Findings Of Fact On August 21, 1990, the Petitioner submitted an application for licensure as a real estate salesman in the state of Florida. Item 7 of the licensure application form required the applicant to answer the following question: "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?" Petitioner responded yes to that question. The application form provided that "If you answered 'YES,' please state the details including dates and outcome in full. (Use separate sheet if necessary)." The only response provided by Petitioner was "1970 found guilty shooting a firearm in a dwelling - served 28 months Avon Park and work release." In fact, Petitioner has been arrested and/or convicted on several other occasions that were not listed on his application. On October 19, 1964, the Petitioner was found guilty of breaking and entering an automobile, petit larceny, and carrying a concealed weapon in Case 64-755 in the Criminal Court of Record in and for Dade County, Florida. Petitioner was placed on probation for a period of one year in connection with that case. On August 13, 1975, the Petitioner entered a plea of guilty to a charge of unlawfully and feloniously breaking and entering a dwelling with the intent to commit a felony therein, to-wit: grand larceny. The court suspended imposition of sentence, withheld adjudication of guilt and placed the Petitioner on probation for a term of five years. This case was Case Number 75-5081 in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County. On June 18, 1976, the Petitioner entered a plea of guilty to robbery, shooting into an occupied dwelling, and unlawful possession of a firearm while engaged in a criminal offense. Petitioner was sentenced to five years in the state penitentiary. The case was Case No. 76-3328 in the Circuit of the Eleventh Judicial Circuit of Florida in and for Dade County. Apparently, this was the case the Petitioner was referring to in the disclosure set forth in his Application. However, the application lists the date of conviction as 1970 and the offense actually took place in 1976. As a result of the Petitioner's conviction in Case No. 76-3328, his probation in Case No. 75-5081 was violated and Petitioner was ordered to serve two years in the state penitentiary to run concurrently with the sentence in Case No. 76-3328. The violation of probation order was entered on June 18, 1976. In an Information dated April 26, 1982, the Petitioner was charged with disorderly conduct and two counts of resisting an officer without violence. The charges were assigned Case No. 82-61725 in the County Court for Dade County, Florida. Petitioner was found guilty of the two charges of resisting arrest without violence and was fined on June 21, 1982. On February 22, 1988, the Petitioner entered a plea of Nolo Contendere to the offense of battery on a law enforcement officer in Case No. CR-87-6784 in the Circuit Court of Orange County, Florida. On February 24, 1988, the court entered an order withholding adjudication and placing Petitioner on probation for two years. On November 29, 1988, the Petitioner entered a plea of guilty to two counts of grand theft in the third degree in Case Nos. 88-21122 and 88-21123 in the Circuit Court for the Eleventh Circuit in and for Dade County, Florida. The Petitioner was ordered to serve one day imprisonment as a result of those convictions.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a final order denying the Petitioner's application for licensure as a real estate salesman in the State of Florida. RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of May 1991. J. STEPHEN MENTON 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 1991. COPIES FURNISHED: Mr. Stephen C. Stein 2515 Northeast 208th Terrace North Miami Beach, Florida 33160 Manuel E. Oliver, Esquire Department of Legal Affairs 400 West Robinson Street Suite S107 Orlando, Florida 32801 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violation of Section 458.331(1)(c), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed physician in Florida having been issued license number ME 0004260. It is clear that Respondent was licensed to practice medicine in the State of Florida sometime prior to 1973. There are some indications in the record that Respondent has been licensed since approximately 1949. However, no conclusive evidence was presented on this point. There is no evidence of any prior disciplinary action against Respondent's medical license except for the charges in DOAH Case No. 93-2858 which was heard immediately after the hearing in this case. A Recommended Order in that case has been issued this same date. Although no conclusive evidence was presented in this case, the record in Case No. 93-2858 established that Respondent is certified by the American Board of Psychiatry and Neurology and that he also holds a Ph.D. in psychology and is a licensed psychologist. During 1989 and 1990, Respondent encountered a number of personal problems, including the loss of two brothers, the diagnosis of a sister with cancer, involvement in a number of bad business deals and significant tax problems with the IRS. From late 1989 until approximately February, 1990, Respondent treated a patient named Dale Bowlin for migraine headaches. During this period, Respondent saw Mr. Bowlin approximately thirty times in a professional capacity. Respondent knew that Dale Bowlin was an Assistant Director of the Metro-Dade Police Department. On or about August 23, 1990, Respondent called Dale Bowlin and asked Mr. Bowlin to come to his office to discuss an urgent matter. Pursuant to Respondent's request, Mr. Bowlin met with Respondent on or about August 24, 1990 at Respondent's office located at N.W. 31st Avenue and 7th Street, Miami, Florida. During that meeting, Respondent asked Mr. Bowlin to find someone to "plant" illegal narcotics on a local attorney, later identified as Arthur Spiegel, in order to have him arrested. Respondent indicated that Mr. Spiegel was married to the daughter of a social acquaintance of Respondent and stated that he had provided marriage counseling to Mr. Spiegel and his former wife. Respondent expressed a great deal of concern that Mr. Spiegel's alleged ability to manipulate the legal system during a difficult custody battle that occurred when the Spiegels dissolved their marriage. Respondent felt that Mr. Spiegel had been abusive during the marriage and was not a very good father. The evidence presented in this case established that Respondent was obsessed with finding some way to correct what he perceived to be the deferential or favored treatment that Mr. Spiegel received in the custody dispute. Respondent even hinted that Mr. Spiegel should be severely injured or killed. However, the evidence did not establish that Respondent ever seriously pursued those goals. Instead, he focused on having Mr. Spiegel "set up" and arrested. After returning to his office, Mr. Bowlin discussed Respondent's expressed desires with other members of the police department. A plan was devised to send another police officer, Kennedy Rosario, to meet with Respondent and pretend to cooperate with Respondent's requests. All of the subsequent meetings between Respondent and Detective Kennedy Rosario were recorded on audio tape and/or videotapes. Tapes