The Issue The central issue in this case is whether the Respondent committed the violation alleged in the corrected administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent, Charles Harry Kent, is a licensed physician in the State of Florida, license no. ME 0037235. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed physicians. In connection with a prior disciplinary case against this Respondent the Agency issued a final order placing the Respondent on two years probation and requiring Respondent to pay an administrative fine in the amount of $2,000.00. Such fine was to be paid not later than March 5, 1995. As of March 28, 1996, the Respondent had not paid the administrative fine nor had he provided any explanation for the failure to timely remit payment. Efforts to notify the Respondent regarding the unpaid fine were unanswered by the Respondent. Ultimately, the administrative complaint in this case was filed against the Respondent and notice of the non-payment provided by way of allegations set forth in paragraphs 6 through 12. On October 3, 1995, the Respondent executed an election of rights which disputed the allegations and listed his address as 3605 Juan Ortiz Circle, Fort Pierce, Florida 34947. Attempts to personally contact this Respondent by an Agency investigator proved fruitless. Respondent has not responded to mail addressed to his address of record.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration, Board of Medicine, enter a final order suspending Respondent's medical license until such time as the administrative fine at issue in this cause is paid in full; imposing an additional fine in the amount of $5,000.00; and extending Respondent's period of probation by an additional two years. DONE AND ENTERED this 16th day of May, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 16th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5535 Rulings on the proposed findings of fact submitted by Petitioner: 1. Paragraphs 1 through 10 are accepted. Rulings on the proposed findings of fact submitted by Respondent: 1. None submitted. COPIES FURNISHED: Albert Peacock Senior Attorney Agency for Health Care Administration 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Charles Harry Kent, M.D. Post Office Box 2478 Fort Pierce, Florida 34947 Dr. Marm Harris Executive Director Agency for Health Care Administration, Board of Medicine Division of Medical Quality Assurance Boards 1940 North Monroe Street Tallahassee, Florida 32399-0342
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character, in violation of Section 943.1395(7), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional probation officer on February 1, 1991, and as a criminal justice training instructor on December 7, 1999. Her respective certificate numbers are 20851 and 205697. Respondent was first employed by the Department of Corrections (DOC) on August 10, 1990. She was employed as a correctional probation officer. As a result of promotions, Respondent became a DOC Correctional Probation Specialist in February 1995, so that she was responsible for, among other things, various administrative duties, such as handling citizens' complaints of employee misconduct and coordinating training events. In April 2001, Respondent filed a charge with the Equal Employment Opportunity Commission, alleging that DOC forced her to work in a hostile environment. On February 15, 2002, Respondent, alleging the same facts, commenced a legal action against DOC in the United States District Court, Southern District of Florida, Case No. 02-60236-CIV. As part of the federal litigation, DOC filed a motion for summary judgment, arguing, in part, that Respondent's complaint failed to claim damages. In response, on March 28, 2003, Respondent, representing herself, filed a lengthy affidavit, to which she personally attested. In the affidavit, Respondent swore to the following statement: I requested assistance from management [following the departure of the other Correctional Probation Specialist from Respondent's office and DOC's failure to fill the empty position], but they refused to assign another Specialist to the office to assist me. As a result I had to work an average of five hours per week extra in overtime without pay to properly supervise this caseload to prevent from being reprimanded, suspended or terminated by [DOC]. I was not paid for this time. The evidence is clear that Respondent did not work overtime, with or without pay. The Correctional Probation Supervisor who directly supervised Respondent at the time testified at the hearing. Obviously not hostile to Respondent, the supervisor testified definitively that during the relevant period in the affidavit--March 2, 2001 through May 9, 2002--she was intimately familiar with Respondent's work, including her itinerary and travel logs. The supervisor testified that Respondent incurred no overtime whatsoever during this period, and this testimony is credited in its entirety. Respondent's sworn statement in the affidavit is false and was false at the time that Respondent made it. Respondent's sole purpose in making this false statement was to deceive the court and show an element of damages that did not, in fact, exist. DOC terminated Respondent on August 1, 2003. She has not since worked in a job that requires certification from Petitioner.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order suspending Respondent's certificates as a correctional probation officer and criminal justice training instructor for one year retroactive to August 2, 2003; placing these certificates on probation for two years from the date of the final order; and requiring Respondent to attend an ethics course approved by Petitioner. DONE AND ENTERED this 18th day of January, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 18th day of January, 2006. COPIES FURNISHED: Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Faye E. Wright-Simpson
