Findings Of Fact On February 18, 1992, the Petitioner, Douglas Adams, filed a Petition to Determine the Invalidity of an Existing Rule. In the Petition, the Petitioner challenged Rule 33-22.012, 3-12, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the Challenged Rule. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Chapter 33-22, Florida Administrative Code, contains rules governing "inmate discipline." Those rules provide the general policy of the Respondent concerning inmate discipline (Rule 33-22.001), terminology and definitions (Rule 33-22.002), the procedures for taking disciplinary action against inmates (Rules 33-22.003-33-22.010), and the "Rules of Prohibited Conduct and Penalties for Infractions (the Challenged Rule). Rule 33-22.012, Florida Administrative Code, provides, in pertinent part, the following: 33-22.012 Rules of Prohibited Conduct and Penalties for Infractions. The following table shows established maximum penalties for the indicated offenses. As used in the table, "DC" means the maximum number of days of disciplinary confinement that may be imposed and "GT" means the maximum number of days of gain time that may be taken. Any portion of either penalty may be applied. "All GT" includes both earned and unearned gain time. In addition to the penalties listed below, inmates may be required to pay for damaged, destroyed or misappropriated property under the provisions of rule 33-22.008(2)(b)13. . . . . Rule 33-22.012, Florida Administrative Code, includes a table listing of various offenses for which disciplinary action may be taken and the maximum penalty for such offenses. The Challenged Rule provides that "Possession of any other contraband" is an offense for which discipline may be imposed on inmates. The Challenged Rule also provides that the maximum penalty for this offense is 15 days of disciplinary confinement and loss of 30 days gain time. The Challenged Rule does not include a definition of "contraband." Rule 33-22.012, 3-1 to 3-11, Florida Administrative Code, designates the possession of certain specific items of contraband to be a ground for discipline and provides the maximum penalty therefore. The Petitioner has alleged, in part, that the Challenged Rule is invalid because it: . . . constitutes an invalid rule where the rule has exceeded its grant of authority as contain in 944.47, Florida Statutes (1991), in that the rule seeks to define contraband to be "any other contraband" not defined as such by enabling legislation contrary to Section 120.52(8)(b), Florida Statutes (1991). As matter of fact, the rule . . . goes beyond the statutory definition of contraband with the inclusive phrase "any other contraband" without more. . . . The Petitioner also alleged that the Challenged Rule is invalid pursuant to Section 120.52(8)(c), Florida Statutes, for essentially the same reason. The Petitioner further alleged that the Challenged Rule is vague and vest unbridled discretion in the Respondent because of the failure to define "any other contraband" in the Challenged Rule. Finally, the Petitioner alleged that the Challenged Rule is arbitrary and capricious because there is "no logical basis in fact to condemn legally lawful material as contraband with the phrase 'any other'. Rule 33-3.006, Florida Administrative Code, provides a definition of the term "contraband." There is, therefore, no reason to further define the term "contraband" used in the Challenged Rule. The reference to "any other" is merely an indication that the penalty provided for in the Challenged Rule is for the possession of any contraband (as defined elsewhere) other than contraband specifically listed in Rule 33-22.012, 3-1 through 3-11.
