The Issue Whether the Petitioner is barred by the doctrine of res judicata from maintaining its challenge to rule 59A-4.128, Florida Administrative Code, which governs the evaluation and rating of nursing homes, as an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the representations of counsel at the hearing and on the entire record of this proceeding, the following findings of fact are made: Advantage Therapy and Nursing Center (Beverly Health and Rehabilitative Services, Inc.) is the licensee of a nursing home in Fort Pierce, Florida. Rule 59A-4.128, Florida Administrative Code, governs the evaluation and rating of nursing homes in Florida. The rule provides: 59A-4.128 Evaluation of Nursing Homes and Rating System. The agency shall, at least every 15 months, evaluate and assign a rating to every nursing home facility. The evaluation and rating shall be based on the facility's compliance with the requirements contained in Sections 59A-4.100 through 59A-4.128, of this rule, Chapter 400, Part II and the requirements contained in the regulations adopted under the Omnibus Budget Reconciliation Act (OBRA) of 1987 (Pub. L. No. 100-203) (December 22, 1987), Title IV (Medicare, Medicaid, and Other Health Related Programs), Subtitle C (Nursing Home Reform), as amended and incorporated by reference. The evaluation shall be based on the most recent licensure survey report, investigations conducted by the AHCA and those persons authorized to inspect nursing homes under Chapter 400, Part II, Florida Statutes. The rating assigned to the nursing home facility will be either conditional, standard or superior. The rating is based on the compliance with the standards contained in this rule and the standards contained in the OBRA regulations. Non-compliance will be stated as deficiencies measured in terms of severity. For rating purposes, the following deficiencies are considered equal in severity: Class I deficiencies; Class II deficiencies; and those Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy. Further for rating purposes, the following deficiencies are considered equal in severity: Class III deficiencies; and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy with no actual harm. Class I deficiencies are those which present either an imminent danger, a substantial probability of death or serious physical harm and require immediate correction. Class II deficiencies are those deficiencies that present an immediate threat to the health, safety, or security of the residents of the facility and the AHCA establishes a fixed period of time for the elimination and correction of the deficiency. Substandard Quality of Care deficiencies are deficiencies which constitute either: immediate jeopardy to resident health or safety; a pattern of or widespread actual harm that is not immediate jeopardy; or a widespread potential for more than minimal harm, but less than immediate jeopardy, with no actual harm. Class III deficiencies are those which present an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than Class I or Class II deficiencies. A conditional rating shall be assigned to the facility: if at the time of relicensure survey, the facility has one or more of the following deficiencies: Class I; Class II; or Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy; or if at the time of the relicensure survey, the facility has Class III deficiencies, or Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm and at the time of the follow-up survey, such deficiencies are not substantially corrected within the time frame specified by the agency and continue to exist, or new Class I or Class II or Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy are found at the time of the follow- up survey. A facility receiving a conditional rating at the time of the relicensure survey shall be eligible for a standard rating if: all Class I deficiencies, Class II deficiencies, and those Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy are corrected within the time frame established by the AHCA and all Class III deficiencies and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm are substantially corrected at the time of the follow-up survey. A facility receiving a conditional rating at the time of the relicensure survey shall not be eligible for a superior rating until the next relicensure survey. A standard rating shall be assigned to a facility, if at the time of the relicensure survey, the facility has: No Class I or Class II deficiencies and no Substandard Quality of Care deficiencies which constitute either immediate jeopardy to resident health or safety or a pattern of or widespread actual harm that is not immediate jeopardy, and Corrects all Class III deficiencies and those Substandard Quality of Care deficiencies which constitute a widespread potential for more than minimal harm to resident health or safety, but less than immediate jeopardy, with no actual harm within the time frame established by the AHCA. A superior rating shall be assigned to a facility, if at the time of the relicensure survey, the facility has received a standard rating and meets criteria for a superior rating through enhanced programs and services as contained in (7) of this Section. In order to qualify for a superior rating, the nursing facility must provide at least three enhanced programs or services which encompass the following areas: Nursing services. Dietary or nutritional services. Physical environment. Housekeeping and maintenance. Restorative therapies and self help activities. Social services. Activities and recreational therapy. In order to facilitate the development of special programs or facility wide initiatives and promote creativity, these areas may be grouped or addressed individually. In establishing the facility's qualification for a superior rating, the AHCA survey team will use the Rating Survey and Scoring Sheet, Form No. AHCA 3110-6007, Nov., 1994, incorporated by reference, and may be obtained from the Agency for Health Care Administration. Upon initial licensure, a licensee can receive no higher than a standard license. After six months of operation, the new licensee may request that the agency evaluate the facility to make a determination as to the degree of compliance with minimum requirements under Chapter 400, Part II, F.S., and this rule to determine if the facility can be assigned a higher rating. Nursing facilities will be surveyed on this Section of the rule beginning March 1, 1995. Advantage Therapy filed a petition pursuant to Section 120.56(1) and (3), Florida Statutes (Supp. 1996), challenging the validity of existing rule 59A-4.128 and asserting in paragraph five of the petition: Rule 59A-4.128, F. A. C., as applied to the issuance of conditional licenses, is an invalid exercise of delegated legislative authority in that it is vague, fails to establish adequate standards for agency decisions, and vests unbridled discretion in employees of the agency, and violates . . . [Section] 400.23(8)(h) which requires that the agency have uniform procedures in place for the evaluation of nursing homes. Advantage Therapy focuses its challenge on the Agency's alleged failure to interpret or apply the rule in a manner consistent with the federal rules relating to nursing homes adopted pursuant to the Omnibus Budget Reconciliation Act of 1987 and on alleged inconsistencies in the interpretation and application of the provisions of the rule by the Agency and by the various Agency survey teams which are responsible for identifying and classifying deficiencies in nursing homes. In a Final Order entered July 16, 1996, Administrative Law Judge David M. Maloney concluded that proposed rule 59A-4.128 was not an invalid exercise of delegated legislative authority in a challenge brought by the Florida Health Care Association, Inc. Florida Health Care Association, Inc. v. Agency for Health Care Administration, DOAH Case Number 95-4367RP (1996). No appeal was taken from this Final Order. The Florida Health Care Association's challenge to proposed rule 59A-4.128 was brought pursuant to Section 120.54(4), Florida Statutes (1995), which provided in subsection (a) that "any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority." "Invalid exercise of delegated legislative authority" was defined in Section 120.52, Florida Statutes (1995), as follows: "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply: The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54; The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or The rule is arbitrary or capricious. Florida Health Care Association's challenge to proposed rule 59A- 4.128 was brought pursuant to this 1995 definition of "invalid exercise of delegated legislative authority." Advantage Therapy's challenge to existing rule 59A-4.128 was brought pursuant to Section 120.56, Florida Statutes (Supp. 1996), which provides that "[a]ny person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority." Section 120.56(1)(a), Florida Statutes (Supp. 1996). Sections 120.56(2) and (3), Florida Statutes (Supp. 1996), include special provisions which apply to challenges of proposed rules and to challenges of existing rules, respectively. In Section 120.52(8), Florida Statutes (Supp. 1996), the legislature added to the five bases included in Section 120.52(8), Florida Statutes (1995), two new bases for finding that a proposed or existing rule constitutes an invalid exercise of delegated legislative authority : The rule is not supported by competent substantial evidence; or The rule imposes regulatory costs on the regulated person, county, or city which could be reduced by the adoption of less costly alternatives that substantially accomplish the statutory objectives. Section 120.52(8), Florida Statutes (Supp. 1996). Advantage Therapy's rule challenge does not implicate either of these two new bases for finding that a proposed or existing rule is an invalid exercise of delegated legislative authority; rather, it asserts that "[t]he rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency." Section 120.52(8)(d), Florida Statutes (1995 and Supp. 1996).2 The party challenging either a proposed or an existing rule pursuant to Sections 120.54(4) or 120.56, Florida Statutes (1995), was required to prove by a preponderance of the evidence that the proposed rule was an invalid exercise of delegated legislative authority. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759, 762 (Fla. 1st DCA 1978). In Section 120.56(2)(a), the legislature changed the allocation of the burden of proof in challenges to proposed rules, but no change in the allocation of the burden of proof is included in Section 120.56(3) with respect to challenges to existing rules. Beverly Health and Rehabilitation Services, Inc., which does business as Advantage Therapy, is, and was at the time of the challenge to proposed rule 59A-4.128, a member of the Florida Health Care Association, Inc. The language in proposed rule 59A-4.128 is identical to the language in existing rule 59A-4.128.