of those meetings have been accepted into evidence. On or about August 27, 1990, Detective Kennedy Rosario of the Metro- Dade Police Department went to Respondent's office. During that meeting, Respondent offered Detective Rosario five thousand dollars ($5,000.00) to falsely arrest Mr. Spiegel for possession of drugs, specifically cocaine. Respondent wrote Mr. Spiegel's name and address on a page of Respondent's prescription pad and gave it to Detective Rosario. Respondent met for a second time with Detective Rosario at approximately 6:30 p.m. on August 27, 1990, at which time Respondent gave Detective Rosario additional information on Arthur Spiegel. Respondent's last meeting with Detective Rosario took place at approximately 4:00 p.m. on August 28, 1990, at which time Respondent told Detective Rosario that the drugs should be found on Mr. Spiegel and Mr. Spiegel should be arrested while Mr. Spiegel had his child with him. During that final meeting, Respondent gave Detective Rosario two thousand dollars ($2,000.00) as partial payment for setting up Mr. Spiegel to be arrested for possession of cocaine. At the conclusion of the August 28, 1990 meeting, Respondent was arrested and subsequently charged in the Eleventh Judicial Circuit in and for Dade County with two felony counts of bribery of a public official: one count was for allegedly offering money to Dale Bowlin to falsely arrest Arthur Spiegel, the second count was for allegedly offering money to Kennedy Rosario to falsely arrest Arthur Spiegel. Respondent's arrest and the subsequent criminal proceedings received a great deal of media coverage and notoriety. A jury trial was conducted on the criminal charges following which Respondent was acquitted of the first bribery count involving Dale Bowlin, and found guilty of the second bribery count involving Detective Rosario. The jury did not find that Respondent was insane at the time of the alleged offense. The conviction on the second count was subsequently reversed by an appellate court because the trial judge had incorrectly failed to dismiss a juror for cause. The Dade County State Attorney's Office sought to retry Respondent on the second bribery count. Respondent claimed that any such retrial was precluded because, among other things, it would constitute double jeopardy. Ultimately, the prosecutor's office and Respondent's counsel agreed to a plea bargain pursuant to which the felony bribery count was nolle prossed and Respondent agreed to pled nolo contendere to a misdemeanor charge of solicitation which was set forth in an Amended Information. Respondent claims that he only agreed to the plea bargain because the felony charges were dropped and he did not want to subject himself or his family to another trial. In respect to Respondent's motivation for entering the plea, the evidence presented in this case, including the audio and video tapes, conclusively established the facts set forth herein. Respondent formally entered the plea on or about February 23, 1993 in Case No. 90-34903-05 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County. Specifically, Respondent pled nolo contendere to one count of violating Section 777.04(4)(d), Florida Statutes, for requesting Kennedy Rosario to "falsify an official record or official document of the Metro-Dade Police Department with corrupt intent to ... cause unlawful harm to another". Section 777.04(4)(d), Florida Statutes, provides as follows: Whoever commits the offense of criminal attempt, criminal solicitation, or criminal conspiracy shall be punished as follows: * * * (d) If the offense attempted, solicited, or conspired to is a felony of the third degree, the person convicted is guilty of a misdemeanor of the first degree, punishable as provided in s.775.082 or s.775.083. The basis for the plea agreement was Respondent's alleged solicitation of Kennedy Rosario of the Metro-Dade Police Department to violate Section 839.25, Florida Statutes. Section 839.25, Florida Statutes, provides as follows: "Official misconduct" means the commission of the following act by a public servant, with corrupt intent to obtain a benefit for himself or another or to cause unlawful harm to another: (b) knowingly falsifying or causing another to falsify any official record or official document. * * * "Corrupt" means done with knowledge that act is wrongful and with proper motives. Official misconduct under this section is a felony of the third degree, punishable as provided in s. 775.082, s.775.083 or s.775.084. The "official document" referred to in the solicitation count was the arrest warrant for Arthur Spiegel. The "unlawful harm to another" described in the solicitation count referred to the harm Respondent intended to cause to Arthur Spiegel by having him falsely arrested. Respondent points out that the Court accepted the plea agreement without any inquiry and without making any specific findings as to the factual or legal basis for the plea. Respondent was not present at the time the plea agreement was accepted by the Court and Respondent did not give any oral allocution as to the factual basis for the plea. The plea agreement was presented to and accepted by the same judge who presided over Respondent's criminal jury trial. After the entry of the plea, the remaining felony count of bribery against Respondent was dismissed and Respondent was released without further conditions as he had already served over a year on house arrest. During the course of the hearing in this case, there were suggestions by the attorneys that at some point in January 1991, Petitioner initiated proceedings against Respondent to determine his sanity as a result of some of the matters that came to light in the criminal case. Respondent was apparently examined by a psychiatrist appointed by Petitioner. The results of that examination are not part of the record of this proceeding. However, it appears that Respondent has been permitted to continue practicing medicine. As a result of the jury verdict in the initial criminal proceeding, Petitioner filed an Administrative Complaint against Respondent on August 27, 1991, seeking to impose disciplinary action against Respondent on the grounds that Respondent had violated Section 458.331(1)(c), Florida Statutes. After Respondent's conviction was reversed, Petitioner issued a Closing Order on May 23, 1992, dismissing the original Administrative Complaint. This present case was initiated on July 23, 1993 when Petitioner filed a new Administrative Complaint against Respondent following the entry of the nolo contendere plea to the misdemeanor charge.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 458.331(1)(c), Florida Statutes, as alleged in the Administrative Complaint. As a penalty for the violation, Respondent's license to practice medicine should be suspended for one (1) year followed by a three- year term of probation. The suspension should be stayed if and when Respondent can demonstrate to the Board that he is currently of good moral character and emotionally stable enough to safely practice medicine. In addition, an administrative fine in the amount of two thousand dollars ($2,000) should be imposed. DONE AND RECOMMENDED this 24th day of May, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 24th day of May, 1995.
