The Issue Whether Petitioner suffered retaliation and reverse discrimination committed by the Department of Corrections in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a white male who was a probation officer at the Department. He worked in the Fourteenth Judicial Circuit for the first ten years of his career and then transferred to the Seventh Judicial Circuit, based in Daytona Beach, Florida, where he had been employed for about eight and one-half years at the time of the hearing. The Department, in accordance with Section 20.315, Florida Statutes, is the state agency charged with protecting the public through the incarceration and supervision of offenders and the rehabilitation of offenders through the application of work, programs, and services. In early July 1999, Petitioner was working in the Department's probation office on Palmetto Avenue, in Daytona Beach, Florida. He was living with a woman named Tanya Folsom who worked for the Department in its probation program, but not in the same office. He was also romantically involved with a woman named Frances Fredericks, who he later married. At this time, Ms. Fredericks was married to one Mr. Anderson, and was known as Frances Anderson. This triangular relationship became known in the office in which Petitioner worked. Someone in Petitioner's office, who has never been identified, wrote a letter to Ms. Folsom, revealing to Ms. Folsom Petitioner's ongoing relationship with Ms. Frances Fredericks. The letter was written on stationery that was the Department's property, placed in an envelope that was the Department's property, and transmitted to Ms. Folsom via the Department's internal mailing system. Using Department resources for personal business, is contrary to Department policy. When Ms. Folsom received the letter a number of ugly consequences ensued. Ms. Folsom reacted with extreme hostility to the information she received, even though Petitioner claimed that their relationship had devolved into a mere friendship. She evicted Petitioner from the quarters they had been sharing. At a subsequent time, one Mr. Anderson, then Ms. Frederick's husband, confronted Petitioner in the parking lot adjacent to the office in which Petitioner worked, and in the presence of Petitioner's office supervisor, Mr. Seltzer, socked Petitioner in the jaw. The probation officer community, in which Ms. Folsom and Petitioner worked, suffered disruption. Morale amongst the workers was impaired. Petitioner blamed the occurrence of these unpleasant events, not on himself, but on Officer Michael Gallon, a probation officer who worked directly in the court system, and Ms. Velma Brown, his immediate supervisor. He attributed blame to them because he believed that they had rifled his desk and found gifts destined to be given to Frances Fredericks, and believed that one or both of them were responsible for the letter to Ms. Folsom. Both Officer Gallon and Ms. Brown are black. Petitioner filed a complaint with the Department demanding an investigation into the use of the Department's stationery that was of a value of about a "half cent," according to Petitioner. He also complained that court officers, both black and white, were underemployed, and suggested that black court officers were afforded advantages not given to white officers. He asked his superiors to investigate the complaint regarding both the letter and the court officer matter. He prevailed upon the office manager to take action and when the office manager declined to open an investigation, he brought the matter to the attention of the circuit administrator, Robert Gordon, and ultimately to the attention of those in the chain- of-command all the way to the Department's Inspector General. Mr. Gordon, in response to the turmoil precipitated by the letter, reassigned Petitioner to DeLand, Florida, a distance of about 30 miles, for 60 days. Petitioner, who referred to his new post in the pejorative, "Dead Land," believed that officers who were moved there, "never came back." Mr. Gordon told Petitioner that he moved him because Petitioner needed a "change of venue." This reassignment occurred the end of July, 1999. Article 9, Section 3, of the Agreement between the State of Florida and Florida Police Benevolent Association (Agreement) states that a transfer should be affected only when dictated by the needs of the agency and only after taking into consideration the needs of the employee, prior to any transfer. Mr. Gordon complied with that requirement, and in any event, did not transfer Petitioner. The Agreement states at Article 9, Section 1 (C), that a move is not a "transfer" unless an employee is moved, " . . . in excess of fifty (50) miles." Petitioner was "reassigned" as that term is defined in Article 9, Section 1 (C), of the Agreement. In any event, Mr. Gordon did not move Petitioner because he was white. He moved him to a different post because Petitioner had created turmoil in the probation officer community in Daytona Beach. In any event, as will be discussed below, whether or not Mr. Gordon complied with the Agreement is immaterial to this case. Notwithstanding Petitioner's beliefs with regard to the outcome of his move to DeLand, he was reassigned back to the Daytona Beach area at the end of 60 days and resumed his regular duties. This occurred around early October, 1999. Petitioner continued to press for an investigation into his allegations. He brought the matter to the attention to Harry Ivey, the regional administrator for the Department and above Mr. Gordon in the chain-of-command. He discussed the matter with a Mr. Jefferson, Mr. Ivey's deputy and believed subsequent to that conversation, that an investigation