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on January 7, 2010, the Amended Order of Penalty Assessment issued on February 17, 2010, and the 2°4 Amended Order of Penalty Assessment issued on May 5, 2010, attached as “Exhibit A,” “Exhibit B,” and “Exhibit D” respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the request for administrative hearing received from DON KRAUSS, D/B/A DON KRAUSS PAINTING, the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On January 7, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-006-1A to DON KRAUSS, D/B/A DON KRAUSS PAINTING. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein DON KRAUSS, D/B/A DON KRAUSS PAINTING was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On January 8, 2010, the Stop-Work Order and Order of Penalty Assessment was served by personal service on DON KRAUSS, D/B/A DON KRAUSS PAINTING. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On February 17, 2010, the Department issued an Amended Order of Penalty Assessment to DON KRAUSS, D/B/A DON KRAUSS PAINTING. The Amended Order of Penalty Assessment assessed a total penalty of $19,871.50 against DON KRAUSS, D/B/A DON KRAUSS PAINTING. The Amended Order of Penalty Assessment included a Notice of Rights wherein DON KRAUSS, D/B/A DON KRAUSS PAINTING was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On February 22, 2010, the Amended Order of Penalty Assessment was served by personal service on DON KRAUSS, D/B/A DON KRAUSS PAINTING. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 8, 2010, DON KRAUSS, D/B/A DON KRAUSS PAINTING filed a request for administrative hearing with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on March 29, 2010, and the matter was assigned DOAH Case No. 10-1682. A copy of the petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On April 14, 2010, the Department served its First Interlocking Discovery Request (“discovery requests”) on Respondent by overnight courier, to which Respondent was required to serve its answers upon the Department within 30 days of service, pursuant to Rules 1.340(a), 1.350(b), and 1.370(a), Florida Rules of Civil Procedure. The Discovery request included requests for admissions, interrogatories, and requests for production. 7. On May 5, 2010, the Department issued a 2"! Amended Order of Penalty Assessment to DON KRAUSS, D/B/A DON KRAUSS PAINTING. The 2" Amended Order of _ Penalty Assessment assessed a total penalty of $16,282.94 against DON KRAUSS, D/B/A DON KRAUSS PAINTING. 8. On May 7, 2010, the Department filed a Motion to Amend Order of Penalty Assessment with the Division of Administrative Hearings. On May 10, 2010, the Administrative Law Judge entered an Order granting the Motion to Amend Order of Penalty Assessment and accepting the 2™4 Amended Order of Penalty Assessment as part of the Department’s charging documents. The 2" Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 9. On May 17, 2010, the Department filed a Motion to Compel Discovery after having not received any answer from Respondent to the Department’s discovery requests. 10. On May 17, 2010, the Administrative Law Judge issued an Order Granting the Department’s Motion to Compel Discovery, ordering Respondent to serve responses to all of the Department’s discovery requests on or before June 4, 2010. | ll. On June 9, 2010, the Department filed a Motion to Deem Matters Admitted and Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes after having not received any answer from Respondent to the Department’s discovery requests. 12. On June 22, 2010, the Administrative Law Judge issued an Order to Show Cause, requiring the Respondent to show cause in writing no later than July 2, 2010, why the case should not be closed and jurisdiction relinquished to the Department. 13. DON KRAUSS, D/B/A DON KRAUSS PAINTING failed to file a written response to the Order to Show Cause with the Department of Administrative Hearings on or before July 2, 2010. On July 6, 2010, the Administrative Law Judge issued an Order Closing File, relinquishing jurisdiction of the matter to the Department. A copy of the Order Closing File is attached hereto as “Exhibit E” and incorporated herein by reference.
