The Issue Whether one or more grounds exist for suspending, or imposing other discipline against, Respondent’s license, where Petitioner charges that Respondent engaged in fraudulent or dishonest practices in the conduct of business as a licensed health insurance agent.
Findings Of Fact The evidence presented at final hearing established the facts that follow. The Big Picture 1. Gonzalez is, and at all times material was, a Florida- licensed health insurance agent whose conduct qua licensee is subject to the regulatory jurisdiction of the Department. 2. From April 1997 until January 25, 1999, Gonzalez worked as a sales representative for Foundation Health, a Florida Health Plan, Inc. (“Foundation”) at its offices in Dade County, Florida. Foundation paid Gonzalez a base salary and car allowance plus commissions and bonuses tied to production. 3. As an agent of Foundation, Gonzalez’s job was to solicit applications from Medicare recipients for membership in Foundation’s Senior Value Medicare Plan, a health maintenance organization (“HMO”) that, through managed care, provided a broader spectrum of benefits than otherwise was available under traditional Medicare coverage. For each Medicare recipient enrolled in the Senior Value Medicare Plan, Foundation received a monthly payment from the federal Health Care Financing Administration (“HCFA”). 4. On January 14, 1999, Gonzalez, as Foundation’s representative, signed an application for enrollment in the Senior Value Medicare Plan that had been filled out for an applicant named “Doris Simpson.” Included in the application were numerous identifying data such as Ms. Simpson’s address, phone number, date of birth, social security number, and Medicare number. Gonzalez submitted Ms. Simpson’s January 14, 1999, application to Foundation, initiating the enrollment process. 5. The Doris Simpson who fit the application’s description had died on or around July 1, 1998. The fact of her death was discovered in short order by HCFA during the ordinary course of the enrollment process. HCFA naturally rejected the bogus application and notified Foundation of the problem on or around January 20, 1999. 6. On January 22, 1999, Foundation suspended Gonzalez for three days, effective immediately, pending the outcome of its investigation into the Doris Simpson matter. 7. Gonzalez resigned his employment with Foundation on January 25, 1999. Thereafter, on February 1, 1999, Gonzalez began working for Physicians Healthcare Plans, Inc. as a sales representative, a job he has held ever since. Mistake or Misconduct? 8. The foregoing facts are largely undisputed; those that follow mostly are, hotly. Getting to the bottom of whether Gonzalez made an honest mistake, as he maintains, or submitted a fraudulent application, as the Department has charged, is facilitated by a careful scrutiny of Gonzalez’s conflicting explanations of what happened. 9. Gonzalez’s most contemporaneous account of the Simpson affair appears to be contained in an undated handwritten document, entitled simply “Statement,” that Gonzalez himself indisputably prepared and signed. The full text of this paper follows: STATEMENT Prospect: Doris Simpson Ss# 075-22-6675 Agent: George J. Gonzalez Ss# 263-92-7916 To whom it may concern: To the best of my recollection I arrived at 20879 N.W. 9th Ct #107 (Walden Ponds Community) during the morning of (on or about) 11 a.m. 14th Jan.—through the gate system. Ms. Simpson agreed to my visit & let me in. Ms. Simpson opened [the] door and throughout my presentation produced a Medicare card and then proceeded to verification. Verification person was “DAWN.” Throughout the whole process everything proceeded to a normal sit down “application-to-verification” prospect call. P.S. She is blind, African-American. {Signed] George J. Gonzalez 10. Gonzalez’s manager at Foundation, Sergio Rumie, testified that sometime between January 20 and January 22, 1999, Gonzalez personally had handed him this Statement, which, according to Mr. Rumie, constituted Gonzalez’s written explanation of what had occurred with the Simpson application. Mr. Rumie recalled that in a discussion between the two of them, Gonzalez had told him that he (Gonzalez) had met with someone (obviously not Doris Simpson) in the Simpson household on January 14, 1999, who had held herself out as Ms. Simpson and signed the application. Mr. Rumie believed Gonzalez. 11. Although the Statement is not dated, two details in Gonzalez’s handwritten memorandum strongly suggest that the events of January 14, 1999, were its intended subject. The first of these telltale details is the date itself. The controversial Simpson application is dated January 14, 1999. The Statement refers to a meeting between Gonzalez and Doris Simpson on January 14. No imagination is required to connect one to the other. 12. The second common denominator linking the Statement to the phony Simpson application is the verifier’s name, Dawn. Before going on, however, some additional background must be provided, so that the significance of this datum may be understood. 13. At all times material, an independent contractor located in Utah performed application verification services for Foundation. The name of this contractor is not in evidence. For convenience’s sake, following the witnesses’ lead, the contractor will be referred to simply as “Utah.” 14. As part of the approved sales process, Foundation required its agents to place a telephone call to Utah, in the presence of the prospective enrollee, whenever an application had been completed. Once connected, the agent was supposed to introduce the applicant to the verifier, and then turn the phone over to the applicant. Using a script, the verifier would ask the applicant a series of questions, to confirm that he or she understood the transaction at hand. If the interview went well, the verifier would give the agent a verification number along with his or her name, both of which the agent would record on the face of the application. Foundation would not accept an _application unless it contained a verification number. 15. On the controversial Simpson application of January 14, 1999, Gonzalez wrote, by hand, a verification number and the verifier’s name, which happens to have been Dawn—the very name, recall, of the verifier who was so prominently identified (as “DAWN”) in the Statement. 