The Issue The sole issue is whether the graduation of Petitioner, Jerome J. Brown (Brown), from Barry University, Miami, Florida, on December 19, 1981, with a bachelor of science degree in professional and liberal studies constitutes graduation "with a major concentration relating to the criminal justice system," as that phrase is used in Section 943.22(1)(i), Florida Statutes (1983). Respondent, Department of Law Enforcement, Criminal Justice Standards and Training Commission (the Commission), has stipulated that Brown has met all other requirements for Commission certification of eligibility for salary incentive monies under Section 943.22(2)(c), Florida Statutes (1981). FINDINGS OF FACT 1/ On December 19, 1981, Brown was graduated from Barry University, Miami, Florida, with a bachelor of science degree in professional and liberal studies. The degree represents a combination of two programs offered to adult students through Barry University's School of Adult and Continuing Education: a bachelor of professional studies (BPS) program; and a bachelor of liberal studies (BLS) program. Barry University's School of Adult and Continuing Education programs are designed for adults who, because of family and work responsibilities, are unable to attend college classes in a traditional manner or at traditional class times. Students enrolled in the School of Adult and Continuing Education must meet the same graduation requirements as other Barry University students. These requirements include: Satisfactory completion of a minimum of 120 credits with a cumulative average of at least 2.00 (C). Of the total, a mini- mum of 40 credits must be in courses num- bered above 299 in Barry University's catalog (i.e., upper level courses), and the last 30 credits and the majority of the major course work must be completed at Barry University; Satisfactory completion of at least 45 credits of distributed course work, including 9 credits in each of the areas: religious studies and philosophy; written and oral communication; natural science and mathematics; social and behavioral sciences; and humanities and arts. A double major requires 30 to 40 credits in each of the two major areas of study. However, the School of Adult and Continuing Education at Barry University recognizes that adult students often have attained knowledge that is appropriate for academic credit, and it awards up to a maximum of 60 hours of such credit towards a degree (with the amount varying with each student's professional and vocational background) to students who can document professional development and competence in an evaluation portfolio. The portfolio is evaluated on the basis of how it: verifies the student's professional experience; demonstrates the effect of the student's professional experience on his or her personal development and future goals; and demonstrates the student's ability to communicate in writing and organize the portfolio. In addition to credit awarded as a result of evaluation of the student's portfolio, Barry University's School of Adult and Continuing Education gives students credit for college credit courses taken prior to enrollment at Barry University. However, as stated, a minimum of 30 hours of credit must be taken at Barry University. Barry University's liberal studies and professional studies programs are designed to be pursued by adults in a great variety of professional and vocational pursuits. Within the parameters already discussed, the student is free to tailor the program to his or her personal needs and desires. Over 100 law enforcement officers, from patrolmen on up, have enrolled in Barry University's professional studies program. Most of them have been personally motivated to advance through the ranks of their agencies and have tailored their degree programs to afford a concentration in courses related to the management functions of their agencies. Brown's portfolio, on which he worked on and off for some nine months, reflected his employment as an insurance agent from 1971 through 1975 and his employment by the North Miami Police Department from 1975 to date (since 1981 as a K-9 patrolman). It also reflected a 50-hour training program in risk insurance in 1974 and some 944 hours of education and training in law enforcement, 400 of which were at Miami-Dade Community College Southeast Florida Institute of Criminal Justice. For the professional experience documented in his portfolio, Brown was awarded 60 hours of credit towards his degree. Of that total, Brown needed to use only 36 hours, since he