The Issue The issues in this case are whether the Respondent, Robert Dugger, committed the violations alleged in an Amended Administrative Complaint, DPBR Case Number 2002-007094, filed by the Petitioner Department of Business and Professional Regulation on April 11, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with regulating the practice of community association management pursuant to Chapters 455 and 468, Florida Statutes. (Stipulated Fact). Robert Dugger, is and was at the times material to this proceeding a licensed Florida Community Association Manager (hereinafter referred to as a “CAM”), having been issued license number CAM 1148. (Stipulated Fact). At the times material to this proceeding, Mr. Dugger’s address of record was 7401 Beach View Drive, North Bay Village, Florida 33141. Miramar Gardens. At the times material to this proceeding, Mr. Dugger was employed by Timberlake Group, Inc. (hereinafter referred to as “Timberlake”). In his capacity with Timberlake, Mr. Dugger served as the CAM for 30 homeowners’ associations. In particular, Mr. Dugger served as the CAM for Miramar Gardens Townhouse Homeowners’ Association, Inc. (hereinafter referred to as the “Association”). (Stipulated Fact). The Association is made up of approximately 350 homeowner members. The Association was initially created by the Miramar Gardens Townhouse Homeowners Association, Inc., Declaration of Covenants, Conditions and Restrictions adopted on or about December 16, 1975. By-Laws for the Association were also adopted on December 16, 1975. Article X of the By-Laws provides the following homeowners’ rights concerning the books and records of the Association: The books, records and papers of the Association shall at all times, during reasonable business hours, be subject to inspection by any Member. The Declaration, the Articles and these By-Laws shall be available for inspection by any Member at the principal office of the Association, where copies may be purchased at reasonable cost. Prior to 2001, the Association, along with Vista Verde Townhome Homeowners Association (hereinafter referred to as “Vista Verde”), an adjacent community association, had been placed in receivership and was managed by a civilian board. These events came about due to the dismal state the two communities were in. Crime was rampant, there were no street signs or lights, common areas and alleys were unkempt, there were abandoned vehicles, and the associations for both areas were essentially non-existent. Miami-Dade County had taken over ownership of many homes in the community by foreclosure. Mr. Dugger became involved early with the reorganization and revitalization of the Association and Vista Verde. In 1997, Mr. Dugger was appointed by the receiver as the CAM for the Association and Vista Verde. At the end of 2000, the Association was ready to govern itself. Toward that end, on or about December 21, 2000, the Association and Timberlake, entered into a Management Agreement (hereinafter referred to as the “Management Agreement”). Pursuant to the Management Agreement, Timberlake was designated as the “Exclusive Managing Agent” for the Association commencing January 1, 2001. Among the duties assumed by Timberlake, are the following: 2) MAINTENANCE OF ASSOCIATION FILES: The Manager will collect, organize and maintain in the office of the Manager, all Association information, including but not limited to the Articles of Incorporation, By-Laws, Declaration of, [sic] Covenants, Conditions and Restrictions, site plans, owner lists, correspondence, rules and regulations, blue prints, specifications, corporate minutes, all maintenance and service contracts in effect and the necessary administrative financial information related to the Association. 8) ASSISTANCE TO THE BOARD OF DIRECTORS: The Manager will provide administrative support services to the Board of Directors, to include notifying Directors of Board meetings, circulating minutes of the preceding meeting, as prepared by the Secretary . . . . Timberlake has continued to provide the services of Mr. Dugger as CAM since 2001. During his tenure, street signs and lights have been installed, the common areas have been cleared, and the community has greatly improved. Proposed findings of fact 14 through 19 of Mr. Dugger’s Proposed Recommended Order generally describe Mr. Dugger’s efforts as CAM, the improvement of the community, and Mr. Dugger’s reputation as CAM. Count I: Criminal Violations. During 2003, Mr. Dugger served as a city commissioner for the City of North Bay Village, Florida (hereinafter referred to as the “Village”). On or about December 12, 2003, Mr. Dugger was charged with eight criminal violations in an Information issued in case number F03-33076, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. The alleged violations arose out of Mr. Dugger’s activities as a city commissioner for the Village. Two of the criminal charges, Counts 2 and 8, are of pertinence to this matter: (a) Count 2 alleges a violation of Section 2-11.1(d), Miami-Dade County Code, and Section 125.69, Florida Statutes; and (b) Count 8 alleges a violation of Section 2-11.1(i), Miami-Dade County Code, and Section 125.69, Florida Statutes. As to Count 2 of the Information, it was more specifically alleged, in pertinent part, as follows: . . . ROBERT A. DUGGER SR., on or about April 08, 2003, in the County and State aforesaid, being a member of THE NORTH BAY VILLAGE COMMISSION, in Miami-Dade County, did vote on a matter presented to said COMMISSION, to wit: ITEM 7A, AN ORDINANCE AMENDING SECTION 152.029 OF THE NORTH BAY VILLAGE CODE OF ORDINANCES (FIRST READING), when said defendant would or might, directly or indirectly, profit or be enhanced by this action of said COMMISSION on said matter, in violation of Miami-Dade County Code s.2.11.1(d) and s. 125.69, Fla. Stat. . . . As to Count 8 of the Information, it was more specifically alleged, in pertinent part, as follows: . . . ROBERT A. DUGGER SR., on or about July 01, 2003, in the County and State aforesaid, being a MUNICIAL OFFICAL to wit: MEMBER OF THE NORTH BAY VILLAGE COMMISSION, in Miami-Dade County, did fail to comply with the financial disclosure requirements of Chapter 112 (Part III) of the Florida Statutes by failing to DISCLOSE ALL LIABILITIES IN PART E. OF FORM 1 STATEMENT OF FINANCIAL INTERESTS FOR 2002, filed with the City Clerk of THE CITY OF NORTH BAY VILLAGE, in violation of Miami-Dade County Code s. 2-11.1(i) and s. 125.69, Fla. Stat. . . . Counts 2 and 8 were based upon the following allegations of the Complaint/Arrest Affidavit: Robert A. Dugger was elected Village Commissioner for the City of North Bay Village on November 19, 2002. On September 21, 2002, Mr. Robert Dugger filed his Statement of Financial Interest for the calendar year 2001, as required by Miami- Dade County ordinance. In Part E of the Statement of Financial Interest (this section is designated for Liabilities – major debts-and asks for the name and address of creditor), Mr. Dugger marked N/A in this section. Commissioner Robert Dugger has substantial indebtedness to Al Coletta that was incurred when Al Coletta assumed the mortgage on one of Dugger’s properties and paid off the mortgage on another. Rachael Dugger admitted these debts under oath during her sworn statement. Commissioner Dugger failed to report these debts on his Statement of Financial Interest. Additionally, on March 15, 2001, a Summary Final Judgement of Foreclosure was ordered and adjudged on behalf International Financial Bank, against Tomin Incorporated, and Robert Dugger and Rachael Dugger personally, in the amount of $1,154,427.50. Following the Judgement on March 15, 2001, title of the property in question was acquire by International Finance Bank on Mary [sic] 2, 2001 and sold to a third party on June 1, 2001. The sale amount of the property was $750,000. A short fall of $404,427.50 remained after the sale and is still unpaid. Commissioner Dugger also failed to report this debt on his Statement of Financial Interest for the year 2001. . . . . Based on Commissioner Robert Dugger’s indebtedness to Al Coletta, he had a Conflict of Interest by voting on matters involving Al Coletta, that came before the North Bay Village Commission, each vote is a separate violation of the Miami-Dade Code, Section 2-11.1(d), a second [degree] misdemeanor. Commissioner Dugger violated the aforementioned Section 2-11.1(d), of the Miami-Dade Code on the following occasions: April 8, 2002, Item 7A, Page 7 of the Regular City Commission Meeting Minutes: A zoning amendment concerning property owned by Al Coletta. Page 14 of the Regular City Commission Meeting Minutes, Commissioner Dugger voted – yes, for approval of the ordinance. . . . . . . . . This action is in violation of Miami-Dade Code, Section 2-11.1(d), a second-degree misdemeanor . . . . Additionally, Commissioner Dugger is in violation of Section 2-11.1(i)(3), Miami- Dade County Conflict of Interest and Code of Ethics Ordinance. This Section required that candidates for County and municipal office must comply with the filing requirements, under Chapter 112, Florida State Statutes. This is a second-degree misdemeanor. . . . Section 2-11.1(d) of the Miami-Dade County Code, prohibits, in pertinent part, the following: Additionally, no person included in the term defined in subsection (b)(1) shall vote on or participate in any way in any matter presented to the Board of County Commissioners if said person has any of the following relationships with any of the persons or entities which would be or might be directly or indirectly affected by any action of the Board of County Commissioners: (i) officer, director, partner, of counsel, consultant, employee, fiduciary or beneficiary; or (ii) stockholder, bondholder, debtor, or creditor, if in any instance the transaction or matter would affect the person defined in subsection (b)(a) in a manner distinct from the manner in which it would affect the public generally. . . . Section 2-11.1(i)(3), of the Miami-Dade County Code, requires that candidates for County and municipal elective office meet the filing requirements of Chapter 112, Part III, Florida Statutes, “at the same time that candidate files qualifying papers.” Section 125.69, Florida Statutes, which provides procedures for the prosecution of county ordinances, states that they are to be prosecuted “in the same manner as misdemeanors are prosecuted.” On July 29, 2005, Mr. Dugger entered a plea of nolo contendere to Counts 2 and 8 of the Information, in case number F03-33076, both second-degree misdemeanor violations of Section 2-11.1 of the Miami-Dade County Code, and Section 125.69, Florida Statutes. (Stipulation of Fact). Mr. Dugger was adjudicated guilty of the violations alleged in Counts 2 and 8, and was ordered to pay $468.00 in fines and costs. Mr. Dugger was, therefore, adjudicated guilty of having voted on a matter in which he had a conflict of interest because the matter involved an individual to whom he was indebted; and