The Issue Whether the Respondent committed the violation alleged and if so what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case the Respondent was employed by the Palm Beach County School District and was assigned as principal at John F. Kennedy Middle School (JFK). On or about March 9, 1998, a guidance counselor at JFK spoke with the Respondent regarding a complaint from a female student that she had been inappropriately touched by a male teacher at the school. Given the casual nature of the complaint, the Respondent believed the matter to be a "rumor" and made a note to himself to "check on" the allegation. The Respondent did not follow up on the allegation and did not "check on" the rumor. The Respondent also did not verify whether or not the guidance counselor investigated the allegation. Subsequently the Respondent became aware of other allegations involving the same teacher. The complaints alleged inappropriate acts with students. At least one of the incidents was witnessed by a student who supported the complainant's allegation. All of the incidents involving the teacher occurred before a criminal complaint was filed by a parent. It is undisputed that the Respondent knew of one or more of the alleged complaints. At no time prior to the teacher's arrest did the Respondent notify school authorities or the Department of Health and Rehabilitative Services (HRS) of the allegations previously made against the teacher. At all times material to the allegations of this case, the Palm Beach County School District had a policy in effect that required the Respondent to notify HRS and school district authorities regarding the types of complaints involved in this case. Such policy is set forth in its entirety within the Petitioner's Exhibit 1. Respondent did not view the incidents complained of as sufficiently serious to merit notification of authorities, as he maintained he did not have a reasonable cause to suspect that a child had been abused. Notwithstanding this position, the Respondent did nothing to confirm or disprove the allegations. At least one female student complainant continued to be enrolled in the alleged perpetrator's class before the arrest of the suspect. The failure of the Respondent to report the incidents seriously reduced his effectiveness as an employee of the Palm Beach School District. As a result, the Respondent was relieved of his position as principal at JFK and reassigned to another position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order reprimanding the Respondent. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 31st day of July, 2000. COPIES FURNISHED: Charles T. Whitelock, Esquire Whitelock & Associates, P.A. 300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316 Sammy Berry, Jr., Esquire 516 South Dixie Highway, Suite 1 Lake Worth, Florida 33461 Kathleen M. Richards, Executive Director Department of Education Education Practices Commission 325 West Gaines Street Florida Education Center, Room 224-E Tallahassee, Florida 32399 Jerry W. Whitmore, Chief Bureau of Educator Standards Department of Education 325 West Gaines Street Suite 224-E Tallahassee, Florida 32399-0400 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Findings Of Fact At all times relevant hereto, respondent, Thomas F. Gorman, Jr., was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission, having been issued Certificate No. 02-33145 on March 22, 1983. When the events herein occurred, Gorman was employed as a police officer for the City of Vero Beach. On an undisclosed date in 1985, but prior to May 28, 1985, the husband of Kristie Coleman made a complaint with the Vero Beach Police Department (VBPD) that his eighteen year old wife had been sexually harassed by a black police officer. After being told the City had no black police officers, the husband then apparently identified respondent, who is white, as being the culprit. An investigation of the husband's complaint was conducted by the VBPD, but it was unable to "verify" the charges. The VBPD then decided to initiate a separate investigation of respondent. To do so, it solicited the aid and assistance of Kristie Coleman, who, at the insistence of the chief of police, agreed to wear a concealed microphone on her person. The purpose of the microphone was allegedly to investigate and intercept evidence of a criminal act on the part of Gorman. Kristie was instructed to stand outside her apartment whenever she saw respondent drive by in his police car so as to make herself visible to respondent. The police chief was explicit in his instructions that their encounter take place while Gorman was on duty. At the same time, two surveillance teams were placed on or near Kristie's premises, one in her bedroom and the other outside her apartment, and they activated recording equipment designed to monitor and record conversations between the two. She was also instructed to tell Gorman that she had to use the bathroom if he entered her apartment and placed a hand on her leg. This was a predetermined signal to the surveillance team to enter the room and make their presence known to Gorman. There was no court order approving the use of the concealed microphone. At approximately 6:38 p.m. on May 28, 1985, respondent drove by Kristie's apartment. It is stipulated that respondent was in uniform and on duty at that time. Upon seeing Kristie emerge from her apartment, Gorman stopped and the two began a conversation. During the course of the evening Gorman left the premises and returned six separate times after the first visit at 6:38 p.m. These return visits occurred at 