The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since June 6, 1994, licensed to practice veterinary medicine in the State of Florida. Respondent holds license number VM 6466 issued by the Board of Veterinary Medicine (Board). Respondent supports his family by practicing veterinary medicine. He is the family's sole wage earner. At its March 14, 2006, meeting, the Board took action, in Case No. 2003-93234, to suspend Respondent's license for 30 days. Following the meeting, but before the issuance of the Board's final order, Respondent's attorney, Bradford Beilly, Esquire, telephoned the Department of Business and Professional Regulation (Department) attorney who prosecuted the case before the Board, Drew Winters, Esquire. Mr. Beilly informed Mr. Winters that he would be filing, on behalf of Respondent, an appeal of the Board's final order, as well as a motion for stay, with the Fourth District Court of Appeal. Mr. Beilly then asked Mr. Winters if the Department would be opposing the motion for stay. Mr. Winters responded that he would "talk to others at the Department and get back to [Mr. Beilly]." When Mr. Winters "did get back" to Mr. Beilly, he told him that "the Department was not going to object to a stay." Mr. Winters and Mr. Beilly then had a discussion regarding what would happen if Respondent practiced veterinary medicine between the time the Board's final order took effect and the stay was obtained. Mr. Beilly misunderstood Mr. Winters to have said during their discussion that the Department would not "treat [Respondent's] practicing veterinary medicine from the [time] that the order was rendered and filed in Tallahassee to the time the appellate court issued . . . the [s]tay as practicing veterinary medicine under a suspended license." At no time did Mr. Winters ever make such a representation to Mr. Beilly.5 Mr. Beilly subsequently "advised [Respondent] of [his] discussion with Mr. Winters and told [Respondent] that there [would] not [be] a problem with him practicing between the entry of the final [order] and entry of the [s]tay."6 The Board entered its original Final Order in Case No. 2003-93234 (Original Final Order) on March 28, 2006. Mr. Beilly received a faxed copy of the Original Final Order the following day. On March 30, 2006, Mr. Beilly, on behalf of Respondent, filed a notice of appeal and motion for stay with the Fourth District Court of Appeal. The Fourth District Court of Appeal granted the motion for stay on April 4, 2006. Between March 28, 2006, and April 4, 2006, Respondent openly engaged in the practice of veterinary medicine. No charges were brought against Respondent for having practiced veterinary medicine with a suspended license during this seven-day period, inasmuch as the Department did not "catch [him] practicing." On July 25, 2007, the Fourth District Court of Appeal affirmed in part and reversed in part the Original Final Order, holding as follows: Based upon the above, the order of the Board is affirmed to the extent that it determined that Dr. Aleong's failure to timely file his request for an administrative hearing operated as a waiver of his right to such a hearing, and to the extent that it rejected Dr. Aleong's claim that the doctrines of equitable tolling and excusable neglect relieved him of the consequences of his untimely request for a hearing. The Board's order is reversed to the extent that it imposed a penalty greater than that provided for in the disciplinary guidelines, and the matter is remanded for the Board to either impose a penalty within the guidelines or to make written findings which support the imposition of a harsher penalty. Aleong v. Department of Business and Professional Regulation, 963 So. 2d 799, 802 (Fla. 4th DCA 2007). On remand, the Board chose not to impose a lesser penalty. Its Amended Final Order in Case No. 2003-093234, which was filed with the Clerk of the Department on April 7, 2008, read as follows: THIS CAUSE came before the Board of Veterinary Medicine (Board) on March 18, 2008, in Ft. Lauderdale, Florida, for consideration upon a remand from the District Court of Appeal of the State of Florida, Fourth District. In its written opinion the Court affirmed this Board's Final Order filed on March 28, 2006, in all regards except with respect to the penalty imposed. With respect to the penalty, the Court reversed the penalty and remanded the case to the Board with directions that the Board either impose a penalty within its disciplinary guidelines or make written findings which support the imposition of a harsher penalty. The Board chooses the latter. Section 455.2273, Florida Statutes, requires the Board to make written findings as to the aggravating circumstances which were the basis for its deviation from the recommended guidelines penalty. The Board finds that the aggravating circumstances which justify imposing a harsher penalty are as follows: Respondent has had two prior actions taken against his license by this Board. Those cases