Findings Of Fact Respondent is comprised of 12 physicians and three members of the public. Respondent carries out the provisions of Chapter 458, Florida Statutes (the "Medical Practice Act"). Respondent's primary purpose is to ensure that physicians who practice medicine in the state meet the minimum requirements for safe practice and to prohibit the practice of medicine by those who are incompetent or unsafe. Respondent is not an employer for the purposes of this proceeding. Respondent does not employ anyone, does not serve as an employment agency or job training service, and is not a labor organization or trade association. Petitioner is a Cuban born, foreign trained individual who is seeking licensure by endorsement. Respondent graduated from the University of Camaguey, a Cuban medical school. Background When Petitioner initially applied for licensure on October 26, 1983, the University of Camaguey was not listed in the World Health Organization World Directory Of Medical Schools. The University of Camaguey was listed in a subsequent edition published after Petitioner was denied licensure in 1983. Petitioner, received a valid certificate from the Educational Commission on Foreign Medical Graduates on August 16, 1984. Respondent denied Petitioner's initial application for licensure on the ground that Petitioner failed to show that he possessed a valid certificate from the Educational Commission on Foreign Medical Graduates. A formal hearing was conducted on August 29, 1984, by Hearing Officer R.T. Carpenter, in Case No. 84- 2684. The Recommended Order issued on October 3, 1984, found that Petitioner had graduated from a recognized medical school and had obtained a valid certificate. Respondent was to consider the Recommended Order at its regularly scheduled meeting on February 3, 1985. In July, 1984, Petitioner was working at a medical clinic when a patient suffered a cardiac arrest while being administered anesthesia by Petitioner. Petitioner was charged with a felony violation of practicing medicine without a license. Petitioner entered into a plea bargain agreement in the criminal case in which Petitioner withdrew his application for licensure, entered a plea of nolo contendere, and was placed on probation. Respondent permitted Petitioner to withdraw his application for licensure and took no action on the application. Respondent satisfactorily completed his criminal probation and re- applied for licensure on January 27, 1987. Respondent denied the application on June 7, 1987, on the grounds that the criminal conviction rendered Petitioner morally unfit to practice medicine, that Petitioner had not demonstrated he could practice medicine with skill and safety, and that Petitioner had not graduated from an accredited medical school. A formal hearing was conducted on January 5, 1989, by Hearing Officer Linda M. Rigot, in Case No. 88-0270. A Recommended Order was issued on March 30, 1989, finding that Petitioner had graduated from an accredited medical school, that Petitioner had been rehabilitated, and that Petitioner should be licensed to practice medicine. Before Respondent considered the Recommended Order in Case No. 88-0270, Petitioner was charged with practicing medicine without a license in the field of plastic surgery. A subsequent formal hearing was conducted by Hearing Officer Rigot on December 21, 1990. The Supplemental Recommended Order issued on March 6, 1991, found that Petitioner had knowingly practiced medicine without a license in April, 1989, and that Petitioner was not rehabilitated from his prior conviction. The Supplemental Recommended Order recommended that Respondent deny Petitioner's application for licensure. Respondent adopted the Supplemental Recommended Order in a Final Order issued on May 24, 1991, which is currently pending appeal. No Unlawful Discrimination Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's licensure application. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's licensure application was based upon Petitioner's failure to satisfy applicable statutory criteria for licensure, his commission of acts constituting violations of the Medical Practice Act, and his failure to demonstrate rehabilitation and good moral character. From 1987-1991, Respondent has certified 10,963 applicants for licensure as physicians by endorsement. Approximately 3,479, or 31.7 percent, were foreign-trained applicants.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida. DANIEL S. MANRY 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 January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021 Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted in finding 1. 2. Accepted in finding 2. 3. Accepted in finding 10 4. Rejected as conclusion of law. 5. Accepted in finding 4. 6. Accepted in finding 5. 7. Accepted in finding 7. 8. Accepted in finding 9. 9.-10. Accepted in finding 10. 11. Rejected as irrelevant and immaterial. 12. Accepted in finding 11 13. Rejected as irrelevant and immaterial. COPIES FURNISHED: Marcelino D. Mata 158 East 47th Street Hialeah, Florida 33013 Ann Cocheu Assistant Attorney General Department of Legal Affairs PL01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent was adjudicated guilty of a crime which directly relates to the practice of contracting or the ability to practice contracting, or failed to report his guilty plea to a crime in writing to the Construction Industry Licensing Board within 30 days, in violation of sections 489.129(1)(b) and 455.227(1)(t), Florida Statutes,1/ as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating the practice of contracting pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. The Board is charged with final agency action with respect to contractors pursuant to chapter 489. The practice of contracting is regulated by the State of Florida in the interest of the public