7:08 p.m., 7:34 p.m., 8:22 p.m., 8:59 p.m., 9:04 p.m. and 9:20 p.m. However, it was not until the seventh visit that Gorman actually entered Kristie's apartment. On each visit, their conversations were recorded by the hidden microphone worn by Kristie. The transcript of the conversation was not transcribed by the parties, and portion of the recorded conversation are inaudible due to external noises such as traffic and the engine noise of respondent's vehicle. As a result of the VBPD surveillance activities, respondent was offered a choice of being terminated from the police force or voluntarily resigning. Gorman chose the latter. The administrative complaint herein was then filed by petitioner thereby prompting the formal hearing in this matter. It charges that Gorman "did agree with Kristina Coleman to engage in sexual intercourse with her in Kristina's apartment while the Respondent was on duty as a Vero Beach police officer." The tape reveals that Gorman and Coleman had known each other, at least by sight, prior to May 28, 1985. The two had also recently met when Gorman, while on duty, stopped Coleman one evening for a suspected moving violation. However, she was not ticketed by Gorman, and at that time Coleman told Gorman she wanted to see him again. Throughout the tape recorded meetings on May 28, Coleman repeatedly attempted to get Gorman to acknowledge that he had not given her a ticket in return for sexual favors. Gorman denied this was true each time the subject was raised, and there is no evidence to indicate that was the case. As noted earlier, the tape recording is not of the highest quality, and several parts of the conversation are either inaudible or partially obscured by other noises. Nonetheless, the following relevant facts are found from the more than one hour of recorded conversations, most of which were nothing more than casual conversation between the two. After several return visits to her apartment that evening, Gorman made several Flattering comments to Kristie, such as how "beautiful" she was, that she had a nice personality, and how Gorman was attracted to her. Gorman asked if he could see her after he was off-duty, but Kristie declined. As the evening went on, Kristie told Gorman that her sister would arrive at her apartment at 11:00 p.m. to spend the night, and that the few hours before 11.00 p.m. would be the "only time" she had to meet with him. Although Gorman was reluctant to go to her apartment while on duty, Kristie told him that once she got "started," she wanted Gorman to finish the job. She also asked him if he was "too chicken-shit to come into (her) house." On his last visit to her apartment that evening, Gorman accepted her offer to come into the apartment. After taking off his gun and holster at Kristie's request, and declining an offer of a beer from Kristie, Gorman then said what appears to the undersigned to be "Let's do it." Kristie then gave the predetermined signal to the surveillance team to enter the room. No sexual intercourse occurred and there is no evidence that respondent was charged with a violating any state or municipal law by the foregoing conduct. There was no specific reference to sexual intercourse in the conversations, although it can be reasonably inferred that Kristie was suggesting this to Gorman, and that he intended to accept her offer. There was no evidence that Gorman's conduct constituted what the agency perceived to be a lack of good moral character within the meaning of its rules or governing statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint filed against Thomas F. Gorman, Jr. be DISMISSED, with prejudice. DONE and ORDERED this 3rd day of April, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of April, 1986. COPIES FURNISHED: Joseph S. White, Esquire P. O. Box 1489 Tallahassee, Florida 32302 Wayne R. McDonough, Esquire P. O. Box 1690 Fort Pierce, Florida 32960 Mr. Robert R. Dempsey, Executive Director Florida Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION Petitioner, vs. DOAH Case No.: 85-3590 CJSTC Case No.: L-33145 THOMAS F. GORMAN, JR., Certificate Number: 02-33145 Respondent. /
The Issue Is Respondent guilty as charged in the Administrative Complaint of violations of Sections 943.1395(6) and/or (7) and Section 943.13(7), Florida Statutes, and/or Rule 11B- 27.0011(4)(a) Florida Administrative Code? If found to have violated any of the named statutory or rule provisions, what is the appropriate penalty?
Findings Of Fact The parties stipulated as follows: Respondent was certified by the Criminal Justice Standards and Training Commission on September 12, 1988 as a Law Enforcement Officer, and was issued certificate number 106711. At all times relevant to this matter, Respondent was certified in the above area and was employed by the Daytona Beach Public Safety Department. On January 25, 1996, Officer Christopher N. Jones issued Florida Uniform Traffic Citation No. 552339-P to Donald W. Culmer. On January 28, 1996, Respondent approached Records Clerk Laverne Irving and asked to see Citation No. 552339-P. Ms. Irving retrieved Citation No. 552339-P from a stack of citations she had just sorted. She crisscrossed the stack, marking the location for Citation No. 552339-P to be returned. Ms. Irving then handed Citation No. 552339-P to Respondent. Respondent left with Citation No. 552339-P and returned a short time later. Respondent retained personal possession of Citation No. 552339-P. Citation No. 552339-P, retained by Respondent, was a record document involved in the investigation and prosecution of Donald W. Culmer for a traffic violation. Before