would occur. In fact, no one in the Department displayed any interest in Petitioner's allegations about the de minimis use of the Department's time and property in the preparation and transfer of the letter, or in his beliefs about the workload problems of the court officers, or his claims of favorable treatment in the case of Officer Gallon and Ms. Brown. In December 2000, Petitioner was assigned to the Ormond Beach Office, which was about six miles from the Palmetto Avenue Office. The Ormond Beach Office had lost a supervisor position due to reorganization and it was determined that Petitioner possessed the skill and experience to replace that senior leadership. The decision to relocate Petitioner was made by Mr. Gordon. In February 2001, Petitioner was transferred back to his old office. A few months later he was promoted to Correctional Probation Senior Officer and moved to another office. Between February 2000 and February 2001, the operative period, over 30 Correctional Probation Officers, Correctional Probation Supervisor Officers, and Correctional Probation Supervisors in the Seventh Circuit, were reassigned. Of these, six were black, four were Hispanic, and 20 were white. Although the four reassignments experienced by Petitioner may have inconvenienced him, Petitioner presented no evidence of any damages. The facts reveal that Petitioner's misfortunes were precipitated by his unwise amorous activities within his workplace. They were not the result of any effort by the Department to retaliate against him or to discriminate against him because he was white.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed because it was not timely filed. Dismissal on its merits if the June 25, 2001, Charge of Discrimination is determined to have been timely filed. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 December, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gayle S. Graziano, Esquire 244 North Ridgewood Avenue Daytona Beach, Florida 32114 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether or not Petitioner may be presumed, pursuant to Rules 22A- 7.0l0(2)(a) and 22A-8.002(5)(a)3 F.A.C. to have abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact Petitioner started working for Florida State Hospital, a residential facility owned and operated by HRS, on August 8, 1986. On June 22, 1987, Petitioner was assigned to Unit 14, at Florida State Hospital, a unit which treated geriatric mentally ill patients. In that assignment, Petitioner's immediate supervisor was Senior Registered Nurse Supervisor Shirley Greggly. It is an established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. During her employment, Petitioner had been a less-than-exemplary employee with regard to absenteeism, tardiness and timely notification and had been counselled prior to April 1989 that she should make contact with the Hospital within seven minutes of the time she was due on shift if an absence was necessary. Only after review of such contact initiated by an employee can a superior determine to approve or disapprove the requested leave. If no contact were initiated by the employee, it was Ms. Greggly's standard procedure to attempt to initiate contact herself with the missing employee. Failure of an employee to notify Ms. Greggly or delayed notification of Ms. Greggly by an employee creates great hardship for the patients who may receive delayed care as a result, and also it creates considerable administrative turmoil for Ms. Greggly in rounding up a substitute employee. Petitioner had been disciplined with a ten-day suspension in September 1988 for failure to notify. She had received a prior written reprimand for absence without authorized leave in June 1988 and an oral reprimand for excessive absenteeism in December 1987. Petitioner had been frequently counselled in regard to these shortcomings. During the first few months of 1989, Petitioner was absent from work due to a work-related injury and, if not already filed, a workers' compensation claim pursuant to Chapter 440 F.S. was at least imminent. Petitioner's primary treating physician was Daniel Bontrager, D.C. By April 1989, Dr. Bontrager had determined that Petitioner could return to light duty work. On April 7, 1989 and again on April 13, 1989, Dr. Bontrager orally informed Petitioner that she could return to light duty work as of April 17, 1989. On April 13, 1989, Ms. Hobbs stated that she would not return to work. Dr. Bontrager communicated his advice to the Hospital. The best diagnostic evidence obtainable by Dr. Bontrager indicated that there was no valid medical reason why Petitioner could not return to work. Ms. Greggly expected Petitioner back at work on April 17, 1989. From that date until April 28, 1989, when Petitioner was deemed to have abandoned her position, Petitioner initiated no contact with her employer or Ms. Greggly, and therefore no leave was authorized for her. On the dates between April 17, 1989 and April 28, 1989, inclusive, Petitioner neither appeared at work nor informed the hospital that she was going to be absent. This period constitutes in excess of three consecutive workdays of absence without approved leave.
Recommendation Upon the foregoing Findings and Fact and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order ratifying its previous presumption that Petitioner has abandoned her position and resigned from the Career Service. DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: None filed. Respondent' PFOF: 1-3, 8, 10, 12-14 Accepted. 4-5 Immaterial. 6-7, 9 Accepted as modified; unnecessary argument and detail is rejected as such. 11 Modified to reflect the record; rejected where it is not true to the record. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Ms. Clara Hobbs Route l, Box 186B Sneads, Florida 32460 John R. Perry, Esquire Department of Health and Rehabilitative Services Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303-4082 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board) erred in issuing an order that denied reinstatement of Irene Acosta's (Ms. Acosta or Petitioner) mental health intern license.