The Issue The issue presented is whether Respondent, Roberto Rivera, M.D. (Dr. Rivera or Respondent), violated section 458.331(1)(b) and (kk), Florida Statutes (2012), as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Respondent is a medical doctor licensed in the State of Florida, having been issued license number ME 54313. Respondent did not dispute his status as a licensed medical doctor in this proceeding. Petitioner is the state agency charged with regulating the practice of allopathic medicine in the State of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is also licensed as a medical doctor in the State of New Jersey. No evidence was presented regarding Respondent’s board certification or lack thereof. The licensing authority regulating the practice of medicine in the State of New Jersey is the New Jersey State Board of Medical Examiners (New Jersey Board), within the Department of Law and Public Safety, Division of Consumer Affairs. On January 7, 2013, the Hearing Committee of the New Jersey Board entered an Order of Temporary Suspension and Report of Hearing Committee to the Board (Committee Order). The Committee Order was issued nunc pro tunc to December 20, 2012, the date an evidentiary hearing was conducted before the Committee. The Committee Order temporarily suspended Dr. Rivera’s license to practice medicine, effective December 20, 2012, with the suspension to continue until such time as the New Jersey Board considered the record at its next scheduled meeting, and until further order of the New Jersey Board. The Committee Order also required Dr. Rivera to immediately cease the practice of medicine in New Jersey; to surrender his original medical license, biennial registration, New Jersey controlled dangerous substances (CDS) registration and Drug Enforcement Administration (DEA) registration to the New Jersey Board office pending further Order of the New Jersey Board; and to comply with the directives regarding licensees who have been disciplined, which were attached to the Committee Order and incorporated by reference. The Committee Order was subject to review and ratification by the full New Jersey Board at its meeting scheduled for January 9, 2013. The New Jersey Board considered the Committee Order at its meeting on January 9, 2013. At that time, the Board voted to ratify and adopt, in its entirety, the Committee Order, and on January 17, 2013, the New Jersey Board issued an Order Continuing Temporary Suspension of License (Continued Suspension Order). The Continued Suspension Order adopts, in its entirety, the Committee Order; continues the suspension of Dr. Rivera’s medical license in New Jersey pending review following completion of plenary proceedings in the matter; and stayed those further proceedings at the request of Dr. Rivera, until the resolution of the criminal charges pending against him following his arrest on November 17, 2012, in Ridgewood, New Jersey. The Committee Order, standing alone, does not constitute action by the licensing authority of another jurisdiction. However, the Committee Order as ratified by the Continuing Suspension Order does constitute action by the licensing authority of another jurisdiction. Respondent did not report either New Jersey action to the Florida Board of Medicine within 30 days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent has violated section 458.331(1)(b) and (kk), Florida Statutes (2012). It is further recommended that the Board suspend his Florida license to practice medicine until such time as his New Jersey license is unencumbered; and impose an administrative fine of $1,500. DONE AND ENTERED this 1st day of July, 2014, 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 1st day of July, 2014.
The Issue Whether Judy Limekiller (Respondent) committed the violation alleged in the Administrative Complaint dated August 30, 2012, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida created by section 20.165, Florida Statutes. Petitioner is charged with the responsibility of regulating the real estate industry in Florida pursuant to chapters 455 and 475, Florida Statutes. As such, Petitioner is fully authorized to prosecute disciplinary cases against real estate licensees. Respondent was at all times material to this matter, the holder of a Florida real estate license, license number 3131887. At all times material to the allegations of this case Respondent was an active sales associate with Michael Saunders and Company. Respondent’s address of record is 1529 Pelican Point Drive, HA 205, Sarasota, Florida. In January 2012, Respondent was a sales associate handling a transaction with Regina Zahofnik (Ms. Zahofnik). Ms. Zahofnik was the seller of property located at 4527 MacEachen Boulevard, Sarasota, Florida. Respondent admits she signed Ms. Zahofnik’s name to a Cancellation of Contract and Release. Respondent did not have written authorization to sign for Ms. Zahofnik. Instead, she maintains Ms. Zahofnik gave her verbal authority to sign the document. In February 2012, Respondent was a sales associate handling a transaction with Lynda Kravitz. Ms. Kravitz was the seller of property located at 1526 Pelican Point Drive, BA 147, Sarasota, Florida. Respondent signed Ms. Kravitz’ name to a Seller’s Property Disclosure Statement. Ms. Kravitz did not authorize Respondent to sign the document. In February 2012, Respondent was a sales associate handling a transaction with Cherryne Kravitz. Ms. Kravitz was the seller of property located at 1526 Pelican Point Drive, BA 147, Sarasota, Florida. On or about