health, safety, and welfare. Mr. Walk is licensed as a certified residential contractor in the State of Florida, having been issued license number CRC 1327370. He was subject to regulation by the Department at the time of the actions alleged in the Administrative Complaint. Mr. Walk's license allows him to construct, remodel, repair, or make improvements to one-family, two-family, or three- family residences. Such residential structures may reasonably be expected to have children residing in them. A state-licensed residential contractor is trusted by homeowners, allowed into their homes, and into contact with their children. On March 15, 2016, Mr. Walk pled guilty to three counts of possession, control, or intentionally viewing a sexual performance by a child in Case Number 2015CF009085AMB in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. As Mr. Walk testified at hearing, he did not know any of the people in the photographs, he did not take any of the pictures. He "clicked" on child pornography pictures and dragged them into his computer file. The crimes to which Mr. Walk pled guilty affect the public health, safety, and welfare, and directly relate to the practice of contracting or the ability to practice residential contracting. Mr. Walk testified that at the time he signed the guilty plea, he had not seen his son in six months, his attorney at the time did not explain much to him, and the details of the plea agreement were still being worked out. He testified that his main goal was to go home to be with his son. Mr. Walk testified that later, through discussions with his wife and a new attorney, he considered withdrawing his guilty plea, but ultimately he did not do so. On or about November 18, 2016, Mr. Walk was adjudicated guilty of three counts of possession, control, or intentionally viewing a sexual performance by a child in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. On or about December 19, 2016, Mr. Walk reported his guilty plea to three counts of possession, control, or intentionally viewing a sexual performance by a child to Petitioner via a Criminal Self-Reporting Document. On or about December 27, 2016, Petitioner received Mr. Walk's Criminal Self•Reporting Document. An Order of Sex Offender Probation was issued against Mr. Walk in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, on or about February 3, 2017. Mr. Walk was required to register as a sex offender. As a result of Mr. Walk's conviction, he served 18 months in state prison. He is currently serving ten years of sex offender probation and attending sex offender therapy once a week. He must wear a GPS monitor at all times, must keep a log whenever he drives a vehicle, and must pay $23,226.50 for his supervision and other financial obligations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order finding Christopher Michael Walk in violation of section 489.129(1)(b), Florida Statutes, and revoking his license as a certified residential contractor. DONE AND ENTERED this 18th day of October, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2018.
The Issue The issues in this cause concern whether disciplinary action should be taken against the Respondent's license to practice medicine, based upon alleged violations of Section 458.331(1)(b), Florida Statutes. Specifically, the disputed issue concerns whether his license to practice medicine was revoked, suspended or otherwise acted against by the licensing authority of another state.
Findings Of Fact The Respondent is and at all times material hereto, has been licensed as a physician in the State of Florida. He holds licensed number ME0028248 issued by the State of Florida, Board of Medical Examiners. Respondent is also licensed in the State of New York as a medical doctor. The Petitioner is an agency of the State of Florida charged with enforcing the medical practice standards contained in Chapter 458, Florida Statutes and related rules. Pertinent provisions of that chapter and Chapter 455, Florida statutes authorize the Petitioner to make investigations of physician's licenses in the State of Florida and, if probable cause exists to indicate that a physician has engaged in conduct proscribed by Chapter 458, to commence formal proceedings seeking disciplinary action against such physicians. The New York State Department of Education and its Board of Regents is the licensing authority for medical doctors for the State of New York, (Petitioner's Exhibit 3 is evidence.) On August 14, 1986, the Commissioner of Education of the State of New York, on behalf of the State Education Department and its Board of Regents entered an order wherein the Respondent'S license to practice medicine in the State of New York was suspended for one year. That suspension was stayed and the Respondent's license to practice medicine was placed in probationary status with the probation being subject to certain conditions. See Petitioner's Exhibit 3 in evidence. In that order, the Respondent, had been found guilty of professional misconduct by being convicted of committing crimes under the state law of New, York. Specifically, he was convicted of four counts of violations of Public Health Law 12.B(2), by being registered as a medicaid provider and leasing space for the practice of medicine at a dental office, a "shared health facility", the rental fee for which was calculated and paid as a percentage of the defendant's earnings for medical services rendered on the premises. The Respondent was also found guilty of falsely representing that he was certified by the American Board of Internal Medicine when in fact he was not so certified, and by the willful making and filing of a false report, which also constitutes unprofessional conduct within the meaning of the law of the State of New York, specifically 8NYCRR 29.1(b)(6), (1984), cited in Petitioner's Exhibit 3 in evidence.