Findings Of Fact The Board is the state agency that licenses mental health interns in the State of Florida. The Board initially licensed Ms. Acosta as a mental health intern on March 19, 1999, when it issued to her license number IMH 1515. This license was issued after Ms. Acosta completed and submitted to the Board an application for the license. Ms. Acosta received her higher education from Newport University in California. It is the Board's position that in 2002, Newport University, located in California, was not a regionally accredited university as defined by the Council on Higher Education and, consequently, degrees from that institution did not meet the Board's credentialing requirements for licensure as a mental health intern. Newport University, located in Virginia, was appropriately accredited, and degrees from that institution met the Board's credentialing requirements. Newport University in California is not affiliated with Newport University in Virginia. Ms. Acosta provided to the Board as part of her application package transcripts and correspondence from Newport University which clearly indicate that the university is in California, not Virginia. Ms. Acosta did not bribe, coerce, use undue influence, make fraudulent misrepresentations, commit any intentional wrongdoing, or unlawfully conceal any information in order to obtain her intern license. Intern licenses are issued for two-year periods. Ms. Acosta's license was last renewed on February 5, 2001. In 2002, the Board realized that Ms. Acosta had obtained her master's degree from Newport University in California. The Board, notwithstanding a diligent search and investigation, is unable to determine how Ms. Acosta's credentialing issue was brought to its attention. That determination could not be made because of the passage of time and the possible destruction of documents. In 2002, Ms. Foster was Executive Director for the Board. Ms. Foster concluded that Ms. Acosta's license had been issued in error because Ms. Acosta lacked required educational credentialing. By letter dated March 18, 2002, Ms. Foster advised Ms. Acosta as follows: As the Executive Director for the Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling, I am writing concerning your intern registration license which was issued by the Board on March 19, 1999. At the time your application was approved, Newport University was not a regionally accredited university as defined by the Council on Higher Education. As such, the intern registration was issued in error. Section 491.009(1)(a), F.S. provides that: The following acts constitute grounds for denial of a license or disciplinary action as specified in s. 456.072(2): Attempting to obtain, obtaining, or renewing a license, registration, or certificate under this chapter by bribery or fraudulent misrepresentation or through an error of the board or the department. After consulting with Board counsel, I have been instructed to request that you voluntarily relinquish your intern registration licensed [sic] within 15 days of the receipt of this letter. Failure to do so will result in a complaint being filed with the Agency for Health Care Administration. Should you have any questions, please feel free to contact us at our office at . . . . Petitioner contacted Ms. Foster by telephone to discuss the March 18 letter. Petitioner told Ms. Foster that she was going to contact an attorney to advise her. John Schwartz, Petitioner's attorney, contacted Ms. Foster by letter dated April 1, 2002. Among other questions, Mr. Schwartz asked for documentation that Newport University was not regionally accredited. Edward A. Tellechea was, in 2002, an Assistant Attorney General who served as legal counsel for the Board. Mr. Tellechea responded to Mr. Schwartz's letter by letter dated April 16, 2002. Mr. Tellechea's letter identified his status as counsel for the Board and included the following: Chapter 491.005(4)(b)2., Florida Statutes, requires that the education programs for mental health counseling applicants be obtained from institutions that are properly accredited. The relevant statutory language reads as follows: 2. Education and training in mental health counseling must have been received in an institution of higher education which at the time the applicant graduated was fully accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. . . . Based upon the publication titled: The Accredited Institutions of Postseconday Education, which is published in consultation with the Council for Higher Education Accreditation, Newport University in Newport Beach, California, is not an institution that is accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. It does contain the name of a Newport University, with is located in the Commonwealth of Virginia, but Board staff has verified that the two institutions are not affiliated with each other. If you have any documentation that indicates that Newport University [in California] is accredited by a regional accrediting body recognized by the Commission on the Recognition of Postsecondary Accreditation, please forward it to the Board office by May 2, 2002. Otherwise, this matter will be referred to the Agency for Health Care Administration for appropriate legal action. Mr. Schwartz