The Issue By a two-count Amended Administrative Complaint, the Department of Insurance has charged Respondent, a licensed Florida life and health insurance agent, pursuant to Count I with violations of Sections 626.611(7), 626.611(14) and 626.621(8), F.S. arising out of his plea of nolo contendere to a felony charge of grand theft, and pursuant to Count II with violating Section 626.611(7) F.S. arising out of adjudication of guilt to multiple misdemeanor charges of issuing worthless bank checks.
Findings Of Fact Respondent is currently eligible for licensure and licensed in Florida as a life insurance agent and as a health insurance agent. He has been so licensed since 1985, and except for the facts, as set out infra., no disciplinary charges have ever been filed against him. Count I of the Amended Administrative Complaint On December 6, 1989, Respondent was charged by Information in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida, in Case No. 89-4842-CF, with a felony, to wit: Grand Theft in the third degree, a violation of Section 812.014, F.S. Respondent admitted that Case No. 89-4842-CF arose out of his writing a check on First Union Bank to cover computers previously contracted for by Respondent for his insurance agency. When he wrote the check, Respondent knew that he was short of funds but expected to deposit sufficient funds to the appropriate account before his check was presented for payment. When this "kiting" episode occurred, Respondent was short of funds due to an illegal conversion of funds perpetrated by one of his employee agents. Respondent did not get the money into his account in a timely manner and did not later "make the check good" before prosecution began. In accord with the appropriate regulatory rules, Respondent reported the illegal conversion by his employee agent to the Petitioner Department of Insurance and cooperated with that agency. He also reported the offending employee agent's illegal conversion to the local State Attorney. He cooperated in a criminal prosecution and filed a civil action in his own right against the offending agent. These events further depleted his assets and in part accounted for his being unable to make his check good. On July 19, 1990, in response to the Information filed against him, Respondent entered a plea of nolo contendere to grand theft, a felony in the third degree, in Circuit Court Case No. 89-4842-CF. With adjudication of guilt withheld, Respondent was placed on probation for one year and ordered to pay restitution in the amount of $7,139.29 to First Union Bank. Pursuant to court papers and Respondent's testimony, it appears that he was first given until July 19, 1991 to complete restitution on this charge. Respondent testified without refutation that he had received an extension from the circuit court until July of 1993 in which to make this restitution. That date had not yet been reached as of the date of formal hearing. With regard to his nolo contendere plea to a third degree felony, adjudication withheld, Respondent's unrefuted testimony is that he was represented by an attorney, Johnny Smiley, until Mr. Smiley was suspended from practicing law by the Florida Bar and that Mr. Smiley failed several times to appear on his behalf in court, did not advise him of any alternative misdemeanor pleas, and never properly advised him of all the potential consequences of pleading nolo contedere to a felony charge of grand theft, including that if that offense is construed as an offense involving moral turpitude, then Section 626.611(14), F.S. may be read to mandate revocation or suspension of his professional insurance licenses. It may be inferred from Respondent's testimony that Respondent, the prosecutor, and the circuit court judge assumed that Respondent would be able to continue selling insurance and thereby would be able to meet the restitution requirements of his plea bargain and probation. At formal hearing on January 3, 1992, Respondent represented that he had made some restitution and hoped to complete restitution under the foregoing circuit court order by January 31, 1992. Respondent further represented that a circuit judge had indicated that once Respondent made restitution on all charges (including those misdemeanor adjudications that gave rise to Count II of the instant amended administrative complaint, see infra.), the court would entertain a motion to set aside his grand theft plea. What the circuit judge may or may not have indicated is not admissible for proof of the matters asserted, but it is admissible to show Respondent's reliance thereon and his motivation beyond the obvious motivations for making restitution as soon as possible. By stipulation of the parties, the record in this instant disciplinary cause was left open for 60 days after formal hearing so that Respondent could amplify on this testimony. Pursuant to Fla. Rule of Criminal Procedure 3.850, and Art. I Section 16 of the Florida Constitution, Respondent has filed a Motion for Post- Conviction Relief in Circuit Court Case No. 89-4842-CF. However, a copy of this motion was not filed as an exhibit with the Division of Administrative Hearings until the day before the record herein closed by Order of March 5, 1992. Because the record was closed, the outcome, if any, of that circuit court motion/exhibit is not before the undersigned. Also, Respondent's motion/exhibit alone is not sufficient evidence for the undersigned to infer that Respondent has paid all required restitution amounts as of the date of this recommended order. Count II of the Amended Administrative Complaint From September 7, 1990 through July 30, 1991, the Respondent was charged by several Informations in the Circuit Court of the Eighth Judicial Court, in and for Alachua County, Florida, in Case Nos. 90-3267-CF-A, 90-3310- CF-A, 