Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Raymond F. Cay was licensed as a barber in the state of Florida and licensed to operate a barbershop in the state of Florida, holding license numbers BB00014055 and B50007436, respectively. At all times material to this proceeding, Respondent was owner of the barbershop, Cay's Hairstylist (Cay's), located at 1349 Cassat Avenue, Jacksonville, Florida 32205. On April 14, 1987, Petitioner conducted a routine annual inspection of Cay's as required by rule and noted certain deficiencies which if proven could have resulted in Respondent's licenses being revoked, suspended or otherwise disciplined. However, there was insufficient evidence to show that these allegations of deficiencies were ever proven in a formal proceeding or admitted to by Respondent in an informal proceeding under Chapter 120, Florida Statutes. In fact, there was insufficient evidence to show that any disposition had been made by the Petitioner on these alleged deficiencies. On March 11, 1988, Petitioner again conducted a routine annual inspection of Cay's and again noted certain deficiencies which were the basis of the Second Amended Complaint. There was insufficient evidence to show that there was excessive hair on floor or that the back of the bars, chairs or furniture were not maintained in a safe and sanitary manner or that the shop and equipment were dirty on March 11, 1988 when the inspector visited Cay's. Although all of the barbering tools were not totally immersed in a disinfectant solution on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that that portion of the barbering tool (including brushes) which comes in contact with the patrons, was not sufficiently immersed in a proper disinfectant solution to allow proper sanitation. Although there were no sanitary towels in the bathroom on March 11, 1988 when the inspector visited Cay's, there was insufficient evidence to show that the bathroom was dirty. Sanitation rules were improperly displayed in Cay's on March 11, 1988 when the inspector visited. The only license not displayed on March 11, 1988 when the inspector visited Cay's was Ms. Delp's, and she was currently on leave and not working even though she was in the shop shampooing her hair on that day. On November 22, 1988, Petitioner conducted a re-inspection of Cay's and the inspector noted certain deficiencies which if proven could result in Respondent's licenses being revoked, suspended or otherwise disciplined. However, these alleged deficiencies were neither made a part of the Second Amended Administrative Complaint nor was there any evidence that these alleged deficiencies were ever proven or that they formed the basis for any disciplinary action taken by the Petitioner.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order DISMISSING the Second Amended Administrative Complaint filed herein. RESPECTFULLY submitted and entered this 24th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-4180 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by Petitioner in this case. Respondent did not submit any Proposed Findings of Fact and Conclusions of Law. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Treated as a conclusion of law rather than a finding of fact. 2.-3. Adopted in Finding of Fact 1. 4. Adopted in Finding of Fact 2. 5.-6. Subordinate to facts actually found in this Recommended Order. 7. Treated as a conclusion of law rather than a finding of fact. 8.-0. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 4. Subordinate to facts actually found in this Recommended Order. COPIES FURNISHED: Myrtle Aase, Executive Director Barber's Board 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 E. Renee Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 P. W. Cay, Qualified Representative 1349 Cassat Avenue Jacksonville, Florida 32205 Raymond F. Cay 1349 Cassat Avenue Jacksonville, Florida 32205
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Rule 21F-20.002, Florida Administrative Code, and Sections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1985). At the hearing the Petitioner presented the testimony of two witnesses and offered one exhibit into evidence. Thereafter, the Respondent testified in her own behalf. At the conclusion of the evidentiary portion of the hearing, the parties advised the Hearing Officer that they did not intend to obtain a transcript of the proceedings. A deadline of 10 days from the date of the hearing was established for the submission of the parties' proposed recommended orders. The hearing concluded with the presentation of oral argument by counsel for both parties addressed primarily to the issue of the appropriate penalty. As of the date of this recommended order, neither party had filed a proposed recommended order.