of having failed to fully disclose liabilities on financial disclosure forms he was required to file pursuant to Florida law at the time he qualified to run for public office. Neither of the convictions directly involved Mr. Dugger’s practice as a CAM. Nor has the Department made such an argument. Instead, the Department presented expert testimony in support of its position that at least one of the convictions relates to Mr. Dugger’s ability to practice as a CAM. That testimony was convincing. All CAMs are involved in a fiduciary relationship with the associations they manage. It takes little expert testimony to support a finding that such a fiduciary relationship requires trust and integrity. CAMs must be trusted to handle association money, maintain the records of the association, and to deal on behalf of the association with potential and existing vendors. The association must be able to assume that a CAM will fully disclose any possible conflict the CAM may have with the association’s vendors. Mr. Dugger is responsible for billing, writing checks, paying insurance premiums, and maintaining a payment book for the Association. Paragraph 10 of the Management Agreement specifically provides that Timberlake “shall provide financial management services to the Association . . . .” Paragraph D(11)(a) authorizes Timberlake to “solicit and analyze bids for necessary insurance coverage.” Mr. Dugger has similar responsibilities with Vista Verde. Clearly, the Association must be able to trust that Mr. Dugger will carry out all these duties without having any conflict of interest. The Association must be able to assume that Mr. Dugger is acting in its best interest and not his own. In his defense as to the voting of interest conflict charge, Mr. Dugger, prior to the pertinent vote, made disclosure of his relationship with Mr. Coletta, the owner of the property which was the subject of the vote, to the attorney for the City of the Village. The Department failed to prove that Mr. Dugger did not make full disclosure. Mr. Dugger was advised that no conflict existed. Mr. Dugger cast his vote after receiving this advice. Subsequent to the vote, Mr. Dugger sought an opinion from the Miami-Dade County Commission on Ethics & Public Trust (hereinafter referred to as the “Commission”). The Commission, like the city attorney, opined in writing that no conflict of interest existed. Mr. Dugger entered his plea on the two charges in order to avoid the cost of litigation. The evidence, however, failed to prove why prosecutors agreed to accept a plea on only two of the eight counts. Count IV: Alleged Denial of Access to the Records of the Association. During 2003, Miryam Ruiz lived in Miramar Gardens Township and was a member of the Association. While she had been in arrears for 2001 and 2002, presumably in her association dues, she became current when she paid all outstanding dues in March 2003. On March 14, 2003, during normal business hours, Ms. Ruiz went to the office of Timberlake and requested that she be allowed to inspect certain records of the Association. She made her request verbally and in writing, leaving Petitioner’s Exhibit 13 with a Timberlake employee, apparently the receptionist, which listed the documents she wanted to inspect. She was told by the receptionist that she could not see the documents until she had made an appointment to do so. By letter dated Thursday, March 27, 2003, Ms. Ruiz was informed by Mr. Dugger’s wife, Rachel, that Ms. Ruiz could review the documents. She was also told that, “[i]f you would like, call us to make an appointment at your convenience.” On the morning of Monday, March 31, 2003, not having received Ms. Dugger’s March 27th letter, Ms. Ruiz sent a letter by facsimile to Timberlake stating that she would be at the office at 11:00 a.m. that morning to “pick up” the documents. When Ms. Ruiz arrived at the Timberlake office at 11:00 a.m. she was again told that she could not review the documents because she had no appointment. Ms. Ruiz left the office. Later that day, Ms. Ruiz sent a second facsimile letter addressed to Ms. Dugger. Ms. Ruiz ended the letter by informing Ms. Dugger that she would be at the office the next day, April 1, 2003, “for the inspection and copying of records at 9:30 a.m.” On April 1, 2003, Ms. Ruiz returned to the Timberlake office and was again told that the records were not available because no appointment had been made. Ms. Ruiz told the receptionist that she would return on Friday, April 4, 2003, at 9:30 a.m. to inspect the documents. In a letter to Ms. Dugger dated April 1, 2003, she stated that she was confirming the date and time. The evidence failed to prove whether the letter was received prior to April 4, 2003. When Ms. Ruiz arrived at the Timberlake office on April 4, 2003, she was again denied access to the documents and was told by Ms. Dugger that she had no appointment because the date and time suggested by Ms. Ruiz had not been confirmed by Timberlake. Ms. Ruiz left the office. The following day, April 5, 2003, Ms. Ruiz sent a letter by certified mail addressed to Mr. Dugger describing the events leading up to that moment and asking what it would take for her to be allowed to inspect the records. Mr. Dugger did not respond to this letter. In response to Ms. Ruiz’ April 5th letter, a letter dated April 22, 2003, was sent by Ms. Dugger. That letter indicated that the records would be available for inspection at 1:00 p.m. on Tuesday, May 6, 2003. The letter, which was postmarked May 2, 2003, ten days after the date of the letter, was not received by Ms. Ruiz prior to May 6th. Sometime during the month of May 2003, approximately two months after first attempting to review the records of the Association, Ms. Ruiz was finally allowed to inspect the records. Ms. Ruiz, without doubt, had the right to review the records of the Association she had requested. Pursuant to the Management Agreement, Mr. Dugger was required to collect, organize and maintain the records of the Association. The Management Agreement also required that Mr. Dugger was to assist the Board of Directors in their enforcement of the provisions of the “Association documents and rules and regulations ” Pursuant to Article X of the By-Laws of the Association, also quoted, supra, gives Association members the right to inspect and copy all Association documents The right to inspect association documents is not an unfettered one. In light of the duty and responsibility of a CAM to “maintain” records, it is not unreasonable for a CAM to set reasonable safeguards for a member’s review of those records. The Department did not produce evidence to refute the evidence presented by Mr. Dugger concerning the reasonableness of a CAM insisting on being present during the inspection of documents. The evidence also failed to prove that, given the fact that Mr. Dugger is the CAM for as many as 30 associations, he is not always available at his office to supervise a review of documents. The procedure followed with regard to reviews of the Association’s had been announced at an Association meeting. Members were told that anyone who wished to review records could contact the Timberlake office and make an appointment so Mr. Dugger could be present during an inspection, or that a copy of a document could be obtained upon payment for the document. It is clear that not all of the requests to Timberlake made by Ms. Ruiz were totally reasonable: (a) her first request on April 14, 2003, was without any notice; (b) her notice of March 31, 2003, gave only three hours notice; (c) her request for review on April 1, 2003, gave only one day notice; and (d) her request for review on April 4, 2003, gave only 3 days notice. While Ms. Ruiz eventually was allowed to review the documents, it took approximately two months after her initial request had been made. It is also clear that, although she did not always give reasonable notice for appointments she announced, Mr. Dugger (and his employees) could and should have done more to remedy the situation. Mr. Dugger first became aware of the request on March 14, 2003. It took 13 days to respond to that request. When Ms. Ruiz mailed a certified letter to Mr. Dugger dated April 5, 2003, it was not until May 2, almost a month later that a letter in response to that letter was post-marked. Based upon the foregoing, while neither Ms. Ruiz nor Mr. Dugger did much to ameliorate the situation, for at least part of the two months it took Ms. Ruiz to obtain access to the records of the Association, Mr. Dugger “denied” Ms. Ruiz access to the records of the Association. Count VI: Alleged Failure to Maintain Association Records. Pursuant to the Management Agreement entered into by Mr. Dugger with Miramar Gardens, at paragraph D(2), quoted, supra, Mr. Dugger agreed to collect, organize, and maintain all Association documents in the offices of Timberlake. Beginning in 2001, the minutes of meetings of the Association (held jointly with the meeting of Vista Verde) were usually taken by Claudette Brinson, president of the Association. On occasions, they were taken by others. Minutes taken by Ms. Brinson were written by hand and, after the meeting, were taken home with her. On some occasions, Ms. Brinson would ensure that her hand-written minutes were typed at various locations, including Mr. Dugger’s office. When typed at Mr. Dugger’s office, a copy was retained by Mr. Dugger and maintained with the records of the Association. Ms. Brinson’s testimony at hearing as to whether Mr. Dugger was given a copy of all minutes was in conflict. She initially testified that she had provided him with a copy of all minutes. When recalled by Mr. Dugger, she testified that on some occasions, when she did not have the minutes typed at Mr. Dugger’s office, while maintaining a copy at her home, she did not always provide him with a copy. While the latter testimony was more convincing and has been credited, the bottom line is that Mr. Dugger did not maintain a copy of the minutes from all meetings of the Association. At hearing, Mr. Dugger admitted that when he was served an Investigative Subpoena Duces Tecum issued by the Department on or about August 30, 2004, he realized that he did not have all the records the subpoena sought. In particular, Mr. Dugger did not have all of the documents requested in item number 5 of the subpoena: “[t]he minutes of all meetings of the board of directors and of the members of Miramar Gardens Townhouse Homeowners Association, Inc.” Mr. Dugger, therefore, contacted Ms. Brinson and asked her if she could provide a copy of the minutes of Association meetings that he did not have. She was not able to do so within the time Mr. Dugger had to respond to the subpoena. In a letter to the Department dated September 17, 2004, Mr. Dugger indicted the following with regard to the minutes requested in item number 5 of the subpoena: “The Minutes in our possession. Original minute meetings are in the hands of the Receiver, which were retained for his records. Some