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. Blackwood is an apartment building with five units located at 4115 Riverside Drive, Coral Springs, Florida 33065- 5929. The Division issued Blackwood a license, numbered 16-16900-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 Blackwood's license] is December 1, 2000." On June 5, 2000, and again on October 6, 2000, Division employee Cynthia Pieri conducted routine inspections of Blackwood. Each time, she found the apartments to be open and operating. Additionally, on both occasions Ms. Pieri took note that Blackwood's 1999-2000 license was not on display or available at the premises. On a Lodging Inspection Report that she prepared on June 5, 2000, 2/ Ms. Pieri checked box number 38 indicating a violation in connection with the following item: "Current license, displayed, available upon request." In the comments section of the form she wrote: "#38 1999-2000 DBPR license is not posted." Ms. Pieri left blank the spaces provided for informing the establishment of the date when its license would expire in a line that read: "REMINDER: Your license expires / / ." Petitioner's Exhibit 2. 3/ Kenneth Charles Buck, a Division employee, explained that ordinarily licensees such as Blackwood are sent a renewal notice. Regardless whether a licensee receives a notice, however, it is responsible for paying the required fee, which may be remitted either to the local office or to the Division's headquarters in Tallahassee. Transcript of Final Hearing ("T-") Sometimes, a licensee will pay the field inspector; field inspectors are authorized to accept license fees and issue receipts. T-14. Mr. Buck testified that the documents he could access on his computer indicated that Blackwood had failed to pay a license fee for the 1999-2000 period. T-13. Mr. Buck stated further that he had spoken with Blackwood's owner "on occasion" and had informed her that the license fee was due. T-14.
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 Blackwood Rentals. 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.
The Issue Whether Respondent is entitled to a refund of license fees and late penalties.
Findings Of Fact On September 6, 1988, a lien on License No. 68-01319, Series 4-COP, was recorded with the Division of Alcoholic Beverages and Tobacco (Respondent). The named lienholder was Francis D. Sawyer (Petitioner). Framay, Inc., d/b/a Thirsty Parrot was the holder of License No. 68-01319. On May 21, 1990, an administrative action was filed by the Respondent against Framay, Inc., d/b/a Thirsty Parrot. The administrative action, alleged that Framay failed to maintain the license in an active status. Framay never requested a hearing and a Final Order was entered on September 25, 1990, revoking License No. 68-01319. On November 8, 1990, the Respondent filed a Notice to Show Cause alleging failure to comply with the terms of the September 25, 1990 Final Order. On May 6, 1991, a second Final Order was entered revoking License No. 68-01319. In February 1992, the Respondent was contacted by attorney Stanley Chapman as counsel to Petitioner, Sawyer. Petitioner claimed that the Respondent had failed to provide him a point of entry as lienholder to foreclose his lien, and sought to have the license "reinstated in escrow" in order to allow him to proceed in foreclosure. After some discussion, the Respondent agreed to cooperate with Petitioner's efforts to foreclose by not opposing a summary judgement motion filed by Petitioner. Normally, foreclosure of a lien on a revoked license is permitted only when the lienholder brings an action within 12 days of an order or revocation. Even though the time had expired, the Division nonetheless permitted Sawyer to foreclose on the license because Sawyer had a legitimate claim and the Division's interests would not be adversely affected by ignoring the 12 day time frame. In August 1992, Petitioner, through his attorney Stanley Chapman, filed a complaint to foreclose his lienholder's interest in the license. Framay, Inc., d/b/a Thirsty Parrot, Wayne F. Sawyer and the Division were named as defendants. The Petitioner foreclosed on License No. 68-01319 and a Final Judgment of Foreclosure and Transfer of Beverage License was entered on January 27, 1993. Upon the entry of foreclosure, Petitioner, as required by the Respondent, filed an application for the delinquent renewal of License No. 68- 01319. The delinquent renewal of the license required that past due license fees totalling $5,512.50 for the years 1990-1991, 1991-1992, and 1992-1993 be paid to activate the license. Petitioner requested that the Respondent waive the payment of delinquent annual license fees and penalties which the Respondent was seeking prior to issuing the license to any transferee. The Respondent denied the request to waive applicable fees and required payment of delinquent renewal fees in the amount of $5,512.50. Petitioner paid the fee under protest, claiming that the fee was not applicable to this transaction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,
Findings Of Fact Alfredo Thomas Santisi is an Italian-born chef who has had considerable experience in the restaurant business. Twelve years ago he worked at Picciolo's, a restaurant located at 136 Collins Avenue in Miami Beach, Florida. Until July 3, 1980, Samuel D. Picciolo managed the restaurant on behalf of a corporation he controlled, Picciolo's American-Italian Restaurant, Inc. (PAIR) During that time Mr. Picciolo and his wife, Dorothy L. Picciolo, owned the real property that housed the restaurant. Pending disposition of the present application for transfer, PAIR continues to hold a currently valid beverage license, No. 23-02198-4COP. On one of his visits to his former employer, Mr. Santisi learned that Mr. Picciolo was in failing health and desirous of leasing the restaurant. After Mr. Santisi had considered and rejected his offer to lease the restaurant, Mr. Picciolo offered to sell the restaurant for $540,000, including a down payment of $200,000. Mr. Santisi discussed this proposition with a business associate, Lee Banner. They decided they were interested, but finances were a problem; they could not raise the down payment on their own. Jorge L. Gonzalez, Esquire, had money at his disposal which was eventually used for the acquisition. After a welter of confusing and contradictory testimony (and documentary evidence, some of which had been altered), it remains a mystery just who has the beneficial ownership of that money. On or about June 3, 1980, Mr. Gonzalez offered the vice presidency of Arcala Investment, Inc., a Florida corporation (Arcala FL) to Alexander Prendes, who is married to Mr. Santisi's daughter Stella, and indicated that Arcala Florida would furnish the additional money necessary to acquire the restaurant from PAIR. All of the stock of Arcala Florida is owned by a second corporation that is organized under the laws of the Netherland Antilles, Arcala Investments NV (Arcala NV). Mr. Gonzalez introduced Mr. Prendes to Ranulfo Sosa, Jr., who became president of Arcala FL. Mr. Prendes served as vice president but had been replaced as vice president of Arcala Florida by Carlos Barbara as of June 30, 1980, by which time Mr. Prendes had become secretary of Arcala FL. Manuel Garces and Fernando Birbragher were managing directors of Arcala NV as of June 38, 1988. Respondent's Exhibit No. 1. On July 3, 1980, Lee Banner, as trustee, as to an undivided two-fifths, and Arcala Florida as to an undivided three-fifths interest, purchased the Picciolo's real property and all of PAIR's assets (except inventory), including PAIR's beverage license. Petitioner's Exhibit No. 2. Lee Banner took as trustee half for himself and half for Mr. Santisi so that each had a one-fifth beneficial interest. The sale price was $547,800.08. One hundred fifty thousand dollars ($150,000) of the two hundred thousand dollars ($200,000) paid to the Picciolos and PAIR, at or before closing, came through Mr. Gonzalez. Respondent's Exhibit No. 7. The parties agreed to a price of $20,000 for the inventory, but no money changed hands at that time. Instead, on July 3, 1980, petitioner Picciolo's Collins Avenue Corporation (and Lee Banner, as an accommodation maker) executed a note in favor of PAIR for twenty thousand dollars ($20,000), secured by petitioner's "interest as lessee in and to" the real property the Picciolos had sold earlier the same day to Arcala Florida and Lee Banner, as trustee. Petitioner's Exhibit No. 6. From this, it is inferred that petitioner leased the restaurant properly from Arcala Florida and Lee Banner on July 3, 1980, after they had acquired it from the Picciolos. On July 28, 1980, petitioner applied for a transfer of license No. 23- 8198 4-COP. Petitioner's Exhibit No. 1. According to supporting documents, petitioner's officers on July 3, 1980, were Lee Banner, president, Alexander Prendes, vice-president, and Alfredo Santisi, secretary-treasurer. Petitioner's Exhibit No. 4. Petitioner's stock was owned by Lee Bariner (20 percent), Alfredo Santisi (20 percent) sold Arcala FL (60 percent), according to the same source. Personal questionnaires filed by each of petitioner's officers on July 28, 1980, noted that Arcala Florida had invested $150,000 and that Messrs. Santisi and Banner had each invested $25,000 in petitioner. Petitioner's Exhibit No. 3. On August 4, 1980, Beverage Officer Carmen V. Gonzalez visited the restaurant and discovered that petitioner was selling alcoholic beverages and depositing the proceeds in its accounts. Beverage Officers Gonzalez and Eddie L. Alford returned to the restaurant on August 6, 1980. At that time Lee Banner and Alfredo Santisi assured them of the accuracy of the submissions made on July 28, 1980. On or before Friday, August 8, 1980, Officer Alford issued an official notice advising petitioner that it could not lawfully sell alcoholic beverages. Rene Valdes appeared at respondent's Miami office on August 11, 1980, seeking a temporary license for petitioner. At that time, Mr. Valdes represented that Arcala Florida had no interest in the beverage license or anything else other than the real property where the restaurant was located. On August 12, 1980, a temporary license issued. Also, on August 12, 1980, petitioner furnished respondent a copy of a bill of sale dated July 4, 1980, Respondent's Exhibit No. 2, purporting to reflect the sale of Beverage License No. 23-02198 4-COP, by Arcala Florida to petitioner for $35,000 with "$5,000,00 (Five Thousand Dollars) down Balance in 24 equal monthly installments of $1,250,00 (One Thousand Two Hundred Fifty Dollars), no interest." Respondent's Exhibit No. 2. On August 11 or 12, 1980, petitioner submitted a second certificate of incumbency reflecting that Alfredo Santisi and Lee Banner each owned 125 shares of petitioner's stock and that Alexander Prendes owned 250 shares of petitioner's stock. In a written statement dated September 23, 1980, Alexander Prendes explained that the 250 shares of petitioner's stock he held "represent[ed] the interest of ARCALA [FL] . . . to guarantee the full performance [sic] by PICCIOLO's COLLINS AVENUE CORP. . . . or the payment of the $35,000 dollars for the license and $20,000 dollars for the merchandise." Respondent's Exhibit No. 4. Mr. Prendes never paid any money for the stock. In an affidavit dated August 12, 1980, Alfredo Santisi stated that "the CERTIFICATE of INCUMBENCY and DECLARATION of STOCK OWNERSHIP submitted to the DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO on . . . July 8, 1980 were wrong and that that one submitted [sic] on August 11, 1980 is the correct one." Petitioner's Exhibit No. 20. After a dispute with Mr. Santisi and three principals of Arcala Florida about how to run the restaurant, Lee Banner sold his stock in petitioner to Ramulfo Soss, Sr. for $30,000. On January 6, 1981, petitioner caused a third certificate of incumbency and declaration of stock ownership to be filed with respondent, reflecting that Ranulfo Soss, Sr. and Alfredo Santisi each owned 250 shares of petitioner's stock. During the course of respondent's investigation, Mr. Gonzalez failed to keep two appointments he had made with beverage officers; petitioner's bookkeeper once refused to answer Officer Alford's questions, referring him to Mr. Valdes; and various letters and phone calls from petitioner's office to respondent went unanswered. See Respondent's Exhibit No. 5. After the initial temporary license had expired, respondent extracted an affidavit signed by Ranulfo Sosa, as president of petitioner, reciting that "the fingerprints and personal information pertaining to Fernando Birbragher and Manuel Graces shall be furnished within twenty-one (21) days of the issuance of a temporary permit Petitioner's Exhibit No. 11. On November 17, 1980, a second temporary license issued. On November 26, 1980, Mr. Gonzalez wrote respondent's Captain Harris asking that he "please send me a letter explaining why you need" Petitioner's Exhibit No. 9, fingerprints and personal information pertaining to Birbragher and Graces. By letter dated December 8, 1980, Captain Harris advised Mr. Gonzalez that respondent had concluded that Arcala NV had an interest in petitioner. Respondent's Exhibit No. 6. Petitioner never furnished respondent personal questionnaires pertaining to Graces or Birbragher or arranged to have either fingerprinted. A third temporary license issued on January 23, 1981. Petitioner's Exhibit No. 12. In an effort to show that Arcala Florida leased the real property housing the restaurant to petitioner, petitioner adduced not one but two (inconsistent) leases at the hearing. Under the terms of one lease, dated the "4st day of July, 1980," petitioner is supposedly obligated to pay $5,000 monthly as rent to Arcala FL. Petitioner's Exhibit No. 15. Under the terms of the other lease, dated August 8, 1980, and signed by Lee Banner on behalf of petitioner, petitioner is supposedly obligated to pay all taxes, assessments, insurance and upkeep on the building as rent. Petitioner's Exhibit No. 16. The later lease makes no mention of the former. Both are dated after the promissory note secured by petitioner's interest as lessee. According to Lee Banners testimony, however, there never was any Lens fide lease and petitioner never made any lease payments to Arcala FL. The only office Arcala Florida ever has had is a sort of closet off the kitchen of the restaurant.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner deny respondent's license. DONE and ORDERED this 21st of August, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 21st day of August, 1981. COPIES FURNISHED: Jorge L. Gonzalez, Esquire Suite 505 814 Ponce de Leon Boulevard Coral Gables, Florida 33134 Harold F. X. Purnell, Esquire Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Findings Of Fact The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126. The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan. On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting. Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him. On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas. On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing. Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address. The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Respondent the Agency enter its Final Order finding the violation of Section 458.331(1)(b), Section 458.331(x) and 458.331(1)(kk) and, Florida Statutes, and revoking the Respondent's license to practice medicine in Florida. DONE and ENTERED this 28th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997.
