Findings Of Fact Gerald A. Tobey holds a clinical laboratory technologist license in the specialities of microbiology, chemistry, and hematology. He has been so certified since 1976. In 1985, Tobey allowed his license to become delinquent, but it was reinstated at his request. In July, 1987, Tobey requested certification to add the specialty of immunohematology to his license. The application he filed asked in Question 9 if he had ever been convicted of a felony or crime involving moral turpitude. Tobey left the question blank. HRS wrote to him requesting an answer. Tobey responded by letter dated September 23, 1987, indicating that the answer was "No." In fact, Tobey pleaded guilty and was adjudicated guilty on February 4, 1985, of the offense of causing a minor to participate in harmful or obscene motion picture exhibitions, shows or presentations, a felony. In exchange for the guilty plea, one count of sexual battery on a minor, his daughter, was nolle prossed. The crime is undeniably a crime involving moral turpitude. Tobey was sentenced to 36 months in a facility operated by the Department of Corrections.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order revoking the clinical laboratory technologist license of Gerald A. Tobey. DONE and ENTERED this 6th day of April, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 6th day of April, 1988. COPIES FURNISHED: Don Royston, Esquire HRS District III Legal Counsel 1000 Northeast 16th Avenue Gainesville, Florida 32601 Gerald A. Tobey 364 Blue Parrot Lady Lake, Florida 32659 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue By this petition, Horace R. Morgan, Jr., M. T. seeds a review of the Division of Health's denial of Mr. Morgan's application for licensure as a clinical laboratory supervisor.
Findings Of Fact The facts herein involved are largely undisputed. Mr. Morgan acknowledges that the experience computations made by the Respondent from the attachment to his application for licensure, Exhibit 3 herein, are correct; and that, as computed, the total experience of Mr. Morgan comprises seven years and four months. Mr. Morgan, however, contends that the practice of the Respondent in allowing credit only for months inn which an applicant is employed in a laboratory and requiring twelve months of such employment for one year's credit is not correct. The Petitioner's position appears to be that he should be given credit from the time he was initially employed as a laboratory technician through the intervening years he has been employed without regard to periods in which he was not so engaged. Petitioner's second point of contention is that, as acknowledged by the Respondent, he has a total of 70 credit hours in academic training, and therefore his experience requirements should be reduced accordingly. Rule 10D- 41.04, F.A.C. Laboratory Personnel Qualifications Supervisor, provides the minimum qualifications of a supervisor. These include successful completion of three years of academic study (a minimum of 90 semester hours or equivalent) in an accredited college or university, and at least seven years of experience in a clinical laboratory; or successful completion of two years of academic study ( a minimum of 60 semester hours or equivalent) in an accredited college or university and at least ten years of experience in a clinical laboratory. Petitioner contends that 70 hours of academic study should result in a lessening of the amount of practical experience required. Petitioner's basic contention is that the additional ten hours of academic study should be equivalent to one year of of experience, inasmuch as 60 hours of academic study requires ten years experience to qualify for supervisor, whereas with 90 hours academic study, only seven years experience is required to qualify as supervisor. On the other hand, Respondent's witness, who is in charge of reviewing all applications such as Morgan's, testified that the Division has interpreted the regulations to require a successful completion of three years of academic study and seven years experience, or successful completion of two years academic study and ten years experience in order to qualify as a laboratory supervisor. No interpolations have been allowed between these two requirements, and this interpretation of the rule has been followed since the rule was promulgated some seven or eight years ago. She further testified that she had credited Morgan with his experience periods in the manner that has been used to credit all other applicants since the rules were adopted. Under this long standing interpretation of the regulations, Morgan has seven years and four months experience as indicated on his application, and he also has 70 hours credit for academic study. Accordingly, even had Morgan been credited with nine years experience as he would have if given credit for every year he has been licensed, he still would not meet the minimum requirements to qualify as a supervisor.
Findings Of Fact On March 17, 1977, the Petitioner, Rosa M. Richardson, made application with the State of Florida, Department of Health and Rehabilitative Services, to become a licensed clinical laboratory technologist. After reviewing the application of the Petitioner, the application was rejected by the Respondent. The rejection was made in the form of a letter addressed to the Petitioner, that letter being dated April 12, 1977, and appearing in the record as Joint Exhibit #2 by the parties. Basis for the denial of the license application was the allegation by the Respondent that the Petitioner had failed to have 60 semester hours of academic study as required by Section 10D-41.25(9), Florida Administrative Code. Subsequently, by a pleading entitled Amendment to Notice of Denial of License, the Respondent indicated that it recommended the rejection of the license application on the additional ground that the Petitioner failed to have four years of pertinent experience in an approved laboratory, again under the provisions of Section 10D-41.25(9), Florida Administrative Code. The Petitioner disagreed with the opinion of the Respondent concerning the issue of her qualifications to become a licensed laboratory technologist, and by correspondence of May 9, 1977, requested a formal hearing. The case was then forwarded to the Division of Administrative Hearings for consideration. On the initial date of hearing of August 18, 1977, the Petitioner gave testimony concerning her work experience. Some of that experience pertained to a job which she held in May, 1972 through July, 1975, this employment being with the Department of Business Regulation, Division of Pari-Mutual Wagering. The job there was working in the racing laboratory doing routine urinalysis of the horses who were running on the race program. An additional function was to do blood tests for the presence of drugs in certain prisoners who were incarcerated by the law enforcement officials in Dade County. Mrs. Richardson also worked six months at a regional laboratory as a laboratory technician I. This employment was during the year 1975. Those duties included DKU for new born babies, in other words testing for phenylhetonuria. In 1975 through 1977,to include the date of hearing, the Petitioner worked for the North American Biological Laboratory Inc. of Miami, Florida. This job was as a laboratory technician. Some of the duties included routine tests for hepatitis. Mrs. Richardson had also worked from July, 1968 through March, 1977 with the National Cardiac Childrens Hospital in Miami, Florida, as a laboratory assistant. All the work related experience stated above was in the position of a laboratory technician; that is to say that the work was in a position of a laboratory employee and under the supervision of a person qualified in laboratory work. Mrs. Richardson's educational background includes a high school diploma from the State of South Carolina; and two years of various courses at the Miami Dade Junior College to include courses in Math, Biology and Chemistry; however, the only courses in which the Petitioner received credit in this latter enrollment period was the credits for Math. The amount of total hours was three credit hours. This initial enrollment in the Miami Dade Junior College was in the years 1968 through 1970. Mrs. Richardson has also completed a course offered by Charron-Williams College, Paramedical Division. This course was offered in the City of Miami, Florida, and was completed by the Petitioner on August 2, 1974. Moreover, a diploma was given to Mrs. Richardson indicating that she had completed the prescribed course as a clinical laboratory technician. The Respondent concedes that the Petitioner is entitled to function as a laboratory technician and as a matter of fact the Petitioner is licensed by the Respondent in that capacity. As stated before, the opposition of the Respondent to the licensure of the Petitioner pertains to the attempt of the petitioner to be a licensed laboratory technologist. From the position taken at the hearing, the Respondent has abandoned its position in opposition to the licensure based upon the failure of the Petitioner to have completed at least four years of pertinent experience in an approved laboratory. This change in position by the Respondent has been made in view of the prior experience which the Petitioner has. On the second matter of opposition which pertains to the requirement of a minimum of 60 hours or equivalent in quarter or trimester hours in an accredited college or university with a chemical, physical or biological science as a major subject, the Respondent still asserts that the Petitioner has failed to meet those requirements. When this modified position was made known to the Petitioner in the course of the August 18, 1977 hearing, it was brought to the attention of the undersigned that the Petitioner was presently attending a college program which would lead to the completion of 60 semester hours or equivalent of work which would bring about an approval of her application to be a licensed laboratory technologist. By agreement of the parties, the hearing was recessed to allow the Petitioner to pursue that course study with the understanding that if the Petitioner decided that she was unable to achieve licensure through the completion of that course study, this knowledge could be made known to the undersigned and a recommended order would be drafted on the basis of the information which had been presented at the August 18, 1977 hearing. A period of time passed in which no one indicated their position on the question of requiring a recommended order to be made. This period of inactivity came to a close when the undersigned was made aware of the fact that the Petitioner wished to have a determination of the issue of her entitlement to a license as a laboratory technologist made before any completion of the current program in which she has enrolled. Therefore, on March 6, 1978 the hearing was reconvened. At that time it was offered into the record that 21 hours out of the needed 60 hours had been completed in the junior college program in which the Petitioner was now enrolled. Consequently, it left the hearing in the posture that any entitlement which the Petitioner would have to a license as a laboratory technologist must be conferred on the basis of the completion of the course with Charron-Williams College or some other alternative method expressed in Section 10D-41.25, Florida Administrative Code. This provision of the Florida Administrative Code pertains to the requirements for licensure as a laboratory technologist. A perusal of those requirements leads to the conclusion that the only possible basis for licensure which could be demonstrated, after an examination of that section, and in view of the testimony, would be the Section 10D-41.25(9), Florida Administrative Code, that provision states: 10D-41.25 Laboratory Personell -- Quali- fications, Technologist. A technologist shall meet one of the following requirements: * * * (9) Successful completion of two years of academic study (a minimum of 60 semester hours or equivalent in quarter or trimester hours) in an accredited college or university with a chemical, physical or biological science as a major subject, and at least four years of pertinent experience in an approved laboratory, or There are insufficient credit hours in the current enrollment In the junior college to meet the 60 semester hours or equivalent demand. Likewise, an examination of the Composite Exhibit #2, by the Petitioner, which includes the diploma, would show that the course study with Charron-Williams College was for purposes of becoming a clinical laboratory technician and not for the purpose of becoming a laboratory technologist. Moreover, assuming for purposes of argument that the program was designed as a course for clinical laboratory technologists, the credit received from Charron-Williams would not qualify because Charron- Williams is not an accredited college or university within the meaning of the aforementioned section of the rule. That rule is Section 10D-41.25, Florida Administrative Code. This conclusion on the subject of accreditation has been reached by an examination of Section 483.051(11), Florida Statutes. That provision says that the Respondent may approve the curriculum in schools and colleges offering education and training leading toward the granting of a license. The Respondent has taken the opportunity to set the qualifications and by its Section 10D-41.22(11), Florida Administrative Code, has defined the term accredited. In that provision it states: 10D-41.22 Definitions. In addition to definitions set forth in Section 483.041, F.S., as used in this chapter, unless context indicates to the contrary, the following terms shall mean: (11) Accredited -- refers to educational accreditation by a nationally recognized accrediting agency or association as deter- mined by the U.S. Commissioner of Education, or the Florida Department of Education, or, on an equivalent basis by the Department of Health and Rehabilitative Services. In the course of the hearing proof was offered that the publication Higher Education-Education Directory (1974-75), published by the U.S. Department of Health, Education and Welfare, Education Division; is a directory which list the institutions accredited by agencies, which agencies are recognized by the U.S. Commissioner of Education as being an acceptable accrediting agency or association. That publication does not list Charron-Williams College as being an accredited institution for purposes of academic study, at the time that the Petitioner received her diploma from that college. Finally, the Charron-Williams College seems to recognize that it has not achieved sufficient status to even have its graduates licensed as clinical laboratory technicians, a lesser level of endeavor than that necessary to become a clinical laboratory technologist. This recognition is stated in the December 23, 1977 letter from the president of the Charron-Williams College, Miami, Florida, addressed to the Director of the Office of Laboratory Services within the State of Florida, Department of Health and Rehabilitative Services. This letter may be found as Respondent's Exhibit #1, entered into evidence. Through that correspondence, the president of the college is requesting of the Respondent those things necessary to have its students accepted for licensure. Upon the consideration of all the facts, the petitioner does not qualify for licensure as a laboratory technologist within the meaning of Chapter 483, Florida Statutes, and Section 10D-41.25, Florida Administrative Code.