provided Ms. Acosta with a copy of Mr. Tellechea's letter. On May 7, 2002, Robin McKenzie, a program administrator for the Florida Department of Health, sent a memo to the Bureau of Consumer Protection within the Agency for Health Care Administration (Consumer Protection) that contained the following: Please initiate a complaint against Irene Acosta. An intern registration license was issued to her in error. A letter dated March 18, 2002, was sent to Ms. Acosta requesting that she voluntarily relinquish this license. As of this date, Ms. Acosta has not returned her license to the board office. Petitioner relinquished her license by handwritten letter addressed to Ms. Foster. The letter, dated May 1, 2002, bears Ms. Acosta's signature. The letter, received by Ms. Foster's office on May 7, 2002, provided as follows: As requested by your office, I hereby relinquish my intern registration license. Thank you for all your help. Please note I have destroyed the license. On May 21, 2002, Ms. McKenzie sent a memo to Consumer Protection that enclosed a copy of Ms. Acosta's letter dated May 1, 2002, and asked that the complaint against her be closed. Between the time she was issued the subject license and the time she relinquished the license, Ms. Acosta earned her livelihood working as a mental health counselor. Petitioner never engaged in any unlawful concealment or otherwise intentional wrongdoing in her application process. When she submitted her application, Ms. Acosta was unaware that Newport University (in California) was not accredited for purposes of her licensure application. Petitioner testified that when she relinquished her license, she was unaware that she could have had the Board's intended action reviewed by a probable cause committee or challenge the intended action in an administrative hearing. She further testified that had she known of these rights, she would have challenged the intended action. She further testified that she relinquished her license because she believed that she would be charged with a crime if she did not do so. That testimony has been considered in making the finding as to voluntariness that follows. Also considered is the fact that Ms. Acosta consulted an attorney before deciding to relinquish her license. While it is evident that Petitioner did not want to relinquish her license, and did so only after concluding she had no other choice than to proceed to an administrative hearing, the Board did not coerce her into that action. Ms. Foster's letter and Mr. Tellechea's letter identified the problem with Ms. Acosta's credentials and simply laid out her options - - either relinquish the license or the Board will file an administrative complaint to revoke the license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a Final Order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is further Recommended that the Final Order deny Irene Acosta's "Amended Emergency Motion to Reinstate Licensed Mental Health Counselor Intern License or for Alternative Relief." DONE AND ENTERED this 16th day of November, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 16th day of November, 2012. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman Suite 210 7695 Southwest 104th Street Miami, Florida 33156 Deborah B. Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Susan Foster, Executive Director Department of Health Board of (Certified Master Social Worker) Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-3258 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Based on the evidence offered at the formal hearing in this case, the following facts are found: The Petitioner, Elizabeth R. Hillegas, took the Mental Health Counselor licensure examination administered on April 21, 1989. The Petitioner's examination was given a failing grade. The Petitioner needs to receive credit for correct answers on at least two more questions in order to be entitled to a passing grade. The Petitioner's answers to questions 8, 17, and 33 on the subject examination were incorrect. 2/ All three of the challenged questions, namely questions 8, 17, and 33, inquire as to matters which are part of the basic training in the field of Mental Health Counseling or matters which are crucial to competent practice in the field of Mental Health Counseling. The challenged questions ask about matters which should be known by a competent Mental Health Counselor. Therefore, the challenged questions are within the appropriate subject matter domain for a licensure examination for the profession of Mental Health Counselor. 3/
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Board of Mental Health Counselors issue a final order in this case dismissing the Petition and assigning to the Petitioner a failing grade on the April 21, 1989, Mental Health Counselor licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of May 1990. MICHAEL M. PARRISH 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 25th day of May 1990.