Ms. Irving gave Citation No. 552339-P to Respondent, she had already entered the citation number, the driver's name and address, and the charges against the driver into the computer. This computer entry makes a transmittal form for the Clerk of Court. The transmittal form, however, only lists the citation number and date. (TR 25-26, 31) Officers often make corrections on their own citations in Ms. Irving's cubicle. (TR 23) Citation No. 552339-P was not issued by Respondent, but sometimes officers ask to look at other officers' citations. It is not normal to request to remove another officer's citation, but Respondent's request was made openly. (TR 23-24) Respondent gave Ms. Irving Mr. Culmer's name, and she looked up the citation on the computer system, in order to locate the original citation for Respondent. (TR 24) Therefore, Respondent knew the contents of the original citation were already entered in the computer. Citation No. 552339-P alleged that Mr. Culmer had violated Section 316.075(3)(a), Florida Statutes, "violating a traffic control device," by running a red light, "an infraction which does not require appearance in court." (P-A) Ms. Irving asked Respondent if he wanted her to delete Citation No. 552339-P from the computer. He told her not to delete it. (TR 26-28) If she had deleted the citation information from the computer, Ms. Irving would have copied the citation itself, so that she could re-enter it in the computer when the original was returned, but under those circumstances, her current transmittal list to the Court Clerk would never have reflected Citation No. 552339-P. (TR 27) Ms. Irving let Respondent take the original citation because he told her he wanted to look at it "for corrections" and make a copy of it. (TR 25) When Respondent returned in about 30 minutes, Ms. Irving believes she watched him put a citation back in the stack. However, she concedes they both could have handled the stack. (TR 19, 28) Another thirty minutes later, Ms. Irving found Citation No. 550611-P in place of Citation No. 552339-P. The wrong citation was not Officer Jones' citation or Respondent's citation but the citation of a third officer (TR 37-38) The wrong citation was easy to spot because it was not in numerical order and did not have a check mark on it. Ms. Irving customarily put a check mark on each citation and stacked it in numerical order as she entered it in the computer. (TR 18-19) Ms. Irving also determined that the wrong citation was not even from the stack with which she had been working. This record does not explain how Respondent or anyone else would have had the third officer's citation to substitute for Mr. Culmer's citation. However, since no one else was in her cubicle at that time, Ms. Irving further concluded that Respondent had put the third officer's citation in the place of Officer Jones' Citation No. 552339-P, which had related to Mr. Culmer. (TR 18-20, 28) As standard operating procedure, once Ms. Irving processes traffic citations, they go to the Clerk of the Court for prosecution. If a citation is removed from the stack of originals, prosecution does not occur. However, when Ms. Irving's computer list reaches the Clerk, if a citation number which is on the transmittal slip is not also physically present, the Clerk would know that an original citation was missing. The system allows the Clerk or anyone to know the missing citation number and the date it was entered, but not the nature of the traffic offense charged. (TR 21, 26, 31) When paperwork is lost, Ms. Irving's standard operating procedure is to try to track it down. (TR 30-31) The substitution of a different citation number clearly would incite inquiries by the Clerk and Ms. Irving. (TR 26, 30-31) Ms. Irving had been in her position for fourteen years. (TR 22-23) Respondent had previously worked in the vicinity of her records cubicle. (TR 30) Respondent never asked Ms. Irving to delete Citation No. 552339-P from the computer so that it would not be prosecuted or tracked/located. (TR 26-28, 31) The Daytona Beach Public Safety Department has an official "voidance procedure" in place. This voidance procedure requires the citing officer's participation so as to drop the traffic charges on a citation. The usual procedure is for the citing officer to approach his supervisor with the original citation or request Ms. Irving to do so. (TR 29-30, 42-43) Respondent admitted to Daytona Beach Public Safety Department Internal Affairs Investigator Michael Citro on March 21, 1996, that Mr. Culmer's employer had asked Respondent to speak to Officer Jones, the officer who had issued Citation No. 552339-P, about dropping the charges against Mr. Culmer. Respondent admitted to having Mr. Culmer's copy of the citation and to taking the original citation from Ms. Irving's desk to show to Officer Jones when he could discuss the matter with him. Respondent denied to Investigator Citro that he had substituted a different citation. (See, Findings of Fact 8-15) However, he admitted that he had shuffled Ms. Irving's stack of original citations on January 28, 1996. Respondent admitted he never spoke to Officer Jones, although he had next worked with Jones on January 31, 1996. Respondent explained that he had put the original citation in his briefcase and forgotten about it. (TR 35-38, 45) Mr. Culmer is a college student. (TR 44) There is no evidence that Respondent ever received any monetary or other benefit from his actions with regard to Mr. Culmer's traffic citation. (TR 45) Respondent returned Citation No. 552339-P to Internal Affairs officers when they asked him for it in March 1996. At that time, he returned all three original parts, but not Mr. Culmer's copy. (TR 43-44)
