The Issue Respondent's alleged violation of subsections 460.13(3)(f) and (g)(1), Florida Statutes. At the commencement of the hearing, petitioner withdrew Count I of the complaint that alleged a violation of Rule 21D-2.01, F.A.C. and subsection 460.13(3)(g)(1), Florida Statutes.
Findings Of Fact Respondent was a licensed chiropractor in the state of Florida on December 26, 1976, and is so licensed at the present time. His office is located in North Miami Beach, Florida. (Stipulation, Exhibit 2) Respondent received his professional education at the Palmer College of Chiropractic in Davenport, Iowa. After graduation, he interned for a period of approximately six months until October, 1976. While at the Palmer College, he studied the Grostek method of diagnosis and treatment that is part of the school curriculum. This method teaches that all of the nerves connected to the spinal cord are affected by bone misalignment in the upper cervical area. This can have adverse affects upon the spine and a person's general health. Diagnosis of this condition is made by the use of x-rays. Once a bone misalignment is determined to exist, the chiropractor uses light pressure or force adjustment to reposition the bone. Finally, x-rays are again taken to see if the desired change has been effected by the treatment. This method is restricted to the cervical area below the base of the skull. Respondent also is a member of the National Upper Cervical Chiropractic Association (NUCCA) that espouses a more refined Grostek method involving only a different stance of the chiropractor in making the bone adjustment. That organization conducts continuing education courses, performs research and issues regular monthly bulletins. Although there are several hundred chiropractors in the United States who practice the NUCCA method, at present there are only three in Florida. The Grostek method originated approximately twenty-five years ago. Although the Grostek technique is not used extensively in Florida, it is an accepted method of diagnosis and treatment in the profession. The primary difference in the Grostek and NUCCA techniques and that used by other chiropractors is the manner in which x-rays are utilized. Respondent specializes in the NUCCA method and if he does not discover a bone misalignment in the cervical area, he refers the patient to another chiropractor. (Testimony of Respondent, Dr. Carroll, Exhibits 2, 3) While at Palmer College, respondent also received lectures on the subject of iridology. This topic deals with the matter of toxic areas in the body and involves the examination of the iris of the eye to determine what area of the body is affected. The chiropractor may recommend a change in diet as a means of removing a particular problem. Iridology is an accepted adjunct to chiropractic treatment and is employed by respondent in his practice on occasion. However, it is entirely separate and apart from the NUCCA method. (Testimony of respondent) A reporter for the North Dade-South Howard Journal asked the respondent for an interview to explain the NUCCA method. He had been referred to respondent by one of the latter's patients. Respondent granted the interview and the subsequent conversation included matters concerning both NUCCA and iridology. The article was not submitted to respondent for approval prior to publication, and was published in the newspaper on December 26, 1976. It contained misquotes, inaccurate summations of the interview and implied that iridology was a part of the NUCCA method. Although the article referred to a claim of respondent that by detecting toxicity in the body with a small flashlight and a magnifying glass, the need for exploratory surgery in patients could largely be eliminated, respondent denied making such a statement. A witness testified at the hearing that the same reporter grossly misquoted her in an article concerning the benefits of a vegetarian diet. (Testimony of respondent, Galton, Exhibit 1)
Recommendation That the Administrative Complaint against respondent be dismissed. Done and Entered this day of August, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Ronald LaFace, Esquire Post Office Box 1572 Tallahassee, Florida 32304 Herbert L. Fehner, Esquire 300 Marine Plaza on the Intracoastal 3100 E. Oakland Park Boulevard Ft. Lauderdale, Florida 33308
The Issue The issue in this case is whether Respondent, Stephen H. Rosenthal, committed the offenses alleged in an Administrative Complaint issued on or about December 22, 1999, by Petitioner, Tom Gallagher, as Commissioner of Education and, if so, what penalty should be imposed upon Respondent.
