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AGENCY FOR HEALTH CARE ADMINISTRATION vs CATALINA GARDENS HEALTH CARE ASSOCIATES, LLC, D/B/A THE BROOKSHIRE, 11-003379 (2011)
Division of Administrative Hearings, Florida Filed:Melbourne, Florida Jul. 11, 2011 Number: 11-003379 Latest Update: Nov. 21, 2011

Conclusions Having reviewed the Notice of Intent to Deny, the Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the provider (hereinafter “the Respondent”) pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint and Election of Rights from on the Respondent. (Ex. 1) The Agency later issued the attached Notice of Intent to Deny and Election of Rights form on the Respondent. (Ex. 2) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 3) Filed November 21, 2011 9:10 AM Division of Administrative Hearings Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Notice of Intent to Deny is WITHDRAWN. 3. The Respondent shall pay the Agency a total of Fifty-Six Thousand and No/100 ($56,000.00) Dollars in administrative fines and assessments, Twenty-Six Thousand and No/100 ($26,000.00) Dollars of which shall be in full and final satisfaction of any and all reimbursements owed for any potential or alleged Medicaid overpayments (and shall be associated with CI No. 12-0957-000 for purposes of internal Agency allocation) during the Respondent’s period of non-compliance. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this IS day of No YewSer— , 2011. Administration

Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. Page 2 of 3 CERTIFICATE OF SERVICE I CERTIFY that a true and correct cgpy of this Final Order was served on the below-named “Se day of Nbitw br , 2011. persons by the method designated on this Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas F. Asbury, Esq. Brian J. Lynch, Administrator Office of the General Counsel The Brookshire Agency for Health Care Administration 85 Bulldog Blvd. (Electronic Mail) Melbourne, Florida 32901 (U.S. Mail) Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Shaddrick Haston, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail) Anna G. Small, Counsel for Respondent LaVie Care Centers 10210 Highland Manor Dr., Suite 250 Tampa, FL 33610 (U.S. Mail) Horace Dozier, Field Office Manager Medicaid Program Integrity Agency for Health Care Administration (Electronic Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Page 3 of 3

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BOARD OF DENTISTRY vs. LESTER B. GREENBERG, RICHARD J. SHAWN, ET AL., 83-000961 (1983)
Division of Administrative Hearings, Florida Number: 83-000961 Latest Update: Aug. 11, 1983