The Issue The issue for determination in this proceeding is whether Respondent committed the acts alleged in the administrative complaint and, if so, what, if any, disciplinary action should be taken against Respondent's license.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed physician in the state, holding license number ME 0028480. A Final Order was filed against Respondent in Department of Professional Regulation v. Roger Lopez, M.D., Department of Professional Regulation Case No. 0070692 on August 26, 1988. The Final Order was entered in accordance with the terms of a stipulation executed by Petitioner and Respondent. Respondent's license was suspended for six months, and Respondent was placed on probation from March 5, 1989, through March 4, 1994. Respondent was properly served a copy of the Final Order. Respondent was required by the terms of the Final Order to practice under the direct supervision of a physician approved by the Board of Medicine (the "Board") and to appear before the Probation Committee whenever requested to do so. Respondent violated the terms of the Final Order by failing to appear before the Probation Committee and by failing to name a monitoring physician to supervise him during his probation. By letter dated August 29, 1989, Respondent was requested by the Board to appear before the Probation Committee at its regularly scheduled meeting on September 20, 1989, and to submit a curriculum vitae for a proposed supervising physician. Respondent acknowledged the Board's request in a letter to Petitioner dated August 31, 1989. Respondent failed to appear before the Probation Committee and failed to designate a monitoring physician.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order finding Respondent guilty of the allegations in the Administrative Complaint, issuing a reprimand, imposing an administrative fine in the amount of $5,000, suspending Respondent's license until March 4, 1994, and requiring Respondent to demonstrate to the Board no later than March 4, 1994, his ability to practice medicine with the skill and safety required under applicable statutes and rules. DONE and ENTERED this 23rd day of October 1991, in Tallahassee, Leon County, Florida DANIEL MANRY 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 23rd day of October, 1991.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since January 5, 1981, a medical doctor licensed to practice medicine in the State of Florida. His license number is ME 0037656. In or about February of 1988, a complaint was made against Respondent alleging that he engaged, or attempted to engage, in the practice of medicine in this state without an active Florida license. The complaint was reviewed by the Probable Cause Panel of the Board, which disposed of the matter by issuing, on April 23, 1988, the following Closing Order: THE COMPLAINT: Complainant alleges that the Subject of the investigation practiced or attempted to practice medicine without an active license in violation of Section 458.327 (1)(a), Florida Statutes. THE FACTS: Investigation substantiated the allegations in that Subject's license to practice medicine expired December 31, 1987, and was placed in an inactive status. Subject practiced medicine with an inactive license until approximately February 5, 1988, before he took steps to renew his license. THE LAW: Based on the foregoing, there is sufficient evidence to support a finding of probable cause that Subject violated Section 458.327(1)(a), Florida Statutes, and there- fore is in violation of Section 458.331(1)(x), Florida Statutes. However, as Subject's license was inactive for a period of less than six months, this case should be closed by issuing Subject a Letter of Guidance. It is, therefore, ORDERED that the complaint be, and the same is hereby CLOSED with a Letter of Guidance. In January of 1991, the Agency's predecessor, the Department of Professional Regulation, issued a 22-count Administrative Complaint against Respondent alleging that, in connection with his dealings with 11 patients in 1989 and 1990, Respondent violated subsections (1)(g)(Counts Twenty-One and Twenty-Two), (1)(m)(Counts Ten, Thirteen and Eighteen), (1)(q)(Counts Two, Five, Eight, Eleven, Fifteen and Nineteen), (1)(t)(Counts One, Four, Seven, Twelve, Fourteen, Sixteen and Twenty) and (1)(v)(Counts Three, Six, Nine and Seventeen) of Section 458.331, Florida Statutes. Proceedings on these allegations were conducted in accordance with Section 120.57(2), Florida Statutes. On August 24, 1992, the Board issued a Final Order finding Respondent guilty of the violations alleged in each of the 22 counts of the Administrative Complaint and disciplining him for having committed these violations. That portion of the Final Order addressing the Respondent's punishment provided, in pertinent part, as follows: IT IS HEREBY ORDERED AND ADJUDGED: Respondent's license to practice medicine is REPRIMANDED. Respondent shall pay an administrative fine in the amount of $5000 to the Board of Medicine, Department of Professional Regula- tion, within 3 years of the date this Final Order is filed. Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 3 years, subject to the follow- ing terms and conditions: . . . f. Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probation Committee. Absent provision for and comp- liance with the terms regarding temporary approval of a monitoring physician, as provided below, Respondent shall cease pract- ice and not practice until the Probation Comm- ittee or the Board approves a monitoring physician. Respondent shall have the monitoring physician with Respondent at the first probation appearance before the Probation Committee. Prior to the approval of the monitoring physician by the Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Comp- laint and Final Order filed in this case. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee meeting shall constitute a violation of this Order. Prior to the approval of the monitoring physician by the Committee, Respondent shall submit to the Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall be received by the Board office no later than fourteen days before the first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of the monitoring physician shall include: Submit semi-annual reports, in affidavit form, which shall include: Brief statement of why physician is on probation. Description of probationer's practice. Brief statement of probationer's comp- liance with terms of probation. Brief description of probationer's relationship with monitoring physician. Detail any problems which may have arisen with probationer. Respondent shall be responsible for ensuring that the monitoring physician submits the required reports. Be available for consultation with Respondent whenever necessary, at a frequency of at least once per month. Review 50 percent of Respondent's patient records selected on a random basis at least once every other month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every other month. At that time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician. Review all patient records of patients treated with Schedule II-V controlled substances. Receive and review copies of all Schedule II-V controlled substance prescriptions in order to determine the appropriateness of Respondent's prescribing of controlled substances. Report to the Board any violations by probationer of Chapters 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. . . Respondent shall submit semi-annual reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include: Brief statement of why physician is on probation. Practice location. Describe current practice (type and composition). Brief statement of compliance with probation terms. Describe relationship with monitoring/ supervisory physician. Advise Board of any problems. . . Respondent may prescribe Schedule II-V controlled substances with the restrictions set forth below: Respondent shall utilize sequentially numbered triplicate prescriptions in the prescribing of said controlled substances. Respondent shall provide one copy of each prescription for said controlled substances to the Department's investigator within 30 days. Respondent shall, within two weeks after issuance, provide one copy of each prescription for said controlled substances to his monitoring/supervising physician. Respondent shall maintain one copy of each prescription for said controlled sub- stances in the patient's medical record. This copy may be a xerox copy. During this period of probation, semi- annual investigative reports will be compiled by the Department of Professional Regulation concerning Respondent's compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine. . . . At a meeting held November 18, 1992, Respondent received the approval of the Probation Committee to have Oliver Anderson, M.D., serve as his monitoring physician. Both Respondent and Dr. Anderson appeared before the Probation Committee at this November 18, 1992, meeting. Dr. Anderson is in his late seventies. Like Respondent, he has a general family practice. He and Respondent have known each other for over ten years. Dr. Anderson first visited Respondent's office, in his capacity as Respondent's monitoring physician, in February of 1993. At the outset of the visit, Dr. Anderson asked for, and was given, a list of all the patients that Respondent had seen in the last two months. From the list, he randomly selected the names of 71 patients (which was one half the number of patients on the list). He then obtained from Respondent, and thereafter reviewed, the records Respondent maintained on these 71 patients. Dahna Schaublin, a Department investigator, was assigned to serve as Respondent's probation monitor. On or about February 10, 1993, she prepared and transmitted to her supervisor, Crystal Griffin, an investigative report concerning Respondent's compliance with the terms and conditions of his probation. In her report, Schaublin stated the following: A Final Order was filed on 8/24/92 regarding John Jackson, M.D. for prescribing Dilaudid to patients in 1989, violating FS. 458.331 (1)(q)(v). The Probation term is 08/24/92 to 08/23/95. Dr. Jackson was contacted and presented to the Miami BIS on 01/27/93 for an interview. He brought copies of prescript- ions for controlled drugs prescribed in Dec/ 1992-Jan/1993. Dr. Jackson did not have copies of other prescriptions with him stating he mailed one copy to the Board of Medicine and one copy to his physician monitor. Dr. Anderson, a family practitioner, is supervis- ing physician. Dr. Anderson has only been to Dr. Jackson's office on one occasion (the Order states he should review 50 percent of patient records on a random basis, and shall go to Dr. Jackson's office once every other month). Dr. Jackson decided to xerox each daily chart for each patient seen in the office and then mail Dr. Anderson a copy of the treatment chart (for that one occasion). Dr. Jackson stated that the reason he is not following the Order to the letter is because it was difficult for Dr. Anderson to review 50 percent of his patient records in person every month. We told Dr. Jackson this practice was contrary to the Final Order and we suggested he inform the Probation Committee. Dr. Jackson has not paid his $5000 yet, stating that he has 5 years to do so. Dr. Jackson has gone before the Probation Committee two times. Griffin inadvertently failed to forward Schaublin's investigative report to the Probation Committee. Accordingly, the Probation Committee took no action in response to the allegations made in the report. Respondent did not provide Schaublin with copies of prescriptions he wrote in February and March of 1993, "within 30 days," as required by paragraph 3k(2) of the Board's August 24, 1992, Final Order. It was not until April 14, 1993, that Respondent furnished Schaublin with copies of these prescriptions (which were written on numbered prescription forms). Respondent wrote prescription numbers 1041 through 1047 in April and May of 1993 (more specifically, prescription