Findings Of Fact The Respondent is licensed by the Petitioner to practice medicine in the State of Florida. The Respondent is a native of Cuba. He has been licensed as a physician in Florida since 1975, and has been practicing since then in Dade County. The Respondent has not been subject to any prior disciplinary action. Antonio Martos is a resident of Miami Beach. He is a native of Cuba, and does not speak English well. He testified at the hearing through an interpreter. Antonio Martos was a patient of the Respondent during 1976, 1977, 1978 and 1979. Among his complaints were that he had trouble sleeping. Antonio Martos did not see the Respondent at the Respondent's office, but rather saw him at his neighbor's house. Beginning in September, 1976, and once each month thereafter, through May, 1979, the Respondent issued prescriptions for forty- five 300 milligram Quaalude tablets for Antonio Rosario. Three specific prescriptions for these drugs were received into evidence, and the Respondent's medical records reflect the additional prescriptions. Quaalude is a brand name for Methaqualone, a "Schedule II" controlled substance under Section 893.03(2), Florida Statutes. Quaalude tends to induce dependency and tolerance. Long-term use of it is inappropriate because of the prospects for abuse. Prescriptions for Quaalude in the quantities and over the period of time for which they were prescribed by the Respondent for Antonio Martos are not in accord with community standards in Dade County, Florida, and are inappropriate and excessive and not in the best interest of the patient. The prescriptions are excessive to such a degree that they could not have been issued in good faith by the Respondent. The Respondent's records respecting Antonio Martos reflect that the Respondent saw him as a patient each month from September, 1976, through May, 1979. With the exception of five of the visits, the records reflect that all of them occurred on the first day of the month. Nearly all of the entries respecting Antonio Martos relate that he complained of insomnia and that his blood pressure was 120/80 and that his pulse rate was 80. It is not medically possible that an individual's pulse rate and blood pressure readings would be identical over such a long period of time on so many occasions. The Respondent fabricated these records to reflect visits that did not occur as indicated in the records. While no evidence was offered to establish with any definitiveness the purpose of the fabrications, it is apparent that the Respondent had a motivation to fabricate his records to reflect proper visits and prescriptions to the patient. Antonio Rosario and his wife testified that he had not been a patient of the Respondent's. This testimony has not been credited. The Martoses' testimony was false with respect to the nature of their relationship with their neighbor, in whose home they visited the Respondent. They were both actually seen to visit the Respondent in a patient relationship at their neighbor's home. It does not appear that the Martoses fabricated their testimony for any malicious reason. They were confronted by police, they clearly did not understand the nature of the confrontation, and it is logical to assume that they were fearful, and that they sought to absolve themselves from any difficulties. Rosario Martos is a resident of Miami Beach, and a native of Cuba. She is married to Antonio Martos. Rosario Martos does not speak English well, and she testified at the hearing through a translator. Rosario Martos was a patient of the Respondent during 1977, 1978, and 1979. She complained primarily of insomnia and high blood pressure. She did not visit the Respondent in his office, but rather saw him at her neighbor's house. Commencing in January, 1977, and each month thereafter through August, 1979, the Respondent issued prescriptions for forty-five 300 milligram Quaalude tablets for Rosario Martos. Eight of these prescriptions were received into evidence at the final hearing, and the remainder are reflected in the Respondent's medical records. Prescriptions for Quaalude in these quantities over this period of time is not in accord with community standards in Dade County, Florida. Such prescriptions are inappropriate and excessive, and not in the best interest of the patient. The prescriptions are so excessive as not to have been issued in good faith. The Respondent's records reflecting Rosario Martos reflect that he visited her once each month from January, 1977, through January, 1979. With a few exceptions, the records reflect that he visited her on the first day of each month. The records reflect that her complaint was always the same, high blood pressure and insomnia. Except for a few occasions, her blood pressure and pulse were 120/80 and 80, respectively. These records were fabricated. It is not medically possible that a patient's pulse and blood pressure could be so consistent on so many occasions over such a long period of time. It is apparent that the records were developed in order to reflect visits which either did not occur, or did not occur in the manner reflected in the records. Rosario Martos testified that she was never a patient of the Respondent, and that she did not receive the prescriptions. Her testimony has not been credited for the reasons set out in paragraph 2 above. Enrique Nebot was a patient of the Respondent's during 1976 through 1979. The Respondent issued prescriptions for forty-five 300 milligram Quaalude tablets to Enrique Nebot once each month beginning in October, 1976, and continuing through June, 1979. Four of these prescriptions were received into evidence at the final hearing, and the rest are reflected in the Respondent's medical records. The Respondent's records reflect only that Enrique Nebot complained of insomnia. Prescriptions of Quaalude in these quantities over this period of time are not in accord with community standards in Dade County, Florida. Such prescriptions are inappropriate and excessive and not in the best interest of the patient. The prescriptions are so excessive that they could not have been issued in good faith. The