Findings Of Fact Respondent, Stephen Rosenthal, holds a valid Florida Educator's Certificate, Number 644646. Respondent's Certificate covers the areas of Elementary Education and Mathematics and is valid through June 30, 2001. At all times relevant to this matter, Respondent was employed as a fifth-grade teacher at Manatee Elementary School, an elementary school in the St. Lucie County School District. During the fall of 1997 Paul E. Griffeth, a detective with the Port St. Lucie Police Department, was informed that Respondent had been in contact through the internet with a detective of the Keene, New Hampshire Police Department, that Respondent believed that he was communicating with a minor, and that Respondent had sent the Keene detective pornographic pictures via the Internet. Based upon the information Officer Griffeth received, a search warrant was obtained. The search warrant authorized a search of an address where Respondent was believed to reside. Officer Griffeth, Todd Schrader, then a detective with the Port St. Lucie Police Department, and a Detective Calabrese attempted to execute the search warrant. When they served the search warrant on Respondent they learned that Respondent no longer lived at the address identified in the search warrant. Respondent informed Detectives Schrader and Griffeth of his new residence address and agreed to allow them to search his residence without obtaining a new warrant. Respondent inquired into the reason for the search warrant and was told that it was believed that he was suspected of having sent child pornography on the internet and of having files on his computer and computer disks in his residence that contained child pornography. Respondent initially denied these allegations. Detective Schrader asked Respondent if he knew who "Luke 14" was. Respondent admitted that he believed that "Luke 14" was a 14-year-old male. Detective Schrader told Respondent that "Luke 14" was a police detective. Respondent shook his head and said, "No, no." Respondent later admitted that he had sent pornographic pictures, including pictures of Respondent naked, to "Luke 14," believing he was a 14-year-old boy. Respondent then admitted to Detective Schrader that he had a number of pictures that he had downloaded from the internet and acknowledged that some of the pictures could be construed as child pornography. Respondent also admitted that he had numerous diskettes with pictures of minors that he had downloaded from the internet. When the detectives entered Respondent's residence, they found two pictures of two individual nude males, with their genitalia exposed, which the detectives believed to be between the ages of 12 to 16. Respondent admitted that he believed that that was the age of the boys. Respondent also admitted that he had downloaded the pictures off the internet and that he had printed them. A number of diskettes were found at Respondent's residence which contained pictures of males with their genitalia exposed. Although some of the males pictured appeared to be minors, the evidence failed to prove that they were in fact pictures of minors. 1/ On November 3, 1997, Respondent was arrested. He was charged in an Indictment filed before the United States District Court for the Southern District of Florida (hereinafter referred to as the "U.S. District Court") with eight counts of Knowingly Receiving a Visual Depiction of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer and one count of Having Possession of Three or More Visual Depictions of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer. In March 1998 Respondent entered into a Plea Agreement in the U.S. District Court, agreeing, in part, to the following: The [Respondent] agrees to plead guilty to Counts 1 and 3 of the Indictment, which charges the defendant with the knowing receipt of child pornography in interstate commerce by computer, that is, visual depictions of minors engaged in sexual conduct . . . . The [Respondent] admits that he is, in fact, guilty of this offense. On March 12, 1998, Respondent appeared before the Honorable James C. Paine, United States District Court Judge for the Southern District of Florida. Respondent was questioned extensively concerning the Plea Agreement and Respondent's understanding of the charges to which he had admitted. During this proceeding, the essential facts relating to Counts 1 and 3 were summarized and Respondent was asked whether he agreed with those facts. Respondent agreed with all the summarized facts; except the allegation that he thought that Luke 14 was a minor. 2/ Among the summarized facts which Respondent admitted to are the following: That Respondent knowingly received a visual depiction; the visual depiction was shipped or transported by interstate commerce by any means, including computer; that the visual depiction was of a minor engaged in sexually explicit conduct; and that Respondent knew that the visual depiction was of a minor engaged in sexually explicit conduct; That Respondent sent several sexually explicit pictures to Luke 14. The pictures were of the Respondent, naked; and That Respondent had photographs of two nude minors in his residence. Respondent entered a plea of guilty to Counts 1 and 3 of the Indictment, was adjudicated guilty of the two counts, and was sentenced to 70 months in prison on each Count to run concurrently. The other seven counts were dismissed. The evidence failed to prove that Respondent's plea of guilty was made as the result of any threat, coercion, or fraud. By entering a plea of guilty to Count 1 of the Indictment, Respondent admitted to the following: On or about February 5, 1997, in St. Lucie County, in the Southern District of Florida, the defendant, STEPHEN H. ROSENTHAL, did knowingly receive a visual depiction that had been transported and shipped in interstate commerce by computer . . . depicting a minor