90-3881-CF-A, 91-2236-CF-A, 91-2237-CF-A, 91-2238-CF-A, 91-2712-CF-A, and 91-2713-CF-A, with one count per case of a third degree felony, to wit: Issuing a Worthless Check, a violation of Section 832.05(4), F.S. According to Respondent's unrefuted testimony, the negative balance situation arising from his earlier felony plea bargain, the need to make restitution in that case, and his attorney fees and costs associated with suing the agent who had taken money from Respondent's agency and one of Respondent's insurance carriers had caused an additional shortage of personal funds at a time Respondent was desperately fighting to save his marriage and keep his family, consisting of a wife and two small daughters, together. He admitted that he had issued seventeen worthless bank checks during this stressful period for personal expenses, primarily for telephone charges, groceries, and furniture. Nonetheless, Respondent's marriage failed and the couple is now divorced. By a plea bargain executed July 30, 1991, Respondent agreed to enter a nolo contendere plea to four first degree misdemeanor charges of issuing worthless bank checks and agreed to make restitution totalling $6,492.88 on thirteen others. The restitution agreement covering 17 checks included restitution for nine worthless checks for which the State had agreed to allow deferred prosecution. Five check charges were to be dismissed. What happened next is not entirely clear because, despite an order of the circuit court accepting the plea bargain, the case numbers in the plea bargain and on the subsequent judgments do not match, and it appears that on July 30, 1991, Respondent plead nolo contendere and was adjudicated guilty of eight first degree misdemeanor charges, ordered to serve six months probation on each, the probations to run concurrently, and was further ordered to make restitution pursuant to the plea/restitution agreement. Pursuant to court papers and Respondent's testimony, it appears that he was also given six months, or until approximately January 31, 1992, to make restitution on these cases. That date had not yet been reached as of the date of formal hearing. Respondent remained on probation as of the date of formal hearing. Respondent testified at formal hearing that he hoped to make full restitution on these cases by January 31, 1992, and that unless he also made full restitution on the grand theft case, he could not file a motion to vacate his plea therein. (See, Finding of Fact 7, supra.) Respondent did not file any evidence of restitution in these misdemeanor cases, although he was given until March 5, 1992 to do so. The filing as an exhibit herein of his Motion for Post- Conviction Relief in the circuit court felony case covered in Count I of the instant amended administrative complaint is not sufficient for the undersigned to infer that Respondent has made full restitution on these misdemeanor charges covered in Count II of the instant amended administrative complaint. (See, Finding of Fact 8, supra.) Respondent presented the testimony of Reverend L.D.J. Berry, pastor of a Baptist Church in St. Thomas, Florida, to the effect that the minister has bought insurance from Respondent and has always found him to be helpful and honest in insurance matters. Although Reverend Berry has counselled with Respondent, Respondent is not a member of Reverend Berry's parish. Reverend Berry has never been a recipient of one of Respondent's bad checks. Reverend Berry considered the Respondent to be of good character, even knowing of his bad check history.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order that: Finds Respondent guilty of violating Sections 626.611(14) F.S. and 626.621(8) F.S. and not guilty of violating Section 626.611(7), F.S. as alleged in Count I of the Amended Administrative Complaint; Finds Respondent not guilty of violating Section 626.611(7) F.S. as alleged in Count II of the Amended Administrative Complaint; and Suspends Respondent's licensure and eligibility for licensure as a life and health insurance agent for six months and provides for a probationary period subsequent to reinstatement of his licenses to run concurrently with any criminal probations left for him to serve, up to the maximum of two years provided by Section 626.691 F.S., during which period of license probation, Respondent's insurance business shall be monitored by the Department of Insurance upon such terms as the Department shall determine to be appropriate. RECOMMENDED this 29th day of April, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3109 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted substantially; modified to eliminate subordinate, unnecessary, and cumulative findings: 1, 2, 3, 4, 5, 7, 13, and 15. Rejected because as stated, it is a mischracterization of the weight of the evidence, but sunstantially covered within the recommended order: 6, 8, 14, 16. Accepted as modified. What has been rejected has been rejected so that the recommended order conforms the greater weight of the credible record evidence as a whole: 9, 10, 11, 12, 17. Respondent's PFOF: Accepted substantially, but modified to eliminate subordinate unnecessary, and cumulative findings or otherwise C, D, E, F. Accepted as modified. What has been rejected was rejected to conform the recommended order to the greater weight of the credible record as a whole: A, B. COPIES FURNISHED: Michele Guy, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 S. Scott Walker, Esquire Watson, Folds, Steadham, et al. P. O. Box 1070 Gainesville, Florida 32602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 200 E. Gaines Street 412 Larson Building Tallahassee, Florida 32399-0300
The Issue Whether Petitioner has cause to terminate the Respondent's employment as alleged in the Administrative Complaint dated October 20, 1998.