16. If the story ended here, it would be difficult to find that Gonzalez had willfully submitted a false application. Rather, to this point, Gonzalez seems to have been the victim of a strange hoax, fooled by an imposter pretending (for reasons that admittedly are not readily apparent) to be the late Doris Simpson. Mr. Rumie, after all, who knew Gonzalez and was ina position to assess his character and credibility at the time of the incident, had believed this to be the case. 17. But there is more to the story. The exculpatory scenario just mentioned holds water only if Gonzalez were unacquainted with the real Doris Simpson, for if Gonzalez had known the decedent personally, then common sense would counsel that he could not have fallen for a poseur’s deceit. 18. Gonzalez testified that he had been to Ms. Simpson's home on three occasions before January 1999, and that he knew her well. Twice, he said, he had taken an application from Ms. Simpson in person, had submitted the application, which was accepted, and thereby had succeeded in enrolling her in Foundation’s HMO. Each time, however, Ms. Simpson had dis- enrolled before long. Corroborating Gonzalez’s account are two completed applications, dated March 31, 1997, and June 4, 1998, and the fact that Ms. Simpson had been a member of the Senior Value Medical Plan for brief periods following these dates. 19. Gonzalez claimed also to have taken an application from Ms. Simpson in January 1998 that was rejected. In contrast to the other two, however, no application from January 1998 was produced at hearing—indeed, no persuasive corroborating evidence of any kind was adduced in support of this supposed January 1998 application. 20. The reliability of Gonzalez's testimony that he knew Ms. Simpson personally from dealings between them that had occurred before January 1999 is high because the fact is against his interests; this much of Gonzalez's testimony, therefore, is accepted as true and adopted as a fact finding. 21. On the other hand, Gonzalez's testimony that he met with Ms. Simpson in January 1998 and took an application from her at that time is suspiciously self-serving (as will be seen) and, ultimately, not believable. Initially, Gonzalez’s failure to produce the purported application raises a skeptical eyebrow. But what sinks Gonzalez's story about meeting Ms. Simpson in January 1998 is that the tale was told in an incredible attempt to explain away the Statement (which, if intended to refer to events of January 14, 1999, cannot be squared with Gonzalez’s admission that he had by then known Ms. Simpson personally from prior dealings) as a memorandum regarding this purported January 1998 visit. Gonzalez maintained that, by coincidence, he had happened to meet with Ms. Simpson on January 14, 1998, and again on January 14, 1999, and that both times the verifier, as chance would have it, was Dawn. This contention is contrived and forced. 22. Taken as a whole, the evidence is convincing that Gonzalez wrote the Statement in January 1999 for his former employer and delivered it to Mr. Rumie between January 20 and January 22, 1999, with the intent that the Statement be understood as a description of the circumstances surrounding Gonzalez’s solicitation of the January 14, 1999, application from the putative Ms. Simpson. The contents of the Statement, 10 however, are false and misleading, as was Gonzalez's testimony at hearing about the Statement. 23. Gonzalez gave a different account of the Simpson application to the Department of Insurance in response to the Administrative Complaint in this matter. In an undated letter to the Department which the Department received on September 6, 2000, Gonzalez wrote: By recollection I believe this case involves a mail-in situation. I recall that I sent maybe two/three such invitation packages in the Spring of 1998 and one could have been for Mrs. Simpson. That practice is no longer tolerated after a new Vice-president of marketing (Medicare) was installed in the Sawgrass Headquarters late May of that same year. As 1998 was ending in December (late) I believe I received an application signed and (I believe) it was the Simpson one. I completed the data in those days that followed early in January 1999, before starting my new job did a phone verification (3 way) or gave this information to a verifying person (Utah) and the person was thus verified (I cannot be clear on this). Hearing no problems from Utah I recorded the authorization # on a call back from Utah or after the verification; if done by 3-way. I did not know of her death and in fact only found out when receiving your package of counts and allegations on August 21, 2000. I would only add that Mrs. Simpson had a family member there, perhaps her sister. During my first application for the plan with Mrs. Simpson in late 1997 I believe she helped in the signing and subsequent verification of her sister. Mrs. Simpson 11 could not sign any proper way the petitions. I believe she was blind in my recollections. 24. Ironically, one of the few unqualified representations in this letter of Gonzalez's to the Department—that he “in fact” had first learned of Ms. Simpson’s death upon receipt of the Administrative Complaint—was clearly untrue. In fact, Gonzalez undeniably had known of Ms. Simpson's death at the time of his resignation from Foundation on January 25, 1999, if not sooner, and certainly long before August 21, 2000, in any event. 25. As for the rest of this explanation, Gonzalez essentially stuck with it at hearing, although his memory apparently had improved by then, for he seemed far more confident of the details than he had as author of the above- quoted letter. 