engaging in sexually explicit conduct . . . to wit: a depiction of a minor male engaging anal-genital sexual intercourse with an adult male, the production of which involved the use of a minor engaging in sexually explicit conduct. By entering a plea of guilty to Count 3 of the Indictment, Respondent admitted to the following: On or about April 15, 1997, in St. Lucie County, in the Southern District of Florida, the defendant, STEPHEN H. ROSENTHAL, did knowingly receive a visual depiction that had been transported and shipped in interstate commerce by computer . . . depicting minors engaging in sexually explicit conduct . . . to wit: a depiction of two minor males engaging oral-genital sexual intercourse, the production of which involved the use of a minor engaging in sexually explicit conduct. By pleading guilty to Counts 1 and 3 of the Indictment and admitting to Judge Paine that he had committed those offenses, Respondent admitted that he had been in possession of child pornography and that he had downloaded the child pornography from the Internet. Respondent subsequently attempted to withdraw his plea. This effort was rejected. Respondent is currently incarcerated at FCC Coleman serving his 70-month sentence. The arrest and subsequent conviction of Respondent resulted in adverse and widespread publicity in St. Lucie County. Respondent's arrest and conviction and the resulting adverse publicity were sufficiently notorious to disgrace the teaching profession and seriously reduce Respondent's effectiveness as a teacher. Respondent's employment with the St. Lucie County School Board was terminated due to the foregoing incidents. Petitioner issued an Administrative Complaint on or about December 22, 1999, in which Petitioner recommended that the Education Practices Commission impose appropriate disciplinary sanctions on Respondent's educator's certificate pursuant to Sections 231.262 and 231.28, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code, due to the following alleged facts: 3. During the 1996-1997 and 1997-1998 school year, Respondent was in possession of child pornography and down loaded the child pornography from the Internet onto his home computer. On or about November 3, 1997, Respondent was arrested and charged with 8 counts of Knowingly Receiving a Visual Depiction of Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer, and one count of Having Possession of Three or More Visual Depictions of a Minor Engaged in Sexually Explicit Conduct that had been transported and shipped in Interstate Commerce by Computer. On or about June 2, 1998, Respondent pled Guilty to two of the counts of receiving the photographs. The court dismissed all other charges and adjudicated Respondent Guilty on the remaining two. Respondent was sentenced to 70 months on each count to run concurrently, to receive health/psychiatric counseling during incarceration, 3 years of supervised release, not possess a firearm and pay $3200 in fines and fees. On or about November 25, 1997, Respondent was terminated from his position with the St. Lucie County School Board. Respondent filed an unexecuted Election of Rights form and a letter in response to the Administrative Complaint. Although Respondent did not specifically request an administrative hearing, he did dispute the material facts of the Administrative Complaint. The Administrative Complaint and Respondent's letter were filed with the Division of Administrative Hearings on September 19, 2000, with a request that the matter be assigned to an administrative law judge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, Stephen H. Rosenthal, violated Sections 231.28(1)(c) and (f), Florida Statutes. It is further RECOMMENDED that the final order dismiss the charge that Respondent violated Section 231.28(1)(i), Florida Statutes. It is further RECOMMENDED that Respondent's Florida Educator's Certificate, Number 644646, be permanently revoked. DONE AND ENTERED this 10th day of January, 2001, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 10th day of January, 2001.
Findings Of Fact Mrs. Martha Truitt owned a five pound Chihuahua female named Hale's Dixie Dynamite which she purchased for $624.00 in 1977. At that time Dixie was one year old. She was later bred in August, 1978. Mrs. Truitt has been a Chihuahua breeder for seven to eight years. She has seen approximately fifteen to twenty litters of dogs delivered and considers herself an expert breeder. At the hearing, Mrs. Truitt, as a breeder, displayed some ill feeling toward doctors of veterinary medicine (vets). It was also apparent from the testimony of the expert witnesses, that the ill feelings were somewhat reciprocated by the vets. There is apparent professional jealousy over who, the breeder or the vet, knows the most about the proper care of dogs. On October 2, 1978, Mrs. Truitt took Dixie to Dr. Chatham for an ear mite examination. At the conclusion of the examination, Mrs. Truitt asked Dr. Chatham if he could be available at the end of the month because Dixie was pregnant and was expected to deliver then. Dr. Chatham said he would be available if necessary. There was no firm understanding reached between the parties on exactly what "being available" meant to either person. Mrs. Truitt did not hire Dr. Chatham as an obstetrician for Dixie and he was not requested to give her any prenatal care. There was no further contact between parties until October 24, 1978. Dixie received no prenatal care from any vet. Mrs. Truitt relied on her experience as a breeder to give Dixie the care she thought appropriate. Dr. Chatham has practiced veterinary medicine in Auburndale, Florida, since 1977. In his practice he has performed approximately 40 Caesarian sections in dogs and has seen several hundred dystocia (abnormal delivery) cases. In the afternoon of October 24, 1978, Dixie went into mild labor. Mrs. Truitt called Dr. Chatham