Recommendation Accordingly, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida, Board of Medical Examiners suspending the Respondent's license for one full year or until such time as the Respondent appears before the Board of Medicine and demonstrates that he is capable of practicing medicine with care, skill and safety to patients including a demonstration that his license to practice medicine in New York is reinstated and is unrestricted, whichever time period is less. DONE AND ENTERED this 3rd day of July, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1989. COPIES FURNISHED: Jonathan King, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Vijay Sakhuja, M.D. 120 Secor Drive Port Washington, New York 11050 Vijay Sakhuja, M.D. 90-10 Sutphin Boulevard Jamaica, New York 11435 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Kenneth Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA VIJAY SAKHUJA, M.D., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. CASE NO. 89-2296 DOAH CASE NO. 88-4658 DEPARTMENT OF PROFESSIONAL REGULATION, Appellee. / Opinion filed October 10, 1990. Appeal from an Order of the Department of Professional Regulation Walter D. Forehand, of Myers & Forehand, Tallahassee, for appellant. Lisa S. Nelson, Department of Professional Regulation, for appellee. WENTWORTH, J. Appellant seeks review of an administrative order by which appellee Department of Professional Regulation, through its Board of Medicine, suspended appellant's medical license. The duration of this suspension exceeds the penalty which the hearing officer had recommended. Although we find no error with regard to appellant's other contentions, we do find that the Board did not fully and adequately delineate the basis for increasing the recommended penalty. We therefore reverse the order appealed. Appellant was licensed to practice medicine in both Florida and New York, and the current proceeding ensued after disciplinary action was taken by the licensing authority in New York for violations which had occurred in that state. The New York licensing authority acted upon appellant's conviction for violating a public health law which prohibits calculating medical office rental fees on a percentage of earnings, and upon appellant's false reporting and false representation of a medical certification. The proceeding in Florida was based upon this New York action, as appellant was charged with violating section 458.331(1)(b), Florida Statutes, which specifies that disciplinary action may be taken in this state when a license has been "acted against" by the licensing authority of another jurisdiction. After an administrative hearing on this charge the hearing officer recommended that appellant's Florida license be suspended for one year or until such time as he satisfies certain conditions including the reinstatement of his New York license. The Board of Medicine adopted the hearing officer's recommended findings, but increased the penalty so as to suspend appellant's license in Florida for one year and until such time as the various other conditions are satisfied. The order increasing the recommended penalty recites that: Rule 21M-20.001(1)(b), F.A.C., provides for discipline for action taken in another jurisdiction to be the discipline which would have been imposed if the substantive violation had occurred in Florida. Although this explanation identifies a permissible basis for the Board's action, and it does not appear that the hearing officer considered the applicability of the cited rule, the order does not specify the asserted substantive Florida violation had appellant's conduct occurred in this state. While appellant's conduct in New York, as indicated by the substantive violations in that state, might be such as would also constitute substantive violations in Florida, the Board's failure to delineate a particular substantive Florida violation does not fully satisfy the Board's obligation, as mandated by section 120.57(1)(b)10, Florida Statutes, to provide a particularize statement of the reason for increasing the recommended penalty. Appellee concedes that the Board's order is deficient, but contends that it should be afforded the opportunity to enter a more thorough and explicit order on remand. Because the order now being appealed reflects a legally permissible basis for the challenged action, on remand the Board may address the matter with greater particularity should it again decide to increase the recommended penalty. See Van Ore v. Board of Medical Examiners, 489 So.2d 883 (Fla. 5th DCA 1986); see also, Pages v. Department of Professional Regulation, 542 So.2d 456 (Fla. 3d DCA 1989). The order appealed is reversed and the cause remanded. MINER and WOLF, JJ., CONCUR.