Findings Of Fact On November 12, 1981, Cindy Patton (Brown) (Romines) (hereinafter called Cindy) went to the Manatee Dental Center to have a filling that had fallen out replaced. At this time Respondents Greenberg, Schmidt, and Hutchinson owned the clinic; Respondents Quirk, Esclangon, and Shawn were salaried employees of the clinic; and all were licensed by Petitioner as dentists of Florida. Upon arrival at the clinic, Cindy was referred to Respondent Quirk, who examined her and concluded that tooth No. 19 could not be repaired by simply filling the cavity, but that root canal therapy (RCT) followed by a crown was required. He so advised Cindy, who responded that she was not prepared to pay for the RCT at that time. Quirk agreed to commence the RCT and have Cindy return when she was ready to have the work completed. Quirk opened the tooth and located three canals which he reamed out to 40 mm. Medication was placed in the opening, the opening was temporarily sealed and Cindy was discharged to return at a later date. Four days later, on November 16, 1983, a small part of the temporary filling fell out and Cindy returned to the clinic to have the RCT completed and crowned. Upon her arrival she was assigned to Respondent Esclangon, who completed the RCT. For reasons not fully explained at the hearing, this RCT was not successful although Esclangon worked on Cindy several hours before closing the hole. The same afternoon Cindy returned to the clinic in considerable pain and was again treated by Esclangon, who reopened the cavity, rereamed the canal, and resealed the tooth. He made notations on Exhibit 1 that patient was due back the following day, 11/17/81. Upon her return on November 17, Cindy, who was nervous, upset, and in pain, was referred to Respondent Shawn, who examined her and concluded the RCT was a "failed" one and the only solution was to extract tooth No. 19 and replace it with a partial bridge. Since the failure of the RCT was responsible for the extraction and bridge, Respondent Shawn advised Cindy that there would be no additional charge (over the cost of the RCT and crown) for the extraction and bridge. On November 17, 1981, after anesthesizing the area, Shawn extracted tooth No. 19, prepared teeth 18 and 20 for the bridge, immediately took impressions to have a permanent partial bridge constructed, fabricated a temporary bridge, and placed the temporary bridge in Cindy's mouth. At this time Cindy's mouth was still anesthesized, her gums were swollen and sore from the "failed" RCT and extraction, and, when the temporary bridge was -installed, she was not capable of enough sensation in the mouth to say the bridge fit or not. Shawn testified he used articulating paper to check the occlusion and it appeared all right. Cindy was rescheduled to return for the permanent bridge to be installed on November 27, 1981. On November 18 Cindy was called to reschedule her appointment to December 1. On November 17 Cindy returned to the clinic complaining of soreness and that the temporary bridge was digging into her gums. She was seen on this visit by Respondent Hutchinson, who prescribed she rinse frequently with a warm solution one-half saline and one-half peroxide, and he gave her a prescription for Percodan. Although Cindy testified she did not return to the clinic again despite her mouth not improving, Exhibit 1 indicates she went to the clinic on November 25, 1981, to pick up the X-rays taken of her mouth. On November 25, 1981, Cindy went to see Dr. Steinberg complaining of discomfort and exhibiting swollen gums and pain when biting on the bridge. Steinberg checked the temporary bridge, found the occlusion too high, and filed it down. He also found the temporary bridge poorly contoured and unpolished. He recontoured the temporary bridge and polished it. While the bridge was out he examined the jaw where tooth No. 19 had been extracted and found a dry socket which he treated and corrected. Immediately after the dry socket was treated and the temporary bridge adjusted, Cindy's discomfort was alleviated. Dry sockets, when they occur, usually appear within three to four days after a tooth is extracted. Shawn saw Cindy only on November 17, when he extracted the tooth and performed the other work noted above. In explanation of his decision to take the impression for the permanent bridge immediately after the tooth was extracted and while the gum was inflamed, Respondent Shawn testified the reason for departing from the normal practice of taking an impression several days after an extraction, which will allow the gums to shrink to a more stable state and to heal, was to "better serve her." Cindy had been through an arduous but unsuccessful RCT the previous day, was tense, upset, and had a sore mouth. Respondent Shawn further testified the technique used is described in the textbook by Tylman as a technique for fabricating immediate permanent replacement dentures. However, excerpts from Tylman produced at the hearing indicate this technique calls for taking the impression before the tooth is extracted, is generally used where anterior teeth are involved with the cosmetic effect more important than where posterior teeth are involved, and where no secondary infection exists. Cindy had been prescribed penicillin the previous day either for an infection she may have had or to inhibit an infection from starting as the result of the dental work. The patient records of Manatee Dental Center identify the dentists working on the patient by a numerical code. Dentists and the number identifying each dentist are listed in Exhibit 3. No specific notation is made on the patient's record that "Dr. " is the dentist of record, yet these records identify each dentist who performs work on the patient. William Kimball went to the Manatee Dental Center on June 18, 1982, complaining of a toothache. He was referred to Respondent Epps, who extracted tooth No. 18. Epps prescribed penicillin and noted patient "needs teeth cleaned and scaled." Kimball did not have the prescription for penicillin filled. He returned to the clinic on June 25, was referred to Respondent Esclangon, and complained of soreness in the area of the extraction, of inability to open his mouth, and of difficulty in swallowing. He was advised to take penicillin for the infection that was developing and was given another prescription for penicillin. Kimball returned to the clinic on June 28 and was referred to Respondent Epps. He was still complaining of pain in the area of the extraction and had difficulty opening his mouth and swallowing. Epps made an adjustment of the occlusion to correct an overbite and prescribed Demerol for the pain. That prescription was filled June 28. On June 30 Kimball returned to the clinic still complaining of pain and was referred to Respondent Shawn. Upon examination Shawn observed (Exhibit 2) that Kimball could barely open his mouth, the side of his face was swollen, and his throat was sore. Shawn recorded "Pt. had pterygoid mandibular infection." Kimball was told to drink a lot of liquids and return on Friday (July 2). When he returned July 2, 1982, Kimball's condition had not improved. He was again seen by Shawn, who lanced the gum in the vicinity of the extraction but only a little pus drained out. Kimball was told to stay on his medication and was given prescriptions for Keflex and Percodan. By July 3 (Saturday) Kimball was in such bad shape that he had to be driven to the clinic by his brother. He could not open his mouth or swallow and exhibited evidence of a massive infection in his mouth. He was examined by a dentist on duty, Dr. Cole, who sent him to an oral surgeon as an emergency patient. This oral surgeon, Dr. Kropp, was reached on his paging service and had Kimball sent to his office. Upon arrival Kropp found a very ill patient who could not open his mouth and had difficulty swallowing and breathing. Kropp concluded the situation was acute and he lanced the jaw and removed an estimated 150 cc. of very foul-smelling purulent solution. The pain immediately subsided and the other symptoms of swelling, difficulty breathing, and swallowing, moderated. By the time Kimball was referred to Kropp on July 3, 1982, the infection had spread to the parapharyngeal space and Kropp feared it would spread to the media thynum. Pus in that area could prove fatal. Kropp described Kimball on July 3 as moribund, indicating a very ill patient. When Kropp lanced the abscess he lanced in a completely different area than was lanced by Shawn. Infection in the parapharyngeal space will cause the patient difficulty in swallowing. Kropp opined the treatment given Kimball up through June 30 was proper, but the results from the July 2 treatment demonstrated a little incompetence and a little bad luck. Kropp acknowledged it was very rare to have an infection in the submandibular space and Kimball's infection had spread from the submandibular space to the parapharyngeal space where it had become life-threatening. Respondent's expert witness, Richard M. Rose, M.D., who specializes in respiratory infections, reviewed the X-rays and dental records of Kimball, and listened to the testimony respecting Kimball's diagnosis and treatment. Among his conclusions is that Kimball is a poor host for infections and is not as likely to respond to treatment for these infections as are most people. He opined that from the information available on June 30, the infection was not ready for drainage and could only be treated with antibiotics and hot soaks to increase blood flow and localize the infection; on July 2 there was some indication the infection was localized and surgical drainage was the primary treatment for infection; the dramatic change in Kimball's condition between July 2 and July 3 simply means the infection had progressed to the next stage and not necessarily that the infection was worse; and that the treatment rendered on July 2 was proper for the symptoms presented.