in the late afternoon or early evening to tell him of Dixie's progress. Again at midnight or 1:00 A.M., on October 25, Mrs. Truitt called Dr. Chatham. She had observed Dixie begin strong contractions and the aminon had broken discharging its "water." She explained to Dr. Chatham that Dixie was now in hard labor and asked for advice. He said to watch the dog and call him back in one hour if any problems developed. Around 3:00 A.M., Mrs. Truitt again called Dr. Chatham. She was advised to examine Dixie to determine if the first puppy had presented itself in the birth canal. During this conversation Mrs. Truitt requested Dr. Chatham to immediately examine Dixie. He did not believe that was necessary as he knew from past experience that a dog could safely remain in labor for more than twelve (12) hours. He did say that if the first puppy had not been born by 7:30 A.M., in the morning to bring Dixie to his office and he would examine her to determine if a Caesarian section would be necessary. At 7:30 A.M., Mrs. Truitt arrived at Dr. Chatham's Office with Dixie. He was not there upon her arrival. She contacted him through his answering service and by 9:30 A.M., he had arrived and performed the Caesarian section on Dixie and delivered three (3) live puppies. By noon of that day Mrs. Truitt took Dixie home. Unfortunately the little dog died on the next day, October 26, 1978. When a Caesarian section should be performed on a laboring dog depends upon a variety of factors. If all other factors are equal, a small dog does not have the capability to labor safely as long as a large dog. If the dog has a discolored vaginal discharge then an immediate Caesarian is indicated. Caesarian sections are a moderately dangerous operation because the mother dog is already under stress from the labor and from giving life support to her puppies. For that reason, it is not advisable without considerable necessity to add the additional trauma of a Caesarian to her already burdened state. Additionally, vets are reluctant to perform a Caesarian section at night if, like Dr. Chatham, they do not have staff available then to assist them in the operation. Because of the foregoing factors it is good veterinary practice to allow a mother dog to labor at least twelve (12) hours before considering a Caesarian section. Only 25 to 30 percent of dystocia cases eventually do require a Caesarian. The balance of the cases work themselves out without any necessity of surgery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Second Amended Administrative Complaint be dismissed. DONE and ENTERED this 8th day of September, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1980. COPIES FURNISHED: Bert J. Harris, III, Esquire BOYD HARRIS & SMITH P.A. Suite 210, Barnett Bank Building Post Office Box 10369 Tallahassee, Florida 32302 William F. Casler, Sr., Esquire 6795 Gulf Boulevard St. Petersburg Beach, Florida 33706 Ken Oertel, Esquire General Counsel Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent violated Section 477.02(6); 477.15(8); 477.27(1) and (2), F.S. by allowing a person to practice the art of cosmetology in her salon without said person being a registered cosmetologist by the State of Florida.
Findings Of Fact Respondent, Marlene Fletcher, d/b/a the Beauty Parlour, did allow one Victoria Kane to practice the art of cosmetology, to-wit: the giving of a permanent wave to a customer in Respondent's salon at a time in which she held no Florida license. Respondent discussed by long distance telephone the circumstances attending the giving of said permanent wave by the said Victoria Kane. The said Victoria Kane was not in the employ of the Respondent; however, said Victoria Kane was under the control of the Respondent inasmuch as the practice of the art of cosmetology was in the salon of Respondent and at a time in which the Respondent was present.
The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: Respondent was certified by the Commission on June 10, 1977, and was issued Law Enforcement Certificate Number 41580. The Administrative Complaint alleges that: (a) On or between January 1, 1973, and December 31, 1974, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Deborah Brice, a child under sixteen years of age, by fondling her breasts and kissing her neck; (b) On or between January l, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dorothy Spickard, a child under sixteen years of age, by putting her on his lap and tickling her near her vaginal area; (c) On or between January 1, 1976, and December 31, 1979, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Dawn Whitehead, a child under sixteen years of age, by digitally penetrating her vagina areas and placing her hands on his penis; and (d) On or between June 1, 1969, and December 31, 1971, Respondent did unlawfully handle, fondle, or make an assault in a lewd, lascivious, or indecent manner upon Susan Kleine, a child under sixteen years of age, by kissing her on the neck, French-kissing her, and forcing her on a bed and getting on top of her, simulating sexual intercourse. Debra Brice, Dorothy A. Spickard, Dawn Allison Steward (f/n/a Dawn Allison Whitehead), and Susan Kleine testified that Respondent touched them inappropriately during the middle 1970's while they were under the age of 18 years. Debra Brice, Dorothy Spickard, and Susan Kleine were around the age of 14 to 15 years at the time the inappropriate touching was alleged to have occurred. Dawn Steward was around the age of 8 to 9 years at the time the inappropriate touching was alleged to have occurred. Debra Brice, Dorothy Spickard, and Dawn Steward are nieces of Respondent's ex-wife, Carol, who was married to Respondent during the time that the alleged incidents were supposed to have occurred. Susan Kleine is a sister of Respondent's ex-wife, Carol. Respondent and Carol were married in 1966, and were divorced