Findings Of Fact On August 14, 1998, Respondent, a teacher employed by Petitioner, entered a plea of guilty to the charge of exploitation of an elderly person, which is a first degree felony pursuant to Section 825.103, Florida Statutes. At the same time, Respondent also entered a plea of guilty to the charge of petit theft over $100.00, which is a first degree misdemeanor. In entering these pleas, Respondent advised the court, pursuant to Rule 3.172(d), Florida Rules of Criminal Procedure, that she believed the pleas were in her best interest and that she was maintaining her innocence to the charges. The court withheld adjudication of guilt as to the charge of exploitation of an elderly person, adjudicated her guilty of petit theft, sentenced her to one day of time served, placed her on probation for 20 years, and required that she pay restitution to the Estate of Lillie Keller in the amount of $52,000.00. 1/ By letter dated October 21, 1997, Petitioner reassigned Respondent to a position with no direct contact with children pending the outcome of the criminal charges. Following an investigation, the superintendent of schools recommended to the school board that Respondent's employment be suspended without pay and terminated. On October 7, 1998, the school board voted to adopt that recommendation. The recommendation and the subsequent vote to adopt the recommendation were based on Respondent's plea of guilty to the charge of exploitation of an elderly person. Petitioner followed its procedural rules in investigating this matter and in voting to terminate Respondent's employment. As of October 7, 1998, Respondent held a professional services contract and had been employed by Petitioner for approximately 13 years as a teacher. Section 231.02(1), Florida Statutes, requires school board employees to be of good moral character. Respondent, as a teacher, is required by Section 231.02(2), Florida Statutes, to be fingerprinted and screened by the Florida Department of Law Enforcement. Section 435.03(2), Florida Statutes, provides, in pertinent part, as follows: (2) Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (v) Section 825.103, relating to exploitation of an elderly person or disabled adult, if the offense was a felony. Petitioner's Rule 3.12, pertaining to criminal background checks of current and prospective employees, has been duly enacted and provides, in pertinent part, as follows: Definitions: For the purposes of this policy: * * * b. "Conviction" means a determination of guilt that is the result of a plea or a trial regardless of whether adjudication is withheld. * * * 3. A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes. Section M of the collective bargaining agreement between the Petitioner and the Palm Beach County Classroom Teachers' Association provides for progressive discipline of covered employees such as Respondent. Section M provides, in pertinent part, as follows: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. * * * 7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With a Written Notation. . . . Written Reprimand. . . . Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with the provisions of this Section, including just cause and applicable law. ... Dismissal. An employee may be dismissed (employment contract terminated or non-renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable law. Section 435.06(2), Florida Statutes, requires an employing agency, such as the Petitioner, to take the following action when an employee has failed to meet the requirements of Section 435.03(2), Florida Statutes: The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that terminates Respondent's employment based on the findings of fact and conclusions of law contained herein. DONE AND ENTERED this 20th day of August, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 20th day of August, 1999.
Findings Of Fact Respondent was certified by Petitioner as a law enforcement officer on June 4, 1985, and was issued certificate number 32-85-502-02. The certificate has remained current through the present. Respondent served as a correctional officer for the Highlands County Sheriff's Office for about seven years, until he resigned shortly after the incident described below. At the time of this resignation, he was a corporal. Throughout his employment with the Highlands County Sheriffs Office, Respondent has been a model correctional officer. Unlike some correctional officers at the County jail, Respondent is not overbearing with the inmates, but frequently finds the time to try to help them with their problems. He does not swear publicly or privately. He is 5' 9" and weighs 185 pounds. In late December, 1991, a large number of inmates were housed in the Highlands County jail. The juvenile cellblock in particular was at capacity, and there was no place to isolate individual juvenile inmates from other juvenile inmates. At the time, the juvenile cellblock contained four juveniles: E. M., O. M., C. S., and C. L. Except for C. S., the juveniles are all between 5' 7" and 5' 9" and 140-150 pounds. C.S. stands 6' 2" and weighs about 200 pounds. Except for C. L., the juveniles had been causing trouble in the cellblock. They had flooded the cellblock, destroyed a television, and engaged in other disruptive behavior. E. M. and O. M. had also been threatening to rape and batter C. L., who is intellectually challenged and physically vulnerable to the other juveniles. After receiving reports of the threats, Respondent ordered that E. M., O. M., and C. S. be brought downstairs from their cellblock to the booking office where Respondent worked. A correctional officer brought the juveniles to Respondent and lined them up near a wall. Respondent questioned the juveniles in the hallway in the booking office. This is a crowded, busy area. He questioned them in the presence of the correctional officer who had brought the juveniles down and within a few feet of several other correctional officers and other employees of the Highlands County Sheriffs Office. Respondent was unaware that C. S. had played no role in threatening C. L. Respondent's questioning of C. S. was uneventful. In questioning O. M. and E. M., however, Respondent was unable to communicate to them the importance of good behavior in the cellblock. Reasonably fearing that the juveniles might carry out their threats to injure C. L., Respondent became more insistent that they behave themselves. Instead of indicating a willingness to obey Respondent's orders not to harm the other juvenile, O. M. and E. M. defiantly leaned into Respondent's face, clearly conveying their rejection of his demand for their cooperation. When O. M. tried to walk by Respondent, Respondent, who is right-handed, lightly tapped O. M. in the side of his head so as to cause him to remain where Respondent could address him. There is insubstantial evidence that Respondent also touched E. M. However, even if he did touch E. M. to get his attention, Respondent did so in an even lighter fashion than he touched O. M. Without further physical contact, Respondent, now in a louder tone, emphasized that he wanted the juveniles to behave and demanded that they not bother C. L. again. Neither O. M. nor E. M. was in any way injured by any physical contact with Respondent. Any physical contact on Respondent's part never threatened physical or emotional harm to O. M. or E. M. Sometime after the above-described incident, following an investigation, the Highlands County Sheriffs Office allowed Respondent to resign rather than face termination. Respondent resigned rather than contest the matter.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint. ENTERED on November 22, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on November 22, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3381 Treatment Accorded Proposed Findings of Petitioner 1-6: adopted or adopted in substance. 7: rejected as unsupported by the appropriate weight of the evidence. 8: rejected as irrelevant. The relevant behavior of the juveniles is described in the order. 9: adopted or adopted in substance. 10: rejected as irrelevant. 11: rejected as irrelevant and subordinate. The only apology from Respondent pertained to his becoming agitated orally--not physically. 12: rejected as irrelevant. COPIES FURNISHED: A. Leon Lowry, II Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage Acting General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Dawn P. Whitehurst, Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Attorney Linda Rodriguez-Torrent 3750 US 27 North, Suite 12 Sebring, Florida 33870
The Issue The issue is whether Respondent’s license as a public adjuster, all lines, should be revoked.