also was given credit for 51 hours of college courses taken at Biscayne College, Miami, Florida, and took 33 hours of courses at Barry University. The Biscayne College courses for which Barry University gave Brown credit include: COURSE CREDIT HOURS FRESHMAN COMP AND LIT I 3 EUROPEAN HISTORY I 3 MATHEMATICAL PRINCIPLES 3 INTRODUCTORY SPANISH I 3 RELIGION IN HUM EXP 3 POLICE ADMIN 3 FRESHMAN COMP AND LIT I 3 MATH PRINC II 3 LOGIC 3 INTRODUCTORY SPANISH II 3 MOD SOC PROB IN CHRI PE 3 EUROPEAN HISTORY I 3 PRINC OF MGMT 3 PRIN OF ECO I 3 INTRO TO STATISTICS 3 DIGITAL COMPUT PROG 2 BASIC ACCOUNTING 4 PRINCIPLES OF MARKETING 3 PRINCIPLES OF ECONOMICS 3 EUROPEAN HISTORY II 3 Brown already receives $30/month of salary incentive monies under Section 943.22(2)(b), Florida Statutes (1983), for earning an associate of arts degree, the equivalent of a community college degree. The courses Brown took at Barry University include: COURSE CREDIT HOURS INVESTMENTS 3 AMERICAN GOVT 3 MGT CONCEPTS & APPL 3 SOC & ETHIC ISSUES BUS 3 ORGANIZATIONAL BEHAV 3 PRIN ACCOUNTING II 3 ORGANIZATIONAL COMM 3 BUSINESS LAW I 3 AUDITING 3 INTERMEDIATE ACCOUNTING 3 MANAGERIAL COST ACCOUNT 3 Although Brown received his degree in professional and liberal studies, the courses which he took would have been sufficient to enable him to have been graduated from Barry University with a bachelor of science degree in management. As mentioned, Brown currently is a K-9 patrolman with the North Miami Police Department. As such, the primary relationship of the degree he earned from Barry University to his current job functions would be the benefits he would derive from having attempted to become a more well-rounded person. Specifically, Brown's education for which he received his Barry University degree assists Brown in dealing with the wide variety of members of the public with which he comes in contact as a patrolman. For example, he is better able to understand the probable perceptions various members of the public might have of him as a policeman and be better able to predict and deal with their reactions to him. In addition, Brown's education, particularly in the area of management, makes Brown better able to understand the management perspective and therefore better able to function as a patrolman for the North Miami Police Department. Finally, Brown's job as a K-9 patrolman requires him to account for all expenditures he makes in the scope of that employment, and his education in the area of accounting assists him in performing that function (although it cannot be said that Brown truly is in an accounting position at the North Miami Police Department) For these reasons, Brown's Barry University degree is compatible with his job functions at the North Miami Police Department. Brown's Barry University degree also is compatible with and even more directly related to the functions of his employing agency. Brown's degree is more directly related to each successively higher rank or position within the North Miami Police Department. The agency includes officers in positions of management, administration, supervision of other officers, budgeting, and public relations.
Findings Of Fact The Commission, having reviewed the Findings of Fact adopts and incorporates by reference the Findings of Fact of the hearing officer.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Criminal Justice Standards and Training Commission: (1) certify that the Commission and Department of Law Enforcement records do not indicate that petitioner, Jerome J. Brown, was graduated from an accredited college or university with a major study concentration relating to the criminal justice system; and (2) issue a declaratory statement that Brown is not eligible to receive salary incentive money under Section 943.22(2)(c) Florida Statutes (1983). RECOMMENDED this 24th day of April, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1984.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards And Training Commission enter a final order: Dismissing, as moot, the petition of Margherita Renzi insofar as it seeks a determination of prospective eligibility for salary incentive monies under Section 943.22, Florida Statutes (Supp. 1984); and Dismissing, as having no merit, the petition of Margherita Renzi insofar as it seeks a determination of retroactive entitlement to salary incentive payments before October 1, 1984, under Section 943.22, Florida Statutes (1983). RECOMMENDED this 2nd day of April, 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 2nd day of April, 1985.