February 10, 2012, Respondent signed Ms. Kravitz’ name to a Residential Contract for Sale and Purchase. Ms. Kravitz did not authorize Respondent to sign the document. In all situations, Respondent believed she was authorized to sign the documents. She claims either e-mail or text message gave her the go-ahead to sign documents so that they could be timely processed. In the case of Ms. Zahofnik, the “deal was dead” and could not close. Since the buyer elected to walk away from the purchase when the seller could not complete the transaction, Respondent maintains that no party was injured by the signing of the document and that by doing so the refund to the buyer was processed. In the case of the Kravitz sale, Respondent signed the property disclosure because she knew the property better than the sellers and an expedited completion of the paperwork was requested. Again, Respondent states Ms. Kravitz authorized the signature. And with regard to the signing of the contract, Respondent asserts that Ms. Kravitz was slow to return the contract and that she was getting pressure from the other Ms. Kravitz to get the paperwork completed. Eventually, both Kravitz daughters signed the contract. Respondent does not deny signing the contract. As a result of the allegations of this case, Michael Saunders and Company incurred expenses and lost commissions. Petitioner did not present evidence regarding the cost of investigating this matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission finding Respondent in violation of the provision of law set forth in the Administrative Complaint as alleged by Petitioner, imposing an administrative fine in the amount of $2,500.00, and imposing a suspension of Respondent’s real estate license for a period of 30 days, with probation to follow for such period of time as the commission deems appropriate. DONE AND ENTERED this 21st day of June, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 21st day of June, 2013. COPIES FURNISHED: Susan Leigh Matchett, Esquire Department of Business and Professional Regulation Suite 42 1940 North Monroe Street Tallahassee, Florida 32399 James P. Harwood, Esquire James Harwood, P.A. Suite 106 1277 North Semoran Boulevard Orlando, Florida 32807 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Juana Watkins, Director Division of Real Estate 400 West Robinson Street, Suite N801 Orlando, Florida 32801 Darla Furst, Chair Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801
Findings Of Fact The initial Petition for Administrative Hearing was filed on November 8, 1991. The Petition was filed by Ervin James Horton. In the Petition Rule 2-1.007, Florida Administrative Code and "[a]ny and (all) State Attorney memorandums, statements, policy, rules, directive, consistent to this practice" were challenged. The Challenged Rule deals with the issuance of Attorney General opinions. The Petition is, to say the least, confusing. This confusion is caused by the Petitioners frequent use of legal terms and phrases with little in the way of factual explanation. The confusion is also caused by the failure of the Petitioner to actually be challenging the Challenged Rule. Although the Petitioner contains some "legalese", it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. Apparently, the Petitioner is complaining of the alleged failure of the State Attorney of the Eighth Judicial Circuit to take action against employees of the Department of Corrections and the failure of the Attorney General of the State of Florida to do anything about it. The Petitioner has also attempted to raise constitutional arguments to support his challenge to the Challenged Rule. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rule is unconstitutional. Insufficient alleged facts concerning why it is believed that the Challenged Rule is an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. On December 23, 1991, an Amended Petition was filed by the Petitioner. The Amended Petition consolidated the Petitioner's challenges in this case and case number 90-7189R. The Amended Petition is very similar to the Petition and suffers from the same deficiencies. Additionally, the Petitioner includes the Department of Corrections, the Respondent in case number 91-7189R, as a Respondent and addresses his challenge to other rules, internal operating procedures and directives of the Department of Corrections. The Amended Petition is devoid of a sufficient statement of the alleged facts pertinent to the issues raised in the Petition or the Amended Petition which, if proven, would support a determination that the Challenged Rule or the other materials challenged in the Amended Petition are invalid under Section 120.56, Florida Statutes. On January 14, 1992, an Order Concerning Amended Petition was entered dismissing the Amended Petition and giving the parties an opportunity to file proposed final orders.