Florida Laws (3) 466.017,  466.018,  466.028
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A. ALEXANDER JACOBY, M.D. vs DEPARTMENT OF HEALTH, BOARD OF MEDICINE, 04-004398RU (2004)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Dec. 13, 2004 Number: 04-004398RU Latest Update: Jun. 28, 2007

The Issue By means of two consolidated rule challenge petitions, Petitioner seeks determinations that a specified agency policy and practice is an agency statement which is an invalid unpromulgated rule and that certain specified existing agency rules are invalid for other reasons. In view of the number of and the nature of the issues in these two cases, it is perhaps easiest to describe the issues in each of these cases in the words chosen by Petitioner. The petition in Case No. 04-4398RU describes the issues as follows: Whether Florida Board of Medicine's uniform "nod an wink" nonrule policy and practice of uniform licensure denial to anyone on probation is: (i) an "Agency Statement of general applicability that implements, interprets, or prescribes law or policy;" (ii) and "Agency Statement," defined as a "Rule;" (iii) "Rule," unpromulgated by mandatory and compulsory rulemaking procedures; and (iv) an invalid exercise of delegated legislative authority in violation of § 120.54(1)(a), Fla. Stat. (2003), as defined in § 120.52 Fla. Stat. (2003) and within the meaning of § 120.57(1)(e)? Whether the Board's failure to provide notice to prospective applicants of its unpromulgated rule policy and practice of uniform licensure denial to anyone on probation is [a] violation of due process requirements of United States and Florida Constitutions and of § 120,57(1)(e)(2)(e), Fla. Stat. (2003)? Whether Florida Board of Medicine's final Administrative Order, Order No. DOH- 04-0662-FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Temporary Certificate to practice in Areas of Critical Need -- an Agency action based on an unpromulgated rule -- is null and void, pursuant to §120.56(4)(d), 120.56(4)(e)(5) and 120.57(1)(e), Fla. Stat. (2003)? Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to §120.595(4), Fla. Stat. (2003)? (Emphasis in original.) The petition in Case No. 04-4571RX describes the issues as follows: Whether all the relevant provisions of Rule 64B8-8.001 F.A.C. that punish or sanction Applicants in whole or in part -- as promulgated in Rules 64B8-8.001(1); 64B8- 8.001(2); and 64B8-8.001(2)(b) F.A.C. -- are an invalid exercise of delegated legislative authority in violation of § 120.536(1), Fla Stat. (2000), as defined in § 120.52(8), Fla. Stat. (2003)? Whether the Board's Final Administrative Order, Order No. DOH-04-0662- FOF-MQA, dated June 17, 2004, denying Petitioner's Application for Licensure -- an Agency action based on an invalidated rule - - is null and void? Whether attorney fees and costs [are] to be awarded to the Petitioner pursuant to §120.595(3), Fla. Stat. (2003)?