The Issue Whether Respondent, Malcolm T. Watkins, violated sections 455.227(1)(t) and 471.033(1)(a) and (d), Florida Statutes (2015),1/ as alleged in the Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Florida Board of Professional Engineers (the Board), is charged with regulating the practice of engineering pursuant to chapter 455, Florida Statutes (2016). The Florida Engineers Management Corporation (the Corporation) is charged with providing administrative, investigative, and prosecutorial services to the Board pursuant to section 471.038, Florida Statutes. The Complaint at issue was filed by the Corporation on behalf of the Board. At all times material hereto, Respondent has been a Florida licensed professional engineer, having been issued license number 64064. On July 17, 2015, Respondent was found guilty on the following criminal counts by the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, in Case 2011- CF-002890-01: (1) Traveling to meet a Minor for Unlawful Sexual Conduct; (2) Use of Computer for Child Exploitation; (3) Attempted Lewd or Lascivious Battery; and (4) Unlawful Use of a Two-Way Communications Device. Respondent was sentenced to 10 years’ incarceration followed by five years’ probation. On Count 2, Respondent was sentenced as a Sex Offender. The sworn assertions in the April 25, 2011, Polk County Sheriff’s Affidavit (the Affidavit), and the allegations in the 4th and 6th Amended Information (the Informations) filed by the State Attorney in Case 2011-CF-002890-01, set out the facts supporting Respondent’s conviction. The allegations were grounded in Respondent’s having contacted, via the internet, a fictitious 24-year-old person posing as the custodian of a 13-year-old girl. Respondent arranged a meeting with the supposed 13-year-old, through her “custodian,” at which Respondent would have sexual relations with the 13-year-old. Respondent was arrested on April 25, 2011, at a location in Polk County where he had arranged to meet the “custodian” along with the female minor. On December 21, 2015, five months after Respondent’s conviction, Petitioner’s Investigator, Wendy Anderson, received a written complaint from Kyle Cartier, P.E., notifying Petitioner of the fact of Respondent’s conviction. Upon receipt, Petitioner opened Corporation Case Number 2016000255 (the Complaint). On January 4, 2016, Ms. Anderson notified Respondent via U.S. Mail of the opening of the Complaint. On January 21, 2016, Respondent replied to the Complaint and directed Petitioner to Respondent’s counsel. Respondent subsequently sent two letters to Petitioner, both dated March 11, 2016. The letters were provided to Walton Correctional Institution for mailing on March 18, 2016, and were received by Petitioner on March 23, 2016. The first letter notified Petitioner of Respondent’s conviction, and alleged that the conviction was not final because it had been appealed. The second letter claimed that the conviction did not relate to the practice of engineering and reiterated that Respondent’s conviction was not final because it had been appealed. Respondent’s March 11, 2016, letter notifying Petitioner of the conviction was received 238 days after Respondent’s conviction. Following her investigation of the Complaint, which commenced on December 21, 2015, and concluded on July 28, 2016, Ms. Anderson presented her investigative report to the Board. The Board filed the instant two-count Administrative Complaint against Respondent on September 23, 2016. Count I alleges that Respondent violated section 471.033(1)(d), which includes as grounds for disciplinary action, being convicted or found guilty of a crime “which directly relates to the practice of engineering or the ability to practice engineering.” Count II alleges that Respondent violated section 471.033(1)(a), which includes as grounds for disciplinary action, failing to report in writing to the Board within 30 days after the licensee is convicted or found guilty of a crime in any jurisdiction. Pursuant to section 455.227(2), the Board may impose any one in a range of penalties against Respondent for violating the cited provisions, including license suspension or revocation, practice restrictions, administrative fines, reprimand, and probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Professional Engineers enter a final order finding that Malcolm Watkins violated sections 455.227(1)(t) and 471.033(1)(a), Florida Statutes, and imposing a fine of $5,000. DONE AND ENTERED this 2nd day of May, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 2nd day of May, 2017.
The Issue Should Petitioner impose discipline on Respondent in association with his Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on May 19, 1984, and was issued Correctional Certificate No. 31730. On January 21, 1981, he had been issued Law Enforcement Certificate No. 31731. Finally, on September 18, 1997, Respondent was issued Instructor Certificate No. 207101. On May 7, 2002, Respondent was employed as a correctional officer at Hernando Correctional Institution (the facility) in Brooksville, Florida. He held the rank of sergeant. The facility has an area within its confines referred to as a control room. Within that control room are lock boxes containing keys. Those keys provide access to certain places within the facility. Only designated persons within the facility may open the lock boxes to obtain keys to gain access to the discrete areas within the institution. Other persons are not allowed to open the lock boxes to obtain the keys found in the lock boxes. On May 7, 2002, while in the control room, Respondent used channel lock pliers to manipulate the lock assembly on two separate lock boxes. Respondent was not entitled to access those lock boxes. The circumstances involving Respondent's attempt to access the lock boxes led to an investigation by the Department of Corrections Inspector General's Office. Inspector Cecil W. Rogers, II, an institutional inspector with the Department of Corrections was assigned to investigate the matter. As part of the investigation, Inspector Rogers interviewed Respondent using procedures consistent with the expectations of the interview process. In the interview Respondent was placed under oath before offering his responses. In the interview Inspector Rogers asked Respondent if the Respondent had attempted to unlock the lock boxes in any manner, or obtain entry into the lock boxes. Respondent replied that he did not enter the control room at the time he was accused of being there and did not try to access the boxes.