additional minutes are in the hands of Board members, which we will attempt to locate.” During calendar year 2002, minutes had been kept for meetings held during February, March, April, May, June, July, October, and December. During calendar year 2003, minutes had been kept for meetings held during January, February, March, May, June, July, August, September, October, and November. Finally, during calendar year 2004, minutes were kept for meetings held in January, February, March, April, July, August and September. Mr. Dugger at the time of responding to the Department’s subpoena did not have minutes for all of these meetings. For example, for 2002 he only had minutes for the meetings held in February, March, and June, and for 2003, he only had minutes for the meetings held in January and December. While Ms. Brinson adequately explained why she was not always able to provide a copy of meeting minutes to Mr. Dugger, Mr. Dugger did not provide an adequate explanation as to why he had not made sure that he obtained a copy of all minutes so that he could fulfill his obligation under the Management Agreement. No evidence was presented to suggest that Mr. Dugger’s failure to maintain all minutes was the result of bad faith or any intent on the part of Mr. Dugger to circumvent the rules of the Department or the requirements of the Management Agreement. Prior Discipline Against Mr. Dugger’s CAM License. Mr. Dugger’s CAM license was disciplined in DBPR Case Number 00-02226, pursuant to a Stipulation entered into by the Department and Mr. Dugger which was accepted by Final Order entered on April 9, 2001. The Stipulation provides that Mr. Dugger “neither admits or denies the . . . facts alleged in the Administrative Complaint ”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Mr. Dugger committed the violations described in this Recommended Order and imposing the following penalties: A stayed suspension of his license for six months, with the stay being lifted should Mr. Dugger be found to have committed any additional violation with regard to his CAM license within two years of the issuance of the final order in this case; An administrative fine in the amount of $1,500.00; Attendance at continuing education classes in records maintenance in an amount to be determined by the Department; and Payment of the costs of this matter. DONE AND ENTERED this 22nd day of January, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 22nd day of January, 2009. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Philip F. Monte, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 E. Gary Early, Esquire Messer, Caparello & Self, P.A. 2618 Centennial Place Tallahassee, Florida 32308 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact In the face of resistance to its standing, Petitioner presented no evidence. Accordingly, the record is devoid of any proof that a substantial number of its members are "substantially affected" by the challenged rule, that the subject matter of the rule is within the association's general scope of interest and activity, and that the relief requested is of a type appropriate for a trade association to receive on behalf of its members.
Findings Of Fact Counts Three and Four: Rose Mary Smith Dr. Keedy's examination of Rose Mary Smith On March 13, 1978, Rose Mary Smith, a married, heavy set, forty-six year old female employed as a computer control clerk in Key West, Florida, visited Dr. Christian Keedy, a neurosurgeon practicing in Miami, Florida, complaining of back problems which had persisted for over twenty years. Mrs. Smith told Dr. Keedy that her back went out frequently when she bent or turned slightly. Some radiation existed into her hip and left knee, but there was no radiation into her legs. Her pain was concentrated to the left of her midline with numbness and tingling in the left hip. Sitting for any extended period of time resulted in an aching and tingling sensation in her left hip and both lower extremities. Mrs. Smith further complained of being tired continually and of feeling fatigued when she awoke each morning. Upon examination of Mrs. Smith, Dr. Keedy noted that she was tender to deep pressure just to the left of the midline over the area L4-5 and L5-S1. He noted no noticeable muscle atrophy, no definite sensory loss, no evidence of bony change, no evidence of scoliosis, and no evidence of spondylolisthesis or spondylolysis. Her tender reflexes were active and equal, and x-rays of the lower back showed her inner spaces to be fairly well preserved. There was induration of the articulate facets at L4-5 and marked asymmetry of the articulating facets at L5-S1, the one on the right being on a sagittal plane while the one on the left was in a completely frontal plane. It was Dr. Keedy's opinion that Mrs. Smith's problem was caused by the facets at L5-S1, particularly centering on the left facet, which was at a ninety degree angle as compared to the relatively normal forty-five degree angle on the right side. Such a condition creates a slued type of movement in the back which frequently becomes symptomatic and produces back pain. Following his examination,Dr. Keedy recommended that Rose Mary Smith take an anti-inflammatory medication for two weeks which would be followed with a rhizotomy if no improvement was noted. Dr. Keedy next heard from Mrs. Smith on April 27, 1978, when she paid the remainder of her bill and sent a note stating she felt better. Based on his initial examination of Rose Mary Smith, Dr. Keedy did not at that time believe surgery was indicated. After April 27, 1978, Dr. Keedy never heard from Rose Mary Smith nor was he consulted by any physician concerning his examination of Mrs. Smith prior to any surgical procedure being performed. Dr. Gershanik's examination of Rose Mary Smith In March of 1979, Rose Mary Smith consulted the Respondent Gershanik regarding her continuing lower back problems. Her chief complaint centered on radicular pain which had increased over the previous seven month's. The pain radiated to the back, thigh, knee, calf, foot and big toe. She also complained of tingling, numbness and cramps, intractable pain, rigidity, increased weakness, inability to bend over and constipation. Additionally, Mrs. Smith informed the Respondent that she had suffered a back injury approximately ten years before, which resulted' in a long history of lumbosciatica which was no longer responding to rest, medication or heat. Respondent Gershanik performed a physical examination of the patient and wrote an office report dated March 15, 1979, which revealed the following findings: In relation to the cervical spine, the flexion was up to 30 degrees and the extension, 40 degrees; the right lateral rotation was 75 degrees, the left lateral rotation was 60 degrees with pain. The right lateral flexion was 20 degrees while the left lateral flexion was 15 degrees. In relation to the hands, the grip was six pounds on her right hand and ten on the left. Tender jerk reflex; bicep, two plus; brachial radialus, two plus. Also bilateral tricep, one plus, bilateral. In relation with the lower extremities, knee reflexes were decreased bilaterally more on the left side and ankle reflexes were decreased bilaterally to almost negative on both sides, with more evidence in the left. (See Transcript, Vol. 6 at 189-190 and Respondent's Exhibit 2) Additionally, the Respondent performed a Lasegue test which was 25-30 degrees on the left and 35-40 degrees on the right and the Bragard test which was two plus, bilaterally. Sensory functions were tested with a pinwheel which demonstrated decreased sensation in both legs which was more evident at both sides of the L5 and 51 nerve root. According to the Respondent, the patient was unable to walk on her heels or toes. Following the physical examination, the Respondent gave Mrs. Smith an informational sheet concerning back problems, prescribed Soma and physical therapy, and agreed to admit her to a hospital for additional tests and possible surgery. The Respondent Gershanik next encountered Mrs. Smith at DePoo Memorial Doctors' Hospital when she was admitted March 19, 1979. An admission history and physical examination form which was completed by the Respondent for the patient, indicated that her chief complaint was .... increased and intractable lumbosciatalgia, weakness which started again progressively and worst the last few months without improvement with conservative treatment". [See Petitioner's Exhibit 20(3)] As indicated by progress notes dated March 19, 1979, the Respondent Gershanik examined Mrs. Smith and noted no discernible change in her condition from his previous examination of March 15, 1979. The nurse's admission notes confirmed that upon admission to DePoo, Mrs. Smith complained of ". . . pain in the cervical spine and lumbosacral spine radiating down to both legs with quote emphasis placed on the left leg". [See Petitioner's Exhibit 20(80)] She was admitted to DePoo with a diagnosis of acute and intractable lumbosciatalgia and cervicobraqualgia." [See Petitioner's Exhibit 20 at (2) and (6)] The Respondent Gershanik recommended that the patient be given pain medication and physical therapy, including ultrasound, to see if she would respond to conservative treatment. When Mrs. Smith failed to respond to the conservative treatment prescribed, a cervical and lumbar myelogram was ordered and performed in conjunction with x-rays of the cervical spine. The myelogram film, which was first presented to the radiologist for interpretation on May 11, 1979, failed to reveal any demonstrative abnormalities. The x-rays of the chest, cervical spine and lumbar spine were entirely within normal limits according to the radiological report of John D. Kreinces, M.D., radiologist at DePoo Hospital, dated March 20, 1979. [See Petitioner's Exhibit 20(38)] Prior to the operation, the Respondent Gershanik apparently disagreed with Dr. Kreinces' interpretation of the x-rays and concluded that Mrs. Smith's cervical spine was abnormal in that an asymmetry was present at L5 and S1, and a degree of subluxation or partial dislocation existed at L5-S1, as did some degree of spondylolysis. [Petitioner's Exhibit 20(2)] Based on his belief that Mrs. Smith suffered from nerve root compression as indicated by his physical examination and interpretation of the spinal x-rays of the patient, the Respondent Gershanik recommended surgery. Prior to the surgical procedure, scheduled for March 26, 1979, the patient was cleared for surgery by an anesthetist at the hospital and her family physician, Dr. Herman Moore. Dr. Gershanik's surgical procedure On March 26, 1979, at approximately 8:44 a.m., a decompressive lumbar laminectomy, L5-S1, partial, L4 and S1, bilateral, lateral herniated nucleus pulposus L5-S1, left side, foraminotomy both levels and cauterization of enlarged tremendous venous plexus, both levels, was begun on Rose Mary Smith. [Petitioner's Exhibit 20(57)] The surgery was performed under magnification loops, with the