26. In a nutshell, Gonzalez claimed that, on his own initiative, he had mailed a partially filled-out application to Ms. Simpson in June or July 1998 with note asking her to sign and return the document if she wanted to re-enroll in Foundation's Medicare HMO. He claimed to have had no further contact with Ms. Simpson until, in late December 1998 or early January 1999, he received through the mail Ms. Simpson's signed- but-undated application. According to Gonzalez, despite the delay of some five months, Gonzalez failed to call Ms. Simpson to confirm her continued interest and instead signed the 12 application on January 14, 1999, inscribing the same date next to the purported signature of Ms. Simpson. He claimed to have contacted Utah, provided the necessary information to the verifier, and in due course to have received a verification number from Dawn, which signified to him that all was in order. 27. This story is facially unbelievable and is rejected as a fabrication. Moreover, there is an out-of-place detail on the January 14, 1999, application that exposes the chicanery; namely, the designated primary care physician, a Dr. Nidal Radwan, who is specifically identified therein as Ms. Simpson's current physician. When Gonzalez was asked at hearing to point out the parts of the application that he had filled out, Gonzalez replied, making reference to the top quarter of the first page where the primary care physician information appears, that [t]he part that's my handwriting is the name, the address, the phone number, and the date of birth, and doctor selected, which was her last doctor. I put it there, I said does she [sic] want this doctor again. Transcript of Final Hearing at 193 (emphasis added). 28. At the time Gonzalez supposedly prepared this application, in June or July 1998, he had not spoken with Ms. Simpson specifically about doing so; indeed, she may well already have passed away. He certainly did not speak with her about doctors after July 1, 1998. Yet on the previous 13 application that Gonzalez had taken from Ms. Simpson just a few weeks before her death, dated June 4, 1998 (Respondent's Exhibit 4), Ms. Simpson had chosen a Dr. [Illegible] -Nunez as her primary care physician—not Dr. Radwan. 29. It is commonly known that for a genuine insurance application, the sales representative or agent will endeavor to elicit truthful, complete, and current information from the applicant and rely upon the applicant's representations in preparing the paperwork. The fact that Gonzalez's selection of Dr. Radwan as Ms. Simpson's "current" primary care physician was not based on information obtained from Ms. Simpson—aindeed, his election deviated from her last (known) written expression of intent in this regard—-exposes the act as an arbitrary choice of Gonzalez's, which in turn underscores the counterfeit nature of the January 14, 1999, application. The Charges 30. In Count I of its Administrative Complaint, based on allegations that Gonzalez had signed and presented an application for insurance in the name Doris Simpson, who was at the time deceased, the Department accused Gonzalez of having submitted an enrollment form that he "knew or should have known" contained false or fraudulent information, in violation of Sections 626.611 and 626.621, Florida Statutes. Specifically, the Department alleged the following grounds for discipline: 14 (a) Willful misrepresentation of any insurance policy or annuity contract or willful deception with regard to any such policy or contract, done either in person or by any form of dissemination of information or advertising. [Section 626.611(5), Florida Statutes] ; (b) Demonstrated lack of fitness or trustworthiness to engage in the business of insurance. [Section 626.611(7}, Florida Statutes] ; (c) Fraudulent or dishonest practices in the conduct of business under the license or appointment. [Section 626.611(9), Florida Statutes] ; (d) Willful failure to comply with, or willful violation of, any proper order or rule of the department or willful violation of any provision of this code. [Section 626.611(13), Florida Statutes] ; (e) Violation of any provision of this code or of any other law applicable to the business of insurance in the course of dealing under the license or appointment. [Section 626.621(2), Florida Statutes] ; (£) In the conduct of business under the license or appointment, engaging in unfair methods of competition or in unfair or deceptive acts or practices, as prohibited under part X of this chapter, or having otherwise shown himself or herself to be a source of injury or loss to the public or detrimental to the public interest. [Section 626.621(6), Florida Statutes] ; [and] (g} UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE ACTS.- The following are defined as unfair methods of competition and unfair or deceptive acts or practices: Misrepresentation in insurance applications.- Knowingly making a false or 15 fraudulent written or oral statement or representation on, or relative to, an application or negotiation for an insurance policy for the purpose of obtaining a fee, commission, money, or other benefit from any insurer, agent, broker, or individual. [Section 626.9541(1) (k), Florida Statutes] [.] Ultimate Factual Determinations 31. Because the evidence does not illuminate all the particulars of Gonzalez’s scheme, it is impossible to reconstruct completely the precise course of his misconduct. The evidence is sufficient, however, to establish, clearly and convincingly, that on or around January 14, 1999, Gonzalez: (a) signed an insurance application for Ms. Doris Simpson knowing that she had neither requested the sought-after coverage, nor supplied information for that application, nor executed the application herself; (b) placed a date next to the purported signature of Ms. Simpson (which he knew was not hers) intentionally to represent, falsely, that “she” and he had signed the instrument contemporaneously (and hence, implicitly, in one another’s presence); and (c) with intent to deceive, submitted this bogus application to his employer, Foundation, for the purpose of obtaining a commission or other benefit. 16
Conclusions For Petitioner: Anoush A. Arakalian, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 For Respondent: Ignacio Siberio, Esquire 525 Northwest 27th Avenue, Suite 100 Miami, Florida 33125
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order suspending Gonzalez’s health insurance agent license for a period of one year. 21 DONE AND ENTERED this 10 day of July, 2001, in Tallahassee, Leon Count Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this lot day of July, 2001.