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed against the Respondent are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility for certification of Correctional Officers within the State of Florida. The Respondent is employed as a Correctional Officer at the Hendry County Correctional Institution. On December 25, 1998, the Respondent worked an 8:00 a.m. to 4:00 p.m. shift as a Correctional Officer. After leaving his shift, the Respondent went home, showered, ate dinner, gathered Christmas gifts for his brother's family, and left the house with his wife. He took his wife to the "Eagles" club and returned to his house to take his wife's children to their father's house. He then drove to his brother's house, about an hour from the Respondent's home, where he visited and exchanged gifts. At about 11:00 p.m., the Respondent departed from his brother's house and went to the "Eagles" club, where he learned his wife had gone to the "Moon Cricket" bar. The Respondent proceeded on to the bar where he met his wife and friends. While at the bar, the Respondent consumed an indeterminate quantity of beer in the two hours remaining until closing time. The bar is small, and a "party" atmosphere prevailed. Apparently beverage orders were not taken, rather the bar's owner (a friend of the Respondent's) repeatedly brought bottled beers to the table. It is not possible to quantify the Respondent's consumption in a credible manner. When the bar closed shortly after 2:00 a.m. on December 26, 1998, the Respondent collected his wife, who was admittedly intoxicated, along with additional quantities of beer, and began to drive home. At approximately 2:30 a.m. on December 26, 1998, the Respondent was observed by Collier County Sheriff Deputy Tom Amey to be driving without headlights. Deputy Amey has completed substantial training in detection of persons driving under the influence of alcohol or other substances and in conducting field sobriety evaluation. At the time of initial observation, the Respondent's truck was stopped at an intersection facing towards Deputy Amey's vehicle. Deputy Amey flashed his headlights apparently to remind the Respondent to turn on the headlights, but got no response from the Respondent. When the Respondent proceeded through the intersection without headlights, Deputy Amey turned his vehicle around, followed, and then stopped the Respondent. After approaching the Respondent's vehicle, Deputy Amey asked for the Respondent's license and registration. The Respondent responded very slowly and deliberately to the deputy's instructions, fumbling with his wallet as he removed the documents. Deputy Amey observed that the Respondent's eyes were "glassy" and "bloodshot" and that there was a "moderate odor” of alcohol present. Deputy Amey also observed "cool, fresh" beer located on the front floorboard and the rear floorboard of the Respondent's extended cab truck. Deputy Amey asked the Respondent to exit the truck and the Respondent did so slowly. While talking to the Respondent, Deputy Amey observed that the Respondent's speech was slightly slurred and "thick-tongued." Deputy Amey asked the Respondent to submit to a field sobriety exercise. The Respondent stated that his knee prevented him from completing the physical tests. Deputy Amey administered the "horizontal gaze nystagmus" (HGN) test. Nystagmus is an involuntary eye motion (described as a "jerkiness") typically exhibited by persons under the influence of alcohol or other central nervous system depressants. The HGN test is a standard part of the field sobriety evaluation. An HGN test permits the observation of the level of "jerkiness" in a person's eyes. Normally, a person's eyes appear to move smoothly. Under the influence of alcohol or other substances, a person's ability to control eye movement is diminished, and a "jerky" motion is observable. Deputy Amey has received specific training related to administration of the HGN test. Upon observing the Respondent's eye movement during the test, Deputy Amey reported that the onset of the Respondent's nystagmus was "almost immediate" and "very distinct." Based on the deputy's observation, the Respondent was placed under arrest for driving under the influence and was transported to the "stockade" in Immokalee, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a Final Order imposing a one-year probationary period and requiring such counseling as the Department deems appropriate. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of September, 2001. COPIES FURNISHED: H. R. Bishop, Jr., Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Gabrielle Taylor, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32303-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner is an inmate incarcerated at Tomoka Correctional Institution, Daytona Beach, Florida. He is presently serving a sentence of 60 years and has a presumptive parole release date of 180 months. Petitioner specifically challenges the validity of the matrix time range contained in Rule 23-21.09(5), Florida Administrative Code. That provision contains a matrix which sets the time ranges for presumptive parole release dates. A copy of that matrix is attached to this order as Appendix I. The most current matrix was last amended effective October 1, 1982. The