Respondent's records reflect that Enrique Nebot visited him generally on the fifteenth day of each month beginning in October, 1976, and continuing through June, 1979. The records reflect the same complaints, and a pulse rate of 80 and a blood pressure of 120/80 on each visit. It is not possible that a patient could have the same pulse and blood pressure readings on so many occasions over such a long period of time. The records were fabricated to reflect visits either that did not occur, or that did not occur in the manner described in the records. Gerardo Montes was a patient of the Respondent during 1977 through 1979. The Respondent's records reflect that Gerardo Montes complained of insomnia. Once each month beginning in September, 1977, and continuing through August, 1979, the Respondent issued a prescription to Gerardo Montes for forty- five 300 milligram Quaalude tablets. Seven of these prescriptions were received into evidence at the final hearing. The remainder of them are reflected in the Respondent's medical records. Prescriptions for Quaaludes in these quantities over this period of time are not in accord with community standards in Dade County, Florida. The prescriptions are inappropriate and excessive, and not in the best interest of the patient. The prescriptions are so excessive that they could not have been issued in good faith. The Respondent falsified medical records respecting Gerardo Montes. Records were created to reflect visits once each month commencing in September, 1977, and continuing through August, 1979. The records were written all at one time, rather than in response to individual appointments or visits. Lidia Tabio is a resident of Dade County, Florida, and a native of Cuba. She was a patient of the Respondent during 1976 through 1979. Her complaints were generally hypertension and insomnia. She visited the Respondent either in his office or at home in response to her symptoms. Once each month commencing in September, 1976, and continuing through July, 1979, the Respondent issued prescriptions for forty-five 300 milligram Quaalude tablets to Lidia Tabio. Five of these prescriptions were received into evidence at the final hearing, and the remainder are reflected in the Respondent's records. Prescriptions for Quaaludes in these quantities over this period of time are not in accord with community standards in Dade County, Florida. The prescriptions are inappropriate and excessive and not in the best interest of the patient. The prescriptions are so excessive that they could not have been issued in good faith. The Respondent's records respecting Lidia Tabio reflect that he saw her once each month commencing in September, 1976, and continuing through July, 1979. The visits are reflected to be on the second day of each month. On each occasion the patient's blood pressure reading was related as 120/80, and her pulse reading was reflected, commencing at least in May, 1977, as 77. It is not possible that a patient would reflect such constant blood pressure and pulse readings over such a long period of time. The patient herself testified that she visited the Respondent only in response to symptoms, and not on the second day of each month as reflected in the records. The Respondent fabricated Lidia Tabio's records. Juan Morales Tabio is a resident of Dade County, Florida, and a native of Cuba. Juan Tabio was a patient of the Respondent during 1976 through 1979. His complaints were generally hypertension and insomnia. He visited the Respondent generally in the Respondent's office. The Respondent issued prescriptions for forty-five 300 milligram Quaalude tablets for Juan Tabio once each month commencing in September, 1976, and continuing through August, 1979. One of these prescriptions was received into evidence at the hearing, and the remainder are determined from the Respondent's records. Prescriptions for Quaaludes in these quantities over this period of time are not in accord with community standards in Dade County, Florida. The prescriptions are inappropriate and excessive and not in the best interest of the patient. The prescriptions are so excessive that they could not have been issued in good faith. The Respondent's records respecting Juan Tabio reflect that he visited the Respondent once each month commencing in September, 1976, and continuing through August, 1979. On each occasion the patient's pulse is indicated as having been 80, and blood pressure as 120/80. Such consistent blood pressure and pulse readings over such a long period of time are not possible. These portions of the records are fabricated. Ramon Gonzalez is a resident of Dade County, Florida. He was a patient of the Respondent's during 1976 through 1979. His complaints generally were nervousness and that he could not sleep well. Once each month commencing in March, 1976, and continuing through July, 1979, the Respondent issued prescriptions for forty-five 300 milligram Quaalude tablets for Ramon Gonzalez. One of the prescriptions was received into evidence at the hearing, and the remainder are reflected in the Respondent's medical records. Prescriptions for Quaalude in these quantities over this period of time are not in accord with community standards in Dade County, Florida. The prescriptions are inappropriate and excessive and not in the best interest of the patient. The prescriptions are so excessive that they could not have been issued in good faith. The evidence does not establish that the Respondent's records respecting Ramon Gonzalez were fabricated. Counts XXIX through XXXII of the Administrative Complaint relate to Susan Waxman, an alleged patient of the Respondent. The evidence does not establish that inappropriate prescriptions were issued to Susan Waxman nor that her medical records were in any way fabricated or altered. Counts XXXIII through XXXVI of the Administrative Complaint relate to a person named Lueinea Gonzalez. No evidence was offered with respect to the allegations set out in Counts XXXIII through XXXVI of the Complaint. There was no evidence from which it could be concluded that any of the prescriptions for Quaalude that the Respondent issued were used either by himself, or by persons other than those for whom the prescriptions were issued.