Findings Of Fact Respondent is licensed by the Department as a public adjuster, all lines. His license number is A015739. On September 1, 2004, Respondent pled nolo contendere to three counts of “lewd or lascivious molestation” in the Circuit Court of the Twentieth Judicial Circuit in and for Collier County, Florida. Each count was a second degree felony pursuant to Section 800.04(5)(c)2., Florida Statutes (2004).2 On that same date, Respondent was adjudicated guilty of all three counts and was sentenced to 15 years in prison to be “mitigated” to 364 days in jail upon his timely surrender into custody on November 1, 2004. The transcript of the court hearing at which Respondent’s plea was accepted, Exhibit R14, includes an extensive colloquy between Respondent and the judge, the prosecutor, and his defense attorney. The colloquy reflects that Respondent was fully apprised of the plea negotiations between his attorney and the prosecutor; that he was advised of the consequences of the court's accepting his plea and adjudicating him guilty, including the likelihood that he would lose his professional license as a result of his convictions; and that he was advised of his right to reject the plea offered by the prosecutor and go to trial. The circumstances underlying Respondent’s criminal offenses are described in an Affidavit for Criminal Offense dated December 19, 2003, and in a Prosecution Report prepared sometime thereafter. Those documents, which were offered into evidence by Respondent at the final hearing in this case, reflect that Respondent admitted to going into his then 14-year- old step-daughter’s bedroom a number of times over a period of two years to view her genitalia by lifting her pajamas and moving aside her panties while she slept. In August 2005, the Department commenced an investigation of Respondent after it learned of his criminal convictions. The investigation was conducted by Nelson Herold. Mr. Herold compiled records related to Respondent’s public adjuster business as well as documents from the Collier County Clerk’s office related to Respondent’s criminal convictions. Mr. Herold met with Respondent while he was in jail and advised him of the Department’s investigation and its intent to revoke his public adjuster’s license based upon his felony convictions. Respondent was given an opportunity to provide a response as part of Mr. Herold’s investigation, but there is no evidence that he did so. On October 10, 2005, the Department issued a Notice of Revocation, which informed Respondent that his public adjuster’s license was revoked based upon his felony convictions. The Notice advised Respondent of his right to request an administrative hearing, and Respondent timely did so. Respondent was not present at the final hearing. Respondent's counsel waived Respondent's presence at the final hearing and elected to proceed without him.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services issue a final order affirming the Notice of Revocation and revoking Respondent’s license as a public adjuster, all lines. DONE AND ENTERED this 10th day of May, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2006.
The Issue An administrative complaint dated October 23, 1997, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, when he falsely indicated on his licensure application that he had never been convicted of a crime nor pled guilty or nolo contendere. The issue for disposition in this proceeding is whether the violation occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Ibrahim Z. Gonzalez, is, and has been at all relevant times, a licensed Florida real estate broker-salesperson, having been issued license no. 3003291 in accordance with Chapter 475, Florida Statutes. On February 17, 1984, in San Diego, California, Respondent pled guilty to one count of sexual battery- a felony, and was jailed, fined, and placed on probation. Respondent's court-appointed attorney told him the conviction would only affect him if he sought employment with the federal government or law enforcement. On August 3, 1989, after a plea of guilty, Respondent was convicted in the U. S. District Court for the Southern District of New York of making false statements on a government application. Specifically, in 1985, Respondent withheld disclosure of the 1984 California conviction described above when he applied for employment with the U. S. Postal Service. For the federal conviction, he was placed on probation and fined $1,000. By 1989, Respondent had obtained a real estate license in New York. His court-appointed lawyer advised him to "stick to real estate" because, as the California lawyer told him, he would never be able to work for the federal government or in law enforcement. In May 1995, Respondent applied for licensure as a real estate broker in Florida. On the application form he answered "no" to this question: 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? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "YES", attach the details including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. The affidavit that Respondent executed at the end of the application form states: The above named, and undersigned, applicant for licensure as real estate broker under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that s(he) is the person so applying, that s(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that s(he) knows of no reason why this application should be denied; and s(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. Respondent contends that he did not disclose his prior convictions when he applied to practice real estate in New York and Pennsylvania and he remains licensed in those states. He claims that because real estate has nothing to do with law enforcement or federal employment, he did not have to reveal the convictions on his application. Respondent has practiced his real estate profession in Florida for 3 years without any disciplinary incidents.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter its final order finding Ibrahim Z. Gonzalez guilty of violating Section 475.25(1)(m), Florida Statutes, and revoking his Florida real estate brokers' license. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 9th day of July, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Legal Section, Suite N 308 Zora Neale Hurston Building North Tower 400 West Robinson Street Orlando, Florida 32801-1771 Francisco Colon, Jr. 341 North Maitland Avenue Suite 360 Maitland, Florida 32751 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Petitioner's application for licensure as a real estate sales associate should be granted.