Recommendation It is recommended that the license application made by the Petitioner, Rosa M. Richardson, to become a licensed laboratory technologist be denied. DONE AND ENTERED this 20th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Rosa M. Richardson Leonard Helfand, Esquire 17935 Northwest 47th Place Department of Health and Carol City, Florida 33055 Rehabilitative Services 2445 West Flagler Miami Florida 33135
Findings Of Fact At all pertinent times, the Respondent Karl Cohen was licensed as a chiropractic physician by the Florida Board of Chiropractic. On or about September 5, 1976, Maxine Grebin sustained injuries in a roller skating accident. Mrs. Grebin sought treatment from the Respondent on September 24, 1976, and her treatment continued through December 3, 1976. Thereafter, Mrs. Grebin instituted a civil proceeding against Gold Coast Roller Rink. During the pendency of the civil suit, Mrs. Grebin requested that the Respondent provide her or her attorney an itemized statement of the services rendered for purposes of the damages suit. Mrs. Grebin never received an itemized statement from the Respondent. On February 14, 1977, the Respondent mailed a bill and report to Mrs. Grebin's attorney and copy of the bill to Mr. Joel Grebin, the complainant in this case, on March 11, 1977. When the Respondent failed to receive payment for services rendered by him to Mrs. Grebin, he filed suit in Dade County and after a trial, at which the Grebins appeared, received a final judgment on May 4, 1981, for $388 plus costs. On September 25, 1981, the Respondent was visited at his office by Martin Brandies, a Department investigator. The Respondent furnished Brandies with his entire file concerning Maxine Grebin, and made copies of pertinent documents for him. Subsequently, on June 22, 1982, the Respondent was served with a subpoena by John McDonough, investigator for the Department. The documents requested were virtually identical to the documents previously provided to Brandies. 1/ Since the documents were previously voluntarily provided to the Department, the Respondent did not believe that he was required to furnish a second set of documents, and accordingly, did not comply with the subpoena duces tecum. At the hearing on February 8, 1983, the Petitioner moved to amend Count II of the Administrative Complaint to charge a violation of Section 460.413(1)(n), Florida Statutes, rather than Section 460.413(1)(h), Florida Statutes. The motion to amend was denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Board of Chiropractic enter a Final Order finding the Respondent guilty of violating Section 460.413(1)(w), Florida Statutes, and imposing a reprimand pursuant to Section 460.413(2), Florida Statutes DONE and ENTERED this 16th day of January 1984, in Tallahassee, Florida. SHARYN L. SMITH 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 16th day of January 1984.
Findings Of Fact Radon is a naturally occurring, chemically inert, radioactive gas. It is part of the uranium-238K series of decay and is a direct decay product of radium-226. The decay of radon occurs through a quantum process which results in its own decay products known as radon progeny or radon daughters. Radon is generally found in the soil. As a gas, radon is both colorless and odorless. Prolonged exposure to radon gas is a known cause of lung cancer in humans. The problem posed by radon gas is that it will enter a building through cracks or pores in the building's floors and foundation and accumulate inside, thereby increasing the risk of exposure to humans occupying the building. Such radon infiltration is generally caused by lower atmospheric pressure inside a building than outside a building. Put simply, radon gas flows out of the soil in the direction of the lower pressure inside a building. Once inside a building, the radon gas and the radon progeny may remain in the air or may interact with surfaces inside the building. The amount of accumulation or concentration of radon inside a structure is directly affected by several chaotic, nonlinear factors such as weather. Given the public health threat posed by the accumulation of radon in buildings occupied by humans and given the mechanics of radon infiltration, the development of methods of construction to control or mitigate radon infiltration has become a goal in the state and has had a significant impact on the construction industry. Petitioners, the Concrete Association and the Home Builders Association, are both trade associations. The Concrete Association has approximately 70 members in the state and the Home Builders has approximately 1,800 members in the state. Both of the Associations' members are involved in the Florida construction industry. One of the purposes of each organization is to forward the interests of its membership, including participation in rulemaking proceedings such as the present proceeding. Given both Associations' members and their interests, there is no question that the Associations' members are impacted by any rule or standard developed by an agency dealing with construction. In this case, the evidence demonstrated that both Associations' members will be substantially affected by the Proposed Rules and Building Standard. Therefore, since one purpose of each Association is to forward its members' interests, both Associations' have standing to challenge the Proposed Rules and Building Standard at issue in this case. 1/ Section 553.98, Florida Statutes (1991), obligates the Department of Community Affairs to promulgate standards for building codes for the prevention of radon in new construction and for the mitigation of radon in existing construction. Section 553.98, Florida Statutes, was adopted as part of a multi- agency radon control program established in Chapter 88-285, Laws of Florida (1988). Chapter 88-285, Laws Of Florida, divided responsibility for various aspects of the radon control program between various agencies and co-ordinating councils. Importantly, Chapter 88-285, Laws of Florida, by amending Section 404.056, Florida Statutes, gave the Department of Health and Rehabilitative Services the authority to develop and adopt a radiation standard for buildings. The Department of Community Affairs was not given the authority to adopt a radiation standard for buildings. DCA was however given the authority to develop and adopt standards for building codes for radon-resistant buildings and mitigation of radon infiltration in existing buildings. In furtherance of its statutory mandate, the Department, promulgated Proposed Rules 9B-52.001 through 9B-52.004 and created a building standard entitled "the Florida Standard for Radon Resistant Building Construction". According to the Notice of Rulemaking, published on November 15, 1991, in the Florida Administrative Weekly, the Proposed Rules were intended "[t]o initiate a rule which adopts the Florida Standard for building codes for radon-resistant buildings." The actual adoption of a Florida building standard occurred in Proposed Rule 9B-52.004 by incorporating the newly created "Florida Standard for Radon Resistent Building Construction" by reference. Proposed Rules 9B-52.001 through 9B-52.003 generally provide various types of administrative and definitional support for the Building Standard. As indicated, the Florida Standard for Radon Resistant Building Construction was promulgated as a building standard for future radon-resistant building codes. In construction usage, a "code" or "building code" is a binding set of building principles imposed by governmental authority to ensure construction is safe and achieves a certain standard. On the other hand, a "standard" or "building standard" is a generally accepted and recognized criteria or building method which attains a specified goal, level of excellence, measure of adequacy or attainment. A standard is more than a consensual guideline, rule of thumb or rough idea. It must have a history of demonstrated effectiveness. Standards in general are classified as "prescriptive" standards, in which the standard specifies the way a building or building system is to be constructed, and "performance" standards, in which the standard quantifies the range of performance of the material or construction technique by reference to limits. A standard is generally recognized as authoritative but does not necessarily have to be incorporated in a building code. However, standards are usually and frequently made part of building codes or underlie a building code's requirements. In this case, none of the model building codes codified in Section 553.73(2), Florida Statutes (1991), nor any other local building codes incorporate the Florida Standard for Radon Resistant Building Construction. In fact, Section 553.98(3), Florida Statutes, places a moratorium on local governments enacting or enforcing any building codes dealing with radon. However, under Section 553.98, Florida Statutes, the Department is to provide training during the moratorium to those who will presumably be responsible in the future for implementation of the Department's radon-resistant Building Standard and Proposed Rules. Additionally, Chapter 88-285, Laws of Florida, makes it clear that any building standard developed by the Department is intended to serve as the technical underpinnings of a future building code or be directly incorporated into a future building code. Clearly, given this statutory scheme and the testimony at the hearing, the Proposed Rules and Building Standard are intended to, either directly or indirectly, become mandatory and will have a significant impact on the construction industry and in turn on both Petitioners and their members. Moreover, while technically a standard which is not incorporated in a code is not mandatory, standards, especially those promulgated as agency rules, are frequently the criteria which determines whether a builder has prudently performed his duties if accused of negligence. 2/ In essence standards, whether or not they are incorporated in building codes have the effect of being de facto mandates and as such have significant impact on both Associations' members. In this case, the Building Standard itself expressly describes its purpose as follows: The following building standards have been developed in accordance with Section 553.98, Florida Statutes, to decrease the exposure of occupants to indoor radon concentrations in newly constructed buildings. The standard targets the state health standard for exposure to radon indoors established by the Department of Health and Rehabilitative Services in accordance with Section 404.056, Florida Statutes. Pursuant to Section 404.056, Florida Statutes, as amended by Chapter 88-285, Laws of Florida, the Florida Department of Health and Rehabilitative Services (HRS), in Rule 10D-91, Florida Administrative Code, established a maximum acceptable radiation exposure concentration in buildings of 0.02 working levels (WL) on an annual average. Clearly, this annual average is not a short term measurement. In fact, in order to accurately measure the average annual radon concentration inside a building, the deployment of reliable testing instruments in a given building for one year is required. In developing its indoor radiation standard, HRS used an "as low as reasonably achievable" (ALARA) type of analysis. ALARA takes into account reasonableness, social benefits, the state of technology and economics. See Section 404.056(1), Florida Statutes. In fact, the legislative staff analysis of Chapter 88-285, Laws of Florida, indicates that the legislature was well aware of the then proposed HRS standard of as low as reasonably achievable not to exceed 0.02 WL and that HRS recommended that the standard remain the same until better radon mitigation and radon-resistant construction technology was developed. As indicated above, the HRS rule measures radon in terms of working levels. A "working level" is the amount of concentration of short-lived radon progeny that results in 130,000 million electron volts of potential alpha particle energy per liter of air. An alpha particle is an electrically charged particle which is emitted by the decay of radon or various subsequent decays. As can be seen from the above definition, a working level does not measure the presence of radon itself, but is a measure of the air borne daughter elements or radon progeny generated by the decay of radon. Rule 10D-91.1303(16), Florida Administrative Code (1992). The Proposed Rules and Building Standard are intended to apply to all new residential buildings and additions or renovations to existing residential buildings. The Building Standard provides two construction options for achieving radon resistant construction. The two construction options are referred to as active mitigation and passive mitigation. Active mitigation requires the use of the passive mitigation construction practices contained in Chapter 3 of the Building Standard in combination with an active mechanical or electrical depressurization system for the removal of radon gas installed sub-slab for slab-on-grade construction, and either sub-membrane or in the crawl space for off-grade construction. Active mitigation is usually considerably more expensive to construct than passive mitigation. However, active mitigation systems have been proven effective in preventing radon infiltration into homes and are generally accepted in the industry as an appropriate method for reducing radon concentrations. Given the proven efficacy and general acceptance of active mitigation systems, such systems may appropriately form the basis of a building standard for the control or mitigation of radon in buildings. Therefore, due to the track record and industry acceptance of active mitigation systems as methods for actually reducing radon concentrations, the Department included active mitigation systems in its Building Standard as a prescriptive standard and did not define the required level of performance for such active mitigation systems. Also since active mitigation systems are proven, generally accepted in the industry and are directly related to the statutory obligation of the Department to develop, publish and adopt standards for building codes for radon-resistant buildings and mitigation of radon in existing