of Protest and Formal Written Protest, asserting it met the financial capability requirements of the ITB and challenging the responsiveness of the Memorex bid to those same requirements. Section II, Paragraph B, of the ITB provides with regard to financial capability: Financial Capability of Prospective Vendors: The successful vendor must be financially sound and well managed, in accordance with Paragraph I. of this section. Prospective vendors are required to supply certified annual report(s) or statement(s) of their financial position for the last two years as part of their bids. These statements must be certified by an independent auditor's report as to their completeness and accuracy. Any other relevant references or documentation may also be supplied. Paragraph I, which is incorporated by reference in this financial capability provision of the ITB, provides: Vendor Warranty of Ability to Perform: Vendor warrants that there is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, public board or body, pending or, to the best of vendor's knowledge, threatened which would in any way prohibit, restrain or enjoin the execution or delivery of the vendor's obligations or diminish the vendor's financial ability to perform the terms of the proposed contract. In addition, the ITB makes it the responsibility of each vendor to "provide adequate documentation to substantiate all claims for . . . compliance" with the specifications and requirements of the ITB. In response to the request for statements of their financial position in the financial capability portion of the ITB, StorageTek supplied the Form 10- K Annual Reports filed with the Securities and Exchange Commission for the fiscal years ended December 28, 1984, and December 27, 1985, ("the 1984 and 1985 10 K Reports"). Although StorageTek had more current information than that contained in the 1984 and 1985 10-K Reports regarding the status of its Chapter 11 proceeding and other pending legal actions at the time it submitted its bid to the BOR, StorageTek chose not to supply that information in its bid even though such information could have been included pursuant to Section II, B.1, of the ITB. The 1984 and 1985 10-K Reports were prepared by StorageTek management and included consolidated financial statements of StorageTek and its subsidiaries. These financial statements, which were certified by the Denver, Colorado, office of Price Waterhouse, indicate: StorageTek has incurred net losses over the last three fiscal years aggregating $603,758,000. As of December 27, 1985, StorageTek had an accumulated deficit of $318,413,000. StorageTek is presently operating its business as a going concern and a debtor in possession under Chapter 11 of the Bankruptcy Act. StorageTek is involved in a number of legal proceedings, several of which "could have a material adverse effect on the Company's financial position and operations" if the plaintiffs' claims are sustained. The Securities and Exchange Commission is conducting a private investigation to determine whether StorageTek or any of its officers, directors or agents engaged in fraudulent or deceptive acts, practices or courses of business in connection with the issuance of any of its securities, the filing or publication of any of its periodic reports to stockholders or reports filed with the Securities and Exchange Commission or the keeping and maintaining of its books and records. The Internal Revenue Service ("IRS") is examining StorageTek's federal income tax returns for the years 1979 through 1984. If all issues presently under discussion between the IRS and StorageTek were to result in assessments, and if such assessments were ultimately sustained, the resulting liability for additional tax and interest would be substantially higher than the recorded liabilities. Also, any IRS claims that are ultimately sustained would be priority claims pursuant to Section 507 of the Bankruptcy Code. As a result of StorageTek's "financial diffi- culties" and its Chapter 11 proceedings, StorageTek may be subject to additional lawsuits or governmental proceedings, the effect of which cannot be determined at this time. The consolidated financial statements were prepared on the basis of generally accepted accounting principles applicable to a going concern, which assume realization of assets and payment of liabilities in the normal course of business. There are a number of "significant uncertainties" that threaten StorageTek's continued existence and, therefore, its ability to realize its assets and to discharge its liabilities in the ordinary course of business. Using generally accepted auditing standards, Price Waterhouse rendered an opinion on February 28, 1986, which provides in pertinent part: As shown in the consolidated financial state- ments, during the three years ended December 27, 1985 the Company incurred net losses aggregating $603,758,000 and at December 27, 1985 had an accumulated deficit of $318,413,000. These factors, among others including those discussed in the preceding paragraph, indicate that the Company may be unable to continue in existence. In rendering the above-quoted opinion, Price Waterhouse considered all of the information contained in the 1985 10-K Report, including the fact that the information in that report did not reflect the effects of the Chapter 11 proceedings. Price Waterhouse also considered other factors made known to it, such as: Certain financial