Findings Of Fact Stipulated facts: Respondent Division of Licensing received Petitioner Iaderosa's application of a Class "P" intern license on October 7, 1980. By letter to Petitioner dated November 13, 1980 Respondent stated "Your application for a Class "P" Detection of Deception Examiner/Intern license has been approved. This license will be issued upon submitting the items listed below. However, should your fingerprint card be returned by the FBI indicating that you have a previous arrest record, the Department of State reserves the right to revoke your license. Please forward the following for the issuance of your license: Fee $30 [and] Certificate of Insurance. Respondent received the requested license fee and certificate of insurance on or before April 14, 1981. Respondent notified Petitioner on June 4, 1981: "Your application for the above referenced license [Administrative Denial/Detection of Deception Intern Class 'P' license] has been denied pursuant to Chapter 493.575, Florida Statutes which states: ... 'The Department of State may take the same disciplinary actions based upon the same grounds as set forth in Chapter 493.319, Florida Statutes...'." Petitioner conducted polygraph examinations without a license. Petitioner Iaderosa was employed by the Southern Institute of Polygraph on October 10, 1980 immediately subsequent to graduation from its accredited detection of deception examiner's school. She had applied for an intern license prior thereto but had not been licensed by Respondent or received notification that her application had been approved. Her sponsor for the compulsory year of internship was Joseph M. Matthews, a licensed detection of deception examiner and the Director of the Southern Institute of Polygraph, who remained Petitioner's sponsor until April 17, 1981 when he notified Respondent of his withdrawal as her sponsor. The next month after her employment, on November 13, 1980, Petitioner received notification that her license application had been approved and would be issued upon receipt of a fee and a certificate of insurance. There was no mention of deficiencies under Section 493.565 or 493.566 relative to her application or license requirements: Petitioner commenced her employment, mistakenly believing her employer and sponsor would pay the required fee and send it to Respondent together with her certificate of insurance which had become effective September 8, 1980 (Respondent's Exhibit #4). She was provided business cards indicating that she was an examiner and account executive. She conducted polygraph examinations scheduled by her employer at the direction of and under the supervision of Matthews until she became familiar with the operation of the equipment and then conducted examinations without supervision. Petitioner left her employment with the Southern Institute in February or March of 1981 and interviewed for a job at three (3) other polygraph schools. It was brought to her attention through the search for other employment that she must have a license in her possession to conduct polygraph examinations. At that time she realized that neither she nor her employer had complied with the request to furnish the certificate and fee requested on November 13, 1980. Prior to April 14, 1981 Petitioner sent to Respondent the detection of deception intern fee of $30 together with a certificate of insurance previously requested. Petitioner gained employment with Deception Control, Inc., a business owned and operated by Charles G. Michaels, who notified Respondent on March 26, 1981 that he would sponsor Petitioner. Later, he emphasized by letter that Petitioner would not be administering examinations until she received her intern license from the Department of State. Subsequent to receipt of the fee and certificate of insurance on or before April 14, 1981 allegations were made to respondent Division of Licensing that Petitioner had removed confidential materials from the Southern Institute Of Polygraph at the time she left her employment. These allegations, together with the allegation that Petitioner had conducted polygraph examinations without a license, caused Respondent Division of Licensing to reverse its former approval of her application for licensure. On June 4, 1981 Respondent rescinded its letter of approval dated November 13, 1980 in which it had requested a fee and certificate of insurance and notified Petitioner that her application for licensure had been denied. Respondent contends that the request for license fee and certificate of insurance was a request to "supply additional information" which was not timely supplied and therefore the letter of denial was appropriate. At the hearing no evidence was produced to show that Petitioner removed materials from her former employer's offices or that she betrayed professional secrets and she denied the allegations.