buildings, inclusion of such systems in the Department's Proposed Rules and Building Standard was well within the delegated legislative authority of the Department. On the other hand, under the Proposed Rules and Building Standard, construction of buildings utilizing passive mitigation involves only the passive mitigation building practices contained in Chapter 3 of the Building Standard. These passive mitigation building construction practices were derived from what is currently known about the physical factors affecting the infiltration of radon into a building and are based on extrapolations from fundamental engineering principles. In general, passive mitigation controls mitigates the infiltration of radon by increasing the resistance of a building's shell to radon entry through the use of some type of barrier or sealant for cracks and porous materials and limiting building depresurization forces. However, unlike active mitigation construction techniques, there is no reliable evidence that passive mitigation construction techniques, by themselves, are effective as a method of reducing radon infiltration in buildings and such techniques have not been generally accepted by the construction industry as effective controls of radon infiltration into buildings. In fact, the Department is currently engaged in research to determine whether passive mitigation construction techniques actually control the infilatration of radon into buildings and control it to the extent that the HRS maximum acceptable level of radon is met. The Department recognizes that it has no authority to create a building standard based on technology which is not generally accepted in the construction industry and does not have a proven history of achieving the purpose for which it is being required. In short, the Department correctly recognizes that it cannot require as a prescriptive building standard or rule, construction methods or techniques for radon control that are not recognized and proven as effective controls of radon infiltration. Such unrecognized techniques do not rise to the level of certainty of performance required for a prescriptive building standard or for any type building standard. However, due to the expense of active mitigation construction techniques, the Department felt compelled to provide for the use of stand alone passive mitigation construction techniques in its Proposed Rules and Building Standard even though such techniques are not recognized as effective controls of radon infiltration. Therefore, in an attempt to meet the perceived need to provide a Building Standard which contains a cheaper method of radon control than active mitigation, the Department determined that a performence based building standard for buildings constructed solely with the passive mitigation construction techniques contained in Chapter 3 of the Building Standard should be developed. In essence, under the Proposed Rules and the Building Standard, buildings constructed solely with passive mitigation construction techniques would be required to meet or achieve a certain level of performance before such buildings would be deemed in compliance with the Department's Proposed Rules and Building Standard. In this case, the Department determined that the level of performance the Building Standard should incorporate would be defined by the amount of radon in a structure considered safe for human habitation. In this case, the maximum allowable safe level of indoor radon concentration was established by HRS to be a an annual average not exceeding 0.02 WL. The immediate problem faced by the Department in regards to requiring passive mitigation to meet the HRS level of performance was that the certificate of occupancy of a given building would be dependent on compliance with the Proposed Rules and Building Standard adopted by the Department. A certificate of occupancy is necessary before any building may be permanently occupied by human beings. Clearly, the longer it takes a certificate of occupancy to be issued the more expense will be incurred by a contractor or home owner during the time the structure cannot be occupied. In short, the cost of housing goes up. As indicated earlier, the HRS standard is a long term standard based on an annual average. HRS has not established or developed any short term standard for radon control. HRS does recognize the use of short-term screening tests, but only as a precursor to determining whether a long-term test should be performed. See Rule 10D-91.1317, Florida Administrative Code. In order for a builder to demonstrate compliance with the HRS standard, he or she would have to test a building for radon infiltration for one year to determine that structure's annual average. During the year of testing, the Department felt that a certificate of occupancy could not be issued and that such a delay would increase the cost of housing therby eroding the purpose of including passive mitigation as a cheaper alternative to active mitigation in its Proposed Rules and Building Standard. To solve this problem, the Proposed Rules and Building Standard specify the use of post-construction/preoccupancy, short-term testing of houses constructed solely with passive mitigation techniques. The post-construction testing and compliance criteria constitute the performence standard for such passive mitigation. Curiously, even though the Department's stated purpose for the Rule is to "target" the HRS standard, neither the Proposed Rules or the Building Standard provide for compliance with the performance standard when a post-construction long-term test is completed by a builder and demonstrates a long-term radon level of 0.02 WL or 4.0 pCi/L. The post-construction testing required by the Proposed Rules and Building Standard provide approximately seven different short-term tests from which a builder may choose. The tests vary according to the testing device and period of measurement. Descriptions of the various tests are contained in Chapter 5 of the Building Standard. The tests were intended to determine on a short-term, one time-one test basis whether a home will meet the long-term standard for the annual average radon concentration established by HRS of 0.02 WL. Chapter 5 of the Building Standard contains specific compliance criteria for the post-construction test required for houses constructed solely with passive mitigation construction techniques. Table 5.1, states as follows: Device Measurement Period Concentration (pCi/L) Continuous Radon 5 days to 10 days 3.4 Monitor 11 days or longer 3.5 Electret-Ion Chambers 5 days to 10 days 2.7 (High Sensitivity) 11 days or longer 2.4 Electret-Ion Chambers 26 days or longer 2.6 (Low Sensitivity) Charcoal (open Canister face) 47 hr. to 73 hr. 2.5 Charcoal Canister 5 days to 10 days 2.7 (barrier) As can be seen from the above table, the Proposed Rules and Building Standard require measurements of radon to be expressed in terms of picocuries per liter (pCi/L). "Picocuries per liter" is a measure of the number of disintegrations per minute of a radioactive material per liter. The measure can be used as a measure of the concentration of radon gas in the air. Rule 10D- 91.1303(11), Florida Administrative Code. The Proposed Rules and Building Standard assume that a radon progeny concentration of 0.02 WL is equivalent to a radon gas concentration of 4 picocuries per liter (pCi/L). 3/ The equivalency of 0.02 WL to 4 pCi/L is based upon an assumed equilibrium ratio of 50 percent. In other words, for each unit of radon gas measured at a given time, it is assumed that 50 percent of the radon progeny are lost to surfaces and 50 percent remain in the air available for measurement. Because the equilibrium ratio of 50 percent is only a handy assumption, the actual equilibrium ratio of radon progeny can be more or less than the assumed 50 percent equilibrium. In fact, the range of ratios measured in Florida has been between 20 percent and 70 percent equilibrium. Such a variation in the equilibrium ratios can result in significant differences in the amount of radon gas present in a building at any given time. However, the assumed equivalency of 50 percent is the scientifically accepted, universal working assumption for computing radon levels in a given location and converting WL to pCi/L. The basis of the assumption is that any variation in the actual equilibrium ratios of radon gas can be presumed to approach 50 percent when radon measurements are taken over a lengthy period of time such as a year. However, the evidence did not demonstrate that an assumed ratio of 50 percent is a valid assumption when measurements of radon are taken over the relatively short periods of time indicated in Chapter 5 of the Building Standard. In short the evidence did not demonstrate that the hills and valleys of the actual equilibrium ratios occurring during a short-term measurement of radon gas would offset one another and average out to a 50 percent equilibrium ratio. 4/ Irrespective of whether the 50 percent equilibrium ratio is an appropriate assumption when short-term measurements are involved, the values contained in Chapter 5 of the Building Standard were developed from Department sponsored research through the Environmental Protection Agency, as contractor for the Department. The research was conducted by the Southern Research Institute to provide technical support for the performance standard required of buildings constructed solely with the passive mitigation construction practices contained in the Proposed Rules and Building Standard. To date, the study represents the most comprehensive examination on the time variation of indoor radon concentrations in a significant number of houses having moderately elevated radon concentrations. In fact, there is only one other study which addresses the time variation of radon concentrations in Florida houses. 5/ The Southern Research study expanded the scope of the Roessler, et. al. study in area studied number of devices deployed, inclusion of candidate samples as a control method, and control for house operational and structural variables. The Southern Research study involved 80 homes in four different regions of Florida. All of the study homes had the following characteristics: They were all located in geographic areas of elevated radon potential, namely Dade County, Polk County, Alachua County and Leon County; They all had shown measured radon levels between 2 and 20 pCi/L; They were all existing, occupied homes 6/ and; They were all single-story, slab-on-grade construction. Sixty-five of the 80 test houses finished the study. Out of those 65 houses, 26 were closed to outside ventilation all the time, 8 were closed to outside ventilation more than 95 percent of the time, and the remaining 31 were closed to outside ventilation 95 percent of the time or less. The study involved comparative sampling using the radon measurement technologies listed in Chapter 5 of the Building Standard. The object of the research was to compare the reading from the screening test instruments used in each house to the actual annual average radon concentration. In order to measure the annual average radon concentration in each of the study houses, an alpha track detector was deployed in a house for the entire year. A second alpha track detector was deployed in the same house and exchanged for another alpha track detector at the beginning of each calendar quarter. Simultaneously, with the exception of the continuous radon monitors, which were only deployed in 20 of the study houses, each test device listed in Table 5.1 of the Building Standard was deployed in each of the study houses for the periods specified in Table 5.1 for that type of test instrument. The measurements generally extended over the period of a year but included both short-term (measurements of less than a year) and long-term measurements (measurements of a year or longer). The short-term and long-term measurements were also compared to determine whether short-term measurements were predictive of its associated long-term measurement. The data obtained from these side by side comparisons yielded more than 8,760 individual measurements, of which 1,431 were discarded as quality assurance samples, 224 were discarded due to instrument malfunction or sample losses and 91 were discarded as being under the lower limits of detection. The remaining 7,014 individual measurements were used to derive the values listed in Table 5.1 of the Standard for each test instrument. These values constitute the short-term measurement in picocuries per liter necessary to achieve an 80 percent level of confidence that the average annual concentration of radon is less than 4.0 picocuries per liter. An explanation of the 80 percent level of confidence relationship was provided at hearing by Dr. Ashley Williamson, who directed the research effort which led to the development of Table 5.1. Using the 3.4 pCi/L threshold level established in Table 5.1 for a Continuous Radon Monitor as an example, Dr. Williamson stated that of 100 homes measuring 3.4 pCi/L, one would predict that 80 of those homes would have an annual average radon concentration less than 4 pCi/L while 20 would have an annual average radon concentration greater than 4 pCi/L. The level of confidence is only valuable for any given group of 100 homes. The level of confidence is not necessarily predictive of the annual average of an individual house. Indeed, a significant percentage of homes which measure above 3.4 pCi/L would be predicted to have annual averages below 4 pCi/L. However, all such houses would fail to comply with Chapter 5 and would not meet the performance standard established in the Proposed Rules and Building Standard. Conversely, the data establishes the prediction that at short-term radon levels lower than 3.4 pCi/L, a certain percentage of the homes, though in compliance with Chapter 5, will have actual annual averages of radon concentrations which violate the HRS standard of 4 pCi/L (0.02 WL). These houses would meet the performance standard contained in the Proposed Rules and Building Standard even though they would be in violation of the HRS standard. Moreover, since Section 502.2 states that only those buildings which measure less than the threshold values in Table 5.1 of the Building Standard