Recommendation Upon consideration of facts found and Conclusions of Law reached, it is RECOMMENDED that a final order be entered finding the violations of the statutes and rules and suspending the Respondent's Correctional Certificate, Law Enforcement Certificate, and Instructor Certificate for 60 days. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 29th day of October, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Bob Bishop, Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Rod Caswell, 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
The Issue The issue in this case is whether the Respondent’s license to practice pharmacy should be revoked or otherwise disciplined based on conduct that resulted in criminal convictions and his failure to report the convictions to the Board of Pharmacy (Board), as required.
Findings Of Fact The Respondent has been a licensed pharmacist in Florida and held Florida license PS 36908 at all pertinent times, until it expired on September 30, 2013. On December 14, 2010, the Respondent was indicted in federal court in the Middle District of Florida, Case No. 8:10- CR-530-T-33AEP. On September 5, 2012, the Respondent pled guilty to one count of conspiring to violate 21 U.S.C. sections 841(a)(1), 843(a)(2), 843(a)(3), and 856(a)(1), all of which also constituted violations of 21 U.S.C. section 846, and to two counts of knowingly engaging in monetary transactions, in and affecting interstate and foreign commerce, in property of a value of greater than $10,000, which was derived from a felonious criminal conspiracy to traffick in controlled substances, in violation of 18 U.S.C. section 1957. The plea also admitted to the factual basis of the charges--namely, that the Respondent conspired to allow the pharmacy he owned and operated in Tampa, Florida, to be used by the criminal conspiracy to fill and dispense forged, and otherwise illegal, prescriptions for over a million doses of Schedule II controlled substances, mostly oxycodone. The cash proceeds of the illegal sales were treated as income of the pharmacy, and the Respondent and others participated in monetary transactions whereby the illegally- obtained cash was used to purchase cashier’s checks and other assets and to conceal the illegal source of the money. Based on his guilty pleas, the Respondent was adjudicated guilty and sentenced to 108 months in prison. The special conditions of supervision in the Judgment require the Respondent to “refrain from engaging in any employment related to dispensing prescriptions drugs either in a pharmacy, pain clinic, or other medical environment.” The Respondent’s convictions clearly were related to his practice of pharmacy. The Respondent now maintains that he should not have pled guilty and would not have done so but for the incompetence of his attorney, who advised him to enter into the plea agreement. Based on this ground and others, he has been seeking to have his convictions vacated or his sentence reduced. There is no evidence that he has been successful in altering his convictions or sentence in any way, and the evidence does not suggest that it is likely that he will succeed in accomplishing either objective. The Respondent did not report his guilty pleas to the Board in writing within 30 days. The Respondent contends that his incarceration since his arrest made it impossible for him to do so. However, the greater weight of the evidence was to the contrary. More likely, compliance with the technical requirement to report to the Board in writing was not in the forefront of his mind. The Respondent has been licensed since July 31, 2002. This is the first time action has been taken by DOH and the Board to discipline his license. The Respondent’s actions had the potential to expose numerous people to harm from the misuse and abuse of oxycodone and other controlled substances. This violated the trust placed in him by the State of Florida when he became licensed as a pharmacist. His violation of the public trust demonstrated unsound judgment and a lack of integrity. As a result, the Respondent’s professional standing among his peers was lowered. (The only direct evidence of this was the testimony of DOH’s expert witness, but this fact can be inferred from the nature of his convictions and sentence, as well as the comments of the sentencing federal judge, who viewed the Respondent’s actions as an abuse of the public trust and undeserving of a second chance to be a pharmacist.) The Respondent also contends that he should be treated leniently in this case because alcohol abuse and long-standing emotional and psychological problems were primary reasons for his actions. His contention