information regarding StorageTek from its operations in early 1986; StorageTek's 1985 fourth quarter profits; StorageTek's unencumbered cash balance of $202 million at the end of 1985; StorageTek's ability to generate cash from its various operations; The lack of a formulated and confirmed plan for StorageTek's reorganization in its Chapter 11 bankruptcy proceedings; and The fact that it would be fairly difficult for StorageTek to obtain long-term financing given its present financial condition. Although the directors' and officers' liability insurance and partnership liability insurance may diminish the impact on StorageTek of several of the pending legal actions, the existence of those insurance policies is reflected in the 1985 10-K Report and was considered by Price Waterhouse when rendering its opinion that the company may be unable to continue in existence. Also, StorageTek admits that it cannot give an assurance that the pending litigation will not have a material adverse effect on its financial position and operations. The most significant uncertainty which formed a basis for the opinion of Price Waterhouse quoted in paragraph 12 above is that StorageTek's historical information results in uncertainty as to whether StorageTek will be able to return to profitable operations. If StorageTek did not continue to exist, the 5 years of maintenance required by the ITB could not be performed by StorageTek and spare parts for the data processing equipment may not be available. In response to the request for statements of its financial position in the financial capability portion of the ITB, Memorex supplied annual reports of its parent, the Burroughs Corporation, for 1984 and 1985 (the "1984 and 1985 Annual Reports"). The 1984 and 1985 Annual Reports contain consolidated financial statements of Burroughs Corporation, and its subsidiaries, including Memorex. These financial statements, which were certified by the Detroit, Michigan, office of Price Waterhouse, indicate: Burroughs and its subsidiaries have earned net income over the last three fiscal years aggregating $690,000,000. As of December 31, 1985, Burroughs and its subsidiaries had accumulated retained earnings of $1,872,400,000. There are no outstanding legal actions or claims that are material to the consolidated financial position of Burroughs and its subsidiaries. Using generally accepted auditing standards, Price Waterhouse rendered the following opinion on January 20, 1986: In our opinion, the accompanying consolidated financial statements [in the 1985 Annual Report] present fairly the financial position of Burroughs Corporation and subsidiary companies . . . in conformity with generally accepted accounting principles consistently applied. Memorex is a substantial subsidiary of the Burroughs Corporation. If there were any pending or threatened legal actions or claims against Memorex, the outcome of which would threaten Memorex's ability to perform under the contract described in the BOR's Invitation to Bid No. K-1178- 3, Price Waterhouse would have been required by generally accepted auditing standards to ensure that appropriate disclosure was made of that contingency in the consolidated financial statements of the Burroughs Corporation and its subsidiaries, unless the auditors were satisfied that the contingency was provided for otherwise, such as through a guaranty by the parent corporation. Financial statements for Memorex, other than in consolidated form with Burroughs Corporation and its subsidiaries, are usually confidential and not available to the public. The ITB expressly instructs vendors not to submit confidential information since bid responses become public documents after the bid opening. It is a common practice in the industry for a wholly owned subsidiary to submit the consolidated financial statements of its parent when an invitation to bid requests the subsidiary vendor to provide financial information.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order awarding the contract for BOR Invitation to Bid No. K-1178-3 to Memorex. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2229BID The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on findings proposed by Petitioner Paragraphs 1, 2, 3, 4, 5, 6, 11, and 16: The findings proposed in these paragraphs have all been accepted. Paragraph 7: Accepted in part and rejected in part. Rejected portions are irrelevant and subordinate details that are unnecessary to the disposition of this case. Paragraph 8: Rejected as constituting irrelevant and subordinate details that are unnecessary to the disposition of this case. Unnumbered paragraph between paragraphs 8 and 9: Accepted. Paragraph 9 and the two unnumbered paragraphs between paragraphs 9 and 10: The majority of the findings proposed in this paragraph are rejected as irrelevant and subordinate to the extent they deal with matters not incorporated into Petitioner's bid response. Paragraph 10: Rejected as constituting irrelevant and subordinate details that are unnecessary to the disposition of this case. Paragraph 12: Accepted in substance. Paragraph 13: Rejected as constituting irrelevant and subordinate details that are unnecessary to the disposition of this case. Paragraphs 14 and 15 and intervening unnumbered paragraph: Rejected as constituting irrelevant and subordinate details that are unnecessary to the disposition of this case. Also rejected in large part because it incorporates inferences