sometime around 1978-79. It was not until the latter part of 1993, approximately 20 years later, that Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine told anyone of this alleged inappropriate touching. Sometime around the latter part of 1993, Carol discussed this inappropriate touching with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Sometime around the latter part of 1993, this alleged inappropriate touching was discussed in the presence of Debra Brice or Dorothy Spickard or Dawn Steward or Susan Kleine during therapy sessions involving Carol's and Respondent's child. While Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine appeared to be relatively clear on the facts concerning the alleged inappropriate touching, they were not clear on all the facts surrounding the alleged incidents. There was no evidence presented to corroborate the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, or Susan Kleine. Respondent denies any inappropriate touching of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine. Respondent admits tickling and wrestling with Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in a playful manner but denies touching any of them in an inappropriate manner, specifically in an inappropriate sexual manner. There is insufficient evidence to establish facts to show that Respondent touched Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine in an inappropriate manner, sexually or otherwise, notwithstanding the testimony of Debra Brice, Dorothy Spickard, Dawn Steward, and Susan Kleine to the contrary which I find lacks credibility due to the reasons set forth in Findings of Fact 5 through 9.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that the Administrative Complaint filed against the Respondent be dismissed. DONE AND ENTERED this 26th day of June, 1997, in Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1997. COPIES FURNISHED: Richard D. Courtemanche, Jr., Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Thomas M. Lindsey 21367 Anderson Road Brooksville, Florida 34601 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Department of Professional and Business Regulation, Board of Medicine, (Petitioner) is the state agency with responsibility for regulation of licensed medical practitioners in the State of Florida. Anand Lattinand, M.D., (Respondent) is and at all times material to this case, has been a board certified Dermatologist and a licensed physician in the State of Florida holding license number ME0034105, and located at 3450 East Fletcher Avenue, Tampa, Florida 33613. The Respondent first met A. L. (patient), a male, upon examination in July, 1992 for a lesion on the left axilla and anterior chest. Upon the initial examination, the Respondent learned that the patient, a retired lawyer, was a charter boat operator. The Respondent diagnosed the lesion as an inflamed seborrheic keratosis and applied liquid nitrogen, causing the lesion to blister and peel off. An appointment made for December 1992, was cancelled by the patient. On or about May 6, 1993, the patient, then 61 years old, presented to the Respondent with complaints of a rash on his chest. Upon examination, the Respondent noted that the rash also appeared on the patient's back and arms. The Respondent performed a dermatological examination on the patient to determine the cause of the rash. In addition to the rash, the examination revealed redness and papules (bumps) on the patient's skin. Although the patient indicated to the Respondent that the rash did not itch, the skin rash was excoriated and ulcerated, indicating that it was being scratched. Some of the papules exhibited a "lichenified" appearance. The Respondent requested that the patient undress so that a full body exam could be performed. Further examination revealed that the papules extended to the patient's hips and upper buttocks and on the lower legs. Such papules can be indicative of scabies, insect bites, disseminated herpes simplex or seborrheic dermatitis. The patient is a nudist. The patient did not tell the Respondent about his sun exposure. Such sun exposure may result in appearance of papules on parts of the body. The Respondent was not aware of the patient's nudist activities. Based on the Respondent's suspicions about the origin of the rash, further diagnostic inquiry warranted a complete genital examination. The Respondent requested and obtained the patient's consent for the genital examination. A standard dermatological genital examination includes the touching of the penis and testicles of a male patient. The scrotum is examined for eczema. The skin of the penis is manipulated. The penis is squeezed and the urethra is examined for evidence of discharge. The Respondent put gloves on his hands and performed the genital examination. As the examination progressed, the Respondent informed the patient of the purpose for the procedure. The exam revealed no scabies or insect bites. There was no discharge present. There was no genital indication of herpes simplex or dermatitis. Despite the absence of genital symptoms, the Respondent was unable to rule out disseminated herpes simplex as the cause for the existing skin condition. Accordingly, the Respondent inquired into the patient's marital status and sexual habits. Inquiry into the sexual habits of the patient was medically appropriate given the nature of the suspected origin of the condition. Beyond mere herpes simplex, the Respondent was concerned about the possibility of AIDS and its related impact on the progression of herpes simplex. The patient appeared to be uncomfortable with the questioning. The Respondent had doubts as to the credibility of the information being provided and so discontinued the questioning. The examination was concluded. Unable to specifically identify the cause of the condition, the Respondent provided the patient with two ointments