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a Final Order that dismisses the Administrative Complaint against Respondent. RECOMMENDED this 24th day of July, 1997, at Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 24th day of July, 1997. COPIES FURNISHED: Craig S. Boda, Esquire 457 South Ridgewood Daytona Beach, Florida 32114 Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent, a dentist, committed the offenses alleged in the second amended administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (AHCA), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 466, Florida Statutes. References to Petitioner in this Recommended Order include the Department of Business and Professional Regulation, which regulated the practice of dentistry prior to the creation of AHCA. Respondent is, and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0005929. Respondent's main area of practice is general dentistry. Respondent's last known address is his residence at 1205 Lincoln Road, Miami Beach, Florida 33139. At all times pertinent to this proceeding, Respondent lived at that address with his wife, Lisa Iver. Cocaine is a highly addictive central nervous system stimulant. Benzodiazepines, such as Valium and oxazepam, are central nervous system depressants that have the opposite effect of cocaine on the central nervous system. The usage of these two types of drugs by a cocaine user with medical knowledge may act to balance the visible and medically detectable effects of cocaine on the central nervous system. Since at least 1988, Respondent has been a cocaine addict. Various toxicology tests have reflected that he has taken a form of benzodiazepine following cocaine use. There are several factors that have worked to make Respondent's recovery more difficult. He has experienced severe marital problems, his mother was an alcoholic, and wife is also chemically dependent. The addiction recovery of one spouse directly affects the addiction recovery of the other. If one spouse falls off the wagon, the other spouse is very likely to fall out of recovery. The Physician's Recovery Network (PRN) is an independent program for monitoring certain impaired professionals, including dentists. PRN requires individuals to be evaluated and enter drug treatment, if appropriate, pursuant to a written agreement with the impaired practitioner. The PRN conducts random drug screens and provides for the exchange of information between the treatment programs, PRN, and the Petitioner for the protection of the public. The advocacy of PRN is designed to protect practitioners who have been offered the opportunity to receive care instead of discipline. The PRN program is confidential and not subject to public scrutiny. THE FIRST PRN CONTRACT - 1988 On or about March 12, 1988, Respondent was arrested as a result of a shooting incident involving his wife. Respondent was transported to South Miami Hospital due to his alleged cocaine abuse. Respondent was admitted to South Miami Hospital for substance abuse evaluation and treatment. During his evaluation and treatment at South Miami-Hospital, Respondent claimed a prior sedative overdose which required hospitalization at Mount Sinai Medical Center, allegedly due to his wife spiking his drink. During his evaluation and treatment, Respondent admitted to prior sporadic use of intra-nasal cocaine. Respondent also admitted to previously free basingcocaine, experiencing paranoia, and having other reactions from cocaine. Respondent refused a nasal examination. Detoxification was required and Respondent was diagnosed as possibly being addicted to cocaine. Respondent left South Miami Hospital against medical advice on March 15, 1988, two days after being admitted. Respondent was readmitted to South Miami Hospital on April 11, 1988. As a result of Dr. Iver's arrest in March 1988, and the recommendations of the doctors who evaluated him, the PRN was contacted. Respondent signed a Chemical DependencyContract with the PRN on or about May 23, 1988. On or about June 26, 1990, Respondent signed a Chemical Dependency Contract extending his monitoring for an additional three (3) years. On or about June 26, 1993, Respondent completed his PRN contract. AFTER THE FIRST PRN CONTRACT - SEPTEMBER 1993 On September 21, 1993, the PRN received multiple telephone calls from Ms. Iver stating Respondent was using "free base" cocaine. She later retracted this story and stated that she had spiked his food. On that date, Mrs. Iver filed a domestic violence complaint (#93-33887) against Respondent with the Miami Beach Police Department. An assault rifle, and other gun-related items were taken into custody by the police. The offense report states that the attack by Respondent on his wife was a result of an argument regarding his "narcotic use." The PRN ordered Respondent to submit to a professional evaluation. On September 24, 1993, Respondent was admitted to Mount Sinai Hospital for an inpatient evaluation. Dr. John Eustace was the evaluating physician. Dr. Eustace is board certified by the American Society of Addiction Medicine and is the medical director of the addiction treatment program at Mount Sinai. During that evaluation, Respondent tested positive for oxazepam and cocaine. As a result of the inpatient evaluation, Dr. Eustace formed the opinion that Respondent was in relapse and recommended that Respondent sign a chemical dependency contract with PRN and that he refrain from practicing dentistry until he had entered a recovery