are DBPR Case Number 2001-04949 and DBPR Case Number 2003-057847. [See Rule 61G18-18.001(4)(c), Florida Administrative Code.] One of the violations in the previous case[s] was the same violation as the violation is this case: failing to keep accurate medical records as required by Section 474.214(1)(ee), Florida Statutes, and Rule 61G18-18.002, Florida Administrative Code. (Case Number 2[0]0[1]- 04949)(T26)[See Rule 61G18-18.001(4)(i) and (j), Florida Administrative Code.] Respondent admitted on the record at the hearing that he had not timely complied with the Final Order in a case which had come before the Board just six months prior to the meeting at which the penalty in this case was imposed. (T26, 28)[See Rule 61G18- 18.001(4)(c), (h), (i), and (j), Florida Administrative Code.] Furthermore, Respondent was on probation at the time the instant case came before the Board for action. (T28)(See Rule 61G18- 18.001(4)(h) and (j), Florida Administrative Code.] The discussion by the Board members clearly indicated that the Board believed Respondent was not "getting the message" that he had to comply with the regulations. As expressed during the discussions, "So I think that we have to send a message, a strong message that he has to do that from now on." (T27)(See also T 28). And later in the discussion, another Board member asked: How can we leave a message that he has to have complete [sic] the complete record so another veterinarian can go behind you and know exactly what was done to that horse day by day, document whether the horse - or not document what he saw, how he came to that conclusion. If a dog comes in I can't say he is sick and this is what I did. I have to say, well, he was limping on his right front limb. I have to explain it, or whatever, you have to document how you came to those conclusions. (T31)[See Rule 61G18-18.001(4)(f)(j)(a), Florida Administrative Code.] WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED THAT: Respondent shall pay COSTS of $542.42, FINES of $3,000.00, and take and pass the applicable laws and rules examination at Respondent's own expense no later than thirty (30) days after the filing of this Order with the Department's Clerk. Payment of said costs and fines shall be mailed to the Board of Veterinary Medicine, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, FL 32399-0792. Respondent shall be required to take an additional five (5) hours of continuing education related to the area of medical records within six (6) months after the filing of this Order. Respondent's license is suspended for a period of thirty (30) days. This Final Order shall take effect upon being filed with the Clerk of the Department of Business and Professional Regulation. At the end of the Amended Final Order was the following "Notice of Right to Judicial Review": A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Department of Health [sic] and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within thirty (30) days of rendition of the order to be reviewed. Respondent and Mr. Beilly attended the March 18, 2008, meeting at which the Board decided to take the action it subsequently memorialized in the Amended Final Order. After the meeting, Respondent authorized Mr. Beilly to seek appellate review and a stay of the Board's action. Mr. Beilly received a copy of the Board's Amended Final Order on April 9 or 10, 2008, and he faxed a copy to Respondent, who read it. After receiving the Board's Amended Final Order, Mr. Beilly spoke with Jennifer Tschetter, Esquire, the Department attorney who "would be handling the appeal of the [A]mended [F]inal [O]rder." Ms. Tschetter advised Mr. Beilly that the Department "would have no objection to a stay of the [A]mended [F]inal [O]rder being entered" by the appellate court. During their conversation, Mr. Beilly and Ms. Tschetter did not discuss whether Respondent would be able to lawfully practice prior to the entry of the appellate court's stay. It is undisputed that "Respondent practiced as a veterinarian at Calder Race Track and at other venues, [from] April 10 [three days after the Amended Final Order took effect] through April 2[3], 2008."7 There is no evidence that Respondent's practicing veterinary medicine during this period of time resulted in damage to any person, animal, or thing. At the time Respondent engaged in this activity, he believed, based upon the advice that he had previously been given by Mr. Beilly, that he was not doing anything wrong. It was his understanding that he "had 30 days to file an appeal [of the Amended Final Order] before [his] license was suspended" and that he "was allowed to practice while he applied for an appeal [and a] [s]tay." On April 23, 2008, upon being informed by a Department investigator that his license was "under suspension" and that he therefore was "not allowed" to practice, Respondent "stopped working." Respondent immediately telephoned Mr. Beilly, who filed, on behalf of Respondent, a Notice of Administrative