Conclusions UPON CONSIDERATION of the Administrative Complaint attached hereto as Exhibit “A”, the transcript of the corresponding Division of Administrative Hearings (DOAH) case, the exhibits received into evidence, ‘the Proposed Recommended Order filed by the Administrative Law Judge in this matter and attached hereto as Exhibit “B’, any exceptions to the Recommended Order filed by either party, and being otherwise fully advised of the premises, it is hereby, ORDERED AND ADJUDGED: 1. The Findings of Fact, Conclusions of Law, and recommended penalty as _ detailed in the Recommended Order are hereby adopted. 2. Respondent is not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. . 3. This Final Order shall become effective on the date of filing with the Agency Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this ogee, of (Octien. 2008. W. Drago, Secretary Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, FL 32399-0750
Appeal For This Case Unless expressly waived, any party adversely affected by this Final Order may seek judicial review by filing an original Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, and a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal within 30 days of the effective date of this order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section 120.68, Florida Statutes. CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the foregoing Final Order has been provided via U.S. Mail to Respondent, Todd Boetzel and Boetzel Landscaping, Inc., c/o Gregory T. Elliott, Esquire, Elliott-Berger, P.A., 7310 Gulf Boulevard, St. Petersburg, Florida 33706, wie ny of CC 2008. SARAH WACHMAN, AGENCY CLERK By: Mush Ah Min Brandy Nichols, Deputy Clerk Copies furnished to: Reginald D. Dixon, Informal Hearing Officer Sorin Ardelean, Assistant General Counsel Division of Regulation, Bureau of Unlicensed Activity Daniel Manry, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060 Steven Petrozak, d/b/a Southern Cross Construction, 6435 92" Place #901, Pinellas Park, Florida 33782
The Issue Whether Petitioner's request that she be reissued a medical technologist license without taking an examination should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Norma Howell, seeks to have her medical technologist license reactivated after it was rendered "null" by operation of law on June 30, 1996. A Notice of Intent to Deny Application for Licensure was entered by respondent, Board of Clinical Laboratory Personnel (Board), on March 21, 1997. Because Petitioner requested that the Board grant a variance or waiver of the rule requiring her to take an examination in order to be relicensed, the Board reconsidered the matter at its April 3, 1997, meeting. On April 11, 1997, the Board entered its Notice of Intent to Deny Variance or Waiver on the ground Petitioner had not demonstrated that she would suffer a substantial hardship or that the application of the rule would affect her in a manner significantly different from other applicants for licensure. On May 9, 1997, Petitioner filed a request for a hearing in which she contended that the statute relied upon by the Board for denying her request "did not apply to her case" and that the Board "did not comply with the 90-day notification requirement of the statute which it relied upon to nullify her license." Petitioner has been practicing in the field of medical technology for some thirty years and she has practiced in Florida for at least nine years. Until this controversy arose, she held medical technologist supervisor license number JC-0026722. Prior to July 1, 1994, medical technogist licenses were subject to the regulatory authority of the former Department of Health and Rehabilitative Services (HRS). At that time, licenses were issued for two-year periods, and if not renewed, they "automatically" reverted to an inactive status. Section 483.819, Florida Statutes (1993), provided that if a license was inactive for less than one year, it could be reactivated by payment of a late renewal penalty. If the license was inactive for more than one year but less than five, it could be reactivated "upon application" to HRS and proof that the licensee had completed 15 hours of continuing education requirements for each year the license was inactive, but not more than a total of 65 hours. If a license was inactive for more than five years, it was automatically suspended, but one year prior to the date the suspension took effect, HRS was required to give written notice to the licensee. Once suspended, a license could not be reactivated unless a licensee met all "requirements for reinstatement." Among other things, HRS possessed the discretionary authority to require reexamination before reinstatement. Effective July 1, 1994, Section 483.819, Florida Statutes (1993), was repealed, and regulatory authority over medical technologist licensees was transferred from HRS to the Department of Business and Professional Regulation (DBPR). In addition, a new Section 455.271, Florida Statutes (Supp. 1994), was created to provide new requirements relative to the inactive and delinquent status of all professional licenses, including those for medical technologists. Section (5) provided that the "[f]ailure of a licensee to renew before the