not warranted by the greater weight of the evidence. Paragraph 17: Rejected as constituting irrelevant and subordinate details that are unnecessary to the disposition of this case. Also rejected in large part because it incorporates inferences not warranted by the greater weight of the evidence. Paragraph 18: Rejected as irrelevant and unnecessary. Rulings on findings proposed by Respondent The Respondent adopted the proposed findings of fact submitted by the Intervenor and did not propose any additional findings. Rulings on findings proposed by Intervenor All of the proposed findings of fact submitted by the Intervenor have been accepted with a few minor editorial modifications. DONE AND ORDERED this 4th day of September, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1986. COPIES FURNISHED: F. Perry Odom, Esquire ERVIN, VARN, JACOBS, ODOM & KITCHEN P. O. Drawer 1170 Tallahassee, Florida 32302 Patti A. Jackson, Esquire Assistant General Counsel Board of Regents 107 West Gaines Street Tallahassee, Florida 32301-8033 Carolyn S. Raepple, Esquire HOPPING BOYD GREEN & SAMS Post Office Box 6526 Tallahassee, Florida 32314-6526 Mr. Charles Reed, Chancellor Board of Regents 107 West Gaines Street Tallahassee, Florida 32301-8033 Mr. George Bedell Executive Vice-Chancellor Board of Regents 107 West Gaines Street Tallahassee, Florida 32301-8033 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether the Petitioner should be disqualified to work in a position of special trust.
Findings Of Fact The Department disqualified the Petitioner to work in a position of special trust and denied the Petitioner an exemption from that denial. Subsequently, the Petitioner timely challenged the agency's decision. The Petitioner is employed by Eckerd Youth Alternatives, Inc. (EYA) an entity that operates the Eckerd Youth Development Center at Okeechobee, Florida. He has worked as a youth counselor at that facility since 1993. EYA contracts with the state of Florida to provide facilities for the juvenile justice system and, as such, must comply with employment qualifications for persons working with the juveniles assigned to the facility. The screening of EYA employees must be updated every five years. As part of the background screening process, EYA submitted paperwork for the Petitioner in 1998. The Department did not issue its disqualification decision until February 25, 2000. Thereafter, the Petitioner sought an exemption from the disqualification decision which was also denied by the Department on April 7, 2000. The delays in the re-screening decisions were not attributable to the Petitioner. The Department based its disqualification of the Petitioner and denial of the exemption on the criminal history set forth below. In 1995, the Petitioner entered a plea of nolo contendere to the possession of a weapon charge. Adjudication of guilt on this charge was withheld by the court. Based upon the plea on the weapon charge, the Petitioner received a two-year probation, the weapon was forfeited, and he was ordered to pay court costs and fees. He successfully completed all aspects of the sentence. In 1994, the Petitioner entered a plea of nolo contendere to a charge of domestic violence, a misdemeanor. The Petitioner was adjudicated guilty on this charge and sentenced to one year of probation. He successfully completed all aspects of the sentence on this case. The Department contends that domestic battery/violence is a disqualifying offense which precludes the Petitioner's employment in a position of special trust at the Eckerd Youth Development Center. At all times during his employment by EYA, the Petitioner has served as an outstanding employee. EYA timely filed all the necessary paperwork to have the Petitioner re-screened for employment purposes. At all times during his employment by EYA, the Petitioner has been an excellent role model. He has not exhibited any conduct that would suggest minors would be placed at risk of physical harm if placed in his care. According to Mr. Timko, the Petitioner is "probably one of the most mild- mannered, positive role models that we have out there." The Petitioner's explanations regarding his criminal record have been deemed sufficient and persuasive as to the facts of the underlying incidents. In particular as to the domestic battery/violence incident, it is found that the Petitioner did not harm the alleged victim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order either granting the Petitioner the exemption sought or finding that he has not committed an act of domestic violence such that he must be disqualified from employment in a position of special trust. DONE AND ENTERED this 9th day of November, 2000, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2000. COPIES FURNISHED: Johnny R. Jenkins 3745 Northwest 27th Avenue Okeechobee, Florida 34972 Lynne T. Winston, Esquire Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense; and, if so, whether the denial of her request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Parties Petitioner is a 49-year-old female who has requested that Respondent grant her an exemption from disqualification from employment pursuant to section 435.07, Florida Statutes, so that she can become employed as a caretaker for developmentally disabled individuals. Respondent is the state agency charged under chapter 393, Florida Statutes, with meeting the needs of children and adults having developmental