will be in compliance, none of the 100 homes which measure 3.4 pCi/L will be in compliance with Chapter 5 even though the homes might meet the HRS annual average of 4 pCi/L. Similar results apply to all the values contained in Chapter 5 of the Building Standard. Only a predictive measure with a level of confidence could be developed from the study because short-term levels of radon are highly variable. They vary in accordance with a number of different factors, including environmental factors such as geology, soil moisture, location of the underlying water table, temperature, pressure and other meteorological changes. Short-term levels of radon also vary with construction type; e.g., block, wood, slab-on- grade, basement or crawl space. The variation between different homes can be quite large. Additionally, individual homes also have distinctive diurnal or daily variations in their radon levels, as well as weekly and seasonal variations. Some of the variations within a given structure often are the result of the type of air handler systems in the structure and whether natural ventilation is used for cooling. Variations also occur as a result of sampling locations in different rooms or on different floors. As with all predictive measures, a short-term measurement of radon will not establish with absolute certainty what the annual average concentration of radon of a home will be. Short-term measurements of radon can yield results which are either higher or lower than the homes' true annual average radon concentration. Screening tests, which are tests of much shorter duration, are also available, but screening tests are less accurate than tests performed over longer periods of time. Additionally, test instruments used for screening measurements are prone to both false negatives, or readings which underestimate the true annual average concentration, and false positives, which overestimate the true annual average concentration. Even the EPA testing protocols contained in EPA 520/1-89-009, "Indoor Radon and Radon Decay Product Measurement Protocols" (EPA 1989) and mandated by the Proposed Rules and Building Standard recognize the unreliability and inaccuracy of single short-term measurements. The EPA test protocol document states: [b]ecause of these temporal and spacial variations [in radon concentrations], the EPA does not know of a way to use the result of a single measurement to provide an accurate estimate of health estimates or make a well informed decision on the need for remedial action. The EPA in the same document recommends use of short-term measurements as a screening device only. If a short-term screening test reflects a radon concentration exceeding 4 pCi/L, a longer term, follow-up test should be conducted. Even when a short-term measurement exceeds 4 pCi/L, the EPA test protocol document states that: the screening measurement alone . . . does not provide sufficient information to decide on the need for remedial action. . . . [A]ny decision on permanent corrective action to reduce indoor radon concentrations [should] be made only after the completion of follow-up measurements. Because all types of testing devices have some variation in their ability to measure radon and routinely measure levels either higher or lower than the actual radon concentration, the coefficient of variation for each screening device in each test house was determined from the variability of the individual readings on that device. The coefficients of variation from all the test houses for that individual screening device were then averaged to determine the degree of variability for each type of screening device listed in Table 5.1. In general, the difference between the respective values in Table 5.1 and 4.0 picocuries per liter is an inverse function of the overall variability for that type of screening instrument. In other words, the closer to 4.0 the value specified for a given type of screening instrument, the smaller the overall variability for that type of instrument. Analysis of the data revealed that, there was no overall significant increase in variability attributable to the type of slab-on-grade construction used in the test houses. The study also revealed that the overall variability of the measurements in the houses with higher radon concentrations did not exceed the variability in those with lower radon concentrations. Additionally, there was no evidence that the procedures used in the study increased variability of a specific type of testing instrument or within a particular house. Similarly, there was no evidence that the procedures used in the study increased variability between the various testing instruments or among the various houses. However, analysis of the data revealed that there were conditions inherent in the nature of radon and radon infiltration which tended to increase the degree of variability in individual test houses. The most significant variation and the one causing the most variation involved the seasons along with some meteorological factors. Quarterly averages relative to the annual average increased in the order of spring (82%) < summer (93%) < fall (97%) < winter (123%). The study also revealed that the degree of variation of the short-term measuremnts of radon varies roughly in proportion to the long-term mean consentration, with coefficient of variation within a calendar quarter of approximately 25 percent of the quarterly mean and 35 percent of the annual mean. Clearly, given the above facts, the compliance thresholds reflected in Table 5.1 do not establish a reasonably accurate indicator of compliance with the HRS standard. Put simply, the proposed rules attempt to establish a performance standard based on an estimate of an estimate based on an assumption all of which has its roots in highly variable data. Such stacking of estimates and assumptions fails to provide the accuracy required of a standard especially when the variability is as large as the coefficient of variation in this case. In short, the compliance criteria contained in Chapter 5 of the Building Standard provide the value for short-term measurements of radon concentrations for a given type test which are only predictive of an annual average radon concentration which is less than the HRS maximum acceptable annual average. The values contained in Chapter 5 are not predictive of whether a structure will have an annual average radon concentration equal to the HRS maximum acceptable annual average. Moreover, under the Proposed Rules and Building Standard, a house constructed solely with passive mitigation techniques complies with the Proposed Rule and Building Standard only if a post- construction screening test utilyzing a specified test instrument yields a short-term measured radon concentration lower than the values contained in Table 5.1 of the Building Standard Given the level of confidence applicable to the values in Table 5.1 of the Building Standard, such short-term measurements will likely exclude a building which meets the permissable HRS annual average. In essence, the Department, in domino fashion, has established a performance level which is more restrictive than the level determined by HRS to be safe for human habitation. The establishment of such a level has not been delegated to the Department and therefore is outside the Department's delegated statutory authority. In addition, the data collected and utilized in the development of Table 5.1 does not specifically address homes which fall outside of the construction type of the test houses. It is unclear, therefore, whether the short-term/long-term relationships reflected in Table 5.1 has any applicability to homes which fall outside of the test house categories and may have a wider range of variability than do concrete slab-on-grade homes. Given the differences in the performance between construction types, the applicability of data and analysis which were derived from research on one type of construction is of questionable value for the other. Lastly, the performance standard contained in the Proposed Rules and Building Standard and the compliance criteria contained in Chapter 5 of the Building Standard are based on one study which only partially agrees with or replicates the results of other studies and, in certain respects, does not reproduce the results contained in other studies. Admittedly, the Southern Research study represents a much more detailed study than other studies in the same field. In fact, the Southern Research study is the next logical step in radon research and except for charcoal canisters which were used in the Roessler study, it is the only study which covers the types of radon detection devices contained in Chapter 5 of the Building Standard. However, the development of a performance standard from a study which has no follow-up or which has not been reproduced in other studies is a far cry from a building standard based on data that has a proven track record and is generally accepted in the industry. Even the report of the Southern Research study recognizes that the study is in need of reproduction in order to establish the validity of the study's results beyond the immediate conditions of the study. Additionally, EPA in its test protocol document recognizes that research involving measurements of radon should be shown to be reproducible by other studies or research before the results can be used in other settings or for predictive purposes. Put simply, validation of the Southern Research study has not been done or completed and it would be inappropriate to consider the studies results beyond the confines of the study. For the same reason, it would be inappropriate to formulate a building standard on a study which has not been so validated because the results of one study even assuming those results were accurate enough for a building standard, have not been shown to be reflective of the general population of houses; and therefore, no proven track record for the limits in the performance standard have been established. In sum, the threshold levels set forth in Table 5.1 of the Building Standard do not establish whether the homes to be tested under the Proposed Rules and Building Standard will meet the HRS standard for radon concentrations. The threshold levels do not establish an accurate relationship between a single short-term measurement and an annual average radon concentration. The data upon which they are based is not universally applicable among construction types and the compliance criteria set forth in Table 5.1 lack the accuracy, proven track record and general acceptance required for a measure of the performance of passive mitigation construction practices. Given these facts, the Department has acted outside the scope of its delegated legislative authority in promulgating the portions of the Proposed Rules and Building Standard involving passive mitigation and post-construction testing. Therefore, the portions of the Proposed Rules and the Building Standard related to passive mitigation and post-construction testing are invalid as rules. Finally, Section 102.1 of the Building Standard applies to construction of new residential buildings and additions to or renovations of existing residential buildings throughout the state. However, certain areas of the State have a known low potential for radon, while other areas of the state are known for having a high potential for radon. Radon potential is delineated by near surface geology, with areas predominated by sand having a low potential for radon. In fact, approximately 32 out of the 67 counties in Florida have been identified as having high radon potentials. The Department recognizes that there are areas of low radon potential as well as high radon potential in the State and acquiesces that a delineation of these low and high areas can be achieved based upon geography and geology. To date, the only unified statewide mapping project was the one performed in 1986 by GeoMet Technologies. The Geomet project failed to detect a number of locations in the state which have elevated radon potentials. However, since completion of the Geomet project, there has been extensive data developed regarding the potential for radon in specific areas of the State which are in addition to the Geomet project. Given this additional mapping data, it appears possible that geological mapping for radon with an acceptable degree of reliability is feasible. Importantly, the short-term testing required by Chapter 5 is not intended to, nor will it, demonstrate compliance or noncompliance with the passive mitigation techniques or the effectiveness of the passive mitigation construction practices contained in Chapter 3 of the Building Standard. Therefore, if a home complies with Table 5.1 of the Building Standard, there is no way of knowing whether such compliance is because the home is in a low radon area or, rather, because passive construction has been used and is effective. The Department itself has recommended that radon-resistant building standards should minimize unnecessary housing costs in Florida and that application of radon-resistant standards should be indexed to the level of risk in each area of the state. In this case, the evidence showed that active mitigation is considerably more expensive than passive mitigation and that even passive mitigation would add an additional cost to new homes ranging from $506 to $1,950. Clearly, there is no public benefit to requiring radon-resistant construction techniques in areas of low radon potential. Given the Department's goal of minimizing costs and the expense of mitigation, a statewide standard is unwarranted, particularly in the areas of low radon potential where the increased costs of mitigation need not be incurred. At a minimum, the Department's goal of minimizing unnecessary housing costs would require that the Proposed Rules and Building Standard should contain a provision that exempts a house from the Building Standard where low radon potential can be demonstrated by the builder or the owner. Such a provision would address the potential problem of contaminated fill being brought into a low radon area. Without such a limitation, all of the Proposed Rules and Building Standard are arbitrary and therefore are invalid exercises of the Department's authority.