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
Findings Of Fact Petitioner filed with the Board of Medical Examiners an application for licensure by examination in 1983. Included with that application were original "affidavits" submitted on Petitioner's behalf by Dr. Borroto and Dr. Velez. Petitioner filed an application for licensure by endorsement in October of 1984. In conjunction with his application for licensure by endorsement, Petitioner submitted photocopies of the "affidavits" submitted with his 1983 application for licensure by examination. These photocopies of Dr. Borroto's and Dr. Velez's "affidavits" were submitted by Petitioner with notarized attestations that the notary had in fact seen the originals. Petitioner knew that this was not true. On December 28, 1984, Dorothy Faircloth, Executive Director of the Board of Medical Examiners (hereinafter "the Board"), sent Petitioner a letter indicating, among other things, that Petitioner had submitted photocopies rather than original letters establishing his five years of licensed medical practice. Furthermore, he was notified that his application would not be complete until the originals were received. The same letter notified Petitioner that all documents to be notarized must be certified as true and correct copies of the original and stated so by the notary. Petitioner was specifically warned that the notary must see the original and copy in order to make the required statement. In January of 1985, Petitioner submitted new affidavits concerning five years of licensed medical practice. On August 2, 1985, Petitioner attended a meeting of the Board's Foreign Medical Graduate Committee (hereinafter "FMGC") in order to address problems with his application for licensure by endorsement. At that meeting, Petitioner failed to satisfactorily address the issues concerning affidavits attesting to his five years of licensed medical practice. The committee voted to recommend denial of Petitioner's application based upon the lack of personal knowledge of the affiants, improper notarization of the purported affidavits and fraudulent notarization of the 1983 affidavits of Dr. Borroto and Dr. Velez. The Board considered Petitioner's application for licensure by endorsement on August 3, 1985, and voted to deny licensure based on the recommendations of the FMGC. An Order to that effect was filed on August 26, 1985. On October 4, 1985, the FMGC reconsidered Petitioner's application, including new affidavits from Dr. Oscar R. Bravo-Campa, Dr. Juan A. Enriquez- Elesgaray and two other licensed physicians. However, the FMGC determined that the new affidavits did not overcome the problems raised during Petitioner's original attempt to obtain licensure by endorsement and voted to reaffirm their previous recommendation. On October 5, 1985, the Board reconsidered Petitioner's application for licensure by endorsement and voted to reaffirm its previous denial. An Order to that effect was filed on March 27, 1986. Dr. Pedro G. Velez's certification dated January 10, 1983, stated that he had personal knowledge of Petitioner's medical practice in Cuba from January 1971 to June 1980. At the final hearing in this cause, Dr. Velez testified that he has known Petitioner personally only since the 1980s and that he did not know him professionally in Cuba at all. Dr. Velez also testified that he left Cuba in 1966 and that he might have met Petitioner when Petitioner was a student in 1964. Dr. Velez further testified that he signed a second letter in behalf of Petitioner. He testified that Petitioner had probably prepared it for his signature and that no one was present when he signed it. Specifically, the notary who attested to his signature was not present. Dr. Pedro G. Velez clearly had no personal knowledge that Petitioner was licensed to practice or did practice medicine in Cuba from January 1971 through June 1980. The certification completed by Dr. Esperanza Arce-Nunez, regarding Petitioner's five years of licensed medical practice and submitted by Petitioner to the Board in 1985, was not notarized as an affidavit. Dr. Arce-Nunez testified that she could not remember anything about seeing Petitioner in a practice setting in 1971, one of the years covered by her certification. In fact, her only personal knowledge of Petitioner's practice of medicine in Cuba occurred in 1977. Dr. Oscar R. Bravo-Campa testified that he coincided with Petitioner during annual medical rotations in Havana every year. He also testified that he could not remember when or where he saw Petitioner in a practice setting during the nine years covered by his affidavit, which specifically stated that he had contact with Petitioner in a practice setting three times a year in addition to rotations every year between 1971 and 1980. In fact, his only personal knowledge of Petitioner's practice of medicine in Cuba occurred in 1977. Dr. Ignacio Coro initially testified that he knew Petitioner for six years. In fact, Petitioner has resided in this country for approximately six years, since June of 1980. Dr. Coro subsequently claimed to know Petitioner longer than six years, about thirteen years. Although Dr. Coro's certification claimed he saw Petitioner in a practice setting twice a year from 1971 to 1980, he testified that he saw Petitioner only once in 1980. Dr. Coro could not remember seeing Petitioner in a practice setting during 1973. Dr. Coro further testified that the clarification statement, dated September 20, 1985 and attached to his September 9, 1985 affidavit, was included because Petitioner specifically requested it, and he did not know where the document was typed. The certification prepared by Dr. Juan A. Enriquez-Elesagaray and submitted by Petitioner did not contain a notarization. Petitioner testified that the letters dated September 20, 1985 and signed by Dr. Esperanza Arce-Nunez, Dr. Oscar R. Hravo-Campa, Dr. Ignacio Core, and Dr. Juan A. Enriquez- Elesgaray were each composed by the individual doctors. However, the letters are almost identical as to their wording, punctuation mistakes and misspellings. Petitioner testified both that he received his medical degree in 1971 and in 1977. Petitioner further testified that he allowed his application to be notarized by someone who did not witness his signature. Dorothy Faircloth, Executive Director of the Board, testified that the Board initially had concerns about Petitioner's application, specifically because he submitted affidavits with attestations stating that the notary had seen the originals. The Board doubted the veracity of such a statement because the originals were in the Board's possession. Ms. Faircloth also testified that the change in the Board's certification forms that took place subsequent to 1983 was an attempt to clarify and emphasize the Board's previous requirement that affiants have actual knowledge, by determining the basis and frequency of such knowledge. Petitioner