The Issue Whether or not Petitioner may be issued a 2-COP License to operate a business to be known as the 101 Club located at 424 North 11th Street, Palatka, Florida.
Findings Of Fact On September 21, 1987, Petitioner, Johnnie Lee Simmons, submitted a completed application for a new permanent and temporary 2-COP (beer and wine) alcoholic beverage license(s) to the Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) at DABT's Gainesville, Florida District Office. The application involved the proposed "101 Club, located at 424 North 11th Street, Palatka, Putnam County, Florida." At the time Petitioner submitted the application(s) he was issued a temporary ninety-day license, numbered 64-00378. By the terms on the face of this first or initial temporary license, it expired on December 19, 1987. This first or initial temporary license likewise indicated on its face that it would expire upon disapproval of the pending permanent license application. The application listed Willie Lee Simmons, Sr., the Petitioner's father, as having a direct interest in the "101 Club" through a personal loan of $1,000.00 by which Petitioner would finance the "101 Club". Also in the Personal Questionnaire portion of the application, Petitioner admitted that he and his father had once held beverage license number 64-00029 for the "Palatka Blue Diamond", a bar previously located at the same address and location as the proposed "101 Club", and further admitted that the prior license had been revoked. Other "Personal Questionnaires" were also submitted simultaneously with, and as part of, the initial application. These had been completed by Petitioner's wife; the father, Willie Lee Simmons, Sr.; and Willie Lee Simmons, Sr.`s wife because the property at 424 North 11th Street, Palatka, Florida is owned together by these four family members. Petitioner and his father, Willie Lee Simmons, Sr., were formerly co- license holders for the "Palatka Blue Diamond". The revocation of that prior license was based upon Department of Business Regulation, Division of Alcoholic Beverage Control v. Willie Lee and G. L. Simmons d/b/a Palatka Blue Diamond, DOAH Case No. 83-3023, resulting in a July 12, 1984 Final Order, which was upheld on appeal to the First District Court of Appeal in Simmons v. Department of Business Regulation, Division of Alcoholic Beverages, 465 So.2d 578 (Fla. 1st DCA 1985). The First District Court of Appeal found, "[T]here was competent substantial evidence to support the hearing officer's findings that the underlying violations had occurred. We also conclude there was sufficient evidence of flagrant, persistent and recurring violations from which the hearing officer could infer that the licensees failed to supervise the premises in a reasonably diligent manner and thus, were culpable." Significant and material undisturbed findings of fact contained in the underlying Recommended Order of that case were that "Respondents did keep a public nuisance on the licensed premises by maintaining it as a place visited by persons for the unlawful use or sale of a controlled substance [marijuana], in violation of Section 823.10, F.S." The hearing officer specifically found that although Petitioner might not have been on the premises of the "Palatka Blue Diamond" when drug sales and gambling were going on, he surely knew about these activities from conversations with his wife who tended bar there. When Petitioner submitted the initial license application for the "101 Club" on September 21, 1987, Sgt. Homer Scroggin, DABT Supervisor of the Gainesville Sub-District, already knew the Petitioner and had knowledge about the revocation proceedings against Petitioner's prior license for the "Palatka Blue Diamond". He led Petitioner to believe that the prior revocation would not impede the new license application for the "101 Club", but he made no specific promise or guarantee of licensure. On December 1, 1987, seventy-one days after receiving Petitioner's application, DABT issued a written request to Petitioner for information concerning an alleged arrest in North Carolina. Subsequently, on December 16, 1987, DABT issued Petitioner a Notice of Intent to Disapprove his application for permanent licensure for failure to furnish information on the alleged North Carolina arrest. On December 23, 1987, ninety-three days after the license application and four days after the first temporary license had expired, but prior to the agency's completing its background checks, DABT's Gainesville office issued Petitioner the second of five temporary licenses. Also on that day, Petitioner signed a waiver, reading: I, Johnnie Lee Simmons, do hereby wave [sic) the 90 day period for my beverage license Sgt. Scroggin testified that if the Petitioner had not signed the foregoing waiver, he, Sgt. Scroggin, would have denied the Petitioner's application for a permanent 2-COP license at that point in time, December 23, 1987, because DABT cannot grant a license without receiving information concerning fingerprints and that information had not arrived. While it is clear that Sgt. Scroggin, told this to Petitioner, thereby inducing him to sign the waiver, the statement itself is erroneous and not credible because the thrust of the entire remainder of Sgt. Scroggin's testimony, the greater weight of the documentary evidence, and much of the testimony of DABT Licensing Bureau Chief, Barry Schoenfeld, is that Sgt. Scroggin's recommendations from the District are not binding on the Bureau of Licensing, located in Tallahassee, that the ultimate decision to grant or deny an application is made by Schoenfeld unless a prior revocation is involved, and that in unusual circumstances, such as appearance of a prior revocation history, an entire committee review procedure, culminating in the signature of the Director of DABT, Leonard Ivey's signature, was in place, and that in each alternative situation, Sgt. Scroggin was only the first recommender.1/ Moreover, the specific terms of the December 16, 1987 Notice of Intent to Disapprove is contrary to Sgt. Scroggin's December 23, 1987 statement to the Petitioner/applicant. That document provided, in pertinent part: The purpose of this letter is to notify you of our intention to recommend disapproval of your application for a license as referenced above. We are giving you ten (10) days in which to correct the deficiencies or supply additional documentation to correct the reason(s) for the recommended disapproval as indicated on the reverse of this letter. The response must be received or postmarked no later than ten (10) days from the date of this letter. If you have not complied within this time period the application will be sent to the Bureau of Licensing and Records in Tallahassee to be disapproved. No amendments or supplements will be accepted after this ten (10) day period unless specifically requested by the Division. Any documentation submitted after this period will be returned. XXX The application is deficient as indicated: 14 day letter was sent to applicant requesting disposition on case #FL0540000 Offense #4999, to date we have not heard from applicant as to his ability to clear up this matter. 