Findings Of Fact Robert W. Barnard was initially issued a Class "D" security guard license on May 12, 1986, by the Florida Department of State, Division of Licensing. At the time of licensure the agency was aware that Barnard had been found guilty of the felony of aggravated assault by a jury verdict, but that adjudication of guilt was withheld and he was placed on probation for five years, on September 3, 1974. (Exhibit #1, Respondent's Memorandum in Response to Petition. Effective October 1, 1986, the legislature added the following to Chapter 493, F.S., relating to licensing for investigative and patrol services: 493.319 Grounds for disciplinary action.-- * * * (1) The following constitutes grounds for which disciplinary action specified in subsection (2) may be taken: * * * (p) The department shall deny an applicant or revoke a license when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of 10 years has expired: * * * Chapter 86-193, Laws of Fla. This provision was renumbered and was amended in 1987, as follows: (3) Notwithstanding the provisions of paragraph (1)(c) and subsection (2), the department shall deny an application or revoke a license when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of 10 years has expired. A conviction based on a plea of nolo contendere shall create a presumption of guilt to the underlying criminal charges, and the department shall allow the person being disciplined to present any evidence relevant to the underlying charges and the circumstances surrounding his plea. Chapter 87-274, Laws of Fla. The agency issued a renewal certificate to Robert Barnard on March 17, 1988. (Exhibit #1, Respondent's Memorandum in Response to Petition) On September 19, 1989, the Department of State, Division of Licensing issued its Administrative Complaint, Case #89-01377, alleging that Robert W. Barnard's guard license should be revoked, based on his violation of Section 493.319(3), F.S.. Count I of the complaint alleges, "On September 3, 1974, Respondent was found guilty of one felony count of aggravated assault in Orange County, Florida." No other convictions or violations were alleged. Through counsel, Robert Barnard requested a formal hearing in response to the complaint. On November 1, 1989, Department of State Assistant General Counsel, Henri C. Cawthon, wrote to Richard Wallsh, Barnard's attorney, stating that it did not appear that material facts were in dispute and that an informal hearing would be more appropriate. The letter provided, in pertinent part: ... Because the Division will stipulate to the factual allegations in your petition, the only issue is a legal one: does Section 493.319(3), Florida Statutes (1987), require revocation when a licensee had adjudication withheld on a felony over ten years ago. It can also be stipulated that Mr. Barnard was licensed in spite of his criminal record, and that the Division is applying the statute retroactively. * * * (Attachment to Petition for Fees and Costs) On November 3, 1989, Robert Barnard petitioned for an informal hearing based on Mr. Cawthon's letter. On November 30, 1989, Robert Barnard filed his "suggestion of sealing of record", stating that on November 8, 1989, the ninth Judicial Circuit Court, in and for Orange County, entered its order sealing the pertinent criminal records pursuant to Section 943.058, F.S. and Fla. R. Criminal Procedure 3.692. (Attachment to Petition for Fees and Costs) Counsel for the agency claims that he had informed Petitioner's counsel that sealing the criminal record would result in dismissal of the administrative complaint, although the agency was under no obligation to inform Petitioner of this option. (Memorandum of Law in Response to Petition) On December 11, 1989, in a letter from Assistant General Counsel, Henri Cawthon, to Richard Wallsh, the agency informed Robert Barnard that, based on the order sealing records, the administrative complaint was being withdrawn. The informal hearing scheduled for December 19, 1989, was cancelled. Robert W. Barnard is a "prevailing small business party", as defined in Section 57.111(3)(c) and (d), F.S. (parties' Stipulation of Facts). The agency was not a "nominal party" as provided in Section 57.111(4)(d), F.S. (parties' Stipulation of Facts) In successfully defending the administrative complaint, Robert Barnard incurred reasonable attorneys fees and costs totalling $1,527.07. (parties' Stipulation of Facts) In successfully pursuing fees and costs, Robert Barnard incurred additional reasonable fees and costs in the amount of $1,281.53, for a total of $2,808.60.