Recommendation Officer recommends that the Respondent agency issue a detection of deception intern examiner's license to the Petitioner. County, Florida. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings COPIES FURNISHED: William D. Ricker, Jr., Esquire Post Office Drawer 7028 Fort Lauderdale, Florida 33338 Assistant General Counsel Department of State R. A. Gray Building, Room 106 Tallahassee, Florida 32301 Department of State The Capitol
Findings Of Fact At all times, material hereto, Respondent Antonio J. Maniglia, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in December, 1962. He came to the United States in 1963, and has practiced from then until the present date. He was licensed as a medical doctor by the State of Florida in 1971. On or about February 11, 1976, Maury Braga appeared at Respondent's office requesting to see him. Respondent had never before met Braga and had never heard of him. Braga brought with him a letter of introduction from a processor in Brazil whom Respondent knew. Braga advised Respondent that, he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of, obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: - I, Antonio J. Maniglia, M. D., F.A.C.S., of 1776 NW 10th Ave, Miami, Florida 33136, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Faculdade de Ciencias Medicas de Santos and did lawfully prac- tice the profession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same, profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents, Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. "On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977 No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, 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 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Recommendation By reasons of the foregoing Facts and Conclusions of Law, I recommend that the Respondent's license be revoked. DONE and ORDERED this 4th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Respondent is a certified corrections officer, certificate number 68527. On March 24, 1994, Sergeant Farless made a traffic stop on a vehicle driven by Respondent. It was approximately 3:00 a.m. and Sgt. Farless had observed Respondent's vehicle fail to remain in a single lane. Sgt. Farless asked Respondent to produce a driver's license, proof of insurance, and registration. When Respondent advised Sgt. Farless he had a firearm in the glove compartment, he was requested to exit his vehicle. When Respondent exited the vehicle, Sgt. Farless noticed that the Respondent's eyes were bloodshot, his balance unsteady, his speech slurred, and that he had a strong odor commonly associated with alcoholic beverages. Sgt. Farless directed Respondent to remain at the rear of the vehicle while he went to the glove compartment to secure the firearm. Sgt. Farless observed what appeared to be a piece of crack cocaine in the middle of the driver's seat. Deputy Hyde arrived at the scene in backup to Sgt. Farless. Sgt. Farless requested a narcotics identification test kit from Deputy Hyde for the suspected substance. Deputy Hyde field tested the substance taken from Respondent's vehicle and it received a positive reaction for the presence of cocaine. The positive test was observed by Sgt. Farless and Respondent. Sgt. Farless placed Respondent under arrest for possession of cocaine and secured him in the back of the sheriff's vehicle. Deputy Hyde and Sgt. Farless then searched the Respondent's vehicle and found a second piece of a substance suspected to be rock cocaine. Deputy Hyde performed a narcotics field test on the second substance seized from Respondent's vehicle which also reacted positively for the presence of cocaine. The criminal charges against Respondent were resolved through a pretrial intervention program. Because of such resolution, the two substances taken from Respondent's vehicle were never sent to a crime laboratory for further testing and verification. Sgt. Farless and Deputy Hyde have been trained in the use of the field test to determine drug identification. Each has numerous arrests resulting from the field testing of a suspected substance. The area Respondent was traveling through is known as a high drug area with a high crime rate. Although he was alone at the time of the traffic stop, Respondent theorized that someone had put the crack cocaine in his vehicle.
The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: racial discrimination, by its termination of Petitioner.