Appeal of Amended Final Order and a Motion to Stay with the Fourth District Court of Appeal that same day, April 23, 2008. The appeal was docketed as Case No. 4D-08-1624. On April 24, 2008, the Fourth District Court of Appeal issued the following order in Case No. 4D-08-1624: BY ORDER OF THE COURT: ORDERED that appellant's motion filed April 23, 2008, for stay pending appeal on expedited basis is granted. The enforcement of the Amended Final Order rendered on April 7, 2008, by the State of Florida Board of Veterinary Medicine is stayed pending the disposition of the above-styled appeal. Respondent's appeal of the Amended Final Order is still pending. On May 15, 2008, Department Investigator Russell Lambert sent Respondent a letter advising him that the Department was investigating the following complaint that had been assigned DBPR Case No. 2008-028603: Alleged violation of FSS 474.213(1)(e) use [of] a license that has been suspended. On 4/22/08 and 4/23/08 a sweep was conducted at the Ocala Breeders Sale. On 4/23/08, the Gainesville investigative office was notified that the Resp[ondent] was possibly working there and that his license had recently been suspended. On 4/23/08 at approximately 7:00 AM, investigators observed Dr. Aleong enter stall number 60, Building 17 and scope a horse with HIP Number 1025 owned by a person known as Hal Hatch. After Dr. Aleong completed the process and exited the stall, investigators approached him and referenced the status of his license, at which time Dr. Aleong stated that he was not aware that his license had been suspended. Dr. Aleong's wife, Pamela, was also present and advised that the horse was being scoped for her sister Christine Wasilewski. On May 20, 2008, Department Investigator Beatriz Caldera sent Respondent a letter advising him that the Department was investigating the following complaint that had been assigned DBPR Case No. 2008-029108: Alleged Violation of F.S. 474.213(1)(e) practicing on a suspended license. On 4/24/08 Investigator Caldera visited Calder Race Track and found evidence which revealed that Dr. Aleong treated and prescribed medicine for horses at the track between 4/10/08-4/24/08. Dr. Aleong's license was suspended at the time. The Administrative Complaint that is the subject of the instant proceeding was filed in DBPR Case No. 2008-029108 on or about August 26, 2008. On November 13, 2008, Department Assistant General Counsel Elizabeth Duffy, Esquire, sent a letter to Respondent's attorney, Mr. Beilly, advising him of the following concerning DBPR Case No. 2008-028603: Please be advised the above-referenced case [DBPR Case No. 2008-028603] has been reviewed by the Department and closed without a finding of probable cause to believe your client violated the provisions of chapter 474, Florida Statutes, and/or the rules promulgated pursuant thereto. The case has been closed without prejudice[;] if the Department receives additional evidence or determines, upon further review, that the determination to close was in error, the Department reserves the right to reopen the case. If the case is reopened, you will be promptly notified. As this case has been dismissed without a finding of probable cause, the materials included within the file are confidential and may not be disclosed to the public without your written permission. Please contact me if you have any questions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) finding Respondent guilty of violating Section 474.213(1)(e), Florida Statutes, and Section 474.214(1)(f), Florida Statutes; (2) suspending his license for a period of 17 days; (3) fining him $1,000.00; (4) placing him on probation for a year; and (5) ordering him to reimburse the Department's investigative and prosecutorial costs. DONE AND ENTERED this 1st day of July, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 1st day of July, 2009.
The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Lakeside is an apartment building with 19 units located at 1048 Northeast 18 Avenue, Fort Lauderdale, Florida 33304- 2408. The Division issued Lakeside a license, numbered 16- 10553-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Lakeside's license] is December 1, 2000." On July 20, 2000, Division employee Robert Shaw conducted a routine inspection of Lakeside and found the apartment complex to be open and operating. On a Lodging Inspection Report that he prepared on that date, 2/ Mr. Shaw noted two minor violations, neither of which is at issue here. On the same form, Mr. Shaw inscribed the date that Lakeside's license would expire, as shown below, in the blank spaces provided for that purpose in a line that read: REMINDER: Your license expires 12 /01 /00 Petitioner's Exhibit 2. Mr. Shaw testified, however, that at the time of this inspection, he did not know whether or not Lakeside was licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Lakeside Apartments. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 24th day of January, 2001.