patient in a prone position on a lamina frame. According to the surgery report dated March 27, 1979, the Respondent Gershanik made a vertical incision from L3 to 51. Abnormal movement was found at L5 and a laminectomy was performed at L5, partially at L4 and 51, bilaterally with preservation (complete) of the spinous process. Ligament was dissected and removed with a Kerrison ronguer. The laminas at L5, 51 and L4 were shaved and partially removed with a large ronguer and Kerrison ronguer. Later a very lateral disc was removed from the left side at L5-S1. A foraminotomy, both sides, bilaterally was performed to free up the nerves. [Petitioner's Exhibit 21(57)] When the Respondent was preparing to close, the anesthetist, Peter Carey, indicated that the patient's blood pressure was a little low. Anesthesia was halted at approximately the same time that the surgery was completed, 10:45 a.m. At approximately 10:55 a.m., the patient was administered Ephedrine Sulphate, a medication used to increase blood pressure by increasing cardiac output. After the patient failed to respond to the Ephedrine, Decadron, a steroid drug used to assist a patient who may be going into shock, was given at 11:30 a.m. At 12:00 p.m., Rose Mary Smith was turned over onto a stretcher. Almost immediately, her blood pressure dropped significantly. A second dose of Ephedrine, a Dopamine drip and Levophed were administered at 12:05, 12:20 and 12:25, p.m., respectively. Dr. Herman Moore, the patient's family physician, was called to DePoo around noon to consult with Dr. Gershanik concerning an emergency at the hospital. Upon his arrival, Dr. Moore, after assessing the situation, suggested that Mrs. Smith be given medication to raise her blood pressure, stated that her problem appeared to be cardiac-related, and left. At approximately 12:20 p.m. the patient's blood pressure became inaudible. The Respondent Gershanik and Peter Carey, the anesthetist, discussed the possible causes for the significant and sudden loss of blood pressure and began to eliminate possible causes for the condition. Carey's first hypothesis was that the patient had suffered a pulmonary embolism and ordered a blood gas analysis which showed excellent arterial-oxygen saturation. Also eliminated was myocardial infraction. The Respondent ordered a hemoglobin and hematic study which indicated the volume of blood in circulation. This latter test indicated that Mrs. Smith was bleeding internally and Dr. Gershanik ordered additional blood. The patient was taken from the operating room to the Intensive Care Unit at approximately 12:40 p.m., where her blood pressure could be read with a Doppler device. At approximately 1:00 p.m., Dr. Calleja, a specialist in internal medicine, examined Mrs. Smith in the recovery area, stated that she had. . . an acute anemia from some type of blood loss" and that there ". . . may have been internal vascular injury causing internal bleeding." (Transcript, Vol. 4 at 122) He suggested that a laparotomy be performed. Once Dr. Calleja diagnosed the patient's problem, he telephoned Dr. Lester, a general surgeon, for assistance. Dr. Lester told Dr. Calleja that he could not assist in the laparotomy, concurred in the diagnosis that the probable cause of the shock was an injury to a major vessel anterior to the vertebral column, probably the aorta, and suggested that Dr. Lazarus, the only vascular surgeon in the community, be contacted. 3/ Dr. Rainero, a general surgeon, was called at his home by Dr. Calleja between 2:00 p.m. and 2:30 p.m., to assist. At 2:40 p.m., Dr. Rainero arrived at DePoo, went straight to the operating room, where after scrubbing, began an exploratory laparotomy of the patient at 2:50 p.m. After clearing the abdomen of accumulated blood, Dr. Rainero discovered an area where a retroperitoneal hematoma had developed. A clamp was placed above this point at approximately 3:00 p.m., by Dr. Rainero, who then waited for Dr. Lazarus, who arrived shortly thereafter. 4/ Mrs. Smith was not heparinized prior to any clamps being placed on her aorta by Dr. Rainero. Dr. Lazarus' efforts to halt the patient's internal bleeding After the patient's peritoneal hematona was opened and evacuated by Dr. Lazarus, the area where the aorta was bleeding, which was lateral and posterior, was discovered. The area of the bleed was a cup or crescent-shaped defect in the posterior lateral wall of the vessel, approximately 1/2 to 1 centimeter in size. The wound was sharply demarcated, but toward the lateral wall of the vessel it became more ragged. It was located on the posterior left lateral surface of the distal aorta at the bifurcation of the left common iliac artery. Dr. Lazarus had never encountered this type of vessel damage before. He did not believe it was caused by either an aneurysm or any other vascular disease. The problem confronting Dr. Lazarus was how to close the defect, since it was partly composed of a hole with a piece of vessel wall missing rather than a clean tear. Following a consultation with Dr. Rainero, Dr. Lazarus elected to surgically remove the damaged left common iliac artery, oversew the arterial end of the incision and run a graft from the anterior surface of the aorta to the left common iliac artery. After completing this procedure, a palpable pulse existed in the aorta but was absent below the graft, which was caused by some sort of blockage. A Foley catheter was inserted in the patient's femoral artery and clot material was removed from the incision. The catheter was reinserted and run towards the patient's head. It ran into resistance at the area of the distal anastomosis. The tip of the catheter went through an interstice between sutures on the back wall of vessel due to a defect in the suture line at the graft. 5/ The original graft was removed and a new one inserted using the same hole in the aorta at the upper end and bypassing into the common femoral artery instead of the common iliac artery. At 10:45 p.m., the second procedure ended. During the course of both procedures performed by Dr. Lazarus, the patient received approximately 36 units of whole blood. 6/ Throughout both procedures, Mrs. Smith had neither an audible pulse for blood pressure. When Dr. Lazarus concluded the second operation, he noted that the patient had developed disseminating intravascular coagulopathy, probably as the result of the multiple transfusions she had received, and was oozing blood from all cut surfaces. She was returned to the Intensive Care Unit in very critical condition and was pronounced dead on March 27, 1979, at 9:45 am. Dr. Gershanik's diagnosis and justification for surgery, surgical procedure and postoperative diagnosis Based on Rose Mary Smith's complaints, set forth supra, and his examination of the patient, the Respondent Gershanik concluded that she suffered from nerve root compression, L5, 51, and a possible lateral disc, L5-S1. This was based in part on the existence of an acute, intense radicular pain involving both legs, with emphasis on the left leg, accompanied by tingling, numbness, cramps, motor weakness, inability to walk on heels and toes and changed reflexes. As noted by Dr. Aronson, the Department's expert witness, these symptoms ordinarily would not be relieved by; the removal of a lateral disc at L5-S1. However, some of the symptoms exhibited by the patient indicated nerve root impairment caused by a lateral disc. As summarized by Dr. Aronson, Mrs. Smith exhibited diffuse and contradictory complaints which, when considered in conjunction with a negative myelogram, failed to justify the surgical procedure performed only eleven days after the Respondent initially examined the patient and deviated from the acceptable and prevailing neurosurgical practice. Although the Respondent Gershanik testified that it was impossible for him to injure a major vessel due to the special technique he used when performing this type of surgery, the evidence indicates that the technique described by the Respondent was neither unusual nor did it eliminate the possibility of injury to a major vessel. The weight of credible evidence supports the conclusion that a cause-and-effect relationship exists between the surgery performed by the Respondent and the injury which occurred at the bifurcation of the aorta and the left common iliac artery during the operation. Such an injury is the major life-threatening complication of this particular surgery. Any surgeon who after performing this procedure is confronted with a patient in shock should presumptively diagnose an injury to a great vessel. 7/ When Rose Mary Smith's blood pressure failed to respond to the drugs administered to raise the same and eventually became inaudible, the Respondent failed to immediately recognize that the source of the problem was shock caused by internal vascular bleeding. 8/ That the Respondent failed to recognize or treat this major complication is demonstrated by his failure to immediately contact a vascular surgeon for assistance once the problem with Rose Mary Smith became evident. 9/ Instead, thee Respondent contacted a family physician, Dr. Moore, and some two hours after problems with her blood pressure and pulse had begun and one hour after they could no longer be detected, a specialist in internal medicine, Dr. Calleja, was contacted. Dr. Calleja, after consulting Dr. Lester, another surgeon, correctly diagnosed the patient's vascular injury and, at this point, meaningful procedures .were begun to attempt to save her life. Additionally, prior to the surgery, the Respondent made no arrangements to have a vascular or other surgeon present or otherwise available to assist in the event this major complication occurred. Accordingly, the Respondent's treatment of Rose Mary Smith following the lumbar laminectomy, deviated from acceptable and prevailing neurosurgical practice. Counts One and Two: Gary Sherertz Gary Sherertz's admission to the emergency room at the Florida Keys Memorial Hospital and subsequent treatment for lower back pain On August 21, 1977, Gary Sherertz, a twenty-year-old married truck driver, was involved in a single-vehicle automobile accident in the Florida Keys at which time he sustained a twisting injury to his lower back. He was taken to the emergency room at Florida Keys Memorial Hospital in Key West, Florida, where he was examined by Dr. Ronald Schwert, the emergency room physician. Dr. Schwert did a neurological evaluation of the patient and ordered x-rays. The examination took approximately ten minutes and included checking reflexes, motion and sensation in the lower extremities and ability of the patient to stand and walk. The patient was told by Dr. Schwert that, in his opinion, the x-rays of the lumbosacral spine showed "no essential pathology." [Petitioner's Exhibit 5 at 7] He diagnosed ". . . mild or severe muscle spasm of the lumbar area," [Petitioner's Exhibit 5 at 8], ordered medication and bedrest, and discharged the patient. The patient was taken to the discharge area by Patricia Johnson, a