Recommendation Based on the foregoing, it is hereby, ORDERED: That the Department of State, Division of Licensing pay Robert Barnard's attorney fees and costs in the amount of $2,808.60. DONE AND ORDERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 3rd day of July, 1990. COPIES FURNISHED: Richard I. Wallsh, Esquire 2699 Lee Road, Suite 505 Winter Park, FL 32789 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250
The Issue The issue for determination is whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in Division Of Administrative Hearings Case No. 87-5413; and whether, in the absence of such substantial justification, Petitioner is entitled to an award ofattorneys' fees and costs pursuant to Section 57.111, Florida Statutes, in connection with that previous administrative proceeding.
Findings Of Fact Petitioner is Mircea Albin Morariu, M.D. Respondent is the Department of Professional Regulation, the agency charged with regulation of physicians in the State of Florida. The parties stipulated that Petitioner is a resident of the State of Florida; that Petitioner is a "small business party"; and that there is no dispute as to the correctness or amount of fees and costs requested by Petitioner, the $15,000 maximum allowed under provisions of Section 57.111, Florida Statutes. Petitioner is a "prevailing small business party" with regard to Division Of Administrative Hearings Case No. 87-5413, because he was found to have committed only one of the four alleged violations set forth in the administrative complaint in that case, failure to maintain written records justifying the course of the patient's treatment. No appeal from the final order entered in Division Of Administrative Hearings Case No. 87-5413 has been taken and the time for filing such an appeal has expired. Respondent initiated administrative proceedingsagainst Petitioner in Division Of Administrative Hearings Case No. 87-5413 as the result of a complaint lodged with Respondent in September of 1986 by a former patient of Petitioner. The complainant, afflicted with long standing paralysis of one side of her body, had paid Petitioner $5,000 for functional electrical stimulation treatment of her paralyzed limbs and had not achieved the level of recovery which she felt had been promised to her by Petitioner; namely, that her paralyzed arm movement would improve by 25 percent and her paralyzed leg movement would improve by 50 percent. The complainant alleged that her condition had worsened as a result of the treatment. Following receipt of the patient's complaint, Respondent undertook an investigation. In that process, an investigator employed by Respondent interviewed the complainant, her husband and Petitioner. The investigator obtained the complainant's medical records and correspondence from Petitioner, as well as prior and subsequent medical records from complainant's doctors in the state of Indiana. This entire report was submitted to a board certified neurologist, Dr. Victor B. Robert, for an expert opinion as to the standard of medical care rendered by Petitioner. In expressing his expert opinion, Dr. Robert stated that he "was not familiar with this therapeutic modality and the records available do not provide a description or a rationality" for the treatment accorded the complainant by Petitioner. Robert also opined that the complainant's motor impairment was permanentand that such "neurological deficit cannot be improved by any therapeutic modality known to medical science." Robert further stated that it was misleading as well as unethical to make any promises regarding significant improvement in a patient with such a long standing neurological deficit; that Petitioner's standard of care would be subject to question if the complainant's allegations were true; that the complainant underwent several unnecessary diagnostic procedures; and that there could exist a pattern of abuse by Petitioner calling for further investigation. Dr. Robert's testimony was not credited at the final hearing in lieu of other more persuasive expert testimony. Respondent's entire investigative file, consisting of the affidavits of the patient and her husband, Petitioner's statements, the complainant's medical records and Dr. Robert's expert medical opinion, was provided to the members of a probable cause panel of the Board of Medicine several weeks in advance of the panel's meeting on August 21, 1987. At that meeting, the panel, after review and discussion of the materials provided them, determined that probable cause existed sufficient to support the filing of an administrative complaint against Petitioner. The administrative complaint was filed against Petitioner on August 26, 1987, as a result of the panel's probable cause finding. The administrative complaint contained four counts of alleged misconduct by Petitioner. Count I charged Petitioner with violation of Section 458.331(1)(t), Florida Statutes, through gross or repeated malpractice or failure to practice medicine withlevel of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Count II charged Petitioner with making deceptive, untrue, or fraudulent representations in the practice of medicine, a violation of Section 458.331(1)(k), Florida Statutes. Count III charged Petitioner with exercising influence on a patient for financial gain, a violation of Section of 458.331(1)(o), Florida Statutes. Count IV of the complaint contained the charge which Petitioner was later found to have committed; namely his failure to maintain written medical records justifying the course of medical treatment accorded the complainant, a violation of Section 458.331(n), Florida Statutes.