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That the Board of Medical Examiners enter a final order finding the Respondent guilty of the charges enumerated in paragraphs 2, 3 and 4 of the Conclusions of Law above; suspending the Respondent's license to practice as a physician in the State of Florida for a period of two years; imposing an administrative fine against the Respondent in the amount of $2,000; and permanently restricting the Respondent's practice so that after the period of his suspension, the Respondent is not permitted to prescribe, dispense, administer, mix, or otherwise prepare any controlled substance. That the Board of Medical Examiners enter a final order dismissing Counts IV, VIII, XII, XVI, XX, XXIV, and XXVII through XXXVI of the Amended Administrative Complaint. RECOMMENDED this day of April, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 day of April, 1981. COPIES FURNISHED: Deborah J. Miller, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Maurice M. Diliberto, Esquire Suite 800, Ainsley Building 14 Northeast First Avenue Miami, Florida 33132 Ms. Nancy Kelley Wittenberg, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 81-192 RUSQUIN DUANY GONZALEZ, M. D., Respondent. /
Findings Of Fact The Respondent Alam Farzad is a currently licensed medical doctor practicing medicine in Dade County, Florida. The Respondent was first licensed in Florida in 1975. In February, 1972, the Respondent resided in Miami with her husband, Kiumaris Bakshandeh, having moved to the United States from Iran in 1971 where they had both studied medicine and received medical degrees. In February, 1972, the Respondent's sister, Iran Farzad Rafael, was residing in Chicago, Illinois. Prior to February, 1972, the Respondent's sister graduated as a medical doctor in Iran and after moving to the United States, attempted to qualify for eventual licensure by taking an examination for foreign medical graduates administered by the Educational Council for Foreign Medical Graduates (ECFMG). In 1972 a passing grade was required on the examination by a foreign medical graduate in order to become eligible to take medical training in an intern program in the United States. Upon completion of the training for foreign professionals, another examination was required to be passed in order to become licensed in a state. Thus, the examination was a type of qualifying exam, the successful passage of which entitled a foreign graduate to receive medical training in the United States and eventually sit for the state medical licensing exam which was administered to all persons who desired to become licensed physicians. The Respondent's sister took the ECFMG exam three times prior to February, 1972, and failed it each time. At the request of her husband, the Respondent flew to Chicago in February of 1972, to take the ECFMG exam for her sister. The Respondent went to the examination site with the examination entrance papers she had taken from her sister, forged her sister's name at the examination site and took the examination using her sister's name. She subsequently received word from her sister that she had received a passing grade on the examination. The night after taking the examination, the Respondent received a phone call from her husband at her sister's home. During the conversation between the Respondent's husband and sister, the husband requested that the sister perform an abortion on the Respondent in return for her help on the examination. The Respondent's sister refused the husband's request. But for the Respondent taking and passing the ECFMG exam on behalf of her sister, the sister could not have practiced medicine or entered into a residency program. In 1978, the Respondent testified that her sister had practiced medicine in 1976 specializing in physical medicine and rehabilitation. However no official records were submitted by the Petitioner that the Respondent's sister is presently licensed or has been licensed as a physician in Illinois. In 1976, the Respondent's husband used his knowledge concerning the ECFMG examination to coerce the Respondent into signing a property settlement and custody agreement in a pending divorce proceeding. In exchange for agreeing to the property and custody agreement, the Respondent's husband signed an affidavit that would allegedly ensure that no information concerning the 1972 examination would be made public. In early 1978, the Respondent instituted proceedings in the Eleventh Judicial Circuit, Dade County, to set aside the child custody and support provisions contained in the final decree of dissolution of marriage between the Respondent and her husband on the grounds of coercion and duress. Following a lengthy hearing in which numerous witnesses were heard and exhibits entered into evidence, the Circuit Court in March, 1978, granted Respondent's motion to set aside the agreement and awarded custody of the couple's minor child to the Respondent. Dr. Bakshandeh appealed the trial court's decision to the District Court of Appeal, Third District. The court affirmed the trial court noting that there was " . . . an abundance of evidence in the record. . ." to support the Respondent's contention that she had been subjected to coercion and duress by her husband into entering into the agreement and that such coercion and duress constituted "misconduct of an adverse party" which would authorize a trial court to set aside a final judgment. See Bakshandeh v. Bakshandeh, 370 So.2d 417 (Fla. 3rd DCA 1979). The court went on to make, however, the following observation: As a final note, we are disturbed by an undisputed fact which emerges from this record. The wife Dr. Alam Farzad Bakshandeh is a physician licensed to practice medicine in Florida; the husband Kiumaris Bakshandeh is a chief resident urological surgeon for the University of Miami. Both were originally from Iran where they received part of their medical training. The record reveals that in February, 1972, the wife took a medical examination for her sister Iran