Findings Of Fact Petitioner is an African-American male now 45 years old. He was discharged from employment as a heavy equipment operator with Respondent during his probationary term (within the first 120 days of employment) on July 16, 2004. Respondent qualifies as an "employer" under Chapter 760, Florida Statutes. At all times material, Respondent had an equal employment opportunity policy in place and employed Petitioner's uncle and two cousins, who are also presumably African- Americans. Respondent previously employed Petitioner's brother. Petitioner testified that during his employment, his brother was being prosecuted for alleged sexual relations with the brother's "white" stepdaughter, but admitted that this situation was never mentioned by any member of management. By all accounts, for the brief period of time Respondent employed Petitioner, Petitioner was a capable and reliable worker. Petitioner was very much desired by Respondent as an employee for his ability to handle heavy machinery until he was terminated on the basis of his criminal background. Petitioner's explanation under oath at the hearing of his criminal history is as follows: In 1982, he was convicted of the felony of conspiracy to commit armed robbery. He served nearly all of a five-year probation, but was "violated" for being in bad company. He consequently served six months in the Columbia County Jail. In 1987, he was charged with a lewd act, but was not "convicted" of that felony until he was picked up in 1990, for not completing court-ordered counseling. In 1990, Petitioner was sentenced to 12 years on the lewd act charge, but he only had to serve five years in prison. The undersigned interprets both of the foregoing situations to be revocations of probation under deferred prosecution programs. In 1997, Petitioner was convicted of the misdemeanor of driving under the influence of alcohol (DUI). On his March 30, 2004, job application to Respondent, Petitioner saw the following question: Have you ever been convicted of any violation of law other than a minor traffic violation? If "yes," explain below. (A criminal record is not an automatic bar to employment.) Petitioner erroneously interpreted the foregoing question to only require disclosure of felony convictions, so he only marked "yes" and wrote in "conspiracy & lewd act." In anticipation of hiring Petitioner, Rick Kennington, PSC's Supervisor of Labor Relations and Security, interviewed Petitioner on April 16, 2004. Mr. Kennington is a Caucasian male. During this interview, Mr. Kennington questioned Petitioner about his criminal history and made notes. Petitioner testified that he made Mr. Kennington aware of the full extent of his criminal history during the pre- employment interview. However, in light of Mr. Kennington's testimony; Mr. Kennington's contemporaneous notes on the interview (see Finding of Fact 10); the consistency of Shirley Dilger's and George Sandlin's testimony with that of Mr. Kennington, concerning a near-contemporaneous oral report of the interview to them by Mr. Kennington (see Finding of Fact 13); and the difficulty Petitioner had at hearing in explaining his criminal record, Mr. Kennington's testimony concerning what occurred during Petitioner's pre-employment interview is more credible than Petitioner's testimony. On this basis, it is found that Petitioner did not tell Mr. Kennington about his non- felony DUI conviction. He did, however, tell Mr. Kennington during the pre-employment interview, that he had been convicted of conspiracy to commit robbery because he was aware that his cousins were going to rob a store, but he failed to report it; that he had received five years' probation for the conspiracy; that he violated probation and served one year in a county jail as a result of being caught in bad company; and that he was convicted of a lewd act with an underage girl when he and the girl were both very young, but he served no jail time for the lewd act conviction. Mr. Kennington's contemporaneous notes on this interview show that however Petitioner explained the "lewd act" conviction, Mr. Kennington formed the opinion that the incident involved consensual sex with a 15-year-old girl when Petitioner was approximately 21-years-old and that Petitioner served no jail time as a result thereof. At the end of the pre-employment interview, Mr. Kennington informed Petitioner that the employer would order a background check on him and that any failure of Petitioner to disclose his criminal history would result in termination of his employment. Petitioner offered nothing more. Therefore, Mr. Kennington believed that, in light of the limited nature of what he then understood to be Petitioner's criminal history, Petitioner would be a good potential employee. He thought that Petitioner's one year in a county jail for violating the conspiracy probation was about 20 years old; that there had been no jail time associated with Petitioner's lewd act; and that Petitioner had "a relatively clean run for some years." George Sandlin is Respondent's Superintendent of Human Resources. He is a Caucasian male. Mr. Kennington told Mr. Sandlin immediately after Mr. Kennington's pre-employment interview with Petitioner that Petitioner had two convictions and had spent one year in Columbia County Jail. Mr. Sandlin did not know about any other convictions or about any time Petitioner had served in prison, and Mr. Kennington could not mention what he also did not know about. Shirley Dilger is Respondent's Human Resources Manager. She is a Caucasian female. According to her, Mr. Kennington told her immediately after the pre-employment interview that Petitioner had spent a year in a county jail. She erroneously