initial or first matrix was developed and became effective in 1979 in response to legislation adopted in 1978 which required the Parole and Probation Commission (hereafter referred to as Commission) to develop and implement objective parole guidelines. Prior to this time, the granting or denying of parole had been a subjective decision by the commissioners and required a majority vote of the commissioners. In originally developing the matrix, the Commission used the Thurston Scaling Method in ranking various criminal offenses from least to most serious offense. This method involved providing each of the Commissioners with 40 index cards on which the various criminal offenses were written. Each commissioner then ranked the various criminal offenses in order of seriousness. The Board then reviewed the results and arrived at a consensus on the ranking of the various crimes. The Thurston scaling methodology is an accepted scientific methodology for ranking different crimes by level of seriousness or severity. This methodology was recommended to the Commission by three consultants in the field of parole. These same three experts, Peter Hoffman, Director of Research for the U.S. Parole Commission, Dale Parent, Director of the Sentencing Guidelines Commission for the State of Minnesota, and Betty Taylor, a parole commissioner for the State of Oregon, advised and consulted with the board in developing the objective parole guidelines. After the initial matrix was adopted as a Commission rule, it was reviewed on an annual basis as required by statute. Since 1979, some changes in the matrix have been adopted by the Commission based upon their annual review. Each change was adopted as a rule change and the procedures for adopting or amending administrative rules were followed. The procedure for adopting the rule changes generally took at least 90 days. The present matrix contains six categories of crimes broken down by degrees. Each inmate is assigned a salient-factor score and by using this score with the offense for which the person was sentenced a time range for the Presumptive parole release date for that individual is obtained from the matrix. The Commission sets the presumptive parole release date within that range unless other factors warrant going outside that range by extending or reducing the number of months to the presumptive parole release date. The inmate's presumptive parole release date may also be extended for unsatisfactory institutional behavior while incarcerated. The Commission, in granting or denying parole, considers the total case package including those specific reasons which may serve as a basis for going above or below the matrix time range. When the Commission goes outside the matrix time range it must state its reason for doing so. Prior to March 1983, the forms of the Commission's actions were filed in a central storage area. In March 1983, the mechanism became available for feeding this information into the computer. Using the computer and data which is maintained by the Department of Corrections, the Commission now generates quarterly reports. These reports provide a statistical analysis which indicates whether the guidelines are being following by the Commission. This same data also provides a possible indicator for needed changes in the guidelines. All revisions to the guidelines must now be made based upon such statistical analysis. Sentencing guidelines and objective parole guidelines are separate. The salient-factor scores for the sentencing guidelines and objective parole guidelines are similar, but not the same. Sentencing involves a separate branch of government, a separate function, separate measurements, and separate criteria. Sentencing can be done only by a court of law and is accomplished by court order. Sentencing sets the limit of the incarceration period. The parole function is a function of the executive branch and cannot be ordered by the Commission. An offer of parole is tendered or offered by the Commission and the inmate may accept or reject the offer and its condition. If the inmate accepts an offer of parole, the form used is a contract form which must be signed and agreed to by the inmate. Parole results in release under supervision whereas completion of the sentence results in full release without conditions or supervision. Section 947.165(2), Florida Statutes, was amended by the 1982 legislature. See Session Law 82-171. Prior to this amendment, changes made in the objective parole guidelines were to be based upon the "experience" of the commission. The amended section provides that the Commission shall review the guidelines at least once each year and make any revisions considered necessary by virtue of statistical analysis of Commission actions. The initial report of the data generated by this statistical analysis was to be due January 30, 1983. See Florida Statute 947.13(3)(1982). The Commission and its staff began work immediately after the passage of 82-171 to implement the statistical analysis and reporting requirements.