license expires shall cause the license to become delinquent in the license cycle following expiration." Section (6) provided that: a delinquent status licensee must affirmatively apply with a complete application, as defined by rule of the board, or the department when there is no board, for active or inactive status during the licensure cycle in which a licensee becomes delinquent. Failure by a delinquent status licensee to become active or inactive before the expiration of the current licensure cycle shall render the license null without any further action by the board or the department. (Emphasis added) The same subsection provided that once a license was rendered "null," any subsequent licensure "shall be as a result of applying for and meeting all requirements imposed on an applicant for new licensure." In other words, a licensee would have to retake the examination in order to be relicensed. As a safeguard to automatic cancellation of a delinquent license, however, new Section 455.273 (Supp. 1994), provided that "[a]t least 90 days before the end of a licensure cycle, the Department of Business and Professional Regulation shall . . . [f]orward a notice of pending cancellation of licensure to a delinquent status licensee at the licensee's last known address of record with the department." Against this statutory backdrop, Petitioner's license was due for renewal on June 30, 1994, when her latest biennial cycle ended. Because the license was not renewed, it became delinquent under the terms of Section 455.271(5). Therefore, it was incumbent on Petitioner to seek active or inactive status before the end of the next licensure cycle, or by June 30, 1996, or have her license rendered "null" by operation of law. It is noted that Petitioner was one of approximately 2,000 licensees whose license was not renewed at the end of the June 30, 1994, licensure cycle and thus became delinquent. In January 1992 Petitioner relocated from Florida to Mississippi in order to care for her elderly mother. She continued working as a medical technologist in Mississippi. When her license came up for renewal on June 30, 1994, Petitioner had no need for an active Florida license and therefore did not renew it. She assumed, however, that she could keep it in an inactive, delinquent status for up to five years under the terms of Section 483.819, Florida Statutes (1993). Petitioner acknowledges that she became aware of the new law in general terms, but not in specifics, in June 1995. This occurred when the Board her sent a Notice to Delinquent and Inactive Licensees advising that changes in the law had been made and that "the changes affected the manner in which licensees regulated under Chapter 483, F.S., clinical laboratory personnel, may reactivate a license or request to be placed on inactive status." The notice further provided that if Petitioner "would like to receive an application to reactivate (her) license or to be placed on inactive status," she should fill out a form at the bottom of the Notice and return it to the Board. There was no mention in the Notice that Petitioner's license would become "null" by operation of law if she did not take affirmative action by June 30, 1996. In response to the Notice, on June 16, 1995, Petitioner filed the Notice and form with the Board requesting that she be sent an application to place her license in an inactive status. The Board says that the Notice described in finding of fact 8 was a part of a packet of information attached to a form letter sent to all delinquent status licensees on May 27, 1995. According to a Board representative, the form letter contained an admonition to licensees that unless they reactivated their licenses by June 30, 1996, their licenses would be null and void. However, the actual contents of the letter are not of record. This is because the letter was not identified by Respondent's counsel as an exhibit in the prehearing stipulation; it was not a part of the Board's official file pertaining to Petitioner; opposing counsel had no notice that such a letter existed or would be used as evidence at hearing; and thus it was not received in evidence. Even though the form letter was sent some thirteen months before the licensure cycle ended, the Board takes the position that it constituted the statutory notice of pending cancellation required by Section 455.273(1)(b) to be sent to each delinquent status licensee "at least 90 days before the end of the licensure cycle." Board records do not establish that Petitioner received the form letter, and she denies having received any statutory notice of pending cancellation. Approximately two thousand (out of eighteen thousand) licenses under the Board's jurisdiction became delinquent because they were not renewed by June 30, 1994. While the number that were automatically cancelled on June 30, 1996, by operation of law is not of record, only four licensees, including Petitioner, have asked that their licenses be reinstated because of cancellation. Given this unusual circumstance, it is reasonable to accept Petitioner's testimony that she did not receive a notice of cancellation as required by law. This omission by the Board, while unintentional, constituted a material error in procedure which