Findings Of Fact Nancy Boles owns and has operated Happy Days Guest Ranch for some 14 years. This facility is licensed as an ACLF and has no record of complaints other than those contested at this proceeding. On or about March 4, 1987, DHRS received a report from an undisclosed source that a resident at the Happy Days Guest Ranch ACLF had been abused by the proprietor, Nancy Boles, and an investigator was sent to the ACLF. Apparently the allegation was that Respondent had slapped a resident. At this time there were approximately 6 residents at the ACLF. After talking to these residents and with Respondent, the investigator, Katherine Massaro, concluded that a substantiated report of abuse had occurred. The HRS Division of License and Certification was notified and a decision was made to relocate the six residents and place a moratorium on further admissions to the ACLF. Additionally, Respondent's application to renew her ACLF license was denied. No evidence was presented that the HRS Division of Adult Services, filed a notification of a confirmed report of abuse against Respondent and placed her on the abuse register. Accordingly, this is not a proceeding challenging a confirmed report of abuse of the aged but is a license revocation proceeding. It is apparent that HRS notified the State Attorney's Office of the alleged abuse and the charges disposed of in Exhibit 1 were preferred. No adjudication of guilt was made in that case. Petitioner's eye witnesses to the alleged abuse were two elderly women. The younger, Mardell Surrency, whose deposition is Exhibit 2, was 75, and the other, Alice Beasley, whose deposition is Exhibit 3, was 86. Both of these women testified that they saw Respondent slap Fowler Simmons, another resident of the ACLF who is senile or has other mental impairment that led these witnesses to conclude that mentally Simmons was "real bad" with the mind of a child who had to be told everything to do. Both witnesses gave an indication (pantomined) of how Respondent slapped Simmons. Unfortunately, a verbal description of this act is not contained in their deposition. Surrency testified that Beasley "was 86 years old so she didn't pay much attention to anything." Beasley, on the other hand, testified that she and "Modelle" were sitting alongside each other when the incident occurred and she and "Modelle" had often talked about how mean Respondent talked to Simmons. Neither ever saw any bruise on Simmons' face or body or ever saw Respondent strike Simmons other than this one time. Both testified Respondent told Simmons to not sit there "like a damn fool." Respondent's version of the incident was that she did indeed slap Simmons, but gently on the mouth, to get him to eat the meal she had prepared. She demonstrated a very light slap with the palm of her hand on the lips. This evidence is deemed more credible than the often rambling and disjointed testimony of the two female residents of the ACLF.
The Issue The issue in this case is whether the Respondent’s license to practice as a certified nursing assistant should be revoked or otherwise disciplined based on the charges of unprofessional conduct by stealing from a patient.