Conclusions THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the “Board”) pursuant to Sections 120.569 and 420.57(2), Florida Statutes, on April 10, 2008, in Indialantic, Florida, for consideration of the Administrative Complaint (attached hereto as Exhibit A), in the above styled case. Petitioner has filed a Motion for Final Order. Petitioner was represented by Jeff Kelly, Esquire. Respondent was present. Upon consideration, the Board FINDS: 1. The Petitioner’s Motion is granted. 2. The material facts are not in dispute. 3. The allegations of fact set forth in the Administrative Complaint are approved, adopted, and incorporated herein by reference as the Board's Findings of Fact. 4. The conclusions of law alleged and set forth in the Administrative Complaint are approved, adopted, and incorporated herein by reference as the conclusions of law of (A) Respondent is required to appear before the Probation Committee of the Board at such times as directed by the Board Office, approximately every six (6) months. Respondent's first probationary appearance requires a full day attendance at the Board meeting. In connection with each probation appearance, Respondent shall answer questions under oath. In addition, Respondent shall provide such other information or documentation as is requested by either the Petitioner, Department, the Board or the Probation Committee. Respondent shall forward said documentation to the Board:at least - 30 days in advance of the probation appearance or as otherwise directed. for 4 -(B) The burden shall be solely upon’ Respondent to remember the requirement for - said appearance and to take the necessary steps in advance of said appearance to contact the Board office and ascertain the specific time, date, and place of said appearance. Respondent shall not rely on notice of said appearance from the Board or the Department. (C) Should Respondent violate any condition of the probation, it shall be considered a violation of Section 489.129(1)(i), Florida Statutes, and shall result in further disciplinary action by the Board. (D) Should the Respondent fail to make a satisfactory appearance as determined by the Board, the term of the probationary period shall automatically be extended by six (6) months. If there occurs a second such failure then the term of probationary period will be extended an additional year. Should the Board determine a third failure of the Respondent to make a satisfactory appearance, the stay of suspension of the Respondent's license to practice contracting shall be lifted and the license shall remain in suspended status unless and until a further stay is granted by the Board. (E) Should Respondent's license to practice contracting be suspended or otherwise placed on inactive status, the probation period shall be tolled during the period of the suspension or inactivity and shall resume running at the time the suspension is stayed or Respondent reactivates the license and Respondent shall serve the time remaining on the term of probation. . (F) To ensure successful completion of probation, Respondent's license to practice contracting shall be suspended for the period of probation, with the suspension stayed for the period of:probation. ‘The time-of the suspension and ‘the stay shall run concurrently” ~~ --with the period of probation. If Respondent-successfully completes probation, the’ »- - suspension shall terminate.’ If Respondent fails to comply with the requirements set forth in the Final Order imposed in this ‘case, or fails to make satisfactory appearances as determined by the Board, the stay shall be lifted. Once the stay is lifted, the license shall remain in suspended status unless and until a further stay is granted by the Board. 5. In addition, Respondent shall complete seven (7) additional credit hours of continuing education which must be related specifically to Chapter 489 and related rules, within this renewal period. The seven (7) hours ordered shail be in addition to the continuing education required by Rule 61G4-18.001, F.A.C. Proof of the seven (7) additional hours must be supplied directly to Executive Director of the Construction Industry Licensing Board at 1940 N. Monroe Street MS# N14, Tallahassee, FL 32399-1039. Failure to provide such proof direct to the Executive Director will result in a violation of this Order. 6. Achangein licensure status, including the suspension, revocation, voluntary relinquishment, or involuntary relinquishment of license does not relieve Respondent of the obligation to pay any fines, costs, interest or restitution imposed in this Order. This Final Order shall become effective upon filing with the Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this O; day of oe , 2008. RAYMOND R. HOLLOWAY, Chair Construction Industry Licensing Board
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since January 5, 1981, a medical doctor licensed to practice medicine in the State of Florida. His license number is ME 0037656. In or about February of 1988, a complaint was made against Respondent alleging that he engaged, or attempted to engage, in the practice of medicine in this state without an active Florida license. The complaint was reviewed by the Probable Cause Panel of the Board, which disposed of the matter by issuing, on April 23, 1988, the following Closing Order: THE COMPLAINT: Complainant alleges that the Subject of the investigation practiced or attempted to practice medicine without an active license in violation of Section 458.327 (1)(a), Florida Statutes. THE FACTS: Investigation substantiated the allegations in that Subject's license to practice medicine expired December 31, 1987, and was placed in an inactive status. Subject practiced medicine with an inactive license until approximately February 5, 1988, before he took steps to renew his license. THE LAW: Based on the foregoing, there is sufficient evidence to support a finding of probable cause that Subject violated Section 458.327(1)(a), Florida Statutes, and there- fore is in violation of Section 458.331(1)(x), Florida Statutes. However, as Subject's license was inactive for a period of less than six months, this case should be closed by issuing Subject