Farzad Rafael for admission to a medical training program as a foreign physican in the State of Illinois. The examination was given in Chicago wherein the wife used her sister's name, took the exami- nation and passed it. The sister after additional training and examination was ad- mitted to practice medicine in Illinois. There is evidence that the husband urged the wife to take the examination for her sister and thereafter used this indiscretion to blackmail the wife into signing the pro- perty settlement agreement herein. The re- cord does not reflect whether the appropriate medical authorities have been notified of the above facts. We trust that such notifi- cation will be accomplished in the near future. Thereafter, on April 24, 1979, the Clerk of the Third District Court of Appeal forwarded a copy of the court's opinion to the Board of Medical Examiners for appropriate action. This was presumably the first actual notice the Petitioner received concerning the Respondent's actions on behalf of her sister in February, 1972. In July, 1981, a Board of Medical Examiners Probable Cause Panel found probable cause to believe violations of Chapter 458, Florida Statutes existed in this case and an Administrative Complaint was issued and filed against Respondent. Respondent was licensed by the Board of Medical Examiners as a medical physician in approximately February, 1975. The Petitioner filed the Administrative Complaint approximately 9 years after the incident in question occurred. The Petitioner failed to introduce evidence at the final hearing that while exercising due diligence it was unable to discover this incident prior to April, 1979.
Findings Of Fact 1. On March 6, 1984, a person named Earl Cole, who is or was also known as Robert E. Cole entered pleas of nolo contendere in the Circuit Court, Fifteenth Judicial Circuit, in and for Palm B3each County, Florida, to the following: Case No. Count(s) Crime 82-4836-CF A02 Check 1 Obtaining Property in Return for Worthless 82-7339-CF A02 Check 2 Obtaining Property in Return for Worthless 82-7745-CF A02 1 Uttering a Forgery
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about October 25, 1988, a Felony Complaint was filed in Municipal Court, Mt. San Jacinto Judicial District, Riverside County, California (Case No. 884467) charging that Petitioner had committed a violation of Section 278.5, Subdivision (b) of the Penal Code, a felony, in that on or about September 1, 1988, in the County of Riverside, State of California, she, being a person having physical custody of a child pursuant to an order, judgment, and decree of court which granted to another person [her former husband] rights of physical custody and visitation, did willfully and unlawfully, with the intent to deprive such person of such rights to custody and visitation, detain, conceal, take, and entice away such child, to wit, JAMES H. RODEN [her son, who, according to court documents, was born on April 22, 1989]. An Amended Felony Complaint charging Petitioner with the same felony offense was filed on or about April 8, 1991. Subsequently, there were plea negotiations which resulted in Petitioner entering a guilty plea to a reduced, misdemeanor charge, which the court accepted. In June or July of 1993, Petitioner submitted to the Department an application for licensure as a general lines insurance agent. Among the questions on the application form that Petitioner filled out were the following: Have you ever been charged with or convicted of or pleaded guilty or no contest to a crime involving moral turpitude (yes or no), or a felony (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or con- viction has been entered? (yes or no) If yes, give date(s): What was the crime? Where and when were you charged? Did you plead guilty or nolo contendre? Were you convicted? Was adjudication withheld? Please provide a brief description of the nature of the offense charged If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. On this portion of the form, Petitioner wrote "no" in each of the first three blank spaces and made no further entries, notwithstanding that several years prior thereto, in Mt. San Jacinto Judicial District Municipal Court Case No. 884467, she had indeed been charged with (albeit not found guilty or convicted of) a felony punishable by imprisonment of one year or more. Petitioner, however, did not intend to misrepresent or conceal any information or to otherwise deceive the Department concerning her past. She mistakenly believed that, in this portion of the form, the Department was inquiring only about criminal offenses involving "moral turpitude." After looking up the term "moral turpitude" in the dictionary, she determined that the crime with which she was charged in Mt. San Jacinto Judicial District Municipal Court Case No. 884467 was not one involving "moral turpitude" inasmuch as her actions in abducting her son were intended to protect the child and were not in any way "wicked." After receiving Petitioner's application, the Department conducted a records check which revealed the felony charge that had been filed against Petitioner in Mt. San Jacinto Judicial District Municipal Court Case No. 884467. The Department thereupon advised Petitioner of its discovery and asked her to supply it with certain documnents that were filed in the case. Petitioner complied with the Department's request.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order announcing its intention to continue to process Petitioner's application for licensure as a general lines insurance agent rather than denying the application on the ground stated in the Department's January 26, 1994, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of September, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1994. COPIES FURNISHED: Lisa Beth Weiner 572 Northeast 31st Street Pompano Beach, Florida 33064 James A. Bossart, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue Whether Florida Administrative Code Rule 15A-9.006(2) (the Rule) is an invalid exercise of delegated legislative authority, pursuant to section 120.52(8)(b), (c), and (d), Florida Statutes.