belies the criminal convictions, which were for intentional crimes and based on voluntary guilty pleas. To the extent that these problems were contributory factors, it is commendable that the Respondent is taking them seriously, and he will benefit in the long run from continuing to seek treatment and counseling to address them. Neither the problems, in themselves, nor the start of treatment and counseling warrants lenient license discipline. The Board has guidelines for the imposition of penalties for license violations. DOH submitted Petitioner’s Exhibit 4 as evidence of the guidelines in effect at the time of the Respondent’s guilty pleas and convictions. However, the exhibit actually purports to certify the guidelines in effect at various times from January 1, 2011, until December 31, 2013. It appears from the exhibit that as of the time of the Respondent’s guilty pleas and convictions, the range of penalties for a first violation of section 456.072(1)(c), Florida Statutes (2012), for a felony conviction or guilty plea was from a year probation and a $3,000 fine to a year suspension to revocation and a $5,000 fine. Fla. Admin. Code R. 64B16-30.001(o)3. (revised Nov. 29, 2006). The range of penalties for a first violation of section 456.072(1)(x), Florida Statutes (2012), is from a $1,000 fine to a $2,500 fine and a year probation. Fla. Admin. Code R. 64B16-30.001(o)(18) (revised Nov. 29, 2006). The guidelines in effect at that time also included aggravating circumstances that would justify deviating above the guidelines and mitigating circumstances that would justify deviating below the guidelines. The aggravating circumstances included: a history of previous violations; in the case of negligent acts, the magnitude and scope of the damage or potential damage inflicted on a patient or the general public; and violations of professional practice acts in other jurisdictions. The mitigating circumstances included: in the case of negligent acts, the minor nature of the damage or potential damage to the patient’s or the general public’s health, safety, and welfare; the lack of previous discipline; restitution of monetary damage suffered by the patient; the licensee’s professional standing among his peers; the steps taken by the licensee to ensure the non-occurrence of similar violations in the future, including continuing education; and the degree of financial hardship incurred by the licensee. In this case, there are no aggravating circumstances justifying a deviation above the guidelines. As for mitigating circumstances: the minor nature of the damage or potential damage to the patient’s or the general public’s health, safety, and welfare from his failure to report his convictions and guilty pleas to the Board might justify a deviation below the guidelines for that violation, but not for the convictions and pleas, themselves; the Respondent’s lack of previous discipline is a mitigating circumstance; restitution of monetary damage to the patient is not relevant; the Respondent’s professional standing among his peers has suffered and does not justify a deviation below the guidelines in this case; the Respondent forfeited all ill-gotten gains to the federal government and has incurred financial hardship as a result of the forfeitures and his incarceration, but that does not justify a deviation below the guidelines in this case; the Respondent has taken several continuing education courses since he has been incarcerated, but that does not justify a deviation below the guidelines in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pharmacy enter a final order finding the Respondent guilty as charged and revoking his license to practice pharmacy. DONE AND ENTERED this 23rd day of June, 2014, 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 23rd day of June, 2014. COPIES FURNISHED: Mark Whitten, Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C-04 Tallahassee, Florida 32399-3254 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Yolanda Y. Green, Esquire Lucas L. May, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher S. Switlyk Register No. 53913-018 Federal Satellite Camp Post Office Box 779800 Miami, Florida 33177-9800
Findings Of Fact 1. The Administrative Law Judge’s Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is clear and convincing evidence to support the Administrative Law Judge’s Findings of Fact.
The Issue The issue for resolution in this proceeding is whether Petitioner, Marcus A. Patrick, should be granted an exemption from employment disqualification which would allow him to work in a position of special trust or responsibility with Respondent, Department of Juvenile Justice.