14 day letter was dated on December 1, 1987. Despite the agency's characterization of this December 16, 1987 document (R-4, page 2), as an "intent to disapprove/deny," it is clearly nothing more than a repeated untimely agency request for the same information already untimely requested on December 1 (R- 4, page 1; see Finding of Fact No. 6, supra.) It is an untimely request for information, and not a denial of the permanent application. It also is clearly misleading to the applicant concerning his rights with regard to time limits which had become effective by operation of law. It specifically represents that Petitioner had until December 25 to prevent denial of his application, when in fact, the 90-day statutory period starting with the initial application date would lapse on December 20. It is also noted that Schoenfeld and Scroggin agreed, with regard to a subsequent Notice of Intent to Disapprove, that such a notice does not constitute final agency action; therefore, it is clear that both these notices in December, 1987 could not be "final" either. For these reasons and for the reasons set forth in the following Conclusions of Law, Sgt. Scroggin's statement was an erroneous legal conclusion, which either by error or design misled the Petitioner. Sgt. Scroggin also led Petitioner to believe that a backlog in license processing was the reason he needed the waiver signed. Petitioner was subsequently issued three more temporary licenses on March 31, 1988, June 30, 1988, and September 27, 1988. All five temporary licenses clearly notified Petitioner that they expired 90 days from issuance and would expire if the permanent license application were disapproved. The December 23 license lapsed March 22, nine days before the issuance of the March 31 license. The March 31 license lapsed June 28, two days before the June 30 license was issued. All the temporary licenses were issued without fee and permitted Petitioner to continue to operate his bar/nightclub, the "101 Club", pending further license processing which included out of state arrest inquiries, FBI fingerprint processing, and further background checks. Approximately January 22, 1988, the criminal background checks on all four members of Petitioner's family were completed and determined to be no impediment to licensure. On February 4, 1988, Sgt. Scroggin recommended that Tallahassee DABT approve the Petitioner's application and that it issue the requested permanent license. On or about May 18, 1988, Sgt. Scroggin received a memorandum from Mr. Schoenfeld questioning Sgt. Scroggin's February 4 favorable recommendation. Sgt. Scroggin then reconsidered and recommended that Petitioner's application should be disapproved for several reasons. At formal hearing, however, Sgt. Scroggin was unable to provide any evidence supportive of the allegations/reasons contained in this disapproval recommendation. Rather, and contrariwise to those allegations, Sgt. Scroggin admitted that his Gainesville office had received no complaints of any kind relating to the "101 Club" during the 15 months it had operated on its five temporary licenses; that he had, subsequent to his disapproval recommendation, determined that only one police incident report involving the "101 Club" had ever been made; and that that single report had been made by a customer whose boyfriend had slapped her. The DABT witnesses concede that this incident report does not reflect badly in any way on any "101 Club" principal and would not preclude issuing the license. On August 4, 1988, DABT sent Petitioner its "Amended Notice of Intent to Disapprove," naming Petitioner's prior "Palatka Blue Diamond" license revocation as the reason for disapproval. By the terms of that Amended Notice, and in response to it, Petitioner's attorney timely submitted further information, and Sgt. Scroggin, untimely, but by August 19, 1988, advised Tallahassee DABT in favor of licensure approval due to the results of his check of local police incident reports. On September 27, 1988, the fifth temporary license was issued to Petitioner with the approval of Tallahassee DABT. On December 1, 1988, Tallahassee DABT issued its final "Notice of Disapproval," citing the prior license revocation and Petitioner's and his father's lack of good moral character as the only reasons for the license denial. The record as a whole clearly shows that the only unfavorable evidence of moral character that DABT had before it with regard to this license application arose out of the prior license revocation 4-5 years before. Petitioner/applicant, Johnnie Lee Simmons, is 40 years old. He has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of any offense against the beverage laws of Florida, the United States, or any other state; has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; and has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of a felony in this state, or the United States. Willie Lee Simmons, Sr., Petitioner/applicant's 58 year old father and an interested party, also has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of any offense against the beverage laws of Florida, the United States, or any other state; has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; and has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of a felony in this state, or the United States. Upon the testimony of Dorothy Carter, accountant- bookkeeper for, and long-time friend of, all the Simmons family members, the testimony of Sgt. Scroggin, and admissible hearsay statements of Palatka Chief of Police Hill and Assistant Chief of Police Rowe (P-12), it is found that as of the date of formal hearing, Petitioner and his father respectively have good reputations for honesty, fair dealing, and personal character in the Palatka, Putnam County community. Both men are reputable and responsible business persons, each employing between 25 and 40 migrant laborers. They pay their taxes. They have established credit. Further, upon the record as a whole, it is found that the Simmons father and son, between them, support three Palatka city-league baseball teams and are also engaged in other activities which benefit the community with an emphasis on youth. Also, Johnnie Lee Simmons, the applicant/Petitioner, has long been active in the local chapter of the NAACP and served two years as its President. In so finding, the undersigned has assessed Mrs. Carter's credibility in several respects. First, it is recognized that as a social friend and business associate of all the Simmons family members, her view of them is favorably weighted by that association. Second, her view of the prior license revocation is also affected in their favor by their business and social association. Mrs. Carter has, in her own mind at least, minimized the importance of the prior license revocation by her belief that all wrongdoing in the "Palatka Blue Diamond" occurred while the Simmons men were out-of-town, for the purpose of transporting laborers to northern farms and while they were not physically within the licensed premises providing active management. This belief of Mrs. Carter is directly contrary to the responsibilities imposed by statute, rule, and case law upon beverage licensees who are required to know and to monitor affairs on their premises, but it is accurate in terms of the factual absence of applicant/Petitioner's absence from the "Palatka Blue Diamond" at times crucial to the prior revocation. However, third, and most importantly, it is found that Mrs. Carter was testifying concerning the status of the Simmons mens' affairs, conduct, and character in 1989, 6-7 years after the prior revocation events, 4-5 years after actual revocation, and at a time when other evidence confirms that Petitioner and his father have centralized all their business and community activities within the Palatka community. The moral character of the principals approximately 5 years after the prior revocation, at the time of the new application and the de novo formal hearing, is material and persuasive. Mrs. Carter, as a long-time local resident, has had opportunity and reason to know the current situation, and her testimony that the Simmons father's and son's character (based on her own experience and opinion) is now "good" is credible and unrefuted. Moreover, her conclusion with regard to their good character and reputation (arising from word of mouth in the community) is reinforced by Sgt. Scroggin's investigation and ultimate favorable recommendation, which in turn was based on the customary predicate for "reputation in the community". Mrs. Carter's evidence of current good character is direct and unrefuted. Sgt. Scroggins' testimony is in the nature of reputation testimony but is bolstered by his personal examination of the police incident reports and corroborates the statements/opinions of Palatka's Chief and Assistant Chief of Police, which, though hearsay, are admissible pursuant to Section 120.58 F.S. Sgt. Scroggins' and the officers' opinions are consistent as to reputation with Mrs. Carter's unrefuted opinion as to character.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages, issue a Final Order confirming that the permanent 2 COP beverage license was issued to Petitioner pursuant to operation of law on December 20, 1987. DONE and ENTERED this 5th day of September 1989, in Tallahassee, Leon County, 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 5th day of September, 1989.