Findings Of Fact An IID is: A breath alcohol analyzer connected to a motor vehicle's ignition. In order to start the motor vehicle engine, a convicted person must blow a deep lung breath sample into the analyzer, which measures the breath alcohol concentration. If the breath alcohol concentration exceeds the fail point on the [IID], the motor vehicle engine will not start. Fla. Admin. Code R. 15A-9.003(13). Rule 15A-9.005, which is entitled, "Specifications," provides in part: All [IIDs] will be required to meet or exceed the standards set forth in the model specifications published in the Federal Register, Volume 57, No. 67, pages 11772- 11787 by the National Highway Traffic Safety Administration. Technical specifications for the operation and installation of the [IID] shall be described in the contract between [Respondent] and the manufacturer(s). The [IIDs] alcohol fail point shall be the level specified by Section 316.1937, Florida Statutes. Rule 15A-9.005(4), (5), and (6) establishes performance specifications for failed-point tests on initial startup and rolling retests and for an emergency bypass. Rule 15A-9.007, which is entitled, "Certification," provides: Each manufacturer under contract with [Respondent] will submit certification from an independent laboratory certifying that their [IID] has been tested in accordance with the model specifications published in the Federal Register, Volume 57, No. 67, pages 11772-11787 by the National Highway Traffic Safety Administration and the [IID] meets or exceeds those specifications, as well as criteria set forth in the contract with [Respondent]. The manufacturer shall be responsible for the continuing certification of [IID] service providers for use of an approved [IID]. Rule 15A-9.003(6) defines "certification" as the "testing and approval process required by [Respondent]." Rule 15A-9.003(16) defines "manufacturer" as the "actual producer of the [IID] who assembles the product and who may provide distribution and services." Rule 15A-9.003(21) defines "service provider" as the "retail supplier of the approved [IID]." Rule 15A-9.008 addresses the installation and removal of IIDs. Rule 15A-9.008(1) requires the "manufacturer or his [sic] representative" to install the IID in accordance with the guidelines of the National Highway Traffic Safety Administration. Rule 15A-19.008(2) requires the "service provider" to develop and deliver an IID orientation to the convicted person. Rule 15A-9.009 addresses the servicing of IIDs. Rule 15A-9.009(2) requires the "service provider" to service the IID at the intervals stated in the contract with Respondent, calibrate the IID, retrieve data from the IID and timely submit the data to Respondent, and check for signs of tampering with the IID. Rule 15A-9.009(5) requires an IID to record the time and date of each breath test, the breath alcohol level of each test, and the time and date of any attempt to tamper with the IID. Rule 15A-9.009(6) requires the "manufacturer or service provider" to maintain a toll-free 24-hour emergency telephone support service and fix or replace any nonoperational IID within 48 hours of any call. Rule 15A-9.006, which is entitled, "Procedure for [IID] Approval," provides: All ignition interlock devices used pursuant to Sections 316.193 and 316.1937, Florida Statutes, must be approved by the department. The department shall contract with a manufacturer or manufacturers of ignition interlock devices for the services and commodities required for implementation of Sections 316.193, 316.1937, and 316.1938, Florida Statutes. The department shall maintain a list of approved ignition interlock devices. For the specific authority and laws implemented, Rule 15A-9.006 cites the same authority: sections 316.193, 316.1937, and 316.1938, Florida Statutes, and Federal Register Volume 57, Number 67, pages 11772-11787. Section 316.193 imposes penalties for DUI offenses. For second and third DUIs, convicted persons must have installed "an [IID] approved by [Respondent] in accordance with s. 316.1938." Section 316.1937 authorizes a court to order the installation of an IID under circumstances other than those described in section 316.193. Section 316.1937 provides that the court may prohibit the convicted person from operating a motor vehicle unless it is equipped with a "functioning [IID] certified by [Respondent] as provided in s. 316.1938 " The most relevant statute to this case is section 316.1938, which provides: [Respondent] shall certify or cause to be certified the accuracy and precision of the breath-testing component of the [IIDs] as required by s. 