The Issue Whether the Petitioner's application for licensure as a yacht and ship salesman should be approved or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency responsible for licensing and regulating yacht and ship brokers and salespersons in Florida. Section 326.003, Florida Statutes (1997). On July 28, 1998, the Division received an application for a yacht and ship salesperson's license from Richard Badolato. Question 13 on the application solicits information of the applicant's criminal history as follows: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. After Question 15 of the application, the following statement appears in bold type: "If your answer to question 13, 14, or 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." Mr. Badolato answered Question 13 in the affirmative, and he signed the application, thereby certifying that "the foregoing information is true and correct to the best of my knowledge and belief." Mr. Badolato did not provide the statement of particulars which must be submitted by those answering Question 13 in the affirmative. In a letter dated July 28, 1998, the Division notified Mr. Badolato that his application was incomplete and that he should, among other things, provide a complete written explanation of his criminal history. In response to this letter, Mr. Badolato provided a signed statement in which he stated: "I was arrested and charged with possession of marj. in 1981." Mr. Badolato also provided a telephone number on the statement, indicating that he could be contacted at that number if the Division had any questions. Pursuant to the provisions of Section 326.004(15), the Division issued a 90-day temporary license to Mr. Badolato, pending completion of the criminal history analysis that is done on all applicants by the Florida Department of Law Enforcement. The Division subsequently received a report from the Federal Bureau of Investigation which revealed that Mr. Badolato had three drug-related felony convictions, as well as an arrest on June 22, 1977, which resulted in a charge of possession of marijuana with intent to distribute. On August 24, 1981, Mr. Badolato was convicted in federal district court in Brunswick, Georgia, of conspiracy to smuggle marijuana; he was sentenced to ten years in prison and ordered to pay a $30,000 fine. On October 23, 1981, Mr. Badolato was convicted in federal district court in Miami, Florida, of conspiracy to distribute cocaine; he was sentenced to thirty months in prison, to run consecutively with the ten-year sentence in the Georgia case. On January 31, 1989, Mr. Badolato was convicted in federal district court in Maryland of conspiracy to distribute marijuana; he was sentenced to thirty-six months in prison, to run concurrently with any sentence imposed for a violation of parole. Mr. Badolato was released from prison in 1991 and successfully completed parole in December 1996 with respect to the 1989 conviction. In late 1997, Mr. Badolato received a letter advising him that he might be eligible for clemency. An attorney acting on behalf of Mr. Badolato filed an application for clemency with the Florida Parole Commission. Although Mr. Badolato has never seen this application, he assumes that the file developed during review of the application contains complete information regarding his criminal history.2 When the Division received the Federal Bureau of Investigation report, Peter Butler, head of the Division's general enforcement section, contacted Mr. Badolato by telephone, read to him the statement in the application quoted in paragraph 4 above, and asked him if he wanted to amend his application. Because he could not remember the exact dates of his three felony convictions, Mr. Badolato responded by referring Mr. Butler to the Clemency Board if Mr. Butler wanted to obtain further information about Mr. Badolato's criminal history. Mr. Badolato acknowledged in his testimony that he should have been more thorough in completing his application for licensure, that he was lazy and stupid for not being more forthcoming in the application, and that he did not intend to mislead the Division. He believed that, by answering "Yes" to Question 13 and admitting that he was arrested and charged with possession of marijuana in 1981, he had provided enough information to alert the Division that he had a criminal history. He also assumed that it would be very easy for the Division to obtain complete information about his background merely by running a computer check and by reviewing the information in his clemency application file. From 1991, when he was released from prison, until December 1998, Mr. Badolato was involved in the restaurant business in a managerial capacity, and, as part of his duties, he handled large sums of money. No money in his care was ever found missing, and no adverse employment actions were taken against him during this time. In addition, during the time he was on parole, Mr. Badolato periodically submitted to random drug-testing and never failed a test. The evidence presented by Mr. Badolato is not sufficient to establish that he is of good moral character. He admitted in his answer to Question 13 on the application that he had been convicted of a felony, yet he included in the statement which he filed as part of the application a vague, incomplete, misleading, and inaccurate reference to an arrest and charge of possession of marijuana in 1981.3 Furthermore, Mr. Badolato certified by his signature on the application form that the information he provided was "true and correct to the best of [his] knowledge and belief," when he was certainly fully aware that he had three separate felony convictions. Mr. Badolato presented evidence of his good employment history subsequent to his release from prison in 1991, his successful termination of probation, and his faithful payments on the $30,000 fine imposed in 1981, all of which tend to show rehabilitation and good moral character. However, Mr. Badolato's failure to include in his application complete and accurate information regarding his criminal history tends to show lack of rehabilitation and lack of good moral character. On balance, Mr. Badolato's failure to disclose in his application his complete criminal history outweighs the evidence he presented to show rehabilitation and good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes, enter a final order denying Richard Badolato's application for licensure as a yacht and ship salesperson. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 16th day of August, 1999.
The Issue The issue in this case is whether an interpretation of Section 458.331(1)(jj), Florida Statutes, by the Board of Medicine is an agency statement which violates Section 120.54(1)(a), Florida Statutes (2007), pursuant to Section 120.56(4), Florida Statutes.