disabilities. These disabilities include intellectual disabilities, autism, Down syndrome, cerebral palsy, spinal bifida, Phelan-McDermid syndrome, and Prader-Willi syndrome. Developmentally disabled persons have cognitive impairments and physical limitations that render them extremely vulnerable and highly dependent on their caregivers. Respondent fulfills its mission, in part, through direct service providers, who provide nursing, personal care assistance, transportation, companionship, in-home support, and a range of other caregiving services to persons having developmental disabilities. Because developmentally disabled individuals are extremely vulnerable, they are susceptible to potential harm or exploitation by persons providing care or other services. Therefore, such service providers are subject to level 2 employment screening pursuant to chapter 435. See § 393.0655, Fla. Stat. Petitioner's Disqualifying Offense and Other Offenses Petitioner committed her disqualifying offense on or about March 11, 2001——over 17 years ago.3/ According to the complaint/arrest affidavit that was included as part of Respondent's Exhibit 2, the file on Petitioner's request for an exemption, Petitioner assaulted and battered a 14-year-old girl during an altercation that had escalated from verbal to physical. Petitioner was charged with aggravated child abuse. According to the Finding of Guilt and Order Withholding Adjudication/Special Conditions entered by the Circuit Court for the Eleventh Circuit in and for Miami-Dade County, Florida, Petitioner was found guilty of aggravated abuse of a child, a first-degree felony. Adjudication was withheld and Petitioner was sentenced to one year of probation. As a condition of her probation, Petitioner was required to participate in an anger management program. She completed this requirement. In December 2002, Petitioner violated her probation by using marijuana. For this violation, her probation was extended another six months. On or about October 11, 2011, Petitioner was detained for retail theft and was charged with petit theft. The only official document in the record, other than Petitioner's application, is a comprehensive case information system record entry stating that the court withheld adjudication on this charge.4/ The record does not show that Petitioner pled guilty or nolo contendere to this offense. Evidence Adduced at the Final Hearing Petitioner testified regarding her disqualifying offense. According to Petitioner, she had a disagreement with her neighbor and her neighbor's daughter. A few days later, when she went to the store, her neighbor and her neighbor's daughter accosted her in the parking lot and physically attacked her, so she defended herself. She acknowledged in her testimony at the final hearing that the physical altercation had occurred and that she had been arrested and charged with aggravated child abuse. However, she claimed that her public defender had agreed to a guilty plea without her concurrence, and that adjudication had been withheld for that charge. She insisted that had she understood that "withholding adjudication" entailed entering a guilty plea, she would not have agreed to that course of action. Due to having committed the disqualifying offense, Petitioner lost her employment. She testified that she became depressed and used marijuana. She acknowledged that in doing so, she had violated her probation. She testified, credibly, that she has not used drugs since 2003. There is no evidence to the contrary in the record. Petitioner acknowledged that she was arrested for petit theft in 2011, but she testified, credibly, that she did not steal anything. She explained, persuasively, that she had gone to the store with her neighbor and that when they arrived, they went their separate ways. As they left the store together, the store's security personnel detained them and accused them of shoplifting. Petitioner's neighbor, had, in fact, shoplifted items, and ultimately was required to pay restitution; however, Petitioner was not so required. The undersigned finds Petitioner's testimony regarding the 2011 petit theft incident credible. Petitioner has completed formal training in specialized types of medical care. She is a certified phlebotomist, a certified medical assistant, and a patient care technician. She is also certified or has taken courses in Basic First Aid/CPR/AED for adults and children, recognizing and reporting elder abuse, patients' rights, medical documentation, and American Heart Association Basic Life Support. In 2015, Petitioner received an exemption from disqualification from employment from the Agency for Health Care Administration ("AHCA"), and currently is eligible to be employed as a direct or indirect service provider for programs for vulnerable persons administered by that agency. However, she is seeking an exemption in this proceeding specifically so that she can be employed in a position working with disabled individuals. Petitioner testified, credibly, that she has not had any additional encounters with the criminal justice system since receiving the exemption from AHCA, and there is no evidence to the contrary in the record. Jacqueline Snyder testified regarding Petitioner's character, compassion, and competence in caring for her (Snyder). Snyder met Petitioner when she nursed Snyder's husband. After Snyder's husband passed away, Snyder was able to procure Petitioner's services through a home