Findings Of Fact Findings incorporated from findings of fact in Case No. 03-4433 Petitioner is a medical doctor, presently licensed to practice medicine in the State of New York. Petitioner signed a Florida Department of Health Board of Medicine Application for Temporary Certificate to Practice in an Area of Critical Need on June 19, 2003. Question number 13 on that application form asked, “Have you ever had any Medical/professional license revoked, suspended, placed on probation, received a citation, or other disciplinary action taken in any state territory or country?” Petitioner answered “yes” to question number 13. The Notice of Intent to Deny issued by the Florida Board of Medicine cited as the only reason for denial “[t]he applicant had action taken against the license by the New York and the Utah Medical Licensing Boards.” It has since been confirmed that the Utah Division of Occupational & Professional Licensing did not take any action against Petitioner’s medical license in Utah. The New York Department of Health, Monitoring Unit, Office of Professional Medical Conduct, did take action against Petitioner’s medical license in New York. The New York Department of Health described its action as follows: Dr. Jacoby currently holds a valid NYS medical license, and is permitted to practice in this State, however the sanctions imposed by the enclosed Order are still in effect, and have not yet been fully satisfied. The suspension was lifted in January 2003, however the three years probation remains ‘tolled’ at this time, to be imposed when Dr. Jacoby returns to the practice of medicine in this State. (Emphasis added.) The underlying reason for Petitioner’s discipline in New York is for failing to repay a student loan guaranteed by the federal government. Petitioner had secured a health education assistance loan guaranteed by the federal government for approximately $51,000.00 between 1982 and 1983. The loan came due nine months after Petitioner graduated from medical school in June or July of 1984. Petitioner did not make any payments toward the loan for approximately 18 years. In September of 2002, Petitioner finally settled his long past-due student loan debt. Petitioner requested to withdraw his Application for Temporary Certificate to Practice in an Area of Critical Need after the Credentials Committee voted to recommend denial of his application to the full Board of Medicine. Petitioner promptly made a similar written request addressed to the full Board of Medicine. The full Board of Medicine denied Petitioner’s request to withdraw his application. The Board of Medicine then considered the merits of Petitioner’s application and voted to deny the application. The Board’s action was memorialized in a Notice of Intent to Deny Licensure by Area of Critical Need, which reads as follows in pertinent part: This matter came before the Credentials Committee of the Florida Board of Medicine at a duly-noticed public meeting on September 13, 2003, in Tampa, Florida and the full Board on October 3-4, 2003, in Ft. Lauderdale, Florida. The applicant appeared before the Credentials Committee on September 13, 2003, and presented testimony regarding the application file. The application file shows: The applicant had action taken against the license by the New York and the Utah Medical Licensing Boards. Additionally, the Board considered applicant’s Motion to Withdraw his application during the full Board meeting and voted to deny applicant’s motion. The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction. Based on the foregoing, the Board may refuse to certify an applicant for licensure, or restrict the practice of the licensee, or impose a penalty, pursuant to Sections 458.331(2) and 456.072(2), Florida Statutes. It is therefore ORDERED that the application for licensure by area of critical need be DENIED. If a final order is issued denying Petitioner’s license, the denial will be reported to the Federation of State Medical Boards, which is a depository of all disciplinary actions and license application denials by state boards in the United States. In recent years, it has been the consistent practice of the Florida Board of Medicine to deny applications for licenses to practice medicine if the applicant’s medical license is on probation in another state. Such practice is not required by either rule or statute. The Board of Medicine does not make any effort to advise applicants or prospective applicants of its consistent practice of denying applications from physicians who are on probation elsewhere. At the time he filed the subject application, as well as at the time of his appearance before the Credentials Committee, Petitioner was not aware of the Board of Medicine’s history of not granting applications submitted by physicians on probation elsewhere. Had Petitioner been aware of the Board’s history in that regard, he would not have filed an application.3 Findings based on testimony in Case No. 03-4433 All applications for licensure submitted by physicians licensed in other states are reviewed on their merits by the Florida Board of Medicine. Notwithstanding the Board's long history of denying such applications when the applicant's license in another state is on probation, it is nevertheless possible that the Board might in the future grant an application by a physician whose license is on probation. Because such a possibility exists, the Board does not advise prospective applicants that their applications will be denied if their license in another state is on probation. Facts about the existing rules The existing rule provisions challenged in Case No. 04-4571RX are all portions of Florida Administrative Code Rule 64B8-8.001. That rule contains the disciplinary guidelines regarding physicians regulated under Chapter 458, Florida Statutes. (Unless otherwise noted, all references to the Florida Statutes are to the current version of those statutes.) Subsection (1) and the introductory portion of subsection (2) of that rule read as follows: 64B8-8.001 Disciplinary Guidelines. Purpose. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations. Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Sections 120.57(1) and (2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included. Following the language quoted immediately above, the subject rule describes all of the statutory violations for which discipline may be imposed and for each such violation describes minimum and maximum recommended penalties. With regard to the violation described as "(b) Action taken against license by another jurisdiction," the subject rule provides the following recommendation for a first offense: (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $1,000.00 to $5,000.00. And for a second offense of the same type, the recommended penalty is stated as follows: (b) From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to revocation or denial of the license, and an administrative fine ranging from $5,000.00 to $10,000.00. Facts about disposition of Petitioner's application In the conclusions of law in the Recommended Order in Case No. 03-4433, the undersigned concluded that . . . on the facts in this case, the Board of Medicine clearly has the authority and the discretion to deny the application for the specific reasons stated in the Board's notice of intent to deny, to-wit: "The applicant is guilty of violating Section 458.331(1)(b), Florida Statutes, for having a license acted upon by another jurisdiction." But it is equally clear that there is nothing in the applicable rules or statutes that mandates denial of the application. The Board of Medicine can lawfully resolve this matter either way. The ultimate recommendation in that Recommended Order was that "a Final Order be issued . . . granting Petitioner's application for a temporary certificate to practice medicine in communities in Florida where there is a critical need for physicians." On June 18, 2004, the Board of Medicine filed a Final Order in Case No. 03-4433 in which it disagreed with the recommendation described above and, based on Petitioner's violation of Section 458.331(1)(b), Florida Statutes, and on "several aggravating factors and policy considerations" described in the Final Order, denied the application for a temporary certificate to practice in an area of critical need. Petitioner sought appellate court review of the Final Order of June 18, 2004. On April 14, 2005, the appellate court issued a decision in which the Board's Final Order of June 18, 2004, was affirmed without opinion. See A. Alexander Jacoby, M.D. v. Florida Board of Medicine, 900 So. 2d 559 (Fla. 1st DCA 2005).

Florida Laws (12) 120.52,  120.536,  120.54,  120.56,  120.57,  120.595,  120.68,  456.072,  456.079,  458.301,  458.320,  458.331
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs WILLIAM H. WYTTENBACH, M.D., 15-000098PL (2015)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jan. 08, 2015 Number: 15-000098PL Latest Update: Jul. 05, 2024
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FLORIDA ELECTIONS COMMISSION vs BRUCE CALVIN TRASK, 08-002764 (2008)
Division of Administrative Hearings, Florida Filed:Miami, Florida Jun. 11, 2008 Number: 08-002764 Latest Update: Feb. 18, 2009

The Issue Whether Petitioner's Renewed Second Amended Motion for Summary Final Order should be granted.