Findings Of Fact These findings of fact, with a few changes based upon the stipulated record in this case, are facts contained in the Joint Stipulation: The Parties. Petitioner Franciso Vazquez, M.D., is a licensed medical doctor within the State of Florida, having been issued license number ME 68742. Respondent Board of Medicine (hereinafter referred to as the “Board”), is charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. Dr. Vazquez’s address of record is 4595 Palm Beach Boulevard, Fort Myers, Florida 33905. DOAH Case No. 07-0424PL, Dr. Vazquez’s Disciplinary Case. Dr. Vazquez signed a written opinion in the form of an Affidavit on September 5, 2003, as required by Section 766.104(1), Florida Statutes (2003), in support of a medical malpractice action related to the death of C.L. Dr. Vazquez named approximately 40 doctors and one hospital in the sworn statement. The sworn statement generally stated that each of the defendants committed medical negligence and a breach of the prevailing professional standard of care in a multitude of ways, but did not specify which doctor committed which negligent act or how any individual doctor breached the prevailing standard of care. Dr. Vazquez further asserted in this sworn statement that the negligence and breach of the prevailing professional standard of care of all the doctors caused injury, damage and ultimately the death of C.L. That sworn statement ultimately formed the basis for a civil malpractice action filed on February 2, 2004, in the Circuit Court of the Sixth Judicial Circuit of Florida, in and for Pinellas County, Civil Division, Case Number 04-875CI-7. On or about February 22, 2005, circuit court judge Bruce Boyer of the Circuit Court of the Sixth Judicial Circuit of Florida, in an for Pinellas County, Civil Division, in case Number 04-875CI-7, entered an order of dismissal as to two defendant doctors. In the order of dismissal, Judge Boyer stated that the Dr. Vazquez was not a gastroenterologist and did not otherwise appear to be qualified to comment on the defendants’ care and did not appear to have made any reasonable effort to investigate and determine what role the [two] defendants played in C.L.’s care. Dr. Vazquez was not provided with any notice of the hearing on February 22, 2005, and neither he nor anyone acting on his behalf was present at the hearing to defend his interests. The court forwarded its order to the Division of Medical Quality Assurance as required by Section 766.206(5)(a), Florida Statutes (2003). On or about May 3, 2006, an Administrative Complaint was issued against Dr. Vazquez charging him with a one count violation of Section 458.331(1)(jj), Florida Statutes (2003), which subjects a physician to license discipline for “being found by any court in this state to have provided corroborating written medical expert opinion attached to any statutorily required notice of claim or intent or to any statutorily required response rejecting a claim without reasonable investigation.” The recommended penalties for a violation of Section 4458.331(1)(jj), Florida Statutes (2003), include revocation of the physician’s license. Dr. Vazquez is the first and only physician in Florida who has been formally charged with violating Section 458.331(1)(jj), Florida Statutes (2003). On or about January 22, 2007, the Department of Health referred Case No. 2005-03579 (DOH v. Francisco Vazquez, M.D.) to the Division of Administrative Hearings (hereinafter referred to as the “DOAH”) for a formal evidentiary hearing on the Administrative Complaint pursuant to Chapter 120, Florida Statutes. The case was assigned DOAH Case Number 07-0424PL. The case was assigned to the undersigned. On or about March 1, 2007, Dr. Vazquez filed a Motion to Relinquish Jurisdiction in the administrative proceeding, advising the court of his intent to file his constitutional challenge to Section 458.331(1)(jj), Florida Statutes, in circuit court and arguing the DOAH should relinquish jurisdiction until after the Leon County Circuit Court has ruled on his constitutional challenge. On or about March 5, 2007, Dr. Vazquez filed a Petition for Declaratory Action and/or Injunctive Relief in the Second Judicial Circuit Court in and for Leon County, Florida, alleging that Section 458.331(1)(jj), Florida Statutes, is unconstitutional under the U.S. and state constitutions, in that it allows disciplinary action against a physician’s license based exclusively on the existence of a court order entered in a proceeding in which the physician, acting as a presuit medical expert, is not a party and has no right to notice and an opportunity to be heard. The