316.1937, and shall publish a list of approved devices, together with rules governing the accuracy and precision of the breath-testing component of such devices as adopted by rule in compliance with s. 316.1937. The cost of certification shall be borne by the manufacturers of [IIDs]. No model of [IID] shall be certified unless it meets the accuracy requirements specified by rule of [Respondent]. [Respondent] shall design and adopt by rule a warning label which shall be affixed to each [IID] upon installation. The label shall contain a warning that any person tampering, circumventing, or otherwise misusing the device is guilty of a violation of law and may be subject to civil liability. The document at Federal Register, Volume 57, Number 67, pages 11772, et seq., is a notice of the National Highway Traffic Safety Administration of technical specifications for IIDs (Model Specifications). Model Specifications applies to the manufacture, testing, calibration, data-reporting, and tamper-monitoring of IIDs. IIDs are manufactured by 16 corporations in the United States. Most, if not all, states operate IID programs for DUI offenders. Petitioner is a manufacturer and service provider of IIDs. Its sole manufacturing facility is in Cocoa, Florida, where Petitioner employs 30-35 persons. About 35,000 of Petitioner's IIDs are in use in 25 states, but not Florida. Intervenors, which are affiliated corporations, are manufacturers and service providers of IIDs. (References to Intervenors will include either Intervenor, as appropriate.) Pursuant to the contract described below, Intervenors have provided IID services to over 6000 convicted persons in Florida. Intervenor is a manufacturer and service provider of IIDs and presently operates in 46 states. Respondent has tentatively selected Intervenor as the sole vendor for the state of Florida in the 2013-14 procurement described below. In 2003, Respondent issued an invitation to negotiate for IIDs and IID services. Following a tentative award to Intervenors, a vendor challenged the award, arguing, at least in part, that Respondent lacked the authority to limit the number of IID service providers. In a settlement, Respondent awarded the south region of Florida to Intervenors and the north region of Florida to the bid protestor, which was #1 A Lifesafer, Inc. (Lifesafer). In 2004, Respondent entered into contracts for IIDs and IID services with these vendors. As extended, the 2004 contracts are set to expire on March 31, 2014. Respondent issued a Request for Proposals on July 3, 2013 (RFP). Providing for the replacement of the 2004 contracts described in the preceding paragraph, the RFP is to enable Respondent to select up to two vendors to "implement and operate an [IID] Program" in Florida. RFP Attachment C-19 provides that the term of the new contract(s) shall be five years with an "anticipated" renewal term of another five years.2/ The RFP calls for responses detailing, among other things, the IID hardware by name and model, which must comply with Model Specifications requirements; software to provide Respondent with online access to data downloads from IIDs; installation; service, inspection and monitoring; contractor staffing; training of staff; security and fraud prevention; and transition services for IID convicted persons being serviced by a party to the current IID contract. No one filed a specifications challenge to the RFP. Respondent received four responses; they were from Petitioner, Intervenors, Intervenor, and Lifesafer. Petitioner, Intervenors, and Lifesafer have challenged the tentative award to Intervenor, and these bid protests are pending at DOAH as DOAH Case Nos. 13-3924BID, 13-3925BID, and 13-4037BID. Respondent acknowledges that the procurement of IIDs and IID services by contract provides it more flexibility than if it specified requirements and performance standards by rule. Respondent concedes that other states allow IID service providers to operate IID programs with open competition. Respondent contends that procuring these IID services by statewide or regional contract ensures the delivery of services to rural areas that otherwise might be underserved, the delivery of uniform services throughout the state, the transmission from the IID service provider of compliance data that would be jeopardized if numerous IID service providers operated in the state, the existence of a process for the removal of an IID service provider that did not discharge its responsibilities in a timely and competent fashion, and the familiarity among Respondent's limited staff with the limited makes of IIDs in use in Florida.