thought this was in connection with a "burglary" charge. She did not know about, and Mr. Kennington did not inform her about, any prison time. Mr. Kennington, Mr. Sandlin, and Ms. Dilger conferred and decided to offer Petitioner a job because his last conviction appeared to be 20 years old and because the Respondent employer had past positive experiences with Petitioner's relatives as employees. Ms. Dilger stated that the three managers made the decision to hire Petitioner, in part, because Petitioner had spent no time in jail in connection with the lewd act charge and "that obviously it wasn't anything that was serious or . . . something would have happened with that charge." After Petitioner was hired on June 9, 2004, he participated in 40 hours of orientation during his first week of employment. At one point during the orientation week, Mr. Kennington led a session on security, during which he informed Petitioner and other new employees that it was important to provide complete and accurate information about their criminal background history. After the session was over, Petitioner approached Mr. Kennington. Mr. Kennington and Petitioner have very different views of the ensuing conversation. Petitioner testified that he told Mr. Kennington that he did not know if it would show up on his background check, but he had just remembered getting arrested because a girl he quit living with told police he had burglarized her house, but the charges were dropped. Nothing like the foregoing was on Petitioner's job application, and Mr. Kennington thought Petitioner was reminding him about Petitioner's lewd act conviction. Both men agree that Mr. Kennington ended the conversation by assuring Petitioner that if he had revealed everything before, he did not have to worry. At lunch that same day, Mr. Kennington told Mr. Sandlin and Ms. Dilger that he was puzzled by Petitioner's approaching him and suspected that Petitioner's background check might reveal a problem. When Mr. Kennington received Petitioner's background check report, it was a problem for him. Mr. Kennington was adamant that he received the background check report on July 14, 2004, which was a Wednesday, but the internet date of July 12, 2004, shows that if the computer's clock was correct, someone printed the report off the internet on July 12, 2004, which was the preceding Monday. This discrepancy of dates is immaterial in that all witnesses agreed that Mr. Kennington and Mr. Sandlin confronted Petitioner as early as 7:00 a.m., on Thursday, July 15, 2004. The criminal background report received on Petitioner by Mr. Kennington would be confusing even to a lawyer. Petitioner, Mr. Kennington, and Mr. Sandlin are not lawyers. On its face, the report shows a finding of "guilty" for a conspiracy/armed robbery charge on 10/10/84 resulting in two years, six-months' confinement, with 373 days credited for time served. The report also shows that Case No. 1987-004757CFA, dated 5/16/87, as a "sexual battery/slight force" felony charge was placed in the deferred prosecution program as of 6/08/87. That same case number shows a "lewd assault on a child" felony charge was also placed in the deferred prosecution program as of 6/08/87. It further shows a different case number, Case No. 1988-003327CFA, peculiarly dated 5/02/87, resulted in a finding of guilty as of 11/29/90, on the felony of "lewd and lascivious act/simulated sexual battery," with a resultant prison time of 12 years with 124 days' credit for time served. The report finally shows a 1997 finding of guilty for DUI as a traffic misdemeanor, with a fine. When Mr. Kennington and Mr. Sandlin called Petitioner in for a meeting about the background check report at 7:00 a.m., July 15, 2004, Mr. Kennington asked Petitioner why Petitioner had failed to tell him about the prison time Petitioner had served, but Petitioner had no response. According to Petitioner, during their July 15, 2004, meeting, Mr. Kennington questioned him about a perceived disparity between a 1987 entry on the background report, when Petitioner was initially charged in connection with a lewd act on a child, when he was not sentenced to prison at all, and a 1990 entry, when Petitioner was convicted and sentenced to twelve years in prison. Petitioner stated that Mr. Kennington, "[k]ept asking me did I do anything else in 1987 and 1990, another sexual act." It was obvious to Petitioner at the time that Mr. Kennington was concerned, based on the way the offenses were listed with different case numbers and dates on the background check report, that Petitioner might have committed three or four sexual felonies instead of just one, for which probation was ultimately revoked. Mr. Kennington testified that during the July 15, 2004, meeting, Petitioner finally indicated to him that Petitioner's "lewd act" conviction was a continuation of a single "lewd act" charge. In this regard, Petitioner specifically testified at hearing that he had violated the K.I.D.D.S. Program and, as a result of that violation, he was later sentenced to 12 years in prison, of which he served five. (See Finding of Fact 6.) Mr. Kennington took notes of the July 15, 2004, meeting and drew a star by an entry where he wrote, "5 years in prison, Baker Corr., Panhandle, 1990." It is clear from the evidence as a whole that only on July 15, 2004, did Mr. Kennington fully understand that Petitioner had served time in prison, as opposed to a county jail, and that the time Petitioner served had been for the "lewd act" felony conviction, not the prior conspiracy to commit robbery felony conviction. Petitioner claimed that during this interview, out of the blue, Mr. Sandlin asked him if the girl involved in the lewd act charge