number 1041 on April 12, 1993; prescription number 1042 on April 14, 1993; prescription number 1043 on April 24, 1993; prescription number 1044 on April 26, 1993; prescription number 1045 on April 30, 1993; prescription number 1046 on May 2, 1993; and prescription number 1047 on May 12, 1993). These prescriptions were not among those that Respondent furnished copies of to Schaublin on April 14, 1993, however, none of them were written 30 days or more prior to April 14, 1993. On or about March 17, 1993, Respondent submitted his first semi-annual probation report to the Department. In the fourth paragraph of his report, Respondent asserted the following: I have complied fully with the terms of my probation. I have taken the course "Protecting your Practice" at the University of South Florida. I meet as scheduled with my monitoring physician Dr. O.D. Anderson whose letter will be Coming soon to you. We cover for each other every week taking calls on Wednesdays for Dr. Anderson and Thursdays for myself. We also alternate taking calls for each other every other weekend. We discuss patient care, as per the order, for all scheduled prescriptions written. In his report, Respondent did not indicate that there were "any problems" concerning Dr. Anderson's compliance with the provisions of the Board's August 24, 1992, Final Order which prescribed the responsibilities of Respondent's monitoring physician. Dr. Anderson submitted to the Department his first semi-annual report concerning Respondent's probation on or about June 13, 1993. In the third, fourth and fifth paragraphs of his report, Dr. Anderson asserted the following: In my opinion, Dr. Jackson has been very sensitive to the Administrative Complaint and Order of the Department of Professional Regulation. This has been demonstrated by his good attitude in my visits with him, and in his compliance with providing for me duplicate copies of his Numbered Schedule II-V prescriptions. Dr. Jackson and his office personnel have been very responsive in allowing my random selection of charts for review on my visits to his office. With his wife's support, Dr. Jackson has complied well with the requirements of his probation. Although he indicated otherwise in his report, Dr. Anderson had made only one visit to Respondent's office in his capacity as Respondent's monitoring physician. It was not until September of 1993, that he next visited Respondent's office in his capacity as Respondent's monitoring physician. In conducting his review during this visit, he followed essentially the same procedure that he had followed during his February visit. In September of 1993, Respondent filed with the Board a Petition for Early Termination of Probation on the grounds of "1) hardship due to changed circumstances; and 2) fulfillment of purposes of penalty." In his petition, Respondent asserted that he had "fully complied with the requirements of probation with the exception of the fine." He did not mention that he had failed to provide Schaublin with copies of the prescriptions he wrote in February and March of 1993, "within 30 days," as required by paragraph 3k(2) of the Board's August 24, 1992, Final Order or that Dr. Anderson had failed to make the number of office visits required by paragraph 3f(3) of the Final Order. Dr. Anderson wrote a letter, dated October 21, 1993, in support of Respondent's petition. The letter read as follows: This is an interim report following the first semi-annual report dated May 19, 1993, which I submitted. I was appointed monitoring physician for Dr. Jackson at the Miami November 18, 1992, meeting of the Probation Committee of the Department of Professional Regulation. Again I have reviewed the Administrative Complaint dated January 24, 1991, and also the Notice of Right to Judicial Review, and Certificate of Service signed August 24, 1992, which were received by Dr. Jackson. He is on probation for the inappropriate prescribing of Dilaudid to eleven patients in 1989. Dr. Jackson continues his good care of his private patients, and the Insurance PPO and HMO patients here in Hialeah, Florida. In my opinion Dr. Jackson has been very sensitive to the Administrative Complaint and Order of the Department of Professional Regulation. This has been demonstrated by his continuing compliance with providing for me the duplicate copies of his Numbered Schedule II-V prescriptions. Dr. Jackson continues to be very responsive in allowing my random selection of charts for review on my visits to his office. Dr. Jackson continues to be very aware of which medications fall into Schedule II-V. We both have copies of the Drug Abuse Prevent- ion and Control Schedule II-V list. This letter is written to support Dr. Jackson's release from probation. In my opinion he is worthy of release as demonstrated by his continuing compliance. The Board considered Respondent's petition at its October 1-3, 1993, meeting. Both Respondent and Dr. Anderson addressed the Board during this meeting. Dr. Anderson told the Board that, in his opinion, Respondent had "corrected all his past difficulties very effectively." By letter dated October 6, 1993, from Crystal Griffin, Respondent was informed of the Board's action. The letter read as follows: This is to inform you that the Florida Board of Medicine, in a meeting held October 1-3, 1993, . . voted to: Terminate your probation; however, you will be required to pay your administrative fine by August, 1995 and complete 300 hours of community service per year for a period of 2 years. Furthermore, you are required to submit a plan for your community service. You should receive an Order shortly. If you have any questions regarding this matter, please