The Issue The issue for determination is whether Respondent was substantially justified, within the meaning of Section 57.111, Florida Statutes (2002), in initiating disciplinary proceedings against Petitioner, a licensed dentist, in Division of Administrative Hearings (DOAH) Case Number 01-3509PL (the underlying case). (All statutory references are to Florida Statutes (2002) unless otherwise stated.)
Findings Of Fact 1. Petitioner is a licensed dentist in the State of Florida pursuant to license number DN9676. Respondent is the state agency charged with regulating the practice of dentistry pursuant to Section 20.43, Chapter 456, and Chapter 466. 2. Several facts are not disputed by the parties. Petitioner filed this proceeding pursuant to Section 57.111. Respondent initiated the underlying case. Respondent is not a nominal party. Petitioner is a "prevailing small business party." The attorney's fees sought by Petitioner are reasonable in an amount up to $15,000.00. The statutory cap of $15,000.00 applies in this case. 3. At the Probable Cause meeting of June 12, 2001, the members of the Probable Cause Panel had probable cause to believe that Petitioner violated applicable law by failing to refer his patient to a specialist for lingual nerve damage suffered by the patient when Petitioner extracted the patient's wisdom teeth. At the Probable Cause meeting, the Panel received the entire investigative file, including all medical records, a statement and expert opinion submitted on the behalf of Petitioner by his attorney, and the expert opinion of Nidal Elias, D.D.S. M.S., submitted by Respondent. 4. Dr. Elias reviewed the medical records and rendered an expert opinion that the medical records submitted by Petitioner did not contain an indication that Petitioner referred his patient to a specialist. The medical records failed to reveal that the Petitioner referred the patient to a specialist. 5S. The medical records did not contain an express notation that Petitioner referred the patient to a specialist and did not contain a referral form. The Probable Cause Panel correctly determined probable cause existed for initiating disciplinary action against Petitioner. 6. The Administrative Complaint filed in the underlying case alleged that Petitioner failed to refer his patient to a specialist. However, counsel for Respondent attempted to prove that Petitioner failed to refer his patient in a timely manner. The ALJ excluded any evidence of the untimely nature of a referral to a specialist because the Administrative Complaint did not allege that Petitioner failed to refer his patient ina timely manner. The ALJ found the evidence to be less than clear and convincing that Petitioner failed to refer his patient to a specialist.
Conclusions For Petitioner: William M. Powell, Esquire Powell & Steinberg, P.A. 3515 Del Prado Boulevard Waterside Plaza, Suite 101 Cape Coral, Florida 33904 For Respondent: Trisha D. Bowles, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with the Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact The Respondent, Fahmy M. Rizk, M.D., is a licensed physician in the State of Florida, having been issued license number ME0028230. The Respondent is engaged in the practice of medicine at 117 San Carlos Boulevard, Ft. Myers Beach, Florida 33931. A formal hearing was held on August 22, 1978, before a hearing officer of the Division of Administrative Hearings, which resulted in a Recommended Order to the Board of Medical Examiners. The Recommended Order, with findings of fact and conclusions of law, was adopted as the Final Order of the Board of Medical Examiners on October 27, 1978, resulting in the suspension of Respondent's license for two (2) years. Respondent petitioned for reinstatement and modification of the suspension by Petition For Reinstatement And Modification Of Suspension heard on October 25, 1980, in Tampa, Florida. The petition resulted in a Final Order of the Board of Medical Examiners, entered on November 19, 1980, accepting a proposed Stipulation executed by the Respondent, Fahmy M. Rizk, M.D., on November 1, 1980. In the Stipulation, Respondent agreed, among other things: I shall be placed on a probationary status throughout the remainder of my practice of medicine in the State of Florida. During this period of probation, I shall be subject to the following terms and conditions: * * * (c) I shall examine or treat female patients only with the constant attendance of a licensed physician or nurse. Under the Final Order of the Board of Medical Examiners dated November 19, 1980, pursuant to the Stipulation executed by the Respondent on November 1, 1980, Respondent was reinstated to practice medicine in the State of Florida, based upon the requirements in the Stipulation. On June 6, 1981, the Board of Medical Examiners heard Respondent's request to practice medicine outside of a structured medical environment, and the request was denied June 26, 1981. On December 6, 1981, Respondent again requested of the Board of Medical Examiners a modification of his probation terms and conditions to once more practice outside of a structured medical environment, and the request was denied by Order dated January 14, 1982. On June 6, 1982, Respondent petitioned the Board of Medical Examiners for termination of his probation status, and the request was denied by Final Order of the Board of Medical Examiners on June 15, 1982. Again, on December 3, 1983, Respondent