The Issue The issues in this case are whether Respondent has violated Section 466.028(1)(bb), Florida Statutes, by practicing dentistry without an appropriate, active license to practice dentistry and, if so, what penalty should be imposed for such a violation.
Findings Of Fact Based on the exhibits received in evidence and on the testimony of the witness called at the hearing, I make the following findings of fact. At all times relevant hereto, Respondent, James Wilson, D.D.S., held a dental license, number DN0002819, issued by the State of Florida, Department of Professional Regulation, Board of Dentistry. Respondent was awarded a licensed certificate to practice dentistry in the state of Florida on August 10, 1959, by the Florida State Board of Dental Examiners. Respondent was licensed to practice dentistry in the state of Florida for the 1982/83 biennial period which ended on December 31, 1953. The license of Respondent expired on January 1, 1984. Respondent was advised by Department personnel, on April 23, 1984, that his license was delinquent. Respondent was also advised of the procedures required to renew said delinquent license. Respondent made payment to the Board of Dentistry in the amount of $200 on July 23, 1984, for renewal of his expired license, which payment applied toward the 1984/85 biennial period. The amount of $200 reflects the sum of the renewal charge of $150, plus $50 for his late renewal. Respondent, from the period January 1, 1984, to August 8, 1984, was actively practicing dentistry, during which time his license was expired.
Recommendation Based upon all of the foregoing, it is recommended that the Board of Dentistry enter a Final Order in this case to the following effect: Finding Respondent guilty of a violation of Section 466.028(1)(bb), Florida Statutes, as charged in the Administrative Complaint; Reprimanding Respondent for being guilty of such violation; Imposing an administrative fine in the amount of $250 on Respondent; and Allowing the Respondent 30 days from the date of entry of the final order in this case within which to pay the administrative fine. DONE AND ENTERED this 30th day of September, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1986. COPIES FURNISHED: Nancy M. Snurkowski, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James Wilson, D.D.S. 3116 Moncrief Road Jacksonville, Florida 32209 James Wilson, D.D.S. 7145 Dostie Drive East Jacksonville, Florida 32209 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether the pharmacy permit issued to the Respondent, North Florida Drug Corporation, d/b/a Scottie Discount Drugs, should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact North Florida Drug Corporation, d/b/a Scottie Discount Drugs, currently holds permit No. PH 0004096 as a Community Pharmacy. Respondent is located at 1448 Bakers Square, Macclenny, Florida. On December 24, 1987, Gustave Goldstein, who had been the designated prescription department manager for Respondent, resigned as a pharmacist at the Respondent's location. He notified Frankie Rosier, the owner and operator of the Respondent, that he was leaving and he notified the DPR that he would no longer be the designated prescription department manager. Carl Messina is the relief pharmacist for the Respondent. From the time of Goldstein's resignation, Messina has told Ms. Rosier many times that it is illegal to operate without a prescription department manager. DPR inspected the Respondent's pharmacy in December, 1987, and determined that there was no prescription department manager after Goldstein quit. DPR conducted an inspection of the Respondent's premises on February 16, 1988, and discovered that there still was no prescription department manager employed there. Frankie Rosier was made aware of this deficiency. On February 16, 1988, the official records of DPR showed that no new designation of a prescription department manager had been filed by Respondent and Goldstein was still listed as the prescription department manager by Respondent. On May 22, 1988, DPR again inspected the premises and determined that there was still no prescription department manager. It is important that each permittee have a designated prescription department manager to assure that all required records are kept and that the pharmacy complies with all legal requirements. This is especially important regarding control and accountability for controlled substances. Without a prescription department manager, a non-pharmacist owner, like Ms. Rosier, would and does have access to these controlled substances without any accountability. By Final Order entered and filed with the agency clerk on December 17, 1987, this same permittee was fined and placed on probation for operating a community pharmacy with an expired permit and for obtaining a permit by misrepresentation or fraud or through an error of the department or the board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Pharmacy, enter a Final Order finding North Florida Drug Corporation, d/b/a Soottie Discount Drugs, guilty of the violations alleged and revoking the community pharmacy permit No. PH 0004096. DONE and ENTERED this 14th day of October, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1988. COPIES FURNISHED: Michael A. Mone' Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 North Florida Drug Corporation Scottie Discount Drugs 1448 Bakers Square Macclenny, Florida 32063 Bruce Lamb General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether respondent's licence as a medical doctor should be disciplined on charges that he: (1) was convicted in a foreign country of a crime relating to the practice of medicine, (2) obtained his license to practice medicine by fraud or deceitful misrepresentation, (3) had his license acted against by the licensing authority of another state, (4) made misleading, untrue, or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine, (5) engaged in unethical, deceptive, or deleterious conduct harmful to the public, (6) failed to prescribe controlled substances in good faith and in the course of his medical practice, and (7) engaged in immoral or unprofessional conduct, incompetence, negligence, or willful misconduct, all in violation of Section 458.1201, Florida Statutes (1973), and Section 458.331, Florida Statutes (1981).