The Issue Is Petitioner entitled to receive a passing score on the June 2001 dental licensure examination?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida responsible for administering the dental licensure examination. Petitioner was an unsuccessful candidate for the June 2001 dental licensure examination in that she failed the clinical portion of the June 2001 dental examination. Originally Petitioner received a score 1.89 on the Clinical portion, but on re-grade received a score of 2.10. However, a score of 3.00 was required to pass the Clinical portion. The June 2001 dental licensure examination consists of two parts: (1) the Clinical portion; and (2) the Laws and Rules portion. The Clinical portion consists of nine procedures. Petitioner challenges five of the nine procedures, which are: (1) Periodontal procedure; (2) Class IV Composite Restoration; (3) Class II Composite Restoration; (4) preparation for a three- unit fixed partial denture; and (5) Class II Amalgam Restoration on a model. The Department selects three examiners to independently grade each candidate’s performance, and the average of the three scores from each examiner produces the overall grade for that procedure. The average grade for each procedure is then weighted in accordance with Rule 64B5-2.013, Florida Administrative Code, which produces an overall score for the entire Clinical portion of the examination. This procedure provides for a more reliable indication of the candidate’s competency. Each examiner must be a licensed dentist for a minimum of five years without having any complaints or disciplinary actions against the examiner’s license. The examiners are not allowed to have any contact with the candidates they are grading. Each examiner must attend, and successfully complete, a standardization session, which trains each examiner to use the same internal grading criteria. In this standardization session, the examiners are thoroughly taught specific grading criteria, which instruct the examiners on how to evaluate the work of the candidates. 8. Examiners numbers 005, 316, 346, 360, 361, and 375, who graded Petitioner’s examination, successfully completed the standardization session. The Department’s post-exam check found these examiners' grading to be reliable. Petitioner received a score of 1.66 on the Class IV Composite Restoration. Petitioner contested this score contending that she was downgraded on this procedure because she mistakenly stained that procedure. The Class IV Composite Restoration consists of the restoration of a chipped tooth. The grading is based on the candidate’s ability to restore the tooth as it appeared before restoration. The goal is to restore the tooth to its proper contact and to restore the contact between the teeth. The fact that Petitioner stained the Class IV Composite Restoration did not result in the examiners downgrading the Petitioner’s procedure. Examiner 005 gave Petitioner a score of 2.00, which was based on the contact being open and not having a flushed fit (marginal error). Examiner 316 gave Petitioner a score of 2.00, which was based on Petitioner’s problems with the functional anatomy, the proximal contour, and with the margin. Examiner 346 gave Petitioner a score of 1.00, which was based on Petitioner’s problems with functional anatomy, proximal contour, and mutilation of opposing or adjacent teeth. Petitioner received a score of 0.00 on the Class II Composite Restoration. Petitioner contested this score contending that she was downgraded twice for the same mistake. A Class II Composite Restoration is a procedure that involves the candidate’s ability to fill an opening inside the tooth with composite, which is a tooth-colored filling. The Candidates were instructed, for security reasons, to place dye in the composite and that failure to place dye in the composite would result in a failing grade. Petitioner failed to place dye in the composite. In addition to his comment concerning no dye in the composite, Examiner 005 also commented that Petitioner’s occlusion was very high, which would result in the premature failure of the restoration. Examiner 005 gave Petitioner a score of 0.00. Examiner 316 also gave Petitioner a score of 0.00, which was based on the absence of dye in the composite and the occlusion being high, which would result in the premature failure of the restoration. Examiner 346 also gave Petitioner a score of 0.00, which was based on the absence of dye in the composite. Petitioner contested the score she received on the Preparation for a 3-unit Fixed Partial Denture procedure claiming that the examiners’ comments regarding insufficient and excessive reduction were conflicting comments. The Preparation for a 3-unit Fixed Partial Denture procedure is a procedure that involves the candidate’s ability to replace a missing tooth with a fixed partial denture or fixed bridge. Petitioner received a score of 2.00 on this procedure. A tooth has five surfaces (front, back, top, inside and outside). Therefore, one surface of the tooth may have insufficient reduction, while another surface of the tooth may have excessive reduction. It is not unusual for examiners to see and comment on different errors. Examiner 316 gave Petitioner a score of 2.00 on this procedure because there was a problem with the outline form, insufficient reduction on the preparation and errors on the marginal finish. Examiner 005 gave Petitioner a score of 2.00 on this procedure because there was a problem with the outline form and there was both insufficient reduction and excessive reduction on the preparation. Examiner 346 gave Petitioner a score of 2.00 on this procedure because there was excessive reduction on the preparation, marginal finish, and mutilation of opposing or adjacent teeth. Petitioner contested the score of 0.66 that she received on the Class II Amalgam Restoration on a model procedure. This procedure is similar to Class II Composite, which involves the candidate’s ability to restore a cavity in the tooth so that the finished product restores proper form and function to the tooth. The difference is that amalgam rather than composite is used for the restoration. The restored tooth should closely resemble its original size and shape. Examiner 316 gave Petitioner a score of 1.00 on this procedure because there was a gingival overhang on the distal lingual aspect of the restoration, which could cause tooth decay and gingivitis. Examiner 346 also gave Petitioner a score of 1.00 because of problems with functional anatomy, proximal contour, margin, and gingival overhang. Examiner 005 gave Petitioner a score of 0.00 because of problems with proximal contour and gingival overhang. Petitioner contested the score of 1.66 that she received on the Periodontal procedure alleging that she was graded unfairly because she could not remove all of the calculus on this procedure, and that one examiner gave her a score of 3.00. The Periodontal procedure involves the candidate’s ability to completely remove any stains, calculus deposits or any foreign debris from the surface of the tooth. Patient selection is very important for the periodontal procedure. It is the candidate’s responsibility to select a suitable patient as clearly outlined in the Candidate’s Information Booklet, which is mailed to the candidate prior to the examination. Petitioner chose a difficult patient, considered to have heavy calculus deposits and severe periodontal disease. Petitioner admitted that she did not remove all of the calculus deposits on her patient. Petitioner failed to present sufficient evidence to show that it was impossible to remove all of the calculus on the patient she had chosen. Examiner 360 gave Petitioner a score of 3.00, but commented that sub-gingival calculus remained on the tooth, and there was root roughness. Examiner 375 gave Petitioner a score of 2.00 because sub-gingival calculus remained on the tooth and there was root roughness. Examiner 361 gave Petitioner a score of 0.00. The basis for this score was that there were heavy deposits of calculus and root roughness on teeth number 19, 29, and 30, and that the procedure was of little value to the patient. The Department provides a re-grade process for all candidates who timely request a hearing. The purpose of the re- grade is to determine if any of the grades rendered were inconsistent. The Department selects the top three examiners who had the highest reliability from that examination to participate in the re-grade. On re-grade, Petitioner’s overall grade increased slightly from 1.89 to 2.10 but not enough for Petitioner to receive a passing grade. The Department’s post-standardization statistics of the examiners’ performance indicated that Petitioner’s examiners graded reliably. The post-standardization statistics indicate the examiner’s performance on grading of models during standardization. In addition, the Department calculates post- examination statistics for the examiners who graded the Petitioner’s challenged procedures. They are: Examiner Accuracy Index & Rating 361 94.2 – Very Good 360 95.1 – Excellent 375 96.0 – Excellent 005 94.3 – Very Good 316 97.0 – Excellent 346 97.2 – Excellent All examiners’ reliability was significantly above the minimum acceptable accuracy index of 85.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly Recommended that the Board of Dentistry enter a Final Order dismissing Petitioner’s challenge to the grades she received on the Clinical portion of the June 2001 dental licensure examination and denying Petitioner licensure as a dentist in the State of Florida due to her failure to receive a passing grade on the June 2001 dental licensure examination. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 31st day of January, 2002. COPIES FURNISHED: Cecilia Diaz 8810 Memorial Highway Tampa, Florida 33615 Cherry A. Shaw, Esquire Department of Health Office of the General Counsel BIN A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way BIN A02 Tallahassee, Florida 32399-1701 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way BIN C06 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way BIN A02 Tallahassee, Florida 32399-1701
The Issue Whether DNR should establish an exceptional drilling unit or units in order to prevent waste and to avoid the . . . risks . . . from . . . an excessive number of wells, Section 377.25(2), Florida Statutes (1983)? The respondents expressly declined to raise any question as to the petitioners' standing or party status.