feel free to contact the Board office at (904) 488-0595. Sometime after the Board's October 1-3, 1993, meeting, but before the Board had issued the written order promised in Griffin's October 6, 1993, letter to Respondent, Schaublin first learned about Respondent's petition and the Board's action thereon. Thereafter, on December 7, 1993, she filed an investigative report concerning Respondent's compliance with the terms and conditions of his probation from the time of her last investigative report. In her December 7, 1993, report, she stated the following: Monitoring of the Subject's Probation is impeded because Dr. Jackson's failed to comply with terms of the Probation Order. The Final Order states: "k. Respondent may prescribe Schedule II-V controlled substances with the restrictions set forth below: (2) Respondent shall provide one copy of each prescription for said controlled substances to the Department's investigator within 30 days." Dr. Jackson: Did not provide copies of controlled substances prescriptions for February/March until April 14, 1993. There are 6 missing prescription forms from numbers 1041 to 1047. Dr. Jackson has failed to provide prescriptions for October/November 1993. This investigator met with Dr. Jackson at the Miami BIS on January 27, 1993 and requested copies of prescriptions be sent to this office within the 30 day time frame as mandated in the Final Order. A U.C.F. was issued by this Investigator on 12/7/93. This Investigator spoke with Constance Campbell on December 06, 1993 regarding Dr. Jackson's lack of compliance with the terms of the Final Order. We reported on 2/10/93 that Dr. Jackson's monitoring physician was not visiting his office "every other month" and making "random selection of the record[s]" as outlined in the Final Order f.(3). We are attaching copies of prescriptions for Controlled drugs for the months February 1993 through September 1993. On May 24, 1994, the Board issued a written order terminating Respondent's probation. The order provided as follows: THIS CAUSE came on before the Board of Medicine (Board) on October 3, 1993, in Miami, Florida for the purpose of considering Respondent's request to terminate the probation imposed by the Board's Final Order filed August 2 [sic], 1992. Upon review of the request, the testimony and evidence offered in support thereof, the recommendation of the Board's Probation Committee, and being otherwise fully advised in the premises, IT IS HEREBY ORDERED AND ADJUDGED that Respondent's probation shall be terminated. However, Respondent is still required to pay the administrative fine of $5,000.00 imposed by the previous Final Order and said fine must be paid by August 2, 1995. Furthermore, Respondent is required to complete 300 hours per year of community service in an area where medical services are needed during each of the next two years. This Order shall take effect upon filing with the Clerk of the Department of Professional Regulation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Medicine enter a final order finding Respondent guilty of the violations of subsection (1)(x) of Section 458.331, Florida Statutes, alleged in the Amended Administrative Complaint, with the exception of the alleged violation relating to the submission of copies of prescription numbers 1041-1047, and disciplining him for having committed these violations by fining him $2,500.00, suspending his license for a period of 30 days and placing him on probation for a period of two years (subject to those terms and conditions the Board deems appropriate) beginning immediately after the end of the suspension. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of December, 1995. 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 26th day of December, 1995.
The Issue Whether Respondent violated Sections 943.1395(6), (7), and 943.13(7), Florida Statutes, and Rules 11B-27.0011(4)(c) and 11B-20.0012(1)(f), Florida Administrative Code.
Findings Of Fact Respondent, Michelle Mann (Mann), was certified by the Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission (Department) on October 11, 1991, and was issued Correctional Probation Officer Certificate Number 122933 and Instructor Certificate Number 595-40-7895. Mann was employed by the Florida Department of Corrections as a correctional probation officer in December 1994 until her resignation in February 7, 1997. Dwight Williams, aka Dwight Moment is an inmate with the Florida Department of Corrections. In December 1994, Dwight Williams was on probation with the Florida Department of Corrections for the charge of conspiracy to traffic cocaine. Mann was assigned as Mr. Williams' probation officer on December 18, 1994. This was the first time that Mr. Williams and Mann had met. From December 1994 through December 1996, Mann was Mr. Williams' supervising probation officer. Between December 1994 and November 27, 1996, Mann initiated and engaged in a physical relationship with Mr. Williams, which included hugging, kissing, and sexual relations. During this time, Mann and Mr. Williams went to hotel rooms and had sexual relations between fifteen and twenty times.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED a Final Order be entered revoking Michelle F. Mann's Correctional Probation Certificate Number 122933 and Instructor Certificate Number 595-40-7895. DONE AND ENTERED this 22nd day of March, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 22nd day of March, 1999. COPIES FURNISHED: A. Leon Lowry, II, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James D. Martin, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michelle Mann 1556 Northwest 5th Street Fort Lauderdale, Florida 33311