Findings Of Fact On June 11, 2008, Petitioner, Florida Elections Commission (Petitioner or Commission) forwarded this case to the Division of Administrative Hearings for formal proceedings. Along with the referral the Commission filed two Orders of Probable Cause dated November 30, 2007, and May 26, 2006, together with the Staff Recommendations. An Initial Order was entered on June 11, 2008, and was provided to Bruce Calvin Trask (Respondent). On June 30, 2008, a Notice of Hearing was issued setting the final hearing for September 16, 2008. Neither was returned undeliverable. On July 11, 2008, Petitioner filed a Motion for Summary Final Order. Subsequently, on July 24, 2008, Petitioner filed an Amended Motion for Summary Final Order. Consequently, on August 12, 2008, the undersigned entered an Order to Show Cause that directed Petitioner to clarify some issues. More specifically, the Order to Show Cause provided: No later than August 25, 2008, Petitioner shall respond to this order to show cause in writing as to why the case shall not be held in abeyance until Petitioner demonstrates Respondent has received the appropriate service. No later than August 25, 2008, Petitioner shall notify the undersigned if the Amended Motion contains a scrivener's error and correct it for the record, if necessary. On August 25, 2008, Petitioner Responded to the Order to Show Cause and requested that the case be placed in abeyance. On November 20, 2008, Petitioner served Respondent with Petitioner's First Request for Admissions and filed Petitioner's Second Amended Motion for Summary Final Order. Consequently, on January 8, 2009, the undersigned entered an Order to Show Cause that directed Respondent to file a response to the allegations. More specifically, The Order to Show Cause provided: The ruling on Petitioner's Motion for Summary Final Order is reserved. No later than January 16, 2009, Respondent shall file, with the Division of Administrative Hearings, a written answer or other pleading setting forth the disputed issues of fact with reference to the factual allegations of the two counts of the Orders of Probable Cause dated May 26, 2006, and November 30, 2007, and/or the factors in Section 106.265(1), Florida Statutes, which include, but are not limited to, mitigation issues. Respondent's answer or other pleading shall simultaneously be served upon Petitioner's counsel of record. The failure to file a response to this order will be deemed an admission of the information set forth in the Order of Probable Cause and can result in the Motion for Summary Final Order being granted. If the motion is granted, the Respondent can be found guilty of the two violations charged in the Orders of Probable Cause, and a civil penalty up to an amount of $2,000 can be imposed against Respondent. The Order to Show Cause was provided to Respondent's correct address of record. The Order was not returned undeliverable. It is presumed Respondent received a copy of the Order. To date, Respondent has not responded to the Order to Show Cause. On February 6, 2009, Petitioner filed a Renewed Second Amended Motion for Summary Final Order. Petitioner confirmed contact with Bruce Trask through Respondent's brother who gave Respondent documents related to the instant case, which had been served. Respondent has never responded to the Motion for Summary Final Order, Amended Motion for Summary Final Order, the Second Amended Motion for Summary Final Order, or the Renewed Second Amended Motion for Summary Final Order. Respondent has not disputed any of the material facts at issue in this proceeding. Notice of the allegations was provided to Respondent. Respondent has not responded to Petitioners First Request for Admissions. Rule 1.370(b), Florida Rules of Civil Procedure provides: Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.

Florida Laws (4) 106.07,  106.25,  106.265,  120.68
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AGENCY FOR HEALTH CARE ADMINISTRATION vs MARIA Z. HERNANDEZ, 11-005836 (2011)
Division of Administrative Hearings, Florida Filed:Miami, Florida Nov. 16, 2011 Number: 11-005836 Latest Update: Feb. 20, 2012

Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $4,700.00 in administrative fines within one (1) year of the entry of the Final Order. The Respondent agrees never to seek licensure for any facility type regulated by the Agency. If the Respondent violates any of the Agency licensure laws in the future, the Respondent will be required to pay the Agency three (3) times the remainder due from the original fine (minus any amount paid on the $4,700.00), plus any new fines sought against the Respondent. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 1 Filed February 20, 2012 3:53 PM Division of Administrative Hearings ORDERED at Tallahassee, Florida, on this ( e day of felacu = aa , 2012. Cs S aap Sécretahy Agency for Health Care Administration

Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this 4 7 ny of TZ. a » 2012.

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DEPARTMENT OF EDUCATION, EDUCATION PRACTICES COMMISSION vs. CONSTANCE GRANT JOHNSON, A/K/A CONNIE MARIE JOHNSON, 87-001671 (1987)
Division of Administrative Hearings, Florida Number: 87-001671 Latest Update: Sep. 14, 1987

The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.

Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Respondent, Constance Grant Johnson, was licensed by the Department of Education for the State of Florida, Certificate No. 239817, and was employed by the Dade County School Board for sixteen years. On December 20, 1985, Respondent, after a jury trial, was found guilty of two felonies: possession of cocaine and conspiracy to traffic in cocaine. Respondent was sentenced to a prison term of four and one-half years and fined $25,000. Respondent served the sentence and the convictions are on appeal. On December 26, 1985, Respondent resigned her job as a visiting teacher (truant officer) "for personal reasons." On January 8 1986, the School Board of Dade County accepted Respondent's resignation but required: Formal notification to the Educational Practices Commission for licensure investigation; Prevention of any future employment in any capacity by the Dade County Public Schools; and Retention of the information regarding the dismissal action by the Superintendent of Schools as a matter of official record. There is no record to suggest Respondent contested the requirements of the Board's acceptance. On April 27, 1985, Respondent was visiting her cousin, Lola Thomas, in Jacksonville, Florida. Respondent had traveled from Miami on April 26, 1985, and had checked into the Rodeway Inn, room 117, with her companion, Danielle Valdez Baro. Respondent registered as "Mr and Mrs. D. Johnson." Respondent had rented a car for the purpose of this trip. Sometime prior to noon on April 27, 1985, Lola Thomas arrived at the Rodeway Inn to pick Respondent up to go shopping for a family dinner to be prepared later in the day. The two cousins did not go grocery shopping. Instead, they traveled back to the Thomas home where they picked up Arthur Thomas, Lola's husband. The three then traveled to Yancy Park, an area a few blocks from a Pic N' Save store located on Soutel and Norfolk. An undercover sheriff's officer, R. A. Walsh, had met with one Joseph Mack at this Pic N' Save and had arranged to purchase two ounces of cocaine for $4000.00. Walsh then followed Joseph Mack to Yancy Park to complete the transaction. Walsh observed Mack walk to the vehicle wherein Respondent and the Thomases were seated and obtain a white bundle which Mack placed under his shirt. Mack and Arthur Thomas then walked back to Walsh's vehicle to receive payment. Respondent had handed the bundle, wrapped in a hand towel from the Rodeway, Inn, to Arthur Thomas who had, in turn, handed it to Mack. The bundle contained approximately two ounces of cocaine. Respondent's testimony that she did not know the bundle contained cocaine was not credible. Respondent's testimony that she merely passed the bundle at her cousin Lola's direction was not credible. Respondent and Lola Thomas were seated in the front seat of the Thomas' 1984 Pontiac Bonneville. Lola Thomas was in the driver's seat and her husband, Arthur, was seated directly behind her. Respondent admitted she had removed a hand towel from the Rodeway Inn and that the bundle had been wrapped in a similar towel. Respondent claimed Lola Thomas had also removed a second hand towel from the Rodeway Inn, but such second towel was not located and was not listed on the police reports of the incident. Respondent admitted that only one towel was utilized in the criminal proceedings which resulted in her convictions. Respondent's claim that Lola Thomas had taken a towel was not credible. Respondent's testimony that the Thomas vehicle was parked in a center shopping or strip mall and that she only discussed needed grocery items with Lola Thomas was not credible. The weight of credible evidence established the Thomases and Respondent were apprehended at Yancy Park. Dr. Gray, an expert in professional ethics and personnel management, testified that the proof of either Count I or Count II would warrant permanent revocation of Respondent's teaching certificate.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the petitioner enter a Final Order permanently revoking Respondent's teacher's certificate. DONE and ORDERED this 14th day of September, 1987, in Tallahassee, Florida. JOYOUS D. PARRISH 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 14th day of September, 1987. APPENDIX Rulings on the Proposed Findings of Fact submitted by Petitioner: Accepted in Finding of Fact 1. Accepted in Findings of Fact 1 and 3. Rejected as argument. However, point is addressed in conclusions of law 5. See also Finding of Fact 2. Accepted in Finding of Fact 2. Accepted in Finding of Fact 2. Accepted in Finding of Fact 3. Rejected as argument. See relevant Findings of Fact 7 and 8. Accepted but unnecessary and argument. See Finding of Fact 10. Accepted in Finding of Fact 12. Rulings on the Proposed Findings of Fact submitted by Respondent. Accepted in Finding of Fact 1. Accepted in Findings of Fact 2 and 11. Accepted in Findings of Fact 6, 9, and 10. But see Findings of Fact 7 and 8. Rejected as contrary to the weight of credible evidence. Accepted to the extent addressed in Findings of Fact 5 and 6 otherwise rejected as contrary to the weight of credible evidence. See Findings of Fact 7 and 8. COPIES FURNISHED: Craig Wilson, Esquire 215 Fifth Street, Suite 302 West Palm Beach, Florida 33401 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Marlene T. Greenfield, Administrator Professional Practices Services 319 West Madison Street, Room 3 Tallahassee, Florida 32399 Karen Barr Wilde, Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32399

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FLO-RONKE, INC. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 15-000982 (2015)
Division of Administrative Hearings, Florida Filed:Miami, Florida Feb. 23, 2015 Number: 15-000982 Latest Update: Dec. 02, 2016

The Issue Fact Issues Did Petitioner, Flo-Ronke, Inc. (Flo-Ronke), fail to timely pay a fine imposed by Final Order of the Respondent, Agency for Health Care Administration (Agency)? Did the Agency reject attempts by Flo-Ronke to timely pay the fine in full by a single payment without conditions? Did Flo-Ronke attempt to pay the fine untimely in full by a single payment without conditions? If so, did the Agency reject the proffered payment? Did Flo-Ronke employ an individual in a position that required background screening who had a disqualifying criminal conviction? Law Issues Which party bears the burden of proof? What is the standard of proof? Do the facts support denying re-licensure of Flo-Ronke? Are untimely efforts to pay the fine in full with a single payment mitigating factors? If so, how should the factors be weighed?