took his blank application (except for Petitioner's signature) to Dr. Luis Manuel Rodriguez Molina who prepares licensure application documents for Cuba doctors seeking licensure in Florida. Molina translated and/or filled in all documents, obtained signatures, and then later had his son notarize those documents even though none was actually signed in the presence of his son, the notary public. When he submitted it to the Board, Petitioner knew that he had not signed his application in front of a notary public, and, therefore, Petitioner's affidavit portion of his application was knowingly false. The purported "personal knowledge" of each affiant and witness testifying as to Petitioner's five years of actual practice is that each between the years of 1971 and 1980 saw Petitioner at the equivalent of medical association meetings. These meetings were, however, also attended by students. Only Dr. Elesgaray could testify that he saw Petitioner in a practice setting twice each year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure by endorsement. DONE and RECOMMENDED this 13th day of January, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1987. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Ramon S. Santos, Jr., Esquire 1000 Ponce de Leon Boulevard, Suite 303 Coral Gables, Florida 33134 M. Catherine Lannon, Esquire Allen R. Grossman, Esquire Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact On July 17, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report which resulted from a complaint filed against Petitioner by the mother of a deceased patient. Prior to the meeting of the Probable Cause Panel, Robert N. Baskin, M.D., had reviewed Petitioner's office records, the medical examiner's report, the emergency room records and a letter from the patient's mother concerning Petitioner's care and treatment of that patient. Dr. Baskin had concluded that, if subsequently proven, the facts would constitute negligent or incompetent practice of medicine. The panel discussed the information which had been previously provided to it and determined that additional information was necessary before making a final determination of probable cause or no probable cause. The matter was returned to the Department of Professional Regulation for additional investigation. On September 25, 1986, a Probable Cause Panel of the Board of Medicine met to review the investigative report, including the supplemental report containing the additional information requested by the prior Probable Cause Panel. Based on the Investigative report which included Petitioner's office records, a summary of an interview with Petitioner, summaries of interviews with the patient's mother, a summary of an interview with and records of the medical examiner, and a summary of an interview with and the report of consultant Robert Baskin, M.D., the panel found that probable cause existed that Petitioner's activities had violated: Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; Section 458.331(1)(i), Florida Statutes, now Section 458.331(1)(h), by making or filing a report which the licensee knows to be false, intentionally or negligently failing to file a report or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so; and Section 458.331(1)(1), Florida Statutes, now Section 458.331(1)(k), by making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. The Probable Cause Panel expressed concern regarding several aspects of Petitioner's treatment of the deceased patient. The panel noted its basis for a finding of probable cause in Count One, the malpractice count: Diabetic ketone acidosis was consistent with the patient's history, and there was "sort of a lack of attention paid about some of [the patient's] complaints"; and One of the two panel members opined that Petitioner "did misdiagnose the symptoms that this patient had", and described Petitioner's practice in this case as "a little sloppy". Further, the consultant's report questioned whether Petitioner recognized the seriousness of the patient's condition at the time of his examination of the patient. This question focused on whether Petitioner had recommended that the patient be hospitalized, but the patient's mother had refused to hospitalize her son. Counts Two and Three of the Administrative Complaint were based solely on whether Petitioner had recommended hospitalization as his records reflected or if, in fact, the mother's contrary version of what had happened was correct. One of the two panel members opined that "Somebody's lying." This was a credibility question to be determined. The Probable Cause Panel found that there was probable cause to believe that Petitioner may have falsified his records, if the Hearing Officer found that Petitioner was the one not telling the truth in this matter. Petitioner's records showed that an addendum was written, stating that Petitioner recommended that the patient be hospitalized. A memorandum to the medical records file by Registered Nurse Betty J. Launius, written after the patient died, explained why Petitioner did not immediately respond to telephone calls regarding the patient's condition. These documents lent some credibility to the possibility that they were done after the fact to protect Petitioner from subsequent litigation alleging malpractice in this case. The Probable Cause Panel recognized that the questions raised by the investigation should be answered or resolved one way or another at an evidentiary hearing. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue a Recommended Order based upon the evidence presented. Division of Administrative Hearings Case No. 87-0276 was assigned. On July 16, 1987, DOAH Case No. 87-0276 was heard in Venice, Florida. A Recommended Order was issued on October 22, 1987, recommending that a Final Order be entered finding Respondent not guilty of the allegations contained within the Administrative Complaint and dismissing the Administrative Complaint filed against Petitioner. The Board of Medicine adopted the Recommended Order and dismissed the Administrative Complaint against Respondent on February 18, 1988. The parties have agreed that the costs and attorney's fees set forth in the Amended Petition for Attorney's Fees filed June 20, 1988 are the amounts in question in this proceeding. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. The underlying administrative proceeding was initiated by the Respondent, a state agency. Petitioner was the prevailing party in the administrative proceeding material to this matter. There is no evidence that the transcript of the Probable Cause Panel meeting of July 17, 1986, was provided to or considered by the Probable Cause Panel which met on September 25, 1986. Petitioner incurred attorney's fees in the amount of $6,780.00 to defend himself in the underlying administrative proceeding and also incurred costs in the amount of $3,089.55. The amount of attorney's fees and costs are reasonable.