life-style. Dr. Eustace used the term "relapse" without regard to whether the ingestion was voluntary or involuntary. Dr. Eustace was of the opinion that Respondent did not have an adequate recovery program in September 1993 because he was no longer involved in the PRN monitoring program, he was not attending or actively involved in the twelve step program for recovering addicts. During the evaluation, Respondent admitted responsibility for having an inadequate recovery program. Dr. Eustace's diagnosis on Respondent's discharge were as follows: Chemical dependency, inactive by history. Chemical dependency relapse behaviors, active. Obsessive compulsive traits. Adult child of alcoholic mother. Co-dependent behavior. Dr. Eustace's specific recommendations for Respondent pertinent to this proceeding, made at a time Respondent and his wife were contemplating divorce and before she entered a treatment program, were as follows: Reinstitute a program of total abstinence. Enter into a second PRN contract with the length of time to be determined by the PRN staff. Recruit a home group of Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). Recruit a sponsor for the purpose of working the twelve steps. Attend ninety meetings of AA or NA within the next ninety days. Detach from his office practice until his drug screen had cleared and he had entered a life- style of recovery. Detach emotionally and physically form his wife. Turn all further matters concerning his divorce over to his attorney. Obtain a personal physician to avoid self- medication. Begin a professional relationship with a therapist knowledgeable about the adult child of an alcoholic syndrome, knowledgeable about the disease of addiction, and knowledgeable about co-dependency treatment. PRN, based largely on Dr. Eustace's evaluation, recommended that Respondent enter into a new contract for monitoring and to continue treatment. Respondent refused to sign a new contract. On or about December 16, 1993, PRN forwarded a letter of complaint to Petitioner. Dr. Roger Goetz, Director of PRN, noted that Respondent had a urinalysis which contained metabolites of cocaine and benzodiazepines and that Respondent refused to voluntarily enter PRN. No further action was taken against the Respondent at that time. JULY AND AUGUST 1994 On or about July 7, 1994, PRN informed Petitioner it had information from a confidential informant that Respondent was free basing cocaine. The allegations stated that Respondent appeared to be "coked" up and failed to show up at his dental office. Dr. Goetz, Director of PRN, believed that intervention might be possible through a Miami affiliate. On July 7, 1994, Dr. Jules Trop, a doctor with the Miami affiliate of PRN, evaluated Respondent. Respondent denied any drug use but refused to submit a urine sample for drug testing. Dr. Trop observed Respondent's appearance to be disheveled and his speech pattern strained. Dr. Trop expressed the opinion that Respondent was in need of professional help. On or about July 26, 1994, the Agency was informed by PRN that Respondent refused intervention by PRN. As a result of the foregoing, an Order Compelling Physical and Mental Examination was ordered by the Agency on August 15, 1994. The evaluation pursuant to the Order Compelling Physical and Mental Examination was conducted a week after the Order was served upon Respondent. On August 23, 1994, Dr. Hans Ueli Steiner, a psychiatrist, evaluated Respondent pursuant to the Order Compelling Physical and Mental Examination. Dr. Steiner formed the opinion that Respondent presented characteristics of an addict in denial and was a potential risk to his patients. Dr. Steiner believed that objective monitoring was the only reliable way to ascertain the continued sobriety of Respondent. Respondent admitted to Dr. Steiner that he had used drugs in the past. He further admitted that he was an addict. JULY AND AUGUST 1995 On July 28, 1995, police officers from the City of Miami Beach Police Department were called to the Iver residence in response to a 911 call. Upon arrival the officers observed drug paraphernalia commonly associated with free basing cocaine in the bedroom shared by Dr. and Mrs. Iver. Respondent had been free basing cocaine prior to the arrival of the police. The officers confiscated the paraphernalia, but took no further action against Respondent that evening. On Wednesday, August 2, 1995, at approximately 8:38 p.m., police officers with the City of Miami Beach Police Department were dispatched to the Iver residence because Mrs. Lisa Iver called 911 stating that her husband Robert Iver had overdosed on cocaine. The 911 tape reveals a voice in the background making a loud verbal noise. According to the incident report prepared by the Miami Beach Police Department, Ms. Iver told the police officers who came to the Iver residence in response to the 911 call that the Respondent had gone crazy and was out of control due to free-basing cocaine. Accompanied by professionals from the City of Miami Beach Fire and Rescue Unit, the police officers entered the Iver residence and found Respondent naked and covered in blood. Additionally, the police discovered broken glass along with a cocaine pipe, propane torch, a glass beaker, and a can that had been altered to accommodate the smoking of crack cocaine. The cocaine pipe, propane torch, and glass beaker are items or devices commonly associated with free basing cocaine and are similar to the items removed from the house on July 28, 1995. Respondent indicated to the police officers at the scene that he had been free-basing cocaine and stated