nurse, and was then returned to the emergency room for further examination by the Respondent. The Respondent's examination of the patient revealed a history of back pain radiating into both upper extremities as well as evidence of nerve changes to the lower extremities. As a result of this examination, the patient was readmitted to the hospital for conservative treatment including pelvic traction, ultrasound and analgesic medication. While at the hospital, Sherertz underwent a number of nerve blocks, none of which provided any significant relief of pain. After several days of conservative treatment that was not effective in relieving the patient's pain, a myelogram was performed by the Respondent. Dr. Kreinces, the radiologist at the hospital, and Dr. Aronson, the Petitioner's expert, both interpreted the film as negative. The Respondent's experts, Drs. Ortiz, Correa and Dujovny, all agreed that the myelogram was abnormal. Based on his interpretation of the myelogram, together with the patient's clinical signs and symptoms suggestive of neurological impairment and the patient's failure to respond to conservative treatment, the Respondent decided to operate on Sherertz. This decision was made approximately ten days after the patient's admission. Gary Sherertz's back surgery. On August 31, 1977, a decompressive lamihectomy bilateral, L5, partial at L4 and S1, disc excision and removal at L4-5 and L5-S1 (right side), and bilateral foraminectomy both levels, was performed on Gary Sherertz by the Respondent. The patient's diagnosis was lumbar spinal stenosis, subluxation S1 in L5, H.N.P. [herniated nucleus pulposus] L4-5, L5-S1. [Petitioner's Exhibit 3 at 104] The Respondent described the procedure he utilized on the patient as follows: With the patient under endotracheal anesthesia in the prone position with laminectomy frame, the patient was prepped with betadine and draped. A longitudinal incision was made from L3 to 51 which was carried down through subcutaneous tissues and fascia. The fascia was incised and the paraspinal muscles were decollated on both sides. Abnormal movement (Dandy sign +) was more evident at L5. Bilateral laminectomies were done L5, partial L4 and 51 with preservation on the spinal processes. There were almost no spaces between L5 and 51 laminas which were very thick. Dissection and removal was done with the big ronguer wide open. Kerrison shaving was done to narrow down the laminas. The' canal was found to be tight and dissection laborious. The bulging discs were removed L4-5 and L5-S1 right side. A foraminotomy was performed to free up the nerve roots on both sides and both levels. Enlarged and hypertrophic vein plexus was cauterized. The incisional wound was closed with 2-0 dexon for the fascia, 3-0 dexon for the subcutaneous tissues and 4-0 nylon for the skin. The patient was sent to the recovery room in good condition. (Petitioner's Exhibit 3 at 104) The Respondent's findings contained in the surgery report included: Spinal lower lumbar stenosis, narrowing lumbar canal; subluxation of S1 in L5; upon exposure of the dura, it was found to be right at level L4-5 and L5-S1 right side; Nerve roots L4 and L5 very hyperemic at these levels and compromised with big bulging discs which were removed; Cauterization of enlarged venous-lexus. id. The Respondent's justification for surgery on Sherertz Regarding this patient, all of the experts who testified differ in varying degrees concerning the diagnosis and surgical procedure performed. The pivotal issue, however, is what the Respondent believed to be the cause of Gary Sherertz's back problem and whether that diagnosis and surgical procedure deviated from acceptable medical standards. A significant problem in determining whether the Respondent's care and treatment of Gary Sherertz deviated from acceptable medical standards has been the lack of certainty that the myelogram films and x-rays in evidence are complete and fairly depict the conditions which confronted the Respondent prior to the operation. Florida Keys Memorial Hospital does not have the original hospital records, including progress notes, for this patient. Apparently, the originals have been removed from the hospital and court files and, as of this date, are unavailable for review by any of the parties or experts in this proceeding. 10/ Accordingly, the undersigned is unable to ascertain with any reasonable degree of certainty, that the Respondent's decision to perform surgery on Gary Sherertz, based on the records available to him at that time, deviated from acceptable medical standards. Count Five: Rebecca Glover Rebecca Glover's admission to Florida Keys Memorial Hospital On March 29, 1979, Rebecca Glover, a twenty-nine year-old, unmarried attorney, was involved in a serious automobile accident in Key West, Florida. Her father, Herbert F. Glover, was a passenger in the automobile which she was driving when they were struck by another car. Both Glover and her father were taken by ambulance to the emergency room at Florida Keys Memorial Hospital where she was initially examined and treated by Dr. Ronald Schwert, the emergency room physician, at 10:10 p.m. Dr. Schwert diagnosed a severe concussion due to the disoriented state of the patient. He established an airway, immobilized the neck, started an IV line, and called in Drs. Gershanik and Rainero for assistance. Dr. Gershanik was called due to the patient's marked neurologic deficit coupled with signs of a severe concussion at the time of admission. Dr. Raniero was called to treat the patient's chest and abdominal pathology. Dr. Calleja also responded and began to treat her respiratory problems which included a severely flailed chest from multiple fractured ribs and subcutaneous emphysema. The patient developed the subcutaneous emphysema from a blunt trauma she had experienced during the automobile accident. Prior to the time either Drs. Gershanik or Rainero arrived, Dr. Schwert ordered chest x-rays which confirmed extensive multiple rib fractures of the first through sixth ribs, bilaterally, and subcutaneous emphysema with no evidence of pneumothorax. Mrs. Glover remained in the emergency room from 10:00 p.m. until 12:00 midnight. During this period, the patient showed a marked improvement. Within one or two hours, her neurologic signs were normalized, she became calmer and while breathing quietly, no flailing of the chest was evident, although she frequently complained of difficulty breathing and wanted to sit up. Most importantly, she was able to respond to questions and act appropriately in response to verbal commands. During the time that the patient was in the emergency room, her condition, although extremely serious due to her multiple chest injuries, was stabilizing and improving. Upon her admission to the emergency room, Dr. Schwert had packed and controlled bleeding caused by a large deep wound on Glover's forehead which she had sustained in the accident. Cuts were also evident on her lip and both knees. None of these lacerations were life-threatening and were treated by Dr. Schwert in the emergency room prior to the arrival of either Dr. Gershanik or Rainero. The plastic repair of Glover's lacerations Shortly before midnight, the Respondent decided that it was necessary to repair the lacerations on Glover's forehead, lip and knees. Prior to this decision by the Respondent, Dr. Calleja and Mark Williams, chief respiratory therapist, had discussed a conservative course of treatment for Glover which included careful monitoring of blood gases and excluded intubation. However, once the decision was made by the Respondent to open, clean and repair Glover's forehead laceration, Calleja concurred in the decision to intubate and anesthetize the patient so she would not become agitated and flail her chest during this time-consuming and painful procedure. At approximately midnight, anesthesia was begun. The surgery report prepared by the Respondent on March 30, 1979, describes the procedure utilized as follows: When under endotracheal assistance, the patient's head was placed in the proper position. The skin was prepared with Betadine, Peroxide, large amounts of normal saline and then again with Betadine. Furthermore, beneath the detachment and lacerated skin it was irrigated and foreign bodies were removed. The area was outlined and towel sutured to strategic points. Later, formal draping of the patient was completed and the large lacerated wound 10 cm. on forehead and wide excision of traumatized edges was done. Afterwards, undermining of scalp with periosteal elevator to allow mobilization of scalp and for closure with advanced flat. The bone was visualized throught (sic) the inflicted wound and it had been inspected before visually and by palpation for possible fracture. Later, the wound was closed with 5-0 and 6-0 nylon. The lacerated wound of the lower lip was repaired with 6-0 nylon sutures. When we started to repair the lacerated wound of her right leg, the patient suddenly experienced cardiac arrest which was followed by extensive emphysema. CPR was done STAT with no results. The patient expired. (Petitioner's Exhibit 17, at App. p.18) The hospital records indicate that the patient went into cardiac arrest at 2:10 a.m., a little more than two hours after anesthesia was begun. Before any CPR was begun, Glover developed massive subcutaneous emphysema. Around 2:30 a.m., Dr. Schwert was called to surgery for a condition "gray". When he arrived, the Respondent and Dr. Beltranena, the anesthesiologist were present and were administering CPR. The patient was cyanotic and exhibited massive swelling of the head, upper chest and neck. 11/ She was pronounced dead at 2:45 a.m. Justification for the plastic repairs and procedure used during and subsequent to the operation In deciding to operate on a patient, the surgeon in charge, who is ultimately responsible for making the decision to operate, is required to weigh the possible benefits of surgery against the possible risks to the patient. In the case of Rebecca Glover, the benefits of this surgery, i.e., prevention of infection and lessening of possible scarring from a large forehead laceration, were minimal when compared to the risks of anesthetizing her while she exhibited bilateral flailed chest and evidence of subcutaneous emphysema. By definition, such a patient has an injury to major airways and is at risk of developing a pneumothorax or tension pneumothorax depending on treatment. While one of the accepted treatments for flailed chest is intubation when a patient is no longer able to exchange air, the intubation must be accompanied by appropriate support in order to avoid creating a tension pneumothorax which is a life-threatening condition. The accepted treatment for a patient with a flailed chest and subcutaneous emphysema who must be placed on a respirator, is the insertion of chest tubes into the pleural space by the surgeon to drain blood or air and re-expand the lung if a pneumothorax begins to develop. Prior to the insertion