intended to treat the rash. The patient dressed, paid for the examination and left the Respondent's office. Based on the testimony of the patient, the Petitioner alleges that, without the patient's consent, the Respondent fondled the patient's genitals with his ungloved hands to the point when the patient's penis became erect, and that the Respondent then requested that the patient masturbate while the Respondent watched. The Petitioner asserts that the patient declined the masturbation request, but permitted the Respondent to complete the exam. Apparently, the patient made no objection to the alleged fondling until he was asked to masturbate. Based on the presentation and demeanor of the patient-witness at hearing, the testimony of the patient is not credible. The evidence fails to establish the allegations of the Administrative Complaint. The Respondent denies that the examination was performed ungloved, that he manipulate the patient's penis to erection or that he requested that the patient masturbate. The testimony of the Respondent is credited. The greater weight of the evidence establishes that under the circumstances, the genital examination was properly performed and is an appropriate method of attempting to diagnose the cause of the skin rash from which the patient suffered.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional and Business Regulation, Board of Medicine, enter a Final Order dismissing the Administrative Complaint filed in this case. DONE and RECOMMENDED this 8th day of June, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6252 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 5-8. Rejected, contrary to the greater weight of credible and persuasive evidence. 9-10. Rejected, unnecessary. 11. Rejected, contrary to the greater weight of credible and persuasive evidence. 12-14. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 3-4. Rejected, irrelevant, unnecessary. 7. Rejected, unnecessary. 9. Rejected as to whether patient would be aware of visual examination, unnecessary. 12. Rejected, unnecessary. 23. Third and fourth sentences are rejected, unnecessary. 27. Rejected, subordinate. 30. Rejected, unnecessary. COPIES FUIRNISHED: Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Steve Rothenburg, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Veronica E. Donnelly, Esquire J. B. Donnelly, Esquire GREENE, DONNELLY, SCHERMER, TIPTON & MOSELEY 100 North Tampa Street, Suite 2825 Tampa, Florida 33602
The Issue Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one, Dennis R. Nevels, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one Cora Bracy, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one Renee Boren Hayes, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one, Annette Calloway, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes. Whether or not on or about December 10, 1976, Florida Beauty College, Inc. and Henry Dixon as President, Manager and Licensed Instructor, allowed the school to operate on members of the public without any licensed instructor being present in violation of Rules 21F-2.24 and 21F-2.25, Florida Administrative Code; thereby violating Section 477.15(9), Florida Statutes, and Section 477.27(12), Florida Statutes. Whether or not on or about September 4, 1976, Henry Dixon, was drinking and became publicly intoxicated during the day time hours at his school and in doing such violated Section 477.15(6) and (7), Florida Statutes. Whether or not between September, 1976 and January, 1977, the students of the Respondent were not receiving experience and a receptionist in violation of Rule 21F-2.16, Florida Administrative Code; the school did not have an adequate library in violation of Rule 21F-2.20, Florida Administrative Code; the school did not have the required number of thermal units, heat caps or steamers, in violation of Rule 21F-2.07, Florida Administrative Code; the school did not have separate junior and senior departments in violation of Rules 21F-2.23, 21F- 2.24 and 21F-2.25, Florida Administrative Code; the school did not have the required minimum equipment of six shampoo bowls and six manicure tables in violation of Rule 21F-2.08, Florida Administrative Code; and the Respondents had not posted their inspection rating sheets as required by Rule 21F-2.07, Florida Administrative Code; thereby violating Sections 477.08, 477.15(7), (8) and (9) and Section 477.27(8) and (12), Florida Statutes. Whether or not during the period of April, 1975 until September, 1976, Florida Beauty College, Inc. and Henry Dixon, the President, Manager and Licensed Instructor, allowed an unlicensed person, namely one, A. J. Quentaro, to teach at the school, in violation of Rule 21F-2.17(b), Florida Administrative Code and Section 477.08(1), Florida Statutes; thereby violating Section 477.15(7) and (9), Florida Statutes. Whether or not between September, 1976 and February, 1977, Florida Beauty College, Inc. and Henry Dixon as President, Manager and Licensed Instructor, failed to issue and post student permits and identification badges in spite of repeated warnings from the Board's inspector, and for that reason were in violation of Rule 21F-2.07(4), Rule 21F-2.25, and Rule 21F-2.28, Florida Administrative Code; thereby violating Sections 477.08, 477.15(7)(8) and (9), and 477.27(8) and (12), Florida Statutes. Whether or not between the period September, 1976 and February, 1977, the Respondents allowed students without required hours to work unfettered on the public; misrepresented the amount of hours certain students had to members of the public, and posted on a bulletin board for the public to discern the names of certain students whom the Respondents favored; in violation of Rules 21F-2.23, 21F-2.24, 21F-2.25, 21F-2.28 and 21F-2.17(b), Florida Administrative Code, thereby violating Sections 477.08, 477.15(7), (8) and (9), 477.27(8) and , Florida Statutes.