Findings Of Fact The Respondent is licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida, having been issued license numbers CL 0163833 and CE 0041166. At all times material hereto, the Respondent has been the owner of a cosmetology salon named All Around Hair Stylist, located at 5567 Moncrief Road, Jacksonville, Florida 32209. An inspection of the premises of All Around Hair Stylist was conducted on August 29, 1987, by one of the Petitioner's inspectors. At that time the salon was in substantial disarray. Among the conditions in existence in the salon at that time were the following: The container for soiled linens contained trash other than linens. Bags of overflowing trash were in the service area and in the back of the premises. Hair was all over the back room floor that one had to pass through to get to the shampoo bowl and restroom. Food scraps were left in the back room. The salon had an objectionable odor. The floors were filthy and littered with hair, trash, dust, and dirt. The shampoo bowls were not clean. The door leading to the restroom had no handle and a rug jammed against the door made it very difficult to open. The restroom had a very unpleasant odor. There was a hole in the wooden floor. The pipes to the sink did not work properly and water from the sink would pour onto the floor. The restroom did not have a waste receptacle, paper towels, or soap. There was no ventilation in the restroom. The service area was quite cluttered. The brushes and combs were full of hair. A reinspection was done on December 3, 1987. At that time there were still some shortcomings in the condition of the premises, but substantial improvements had been made. Shortly before the hearing, another reinspection was done. At the time of the second reinspection, the premises were "spotless." Approximately a week or ten days before the August 29, 1987, inspection, the Respondent's premises were vandalized. The vandals broke into the building and once inside they broke the sink, the pipes to the sink, the water heater, and various other things in the salon. The vandals also made quite a mess inside the premises by doing such things as taking supplies out of drawers and dumping garbage on the floor. At the time of the August 29, 1987, inspection the Respondent had not yet been able to repair all of the damage caused by the vandals or clean up all of the mess caused by the vandals. The Respondent did not receive a settlement check from her insurance company until sometime after August 29, 1987, and due to her economic circumstances she was not able to begin to repair the damage caused by the vandals until she received the insurance settlement. Since August 29, 1987, the Respondent has repaired all of the damage to the premises and has made other substantial improvements to the premises. The Respondent's premises are in a low rent neighborhood. Many of her customers are in low income brackets. Accordingly, the Respondent charges lower than usual prices for her services and does not earn a large income from the business.
Recommendation Based on all of the foregoing, it is recommended that the Board of Cosmetology enter a final order in this case finding the Respondent guilty of violating Section 477.029(1)(i), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the total amount of one hundred dollars ($100.00) DONE AND ENTERED this 18th day of March, 1988, 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 18th day of March, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Chief Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 R. Lee Utley, Jr., Esquire 331 East Bay Street Jacksonville, Florida 32202 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether Kenneth D. Stahl, M.D. ("Dr. Stahl" or "Petitioner"), is entitled to an award of attorneys' fees and costs to be paid by the Department of Health, Board of Medicine ("Department" or "Respondent"), pursuant to section 57.105, Florida Statutes (2014).1/
Findings Of Fact Review of the record indicates that, at the time the Administrative Complaint was filed at DOAH, the following facts were known by Respondent, as later stated in the Findings of Fact of the Final Order of the underlying case: In February 2011, Patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital ("JMH") with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous antibiotics. She was discharged on March 4, 2011. On June 22, 2011, Patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival, she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography ("CT") scan of Patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Patient C.C. was scheduled for an emergency appendectomy and signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, and notes indicate that he was present throughout the critical steps of the procedure. The Operative Report was dictated by Dr. Eddie Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the post-operative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that, on June 23, 2011, at 8:00 a.m., Patient C.C. "denies pain" and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, Patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from Patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Nicholas Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with Patient C.C. in the clinic the following Monday. At the meeting, Patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to Patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The Second Amended Administrative Complaint alleged that Dr. Stahl performed a wrong procedure when he performed an appendectomy which resulted in the removal of Patient C.C.'s ovary and a portion of her fallopian tube instead. The Final Order concluded that the evidence did not clearly show that the wrong procedure was performed. It concluded that it was more likely that exactly the right procedure was performed on Patient C.C. That is, it was likely that an oophorectomy and salpingectomy were the right procedures to remove the inflamed organs and address the abdominal pain that caused Patient C.C. to present at the JMH emergency room, but that the right procedure was initially denominated incorrectly as an "appendectomy," as a result of patient history and erroneous interpretation of the CT scan.