occasioned serious prejudice to Petitioner. In addition to filing the form on June 16, 1995, Petitioner also sent a letter to the Board on June 23, 1995. The letter stated, in pertinent part, as follows: Please place my Medical Technologist Supervisor's Lic # JC 0026722 on inactive status until further notice. I am presently residing in Mississippi. Enclosed is the required fee of $25.00 plus copies of Continuing Education certificates; 39 hrs. The letter provided her most current address in Mississippi, and it contained a postscript that "[i]f an additional form is necessary please advise." By letter dated June 28, 1995, the Board acknowledged receiving Petitioner's letter and check. In the letter, a Board representative advised petitioner that her "request for inactivation of licensure . . . cannot be processed" because she had sent an incorrect fee and a formal application had to be completed. The letter indicated that an application to reactivate her license was also enclosed. Apparently in response to the June 16, 1995, request for an application form, on July 14, 1995, the Board sent Petitioner another reactivation application. Because Petitioner did not want to reactivate her license, but she only wanted to place her license in an inactive status, she did not complete the application at that time. Again, however, she assumed that her license could remain inactive for up to five years after June 30, 1994, without placing it in jeopardy. Petitioner received no further advice, oral or written, from the Board until after she filed a Reactivation Application with the Board on December 19, 1996, together with a $470.00 fee and proof of 39 hours of continuing education. She did so at that time since she had been offered a job in Florida and intended to relocate to this state. On December 20, 1996, Petitioner and the Board's administrator spoke by telephone regarding Petitioner's application. Among other things, Petitioner was told that her license was null and void by operation of law since she failed to reactivate her license by June 30, 1996. On December 27, 1996, the administrator sent Petitioner a letter in which she reconfirmed this fact, but advised that the matter would be taken up by the Board. Petitioner asked that an exception be made since she lived out-of-state and had never received notice of cancellation. The Board later denied her request. Rule 59O-7.001(2), Florida Administrative Code, prescribes the examination requirements for licensure as a supervisor. The purpose of the underlying statute is to ensure minimum competency of all persons engaging in the profession. Petitioner has satisfied this purpose by having successfully practiced in the field for some thirty years and being certified in five specialties. In addition, during the period of time in which her license was delinquent, she successfully completed all necessary continuing education courses. If the request for a variance or waiver is denied, Petitioner will suffer economic hardship since she will be unable to practice her profession in Florida until she passes an examination. More specifically, she will be unable to accept a pending job offer as a medical technologist supervisor. Unusual circumstances are present here. Of the two thousand licensees in a delinquent status after June 30, 1994, only Petitioner has contended that she failed to receive the statutory notice of cancellation. To her detriment, the license was subsequently cancelled by operation of law. The literal application of the rule requiring an examination would unintentionally penalize Petitioner's good faith efforts to reactivate her license. Because it is presumed that all other licensees in a delinquent status received notice of pending cancellation, Petitioner will be treated in a manner significantly different from the way the rule affects other similarly situated persons seeking licensure. That is to say, any other persons requesting relief from the rule because of automatic cancellation on June 30, 1996, would have been on notice that unless they renewed their license by that date, they would be subject to the terms of the rule. Petitioner had no such notice. Therefore, fairness requires an exception. Petitioner has paid all filing fees and completed all continuing education courses necessary for reactivation. If her request is ultimately denied, she is entitled to a refund of her fees.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Clinical Laboratory Personnel enter a final order granting Petitioner's request for a waiver or variance from Rule 59O-7.001(2), Florida Administrative Code, and reinstating her license number JC-0026722. DONE AND ENTERED this 31st day of July, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1997. COPIES FURNISHED: Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel 1940 North Monroe Street Tallahassee, Florida 32399-2200 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michelle L. Proctor, Esquire 7637 State Road 52 Bayonet Point, Florida 34667 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050
The Issue Whether petitioner's application for licensure as a detection of deception examiner should be denied on grounds that he lacks two years' experience as an investigator or detective.