Findings Of Fact At all times relevant hereto, respondent, Arthritis Medical Center, Inc. (AMC), operated a facility at 901 Southeast 17th Street, Fort Lauderdale, Florida. According to its business card, AMC provides a "Hormone Balance Treatment" to patients suffering from arthritis and uses a "medication" that "combines three separate hormones - glucocorticoid and the male and female sex hormones." The card represents that AMC collaborates with a "medical staff" and that its registered nurse administrator was one Donna Pinorsky. 2/ The card reflects also that AMC has a facility at 2025 Broadway, #19D, New York City. The parties have stipulated that respondent holds no licenses or permits from any state regulatory agency. Further, it has no pending application for any permit. Petitioner, Department of Health and Rehabilitative Services (HRS), is charged with the responsibility of protecting the public health regarding commerce of drugs, devices and cosmetics. Through its pharmacy services program, HRS issues permits to those persons or establishments, other than pharmacies, who provide or sell legend drugs, devices or cosmetics to the public. Also, the agency inspects both permitted and unpermitted facilities that hold drugs, devices or cosmetics to ensure that adulterated, misbranded or unsanitary drugs are not dispensed to the public. To this end, HRS employs licensed pharmacists who make random, unannounced inspections of such facilities. This case arises out of two unsuccessful efforts by HRS inspectors to inspect respondent's facility. The inspections were prompted by HRS' receipt of a letter from the Department of Professional Regulation. The contents of the letter were not disclosed. On the afternoon of January 16, 1987, HRS inspectors Jones, Loudis and White, all licensed pharmacists, visited AMC's facility in Fort Lauderdale for the purpose of inspecting any legend drugs, devices or cosmetics that might be on the premises. They were met by Pinorsky, the facility's administrator. After identifying themselves, Pinorsky picked up a hand-held tape recorder and began taping the conversation. Pinorsky first acknowledged that a "Doctor Kline," whose sign was on the outside of the building, had offices at the facility but was not present. She also gave the inspectors an AMC business card which contained the information set forth in finding of fact 1. When the inspectors asked if any hormones were kept on the premises, Pinorsky responded by asking if the inspectors had a subpoena. After being told there was none, she read the inspectors the following statement: On advice of counsel, under the United States Supreme (Court) decision See's vs City of Seattle, Washington, I must decline to allow a search without a search warrant signed by a Judicial officer. And, if such warrant has been issued on advice of counsel I decline to consent to a search until a Court has ruled on a motion to quash under the Fourth & Fourteenth Amendments to the United States Constitution. My local attorney is Larry Altman Post Office Box 402404 Miami Beach, FL 33140 My general counsel is John Burgess 2000 Powell Street Suite 1680 Emoryville, CA 94608 The inspection ended at that point. Around 4:15 p.m. on March 13, 1987 Jones and Loudis returned to AMC's place of business for the purpose of conducting an inspection. They were met by one Kathy Bentley, a secretary, who was told the purpose of the visit. Bentley would not allow the inspection to be made because the "nurse" was not present. Pinorsky then entered the room carrying a "toddler." After putting the child down, Pinorsky immediately set up a tape recorder and began recording the conversation. After identifying themselves, the inspectors requested they be permitted to inspect the facility to ensure compliance with Chapter 499, Florida Statutes. Pinorsky denied their request saying there was ongoing "litigation" over their right to inspect the facility. The inspection ended at that point. Based upon the two unsuccessful efforts to inspect AMC's facility, an administrative complaint was issued by HRS in January, 1988. The complaint is the second administrative action taken against respondent. The first culminated in a Final Order issued on October 22, 1986 imposing a $500 fine on respondent for refusing to allow inspectors to inspect its facility on April 30, 1986. The inspectors had no search warrants to inspect AMC's facility nor had there been any finding of probable cause by a judge or magistrate that a statutory violation may have taken place on AMC's premises. Also, the inspectors did not know the precise nature of respondent's business or whether any drugs were actually kept on the premises. Indeed, Pinorsky never admitted that any were kept at the facility. The inspectors estimated that approximately forty percent of all inspections are on nonpermitted facilities. The inspections are made on a random basis or after the receipt of information from other agencies suggesting that one be made. In 1986-87, HRS inspected more than 350 health maintenance organizations, doctor's offices and medical centers as well as other establishments that hold drugs, devices and cosmetics. The basis for and criteria used in such inspections are set forth in a written HRS "operational guide." This document is not of record. Based upon (a) the representations in AMC's business card that it "treats" arthritis patients and that a "medication" is given to them, (b) the use of the term "medical center" in respondent's business name, and (c) the fact that a physician has offices at AMC's facility, it may be logically inferred that AMC is an establishment that holds or maintains drugs on its premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 499.005(6), Florida Statutes (1987), and Rule 10D-45.0545, Florida Administrative Code (1987), on two occasions and that it pay $5,000 for each violation, or a total of $10,000, said fine to be paid within 30 days from date of the Final Order rendered in this matter. DONE AND ORDERED this 30th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 30th day of August, 1988.