was "white" or "black." However, Mr. Sandlin and Mr. Kennington are more credible in their testimony that Mr. Sandlin asked the foregoing question when Petitioner told them that he had gone to trial in that case; that the underage girl involved in the lewd act charge did not testify; that it was her mother who forced the issue; and that his trial on the lewd act felony charge had been racially discriminatory. Mr. Sandlin acknowledged that he had asked the question, but testified that the reason he asked it was that he was under the impression that Petitioner had been discriminated against in the lewd act trial. Petitioner was less credible when he denied at hearing that he ever claimed in the July 15, 2004, meeting that discrimination occurred in his lewd act trial. However, it is undisputed that Petitioner answered Mr. Sandlin in that meeting that the girl was "black," and that otherwise, race was never discussed. During the July 15, 2004, meeting, Petitioner told Mr. Kennington and Mr. Sandlin that he could not remember how old the girl or he was when the lewd act occurred. Kennington and Sandlin did the math and concluded that Petitioner was 27 and the girl was 15 at the time of the offense. At the end of the July 15, 2004, meeting, Mr. Kennington told Petitioner that this was a very serious matter and there were going to be discussions with upper management. Mr. Kennington, Mr. Sandlin, and Ms. Dilger met after the July 15, 2004, meeting of Mr. Kennington, Mr. Sandlin, and Petitioner. Mr. Kennington, Mr. Sandlin, and Ms. Dilger each testified individually that he or she would not have hired Petitioner if they had known the full extent of Petitioner's criminal history from the beginning. All three were concerned about the difference in age between Petitioner and the girl (a 27-year-old man and a 15-year-old girl) and that Petitioner had spent five years in prison instead of a year in a county jail, but each executive emphasized one or the other concern. All three executives were concerned with Petitioner's prior lack of candor. Ms. Dilger was concerned about the lewd act conviction as she finally understood it, because of the high number of women and low number of security persons Respondent employed in relation to the extensive size of Respondent's premises. Mr. Kennington was upset about Petitioner's nondisclosure of his DUI conviction, even though it was only a traffic misdemeanor, because Mr. Kennington did not consider any DUI to be "minor." The three managers sought the advice of corporate representatives in Chicago in making the decision to terminate Petitioner. Race, including the race of the girl with whom Petitioner had sex in 1987, was not discussed at any time during any managerial deliberations. The next day, July 16, 2004, a meeting took place including Mr. Kennington, Mr. Sandlin, Petitioner and a security officer, Kenny Gaylord. Petitioner conceded at hearing that Mr. Kennington informed Petitioner at that time that Petitioner's employment was being terminated for lack of confidence and for Petitioner not being truthful in the hiring process. In the course of the Florida Commission on Human Relations' investigation of Petitioner's subsequent Charge of Discrimination, Mr. Kennington provided an affidavit which represented, among other things, that Petitioner was terminated because he was guilty of five felonies and failed to disclose them. This affidavit is technically a prior statement under oath which is inconsistent with the reason given by Mr. Kennington to Petitioner on July 16, 2004 (see Finding of Fact 38), and inconsistent with his testimony at hearing. However, other parts of the same affidavit break down the charges and convictions consistent with Mr. Kennington's testimony at the hearing. Furthermore, the greater weight of the credible evidence at hearing shows Mr. Kennington never has understood the number of felonies listed on the background check report, which may be either two or three felonies, depending upon how the case numbers are interpreted. It further shows that Petitioner's July 15, 2004, explanation that he had only two felony convictions. Accordingly, there is no significance to the insubstantial inconsistency on Mr. Kennington's affidavit. Moreover, by no interpretation does his July 16, 2004, statement to Petitioner, his affidavit, or his hearing testimony establish that Mr. Kennington had a racial reason for terminating Petitioner. Petitioner admits that no one told him, prior to his termination, that he was being terminated because he allegedly had "five felony convictions." Petitioner also attempted to show at hearing that an affidavit by Mr. Sandlin stated as a reason for Petitioner's termination that Petitioner had failed to disclose that Petitioner had relatives working for Respondent. However, Mr. Sandlin's affidavit as a whole cannot reasonably be read to mean that. Respondent has terminated both Caucasian and African- American employees during their probationary 120 days for nondisclosure, based on their background check reports.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination herein. DONE AND ENTERED this 11th day of April, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver Post Office Box 550770 Jacksonville, Florida 32255-0770 Brian S. Duffy, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver Post Office Drawer 229 Tallahassee, Florida 32302-0229 David C. Braun, Esquire 934 Northeast Lake Desoto Drive Lake City, Florida 32055
Recommendation Based on the foregoing Finding of Fact and Conclusion of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. RECOMMENDED this 28th day of February, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of February, 1990.