petitioned the Board of Medical Examiners to terminate his probation, and the request was denied by Order of the Board of Medical Examiners on January 13, 1984. However, Respondent's orders of probation were modified to relieve Respondent of the requirement that he make semiannual appearances before the Board and to reduce his monitoring physician's reporting from monthly to quarterly. In the year ending approximately February 2, 1986, Respondent examined or treated female patients without the attendance of either a licensed physician or a nurse, licensed or unlicensed. Respondent knew that he was required to have either a licensed physician or nurse in attendance when he examined or treated female patients. Between January and June, 1983, Respondent hired a nurse who was not licensed in Florida for $3.50 an hour to be in attendance when he examined or treated female patients. He misrepresented to Petitioner's investigator that the nurse was licensed in Florida and that she worked for Respondent through 1985. In April, 1985, Respondent also attempted to avoid the conditions of his probation by attempting to persuade Petitioner's investigator that the conditions of his probation had been modified to permit him to examine and treat female patients as long as another female was present although no such modification had been made. Much of the incriminating evidence Petitioner presented consisted of statements Respondent made to Petitioner's investigator. These statements were made voluntarily after the investigator informed Respondent that he was not obligated to speak to the investigator.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Medical Examiners enter a final order holding Respondent, Fahmy M. Rizk, M.D., guilty of violating Section 458.331(1)(h) and (x), Florida Statutes (1985), and suspending his license until payment of a $1000 fine, payable in not more than 90 days. DONE AND ORDERED this 6th day of April, 1987 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3572 These rulings on the parties' proposed findings of fact are made to comply with Section 120.59(2), Florida Statutes (1985). Petitioner's Proposed Findings of Fact. 1.-8. Accepted and incorporated. 9.-24. Subordinate to facts found. 25.-27. Accepted and incorporated. 28.-66. Subordinate to facts found. (It should be noted that "Dr. Murphy," as indicated in the transcript and referred to in proposed finding 29, should be Dr. Mufdi, according to the Hearing Officer's notes.) Respondent's Proposed Findings of Fact. 1.-4. Accepted and incorporated. 5.-6. Accepted but subordinate to facts found and unnecessary. Last sentence rejected as erroneous conclusion of law; rest accepted and subordinate to facts found. Accepted but subordinate to facts found and unnecessary. 9.-13. Accepted but subordinate to facts found. Rejected that the advice was "in spite of the official policy and procedures" because proof was that the advice was in accordance with the official policy and procedures. Rejected as contrary to the greater weight of the evidence to the extent it implies she was Respondent's only nurse. The evidence was Respondent told Potter that Cordias was part-time and worked when Muskatello was off. Also subordinate as a recitation of testimony. 16.-17. Accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. (Other matters were discussed, too.) Also subordinate. Last sentence rejected, as contrary to the greater weight of the evidence, that those were the only matters discussed; rest rejected in part as erroneous conclusions of law as to the existence of a "fifth amendment privilege" and "right to an attorney" and in part as contrary to the finding that Potter did advise Respondent of his right to remain silent but otherwise accepted and subordinate to facts found. If "medical office" means "examination room," accepted but subordinate and unnecessary. First sentence accepted but subordinate to facts found; as to the second sentence, Potter's testimony was that in October, 1985, Respondent said Muskatello had not worked for him in the last four months; third sentence rejected as contrary to the finding that Respondent told Potter that Muskatello worked for Respondent through 1985 (although the transcript of the final hearing will reflect that Potter's testimony was not presented in a clear and readily understandable manner); last sentence subordinate to facts found. Subordinate in part to facts found and in part to facts contrary to facts found. Again, the transcript of the final hearing will reflect that Potter's testimony was not presented in a clear and easily understandable manner. It is equally clear that the facts found could have been proved more easily by evidence in addition to Respondent's admissions. But, as found, the evidence as a whole was sufficient to prove both that Mrs. Rizk was not a nurse, licensed or unlicensed, and that Respondent did examine or treat female patients in the year ending approximately February 2, 1986, without a licensed physician or nurse, licensed or unlicensed, being in attendance. Rejected as contrary to facts found. COPIES FURNISHED: David D. Bryant, Esquire 1107 D. Jackson Street Suite 104 Tampa, Florida 33602 Salvatore A. Carpino, Esquire FREEMAN & LOPEZ, P.A. 4600 West Cypress Avenue Suite 410 Tampa, Florida 33607 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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
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.