Findings Of Fact Petitioner W. J. Jordan and apparently all the other petitioners are owners of mineral rights under the northwest quarter of the southeast quarter of Section 13, Township 5 North, Range 29 West, Santa Rosa County, Florida. T. R. Miller owns the mineral rights under the northeast quarter of the southeast quarter of Section 13 and has leased them to Smackco. Near the center of the southeast quarter of Section 13 (the existing unit) respondent Smackco drilled the L. W. Roberts 13-4 well. NOT COMMERCIALLY PRODUCTIVE Smackco drilled the L. W. Roberts 13-4 well down to the Norphlet formation and went 49 feet further, into the Norphlet sands, before giving up its efforts to extract oil from the well. Although Smackco did find a mixture containing 28 to 30 percent hydrocarbons, the hydrostatic head precluded commercial production. If the well had come in, royalties would have inured to the benefit of petitioners, T. R. Miller, and the owners of the mineral rights under the southern half of the existing unit. Although the evidence showed that extracting oil from the L. W. Roberts 13-4 well was not commercially feasible now, it did not establish that the price of oil will never rise to the point that production would make economic sense. ADDITIONAL DATA At least three other oil wells have been drilled at the Mount Carmel Prospect in Township 5 North, Range 29 West, Santa Rosa County, Florida. In keeping with applicable statutes and rules, these wells are also located at or near the center of their respective quarter sections. Except where no governmental sections are laid out (offshore or in Spanish land grants), or where all rights affected by a change are in one ownership, DNR has adhered to the concededly arbitrary use of quarter sections as drilling units. Information gained from the wells drilled at the Mt. Carmel Prospect, and from seismic tests performed there formed the basis for uncontroverted expert opinion that a sandy mass, known to geologists as the Norphlet structure, lies almost three miles below the earth's surface; and that a pool of oil floats on salt water within the Norphlet structure, as shown in the Appendix to this order. The L. W. Roberts 13-4 is on the northern edge of the pool that the geologists hypothesize. The geophysicist's testimony that the Jay fault running northwest southeast and the smaller almost perpendicular fault running off to the northeast lie approximately as depicted in the Appendix was also uncontroverted. These faults may act as walls keeping oil on one side. The faults themselves do not hold oil. THE NEXT WELL If a new well were drilled in the center of the northwest quarter of Section 16, at a point one half mile due south of the L. W. Roberts 13-4, see Appendix, it would be near the western edge of the pool of oil, if the geologists are right. (If the geologists are wrong, drilling there might mean hitting the fault zone, as happened with the Franks Pittman well.) Drilling a quarter mile north, at the center of the first proposed drilling unit, would reduce the risk of hitting the fault, and might make commercial production of a substantial amount of oil possible. DRAINAGE LIKELY Smackco's geophysicist conceded that hydrocarbons at the L. W. Roberts 13-4 and hydrocarbons under the northwest quarter of the existing unit "very possibly" will migrate to a well in the center of the proposed drilling unit, if hydrocarbons are extracted in large quantities there. A well of the kind and to the depth contemplated can be expected to drain 160 acres more or less. The geologists cannot know precisely what the situation is three miles down on the basis of the information they have at hand. They may be mistaken now about the location of oil just as they were when they recommended earlier well sites in the Mt. Carmel Prospect.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DNR deny Smackco's petition for exceptional drilling units. DONE and ENTERED this 2nd day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1984. COPIES FURNISHED: James Reddick, Esquire and Dan Stewart, Esquire Suite 5 808 Caroline Street, Southeast Milton, Florida 32570 J. Nixon Daniel, III, Esquire and Spencer Mitchem, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Charles J. Hardee, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Elton Gissendanner, Director Department of Natural Resources Executive Suite 3900 Commonwealth Building Tallahassee, Florida 32303 * NOTE: Original Recommended Order has an appendix map which is available for review in the Division's Clerk's Office.
Findings Of Fact Petitioner, Bruce E. Jarman, graduated from the cosmetology program of Orlando Vocational-Technical Center in December 1992. The school is an institution accredited by the Southern Association of Colleges and Schools. Mr. Jarman's grades were primarily A's in both practical competency and theory, with a few B's and two C's. Mr. Jarman sat for the January 21, 1993 cosmetology licensure examination and passed two of the three required parts. He did not pass the written clinical part, which required a score of 75. Mr. Jarman's score was initially 71; after his challenge, he was given credit for one additional item and his total scaled score was amended to 72. At the hearing Mr. Jarman narrowed his challenge to four written questions, #2, #41, #44 and #59. He also presented testimony and argument regarding the scoring and the over-all validity of the examination questions. Question #2 concerned the specific point at which a cosmetologist must commence timing for the processing of semi-permanent color. The process timing must commence after completing application of the color, since hair length, porous quality and other individual properties affect the time required for application. The textbook does not specifically furnish the right answer to the question; instead, it references the need to follow the product manufacturer's directions. The correct answer is found in those directions and in the understanding that if timing is commenced prior to the completion of application, the processing time might not be long enough. Mr. Jarman answered the question incorrectly. Question #41 concerned the qualities of over-processed curls. Frizzy hair is distinct from wavy hair. Frizzy hair is straight and very dry-looking due to being damaged. It has no waves when it is dry, and narrow waves when wet, as depicted in the textbook. Mr. Jarman chose the wrong answer. Question #44 concerned the action to be taken by a cosmetologist who is in the process of bleaching a client's hair when the client exclaims that he likes the color he sees prior to the completion of processing. The proper answer requires an understanding of procedures for lightening hair. Those procedures, including the need to conduct a series of strand tests, are described in the textbook. Mr. Jarman's answer was incorrect as he mistakenly concentrated on the preliminary strand test. Question #59 concerned the disadvantage of foil frosting versus cap frosting. The cap technique involves pulling clean strands of hair through a perforated cap with a hook. The foil technique requires taking alternating strands from a subsection and wrapping those strands individually in a foil packet. Foil frosting allows the better placement of streaks; it generally is preferred for sensitive scalp and for longer hair. However, the foil technique takes about twice as long as the cap technique. Although the textbook does not specifically state the relative merits of one technique over another, anyone who has performed the two techniques should recognize the proper answer. Mr. Jarman concentrated on the effect of chemicals on the scalp and selected the wrong answer. Each question provided four possible multiple choice answers. Selecting the proper answer required a process of elimination and a choice of the "best" answer. The questions were not ambiguous. Nor, as suggested by Mr. Jarman, did they require experience beyond the "entry-level". As part of their program of instruction, cosmetology students are given practical experience in the techniques to be tested. The examination taken by Mr. Jarman and his colleague, Mr. Sparrow, was a new examination and the pass rate was substantially lower than for prior examinations. This fact itself does not invalidate the examination. It was devised by a national professional testing firm; it was validated statistically through a mathematical process and was validated for content through a process which relies on the use of anchor items that have appeared in other examinations. The written clinical portion of the examination was designed to take the place of a practical examination requiring the use of live models. The clinical portion requires candidates to apply theory and judgement learned in their practicing laboratory in school. That is why the answers are not all found verbatim in the textbooks. In the credible opinions of the Board's several experts, including a psychometrician and an educator/practitioner with almost forty years' cosmetology experience, the January 1993 examination was valid and proper. The process of achieving scaled scores was also valid and proper.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the petition of Bruce E. Jarman, challenging his cosmetology examination score be denied. DONE AND RECOMMENDED this 14th day of December, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 14th day of December, 1993. COPIES FURNISHED: Vytas J. Urba Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bruce E. Jarman 1133 38th Street Orlando, Florida 32805 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Suzanne Lee Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the evidence presented at the hearing, the following relevant findings of fact are made: The Respondent, Scarlet Manor, Inc., d/b/a Scarlet Manor is located at 13009 Lake Carl Drive, Hudson, Florida. At all times material to this proceeding, Respondent has been licensed by the Agency to operate an ACLF (facility) at 13009 Lake Carl Drive, Hudson, Pasco County, Florida, housing a maximum of 40 residents. Ray Dorman is the owner of Scarlet Manor and has operated the facility since 1984. The facility primarily serves clients who are or have been diagnosed as suffering from a mental illness. On January 14, 1994, the Agency conducted a biennial survey of the facility and found violations in 68 categories of Class III deficiencies. During an exit interview on January 14, 1994, following the completion of the biennial survey, the Respondent's employee was advised of the deficiencies and was told that the deficiencies had to be corrected by February 14, 1994. The Agency reported the results of its biennial survey in a Summary of Deficiencies For ACLF Licensure Requirements (Summary of Deficiencies). A copy of the Summary of Deficiencies was furnished to the Respondent, who acknowledged on February 21, 1994, that a copy of the Summary of Deficiencies had been received on February 19, 1994. As indicated by the Summary of Deficiencies, a large number of the deficiencies were cited due to the unavailability of records at the time of the biennial survey. The records were kept at Ray Dorman's residence rather than the facility and Mr. Dorman was not available on the day of the survey to produce the records. Another large number of the deficiencies pertain to record keeping, and one would have to strain to show that such deficiencies, individually or jointly, "indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents". At the time Respondent acknowledged receipt of the Summary of Deficiencies it requested an extension for correcting the deficiencies from February 14, 1994, until March 21, 1994. The Agency granted the request for extension. The Respondent did not request any further extension. On March 21, 1994, the Agency revisited the facility and determined that 15 deficiencies remained uncorrected. The Respondent was again provided with a Summary of Deficiencies which, under column (4), indicated March 21, 1994 as the date of revisit, the identifying number of the deficiency and whether the deficiency was corrected or not corrected on the date of revisit. By letter dated July 1, 1994, the Agency denied Respondent's application for renewal of its license to operate the facility which had expired on March 11, 1994. The specific basis for the Agency's denial was the Respondent's failure to maintain minimum standards for an ACLF as evidenced by the Respondent's failure to correct the 15 deficiencies previously identified in the Summary of Deficiencies as not being corrected within the Agency's extended time of March 21, 1994. The letter identified and listed only 11 uncorrected deficiencies. The difference in numbers of deficiencies in the Summary of Deficiencies (15) and those listed in the denial letter (11) results from the Agency combining deficiencies ACLF300, ACLF301 and ACLF303 as number 3; above combining deficiencies ACLF702 and ACLF703 as number 4 above; and failing to list deficiency F.S.28, a catch all deficiency, pertaining to the failure to meet all federal, state and local codes as evidenced by the other listed deficiencies. No documentation of radon testing. Deficiency ACLF203 in the Summary of Deficiencies alleges that the facility did not have proof that radon testing as mandated by Section 400.056, Florida Statutes, has been conducted. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. On January 14, 1994, the Respondent did not have documentation of radon testing for the facility because there had been no testing of the facility for radon. During the interim between January 24, 1994, and March 21, 1994, the Respondent was in the process of engaging someone to test the facility for radon. However, due to the cost of testing the facility for radon and the availability of people certified to test for radon, the Respondent was unable to have the radon test completed by March 21, 1994, but Respondent did have the radon test (analysis) of the facility completed and documentation available on March 28, 1994. No documentation that all employees are free from signs and symptoms of communicable disease. Deficiency ACLF508 in Summary of Deficiencies alleges that on January 14, 1994, staff did not appear to be free from apparent signs and symptoms of communicable diseases, as documented by a statement from a health care provider, in that there was no statement for five of the six employees reviewed; three of whom had been employed over 30 days. Also it was noted that two of the employees had T. B. and VDRL tests only. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. On January 14, 1994, the Respondent failed to produce certification from a health care provider certifying that employees Cheryl O'Shell, Cindy Plunkett and Arlene Hutchinson, who had been employed for over thirty days, were free of communicable diseases. Apparently the other four employees either had the required certification or had not worked for the Respondent over 30 days. Rule 10A-5.0131(2)(cc), Florida Administrative Code, defines a health care provider as physician duly licensed under Chapter 458 or 459, Florida Statutes, or an advanced registered nurse practitioner (ARNP) duly licensed under Chapter 464, Florida Statutes. On March 21, 1994, at the time of the Agency's revisit, facility employee Cheryl O'Shell had test results but no certification from a health care provider. On March 21, 1994, facility employees Arlene Hutchinson and Cindy Plunkett had test results and a certification signed by registered nurse rather than an health care provider. This deficiency has subsequently been corrected. Appropriate resident contracts were not on file or did not contain required elements. Deficiency ACLF300 in the Summary of Deficiencies alleges that: (a) a female resident had signed the resident contract on May 4, 1989, however, a legal guardian was appointed January 17, 1992 and the contract was not re- executed; and (b) another female resident did not have an executed contract in her record available for review. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. Facility resident Tina Mickler, the female resident referred to in 12(a) above, had signed a contract in 1989 upon admission to the facility prior to being adjudicated incompetent and having a guardian appointed by the court. After Tina Mickler signed the contract on admission, Tina Mickler and her father, jointly executed a contract with the facility before her father was appointed guardian on January 17, 1992. After the March 21, 1994, revisit, Tina Mickler's father, as guardian, executed a new contract with the facility on behalf of Tina Mickler. Facility resident Mary Heagrey, the female resident referred to in 12(b) above, had a signed contract on file with the facility on January 14, 1994 and on March 21, 1994, notwithstanding testimony of the Agency witness to contrary. Apparently, the contract was overlooked when reviewing her records. Deficiency ACLF301 in the Summary of Deficiencies alleges that the facility resident contract did not contain certain provisions required by statute and rule. It is further alleged that only one provision of the resident contract had been corrected at the time of the March 21, 1994, revisit. The Agency reviewed nine out of 28 resident contracts. Some of the nine contracts reviewed did not have all of the provisions that were required by statutes and rules as of January 14, 1994. There was no evidence that the contracts were not in accordance with the statutes and rules at the time they were executed by the resident. At the time of the revisit on March 21, 1994, the provision identified as number 1 under ACLF301, concerning prorated refunds for the unused portion of payments after termination, had been corrected. However, those provisions identified as numbers 2, 3 and 4 under ACLF301, concerning refunds if the facility discontinues operation, disbursement of refunds under Florida Probate Code for a deceased resident and the handling of funds where they are not disbursed under the Florida Probate Code, respectively, were not corrected in that those resident contracts lacking those provision had not been replaced with a newly executed contract with those provisions or had those provisions added to the contract with an addendum. This deficiency has subsequently been corrected. Deficiency ACLF303 in the Summary of Deficiencies alleges that on January 14, 1994, the facility did not have for review an admission package, and as such, it could not be determined that all information was included as required by Rule 10-5.024(2)(a)3., Florida Administrative Code. It is further alleged that this deficiency was not corrected at the time of March 21, 1994, revisit. The facility did not have an admission package per se for review during the Agency's January 14, 1994, or March 21, 1994, visits. However, the facility did have the necessary documents to review with a new resident but they were not contained in a packet to give to the resident; therefore, the Agency could not determined if all required information was included. This deficiency has been corrected in that the facility now has an admission packet. No documentation of social or leisure services activities and activities calendar were followed. Deficiency ACLF702 in the Summary of Deficiencies alleges that on January 14, 1994, that it could not be determined that opportunities were provided for social and leisure services to facilitate social interaction, enhance communication and social skills, and reduce isolation and withdrawal. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. Deficiency ACLF703 in the Summary of Deficiencies alleges that on January 14, 1994, the administrator or designee had not fulfilled his responsibility for the development and implementation of or arrangement for participation by residents in an ongoing activities program. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. While there appeared to be some effort on the part of the facility to fulfill its responsibility Rule 10A-5.0182(4), Florida Administrative Code, at the time of the January 14, 1994, survey and the March 14, 1994, revisit, regarding social and leisure services, to provide a activities calendar and to develop and implement arrangements for participation by residents in an ongoing activities program, the facility's effort fell short of what is required in this regard. However, the facility's efforts in this regard subsequent to the March 21, 1994, revisit have corrected those deficiencies. Residents rights and freedoms not protected or provided for. Deficiency ACLF705 in the Summary of Deficiencies alleges that the facility has a written policy that no one is allowed to go to the store after dark which is an infringement on the residents' rights and freedoms. There was testimony concerning a facility policy of requiring resident visitors to be cleared with the Administrator; however, this was not covered in the Summary of Deficiencies under deficiency ACLF705 or any other deficiency. At the time of both the January 14, 1994, survey and the March 21, 1994, revisit, the policy of the facility was not to allow residents to leave the facility after dark and that visitors were to be cleared by the administrator. The basis for these policies was the safety of the residents due the location of the facility, particularly, the policy of not leaving the facility after dark to go to the store. This is no longer a policy of the facility. The facility residents are free to come and go as they may desire. Lack of documentation of facilities response to resident complaints. Deficiency ACLF710 in the Summary of Deficiencies alleges that there was no documentation that the facility responded to resident complaints, in that there was no procedure available for review of complaints received and responses documented. While there was evidence that the facility did encourage filing complaints and did respond to complaints received, the facility did not have an established procedure whereby the review of complaints received and responses were documented. The facility now has an established procedure for documenting the review of complaints and responses. Furnishings not in good repair. Deficiency ACLF904 in the Summary of Deficiencies alleges that furniture was not in good repair, as evidenced by the worn, torn and broken sofa and chairs in the lounge area. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. At the time of the March 21, 1994, revisit there was a torn chair in the lounge area. Ray Dorman testified that the furniture observed on March 21, 1994, was not the same furniture observed on January 14, 1994, because that furniture had been thrown away. Dorman further testified that the torn chair observed at the time of the March 21, 1994, revisit had been torn by a resident in interim between the January 14, 1994, survey and the March 21, 1994, revisit. However, I do not find this testimony to be credible, particularly since the Agency employee conducting the revisit was not made aware of this by anyone at the facility. Proper care not being given to insect control. Deficiency ACLF905 in the Summary of Deficiencies alleges that there is lack of an effective control method to prevent against flies, rodents and other insects from entering the facility as evidenced by: (a) exit doors at end of each corridor did not close properly; and (b) doors to center patio did not close properly. It is further alleged that this deficiency was not corrected at the time of the March 21, 1994, revisit. This deficiency did exist on January 14, 1994, and was not corrected at the time of the March 21, 1994, revisit. However, this deficiency was corrected shortly after the March 21, 1994, revisit. Hot water exceeds maximum allowable temperature. Deficiency ACLF1023 in the Summary of Deficiencies alleges that hot water service to lavatories, showers and baths for residents' use had water temperature readings of 135 degrees thereby exceeding the maximum of 115 degrees provided for in Rules 10A-5.0221(3) and 10A-5.023(10)(e), Florida Administrative Code. This deficiency did exist on January 14, 1994, and was not corrected at the time of the March 21, 1994, revisit. This deficiency was corrected after the March 21,1994, revisit, and the day of the hearing the hot water temperature for the residents' use was at 115 degrees. Automatic smoke detectors not serviced. Deficiency F.S.17 in the Summary of Deficiencies alleges that there was no documentation of the automatic smoke detectors having the required sensitivity test during the past two years. The facility had documentation of annual inspections of the automatic smoke detectors for March 23, 1993, March 11, 1994 and March 13, 1995. Both the 1994 and 1995 report shows the automatic smoke detectors having the required sensitivity test. However, while the 1993 report does indicate that the required sensitivity test was conducted, Ray Dorman's testimony, which I find credible in this regard, was that the test was performed and paid for, but the failure to note that on the report was an oversight which he failed to note and have corrected. The evidence appears to show that the Agency was not provided with these reports at the January 14, 1994, or March 21, 1994, visits. Emergency lighting inoperable. Deficiency F.S.21 in the Summary of Deficiencies alleges that the emergency lighting was not maintained as evidenced by the lights in the corridors or dining room failing to operate when tested. This deficiency existed at the time of the January 14, 1994, survey. During the interim between January 14, 1994, and March 21, 1994, Ray Dorman caused the emergency lighting system to be checked and repaired. However, on March 21, 1994, there was one light out in the west corridor; therefore, the Agency considered the deficiency as not being corrected. There was no evidence that any of the above deficiencies was a repeat deficiency as that term is defined in Rule 10A-5-0131(2)(xx), Florida Administrative Code, or that they were recurring deficiencies. There was sufficient evidence to show that the above deficiencies, in the aggregate, did potentially threaten the health, safety, or welfare of the facility residents. The deficiencies cited in the administrative complaint in AHCA No.: 05-94-053-ACLF were the same deficiencies cited in the denial letter of July 4, 1994, which eventually resulted in a default Final Order being issued against Scarlet Manor on the basis of the administrative complaint on September 7, 1994. Administrative fines in the amount of $3,250 were assessed against Scarlet Manor, which fines remain unpaid and no payment plan has been arranged. A default Final Order was issued against Scarlet Manor in AHCA No.: 05-94-052-ACLF on September 7, 1994, wherein an administrative fine in the amount of $1,750 was assessed against Scarlet Manor, which fines remain unpaid and no payment plan has been arranged.