a Letter of Guidance. It is, therefore, ORDERED that the complaint be, and the same is hereby CLOSED with a Letter of Guidance. In January of 1991, the Agency's predecessor, the Department of Professional Regulation, issued a 22-count Administrative Complaint against Respondent alleging that, in connection with his dealings with 11 patients in 1989 and 1990, Respondent violated subsections (1)(g)(Counts Twenty-One and Twenty-Two), (1)(m)(Counts Ten, Thirteen and Eighteen), (1)(q)(Counts Two, Five, Eight, Eleven, Fifteen and Nineteen), (1)(t)(Counts One, Four, Seven, Twelve, Fourteen, Sixteen and Twenty) and (1)(v)(Counts Three, Six, Nine and Seventeen) of Section 458.331, Florida Statutes. Proceedings on these allegations were conducted in accordance with Section 120.57(2), Florida Statutes. On August 24, 1992, the Board issued a Final Order finding Respondent guilty of the violations alleged in each of the 22 counts of the Administrative Complaint and disciplining him for having committed these violations. That portion of the Final Order addressing the Respondent's punishment provided, in pertinent part, as follows: IT IS HEREBY ORDERED AND ADJUDGED: Respondent's license to practice medicine is REPRIMANDED. Respondent shall pay an administrative fine in the amount of $5000 to the Board of Medicine, Department of Professional Regula- tion, within 3 years of the date this Final Order is filed. Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 3 years, subject to the follow- ing terms and conditions: . . . f. Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probation Committee. Absent provision for and comp- liance with the terms regarding temporary approval of a monitoring physician, as provided below, Respondent shall cease pract- ice and not practice until the Probation Comm- ittee or the Board approves a monitoring physician. Respondent shall have the monitoring physician with Respondent at the first probation appearance before the Probation Committee. Prior to the approval of the monitoring physician by the Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Comp- laint and Final Order filed in this case. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee meeting shall constitute a violation of this Order. Prior to the approval of the monitoring physician by the Committee, Respondent shall submit to the Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall be received by the Board office no later than fourteen days before the first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of the monitoring physician shall include: Submit semi-annual reports, in affidavit form, which shall include: Brief statement of why physician is on probation. Description of probationer's practice. Brief statement of probationer's comp- liance with terms of probation. Brief description of probationer's relationship with monitoring physician. Detail any problems which may have arisen with probationer. Respondent shall be responsible for ensuring that the monitoring physician submits the required reports. Be available for consultation with Respondent whenever necessary, at a frequency of at least once per month. Review 50 percent of Respondent's patient records selected on a random basis at least once every other month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every other month. At that time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician. Review all patient records of patients treated with Schedule II-V controlled substances. Receive and review copies of all Schedule II-V controlled substance prescriptions in order to determine the appropriateness of Respondent's prescribing of controlled substances. Report to the Board any violations by probationer of Chapters 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. . . Respondent shall submit semi-annual reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include: Brief statement of why physician is on probation. Practice location. Describe current practice (type and composition). Brief statement of compliance with probation terms. Describe relationship with monitoring/ supervisory physician. Advise Board of any problems. . . Respondent may prescribe Schedule II-V controlled substances with the restrictions set forth below: Respondent shall utilize sequentially numbered triplicate prescriptions in the prescribing of said controlled substances. Respondent shall provide one copy of each prescription for said controlled substances to the Department's investigator within 30 days. Respondent shall, within two weeks after issuance, provide one copy of each prescription for said controlled substances to his monitoring/supervising physician. Respondent shall maintain one copy of each prescription for said controlled sub- stances in the patient's medical record. This copy may be a xerox copy. During this period of probation, semi- annual investigative reports will be compiled by the Department of Professional Regulation concerning Respondent's compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine. . . . At a meeting held November 18, 1992, Respondent received the approval of the Probation Committee to have Oliver Anderson, M.D., serve as his monitoring physician. Both Respondent and Dr. Anderson appeared before the Probation Committee at this November 18, 1992, meeting. Dr. Anderson is in his late seventies. Like Respondent, he has a general family practice. He and Respondent have known each other for over ten years. Dr. Anderson first visited Respondent's office, in his capacity as Respondent's monitoring physician, in February of 1993. At the outset of the visit, Dr. Anderson