that he had taken a "hit" off the pipe and then thought he was being attacked by three men. According to the Miami Beach Police Department incident report, Mrs. Iver stated that Respondent had been smoking a lot of cocaine and then requested that she sodomize him with a sexual apparatus. Upon refusing, he began punching her in the chest and kicking her. He also pulled her across the floor by her hair. Ms. Iver had physical injuries that were consistent with the reported abuse by Respondent. Respondent was arrested for battery as a result of this incident. During this police investigation, Mrs. Iver was wearing a bandage on her chin and had two (2) broken teeth. Mrs. Iver stated that the observed injuries were a result of her husband, Respondent, punching her two days earlier, on Monday, July 31, 1995 after an argument regarding Respondent's drug abuse. A police photographer was called to the scene by Officer Hochstadt. Color photographs of Dr. and Mrs. Iver and of the scene were taken by the crime scene technician. The photographer's report listed the investigation as a possible attempted suicide. The cocaine pipe, propane torch, and glass beaker were taken into custody by the police. Respondent was transported by the Fire and Rescue Unit to Jackson Memorial Hospital emergency room for treatment. The States Attorney's Office charged Respondent with two counts of misdemeanor battery and one count of misdemeanor possession of drug paraphernalia based on the events of August 2, 1995. On or about October 17, 1995, Robert Iver was found guilty of one count of use, possession, manufacture, delivery, or advertisement of drug paraphernalia, and one count battery, after pleading nolo contendre to each charge. Adjudication was withheld and Iver was sentenced to twelve months probation for each charge to run concurrently. Among the terms of his probation was the requirement that he participate in a PRN approved recovery program. The aforementioned crimes relate to the practice of dentistry or dental hygiene. 1/ THE EMERGENCY SUSPENSION ORDER - SEPTEMBER 15, 1995 On September 13, 1995, after reviewing the substance abuse history of Respondent and the foregoing police incident reports relating to drug usage in the middle of the workweek, Dr. Roger Goetz of PRN opined that Respondent is impaired and that his inability to practice dentistry poses an immediate and serious danger to the public health, safety, and welfare. This opinion resulted in an Emergency Suspension Order being filed on September 15, 1995. Respondent has been prohibited from practicing dentistry since that date based on that order. MISCELLANEOUS FACTS BASED, IN PART, ON THE STIPULATION Respondent, by and through counsel, on approximately February 15, 1994, proffered to the Agency that Respondent had submitted himself to numerous drug screens and all were negative for any controlled or illegal substances. No actual laboratory reports were produced. From approximately January 1994 to June 1994, the Petitioner actively cooperated with Respondent's counsel to negotiate a satisfactory resolution to the complaint. Respondent has, at times, denied his addiction to cocaine after numerous past positive tests, treatment and counseling. Respondent's enthusiasm about prior recovery attempts tailed off as he became more involved with his dental practice. Lisa Iver testified that she and her husband, Robert Iver, Respondent, were getting along better since entering the Mount Sinai program in September 1995, because they were currently both clean and off drugs. THE SECOND PRN CONTRACT - OCTOBER 20, 1995 On September 22, 1995, Respondent went to Dr. Eustace for the purpose of establishing a program of personal recovery, marriage and family recovery, and reentry into the PRN. Mrs. Iver also entered a recovery program at Mt. Sinai. On October 20, 1995, Respondent signed a new contract with the PRN. While Respondent asserts that he "voluntarily" entered into this contract, that characterization is inaccurate since he entered this contract after the entry of the ESO. The order of probation entered in the criminal proceeding, also signed October 20, 1995, required his participation in such a program. By signing this PRN contract, Respondent agreed that he would have random unannounced urine or blood screens, that he would abstain from using all mood altering substances, medications, alcohol and others, that he would be monitored by a physician, that he would notify the PRN if he changed his address or employment; that he was to attend a self help group such as AA or NA seven times per week; that he would receive continuing care in group therapy one time per week; that he would attend a twelve step program for recovering professionals; that he would notify the PRN in the event of a relapse; that he would agree to withdraw from practice at the request of the PRN if any problem developed; and that his wife would also enter a recovery program. In his present capacity, Dr. Eustace provides evaluations for the PRN. In this respect he sees his role as that of a servant for the PRN. He renders reports and recommendations to the PRN. The PRN relies with confidence upon Dr. Eustace's opinions and reports. Since October 20, 1995, the date Respondent signed a PRN contract, Dr. Eustace has been his monitoring physician within the program. While in the program, Respondent has undergone psychological testing, personal interviews and has otherwise complied with the terms of his PRN contract. Dr. Eustace found no evidence of any chemical relapse, Respondent's behavior is one of compliance with the PRN and he is