Findings Of Fact Petitioner was employed by the American Legion Post No. 4 on March 17, 1967 and remained so employed through November 15, 1972. During this period, American Legion Post No. 4 was under contract with the Polk County Tax Collector to sell automobile tags, hunting and fishing licenses, boat registrations, etc., as an agent of the Tax Collector; and to remit funds so collected to the Tax Collector. Although these collections were remitted to the Tax Collector, in many instances checks from American Legion Post No. 4 were made payable to the Department of Motor Vehicles. The contract between the Tax Collector and American Legion Post No. 4 was a five year contract which was renewed for an additional five years on June 1, 1972. At this time, Petitioner was the manager of the tax collection agency run by American Legion Post No. 4. Irregularities in the operation of this tag agency led to an FBI investigation which culminated in the Tax Collector cancelling the contract with American Legion Post No. 4 on November 15, 1972. Effective November 16, 1972, the former employees at the American Legion tag agency, including Petitioner, were employed by the Polk County Tax Collector and enrolled in the Florida Retirement System (FRS). While employed by American Legion Post No. 4, neither Petitioner, nor her employer, contributed to a retirement system; and Petitioner was not entitled to leave benefits prescribed for state or county employees.
Recommendation It is recommended that the Petition of Betty Lou Brown for retirement credit for the period 1967 through 1972 while she was employed by the American Legion Post No. 4 be denied. RECOMMENDED this 6th day of January, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1992. COPIES FURNISHED: Betty Lou Brown 2290 South Hunt Point Crystal River, FL 32629 Larry D. Scott, Esquire Division of Retirement 2639 North Monroe Street Cedars Executive Center Building C Tallahassee, FL 32399-1560 A. J. McMullian III Director Division of Retirement 2639 North Monroe Street Cedars Executive Center Building C Tallahassee, FL 32399-1560 John A. Pieno Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The issues are whether Petitioner's Petition for Relief is untimely, and if not, whether Respondent committed an unlawful employment act against Petitioner contrary to Section 760.10, Florida Statutes.
Findings Of Fact S.M.A.R.T. is a company that provides mechanics, electricians, avionics inspectors, sheet metal laborers, and other technical employees to aircraft maintenance and repair companies on a temporary basis. In 1996, S.M.A.R.T. supplied Respondent with temporary contract laborers at Respondent's aircraft maintenance facility in Lake City, Florida. For example, S.M.A.R.T. supplied Respondent with approximately 25 percent of its 450 mechanics. Respondent did not maintain personnel files or conduct performance evaluations on S.M.A.R.T.'s contract laborers. Respondent provided S.M.A.R.T. with the number of man-hours that contract laborers worked so that S.M.A.R.T. could pay its employees. In 1996, Petitioner worked for S.M.A.R.T. as a contract laborer at Respondent's Lake City facility. Petitioner's work as a parts researcher required him to make sure that Respondent's customers, owners and operators of aircraft, had the right parts for their aircraft. On March 28, 1996, S.M.A.R.T. terminated Petitioner's employment due to a lack of work at Respondent's Lake City facility. Being laid off from a contract job as a parts researcher at a specific site was not unusual when an aircraft owner or operator stopped sending planes to the facility and the temporary labor company had no other work available for its employee. After being laid off by S.M.A.R.T., Petitioner was unemployed for a time. In November 1996, Kitty Hawk Air Cargo (Kitty Hawk) was Respondent's customer at the Lake City facility. Pursuant to a contract between Respondent and Kitty Hawk, some of Kitty Hawk's aircraft were being changed into freighters. Kitty Hawk had a separate contract with Allen Aircraft Radio Corporation (AAR) for customer-supplied parts. Under the contract, AAR acted as a parts vendor and supplied Kitty Hawk with parts researchers. Respondent did not have a role in Kitty Hawk's choice of AAR as a supplier of parts. Sometime after he was laid-off by S.M.A.R.T., Petitioner applied for employment with AAR as a parts researcher. Petitioner had an interview with AAR for a job at Respondent's Lake City facility. After the interview, Petitioner was under the impression that AAR had hired him for that job. Petitioner subsequently learned that he did not have a job with AAR. AAR never told Petitioner why he was not hired. Petitioner did not know the name, age, or qualifications of the person that