The Issue The issue to be determined is whether Petitioner, Department of Environmental Protection (DEP), is entitled to attorney’s fees pursuant to section 57.105, Florida Statutes, from Respondents, Bernard Spinrad and Marien Spinrad (Spinrads), and their counsel, related to litigation between the parties in DOAH Case No. 13-2254.
Findings Of Fact The Recommended Order in DOAH Case No. 13-2254, including the Preliminary Statement, the Findings of Fact, and the Conclusions of Law contained therein, and the Department of Environmental Protection’s Consolidated Final Order in OGC Case No. 13-0858 are incorporated herein by reference as the facts underlying this Final Order.
The Issue The issue in this proceeding is whether William Jeffery Mishko's application for qualification as general lines agent should be denied for the reasons stated in the letter of denial: nolo contendere plea to a felony failure to reveal that plea on the application, based on the provisions of subsections 626.611(1)(2) and (7) F.S. and subsection 626.621(8) F.S.
Findings Of Fact William Jeffery Mishko, 1649 Algonquin Trace, Maitland, Florida, submitted his application, dated December 26, 1986, to the Department of Insurance, seeking qualification to take the examination for licensure as a general lines agent or solicitor. At the time that he filled out the application he was attending an insurance school, Hilda Tucker School, in Ft. Lauderdale, Florida. It was the first day of class and the students were told to get their applications in for the examination. He hurriedly completed the form and mailed it. A series of questions on the form address criminal history of the applicant. Those questions and Mishko's responses are: 8. Have you ever been charged with a felony? Yes if YES give date(s): 5/23/84 What was the crime? controlled Stubstnce[sic] Where and when were you charged? Winter Springs C.C. Tuskawilla Did you plead guilty or nolo contendere? No Were you convicted? No Was adjudication withheld? x Please provide a brief description of the nature of the offense charged. [writing struck through] controlled substance If there has been more than one such felony charge, provide an explanation to each charge on an attachment. Certified copies of the information or indictment and Final Adjudication for each charge is required. ---No Mishko testified that he started to explain the whole story on 8.(f), but there was insufficient space. He did not attach an additional sheet and did not attach a copy of the court documents as they were not available to him at the time. Later, the agency returned his application to him with the incomplete items circled. The question at 8.(c) was circled, as well as others relating to residence and employment in the past five years. Mishko then went to the Seminole County courthouse, obtained the certified copies and sent them to the agency. The court records reveal that on January 13, 1986, in case no. 85-999 CFC, in circuit Court of Seminole county, William Jeffery Mishko entered a plea of nolo contendere to possession of a controlled substance. Adjudication was withheld and he was placed on probation for three years. Mishko had been arrested on May 23, 1985, with two friends. He said that he was at work at the golf and country club and two friends came to see him with a small amount of cocaine. The police found them in the golf cart shed and arrested them for possession of cocaine and paraphernalia. The information, dated August 12, 1985, alleges a violation of section 893.13 F.S.. Mishko attributes the errors in the answers on the form itself to his haste to get the application filed so he could take the examination as soon as he finished the course in Ft. Lauderdale. When he followed up the application with the certified court records, he did not amend the application form with the accurate date of arrest or with the correct answer to 8.(c).
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Department of Insurance enter a final order denying William Jeffery Mishko's application based upon subsection 626.621(8) F.S. DONE and RECOMMENDED this 20th day of July, 1987 in Tallahassee, Florida. MARY CLARK 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 20th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1254 The following constitute my specific rulings on the parties proposed findings of fact. Petitioner's Proposed Findings of Fact Adopted in paragraphs #1 and #2. Adopted in paragraph #2. Adopted in paragraphs #3 and #4. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph #3. Adopted in paragraph 4. Rejected as irrelevant. See paragraph 4, Conclusions of Law. 7-8. Adopted in paragraph #5. 9-11. Adopted in substance in paragraph #4. COPIES FURNISHED: Honorable William Gunter State Treasurer and Insurance Commissioner The capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, Esquire General counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Gerald Rutberg Esquire Post Office Box 977 Casselberry, Florida 32707 Rainell Y. McDonald, Esquire Richard W. Thornburg, Esquire Department of Insurance Room 413-B Larson Building Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent's request for a hearing to contest a Stop-Work Order and Amended Order of Penalty Assessment (Amended Assessment) issued by Petitioner, Department of Financial Services, Division of Workers' Compensation (Division), was timely filed by virtue of the doctrine of equitable tolling.