Findings Of Fact Count I: Conviction of a Crime Relating to the Practice of Medicine In 1960, respondent was a first-year medical student at Fribourg University in Switzerland. On May 11, 1960, he was tried and convicted by the Criminal Court of Sarine in Fribourg, Switzerland, of the crimes of "attempted abortion committed by a third person, attempted abortion on an unsuitable object by a third person, and violation of the law regarding the health regulations." He was sentenced to a ten-month prison term, minus the time of detention served while awaiting trial, with a suspended execution of sentence during five years. Respondent was also fined 500 Swiss francs, deported from Switzerland, and barred from reentry for a period of fifteen years. (Testimony of Gordon, Alonso; P-3.) II. Count II: Obtaining Florida Medical License by Fraud or Misrepresentation On December 17, 1971, respondent filed with the Florida State Board of Medical Examiners a sworn application for examination and licensure as a medical doctor in the State of Florida. On his application, he responded in the negative to questions asking whether he had ever been convicted of a felony or a misdemeanor. The application also contained the following statement, in bold type, above the signature line of the applicant: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I fur- nish any false information in this applica- tion, I hereby agree that such act shall constitute cause for the denial, suspension, or revocation of my license to practice medicine and surgery in the State of Florida. (P-2.) On August 30, 1972, based on his application and passage of the examination, the Board of Medical Examiners issued respondent a license (license No. 24291) to practice medicine and surgery in Florida. (Testimony of Gordon; P-2.) Respondent explains his failure to reveal his Switzerland conviction on his application as a "peccadillo." (Tr. 245.) Since the New Jersey Medical Board records (where he was previously licensed) reflected his Switzerland conviction, he testified that he felt the New Jersey board would have notified the Florida board of the conviction. (Tr. 245-246.)(Testimony of Gordon.) By 1974, within two years after he was licensed in Florida, the Department became aware of his criminal conviction in Switzerland. In 1973 or 1974, soon after respondent opened his medical practice in North Miami Beach, a Department investigator, A. J. Stack, told him that the Department knew of his criminal conviction in Switzerland. (Testimony' of Gordon; R-2.) III. Count III: New Jersey's Action Against Respondent's Medical License On September 29, 1972, the New Jersey Board of Medical Examiners issued an administrative complaint seeking to suspend or revoke respondent's New Jersey medical and surgical license on charges he sexually assaulted two female patients and dispensed amphetamines to two other patients without good medical cause. One month later, the New Jersey board supplemented its complaint by adding two additional charges: (1) that he was convicted as an abortionist in Switzerland in May, 1960, and (2) that he failed to complete Section 12 of the application (i.e., disclose the Switzerland conviction), thereby obtaining his New Jersey medical license by fraud. (P-4, R-2.) On December 11, 1972, the New Jersey Department of Health suspended, for an indefinite period, respondent's New Jersey controlled substance registration. The suspension order states that, after being notified by certified mail, respondent failed to appear before the Department and show cause why his registration should not be suspended. No other reason is given for the suspension action. Respondent now asserts that the Department of Health did not notify him of its action to suspend his controlled substance registration. (Tr. 251-252.)(Testimony of Gordon; P-4.) The charges brought against respondent by the New Jersey Board of Medical Examiners were never adjudicated on their merits. On February 27, 1973, he resigned from the practice of medicine in New Jersey and surrendered his New Jersey medical license to the Board of Medical Examiners. (Testimony of Gordon; P-4, R-2.) When the New Jersey Board of Medical Examiners brought its charges against respondent, he had already obtained his Florida medical license. The Florida board of Medical Examiners learned of the New Jersey charges and respondent's resignation in May, 1973. In February, 1974, the board's counsel advised that "there is really nothing we can do unless Dr. Gordon violates the Florida laws." (R-2.) And, on May 15, 1974, the board's executive director made this notation in respondent's file: If he [respondent] has any trouble here in Florida we can suspend his license on the basis of the N.J. Board's action. (R-2.) IV. Counts IV, V, VI, and VII: Professional Misconduct in Treating Elizabeth Buffum Respondent began to practice medicine in Florida in 1973 at North Miami Beach, Florida. In December of that year--at the request of a third party--he went to the home of Elizabeth Buffum and treated her for alcoholism. Thereafter, he continued to treat her for chronic alcoholism. His treatment was to limit her use of alcohol and prescribe various sedatives, such as Thorazine and Sparine, which are scheduled controlled substances. In June, 1974, he and Ms. Buffum began living together; in September they were married. From December, 1973, until Ms. Buffum left him in November, 1975, respondent continuously acted as her physician and provided treatment for her alcoholism. (P-1.) Ms. Buffum was a woman of great wealth. During her marriage to respondent, she relied on respondent not only as her physician but also as her confidant and financial advisor. Extensive 9/ civil litigation which followed their broken marriage resulted in the Circuit Court of Dade County rendering a judgment in Bellman v. Gordon, Case No. 75-18967 (Fla. 11th Cir. Ct. 1979) [affirmed, Gordon v. Gordon, 386 So.2d 1326 (Fla. 3rd DCA 1980), opinion filed July 29, 1980], finding that: Edward Gordon breached this fiduciary duty [to Ms. Buffum and converted her assets to his own use and the use of his family so that nearly all of her assets were divested from her. The court ordered the return of her assets. (P-1, P-5.) In treating Ms. Buffum's alcoholism, respondent would allow her to drink limited amounts of alcohol: the thrust of his treatment program was to gradually decrease the dosages of alcohol. (Frequently, he would add water to her liquor bottles in an attempt to lessen the effects of alcohol.) He sometimes gave her an alcoholic drink to calm her, and ordinarily allowed her an alcoholic drink before evening meals. He also gave her vitamin B12 and Valium. When he thought she was having delirium tremors, he administered Thorazine. He acknowledges that, when she was in such a condition, it would have been proper to place her in the hospital, but he felt--at the time--that he could properly care for her at home. (Testimony of Gordon; P-1.) Dr. Delores Morgan, a qualified expert in family practice and alcoholism treatment, testified that respondent's medical treatment of Ms. Buffum deviated from the generally accepted and prevailing medical practice in the Miami area between 1973 and 1975. She testified Benzodiazepins (including Librium and Valium), rather than Phenathiazines (including Thorazine and Sparine) should be administered to patients suffering from alcohol withdrawal symptoms, such as delirium tremors; that such patients are medical emergencies and must be hospitalized, where their progress can be monitored and a thorough physical examination can be given, including checking eletrolyte patterns, potassium deficiencies, and chemical profiles; that, rather than decreasing doses of alcohol, treatment of alcoholism requires complete abstinence; and that if an alcoholic patient refused hospitalization, he or she should have been involuntarily hospitalized pursuant to state law. These opinions of Dr. Morgan are persuasive and are expressly adopted as findings. Respondent's contrary opinions are rejected as self-serving and uncorroborated. (Testimony of Morgan.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license to practice medicine and surgery in Florida be suspended for one (1) year. DONE AND RECOMMENDED this 22nd of June, 1982 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1982.