participating in a monitored group and in a peer professional group. Both Dr. and Mrs. Iver are progressing satisfactorily. It is important to the recovery life-style of Respondent that his wife continue progressing satisfactorily in her recovery program. One important difference in Respondent's life-style prior to his signing the October 20, 1995, PRN contract and subsequent thereto is that his wife is seeking professional help for her addiction. On October 31, 1995, Dr. Eustace wrote to Dr. Goetz advising him that it was his opinion that Respondent is adhering to a recovery life-style, is in full compliance with PRN directives, is not a danger to the public or himself and that he can safely practice dentistry. Dr. Goetz acquiesced in Dr. Eustace's opinion in testimony before the Board of Dentistry in November 1995. Both Dr. Eustace and Dr. Goetz testified that in their opinions, Respondent can practice dentistry with safety and without danger to the public health, safety or welfare as long as he is being monitored by the PRN. Dr. Goetz further testified that there has been a "decent" period of time over which to monitor Respondent since his emergency suspension in September. Dr. Hans Ueli Steiner, who had evaluated Respondent in August 1994, expressed the opinion that Respondent was beyond hope. Dr. Steiner based this opinion on his one and one half hour conversation with Respondent in August 1994, on the testimony presented at the formal hearing, and on his observations of Respondent at a deposition and on the first day of the formal hearing. He did not review any medical records as he thought that they were not important. It was Dr. Steiner's opinion that Respondent was not safe to practice dentistry based primarily on the fact that Respondent had relapsed in 1993 and 1994 and therefore the PRN program was unsatisfactory for him. Dr. Steiner also questions Respondent's honesty and his commitment to recovery. Dr. Steiner disagrees with Dr. Goetz and Dr. Eustace and states that they are emotionally involved with his recovery. This emotional involvement, in Dr. Steiner's opinion, prevents them from giving an objective medical opinion. However, Dr. Eustace clearly stated that all of his opinions related to Respondent were based upon the professional relationship and were medical opinions. Dr. Goetz stated that he had never met Respondent until the Board's November 1995 meeting and has relied, in most part, on the opinions expressed by Dr. Eustace. There was testimony as to the dangers of a recovering addict. An addict may be sober one day and under the influence of an addictive substance the next. It is possible that even after signing a PRN contract and being monitored, the Respondent may relapse. It is also possible that if the Respondent falls off the wagon or falls out of recovery, he could harm a patient before PRN is notified and appropriate action is taken. It is also true that no one, including PRN, Dr. Goetz, and Dr. Eustace, can guarantee that the Respondent will not use cocaine, and no one can guarantee that Respondent is able to practice dentistry with reasonable skill and safety. The greater weight of the evidence established, however, that the PRN was developed to assist recovering addicts, that the program is as good as any of its type, and that the program works as long as the impaired practitioner is adhering to the terms of the contract. The testimony of Dr. Eustace and of Dr. Goetz on January 10, 1996, that Respondent is presently safe to practice dentistry and that he poses no danger to the public's health, safety or welfare is more persuasive than that of Dr. Steiner that Respondent is beyond help. This conclusion is reached, in part, because of Dr. Eustace's expertise, his extensive work with the Respondent, and because Respondent was able to practice without incident while being monitored by the PRN. It is also concluded that Dr. Eustace is in a better position than Dr. Steiner to evaluate Respondent's honesty and his commitment to recovery. The PRN program worked for Respondent in the past as he was able to safely practice between 1988 and 1993 when he was being monitored pursuant to a PRN contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent violated the provisions of Section 466.028(1)(c) and (s), Florida Statutes, which imposes an administrative fine in the amount of $6,000.00, which suspends his license to practice dentistry until September 14, 1996, which requires the PRN to attest at its Board meeting in August 1996 that Respondent has adhered to the terms of his PRN contract and that he remains capable of safely practicing dentistry, and which places his licensure on probation for as long as he practices dentistry in Florida. It is further recommended that the terms of his suspension and the terms of his probation require that he maintain a contract with the PRN at all times and that he strictly adhere to all terms of the PRN contract. It is further recommended that Respondent be reprimanded for these two offenses. DONE AND ENTERED this 2nd day of February 1996 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 2nd day of February 1996.