Findings Of Fact The Petitioner Mario Alberto Almeida applied to the Respondent Board of Medical Examiners to sit for the medical licensure examination and paid his application fee in September, 1985. At that time, the Petitioner Almeida was interning in New York and his wife, concerned that a prior application had been untimely filed, assisted the Petitioner in filling out the subject application. When filling out the application, Mrs. Almeida erroneously wrote on the application form that her husband had a "B.S. 1979, University of Miami," which error arose from the fact that she was unaware that the Petitioner had not completed his University of Miami undergraduate degree work despite completing 137 credit hours of courses and being eligible for graduation. Mrs. Almeida believed that her husband graduated from the University of Miami because he had not informed her that he had left prior to graduating and Mrs. Almeida had seen solicitations for funds addressed to her husband as a 1979 University of Miami graduate. Also omitted by the Almeida's was the Petitioner's race (which is caucasian), that he had successfully attended a junior college and that he was a United States citizen who had legally changed his name to reflect his father's name, Alberto. Other than these erroneous statements and omissions, the Petitioner Almeida supplied the Respondent with all information requested, including additional information requested by letter dated November 4, 1985. Thereafter, the Respondent Board issued to the Petitioner Almeida an authorization to sit for the December, 1985, examination which card was inadvertently issued to and returned by the Respondent. In support of his application, the Petitioner was issued a letter which requested that he personally appear in Tampa, Florida, at 4:15 p.m. on November 22, 1985, at a meeting before the Foreign Medical Graduate Committee of the Board of Medical Examiners. Although the Petitioner was put under oath and was questioned at that meeting, he was not represented by legal counsel. The Committee referred his application to the full Board with no recommendation regarding approval. On November 23, 1985, the Board voted to deny the Petitioner's application. The Petitioner did not receive notice of this second meeting and, therefore, did not attend. By order dated September 9, 1986, the Petitioner was notified of the Respondent's denial of his application based upon "material discrepancies between the information stated on the application and the testimony given with regard to the applicant's education," citing Section 458.331(1)(a) and (2), Florida Statutes. The Petitioner's application did misstate his undergraduate, pre- medical school data. He failed to disclose his successful completion of Miami- Dade Community College and his 137 credit hours when he left the University of Miami before attaining the "B.S. 1979, University of Miami." He did however, accurately testify concerning these discrepancies under oath at the November 22, 1985, committee meeting. These discrepancies were unintentional and resulted from the Petitioner's preoccupation with his medical duties and his wife's concern that another application deadline not be missed. No evidence was submitted which would support a finding that fraud or deceit was intended by either of the Almeida's or that any advantage would be gained as a result of any errors or omissions in completing the form. The Respondent's order of September 9, 1986, finds that the Petitioner either has been found guilty of attempting to obtain a license to practice medicine by fraudulent misrepresentation or adjudicates him guilty of attempting to obtain a license to practice medicine by fraudulent misrepresentation. The Petitioner is presently a duly licensed physician in the State of New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Board of Medical Examiners approving the application of the Petitioner Mario Alberto Almeida Suarez, to sit for the next scheduled medical license examination. DONE and ENTERED this 26th day of May, 1987 in Tallahassee, Florida. SHARYN L. SMITH 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 26th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3996 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted, but not in issue. Accepted. Accepted, but not in issue. Accepted. Rejected, not relevant to this proceeding. Accepted in part, rejected in part. Accepted. Accepted. Accepted. Rejected, not relevant. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Respondent's Proposed Findings of Fact Accepted. Accepted. Accepted, but relevant only insofar as educational background is concerned. Accepted. Accepted. Accepted. Accepted, but not relevant. Accepted. Accepted. Accepted, but not relevant. Accepted, but not relevant. Accepted insofar as the information is characterized as incomplete. Accepted. Accepted. Accepted. Accepted insofar as this concerns Mrs. Alemeida's knowledge subsequent to completing the application. Accepted insofar as this concerns Mrs. Alemeida's knowledge subsequent to completing the application. Accepted. COPIES FURNISHED: Stephen Marc Slepin, Esquire SLEPIN & SLEPIN 1114 East Park Avenue Tallahassee, Florida 32301 Allen Grossman, Esquire Assistant Attorney General Department of Legal Affairs 1601 - The Capitol Tallahassee, Florida 32399-1050 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact On or about May 6, 1993, the Department of Professional Regulation, Board of Medicine (predecessor agency to the Agency for Health Care Administration, Board of Medicine) received a complaint from patient A. L. alleging that the Petitioner had attempted inappropriate sexual contact with the patient during an examination. The complaint was assigned to a DPR investigator who notified the Petitioner that the complaint had been received. The DPR investigator interviewed the patient, obtained the patient's medical records from the Petitioner, and obtained a letter apparently written on the day of the incident from the patient confirming the nature of the complaint. The investigator also obtained information regarding the Petitioner's licensure and confirmation from the patient that he would appear to testify at a hearing if an Administrative Complaint was filed. During the interview and by letter, the patient alleged that during the dermatological examination, the Petitioner had asked the patient if he was single and did he "play" with himself. The patient further alleged that the Petitioner requested that the patient masturbate while the Petitioner watched. The DPR investigator compiled a report including the complete investigative file, relevant discovery, the agency's recommendation and memoranda, and the proposed administrative complaint. The report also advised that, allegedly according to agency legal counsel, other administrative complaints were pending against the Petitioner. The report was forwarded to the members of the Probable Cause Panel (PCP) prior to their meeting on September 14, 1993. The PCP received and reviewed the materials. Present at the September 14 meeting were panel members Edward A. Dauer, M.D., Robert Katims, M.D., and Maribel C. Diblan. Also present were legal counsel and administrative personnel. Upon review of the materials, the PCP unanimously determined that probable cause existed for the filing of the Administrative Complaint. Probable cause was found that the Petitioner violated Section 458.331(1)(j) and (x), Florida Statutes. On September 17, 1993, the agency filed the Administrative Complaint, AHCA Case No. 93-8352, subsequently DOAH Case No. 93-6252. On April 19, 1994, the case was heard in formal hearing before William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings. A Recommended Order was issued, finding that the testimony of the patient lacked credibility and recommending that the Administrative Complaint be dismissed. On August 15, 1994, the agency issued a Final Order adopting the recommended order issued by the hearing officer and dismissing the Administrative Complaint. The Petitioner asserts that the agency investigation was flawed because no dermatological expert was sought to review the case. There is no credible evidence that an expert is required to review allegations of sexual misconduct such as those charged in the administrative complaint filed against Dr. Lattanand. The Petitioner further asserts that alleged inconsistencies in addresses provided by the patient to various entities warranted further review by the agency and apparently suggest a lack of credibility on the complainant's part. Review of the alleged address inconsistencies indicates only that the complainant maintained more than one address. The implication related to credibility is not supported by evidence. Based on the prehearing stipulation of the parties, the following Findings of Fact are made: The Petitioner qualifies as a small business party as defined by section 57.111, Florida Statutes. The Petitioner is the prevailing party. The amount of fees claimed by the Petitioner are reasonable. Special circumstances do not exist which would make an award of costs and fees unjust.