AAR hired for the position at issue here. Petitioner did not know whether AAR had hired anyone for the position he was seeking. AAR's contract with Kitty Hawk terminated in 1996 except for aircraft then in Respondent's facility. The last of Kitty Hawk's aircraft departed Respondent's facility in March 1997. At that time, any employees of AAR at the Lake City facility would have either been laid off or transferred to another AAR job site. Respondent hired Dick Perkins on July 20, 1995, as a Manager of A & P Mechanics. Since that time, AAR has promoted Mr. Perkins to Director of Maintenance. Mr. Perkins had no involvement with AAR when it was working on Kitty Hawk's aircraft at the Lake City facility. Mr. Perkins had no responsibility over the Kitty Hawk contract in 1996. Petitioner did not personally overhear Mr. Perkins make a statement about him. Rather, Petitioner relies on statements allegedly made by Mr. Perkins, overheard by Doug Yormick, repeated to Tom Welcome, then relayed to Petitioner. At times relevant to this case, Mr. Yormick and Mr. Welcome were employees of S.M.A.R.T. Competent evidence indicates as follows: (a) Mr. Perkins does not know Petitioner; (b) Mr. Perkins never made a statement to anyone that he did not want that "old son-of-a-bitch" working on Respondent's property; (c) Mr. Perkins never made any statement relating to Petitioner's age; (d) Mr. Perkins never talked with anyone at AAR regarding the person AAR would hire as a parts researcher; (e) Mr. Perkins never talked with Keith Wild/Wilder, Bob Sorrentino, or Bob Sonne/Sonner at AAR. After November 19, 1999, Petitioner worked for several other companies, including but not limited to, Piping Design Systems in Orlando, Florida, and a company in Mexico.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
Findings Of Fact Based upon the joint stipulation of counsel and the pleadings filed in this cause, the following findings of fact are determined: Government Service Supply Corporation (GSSC) was a Florida corporation engaged in the business of supplying federal agencies with office supplies and related items. It was wholly owned by Krista Peterson. On an undisclosed date, Krista Peterson incorporated Aerotek Resources Corporation in the State of Virginia, and that entity became involved in supplying agencies in the State of Florida with general office supplies and computer equipment. Because an unrelated company claimed that the name "Aerotek" infringed on its trademark, on an undisclosed date, Aerotek Resources Corporation changed its name to Tekresources Services Corporation, the petitioner in this cause. David Peterson was formerly the vice-president of GSSC. His relationship to Krista Peterson, if any, is not of record. During the period from July 1, 1991, to November 30, 1993, David Peterson used United States General Services Administration (GSA) supplier contract numbers without authorization. He concealed the lack of authorization to use the numbers by making representations to government purchasing agents that he was authorized to use the GSA supplier numbers. On August 9, 1994, the United States Attorney for the Northern District of Florida filed an information charging David Peterson and GSSC with making a false statement in violation of Title 18, United States Code, Section 1001, a public entity crime. Thereafter, GSSC and Peterson pled guilty to the charge. Judgments of conviction were rendered by the United States District Court for the Northern District of Florida on November 4, 1994. As required by law, on June 12, 1995, Aerotek Resource Corporation made timely notification to respondent, Department of Management Services (DMS), and provided details of the convictions. After conducting an investigation, on July 26, 1996, DMS gave its notice of intent to place petitioner on the convicted vendor list on the theory that petitioner was "related" to GSSC through Krista Peterson's ownership of both corporations. Placement on the list forbids petitioner from doing business with the State of Florida. In mitigation, the parties have agreed that the federal government suffered no loss as a result of these illicit actions, and there was no intent to cause any loss or to sell or provide inferior products to the government. In addition, David Peterson paid a $16,000 fine, petitioner fully cooperated with both the federal government and the DMS in their respective investigations, and petitioner promptly notified DMS of the convictions. Finally, procedures have been implemented which are designed to prevent the recurrence of this conduct. Given these mitigating factors, the parties have agreed that it is not in the public interest to place petitioner on the convicted vendor list. Therefore, the petition should be approved.