Findings Of Fact The Department concedes that the applicant meets all criteria for licensure as a detection of deception examiner except for the Section 493.566(3) requirement of "two years experience as an investigator or detective." Id. This requirement applies when, as here, an applicant has a high school diploma but has not completed at least two years at a university, college, or a junior college approved by the Department. For the past four years, the applicant has been employed as a dispatcher for the Jupiter Police Department in Jupiter, Florida. During the past two and one-half years, he has also administered polygraph tests for the Jupiter Police Department. 2 He administered these polygraph examinations after 4:90 P.M.--while off-duty and on his own time--under the supervision of a licensed examiner. His subjects were new employees of the police department, or criminal suspects presented by his department or other police departments in the area. His supervisors report that he was a skillful and competent examiner. (R-1, P-1) The applicant, however, has failed to show that as a dispatcher, or an off-duty polygraph examiner, he performed investigative activities ordinarily - performed by investigators or detectives. His experience as a polygraph (or detection of deception) examiner simply does not equate to experience as an investigator or detective.
Recommendation Based on the foregoing, it is RECOMMENDED: That the applicant's application for licensure as a detection of deception examiner be denied for failure to satisfy the criteria of Section 493.566, Florida Statutes (1981). DONE and ENTERED this 13th day of January, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 13th day of January, 1984. COPIES FURNISHED: Robert Powers 1881 1/2 Smith Drive Juno Beach, Florida 33458 Thomas G. Tomasello, Esquire Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301
The Issue The issues in the case are whether the Respondent violated Subsections 455.227(1)(h) and 489.129(1)(a), Florida Statutes (2003), as alleged in the Petitioner's Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of building contractors pursuant to Chapters 455 and 489, Florida Statutes (2004). Joshua Woodruff is a Florida Specialty Structure Contractor who holds license number SC C131149603. He owns a business called Simply Aluminum. His last known residence is in Winter Springs, Florida. On June 19, 2003, Mr. Woodruff submitted an application for the Specialty Structure Contractor license he now holds. On page 6 of the application form, question 1 under "BACKGROUND INFORMATION" asked the applicant whether he or she has ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere to a criminal charge. At the end of the question, in larger print, is the following statement: THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Mr. Woodruff checked the "Yes" box for this question. The application form directed any person answering, "Yes," to complete form 0050-1. Form 0050-1 is included as page 14 of the license application. In the space on the form with the heading, "Offense," Mr. Woodruff wrote "Sale and Delivery." In the space with the heading, "Penalty/Disposition," Mr. Woodruff wrote, "2 months county jail, 6 months @ Bridge Program." On page 13 of the license application, question number 3 under "FINANCIAL RESPONSIBILITY/BACKGROUND QUESTIONS," asks the applicant whether he or she has ever: Undertaken construction contracts or work which resulted in liens, suits or judgments being filed? (If yes, you must attach a copy of the Notice of Lien and any payment agreement, satisfaction, Release of Lien or other proof of payment.) Mr. Woodruff answered this question, "No." The Department contends that Mr. Woodruff's responses on the license application form constituted misrepresentations because Mr. Woodruff failed to disclose that he had been adjudicated guilty in Orange County for possession of drug paraphernalia, and failed to disclose that he had filed a claim of lien on a construction project. Criminal History There is no dispute with regard to Mr. Woodruff's disclosure of the felony of "sale and delivery" (of a controlled substance) that he noted in his license application. Mr. Woodruff entered a plea of guilty to this offense on January 13, 2000, but adjudication of guilt was withheld. The official records of the Ninth Judicial Circuit Court for Orange County indicate that Mr. Woodruff was adjudicated guilty on July 25, 2002, of possession of paraphernalia, a first degree misdemeanor under Subsection 893.147(1), Florida Statutes (2002). The Respondent argues that his sentence on the conviction for possession of paraphernalia (two days in jail, fines and court costs of $371, 180 days probation) was not rendered until July 23, 2004, more than a year after he submitted his license application to the Department. However, the application form clearly requested Mr. Woodruff to describe whether he had ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere to a criminal charge. With regard to Mr. Woodruff's misdemeanor, all of these events occurred approximately one year before he submitted the license application. Claim of Lien On or about June 11, 2003, Mr. Woodruff filed a Claim of Lien against Itzhak and Ayala Stark for $5,600 for work commenced in March 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: finding that Joshua Woodruff violated Subsection 455.227(1)(h), Florida Statutes (2003), by failing to disclose a misdemeanor conviction and a claim of lien on his license application, and imposing a fine against Mr. Woodruff of $4000, and suspending his license for 60 days. DONE AND ENTERED this 8th day of September, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 8th day of September, 2005. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jeffery T. Kipi, Esquire 100 West Citrus Street Altamonte Springs, Florida 32714 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