Findings Of Fact The Division is the state agency responsible for enforcing the various requirements of chapter 440. Respondent is a Florida limited liability company engaged in the construction business. Its offices are located at 1717 West Memorial Drive, Lakeland, Florida. On April 6, 2015, while driving in Spring Hill, Florida, Dale Russell, a Division compliance inspector, observed three individuals reroofing a single-family residence located at 1006 Chastile Drive. The three individuals confirmed that they were employed by Respondent's construction firm. Mr. Russell contacted Mr. Hutchinson, the owner of the corporation, who confirmed that the three individuals were employed by his firm and that the three were not covered by workers' compensation insurance. Because Mr. Hutchinson was in Lakeland that day, a Stop-Work Order was not served. However, the two agreed to meet at a later date in the Division's Tampa District Office. A Stop-Work Order and request for business records was served on Mr. Hutchinson by another investigator on April 8, 2015. The Stop-Work Order contained an Order of Penalty Assessment, which explained how a penalty is calculated, but gave no specific amount pending a review of Respondent's financial records. On May 20, 2015, an Amended Assessment was prepared indicating that Respondent was being assessed a total penalty of $96,364.78 for failing to secure the payment of workers' compensation insurance. The Amended Assessment was personally served on Respondent by Mr. Russell on May 26, 2015, when Mr. Hutchinson visited the Tampa District Office. The standard assessment form contains two important deadlines that must be met by the employer. On the first page, the form states that pursuant to Florida Administrative Code Rule 69L-6.028, "if the Division imputes the employer's payroll, the employer shall have twenty business days after service of the first amended order of penalty assessment to provide business records sufficient for the Division to determine the employer's payroll for the period requested in the business records request for the calculation of the penalty." It goes on to state that these records may be used to recalculate the employer's penalty "only if the employer provides all such business records within the twenty days after service of the first amended order of penalty assessment. Otherwise, the first amended order of penalty assessment will remain in effect." This means that Respondent had until June 23, 2015, in which to provide business records to the District Office. On the second page of the Amended Assessment is a section entitled Notice of Rights (Notice). Among other things, it states that if the employer requests a hearing, he "must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your receipt of this agency action." Notably, this timeframe is measured in calendar days, not business days, and means that if Respondent decided to request a hearing rather than providing additional financial records, the request had to be filed with, and received by, the Division no later than June 15, 2015. During his meeting with Mr. Hutchinson, the investigator explained the Amended Assessment, section by section. He specifically told Mr. Hutchinson that he had 20 business days in which to produce additional business records. He also told him that he had 21 calendar days in which to request a hearing. Mr. Russell is an experienced investigator, having worked as a deputy sheriff for 28 years before working as a Division inspector. He has issued numerous notices and is very familiar with the deadlines. Although Mr. Hutchinson testified that he asked Mr. Russell to confirm that he had 21 business days in which to file his business records, and was told that this was correct, which differs from Mr. Russell's version of the conversation, the testimony of the experienced investigator is accepted as being the most credible on this issue. The undersigned finds that Mr. Russell correctly explained the ramifications of the two deadlines and he did not mislead Mr. Hutchinson. The facts here do not demonstrate equitable tolling. Even though he was given accurate information regarding the two deadlines, it is evident that Mr. Hutchinson, a lay person, either misunderstood what he was told or was just plain confused. Obviously, he did not read the instructions on the Amended Assessment before submitting his records. Faced with a potential $96,364.78 assessment, it is somewhat surprising that Mr. Hutchinson did not contact the Tampa District Office after the May 26 meeting to reconfirm the precise date on which the records (or request for a hearing) were due. Even at hearing, he admitted that he did not know the difference between submitting business records and requesting a hearing. Believing that he had 21 business days to provide business records, Mr. Hutchinson carried his records to the Tampa District Office on June 24, 2015, or one day past the deadline established in the Amended Assessment. He was told by a Division supervisor that the submission was untimely and he had waived his right to produce them. Even though it was now too late, she recommended that Mr. Hutchinson prepare a request for a hearing, which would be submitted to Tallahassee for legal counsel to review. Pursuant to her instructions, that same morning, Mr. Hutchinson prepared a handwritten, one-page letter requesting a hearing. According to Respondent, the assessment is based on missing checks that, if produced, would establish that no penalty assessment is warranted. At hearing, over the Division's objection, Respondent was allowed to introduce into evidence bank records and copies of checks. See Resp. Ex. 6-23. Although the Division has not yet reviewed them, it acknowledged that they may substantially reduce the assessment. Throughout this proceeding, Respondent's qualified representative has contended that the Amended Assessment is defective because it does not inform the employer that a qualified representative can represent its interests. The first paragraph of the Notice in both the Amended Assessment and the Stop-Work Order states that "you may be represented by counsel," but it makes no reference to a qualified representative. However, in the second paragraph, which provides information regarding the filing of a petition requesting a hearing, it states that the petition must contain "the name, address, and telephone number, and facsimile number of the attorney or qualified representative of the petitioner (if any) upon whom service of pleadings and other papers shall be made." While more clarity in the first paragraph of the Notice would be appropriate, there is sufficient information in the Notice, if read, to alert the employer that alternative representation is allowed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order determining that Respondent's request for a hearing was untimely. However, it is recommended that the business records provided by Respondent at hearing be reviewed and considered to determine the correct amount owed, if any. DONE AND ENTERED this 3rd day of February, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 3rd day of February, 2016. COPIES FURNISHED: Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed) Trevor Sutor, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Jamison Jessup, Qualified Representative 557 Noremac Avenue Deltona, Florida 32738-7313 (eServed)