of chest tubes in such a patient, x-rays' should be ordered by the surgeon or anesthesiologist. No evidence was presented in this case to indicate that any x-rays of Glover were taken during surgery. Additionally, during the surgery it is necessary to take frequent arterial blood gas readings to check the patient's course under anesthesia and ensure that the lungs are properly oxygenating blood. There is no evidence in the record that any blood gases were ordered by Dr. Gershanik or Dr. Beltranena to monitor Glover during the time she was anesthetized. The procedure itself took an inordinate amount of time to perform, largely because of the decision by the Respondent to do a plastic repair to minimize scarring. This required the patient to remain anesthetized for over two hours, thus increasing the risk of developing a pneumothorax. Indeed, the repairs to Glover's knees were not even begun when she went into cardiac arrest. The autopsy performed on Glover indicated that her lungs were collapsed with minimal lung parenchyma identified. [Petitioner's Exhibit 11, App. I at 2] Dr. Aronson interpreted this finding as massive bilateral pneumothorax with total compression of the lungs, both sides, so that the patient had no way of oxygenating air. When this condition occurs, cardiac arrest and possibly death ensues. As stated previously, prior to surgery, it was noted that Glover had subcutaneous emphysema, multiple fractured ribs, bilaterally, and, accordingly, was in danger of developing a tension pneumothorax. To monitor her lungs to ensure that a tension pneumothorax was not developing, arterial blood gas readings were necessary. Without such tests, neither the Respondent nor the anesthesiologist had any accurate way of guarding against this condition developing and recognizing it once it did develop. When the patient went into cardiac arrest, chest tubes should have been inserted immediately to remove the air or blood in the pleural space. This would have instantaneously relieved the tension pneumothorax so that her lungs could be reinflated. The second major possible cause of the arrest, cardiac tamponade 13/ should have been dealt with after the chest tubes were inserted by tapping the pericardial sac and removing any blood. That neither the Respondent nor the other doctors attending Glover at Florida Keys Memorial Hospital recognized the possibility that this patient could develop tension pneumothorax is a reasonable inference from the records in this case and the actions of the Respondent as well as the other doctors who attempted to treat her. Nothing in the hospital records indicates that, prior to surgery, any of the doctors involved in the decision to intubate and anesthetize this patient recognized the life-threatening complications which could develop as a result of flailed chest and bilateral subcutaneous emphysema. Neither x-rays, blood gases, nor chest tubes were utilized during the procedure. When the patient went into cardiac arrest, neither the Respondent nor any doctor present recognized the likely cause of the arrest, and, accordingly, meaningful steps to immediately attempt to save the patient were never instituted. Dr. J. Parker Mickle, a neurosurgeon, testifying via deposition for the Petitioner noted his "amazement" and "astonishment" that no doctor who consulted with the Respondent prior to surgery advised against putting this woman to sleep in order to perform what was essentially an elective procedure. However, the fact that no other physician present objected to the Respondent's plan, neither excuses nor mitigates the responsibility of the Respondent toward this patient. The initial decision to perform the surgery, presumably because of outwardly stabilizing indicators, was the Respondent's. 14/ Finally, even assuming that Glover's condition was terminal upon admission, such a factor is not relevant to this proceeding. None of the doctors who treated her, including the Respondent, believed that she was terminal up until the time she expired. While she was alive, Glover was entitled to careful and competent medical care including proper evaluation and treatment for her recognized symptoms.
Recommendation The Respondent Gershanik came to the United States from Argentina in 1975 to practice medicine in his specialty, neurosurgery. He obtained his training in Argentina, which included a seven-year medical degree from the Rosario University School of Medicine, with specialty training in neurosurgery and a doctorate in forensic medicine. Following his specialty training, the Respondent became affiliated with the Acute General Surgery Hospital in Buenos Aires, Argentina, where he was an instructor in neurosurgery and published articles and conducted research in his specialty area. The Respondent became board certified in Argentina in 1971. Although he is not board certified in the United States, he is certified by the American Board of Neurological and Orthopaedic Surgeons. While practicing as a surgical resident at American Hospital, in Miami, Florida, in 1975, he took training at the University of Miami School of Medicine and later passed the examination of the Educational Council for Foreign Medical Graduates. In 1976, he passed the Florida State Board examination and became licensed in Florida. The Respondent moved to Key West, Florida, where he resided from 1976 until 1982. He presently resides in Miami, Florida, and until recently, was the Chief of the Department of Neurosurgery for the Clinica Associana Cubana, one of the largest Health Maintenance Organizations in South Florida. Additionally, he has been on the medical staff of Westchester General Hospital, Miami, Florida, since March 1982, with privileges in neurosurgery and neurology. In determining an appropriate penalty in this case, careful consideration has been given to the well-established principle that the state's power to revoke a license to practice a profession should be exercised cautiously and directed only toward those who, by their conduct, have forfeited their right based upon substantial causes. Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Pearl v. Florida Estate Commission, 394 So.2d 189 (Fla. 3d DCA 1981). In specific regard to the medical profession, the state's interest in protecting the public health and safety by ensuring competency is unquestioned. In return for the powers which the profession enjoys pursuant to Chapter 458, Florida Statutes,. the state has required that such powers be exercised in a reasonable and competent manner. In this case, the Petitioner demonstrated by clear and convincing evidence that the Respondent failed to treat two patients with the level of competence and professionalism required by law. The Respondent's testimony at the final hearing when considered in conjunction with what actually occurred during the two procedures, and his apparently well-intended belief that both patients were handled correctly, indicate that the Respondent lacks the requisite judgment and competence to continue to act as a licensed medical doctor in this state. Pauline v. Boer, 274 So.2d 1 (Fla. 1974). Therefore, based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner Board of Medical Examiners enter a Final Order finding the Respondent Ricardo O. Gershanik, M.D., not guilty of violating counts one, two and three of the Amended Administrative Complaint, guilty of violating counts four and five, and revoking his license. DONE and ENTERED this 6th day of May, 1983, in Tallahassee, Leon County, Florida. SHARYN L. SMITH, 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 6th day of May, 1983.
The Issue The issue is whether Mr. Lamb, violated Subsection 106.07(1), Florida Statutes (2008), on two occasions.
Findings Of Fact The Commission is the state agency responsible for enforcing the campaign laws of the state. Mr. Lamb was served requests for admissions pursuant to Rule 1.370 of the Florida Rules of Civil Procedure. He did not timely respond to the Commission's requests for admissions. In fact, at the time the Second Amended Motion for Summary Final Order was filed, Mr. Lamb still had not responded. It is found that Mr. Lamb is not going to respond. The effect of this failure is to cause the matter elucidated in the following paragraphs to become the facts of this case. On or about August 23, 2007, Florida Homestead Fair Tax.com PAC of Florida Committee (Committee) filed its Statement of Organization of Political Committee. On August 23, 2007, the Committee filed its Florida Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations with the Division of Elections designating Kenneth E. Lamb as its chairman and treasurer. On August 23, 2007, the Committee filed its Registered Agent Statement of Appointment with the Division of Elections designating Kenneth E. Lamb as its registered agent. Mr. Lamb received a letter dated August 28, 2007, from Kristi Reid Bronson acknowledging receipt of the statement of Organization and Appointment of Campaign Treasurer for Florida Homestead Fair Tax.com PAC of Florida. Mr. Lamb received a letter dated January 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008. Mr. Lamb received a letter dated January 18, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008. Mr. Lamb received a letter dated July 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2007 Q4 Campaign Treasurer's Report due on January 10, 2008. Mr. Lamb received a letter dated April 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008. Mr. Lamb received a letter dated April 25, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008. Mr. Lamb received a letter dated July 11, 2008, from Ms. Bronson notifying him that he failed to file the Committee's 2008 Q1 Campaign Treasurer's Report due on April 10, 2008. Mr. Lamb's failure to file the Committee's 2007 Q4 Campaign Treasurer's Reports was willful. Mr. Lamb's failure to file the Committee's 2008 Q1 Campaign Treasurer's Reports was willful. As of May 18, 2009, Mr. Lamb has not filed the Committee's 2007 Q4 Report. As of May 18, 2009, Mr. Lamb has not filed the Committee's 2008 Q1 Report. Mr. Lamb's willful failure to file the Committee's 2007 Q4 Campaign Treasurer's Report is a violation of Subsection 106.07(1), Florida Statutes. Mr. Lamb's willful failure to file the Committee's 2008 Q1 Campaign Treasurer's Report is a violation of Subsection 106.07(1), Florida Statutes.