Findings Of Fact Flo-Ronke is an Assisted Living Facility (ALF). An ALF is a building, part of a building, or a residential facility that provides “housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.” § 429.02(5), Fla. Stat. (2015).1/ The Agency licenses and regulates ALFs. §§ 429.04 and 429.07, Fla. Stat. Flo-Ronke is subject to the Agency’s licensure requirements and is licensed by it. By Notice of Intent to Deny Renewal Application dated December 2, 2014, the Agency denied Flo-Ronke’s application to renew its license on the grounds that Flo-Ronke “failed to comply with the criminal background screening requirements by employing a caretaker who was not eligible to work in the facility.” On January 8, 2015, the Agency amended the Notice of Intent to Deny. On January 21, 2015, the Agency issued a Second Amended Notice of Intent to Intent to Deny for Renewal. This notice is the subject of this proceeding. The second amended notice asserts two bases for denial. One is the originally asserted background screening violation. The other is Flo-Ronke’s failure to pay an outstanding fine in AHCA Cases 2014002513 and 2014002514. Payment of the Fine In AHCA Cases 2014002513 and 2014002514, the Agency’s Administrative Complaint charged Flo-Ronke with four deficiencies involving insects, cleanliness, medication administration, and inadequate staffing. Originally, Flo-Ronke requested an evidentiary hearing before DOAH (DOAH Case No. 14-1939). Later, Flo-Ronke, through its owner Ms. Akintola, agreed there were no disputed issues of facts and stipulated to returning the matter to the Agency for an informal hearing. The Agency provided Flo-Ronke an opportunity for a hearing. No representative of Flo-Ronke appeared at the hearing. The Agency issued a Final Order on November 5, 2014, upholding the Administrative Complaint and imposing a $13,500 fine. The Agency’s Final Order included instructions on how to make the payment, advised that the payment was due within 30 days of the Final Order, and cautioned that interest would be imposed on overdue amounts. The Final Order included a Notice of Right to Judicial Review. On behalf of Flo-Ronke, Ms. Akintola appealed the Final Order pro se. The Florida Rules of Appellate Procedure do not provide for an automatic stay of a decision if it is appealed. Flo-Ronke did not seek a stay of the Final Order. Consequently, the obligation to pay the fine was effective as of the date of the Final Order. The First District Court of Appeal rendered an Order requiring Flo-Ronke to obtain counsel for the appeal because a corporation cannot be represented by an employee or officer. Flo-Ronke did not obtain counsel or respond to the court’s Order. On January 16, 2015, the court dismissed Flo-Ronke’s appeal. On April 9, 2015, Flo-Ronke, represented by the same counsel as in this proceeding, moved to re-open the appellate case. On April 17, 2015, the court denied the motion. It also denied Flo-Ronke’s subsequent motion seeking reconsideration, clarification, a written opinion, and a stay. From the date that the Agency entered the Final Order imposing the fine in DOAH Case No. 14-1939 (AHCA Cases 2014002513 and 2014002514) to the date of the final hearing, Flo-Ronke did not pay the fine. Starting around February 2015, attorney Scott Flint tried, on Flo-Ronke’s behalf, to arrange a payment plan for the fine. He discussed the proposal with Agency Attorney Edwin Selby. Mr. Flint linked the discussions to resolving a separate investigation of Flo-Ronke that the Agency was conducting. Mr. Flint never offered unconditional payment of the fine on behalf of Flo-Ronke. Mr. Flint testified that at some point during conversations about the two cases, Mr. Selby said the Agency would not accept full payment if it was offered. Mr. Selby testified that he did not make this statement. Mr. Selby’s testimony is more credible in this instance, as it is in other instances when Mr. Selby’s testimony differed from Mr. Flint’s. One reason Mr. Selby’s testimony is more credible is that on February 11, 2015, after the time Mr. Flint says Mr. Selby made the statement, Mr. Flint wrote Mr. Selby a letter proposing an installment plan for paying the fine. The letter did not mention the alleged statement that the Agency would not accept payment. The proposal and the failure to mention the alleged refusal are inconsistent with the assertion that Mr. Selby said payment would not be accepted. Also, Mr. Flint hedged his testimony about the alleged refusals, noting that lawyers say many things during negotiations. Mr. Selby’s testimony about conversations after the February 11 letter is also more credible. Mr. Selby never said that the Agency would not accept full payment if it were tendered. The clear and convincing evidence proves that from the date the Agency entered the Final Order to the date of the final hearing, Flo-Ronke never tendered full and complete payment of the fine to the Agency. Flo-Ronke, despite its assertions during pre-hearing motion practice, did not offer any evidence that could be reasonably be interpreted as proving that Flo-Ronke tendered full payment of the fine or that the Agency refused the payment. Even Mr. Flint’s testimony, if fully credited, is not evidence that Flo-Ronke tendered full payment or that the Agency refused full payment. Background Screening At all relevant times, Florida law required level two background screening of any person seeking employment with a provider whose responsibilities may require him to provide personal care or other services directly to clients or who will have access to the client living area. § 408.809(1)(e), Fla. Stat. (2014). Individuals who have disqualifying offenses may not hold positions where they provide services to clients or will have access to client living areas. Florida law also requires re-screening every five years after employment. § 408.809(2), Fla. Stat. (2014). Agency surveyor, Laura Manville, surveyed Flo-Ronke and its records on September 2, 2014. At that time, F.M. was employed there. Flo-Ronke employed F.M. since at least 2009. F.M.’s duties included caring for residents. In addition, even when performing non-caretaking duties, such as grounds-keeping and maintenance, F.M. had unsupervised access to the residents and their living area. F.M. was adjudicated guilty of a disqualifying sex offense on October 28, 1999. Flo-Ronke’s records did not document the required level 2 background screening of F.M. when reviewed on September 2, 2014. At that time, Ms. Manville told Ms. Akintola of the deficiency and that F.M. was not eligible to work at the ALF. This was not the first time the Agency advised Ms. Akintola of the deficiency. By letter dated October 2, 2009, the Agency advised that background screening of F.M. had revealed he had a disqualifying criminal offense. It advised Flo-Ronke that it must either terminate the employment of F.M. or obtain an exemption from disqualification. Flo-Ronke did neither. Ms. Manville conducted a follow-up survey on September 10, 2014. Despite the notice given on September 2, 2014, F.M. was still present at the facility performing grounds work and had access to client living areas. Ms. Akintola presented testimony and a single document attempting to prove that F.M. passed background screening in 2010. The document appears to show a determination of no background screening violation in 2010. Why it differs from other documents from 2009 and after 2010 is not explained. The circumstances surrounding the document are somewhat mysterious. It does not appear in the Agency files. On September 2, 2014, Ms. Akintola did not mention it. On that day, she said she thought F.M. did not need to satisfy screening requirements because he had worked for so long at Flo-Ronke. More importantly, the issue is whether F.M. was employed in 2014 in violation of the background screening requirements. The clear and convincing evidence, including evidence of the conviction in the background screening database, the continued employment of F.M. after September 2, 2014, and the letter of October 2, 2009, proves that in 2014 F.M. had a disqualifying offense and did not have an exemption from the disqualification.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the application of Flo-Ronke, Inc., for renewal of its ALF license. Jurisdiction over the Motion for Fees and Costs is retained for further appropriate proceedings once the prevailing party has been determined. DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 30th day of October, 2015.