Findings Of Fact At all times pertinent to the administrative complaint, up to and including the date of the hearing in this cause, the Florida Beauty College, Inc. was the holder of license no. 043, held with the Florida State Board of Cosmetology, and Henry Dixon was licensed as an instructor by the Florida State Board of Cosmetology under license no. 22909. The licenses were held for the purpose of doing business in Jacksonville, Florida. From April, 1975 through February, 1977, the relevant periods in the administrative complaint, the Florida Beauty College, Inc. and Henry Dixon, as the President, Manager and a Licensed Instructor, operated a cosmetology school in Jacksonville, Florida. In an effort to prove the allegations set forth in the administrative complaint the Petitioner offered the testimony of Linda Geiger and Brenda Gene Schwerm, former students of the Florida Beauty College, Inc. Part of their testimony pertained to counts 1 - 4 and count 8. These five counts alleged that Dennis R. Nevels, Cora Bracy, Renee Boren Hayes, Annette Calloway and A. J. Quentaro had been allowed by the Respondents to teach in the cosmetology school at a time when the aforementioned persons were unlicensed as instructors. Ms. Geiger and Ms. Schwerm, collectively, gave testimony to the effect that on one or more occasions Novels, Bracy, Hayes, Calloway and Quentaro taught other students at the Florida Beauty College, with the permission of Henry Dixon, and at times his insistence, that the students attend sessions being taught by the five named individuals. This testimony of Ms. Geiger and Ms. Schwerm was opposed through the testimony of James Burdett and Cynthia Kinser, former students of the Florida Beauty College; and through the testimony of Michell Johnson, the daughter of Henry Dixon and a licensed instructor in the Florida Beauty College and Henry Dixon, one of the Respondents. The testimony of Mr. Burdett, Ms. Kinser, Ms. Johnson and Mr. Dixon was to the effect that the students Nevels, Bracy, Hayes, Calloway and Quentaro never taught other students in the beauty college under the permission of Dixon or other members of the staff. Their recollection was that some of the named students; specifically Novels, Calloway and Quentaro demonstrated certain techniques used in the cutting of hair or the treatment of hair and other cosmetology needs. In analyzing the competing points of view of the witnesses offered in the hearing, it should be noted that there is a clear and apparent interest on the part of Mr. Dixon the Respondent, and his daughter, Ms. Johnson, one of the instructors within the school. It should also be noted that Ms. Geiger had been suspended from the school on November 19, 1976 and had been dismayed by the dismissal of one Ken Branson, a licensed instructor at the school, whom she felt was a more qualified instructor than either Mr. Dixon or his daughter Ms. Johnson. Ms. Geiger had also been ostracized for filing a complaint against the school which lead to the present administrative complaint and was upset because she felt the necessity to apologize to the other students in the school at the time the complaint was made known. Ms. Schwerm was concerned about the dismissal of Mr. Branson and expressed this concern in terms of feeling that the quality of instruction had been lowered once Branson left the college. The background of the witnesses Burdett and Kinser lead to the conclusion that they had no apparent interest in the hearing. In view of all the facts on the question of whether or not the named individuals were teaching in the school, it is concluded that those individuals did not teach and at most only demonstrated certain techniques for the benefit of other students. Therefore, notwithstanding the fact that these named individuals, to wit: Nevels, Bracy, Hayes, Calloway and Quentaro, were not licensed instructors, there has been no violation of Rule 21F-2.17(b), Florida Administrative Code, and Section 477.08(1), Florida Statutes, to cause a violation of Sections 477.15(7) and (9), Florida Statutes, because neither the Florida Beauty College, Inc. or Henry Dixon, allowed any unlicensed person to teach at the school as alleged in counts 1 - 4 and 8. In count 5, the administrative complaint accuses Florida Beauty College, Inc. and Henry Dixon of allowing the operation of the school in terms of the service to the public without any licensed instructor being present in violation of Rules 21F-2.24 and 21F-2.25, Florida Administrative Code, which allegedly constitutes a violation of Section 477.15(9), Florida Statutes and Section 477.27(12), Florida Statutes. The testimony in the hearing revealed that on a routine basis between 9:30 and 10:30 a.m., students with the requisite number of hours were allowed to service customers without any licensed instructor being directly in the room. Mr. Dixon was in the adjacent office which has an observation window, that would allow him to see the work being done by the students and to give necessary instructions. The language of Rules 21F-2.24 and 21F-2.25, Florida Administrative Code reads as follows: 21F-2.24 Health Certificates. A permanent health certificate showing results of a blood test and chest x-ray or equivalent respiratory communicable disease test must be submitted with each application for examination by any applicant. 21F-2.25 Permit Cards (Student Identification) Identification cards will be issued for each student in school showing student's name, date of enrollment, permit number and classification. These cards are to be inserted in badges furnished by the school and worn on the student uniform at all times while attending school. If evening classes are held, permits for those attending each session should be posted separately and designated as "Day Class", "Evening Class" or "Part-time Class". An examination of the above cited provisions demonstrates that they do not pertain to the question of allowing unauthorized persons to operate on members of the public without a licensed instructor being in attendance. Therefore, those provisions do not apply to the facts. Count 5 also charges a violation of Section 477.15(9), Florida Statutes, which imposes suspension or revocation for violations of any of the provisions of Section 477.23, Florida Statutes. A review of the provisions of Section 477.23, Florida Statutes, demonstrates that none of those provisions have application to an allegation of allowing unauthorized persons to operate on members of the public without licensed instructors being in attendance. Finally, count 5 alleges a violation of Section 477.27(12), Florida Statutes. This provision pertains to the penalties to be assessed for violations of any of the rules or regulations of the Petitioner. There have been no violations alleged or shown, consequently the penalties are not relevant. Count 6 of the administrative complaint charges Henry Dixon with drinking and becoming publicly intoxicated during the daytime hours at his cosmetology school in violation of Section 477.15(6) and (7), Florida Statutes, those provisions state the following: 477.15 Suspension or revocation of certificate; grounds.