Findings Of Fact Petitioner, Marcus Patrick, resides in Orlando, Florida, and is attending college in the field of criminal justice/criminology. He anticipates that he will receive his Bachelor of Science degree from Florida A&M University in August 2000. In December 1998, during the process of applying for a position with a Department of Juvenile Justice (DJJ) facility in Longwood, Florida, Mr. Patrick filed the necessary forms for background screening. These included an affidavit of good moral character which he signed and had notarized on December 18, 1998. The affidavit states that Mr. Patrick has not been found guilty nor pled guilty or no contest, regardless of whether adjudication was imposed or withheld, of any of a series of offenses listed on the affidavit. The listed offenses included violations of Chapter 812, Florida Statutes, relating to theft, robbery, and related crimes. The statement on the affidavit form immediately above Mr. Patrick's signature provides: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. Contrary to his affidavit, the background screening revealed certain offenses by Mr. Patrick. In 1990, while employed as a cashier at Wal-Mart, he passed store merchandise through the counter without scanning it, thus allowing his friends to obtain items without paying for them. Mr. Patrick and co-defendants entered a pre-trial intervention program and the case was dismissed with a nolle prosequi by the State Attorney on May 5, 1992. On February 3, 1997, Mr. Patrick pled nolo contendere to two counts of grand theft, a felony described in Section 812.014, Florida Statutes. He was placed on probation, was fined, and was ordered to make restitution. Adjudication was withheld. The date of the actual charge was October 6, 1996. When DJJ learned of the disqualifying offenses it offered Mr. Patrick an opportunity to explain them and to explain why he lied on the affidavit. In response, Mr. Patrick submitted documents explaining his criminal history and other documents relevant to his fitness for employment. He also submitted a revised affidavit. DJJ Inspector General Perry Turner denied Mr. Patrick's request for an exemption from disqualification on February 1, 1999. At that time Mr. Patrick was still on probation. Mr. Turner denied a second request in June 1999, when Mr. Patrick submitted evidence of his early termination from probation, but his felony (dating back to October 1996) was still within the three-year prohibition period. Mr. Turner denied Mr. Patrick's third request on December 14, 1999. It is this most recent denial that is the subject of this proceeding. Mr. Turner's final denial was based on the pattern of theft, the falsification of an affidavit, and the mere lapse of four years since the most recent offense. At the hearing Mr. Patrick admitted he falsified his affidavit but said that he was misled by his lawyer who he admits did not read the affidavit. Apparently the lawyer told him that he could answer "no" if the question asked whether he was convicted. That was not the question, and the affidavit form is quite clear that the questions also included pleas of guilty or no contest and circumstances where adjudication was withheld. Perhaps more troubling is the discrepancy between Mr. Patrick's explanation at hearing and his written explanation submitted to DJJ on January 22, 1999, regarding his 1996 grand theft offense. In 1996, Mr. Patrick was working at the Courtyard by Marriott in Tallahassee, Florida. In his 1999 version of the events, an acquaintance of his from Florida A&M University came to the hotel on several occasions allegedly to escape from his many girlfriends. The acquaintance would check in with a credit card and Mr. Patrick would check him in. The hotel policy was not to question why the name on the card did not match the reservation as long as the card cleared. The acquaintance was caught using bad cards and when it was discovered that Mr. Patrick had checked him in they both were in trouble. Mr. Patrick's version at the hearing in this case involved the use of a credit card that belonged to someone else, but Mr. Patrick would not charge the card. Instead, he took cash from the acquaintance in an amount less than the full hotel rate. The testimony is not clear whether Mr. Patrick pocketed all or just part of the cash. In his testimony on cross-examination Mr. Patrick said he thought he had given the whole story to DJJ earlier. Mr. Patrick is working again for Marriott, now in Orlando, Florida. He acknowledges that he made some bad decisions and he believes that his experience and commitment to avoid crime now would enable him to be an effective role model for the troubled youth with whom he so anxiously wants to work. Mr. Patrick worked in a juvenile residential program in Tallahassee, Florida, from April 1997 until December 1998, with promotions from counselor to treatment director to assistant program director. His letters of recommendation from staff at the program are highly laudatory of his character and his work. The record does not reveal how he eluded the screening process when he was hired or whether he was screened for that job, as he would have been on probation for his 1996 felony during that period. Mr. Patrick also has an excellent letter of recommendation from his pastor who has known him since 1996. This letter and those from his co-workers and supervisors do not acknowledge any criminal history, but the individuals may be ignorant of the history. The crimes themselves are of less consequence than Mr. Patrick's unwillingness to be fully candid. His training in criminal justice certainly has informed him of the solemnity of an affidavit. He should have known what a no contest plea is and should have been able to understand what he was required to disclose. He is 31 years old, and served in the Marine Corps for approximately 8 years, including Gulf War combat. He is very articulate and appears well-motivated in his pursuit of a career of working with problem youth, a career which does not promise great financial reward. Such a talented, earnest young man should not be forever precluded from working in the field in which he could succeed in helping others avoid the mistakes he has made. For now, however, it is impossible to find sufficient evidence of rehabilitation to assure those mistakes are truly behind him.