case was assigned case number 2007-CA-0663. On or about March 19, 2007, an Order Denying Motion to Relinquish was entered by the undersigned. On or about March 21, 2007, a hearing was held before the undersigned on Dr. Vazquez’ Motion to Continue Hearing. At the hearing, counsel for the Department of Health, argued that it is her client’s position that Section 458.331(1)(jj), Florida Statutes, only requires proof of the existence of a court order that includes the language mentioned in the statute and that, once this is proven, there is no opportunity for the physician to dispute the findings of the court order. The Department of Health’s argument was accepted by the undersigned. On or about April 17, 2007, after a formal administrative hearing was conducted but before a recommended order was issued, the Department of Health filed a Motion to Reopen the Hearing and Record and Schedule Evidentiary Formal Hearing. In the motion, the Department of Health urged the undersigned that a new interpretation of Section 458.331(1)(jj), Florida Statutes (2003), should be accepted, stating: It is the [Department of Health’s] position that Section 458.331(1)(jj), Florida Statutes, creates a rebuttable presumption. Under this interpretation, to create a prima facie case, the Department must prove that [Dr. Vazquez] was found to have provided a corroborating written affidavit in support of a notice of a claim without reasonable investigation. [Dr. Vazquez] may rebut such a showing by demonstrating that, notwithstanding the finding, his investigation was in fact reasonable. On or about May 8, 2007, the undersigned denied the Department of Health’s Motion to Reopen, holding that its new interpretation of Section 458.331(1)(jj), Florida Statutes (2003), is contrary to any reasonable reading of the statute. On or about July 5, 2007, the Department of Health filed its Exceptions to the Recommended Order of the undersigned in DOAH Case No. 07-0424PL, in which it reasserted that the correct interpretation of Section 458.331(1)(jj), Florida Statutes (2003), is the one set forth in its Motion to Reopen Hearing (quoted in paragraph 20, supra). On or about July 6, 2007, Dr. Vazquez filed his Reply to Petitioner’s Exceptions urging that, even if Petitioner’s new interpretation of Section 458.331(1)(jj), Florida Statutes, were to be adopted and applied to this case, the case should be dismissed and sent back to the probable cause panel for a determination made based upon the new interpretation. On or about August 10, 2007, a meeting of the Board was held in Fort Lauderdale, Florida at which the Board approved the Department of Health’s Exceptions to the Recommended Order and entered an Order remanding the case back to the DOAH for a “de novo hearing so that findings may be entered consistent with the Board of Medicine’s reading of Fla. Stat. § 458.331(1)(jj), as set forth in this order.” By accepting the Department of Health’s Exceptions, the Board adopted as its own, the interpretation of Section 458.331(1)(jj), Florida Statutes (2003), asserted by the Department of Health in its Motion to Reopen the Hearing and Record and Schedule Evidentiary Formal Hearing and quoted in paragraph 20, supra. In light of the fact that the Board has the final authority over its interpretation of the laws it is charged with applying, the Order of Remand was accepted by Order Accepting Remand and Reopening File entered September 17, 2007. On or about January 8, 2008, Dr. Vazquez filed his Motion to Dismiss Administrative Complaint and Remand to Agency for Probable Cause Determination, again arguing that the probable cause determination made against him was based on a reading of the statute which is substantially different than the reading that the Board adopted in the Order on Remand. The Department of Health opposed this motion. The motion was denied by an Order entered by the undersigned on January 18, 2008. The final hearing on remand in DOAH Case No. 07-0424PL was held on January 29, 2008, pursuant to Section 120.57(1), Florida Statutes. In his Amended Petition, Dr. Vazquez has challenged the statement adopted by the Board through its Order of Remand. That statement, which is quoted in paragraph 20, supra, will hereinafter be referred to as the “Challenged Agency Statement.” The Challenged Agency Statement has not been adopted a rule pursuant to Section 120.54(1), Florida Statutes, and the Board has not initiated any rule-making procedures in this regard. The Board has not argued or presented evidence to support a finding that rule-making is not feasible and practicable under Section 120.54(1)(a), Florida Statutes.