health agency, and then through a private contract arrangement. In that role, Petitioner helped care for Snyder during an illness, and assisted Snyder in performing a range of daily life activities, including bathing, cleaning house, and performing other life-related activities. Snyder spoke glowingly of Petitioner's character and compassion in caring for her. On cross-examination, Snyder acknowledged that she was aware of Petitioner's disqualifying offense, but testified that she believed Petitioner's version of the event and observed that, in any case, AHCA would not have granted Petitioner an exemption if she posed a threat to vulnerable individuals. Allison Scott, Petitioner's neighbor, also testified on her behalf. Scott testified, credibly, that Petitioner is actively engaged in community and church activities, such as conducting clothing drives for children, and that she has a passion for caring for the elderly and disabled. Scott was aware of Petitioner's disqualifying offense, but believes that she deserves a second chance, particularly since that offense happened so long ago. Petitioner's neighbor, Julia Mendez, also testified on Petitioner's behalf. Mendez has been Petitioner's neighbor for over eight years. Mendez testified, credibly, that Petitioner tries to counsel, and serve as a role model for, neighborhood children. She credibly testified that she had never seen Petitioner exhibit the type of behavior with which she was charged in 2001, and that, in her view, Petitioner deserves a second chance. As part of her application for the exemption, Petitioner submitted several letters of support which supplement, explain, and support the testimony presented by Snyder, Scott, and Mendez. The letters from persons for whom Petitioner has previously cared for described her as a competent, organized, compassionate, reliable, and trustworthy caregiver. A letter from Worldwide Support Services Corporation, a Medicaid waiver provider, through whom Petitioner provided services, described Petitioner as understanding, helpful, compassionate, caring, efficient, detail-oriented, extremely competent, and an asset to the industry. Tom Rice testified on behalf of Respondent. Rice has been employed by Respondent for approximately 15 years and currently serves as a program administrator over regional supports within Respondent's Division of Operations. In this position, he oversees, among other things, the processing of background screening exemption requests. Rice explained that in reviewing an application for exemption to determine whether the applicant is rehabilitated, Respondent considers the applicant's version of events and considers whether the applicant has accepted responsibility for, and is remorseful, honest, and forthright regarding, the disqualifying offense and any subsequent offenses; and whether, since the disqualifying offense, the applicant has been a good, law-abiding citizen. Respondent also reviews the applicant's arrest reports, court records, letters of recommendation, confidential investigative summaries prepared by the Department of Children and Families investigators ("CIS reports"), and traffic records. After reviewing Petitioner's application, Respondent determined that Petitioner's request for an exemption should be denied. Rice explained that Respondent's decision was based on several factors. First, Respondent was concerned about the nature of the disqualifying offense because it entailed a crime of physical violence.5/ Rice noted that many of Respondent's clients may be prone to physically violent behavior, or may themselves be vulnerable to physically violent caretakers. Second, Rice testified that in Respondent's view, Petitioner's versions of her disqualifying offense and the 2011 petit theft offense,6/ as described in the application, were different from the descriptions in the complaint/arrest affidavits in her criminal record. Rice testified that in Respondent's view, these differences indicated that Petitioner did not take responsibility for her actions in having committed these offenses. Rice also noted the existence of "multiple" CIS reports discovered during the background screening of Petitioner, including one CIS report that showed "some indicator" of financial exploitation of vulnerable adults.7/ Rice stated that these reports caused Respondent concern that Petitioner may be physically violent toward, or exploitive of, Respondent's developmentally disabled clients. Rice noted that Petitioner's background screening also showed that Petitioner had a traffic infraction involving driving on a suspended license, which, in Respondent's view, indicated Petitioner's failure to abide by the law. Rice stated that Respondent did not give any significant weight to the letters of reference that Petitioner submitted as part of her exemption application because none of those letters was from an employer, and all of them were from friends or family members. However, on redirect examination, Rice acknowledged that the record did, in fact, contain letters of reference from persons and entities other than friends and family. He did not testify, however, that Respondent duly considered these letters of reference in evaluating Petitioner's application for an exemption. In response to a question from Respondent's counsel, Rice testified that he was concerned about Petitioner's behavior exhibited during the final hearing——specifically, that Petitioner vehemently