Recommendation Based on the foregoing, it is RECOMMENDED: That the agency enter its final order denying Marcus A. Patrick's request for exemption. DONE AND ENTERED this 26th day of May, 2000, in Tallahassee, Leon County, Florida. MARY CLARK 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 26th day of May, 2000. COPIES FURNISHED: Marcus A. Patrick 2734 Fireside Court Orlando, Florida 32839 Lynne T. Winston, Esquire Inspector General's Office 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact The Petitioner, Ana Caos, M.D., is a applicant for a restricted license to practice Medicine in the State of Florida pursuant to the provisions of Section 458.311(8), Florida Statutes. Successful completion of the Florida Board Examination is a prerequisite to licensure under Section 458.311(8), Florida Statutes. The Florida Board Examination is also known as the FLEX examination. In an effort to meet that prerequisite, the Petitioner has already taken the FLEX examination six times since October 1, 1966. The Petitioner has passed portions of the licensure examination, but thus far she has not received a passing grade on the Basic Sciences portion of that examination. The Petitioner seeks to continue taking the licensure examination until she achieves a passing grade on all portions of the examination. The issue of whether Section 458.311(2), Florida Statutes, had the effect of limiting the number of times the Petitioner could take the FLEX exam was first considered by the Board of Medicine in 1992. In response to an earlier application by the Petitioner, by letter dated March 11, 1992, the Petitioner was advised by Board staff that Section 458.311(2), Florida Statutes, appeared to apply to her application and that the matter would be considered by the Board at the next meeting of the Board. Thereafter, by letter dated May 7, 1992, Board staff advised the Petitioner that her application would be considered by the Board's Credentials Committee, and that the Petitioner was required to attend the meeting of that committee on May 27, 1992. At the May 27, 1992, meeting, the Board's Credentials Committee, following perfunctory advice of counsel, and without discussion by the committee members, voted to recommend that the Petitioner be allowed to take the FLEX exam a sixth time after 1986, even though she had previously failed the exam five times since 1986. The committee recommendation was adopted by a majority of the Board of Medicine, and the Petitioner was allowed to take the FLEX examination for a sixth time since 1986. The Petitioner failed the FLEX examination for a sixth time since 1986. The Petitioner has reapplied for licensure under Section 458.311(8), Florida Statutes (1992 Supp.), and seeks to take the FLEX exam for a seventh time since 1986. On January 19, 1993, the Board of Medicine filed and served an order regarding the Petitioner's pending licensure application. The order reads as follows, in pertinent part: You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to DENY your application for licensure as a physician by examination. The Board of Medicine reviewed and considered your application for licensure by examination on November 19, 1992, in a telephone conference call originating in Tallahassee, Florida and has determined that said licensure by examinatiion be denied, stating as grounds therefore: That you have failed to pass the FLEX examination six times since October 1986. Subsection 458.311(2), Florida Statutes, prohibits licensure of any individual who has failed the FLEX examination five times after October 1, 1986. Although the Board previously permitted you to sit for the the FLEX examination for a sixth time in 1992, it has since that time determined that this provision applies to all applicants for licensure. The Board of Medicine has an existing rule that interprets several provisions of Section 458.311(8), Florida Statutes (1991). (See Rule 21M-22.020 (1), Florida Administrative Code.) At the Board meeting on July 11 and 12, 1992, the Board of Medicine discussed proposed amendments to the existing rule and voted to initiate rulemaking to amend Rule 21M-22.020(1), Florida Administrative Code, by adding to it new subsections specifically addressing the issue of how many times applicants under subsections (8) and (10) of Section 458.311, Florida Statutes, may take the licensure examination. At its meeting on July 11 and 12, 1992, the Board of Medicine instructed its legal counsel to initiate rulemaking to adopt the rule amendments described above. For reasons unknown to the Board's Executive Director, the Board's legal counsel did not file the proposed rule amendment for adoption until March of 1993. The March 12, 1993, issue of the Florida Administrative Weekly contains notice of the Board's intention to adopt the rule amendments described above. The full text of the proposed rule is as follows: 21M-22020 Western Hemisphere Exile Requirements. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Section 6, Chapter 86-245, Laws of Florida, (codified at Subsection 458.311(8)(9)(a), Florida Statutes (1992 Supp))(1988 Supp), the following shall apply: (a) - (c) No change (d) The phrase "successfully completes the Florida Board Examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. For purposes of interpreting Section 458.311, Florida Statutes, as amended by Chapter 89-266, Chapter 89-541 and Chapter 92-53, Laws of Florida, (codified at Subsection 458.311(10), Florida Statutes (1992 Supp.)(1991)), the following shall apply: (a) - (g) No change. (h) The phrase "successful completion of the licensure examination" is interpreted as requiring obtaining a passing score as defined by Rule 21M-29.001(2) within the time frame set forth in Section 458.311(2), Florida Statutes. Specifically, if the applicant has failed the examination five times after October 1, 1986, the applicant is no longer eligible for licensure. It is the consistent practice of the Board of Medicine to apply the provisions of Section 458.311(1)(a)-(d), (4), and (5), Florida Statutes, to all applicants seeking licensure under Section 458.311(8), which last-mentioned section is also known as the "Cuban Exile Program."