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be imposed against the licensure of Douglas R. Shanklin, M.D., the Respondent, for allegedly falsely testifying that he had not been issued a "Letter of Guidance", in violation of Section 458.331(1)(k), Florida Statutes.
Findings Of Fact At all times material hereto, the Respondent was a physician licensed in the State of Florida. He holds license number ME0009372. The Petitioner is an agency of the State of Florida charged with regulating the licensure status and related practice standards of physicians in Florida, including making investigations and bringing Administrative Complaints against those physicians, in their licensure status, believed to be departing from those practice standards. On January 8, 1993, the Respondent testified as a defense witness, by deposition, in a medical malpractice case. The case style was Faircloth v. Coastal Empire Pathology Services, P.C., et al. The trial occurred in Savannah, Georgia. During his deposition, the Respondent was asked three times, by opposing counsel, if he had ever been issued a Letter of Guidance by any state licensing agency. The Respondent stated three times that, indeed, he had not. In fact, on May 15, 1984, a Probable Cause Panel of the Board of Medical Examiners in Florida considered a complaint against the Respondent. The Probable Cause Panel made a determination that while probable cause existed to believe that the Respondent had violated the provisions of the Medical Practice Act, the complaint should be dismissed with a Letter of Guidance. The Board stated in its Order that: Probable cause exists to believe that subject has violated the provisions of the Medical Practice Act. In light of the circumstances presented, however, this case should be and the same is hereby dismissed with a letter of guidance to subject. Thereafter, an undated letter was sent to and received by the Respondent. See Petitioner's Exhibit 2 in evidence. The Closing Order was never mailed to, nor received, by the Respondent. The Respondent was unaware of the Closing Order until March of 1993, when the investigation in this case was commenced and at which time he was first supplied a copy of that Closing Order of the Board's Probable Cause Panel. The Petitioner's Exhibit 2 in evidence, the undated letter, is not entitled or otherwise delineated as a "Letter of Guidance" and at no place in the letter is the word "guide" or "guidance" used. Consequently, at the time the Respondent received the letter, which is Exhibit 2, he did not understand or perceive it to be a Letter of Guidance but, rather, understood it to be a letter of closing indicating that he had prevailed in the complaint case. On January 8, 1993, when the Respondent testified at the deposition referenced above, he did not have in mind, nor did he remember, the undated letter. On January 8, 1993, when he testified at that deposition that he had not been issued the Letter of Guidance, he believed he was answering those questions truthfully. He did not know or understand that he had been issued a Letter of Guidance. On January 8, 1993, when he testified at the deposition, he did not testify falsely, because he had not been given the Closing Order at the time that the undated letter (Exhibit 2) was received. He thus did not understand that undated letter to be a Letter of Guidance from the then Department of Professional Regulation. He was never served a copy of the actual Closing Order which might have explained the situation to him. Consequently, he had a genuine, good-faith belief that he had not been issued a Letter of Guidance. Because his belief was genuine and he had no specific intent to tell a false story in those particulars, he made no false or fraudulent representation and committed no deception in conjunction with his answers to those questions at his deposition.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence or record, the candor and credibility of the witnesses, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty of violating Section 458.331(1)(k), Florida Statutes, and that the Complaint be dismissed in its entirely. DONE AND ENTERED this 3rd day of May, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5903 Petitioner's Proposed Findings of Fact 1-3. Accepted. 4-6. Rejected, as not entirely in accord with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Steven Rothenburg, Senior Attorney Agency for Health Care Administration 9125 Bay Plaza Boulevard Suite 210 Tampa, FL 33619 Larry G. Turner, Esquire Post Office Box 508 Gainesville, FL 32602 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