Florida Laws (11) 120.569,  120.57,  120.595,  120.68,  408.809,  408.831,  429.02,  429.04,  429.07,  429.14,  57.105
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BOARD OF PROFESSIONAL LAND SURVEYORS vs. JOSEPH C. RUSSELLO, 78-001018 (1978)
Division of Administrative Hearings, Florida Number: 78-001018 Latest Update: Feb. 28, 1979

Findings Of Fact Respondent received his registration in 1955 as a civil engineer and as an architect in 1956. Since his registration, the Respondent has been instrumental in the drawings and designs of numerous outstanding structures in and around the Tampa Bay area. (See Respondent's Composite Exhibits 1 and 2.) Prior to the incident involved herein, the Respondent has not been the subject of any disciplinary proceedings involving the Petitioner. Respondent, by and through counsel, takes the position that inasmuch as his conviction of the charges set forth herein- above, to-wit: racketeering, mail fraud and conspiracy, is not a proper basis upon which a suspension or revocation of his registration can properly stand inasmuch as he is in the process of appealing the conviction. Respondent contends that unless and until the judgment of the lower court is affirmed by the appellate court, there is no basis upon which a suspension and/or revocation of his registration can rest. Section 471.26, Florida Statutes, provides in pertinent part that: "(1) The Board shall have the power to revoke or suspend the certificate of registration. . . of a person registered under this chapter. . .should such registrant. . .be found guilty of: . . . (c) any felony or crime involving moral turpitude." Petitioner's Exhibit No. 1 received into evidence reveals that the Respondent was convicted of four separate counts of criminal activity and sentenced to imprisonment for a period of ten years on two counts, to run concurrently, and five years on two counts, to run concurrently with each other and with the ten-year count. Based thereon, it is concluded that sufficient basis exists upon which a finding should be entered recommending that the Respondent's registration be suspended. I shall so recommend. 1/

Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED: That the registration of Respondent (No. 5354) as a professional engineer be suspended for a period of two (2) years. In making such a recommendation, the undersigned considered all the mitigating factors introduced by and on behalf of the Respondent. ENTERED this 28th day of February, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 101, Collins Building 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Florida Laws (1) 120.57
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BOARD OF DENTISTRY vs. JOSE CURA, 87-004172 (1987)
Division of Administrative Hearings, Florida Number: 87-004172 Latest Update: May 16, 1988

Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1988. COPIES FURNISHED: Bill O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Braxton, Esquire 9100 South Dadeland Boulevard #406 Miami, Florida 33156 Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750

Florida Laws (2) 455.227,  466.028
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