asked for, and was given, a list of all the patients that Respondent had seen in the last two months. From the list, he randomly selected the names of 71 patients (which was one half the number of patients on the list). He then obtained from Respondent, and thereafter reviewed, the records Respondent maintained on these 71 patients. Dahna Schaublin, a Department investigator, was assigned to serve as Respondent's probation monitor. On or about February 10, 1993, she prepared and transmitted to her supervisor, Crystal Griffin, an investigative report concerning Respondent's compliance with the terms and conditions of his probation. In her report, Schaublin stated the following: A Final Order was filed on 8/24/92 regarding John Jackson, M.D. for prescribing Dilaudid to patients in 1989, violating FS. 458.331 (1)(q)(v). The Probation term is 08/24/92 to 08/23/95. Dr. Jackson was contacted and presented to the Miami BIS on 01/27/93 for an interview. He brought copies of prescript- ions for controlled drugs prescribed in Dec/ 1992-Jan/1993. Dr. Jackson did not have copies of other prescriptions with him stating he mailed one copy to the Board of Medicine and one copy to his physician monitor. Dr. Anderson, a family practitioner, is supervis- ing physician. Dr. Anderson has only been to Dr. Jackson's office on one occasion (the Order states he should review 50 percent of patient records on a random basis, and shall go to Dr. Jackson's office once every other month). Dr. Jackson decided to xerox each daily chart for each patient seen in the office and then mail Dr. Anderson a copy of the treatment chart (for that one occasion). Dr. Jackson stated that the reason he is not following the Order to the letter is because it was difficult for Dr. Anderson to review 50 percent of his patient records in person every month. We told Dr. Jackson this practice was contrary to the Final Order and we suggested he inform the Probation Committee. Dr. Jackson has not paid his $5000 yet, stating that he has 5 years to do so. Dr. Jackson has gone before the Probation Committee two times. Griffin inadvertently failed to forward Schaublin's investigative report to the Probation Committee. Accordingly, the Probation Committee took no action in response to the allegations made in the report. Respondent did not provide Schaublin with copies of prescriptions he wrote in February and March of 1993, "within 30 days," as required by paragraph 3k(2) of the Board's August 24, 1992, Final Order. It was not until April 14, 1993, that Respondent furnished Schaublin with copies of these prescriptions (which were written on numbered prescription forms). Respondent wrote prescription numbers 1041 through 1047 in April and May of 1993 (more specifically, prescription number 1041 on April 12, 1993; prescription number 1042 on April 14, 1993; prescription number 1043 on April 24, 1993; prescription number 1044 on April 26, 1993; prescription number 1045 on April 30, 1993; prescription number 1046 on May 2, 1993; and prescription number 1047 on May 12, 1993). These prescriptions were not among those that Respondent furnished copies of to Schaublin on April 14, 1993, however, none of them were written 30 days or more prior to April 14, 1993. On or about March 17, 1993, Respondent submitted his first semi-annual probation report to the Department. In the fourth paragraph of his report, Respondent asserted the following: I have complied fully with the terms of my probation. I have taken the course "Protecting your Practice" at the University of South Florida. I meet as scheduled with my monitoring physician Dr. O.D. Anderson whose letter will be Coming soon to you. We cover for each other every week taking calls on Wednesdays for Dr. Anderson and Thursdays for myself. We also alternate taking calls for each other every other weekend. We discuss patient care, as per the order, for all scheduled prescriptions written. In his report, Respondent did not indicate that there were "any problems" concerning Dr. Anderson's compliance with the provisions of the Board's August 24, 1992, Final Order which prescribed the responsibilities of Respondent's monitoring physician. Dr. Anderson submitted to the Department his first semi-annual report concerning Respondent's probation on or about June 13, 1993. In the third, fourth and fifth paragraphs of his report, Dr. Anderson asserted the following: In my opinion, Dr. Jackson has been very sensitive to the Administrative Complaint and Order of the Department of Professional Regulation. This has been demonstrated by his good attitude in my visits with him, and in his compliance with providing for me duplicate copies of his Numbered Schedule II-V prescriptions. Dr. Jackson and his office personnel have been very responsive in allowing my random selection of charts for review on my visits to his office. With his wife's support, Dr. Jackson has complied well with the requirements of his probation. Although he indicated otherwise in his report, Dr. Anderson had made only one visit to Respondent's office in his capacity as Respondent's monitoring physician. It was not until September of 1993, that he next visited Respondent's office in his capacity as Respondent's monitoring physician. In conducting his review during this visit, he followed essentially the same procedure that he had followed during his February visit. In September of 1993, Respondent filed with the Board a Petition for Early Termination of Probation on the grounds of "1) hardship due to changed circumstances; and 2) fulfillment of purposes of penalty." In his petition, Respondent asserted