Findings Of Fact Petitioner Martha L. Socarras is a Hispanic female born in 1970. In March 2006 Petitioner filed with the Department of Business and Professional Regulation, Division of Real Estate, an application for licensure as a real estate sales associate. On that application, she answered in the affirmative question numbered 1 in the Background Information portion of the application. That question asked if she had ever been convicted of a crime, found guilty, or entered a plea of guilty. In support of her application she submitted a certified copy of the Judgment in a Criminal Case entered by the United States District Court for the Southern District of Florida on December 8, 1999. That Judgment recites that Petitioner pled guilty to one count of conspiracy to file false claims against Health and Human Services, mail fraud, and paying kickbacks. Counts 2 through 27 were dismissed by the prosecution. Petitioner was sentenced to two years in prison followed by three years of supervised probation. The Judgment also recites that the actual monetary loss was $700,000 and assessed the total amount of restitution to be paid by Petitioner as $1,114,676.04. The Judgment then provides that the amount of restitution was reduced to partial restitution in the amount of $500,000 due to Petitioner's inability to pay the full amount. The Judgment further provides that restitution to the Palmetto Government Benefits Administration was to be paid through the federal court. Petitioner was released from the Federal Correctional Institution in Danbury, Connecticut, on January 4, 2002, but was detained by the United States Immigration & Naturalization Service. At the time of her release, she still owed $499,500 in restitution. In March 2002 an Immigration Judge granted Petitioner permanent resident status at the conclusion of the immigration removal proceeding. On January 3, 2005, Petitioner completed her probation and was discharged from supervision. Petitioner filed her application for licensure only a year later. Petitioner also provided to the Department of Business and Professional Regulation an unexecuted consent agreement between herself and the federal government providing that she would pay the $500,000 in restitution at the rate of $200 per month commencing February 1, 2005. Petitioner attributes her criminal conduct to ignorance of the Medicare laws. She was employed for three years by her brother's medical equipment business. Although Medicare performed several audits of that business during Petitioner's employment there, the last audit revealed that Petitioner and her brother were paying "commissions" to persons for referring patients to her brother's business. Petitioner asserts that she did not know that what they were doing was illegal. At the final hearing Petitioner testified that she had offered to the federal government property she owns which is sufficient in value to pay the required restitution but did not know if the federal government would accept her offer. The several letters of recommendation which Petitioner submitted to the Department are from persons who have known her as long as 18 years. None appear to know about her criminal conviction or to have noticed that she was missing for two years. One alleges the author has known Petitioner for five years, which must mean she met Petitioner while Petitioner was in prison. Similarly, the persons who testified on her behalf at the final hearing did not appear to know that she had a conviction or that she was in prison for two years. One witness testified she has known Petitioner for ten years and that she saw Petitioner three or four times a week. Another witness testified both that he has had no business dealings with Petitioner and that he transacts business with her. As evidence of rehabilitation, Petitioner offered evidence that she is a very religious person and active in ministry. However, that aspect of her life appears to have pre- existed her criminal conduct, existed during her criminal conduct, and continues to exist. It, therefore, fails to prove rehabilitation. Petitioner offered no evidence concerning her employment since her release from prison. Her witnesses offered vague testimony indicating she works in the title insurance industry, but no evidence was offered as to her role therein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 13th day of November, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 13th of November, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Daniel Villazon, Esquire Daniel Villazon, P.A. 1020 Verona Street Kissimmee, Florida 34741 Michael E. Murphy, Director Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent was convicted or found guilty of a crime which directly relates to the practice of chiropractic medicine; and, if so, whether Petitioner should impose discipline on Respondent's chiropractic license within the applicable penalty guidelines or take some other action.
Findings Of Fact The Parties At all times relevant to this case, Respondent Mia Ann Higginbotham, D.C., was licensed to practice chiropractic medicine in the state of Florida. The Department has regulatory jurisdiction over licensed chiropractors such as Dr. Higginbotham. In particular, the Department is authorized to file and prosecute an administrative complaint against a chiropractic physician, as it has done in this instance, when a panel of the Board of Chiropractic Medicine has found that probable cause exists to suspect that the licensee has committed a disciplinable offense. The Material Historical Facts In April 2006, the State Attorney of the Eleventh Judicial Circuit filed an Amended Information in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, which charged Dr. Higginbotham with six counts of insurance fraud as defined in section 817.234(1), Florida Statutes (2004); four counts of grand theft in the third degree, as defined in section 812.014; 24 counts of communications fraud as defined in section 817.034(4)(b)1.; and one count of organized fraud as defined in section 817.034(4)(a)1. Dr. Higginbotham had been arrested earlier on some or all of these (or similar) criminal charges, on October 21, 2004. The record does not contain the original information. The 38-count Amended Information also charged five other defendants, namely Francisco Javier Espinosa, Evelyn Cajuste, Romer Ferguson, Deborah Eugene, and Christopher Wesley Nelson.3 Two of these individuals——Mr. Ferguson and Ms. Eugene—— testified at the final hearing in this case. Each admitted having participated in a staged (i.e. fake) automobile accident on March 18, 2004, and, afterwards, having seen Dr. Higginbotham for treatment of "injuries" purportedly sustained in the "accident." Each claimed to have received real treatment from Dr. Higginbotham and other providers in her office. (Ms. Eugene testified that her back truly hurt at the time, not as a result of the fake accident of course, but due to a previous injury.) Each disclaimed any personal knowledge that Dr. Higginbotham had been aware that the March 18, 2004, "accident" was staged to defraud