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, and considered the factors set forth in Section 400.419(2), Florida Statutes, and Rule 10A-5.033, Florida Administrative Code, it is recommended that the Petitioner Agency For Health Care Administration enter a final order finding that Respondent Scarlet Manor has outstanding fines for which there has been no payment plan arranged. It further recommended that Respondent Scarlet Manor's renewal license be denied unless such fines are paid forthwith or a payment plan is arranged under the terms and conditions the Agency deems appropriate. RECOMMENDED this 21st day of June, 1995, in Tallahassee, Florida WILLIAM R. CAVE, 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 21st day of June, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4475 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 23are adopted in substance as modified in Findings of Fact 1 through 39. Respondent's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 9 are adopted in substance as modified in Findings of Fact 1 through 36. COPIES FURNISHED: Thomas W. Caufman, Esquire Division of Health Quality Assurance Agency for Health Care Administration 7827 N. Dale Mabry Highway, Suite 100 Tampa, Florida 33614 Eloise Taylor, Esquire Taylor and Wilkerson 11912 Oak Trail Way Port Richey, Florida 34668 Sam Powers, Agency Clerk Agency for Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303 Jerome W. Hoffman, General Counsel Agency for Health Care Administration The Atrium, Ste. 301 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant matter, registered as a septic tank contractor with the Department. In July 2002, Respondent entered into a contract with Pro Gold Investments Corp. (Pro Gold), whose president and sole owner is Emerico Kemeny Fuller. The contract provided that Respondent would install a "new septic system" for Pro Gold at 453 Blue Road in Coral Gables, Florida (Blue Road Property) for $4,600.00, a job that should have taken only a "few days" to complete. Pro Gold gave Respondent a "job deposit" of $2,300.00. In July 2003, Pro Gold, by Warranty Deed, conveyed title to the Blue Road Property to Maurits de Blank's company, Mortgage Lending Company LLC (MLC), and it also executed a Bill of Sale, Absolute and Assignments of Contracts, which read as follows: PRO GOLD INVESTMENTS CORP, as Seller, in consideration of Ten Dollars ($10.00) and other valuable consideration paid to it by MORTGAGE LENDING COMPANY, LLC, as Buyer, the receipt of which is acknowledged hereby sells, assigns, grants, transfers, and conveys to Buyer all of Seller's right, title, and interest in the following described goods, contracts and personal property: SEE ATTACHED EXHIBIT "A- PROPERTY" AND EXHIBIT "B- CONTRACTS ASSIGNED" Seller covenants and agrees that it is the lawful owner of goods, contracts, rights or interests transferred hereby; that they are free from all encumbrances, except for outstanding amounts due, if any, to those parties set forth on Exhibit "B," and that it has the right to sell, transfer and assign the goods, properties and rights set forth in the attached Exhibit "A," and the right to transfer and assign the contracts, rights or interests shown on Exhibit "B," and will warrant and defend same against the lawful claims and demands or all persons. The "attached Exhibit 'A- Property'" read, in pertinent part, as follows: (Regarding transfer of 453 Blue Road, Coral Gables, Florida, "the Real Property") (Mortgage currently in favor of Mortgage Lending Company, LLC "the Mortgage") All property rights of any kind whatsoever, whether in property that is real, fixed, personal, mixed or otherwise and whether in property that is tangible or intangible, including, without limitation, all property rights in all property of any kind whatsoever that is owned or hereafter acquired by the Company and that is associated with, appurtenant to or used in the operation of the Real Property or is located on, at or upon the Real Property and is associated with or used in connection with or in operation of any business activity conducted on, at or upon the Real Property, and including, without limitation, the following: * * * All right, title, and interest in those certain contracts and agreements [set] forth in the attached Exhibit "B," which are hereby transferred and assigned to Mortgage Lending Company LLC. Among the "contracts and agreements [set] forth in the attached Exhibit 'B,'" was the aforementioned July 2002, contract wherein Respondent agreed to install a "new septic system" for Pro Gold on the Blue Road Property (Septic System Contract). This contract was still executory. Respondent had not done any work on the site in the year that had passed since the contract had been signed. In the beginning of August 2003, Mr. de Blank met with Respondent and advised him that MLC was the new owner of the Blue Road Property and that MLC had also received an assignment of the Septic System Contract from Pro Gold. In response to this advisement, Respondent stated "he did not do assignments." Following this meeting, Mr. de Blank sent Respondent documentation supporting the assertions he had made regarding MLC's ownership of the Blue Road Property and its having been assigned the Septic System Contract. Mr. de Blank then attempted, unsuccessfully, to make contact with Respondent by telephone. He "left messages," but his telephone calls were not returned. These efforts to telephonically communicate with Respondent having failed, Mr. de Blank "decided that it may make some sense to start a letter writing program." As part of that "program," on September 8, 2003, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables As background, and in chronological order: Pro Gold Investments purchased the above cited property and obtained a construction loan from our firm. One of the conditions was that all construction contracts would be assignable to our firm in the event of default. Pro Gold Investments entered into contract with your firm to install a new septic tank and drainfield at 453 Blue Road. Pro Gold Investments defaults and forfeits title in lieu of foreclosure. The deed was recorded on August 4, 2003, at Bk/Pg: 21484/4283. Not recorded but attached for your reference is an assignment of contracts to include the contract Pro Gold Investments entered into with your firm. See further attachment. The original can be inspected in my office. At this point, I request you proceed with the work as soon as practical and under identical conditions as originally agreed with Pro Gold Investments. Please call me at . . . to confirm a start date. Mr. de Blank did not receive any response to his letter. He finally was able, however, to reach Respondent on the telephone. During this telephone conversation, Mr. de Blank made arrangements to meet Respondent at the Blue Road Property to discuss Respondent's doing the work Respondent had agreed to do in the Septic System Contract. This meeting between Mr. de Blank and Respondent took place on September 11, 2003. During the meeting, Mr. de Blank went over with Respondent "what the job [was] going to be." Although Respondent indicated that he was "going to put in th[e] septic tank" per the Septic System Contract, Mr. de Blank had his doubts that Respondent would be true to his word. Following the meeting, Mr. de Blank sent Respondent the following letter: Re: 453 Blue Road, Coral Gables We met today to discuss the above referenced job. My understanding is: You will start the job no later than the first week of October and will complete the job no later th[a]n the last week of October. I will obtain a copy of the approved permit. You indicated you will not need a survey.[1] Should you change you[r] mind, you can always refer to a survey I keep on site. You will have your insurance agent mail to my address a certificate of insurance. Though not discussed: I would like a partial release of payments made to date for the job. See further the attachment. Assuming you concur, then please send a signed and notarized copy to Maurits de Blank, Mortgage Lending Company, Post Office Box 430336, Miami, Florida 33143. Note that I prefer for various legal reasons that you use the release form as provided. Once the job has been started, I would like a list of firms supplying materials to the job. Notwithstanding that he had promised Mr. de Blank that he would "start the job no later than the first week of October," by the middle of October Respondent had yet to even "pull a septic tank construction permit from the City of Coral Gables" (that was needed before any on-site work could begin).2 In an attempt to find out from Respondent what was the cause of the delay, Mr. de Blank started a "calling campaign," but Respondent neither answered the telephone when Mr. de Blank called nor returned Mr. de Blank's calls. On October 19, 2003, Mr. de Blank sent the following letter to Respondent (by certified United States Mail, return receipt requested): Re: 453 Blue Road, Coral Gables I need a firm commitment when you will start and finish septic tank at above address. If you cannot perform the work, then I will need a refund of the deposit given to your firm. Please call to discuss. The end of the month was fast approaching, and Respondent had neither contacted Mr. de Blank nor begun the Septic System Contract on-site work. After paying a visit to Coral Gables City Hall and learning that Respondent had still not even "pull[ed] a septic tank construction permit from the City of Coral Gables," Mr. De Blank found another septic tank contractor, Westland Septic Tank Corp., to do the installation work for MLC that Respondent was contractually obligated to perform. MLC paid Westland $4,400.00 to do the work. Westland completed the job some time prior to November 4, 2003. The work passed all of the necessary inspections. Upon learning that MLC had contracted with Westland, Respondent sent Mr. de Blank a letter complaining that Mr. de Blank had not given Respondent an adequate opportunity to meet his obligations under the Septic System Contract. In the letter, Respondent offered to return only $500.00 of the $2,300 down payment he had received from Pro Gold. Mr. de Blank subsequently informed Respondent that this was not satisfactory and that he wanted the "full deposit back." He added that if he did not get it, he would "go to court." Not having received any portion of the "deposit back," Mr. de Blank, acting on behalf of MLC, in mid-November 2003, filed suit against Respondent in Miami-Dade County Court. On May 14, 2004, a Final Judgment was entered in Miami-Dade County Court Case No. 0313813 in favor of MLC and against Respondent "in the amount of $1,675.00 plus court costs in the amount of $121.00." As of the date of the final hearing in this case, Respondent had not made any payments to MLC. In view of the foregoing, it is found that Respondent abandoned for 30 consecutive days, without any apparent good cause, a project in which he was under contractual obligation to complete; and his failure to go forward with the project, combined with his failure to return any of the deposit he had received, caused monetary harm to a party to whom he was contractually obligated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Department issue a final order finding Respondent guilty of the misconduct alleged in the Administrative Complaint and disciplining him therefor by fining him $500.00 and suspending his registration for 90 days. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 4th day of February, 2005.