Findings Of Fact The Respondent, Tamar Laurent, is a certified nursing assistant (CNA) in the State of Florida having been issued license CNA 43605. This is the first time action has been taken by DOH and the Board to discipline her license. In December 2012 and January 2013, the Respondent was employed by Westminster Towers. While working at Westminister Towers, the Respondent was assigned to care for patient R.G. R.G. was given a cell phone by his son R.G. III. The Respondent picked up the cell phone, which was lying on the floor next to R.G.’s bed, and placed it in the drawer of a nightstand that was for and contained R.G.’s personal items. The Respondent thought the phone belonged to R.G. One week later, she went back into the drawer and took the cell phone to give to her son. While visiting his father, R.G. III realized that the cell phone was missing. R.G. III attempted to find the phone using family location tracking and looking up the call log. The information he uncovered was given to the Orlando Police Department and Westminster Towers. Nicole Daigneault was the director of nursing at the time of the incident. After receiving the information from R.G. III, she initiated an internal investigation and reported the incident as a theft to the Agency for Healthcare Administration. The internal investigation discovered that the Respondent and the Respondent’s son were in possession of the cell phone. The Respondent contacted Detective Osso of the Orlando Police Department. During an interview with Detective Osso, the Respondent admitted to taking R.G.’s cell phone. A few days after the interview, the Respondent retrieved the cell phone from her son and gave it to her attorney to return to R.G. III. During the hearing, the Respondent maintained that she did not know the cell phone belonged to R.G. and that she placed it in his bedside table because she found it next to his bed. This contradicted her own testimony during the hearing, and in the Respondent’s earlier statement to the Orlando Police Department, that she assumed the cell phone belonged to R.G. when she put it in his drawer. The Respondent knew that the cell phone did not belong to her and that she did not have a right to take it. During the hearing, the Respondent stated her supervisor, Rita, gave her permission to take the cell phone if she brought it back the next day. However, Rita Burginia, the supervisor of nursing assistants at the time of the incident, never had a conversation with the Respondent or would never authorize anyone to take the personal property of a patient. After the testimony of Ms. Burginia, the Respondent then claimed she spoke to a different supervisor, also named Rita. Nicole Daigneault can only recall one Rita working at Westminster Towers at that time, Rita Burginia. In any event, the Respondent did not return the cell phone the next day but rather kept it for a few weeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding the Respondent guilty as charged; and revoking her license to practice as a certified nursing assistant; and assessing costs of investigation and prosecution. DONE AND ENTERED this 11th day of September, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 11th day of September, 2015. COPIES FURNISHED: Ana Margarita Gargollo-McDonald, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Tamar Laurent 1270 Woodman Way Orlando, Florida 32818 Judson Searcy, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed) Daniel Hernandez, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) COURTESY COPY FURNISHED: Ann-Lynn Denker, PhD, ARNP Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252
The Issue Whether or not on or about December 8, 2000, Petitioner possessed the appropriate license to operate a body-piercing salon establishment in accordance with Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code.
Findings Of Fact Based upon the evidence presented, the testimony, and upon the personal inspection of the undersigned, the following findings of fact are made: At all times material hereto, Respondent, Department of Health, Division of Environmental Health, is the state agency charged with implementation of Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code. At all times material hereto, Petitioner, Rita Moroz, operated a manicure-pedicure, nail-lengthening establishment, "A New Adventure of Tampa Bay," located at 11608 North Dale Mabry Highway, Hillsborough County, Tampa, Florida 33618. Section 381.0075(2)(a), Florida Statutes, defines "BodyPiercing" as for commercial purposes the act of penetrating the skin to make, generally permanent in nature, a hole, mark, or scar. "Bodypiercing" does not include the use of a mechanized, presterilized ear-piercing system that penetrates the outer perimeter of lobe of the ear or both. At all times material hereto, Petitioner admitted that she operated a body-piercing establishment salon and provided body-piercing services without first having obtained a body-piercing license as required by law. At all times pertinent hereto, Petitioner possessed a manicure-pedicure license issued by another country and her foreign license also authorized body-piercing services. Petitioner, upon receipt of the Certificate of Violation, discontinued performing body-piercing services. The representative for the Agency stated that the Department would accept, in consideration of Petitioner's admissions and prompt discontinuation of body-piercing services, a reduced fine in an amount not to exceed $500.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