The Issue The issues for determination in this proceeding are whether Respondent, KaShamba Miller-Anderson, violated section 112.3145(8)(c), Florida Statutes (2016), by willfully failing to file a 2015 CE Form 1, “Statement of Financial Interests”; and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently a member of the Riviera Beach City Council. As a member of the Riviera Beach City Council, Respondent served as a “local officer” as defined in section 112.3145(1)(a), throughout the year 2015. Respondent was aware that she was required to file a CE Form 1 every year, including for the year 2015. Financial disclosures are filed in order to allow the public to monitor public officials and employees for any conflicts of interest that may arise. The requirement that financial disclosures be filed is intended to deter corruption and increase the public’s confidence in government. In 2016, Respondent received e-mails at the address kmiller@rivierabch.com. She received regular mail at the address 430 West 28th Street, Riviera Beach, Florida 33404. The CE Form 1, “Statement of Financial Interests,” for calendar year 2015 was required to be filed on or before July 1, 2016. There is a grace period for filing the form that expired on September 1, 2016. After the expiration of the grace period, an automatic fine of $25 per day was imposed for each day the form is late, up to a maximum fine of $1,500. The maximum fine accrued on October 31, 2016. The Palm Beach County Supervisor of Elections (Palm Beach SOE) office sent Respondent the original blank 2015 financial disclosure form, along with the requirements for filing the form, before June 1, 2016. She was instructed to file her completed form no later than July 1, 2016. Respondent failed to file her 2015 CE Form 1 by either July 1, 2016, or September 1, 2016. Respondent received notice from the Commission regarding her failure to file her 2015 CE Form 1. On July 31, 2016, the Palm Beach SOE sent a delinquency memorandum to Respondent at 430 West 28th Street, Riviera Beach, Florida 33404 by certified mail. The mail was unclaimed. The July 31, 2016, memorandum included the following statement: Pursuant to State law, please be advised that although you are delinquent in filing Form 1, a grace period is in effect until September 1, 2016. If your form is not received by September 1, 2016, we will be required by law to notify the Commission on Ethics of the delinquency. A fine of $25 for each day late will be imposed, up to the maximum penalty of $1500. In addition, pursuant to enacted legislation, the Commission on Ethics must initiate investigations of delinquent filers in certain circumstances. This can result in you being removed from your public office or employment. Respondent took no action to file her form by September 1, 2016. If she had done so, it would have been considered timely. Commission staff sent Respondent a courtesy letter on September 7, 2016, and advised her that she was accruing a fine of $25 per day for failure to file her 2015 CE Form 1. The Commission also e-mailed Respondent on September 20, 2016, using the e-mail address kmiller@rivierabch.com. Respondent accrued the maximum fine of $1,500 as of October 31, 2016, as authorized by section 112.3145(7)(f), for failing to file her CE Form 1 for the year 2015. On November 4, 2016, the Commission again e-mailed Respondent at the same e-mail address, advising her that the maximum fine had accrued and she still needed to file her 2015 CE Form 1. The November 4, 2016, e-mail attached a blank 2015 CE Form 1 and a form to appeal her fine. Respondent did not avail herself of the opportunity to appeal the fine that had accrued. On February 21, 2017, the Commission sent Respondent a Notice of Assessment of Automatic Fine by certified mail, using the 430 West 28th Street address. Respondent acknowledged receipt of the February 2017 notice. This e-mail also provided the appeal process for contesting the maximum fine. Respondent did not pay the fine at that time because she did not have the funds to do so. She believed, in error, that she now could not file the 2015 CE Form 1 until she paid the fine. Her belief, however misplaced, was sincere. On June 16, 2017, the Commission mailed Respondent a Notification of Issuance of Default Final Order at the 430 West 28th Street address. The Notice was not returned to the Commission as undeliverable. On June 22, 2017, Respondent paid the $1,500 fine. On June 28, 2017, Respondent filed her CE Form 1 for calendar year 2015. Respondent did not have a particularly compelling reason for not timely filing her 2015 CE Form 1. Her position on the city council is a part-time position, for which she is not assigned an assistant. She admitted at hearing that the notice and the form simply got lost on her desk, and she did not make it a priority. However, Respondent claims that while filing her 2015 CE Form 1 was not the priority it should have been, she never intended not to file the form, and she never indicated to anyone that she would not do so. Respondent filed her 2015 CE Form 1 and paid the fine prior to the finding of probable cause in this case. There are some differences between the financial disclosure Respondent filed when she initially ran for office and the one filed for 2015. Those differences however, are not so great as to support an inference or finding that she was attempting to hide something by not filing timely. The term for which Respondent was elected expired on March 21, 2018. She was re-elected for another term which began March 21, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that no violation of section 112.3145(8)(c) has been demonstrated. DONE AND ENTERED this 7th day of June, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 7th day of June, 2018. COPIES FURNISHED: Millie Wells Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Ronald G. Meyer, Esquire Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street (32301) Post Office Box 1547 Tallahassee, Florida 32302 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