The Issue The issues to be determined in this proceeding are whether Respondent's actions are exempt from the provisions of chapter 474, Florida Statutes, pursuant to section 474.203(5), and if not, whether Respondent violated section 474.214(1)(ee), Florida Statutes (2008). If Respondent's actions are not exempt and violate section 474.214(1)(ee), then what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of veterinary medicine pursuant to section 20.165 and chapters 455 and 474, Florida Statutes. Respondent is and has been, at all times material to this Administrative Complaint, licensed to practice veterinary medicine in the State of Florida, having been issued license number VM 8029. Respondent's company, Equitransfer, LLC, is a limited liability company in the state of Florida. Equitransfer is involved with performing embryo transfers in recipient mares. Dr. Davila owned horses #331, #645, and T14. These horses died. Horse #645 had a foal out on September 16, 2009, and horses #331 and T14 had embryo placements which had not been birthed at the time of the horses' deaths. There are records of some sort that were requested from and turned over to the Department by Dr. Davila. Included is a document entitled "Verification of Completeness of Records" (Verification of Completeness form), which is a form on Department letterhead with blanks to be completed with the relevant information. This document as completed and received with the documents states the following: I, Jose R. Davila, DVM am the official custodian of patient records from recipient mares under Frances Ramirez. My title is Owner/President Equitransfer LLC. My employer's address is: PO Box 770, Summerfield FL 34492 (352)307-0944. I hereby verify that the I have searched the patient records maintained at Equitransfer, LLC and have determined that the attached records consisting of 1203 pages are true and correct copies of the patient records as requested pursuant to subpoena No. (left blank). The Verification of Completeness does not indicate that the records are for horses #645, #331 or T14, and does not state that the records were made at or near the time of the occurrence of the matters set forth, or from information kept in the course of regularly conducted activity. The Verification of Completeness form also does not state that the records were made as a regular practice in regularly conducted activity. The Verification of Completeness indicates that there are 1203 pages of records. The records submitted at hearing consist of approximately 955 pages. Moreover, the documents have Bates stamps on the bottom right hand corner, but no one could state who put the Bates-stamped numbers on the documents or why the documents were not in Bate-stamp order. Finally, while Erin Cameron testified that she was present when the records were received, she could not testify that the records presented at hearing consisted of all of the records provided by Dr. Davila. Dr. Davila stipulated that the documents in Petitioner's Exhibit 3 did not contain the items enumerated as required medical records in the Administrative Complaint. In other words, the documents did not constitute medical records under chapter 474.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Board of Veterinary Medicine enter a final order dismissing the charges in the Amended Administrative Complaint. DONE AND ENTERED this 16th day of June, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2011.
The Issue The issue is whether the Respondent violated Subsections 458.331(1)(1), (n), (q), and (t), Florida Statutes, as alleged in the administrative complaint.
Findings Of Fact A. BACKGROUND Dr. Song is a licensed physician in the State of Florida, having been issued license number ME 0033410, and was so licensed at all times material to this proceeding. Dr. Song is a Board certified member of obstetrics and gynecology. Dr. Song is of Korean origin and was naturalized as an American citizen in 1978. He was graduated from Seoul Catholic Medical College in Seoul, South Korea, on February 16, 1963. From 1963 to 1967, he served in the South Korean Army as a medical officer. He interned at Howard University Medical School, Washington, D.C. for one year. He was a surgical resident at St. Peters General Hospital, New Brunswick, New Jersey. He changed his specialty from general surgery, to a residency in obstetrics and gynecology at Allentown Hospital from 1969 to 1972. He worked as an emergency room physician at Holy Redeemer Hospital, Jenkintown, Pennsylvania from October 1972 until August, 1974. He joined the U.S. Navy on September 1, 1974. He was transferred to Naval Regional Medical Center, Orlando, Florida, where he served from August 1976 until September, 1981, and received an honorable discharge from the United States Navy in 1981. He then began a solo private practice