The Issue Whether Petitioner's request that she be reissued a medical technologist license without taking an examination should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Norma Howell, seeks to have her medical technologist license reactivated after it was rendered "null" by operation of law on June 30, 1996. A Notice of Intent to Deny Application for Licensure was entered by respondent, Board of Clinical Laboratory Personnel (Board), on March 21, 1997. Because Petitioner requested that the Board grant a variance or waiver of the rule requiring her to take an examination in order to be relicensed, the Board reconsidered the matter at its April 3, 1997, meeting. On April 11, 1997, the Board entered its Notice of Intent to Deny Variance or Waiver on the ground Petitioner had not demonstrated that she would suffer a substantial hardship or that the application of the rule would affect her in a manner significantly different from other applicants for licensure. On May 9, 1997, Petitioner filed a request for a hearing in which she contended that the statute relied upon by the Board for denying her request "did not apply to her case" and that the Board "did not comply with the 90-day notification requirement of the statute which it relied upon to nullify her license." Petitioner has been practicing in the field of medical technology for some thirty years and she has practiced in Florida for at least nine years. Until this controversy arose, she held medical technologist supervisor license number JC-0026722. Prior to July 1, 1994, medical technogist licenses were subject to the regulatory authority of the former Department of Health and Rehabilitative Services (HRS). At that time, licenses were issued for two-year periods, and if not renewed, they "automatically" reverted to an inactive status. Section 483.819, Florida Statutes (1993), provided that if a license was inactive for less than one year, it could be reactivated by payment of a late renewal penalty. If the license was inactive for more than one year but less than five, it could be reactivated "upon application" to HRS and proof that the licensee had completed 15 hours of continuing education requirements for each year the license was inactive, but not more than a total of 65 hours. If a license was inactive for more than five years, it was automatically suspended, but one year prior to the date the suspension took effect, HRS was required to give written notice to the licensee. Once suspended, a license could not be reactivated unless a licensee met all "requirements for reinstatement." Among other things, HRS possessed the discretionary authority to require reexamination before reinstatement. Effective July 1, 1994, Section 483.819, Florida Statutes (1993), was repealed, and regulatory authority over medical technologist licensees was transferred from HRS to the Department of Business and Professional Regulation (DBPR). In addition, a new Section 455.271, Florida Statutes (Supp. 1994), was created to provide new requirements relative to the inactive and delinquent status of all professional licenses, including those for medical technologists. Section (5) provided that the "[f]ailure of a licensee to renew before the license expires shall cause the license to become delinquent in the license cycle following expiration." Section (6) provided that: a delinquent status licensee must affirmatively apply with a complete application, as defined by rule of the board, or the department when there is no board, for active or inactive status during the licensure cycle in which a licensee becomes delinquent. Failure by a delinquent status licensee to become active or inactive before the expiration of the current licensure cycle shall render the license null without any further action by the board or the department. (Emphasis added) The same subsection provided that once a license was rendered "null," any subsequent licensure "shall be as a result of applying for and meeting all requirements imposed on an applicant for new licensure." In other words, a licensee would have to retake the examination in order to be relicensed. As a safeguard to automatic cancellation of a delinquent license, however, new Section 455.273 (Supp. 1994), provided that "[a]t least 90 days before the end of a licensure cycle, the Department of Business and Professional Regulation shall . . . [f]orward a notice of pending cancellation of licensure to a delinquent status licensee at the licensee's last known address of record with the department." Against this statutory backdrop, Petitioner's license was due for renewal on June 30, 1994, when her latest biennial cycle ended. Because the license was not renewed, it became delinquent under the terms of Section 455.271(5). Therefore, it was incumbent on Petitioner to seek active or inactive status before the end of the next licensure cycle, or by June 30, 1996, or have her license rendered "null" by operation of law. It is noted that Petitioner was one of approximately 2,000 licensees whose license was not renewed at the end of the June 30, 1994, licensure cycle and thus became delinquent. In January 1992 Petitioner relocated from Florida to Mississippi in order to care for her elderly mother. She continued working as a medical technologist in Mississippi. When her license came up for renewal on June 30, 1994, Petitioner had no need for an active Florida license and therefore did not renew it. She assumed, however, that she could keep it in an inactive, delinquent status for up to five years under the terms of Section 483.819, Florida Statutes (1993). Petitioner acknowledges that she became aware of the new law in general terms, but not in specifics, in June 1995. This occurred when the Board her sent a Notice to Delinquent and Inactive Licensees advising that changes in the law had been made and that "the changes affected the manner in which licensees regulated under Chapter 483, F.S., clinical laboratory personnel, may reactivate a license or request to be placed on inactive status." The notice further provided that if Petitioner "would like to receive an application to reactivate (her) license or to be placed on inactive status," she should fill out a form at the bottom of the Notice and return it to the Board. There was no mention in the Notice that Petitioner's license would become "null" by operation of law if she did not take affirmative action by June 30, 1996. In response to the Notice, on June 16, 1995, Petitioner filed the Notice and form with the Board requesting that she be sent an application to place her license in an inactive status. The Board says that the Notice described in finding of fact 8 was a part of a packet of information attached to a form letter sent to all delinquent status licensees on May 27, 1995. According to a Board representative, the form letter contained an admonition to licensees that unless they reactivated their licenses by June 30, 1996, their licenses would be null and void. However, the actual contents of the letter are not of record. This is because the letter was not identified by Respondent's counsel as an exhibit in the prehearing stipulation; it was not a part of the Board's official file pertaining to Petitioner; opposing counsel had no notice that such a letter existed or would be used as evidence at hearing; and thus it was not received in evidence. Even though the form letter was sent some thirteen months before the licensure cycle ended, the Board takes the position that it constituted the statutory notice of pending cancellation required by Section 455.273(1)(b) to be sent to each delinquent status licensee "at least 90 days before the end of the licensure cycle." Board records do not establish that Petitioner received the form letter, and she denies having received any statutory notice of pending cancellation. Approximately two thousand (out of eighteen thousand) licenses under the Board's jurisdiction became delinquent because they were not renewed by June 30, 1994. While the number that were automatically cancelled on June 30, 1996, by operation of law is not of record, only four licensees, including Petitioner, have asked that their licenses be reinstated because of cancellation. Given this unusual circumstance, it is reasonable to accept Petitioner's testimony that she did not receive a notice of cancellation as required by law. This omission by the Board, while unintentional, constituted a material error in procedure which occasioned serious prejudice to Petitioner. In addition to filing the form on June 16, 1995, Petitioner also sent a letter to the Board on June 23, 1995. The letter stated, in pertinent part, as follows: Please place my Medical Technologist Supervisor's Lic # JC 0026722 on inactive status until