The Issue The issue is whether Respondent properly denied Petitioner's application for licensure by endorsement to practice as a registered nurse in the state of Florida.
Findings Of Fact In June of 1980, Petitioner was vacationing in Escambia County, Florida. While he was there, he was arrested for Driving Under the Influence of Liquor (DUI). After his arrest, Petitioner was taken to a police station where he waived his right to an attorney and submitted to a Breathalyzer test. Petitioner was held at the police station until a family member picked him up several hours later. Petitioner posted a $100 bond to secure his release from police custody. Petitioner pled guilty and was convicted of DUI in July of 1980. Petitioner was ordered to pay a fine in the amount of $167.50. His driver's license was suspended for 90 days. He was nineteen years old at the time. Petitioner was in the United States Navy for 16 years, beginning in November of 1980. Initially, Petitioner received training as a urology technician and an operating room technician. Later he participated in the Medical Enlisted Commissioning Program, which allowed him to complete his bachelor's degree in nursing. Petitioner served as an ensign the last five years of his naval career, during which he received several security clearances. Petitioner routinely disclosed the existence of his previous DUI when questioned by the Navy. Petitioner was medically retired from the armed forces in September of 1996. He filed an application for licensure by endorsement as a nurse with Respondent in August of 1996. At that time, Petitioner was already licensed as a registered nurse in the state of Rhode Island. Since October of 1996, Petitioner has worked as the Director for Risk and Quality Management at Gulf South Health Plans in Louisiana. Petitioner is also licensed to practice nursing in the state of Louisiana. Question 6A of the Florida application for nursing licensure states as follows: 6A. ARREST HISTORY Have you ever been convicted or have you entered a no contest or guilty plea -- regardless of adjudication -- for any offense other than a minor traffic violation? Petitioner answered this question on his application by checking the block marked "NO." Petitioner filed his application with Respondent on August 2, 1996, without disclosing his arrest and conviction for DUI. Respondent's routine check with the Florida Department of Law Enforcement revealed Petitioner's 1980 arrest and conviction for Driving Under the Influence. Respondent subsequently requested additional information from Petitioner relating to his DUI. Respondent furnished Petitioner with all requested information. Petitioner did not knowingly or willfully fail to disclose his arrest and conviction for DUI. At the time he filed his application, Petitioner believed his 1980 DUI conviction constituted a "minor traffic offense." He did not understand the question on the licensure application to require the reporting of a DUI conviction. Question 6A on Petitioner's application does not state whether an applicant should disclose all misdemeanors as well as felonies. The question is confusing and misleading. From February 1992 through June 1997, Respondent denied 392 applicants for nursing licensure because they had a criminal conviction or failed to disclose one or more criminal convictions. Respondent was able to locate the files of 287 of those applicants. Of the 287 applicants, 183 failed to disclose crimes other than DUI or criminal traffic charges. Ninety-four applicants failed to disclose DUI or criminal traffic violations. After Petitioner filed his application, Respondent approved a revision to the language of Question 6A. The revised language for the question reads as follows: Have you ever been found guilty of, or pled guilty or no contest to, any charge other than a minor traffic offense? You must include all misdemeanors and felonies even if adjudication was withheld. Respondent decided to make this change due to the high percentage of applicants who failed to disclose convictions for DUI. Respondent wanted to make the question easier to understand. Respondent has never denied licensure to an applicant solely as a result of an applicant's previous DUI conviction.