in Orlando, Florida. He was on the staff of Florida Hospital in Orlando from at least 1982 until 1985 and was on staff there for all times material to this proceeding. Dr. Song was the primary physician who treated the seven patients in question during their pregnancy, labor and delivery. Respondent at all times material to this proceeding has been licensed in the State of Florida. (Pet. No. 21) Patient 178793 Patient 178793, a 27 year old white female, was admitted at approximately 12 o'clock midnight to Florida Hospital in active labor for her first delivery on February 7, 1983 (Pet. No. 20, p.6; T.37-38). Respondent was the admitting physician (Pet. No. 4). The patient was fully effaced in a vertex presentation and dilated to 9 cm. at 8:30 a.m. and was fully dilated by 9:45 p.m. The patient was transferred to the delivery room at 10:10 p.m. where the attending nurses and Dr. Song encouraged her to push; however, the baby only progressed .5 to 1 cm. from 8:30 to 10:30 a.m. (Pet. No. 22, p.11). Respondent delivered the patient by mid- forceps at 10:53 p.m. (Pet. No. 20, p.7,9). At the time she was delivered she had been in labor from 1.5 to 2.5 hours. According to the nursing notes, Petitioner's Exhibit 4, at 7:40 a.m. the internal fetal heart monitor failed to work. No explanation is given in the nurse's notes about what was done to correct the problem. At 9:00 a.m. the IV which had been hung at 8:15 a.m. began to infiltrate (move into the tissue surrounding the site at which the needle is inserted) and as a result, the IV was discontinued. The patient was given oxygen between 9:00 and 9:30 a.m., at which the fetal heartbeat had decelerated to between 90 and 100. The normal range for a fetal heartbeat is between 110 and 180 (T. 51). Concurrently, the internal heart monitor was reported to have failed again and could not be made to work although the electrode was changed three times. The external monitor was reapplied. At 9:45 a.m. the fetal heart rate is indicated to have decreased during a contraction. Also at 9:45 a.m. the IV was restarted in the left arm. The spontaneous delivery of the patient halted between 9:30 and 10:00 a.m. This resulted in fetal stress as indicated in the decrease in heart rate. The problem was most probably caused by the baby's shoulder becoming hung on the mother's pelvis. A primary indicator of fetal stress, the fetal heart monitor, was not working and there were problems with maintaining the mother's IV, an important matter if an emergency cesarian section were necessary. See Fetterman Deposition, Page 55, et seq. Under these circumstances, the ,Respondent decided to intervene by delivering the baby using mid-forceps. "Low and mid" modifying forceps reference the position of the top of the baby's head as it is coming through the birth canal. The definition involves a measurement of the distance in centimeters from a location in the birth canal. The definition involves a measurement of the distance in centimeters from a location in the birth canal referred to as the Ischial Spine. High-forceps situations are outside the accepted standard of care in modern obstetrics. The generally accepted standard of care allows forceps deliveries with the use of low-forceps and mid-forceps. Mid-forceps are permissible from positions 0 to plus 2. Mid-forceps are only indicated where there is maternal or fetal distress or where the patient has a protracted second stage of labor in excess of two hours. (Pet. No. 22, p.14-15). The baby had forcep marks on the cheek near the orbit of the right eye. The left earlobe and left neck were injured. The neck injury was described as a shearing injury by Dr. Stone in his report. (Pet. No. 4; 5; 6; 20, p.11). In addition, the baby's left arm was weak and it had a large caput succedaneum of the head due to molding of the head from a long, forceful labor. Fetterman Deposition, Page 97, line 18 et seq. The forcep marks on the face indicated a less than optimal application of the forceps; however, forcep marks are to be expected in a delivery and or by no means unusual or reflect poor practice. The injury to the left neck could not have been made by the forceps. Fetterman Deposition, Page 44, line 14. The mark on the neck and the weakness resulted from the traction needed to deliver the shoulder. Fetterman Deposition, Page 98 and 99. This together with the caput succedaneum indicates that the spontaneous delivery had arrested and justifies the Respondent's decision, particularly in the absence of a heart monitor strip due to equipment failure, to use mid-forceps to deliver the patient who had had a difficult labor of approximately two hours duration. Apgar scores are a means by which newborn babies are rated as to their overall health. Apgar scores are given at one minute after birth and five minutes after birth. The range is from 1 to 10, with 