denied having voluntarily pled guilty to the disqualifying offense, vehemently denied having engaged in any kind of abusive behavior giving rise to the CIS reports, and vehemently denied that she herself had engaged in shoplifting that led to the petit theft charge. Rice noted that dealing with developmentally disabled persons is often stressful and that he would be concerned that because of her display of emotion at the final hearing, Petitioner would not be able to exhibit a calm demeanor when dealing with developmentally disabled clients. Findings of Ultimate Fact Upon a careful and considered review of the competent substantial evidence in the record of this proceeding, the undersigned determines that Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense. The undersigned recognizes that Petitioner's disqualifying offense was a crime involving physical violence. However, as noted above, over 17 years have elapsed since Petitioner committed her disqualifying offense, and she has not been arrested for, or charged with, any crimes involving physical violence since that time. The undersigned finds that Petitioner's non-violent conduct for the past 17-plus years——which included periods during which she cared for elderly persons who were limited in their life activities——constitutes strong evidence that she can be trusted to deal with vulnerable persons in a non-violent manner. The undersigned does not find Petitioner's version of the disqualifying offense presented at the final hearing inconsistent with the applicable complaint/arrest affidavit in the exemption application file. To the contrary, Petitioner acknowledged that she had engaged in a physical altercation with her neighbor's daughter and expressed regret at having done so. However, as she was entitled to do, she also sought to explain the circumstances surrounding her disqualifying offense and to further explain that she did not intend to plead guilty and would not have done so had she understood that such plea was being entered by her attorney. Additionally, as noted above, the undersigned finds credible Petitioner's version of the circumstances surrounding her arrest in 2011 for petit theft. The undersigned does not agree that Petitioner's attempt to explain the circumstances surrounding this arrest as failing to take responsibility for her actions. To this point, as discussed above, the "police report" to which Rice referred in his testimony was not part of Petitioner's application file. Rather, the document to which Rice referred concerned an arrest that occurred on July 28, 1989.8/ That document does not support the position that Petitioner failed to take responsibility for her 2011 offense. The undersigned finds Petitioner's explanation of her 2011 offense credible, and finds Rice's testimony unpersuasive because it is not supported by other evidence in the record. Additionally, the CIS reports in Respondent's Exhibit 2 do not constitute competent substantial evidence of Petitioner's lack of rehabilitation in this proceeding. Those reports are hearsay that does not fall within any exception to the hearsay rule, so they cannot be used as the sole basis for finding that any of the events specifically addressed in the reports happened or that any of the statements contained in those reports is true.9/ § 120.57(1)(c), Fla. Stat. Because Respondent did not present any other evidence independently establishing the occurrence or truth of any of the matters addressed in the CIS reports included in Respondent's Exhibit 2, neither they nor Rice's testimony about them are afforded any weight in this proceeding. It is further noted that in 2015, Petitioner received an exemption from AHCA, which also conducts level 2 background screening to determine whether an applicant would constitute a danger to children and vulnerable adults. AHCA's determination that Petitioner would not pose a danger to such vulnerable persons, while not determinative in this case, is probative and is persuasive evidence that Petitioner is rehabilitated from her disqualifying offense. Finally, it is noted that at the final hearing, Petitioner vehemently denied that she had engaged in any conduct addressed in the CIS reports, and she displayed strong emotion while explaining the circumstances surrounding her disqualifying offense and the 2011 petit theft arrest. The undersigned does not find Petitioner's conduct at the final hearing indicates that she would engage in physically or emotionally violent conduct while working with Respondent's clients. Rather, the undersigned finds Petitioner's non-violent conduct over the past 17-plus years to be far more indicative of her future behavior than her emotional responses to cross-examination10/ during the final hearing. In sum, the competent, substantial, and persuasive evidence in the record of this proceeding establishes that Petitioner is rehabilitated from her disqualifying offense, and that she will not present a danger to developmentally disabled individuals if her request for an exemption from disqualification from employment is granted. Because the evidence establishes that Petitioner is rehabilitated from her disqualifying offense, the undersigned determines that denial of her request for an exemption would constitute an abuse of Respondent's discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 30th day of May, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 30th day of May, 2018.