-- The board may either refuse to issue, or renew, or may suspend or revoke any certificate of registration for any of the following causes: * * * Habitual drunkenness or habitual addiction to the use of morphine, cocaine or other habit- forming drugs; Immoral or unprofessional conduct; The facts indicate that on September 4, 1976, while the business was still in operation and patrons were being attended, Henry Dixon came into the service part of the salon with a beer in his hand and was acting in a festive mood. The occasion of his actions was a party that was being held for the benefit of one of the students. Although there is some testimony that Dixon was getting intoxicated there is no showing that Mr. Dixon was in fact intoxicated. An analysis of this testimony leaves the impression that the Petitioner has failed to show any habitual drunkenness or addiction to morphine, cocaine or other habit-forming drugs, as alleged. Likewise, the conduct was not immoral. However, such conduct is unprofessional. Count 7 of the administrative complaint has numerous provisions. The first of those provisions is a contention that the students in the college from September, 1976 to January, 1977 were not afforded an opportunity to receive experience as a receptionist in violation of Rule 21F-2.16, Florida Administrative Code. A complete review of the facts indicate that the students were given that opportunity and took advantage of such opportunity. Count 7 additionally accuses the school of not having an adequate library in violation of Rule 21F-2.220, Florida Administrative Code. A review of the facts indicates that there was sufficient literature available to the students to constitute a library within the meaning of provisions of the Florida Administrative Code. One of the allegations set forth in count 7 pertains to the failure of the school to have the required number of thermal, heat caps or steamers, in violation of Rule 21F-2.07, Florida Administrative Code. There was no testimony offered to demonstrate a lack of those items of equipment; therefore there has been no violation shown of Rule 21F-2.07, Florida Administrative Code. Count 7 contained a provision which claimed that there was no separate junior and senior departments in violation of Rules 21F-2.23, 21F-2.24 and 21F- 2.25, Florida Administrative Code. None of these provisions of the Florida Administrative Code pertain to the question of the requirement of separating junior and senior departments; nonetheless, the testimony reveals that the classes were divided into freshmen, junior and senior, with the freshmen being those students who had not obtained their necessary 200 hours which is a prerequisite to practicing on customers who are not members of the class or members of their immediate family. Count 7 contains an additional allegation that there were insufficient numbers of shampoo bowls and manicure bowls in violation of Rule 21F-2.08, Florida Administrative Code. The testimony showed that there were eight shampoo bowls and six manicure tables and thereby were in compliance with the provisions of the Florida Administrative Code. Finally, there was insufficient proof to establish the failure to post inspection rating sheets as allegedly required by Rule 21F-2.07, Florida Administrative Code. It should also be noted that Rule 21F-2.07, does not pertain to the requirement for posting of inspection rating sheets. In summary, there have been no violations of Sections 477.08; 477.15(7), (8) and (9), and 477.27(8) and (12), Florida Statutes, as alleged in count 7. Count 9 of the administrative complaint charged Florida Beauty College, Inc. and Henry Dixon with the failure to issue and post student permits and identification badges in spite of repeated warnings from the Board's inspector in violation of Rule 21F-2.07(4), Rule 21F-2.25 and Rule 21F-2.28, Florida Administrative Code. This was felt to constitute a violation of Sections 477.08, 477.15(7), (8) and (9) and 477.27(8) and (12), Florida Statutes. The facts in this cause demonstrate that in spite of an initial warning to the Respondents, a second inspection revealed that student permits were not posted on the second visit as required by Rule 21F-2.25, Florida Administrative Code. No other violation as alleged in count 9 is shown. Count 10 of the administrative complaint charged that between September, 1976 and February, 1977 students were allowed unfettered on the public, and that the Respondents misrepresented the amount of hours certain students had to members of the public and in addition posted on the bulletin board for the public to discern, the names of certain students whom were favored by the Respondent; in violation of Rules 21F-2.23, 21F-2.24, 21F-2.25, 21F-2.28 and 21F-2.17(b), Florida Administrative Code, thereby violating Sections 477.08, 477.15(7), (8) and (9), 477.27(8) and (12), Florida Statutes. Certain testimony was offered by Ms. Geiger to the effect that students were allowed to work on the public who had less than 200 hours. In view of the opinion of the undersigned of the creditability of the witness Geiger, that testimony is rejected and no other showing was made to establish that students were allowed to administer to the needs of the public when those students were not duly qualified. There was no testimony to show that the names of students were posted on bulletin boards for the public to discern, thereby creating a favorable impression to the public about those certain students. Therefore there has been no showing of any violation of the Florida Administrative Code or Florida Statutes as set forth in count 10.
Recommendation For the violations as established against Florida Beauty College, Inc. license no. 043 and Henry Dixon, licensed instructor, license no. 22909, it is recommended that these Respondents be suspended for a period of two weeks. (This suspension recommendation would only pertain to the Florida Beauty College, Inc., license No. 043, if the Florida Beauty College, Inc. is still in operation at the time of the entry of the final order of the Petitioner). DONE AND ENTERED this 10th day of May, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Daniel J. Wiser, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Michael Seelie, Esquire Suite 1103, Blackstone Building East Bay and Market Streets Jacksonville, Florida 32202