that he had "fully complied with the requirements of probation with the exception of the fine." He did not mention that he had failed to provide Schaublin with copies of the prescriptions he wrote in February and March of 1993, "within 30 days," as required by paragraph 3k(2) of the Board's August 24, 1992, Final Order or that Dr. Anderson had failed to make the number of office visits required by paragraph 3f(3) of the Final Order. Dr. Anderson wrote a letter, dated October 21, 1993, in support of Respondent's petition. The letter read as follows: This is an interim report following the first semi-annual report dated May 19, 1993, which I submitted. I was appointed monitoring physician for Dr. Jackson at the Miami November 18, 1992, meeting of the Probation Committee of the Department of Professional Regulation. Again I have reviewed the Administrative Complaint dated January 24, 1991, and also the Notice of Right to Judicial Review, and Certificate of Service signed August 24, 1992, which were received by Dr. Jackson. He is on probation for the inappropriate prescribing of Dilaudid to eleven patients in 1989. Dr. Jackson continues his good care of his private patients, and the Insurance PPO and HMO patients here in Hialeah, Florida. In my opinion Dr. Jackson has been very sensitive to the Administrative Complaint and Order of the Department of Professional Regulation. This has been demonstrated by his continuing compliance with providing for me the duplicate copies of his Numbered Schedule II-V prescriptions. Dr. Jackson continues to be very responsive in allowing my random selection of charts for review on my visits to his office. Dr. Jackson continues to be very aware of which medications fall into Schedule II-V. We both have copies of the Drug Abuse Prevent- ion and Control Schedule II-V list. This letter is written to support Dr. Jackson's release from probation. In my opinion he is worthy of release as demonstrated by his continuing compliance. The Board considered Respondent's petition at its October 1-3, 1993, meeting. Both Respondent and Dr. Anderson addressed the Board during this meeting. Dr. Anderson told the Board that, in his opinion, Respondent had "corrected all his past difficulties very effectively." By letter dated October 6, 1993, from Crystal Griffin, Respondent was informed of the Board's action. The letter read as follows: This is to inform you that the Florida Board of Medicine, in a meeting held October 1-3, 1993, . . voted to: Terminate your probation; however, you will be required to pay your administrative fine by August, 1995 and complete 300 hours of community service per year for a period of 2 years. Furthermore, you are required to submit a plan for your community service. You should receive an Order shortly. If you have any questions regarding this matter, please feel free to contact the Board office at (904) 488-0595. Sometime after the Board's October 1-3, 1993, meeting, but before the Board had issued the written order promised in Griffin's October 6, 1993, letter to Respondent, Schaublin first learned about Respondent's petition and the Board's action thereon. Thereafter, on December 7, 1993, she filed an investigative report concerning Respondent's compliance with the terms and conditions of his probation from the time of her last investigative report. In her December 7, 1993, report, she stated the following: Monitoring of the Subject's Probation is impeded because Dr. Jackson's failed to comply with terms of the Probation Order. The Final Order states: "k. Respondent may prescribe Schedule II-V controlled substances with the restrictions set forth below: (2) Respondent shall provide one copy of each prescription for said controlled substances to the Department's investigator within 30 days." Dr. Jackson: Did not provide copies of controlled substances prescriptions for February/March until April 14, 1993. There are 6 missing prescription forms from numbers 1041 to 1047. Dr. Jackson has failed to provide prescriptions for October/November 1993. This investigator met with Dr. Jackson at the Miami BIS on January 27, 1993 and requested copies of prescriptions be sent to this office within the 30 day time frame as mandated in the Final Order. A U.C.F. was issued by this Investigator on 12/7/93. This Investigator spoke with Constance Campbell on December 06, 1993 regarding Dr. Jackson's lack of compliance with the terms of the Final Order. We reported on 2/10/93 that Dr. Jackson's monitoring physician was not visiting his office "every other month" and making "random selection of the record[s]" as outlined in the Final Order f.(3). We are attaching copies of prescriptions for Controlled drugs for the months February 1993 through September 1993. On May 24, 1994, the Board issued a written order terminating Respondent's probation. The order provided as follows: THIS CAUSE came on before the Board of Medicine (Board) on October 3, 1993, in Miami, Florida for the purpose of considering Respondent's request to terminate the probation imposed by the Board's Final Order filed August 2 [sic], 1992. Upon review of the request, the testimony and evidence offered in support thereof, the recommendation of the Board's Probation Committee, and being otherwise fully advised in the premises, IT IS HEREBY ORDERED AND ADJUDGED that Respondent's probation shall be terminated. However, Respondent is still required to pay the administrative fine of $5,000.00 imposed by the previous Final Order and said fine must be paid by August 2, 1995. Furthermore, Respondent is required to complete 300 hours per year of community service in an area where medical services are needed during each of the next two years. This Order shall take effect upon filing with the Clerk of the Department of Professional Regulation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Medicine enter a final order finding Respondent guilty of the violations of subsection (1)(x) of Section 458.331, Florida Statutes, alleged in the Amended Administrative Complaint, with the exception of the alleged violation relating to the submission of copies of prescription numbers 1041-1047, and disciplining him for having committed these violations by fining him $2,500.00, suspending his license for a period of 30 days and placing him on probation for a period of two years (subject to those terms and conditions the Board deems appropriate) beginning immediately after the end of the suspension. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of December, 1995. STUART M. LERNER 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 26th day of December, 1995.
The Issue Whether the Petitioner's application for licensure as a real estate salesperson should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Florida Real Estate Commission operates within the Department of Business and Professional Regulation and is the entity responsible for certifying to the Department that an applicant for licensure under Chapter 475 is qualified to practice as a real estate broker or salesperson. Sections 475.02 and .181, Florida Statutes. On or about January 24, 1997, Mr. Dempsey submitted to the Commission an application for licensure as a real estate salesperson. Mr. Dempsey answered "yes" to Question No. 9 on the application, which asks in pertinent part: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" He attached the details to his application. Mr. Dempsey answered "yes" to Question No. 10(a) on the application, which asks in pertinent part: "Has any judgment or decree of a court been entered against you in this or any other state, . . . in which you were charged . . . with any fraudulent or dishonest dealing?" Mr. Dempsey attached the details of a 1988 conviction for mail fraud to his application. On December 12, 1983, the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, revoked Mr. Dempsey's probation and sentenced him to two years imprisonment based on his plea of guilty to three counts each of uttering a forged instrument and of second degree grand theft, one count of forgery, and one count of failure to redeliver a hired motor vehicle. On July 9, 1986, the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, sentenced Mr. Dempsey to three and one-half years imprisonment based on his plea of guilty to one count of robbery, one count of aggravated battery, one count of possession of cocaine, two counts of forgery, two counts of uttering a forged instrument, and two counts of second degree grand theft. On or about May 31, 1989, Judge Roettger of the United States District Court for the Southern District of Florida sentenced Mr. Dempsey to three years confinement based on a guilty plea to one count of mail fraud. The court withheld imposing a sentence of confinement on Mr. Dempsey for another count of the indictment, and sentenced him to five years probation, to run concurrently with the sentence of confinement. On December 21, 1990, Judge Moreno of the United States District Court for the Southern District of Florida sentenced Mr. Dempsey to fifteen months' imprisonment based on his plea of guilty to one count of escape. The sentence of imprisonment was suspended, and Mr. Dempsey was placed on a three-year term of supervised release. On January 29, 1992, Mr. Dempsey appeared in the Dade County Court and pled not guilty to one count of soliciting for prostitution. He was found guilty and sentenced to attend an AIDS course and to have an AIDS test. On May 27, 1992, Judge Moreno of the United States District Court for the Southern District of Florida revoked Mr. Dempsey's supervised release and sentenced him to one-year imprisonment for violation of the terms of his supervised release. On July 9, 1995, Judge Roettger of the United States District Court for the Southern District of Florida revoked Mr. Dempsey's probation and sentenced him to imprisonment for five years for violation of the conditions of his probation. On January 14, 1997, Mr. Dempsey was paroled by the United States Parole Commission and released from the Marianna Federal Correctional Institution. His parole expires May 14, 2000. Since January 23, 1997, Mr. Dempsey has been employed by Westgate Resorts, a timeshare resort in Miami, Florida. In July 1997, he was promoted to manager. Since he was found guilty in 1988 of mail fraud, Mr. Dempsey's only criminal conviction was for the misdemeanor of soliciting for prostitution. His other offenses were violations of the terms of his supervised release on the charge of escape and of his probation on the charge of mail fraud. The evidence presented in this case is not sufficient to establish that Mr. Dempsey, at this time, is of good character and trustworthiness and has a reputation for fair dealing. The uncontroverted evidence establishes that Mr. Dempsey has been convicted of crimes involving forgery, grand theft, and mail fraud.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying the application of Lloyd Robert Dempsey for licensure as a real estate salesperson. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: Lloyd Robert Dempsey, pro se 5577 La Gorce Drive Miami Beach, Florida 33140-2137 Andrea D. Perkins Assistant Attorney General Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