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact Stipulated facts In their prehearing stipulation, the parties stipulated to the following facts: Our Lady of Mercy Catholic Cemetery in Dade and Our Lady Queen of Heaven Catholic Cemetery in Broward were both owned and operated or dedicated by the Catholic Church prior to June 23, 1976. The Petitioner does not own sufficient land contiguous to the present existing cemetery operations to allow expansion. The title to the cemeteries presently operating in both Broward and Dade to-wit Our Lady of Mercy in Dade and Our Lady Queen of Heaven in Broward is in Archbishop Edward A. McCarthy and the Catholic Cemeteries is the corporation in which the Archbishop is the sole member and this corporation was formed for the expressed purpose of operating the cemeteries. The alternate sites proposed by the Catholic Cemeteries to-wit Our Lady of Mercy South approximately 115 acres in size and Our Lady Queen of Heaven West approximately 115 acres in size were neither owned, operated nor dedicated by the Catholic Church prior to June 23, 1976. The petitioner wishes to develop those alternate parcels of land for cemetery opera- tions and, if it does so, such projects will be operated in the same manner, under the same banner, and by the same staff as the existing cemetery operations of the Petitioner. The existing Catholic cemeteries and the proposed alternate sites, if approved, will provide full at-need and pre-need cemetery products and services, including ground, urn and mausoleum burial, vault and memorial sales and installation, opening and closing, etc., as well as appropriate Catholic rituals, as required by church law and teaching. The approximate gross dollar sales of pre-need and at-need services and merchandise for 1989 was 4 1/2 million dollars. There is about a 10% increase in gross dollar sales for each succeeding year over the previous year. Members of the Catholic faith are buried in virtually every cemetery in Dade and Broward counties, except those that limit burials to members of a particular religious faith. Forest Lawn South is a licensed for profit cemetery located at 21401 Southwest 64th Street, Fort Lauderdale, Florida (305)792-9360, is approximately six (6) to seven (7) miles east of the proposed Broward County expansion and approximately nine (9) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. Pinelawn Cemetery is a licensed for profit cemetery located at 13900 Southwest 117th Avenue, Miami, Florida (305)446-2922, is approximately five (5) miles east of the proposed Dade County expansion and approxi- mately ten (10) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. Woodlawn Park South is a licensed for profit cemetery located at 11600 Southwest 112th Street, Miami, Florida (305)238-3672, is approximately five (5) miles northeast of the proposed Dade County expansion and approximately eleven (11) miles driving distance. Said cemetery has in the past and presently is accepting Roman Catholics for burial. It costs a minimum of $459,647.00 annually to maintain the developed acreage at both Our Lady of Mercy Cemetery and Our Lady Queen of Heaven Cemetery. At the time of purchase of Our Lady of Mercy, the purchase was for 256 acres and in 1972, 128 acres were sold leaving a 128 acre cemetery of which 61 acres remain undeveloped. Our Lady Queen of Heaven Cemetery in Broward County was 120 acres in size of which 65 acres remain undeveloped. The approximate distance between the existing cemetery Our Lady of Mercy in Dade and Our Lady Queen of Heaven in Broward is approximately 20 miles. The distance between each of the existing cemeteries and the proposed alternate sites on a straight line is approx- imately 10 miles. The distance, driving by car, using the shortest reasonable route, is 17.5 miles between Our Lady of Mercy and the proposed South Dade site, and 16.3 miles between Our Lady Queen of Heaven and its proposed Davie (Broward) site. The Archdiocese of Miami covers all of Dade, Broward and Monroe Counties and the Archdiocese considers the area of service to cover the entire Archdiocese. The Archdiocese of Miami by and through its agent Catholic Cemeteries has not applied for a license for either of the proposed alternate sites. Lakeside Memorial Park, a private commercial cemetery restricted to Jewish burials is licensed by the Division of Finance, Department of Banking and Finance and is not operated, owned or controlled by any church or synagogue. Woodlawn Park, an old established private, commercial licensed cemetery in Miami, desired to expand to a separate location more than ten (10) miles away. A separate license to operate that extension cemetery known as Woodlawn South was issued. At the time of licensure of Woodlawn South, a separate corporation from Woodlawn Park, the majority of stock of both corporations was held by the Sharp family. However, the minority stockholders were different. The holding company owning Miami Memorial Park, Flagler Memorial Park and Dade Memorial Park was issued a separate license for its expansion cemetery known as Dade South Memorial Park. None of these cemeteries are owned, operated or controlled by churches or synagogues. There are existing, unlicensed church cemeteries which are exempt under Sec. 497.003, F.S. If such expansions of cemeteries grandfathered pursuant to Sec. 497.004, F.S., have occurred, the Department would not have required these expansions to obtain a license if such expansions were on contiguous property separated by no more than a road. However, it is the established and enforced policy of the Department of Banking and Finance, Division of Finance, to require separate application and proof of need for each proposed cemetery site which is not contiguous to an existing licensed cemetery. In determining need, the Department compares the number of available spaces with the projected burials over a thirty year period. The Memorial Sunset Park case is on appeal to the First District Court of Appeal (Tallahassee). The issue of whether there is a need for these alternate parcels pursuant to Sec. 497.006 is not an issue in this case. The Catholic Cemeteries has not applied for a license and, in fact, takes the position that it is a violation of the religion clauses to require it to apply for such an application and that its alternate parcels are exempt from regulation. Petitioner acknowledges that should Petitioner in the future file an application for license, thus requiring a showing of need, said proceeding will be a de novo hearing. Additional facts established at hearing. South Dade Palms Memorial Park in Dade County, which operates Palms Memorial Park, provides for the burial of persons of all faiths, including those of the Roman Catholic faith. The rites of the Roman Catholic Church are conducted both on the cemetery grounds and in the mausoleum chapel when appropriate. The cemetery has in the past and presently is accepting Roman Catholics for burial, and will continue to do so in the future. Memorial Sales, Inc., which operates Miami Memorial Park, Flagler Memorial Park, Dade Memorial Park, and Dade South Memorial Park (which is 9.5 driving miles from the Dade Alternate Parcel) provides for the burial of persons of all faiths, including those of the Roman Catholic faith. Each of these cemeteries has in the past and presently are accepting Roman Catholics for burial, and will continue to do so in the future. All rites of the Roman Catholic Church may be performed at graveside or at any structure available on the cemeteries for such purposes. The Department of Banking and Finance, through its Division of Finance, has inspected the cemeteries known as Our Lady of Mercy and Our Lady Queen of Heaven. The inspection revealed that the cemeteries are maintained in immaculate condition by Catholic Cemeteries, Inc. Catholic Cemeteries, Inc., possesses the only cemeteries in Dade and Broward Counties that exclusively furnish burial services to Catholics. Only persons of the Catholic faith and their families are buried in cemeteries operated by Catholic Cemeteries, Inc. Catholic Cemeteries, Inc., previously engaged an independent contractor, E.C. Wesner and Associates, Inc., of Margate, Florida, to sell pre- need cemetery burial rights and merchandise for the existing cemeteries operated by Petitioner. The authority and personal responsibility of Archbishop McCarthy for the Catholic Cemeteries are set by the Code of Canon Law, which is promulgated under the authority of the Pope. The Archbishop is personally charged with maintaining, under Church law, the appropriate norms on the discipline to be observed in cemeteries, especially with regard to protecting and fostering their sacred character. 3/ In the cemeteries operated by Catholic Cemeteries, Inc., religious services are frequently held at the grave sites, and all of the cemeteries have altars and religious shrines located throughout the cemetery grounds where members of the Catholic Church come to pray seven days a week. Additionally, the cemeteries celebrate Catholic Mass on the premises each year during Memorial Day and All Souls' Day and on other significant days in the liturgical life of the Catholic Church. Catholic Cemeteries, Inc., does not sell cemetery lots. Rather, Catholic Cemeteries, Inc., sells licenses for entombment. Because of the important role of the cemeteries in the Roman Catholic religion, the availability of those licenses is limited to Members of the Catholic Church and their family members. Pursuant to the Code of Canon Law, Catholic cemeteries are sacred places to be used for worship and burial of members of the Roman Catholic Church. Such services are conducted according to the official rites of the Church. The Catholic cemetery, like the parish church, is an important part of Catholic life and religious practice. Catholic Cemeteries, Inc., is a religious institution and constitutes an integral part of the religious mission of the Catholic Church. The religious practices and beliefs of Petitioner are of great importance to Petitioner and should be accorded the utmost respect. According to Guidelines for Funeral Rites in the Catholic Church (hereinafter "Guidelines"), "the preferred place for the burial of Catholics is a Catholic cemetery." However, there are at least four "circumstances [which] have for some time permitted burial of Catholics in a non-Catholic cemetery even where Catholic cemeteries are available. . . . Other circumstances of a pastoral nature [justifying the burial of Catholics in a non-Catholic cemetery] may exist in various areas of the country." Accordingly, it is not impermissible for Catholics to be buried in non-Catholic cemeteries, provided the individual grave site has been appropriately blessed. This flexibility by the Catholic Church in accommodating parishioners is evidenced by the stipulated fact that members of the Catholic faith are buried in virtually every cemetery in Dade and Broward Counties, except those that limit burials to members of a particular religious faith. The Petitioner has previously attempted to challenge the constitutionality of Chapter 497, Florida Statutes, in a federal court proceeding. That challenge was dismissed for lack of standing.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Declaratory Statement on the grounds that the issues raised by the petition are inappropriate for disposition in a declaratory statement proceeding under Section 120.565, Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 14th day of October 1991. MICHAEL M. PARRISH 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 14th day of October 1991.