Findings Of Fact Briccio Dizon Valdez, M.D., (Petitioner) is an applicant for licensure as a medical doctor by examination. The Department of Professional and Business Regulation, Board of Medicine, (Board) is the state agency with responsibility for regulation of licensed medical practitioners in the State of Florida. In 1977, the Petitioner became licensed to practice medicine by the State of Florida. On or about September 25, 1984, the Petitioner entered a plea of nolo contendere to a charge of witness tampering in medical malpractice litigation in which the Petitioner was a party. Adjudication was withheld. The Petitioner was placed on two years probation, fined $1,000 and ordered to perform 250 hours of community service. By Final Order filed June 25, 1985, the Petitioner's Florida license to practice medicine was suspended for a period of three years for sexual misconduct with a patient under his care. By Final Order filed February 27, 1987, the Petitioner's Florida license to practice medicine was suspended for a period of 44 days to run concurrently with the existing suspension. The additional suspension was based on the fact that the Petitioner continued to practice during the appeal of the sexual misconduct suspension, incorrectly believing that his appeal stayed the suspension. On or about August 27, 1987, the Petitioner entered a plea of guilty to a charge of engaging in the sale of encyclopedias without an occupational license. Adjudication was withheld. The Petitioner was placed on probation for a period of one year. By Final Order filed October 24, 1988, the Petitioner's Florida license to practice medicine was revoked for practicing medicine without a license. The case was based on an account by an investigator posing as a patient who allegedly received psychiatric services from the Petitioner during his period of suspension. By Final Order filed November 9, 1989, the Petitioner's Georgia license to practice medicine was revoked based on the revocation of his Florida license. In February 1990, the Petitioner submitted a Florida application for medical licensure. By Final Order filed February 8, 1991, the application was denied by the Board. In October 1991, the Petitioner again submitted a Florida application for medical licensure. In May 1992, the Board Credential's Committee reviewed the licensure application of the Petitioner. The Petitioner appeared before the committee, as did Dr. Ernest Miller, who had performed a psychiatric evaluation of the Petitioner. On June 6, 1992, the Board of Medicine reviewed and denied the Petitioner's application. This is the denial at issue in this proceeding. By Order filed August 5, 1992, the Board denied the Petitioner's application for licensure by examination. The letter of denial provides as follows: The Board of Medicine reviewed and considered your application for licensure by examination on June 6, 1992, in Tampa, Florida and has determined that said licensure by examination be denied, stating as grounds therefore: that you have previously had your medical licensure in Florida and Georgia revoked. Prior to revocation, your Florida license was acted against because of sexual misconduct. You have not provided any evidence of rehabilitation since having your licenses revoked. You have not been in medical practice since 1985. You provided false statements in an affidavit accompanying your licensure application and you were lacking in candor in the testimony you provided to the Board's Credentials Committee. The following findings specifically address each of the identified grounds for the Board's denial of the application: PREVIOUS REVOCATION OF LICENSURE IN FLORIDA AND GEORGIA As set forth herein, the Petitioner's Florida license to practice medicine was revoked for practicing medicine without a license. Based on the Florida proceedings, the State of Georgia first suspended and then revoked the Petitioner's Georgia license. The Final Order revoking the Petitioner's license does not prohibit him from applying for re-licensure. DISCIPLINE OF FLORIDA LICENSE PRIOR TO REVOCATION BASED ON SEXUAL MISCONDUCT The evidence establishes that prior to the revocation of his Florida license, the Petitioner's license has been suspended for sexual misconduct. The period of suspension has been served. The order of suspension does not prohibit the Petitioner from applying for re-licensure. LACK OF EVIDENCE OF REHABILITATION SINCE LICENSE REVOCATION There is no evidence that the Board has directed the Petitioner to undertake any defined program of rehabilitation. There is no evidence that the Board directed the Petitioner to undergo psychiatric evaluation. The Petitioner has sought such evaluation on his own initiative. On several occasions between November 1991 and December 1993, the Petitioner was examined by expert psychiatrist Dr. Ernest Miller. Dr. Miller has been professionally familiar with the Petitioner for approximately eleven years. According to the testimony of Dr. Miller, the Petitioner demonstrates no dysfunction or disorder which would prevent him from adequately practicing psychiatry at this time. There is no cause to believe that the events which led to the Petitioner's suspension and revocation will be repeated. Dr. Miller attended the May 26, 1992 meeting of the Board's Credentials Committee and was prepared to speak on his behalf. Although the evidence is unclear as to whether Dr. Miller was provided the opportunity to speak to the