10 being the best. Patient 178793's baby had Apgar scores of 8 at one minute and 10 at 5 minutes. Patient 145489 Patient 145489 was admitted by Dr. Henry Bruce, a psychiatrist, to Florida Hospital between February 1, 1983 and March 10, 1983 for a diagnosed personality disorder and substance abuse (Pet. No. 19, p.8). Respondent had been patient 145489's physician since 1982 (T. 129). Patient 145489 was in her second pregnancy during the time she was treated by Dr. Song. Patient 145489 was in Florida Hospital from April 17, 1984 until April 18, 1984 under Dr. Song's care for possible overdose of drugs. The April 17, 1984 admission was by her husband, with whom she was having marital difficulties, who reported that she had taken a drug overdose. The clinical findings and observations reported in the records do not support the claim of an overdose. The husband brought to the hospital many medications, only part of which had been prescribed by Dr. Song. The patient was admitted on April 24, 1984 for labor and delivery of her second child. (T. 140). She was discharged on April 27, 1984. The Respondent is charged with over prescribing controlled substances without sufficient medical justification to the patient during this pregnancy. The Respondent's records reflect regular prenatal examinations, and various treatment for the patient's sundry complaints over her pregnancy. Patient 145489 was prescribed 80 tablets of Parafon Forte, a muscle relaxant for back pain, on January 4, 1984 by Dr. Song. Patient 145489 was prescribed 100 mg. Seconal #15 on January 17, 1984, for aid in sleeping, by Dr. Song. Additional prescriptions' of 100 mg. Seconal #15 were made by Dr. Song on February 1, 1984 and 100 mg. Seconal #12 on March 26, 1984 for aid in sleeping. Patient 145489 was prescribed .05 mg. Valium #15 on January 17, 1984, by Dr. Song. Valium is recognized both as a muscle relaxant and tranquilizer. Both uses were appropriate if the patient was a pregnant addict. Drs. Yelverton and Adler criticized Dr. Song's failure to refer this patient to an orthopedic specialist for consultation on the cause of her low back pain. Dr. Song was concerned about the propensity for his patient to abuse drugs and in 1984 referred patient 145489 to another psychiatrist, Dr. Michael Gutman, a Board certified psychiatrist and head of the psychiatry unit at Florida Hospital at that time. Patient 145489 was generally an uncooperative and difficult-to-manage patient. Dr. Song did not send patient 145489 to an orthopedic specialist because an orthopedic specialist would not have been able to ascertain any better diagnosis of the patient than Dr. Song without the use of x-rays which were contraindicated at her stage of pregnancy. The utility of seeking a consult with an orthopedic specialist was disputed by Dr. Fetterman, who stated that low back pain is a common complaint with pregnant woman. Dr. Fetterman's expert testimony was that there was no deviation in the standard of care with regard to Dr. Song's treatment of patient 145489. The amounts of medication prescribed and the intervals between their prescription indicates that Dr. Song was aware of the woman's drug abuse problem, was providing her appropriate medications in appropriate amounts based upon her complaints which were medically reasonable. Dr. Song did not prescribe excessive amounts of controlled substances to the patient or prescribe any controlled substances to her without sound medical indications. Dr. Song properly examined, diagnosed and treated patient 145489. Dr. Song did keep records with regard to prescription of drugs in her case and gave medical indications for the prescription of these drugs. Patient 276960 Patient 276960 was a 23 year old white female in her third pregnancy without having given birth, the prior two pregnancies having been terminated by abortion. She saw Dr. Song initially on November 3, 1983, and was seen regularly by him until March 9, 1984. Her records do not reflect she was seen by him again prior to her admission by Dr. Song to the hospital on May 10, 1984 for a Non Stress Test. The records of this admission and Dr. Song's office records are at the back of Petitioner's Exhibit 3. In Petitioner's Exhibit 3, "The History and Physical," Dr. Song notes in the patient's history dictated on June 9, 1984 after her delivery by caesarian section on June 5, 1984, that "A twin pregnancy was accidentally found out last month, which is out(sic) the middle of May because of a large abdomen and supposedly she is overdue and came in for partial induction. The twin pregnancy was found out at the time, and sonography done, biparietal diameter, with one at 35 weeks, and the other one at 37 weeks. It was decided not to do any more induction, and weight(sic), and she came in for active labor. She was followed up and taken care of in early