insurance companies.4 To the extent and as described in this paragraph, the undersigned credits the testimony of Mr. Ferguson and the testimony of Ms. Eugene and finds these facts, as stated, to be true. By the time the criminal case finally came to trial in February 2009, Dr. Higginbotham was the last defendant remaining, the others having previously made deals with the state pursuant to which they, or some of them, had agreed to testify against Dr. Higginbotham. During the nearly four and one-half years that elapsed between Dr. Higginbotham's arrest and the trial, the state had offered her numerous deals. Dr. Higginbotham had rejected all of the proposed deals because they would have required her to plead guilty, which she refused to do. Dr. Higginbotham consistently maintained her innocence throughout the criminal proceeding and has done the same in this proceeding as well. At the outset of the criminal trial on February 3, 2009, the state offered Dr. Higginbotham a no-prison deal under which, if she agreed to plead nolo contendere to eight of the 35 charges pending against her, the state would recommend that adjudication of guilt be withheld and that she be sentenced to a term of probation. Significantly, the state did not demand that Dr. Higginbotham relinquish her chiropractic license as consideration for the deal. Dr. Higginbotham had very little time to think about whether to accept the state's offer. Her defense attorney was adamant that she accept the deal because juries are unpredictable and the proposed plea bargain would eliminate the risk of incarceration. As Dr. Higginbotham recalled the scene, in testimony the undersigned accepts as credible and persuasive, "[My attorney] was screaming at me at the top of his lungs that he felt I needed to take this deal and all he was concerned about was that . . . I wouldn't be going to jail and he said you never know what could happen." The adverse consequences of a guilty verdict would have been devastating for Dr. Higginbotham. She faced the possibility of a lengthy prison sentence if convicted——in the worst case scenario, about 160 years, the prosecutor had stated. Were she to be incarcerated for even a fraction of that period, Dr. Higginbotham's professional life would be finished and her personal life shattered. In regard to the latter, Dr. Higginbotham wanted to start a family but felt she could not do so while the criminal case was pending. She likely would lose that opportunity if she spent her childbearing years behind bars. Ultimately, Dr. Higginbotham accepted the state's offer because, as she put it, "at the time I was scared, I was nervous, I was under a lot of stress. My attorney was putting an enormous amount of pressure on me and I felt I really had no other choice." The undersigned accepts this testimony as truthful and finds that Dr. Higginbotham agreed to plead nolo contendere, not because she had a guilty conscience, but to avoid the catastrophic downside of a guilty verdict, which she needed to reckon a possibility, despite being conscious of her own innocence. Consequently, Dr. Higginbotham pleaded no contest to four counts of insurance fraud as defined in section 817.234(1), Florida Statutes (2004), and four counts of communications fraud as defined in section 817.034(4)(b)1. (the "Uncontested Charges"). The court accepted the plea and entered an order disposing of the case, which is captioned "Finding of Guilt and Order Withholding Adjudication/Special Conditions" (the "Order"). In the Order, after reciting that it appeared Dr. Higginbotham "ha[d] been found guilty" of the Uncontested Charges "upon the entry of a nolo contendere plea," and that it appeared Dr. Higginbotham should not "presently [be required] to suffer the penalty imposed by law," the court ordered that "adjudication of guilt be . . . stayed and withheld." The court placed Dr. Higginbotham on probation for a period of four years, subject to early termination after the successful completion of two years. The court further ordered Dr. Higginbotham to pay about $2,300 in costs but reserved ruling on whether to require her to make restitution. Due to the insufficiency of the evidence, the undersigned is unable to make any findings of fact regarding the conduct of Dr. Higginbotham which gave rise to the Uncontested Charges. Simply put, given the minimal persuasive evidence regarding Dr. Higginbotham's conduct, the undersigned cannot determine what she actually did as a result of, or in connection with, the fake accident described above, besides (a) provide some chiropractic treatment to persons who falsely told her they had been hurt, as found above, and (b) plead no contest to the Uncontested Charges. In short, other than the undisputed fact of the plea, there is no persuasive evidence in the record to support a finding that Dr. Higginbotham committed any crime. Ultimate Factual Determinations Dr. Higginbotham did not impliedly admit guilt when she pleaded nolo contendere to the Uncontested Charges. Her explanation of the reasons for accepting the state's offer provides objectively reasonable grounds——consistent with innocence——for having entered the plea, refuting the implication that she acted on a guilty conscience or the substantial likelihood of a conviction. In this connection, it is further determined that Dr. Higginbotham, while being conscious of her innocence and never admitting guilt, entered the plea to avoid the possibility of being found guilty and sent to prison, potentially for many years; to be able to get on with her personal life; and to retain the ability to resume her professional career as a chiropractic physician. In addition, given that the state was willing to give up more than three-quarters of the criminal charges against Dr. Higginbotham; and that the sentence imposed (four years' probation subject to early termination) was lenient as compared to the range of potential sentences, including many years of imprisonment, which could have been imposed were she tried and convicted; the undersigned infers that the prosecutor's offer was a generous one, reflecting the strength of Dr. Higginbotham's position relative to the state's. In sum, under the circumstances, the no-prison plea bargain offered to Dr. Higginbotham was too good to refuse, given that an acquittal would have been only marginally more beneficial than a sentence of probation with a withhold of adjudication, whereas a guilty verdict would have been ruinous. Accordingly, it is determined as a matter of fact, based on the totality of the evidence including the plea of nolo contendere and the presumption of a conviction which arises therefrom, that Dr. Higginbotham was not "convicted or found guilty" of crimes relating to the practice of chiropractic medicine. Dr. Higginbotham is not guilty, as a matter of fact, of committing an offense punishable under section 460.413(1)(c), Florida Statutes (2008).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Dr. Higginbotham not guilty of the charge set forth in the Complaint. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of May, 2011.