committee during the May 26 meeting, Dr. Miller provided to the Board a written record of the evaluation and his findings prior to the meeting. The greater weight of the evidence establishes that there is no "lack of evidence of rehabilitation since license revocation." There is no evidence that the Petitioner manifests dysfunction or disorder which would prevent him from adequately practicing psychiatry. OUT OF MEDICAL PRACTICE SINCE 1985 Other than as set forth herein, the Petitioner has been out of medical practice since 1985, at the approximately time of the license suspension. He has remained active as a mental health counselor since 1989. There is no credible evidence which would establish that the passage of time since the Petitioner actively practiced is sufficient to deny an application for licensure by examination. FALSE STATEMENTS IN AN AFFIDAVIT ACCOMPANYING THE LICENSURE APPLICATION The letter of denial fails to specifically identify which statements the Board considered to be false. Based on the evidence offered at hearing, it appears that the allegedly false statements are in relation to the Petitioner's performance on the "FLEX" exam. In response to an application question directed at whether the applicant had ever failed the FLEX exam, the Petitioner in his initial application for licensure in April 1977 asserts that he has never failed the FLEX examination. At the time the Petitioner submitted the 1977 application, he had failed the Flex exam in both North Carolina and Georgia. In response to an application question directed at whether the applicant had ever failed the FLEX exam, the Petitioner in the October 1991 application asserts that he has taken the FLEX exams in the State of Georgia and passed on his second attempt. In a sworn affidavit dated January 28, 1992 and forwarded to the Board, the Petitioner states that he took and passed the FLEX exam in 1978 on his second attempt in Georgia. At the hearing, the Petitioner testified that he had taken the FLEX exam in June 1977 and December 1977, both times in Georgia. At the Board's request, the Petitioner authorized the Federation of State Medical Boards to furnish the Petitioner's "Examination and Board Action History Report" to the Board. The report identifies the dates upon which the Petitioner has submitted to the Federation Licensing Exam (FLEX) and the results of those tests. Florida law provides that the FLEX exam must be passed by an applicant prior to licensure. According to the report, the Petitioner has taken the Flex exam on four occasions prior to January 31, 1992. In June 1976, the Petitioner took and failed the FLEX examination in North Carolina. At no time has the Petitioner disclosed that he had taken and failed the FLEX exam in North Carolina. The Petitioner has taken the FLEX examination three times in Georgia. He failed the examination on attempts made in December 1976 and June 1977. He passed the Flex exam in Georgia in December 1977. The Petitioner has disclosed only that he had twice taken the exam in Georgia and has asserted that he passed the exam on his second attempt. The Petitioner suggested at hearing that he was confused by the dates of examination and asserted that he had not intended to misrepresent the facts. The assertion is not credible. The evidence establishes that the Petitioner has submitted false statements in the affidavit accompanying his 1991 licensure application. The evidence further establishes that the Petitioner has submitted false statements regarding his experience with the FLEX examination since the time of his initial application for licensure by the State of Florida. LACK OF CANDOR IN THE TESTIMONY PROVIDED TO THE BOARD'S CREDENTIALS COMMITTEE No transcript of the proceedings before the Board's Credentials Committee was offered or admitted into evidence at the hearing. There is no evidence to support the Board's position that the Petitioner demonstrated a lack of candor in the testimony provided to the committee.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional and Business Regulation, Board of Medicine, enter a Final Order denying the application of Briccio Dizon Valdez for medical licensure by examination. DONE and RECOMMENDED this 25th day of April, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5581 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 9. Rejected, irrelevant. 11. Rejected, irrelevant. 14. Rejected, argumentative, not supported by the greater weight of the evidence. The cited Georgia Final Order does not state that the Georgia license is subject to restoration upon reinstatement of the Florida license. The Georgia order provides that upon revocation, the license "shall not be subject to restoration." The order also provides that should the Respondent wish to return to medical practice in Georgia, the Georgia board may impose such conditions or restrictions as are deemed necessary for the protection of the public. 25-28. Rejected, irrelevant. 30. Rejected, conclusion of law. 31-33. Rejected, irrelevant, not at issue in this proceeding. 36. Rejected, conclusion of law. 37-39. Rejected, irrelevant, not at issue in this proceeding. 40. Rejected, irrelevant. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 17. Rejected, unnecessary. COPIES FURNISHED: Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Paul Watson Lambert, Esquire Michael I Schwartz, Esquire 2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749 Gregory A. Chaires, Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050