further notice. I am presently residing in Mississippi. Enclosed is the required fee of $25.00 plus copies of Continuing Education certificates; 39 hrs. The letter provided her most current address in Mississippi, and it contained a postscript that "[i]f an additional form is necessary please advise." By letter dated June 28, 1995, the Board acknowledged receiving Petitioner's letter and check. In the letter, a Board representative advised petitioner that her "request for inactivation of licensure . . . cannot be processed" because she had sent an incorrect fee and a formal application had to be completed. The letter indicated that an application to reactivate her license was also enclosed. Apparently in response to the June 16, 1995, request for an application form, on July 14, 1995, the Board sent Petitioner another reactivation application. Because Petitioner did not want to reactivate her license, but she only wanted to place her license in an inactive status, she did not complete the application at that time. Again, however, she assumed that her license could remain inactive for up to five years after June 30, 1994, without placing it in jeopardy. Petitioner received no further advice, oral or written, from the Board until after she filed a Reactivation Application with the Board on December 19, 1996, together with a $470.00 fee and proof of 39 hours of continuing education. She did so at that time since she had been offered a job in Florida and intended to relocate to this state. On December 20, 1996, Petitioner and the Board's administrator spoke by telephone regarding Petitioner's application. Among other things, Petitioner was told that her license was null and void by operation of law since she failed to reactivate her license by June 30, 1996. On December 27, 1996, the administrator sent Petitioner a letter in which she reconfirmed this fact, but advised that the matter would be taken up by the Board. Petitioner asked that an exception be made since she lived out-of-state and had never received notice of cancellation. The Board later denied her request. Rule 59O-7.001(2), Florida Administrative Code, prescribes the examination requirements for licensure as a supervisor. The purpose of the underlying statute is to ensure minimum competency of all persons engaging in the profession. Petitioner has satisfied this purpose by having successfully practiced in the field for some thirty years and being certified in five specialties. In addition, during the period of time in which her license was delinquent, she successfully completed all necessary continuing education courses. If the request for a variance or waiver is denied, Petitioner will suffer economic hardship since she will be unable to practice her profession in Florida until she passes an examination. More specifically, she will be unable to accept a pending job offer as a medical technologist supervisor. Unusual circumstances are present here. Of the two thousand licensees in a delinquent status after June 30, 1994, only Petitioner has contended that she failed to receive the statutory notice of cancellation. To her detriment, the license was subsequently cancelled by operation of law. The literal application of the rule requiring an examination would unintentionally penalize Petitioner's good faith efforts to reactivate her license. Because it is presumed that all other licensees in a delinquent status received notice of pending cancellation, Petitioner will be treated in a manner significantly different from the way the rule affects other similarly situated persons seeking licensure. That is to say, any other persons requesting relief from the rule because of automatic cancellation on June 30, 1996, would have been on notice that unless they renewed their license by that date, they would be subject to the terms of the rule. Petitioner had no such notice. Therefore, fairness requires an exception. Petitioner has paid all filing fees and completed all continuing education courses necessary for reactivation. If her request is ultimately denied, she is entitled to a refund of her fees.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Clinical Laboratory Personnel enter a final order granting Petitioner's request for a waiver or variance from Rule 59O-7.001(2), Florida Administrative Code, and reinstating her license number JC-0026722. DONE AND ENTERED this 31st day of July, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1997. COPIES FURNISHED: Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel 1940 North Monroe Street Tallahassee, Florida 32399-2200 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michelle L. Proctor, Esquire 7637 State Road 52 Bayonet Point, Florida 34667 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050
The Issue The issue in this case is whether Respondent is guilty of operating as a broker or salesperson without holding a valid and current license as a broker or salesperson, in violation of Sections 475.25(1)(a) and 475.25(1)(e), Florida Statutes.
Findings Of Fact Respondent was licensed as a real estate salesperson in the State of Florida and held license number 0443677. She placed her license with Active One Realty, Inc. in 1990 for two months in the spring and, after a brief interval during which her license was not with Active One, one month in the early summer. Each time, Respondent terminated her license with Active One. On September 4, 1990, Respondent again placed her license with Active One. Respondent worked as a 100% commission agent. She retained 100% of the commission earned by her broker on sales or purchases on which she participated. In return, Respondent paid Active One $150 monthly and $100 per closed transaction. In late October, 1990, Respondent informed her broker that she had purchased a daycare center, which was taking a lot of her time. Accordingly, Respondent wanted again to terminate her license with Active One. The broker and Respondent agreed that her last day of work would be November 5, 1990. The broker offered to return a $450 deposit to Respondent, but she asked that the broker retain it until she returned to Active One, as she intended to do. Respondent terminated her license with Active One effective November 6, 1990. Since that date, Respondent's license has continuously been on current inactive status, meaning that she may not engage in real estate activities for which a license is required. By letter to Respondent dated November 8, 1990, Active One confirmed the effective date of the termination. The letter contains a copy of a completed form informing Petitioner of the termination of the license. On November 26, 1990, Respondent prepared a standard contract for sale and purchase in connection with a proposed purchase of real property by her husband. Respondent completed the portions of the contract showing the buyer's name, purchase price, and mortgage information. Respondent delivered the contract, together with a business card showing Respondent as a salesperson with Active One, to another salesperson who was employed by the broker representing the sellers. Respondent also signed the contract as a cooperating broker on behalf of Active One. Prior to the sellers' execution of the contract, which had already been signed by Respondent's husband, Respondent informed the sellers' agent that certain provisions of the contract needed to be changed. The sellers' salesperson prepared another contract, which Respondent's husband signed December 2, 1990. Over Respondent's objection, the sellers' salesperson insisted that the contract contain an addendum stating that Respondent would be participating in the commission and her spouse was the buyer. Respondent's husband, as buyer, also signed the addendum on December 2. Respondent failed to inform Active One of the contract, which the sellers signed on December 8, 1990. The closing was set for no later than January 30, 1991. Active One learned of the contract by chance. An employee of the title company writing the title insurance noticed the name of Active One on the contract. He mentioned the fact to his wife, who is a broker with Active One. When the broker called Respondent and asked her why she was writing a contract when she was no longer licensed, Respondent said only that she had not realized that she was not licensed.
Recommendation Based on the foregoing, it is hereby recommended that the Florida Real Estate Commission enter a final order determining that Respondent violated Sections 475.42(1)(a) and, thus, 475.25(1)(e), Florida Statutes, issuing a reprimand, and imposing an administrative fine of $1000. RECOMMENDED this 17th day of June, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Poornawatie Tiwari 9916 N.W. 9th Ct. Plantation, FL 33322