pregnancy, and no remarkable obvious problems were noticed during pregnancy." (Emphasis supplied.) Dr. Song testified that he had trouble being understood by medical transcribers. Problems with transcription of his dictation, as well as Dr. Song's use of English, are evident in the quoted section. Dr. Song indicated that his pronunciation of "possible" was frequently transcribed as "partial." The Department's experts concluded after examination of the hospital records that Dr. Song had attempted to induce labor in this patient without ascertaining at what point she was in her pregnancy are based upon this document. They also concluded that Dr. Song should have determined that the patient was pregnant with twins, and that failing in this and attempting to induce labor was not professionally acceptable practice. The nurse's notes reflect that the patient was admitted at 1:00 p.m. on May 24, 1984 for a "NON STRESS TEST." The hospital record includes a release executed on May 24, 1984 from the patient to conduct a "NON STRESS TEST." The nurse's notes reflect that the non stress test (NST) was conducted in connection with ultrasound examination. See Petitioner's Exhibit 3. The Nurse's notes regarding these procedures state in part, "Fetus active-hard to get Ext. tracing but by constant observation & holding fetal ultrasounded-fetus reactive-3 movement in 15 m lasting 15 sec. acceleration 5 bpm-Dr. Song notified and pt sent home[.]" See Petitioner's Exhibit 3. There is no reference in the nurse's notes to administration of any drugs during the May admission. See Petitioner's Exhibit 3. The discharge record for the May admission reflects Dr. Song had discovered a twin pregnancy and discharged the patient at approximately 1:15 p.m. See Petitioner's Exhibit 3. There is nothing contained in the May notes and records which would indicate that the purpose of the May admission was to induce labor. See Petitioner's Exhibit 3. Dr. Song's patient history written in June led to speculation that Dr. Song had admitted the patient in May to induce labor and had stopped when he accidentally discovered the twins. The facts do not support this speculation. Petitioner's proposed findings, paragraph 27, reference administration of 10 units of Pitocin. All records for the May admission contained in Petitioner's Exhibit 3 were searched and none of these records reflected the administration of Pitocin. The purpose of Pitocin is to induce contractions. Nurse's notes for the May admission make no reference to contractions. No drugs were administered to the patient during the May admission. The patient was not in labor in May for several hours before induced labor was stopped. She was examined and discharged in approximately 15 minutes. It was not unprofessional for Dr. Song to have missed finding the twin pregnancy by March 9, 1984, the patient's last visit to Dr. Song prior to the non stress test. Many twin pregnancies are not discovered until sonograms are performed, as in this case. See Fetterman Deposition, Respondent's Exhibit 3. The patient was admitted on June 5, 1984 in active labor and was delivered by caesarian section of twins, one boy and one girl, without incident. Patient 199111 Patient 199111 was admitted on November 13, 1982. Respondent was the admitting physician (Pet. No. 12). She arrived in labor and was 7 to 8 centimeters vertex presentation at 0 station. At 4:45 a.m. she was in active labor (Pet. No. 20, p.46). Patient was fully dilated at 5:00 a.m. and Respondent delivered by use of low forceps at 5:25 a.m. (Pet. No. 20, p.47, 50; Res. No. 3, p.60). Though the use of low-forceps is considered a safe modality when medically indicated and properly used, low-forceps should still be used only when there is a medical need (Pet. No. 22, p.51). The principal criticism of the care rendered to patient 199111 by Dr. Song is that he performed a forceps delivery, allegedly without any medical necessity. The patient record does reflect the existence of a thick green meconium amniotic fluid which is indicative that there was fetal distress either at the time noted or in the past (Pet. No. 20, p.48). Other than this, the record reflects that the patient was progressing normally and the monitor was normal (Pet. No. 20, p.48-49). The pea soup meconium was an indication that the fetus had had or was having a difficulty and that under this circumstance this patient had to be delivered with the utmost speed. The option to have a cesarean would take to long, even if all preparations had been made. Deposition of Dr. Fetterman, Respondent's Exhibit 3. DPR's own witness, Dr. Stone, noticed the same pea soup meconium and stated: " I can understand the obstetrician getting rather nervous and possibly doing a low forceps." Dr. Song testified to having been aware of this pea soup meconium and that it was an indication that the baby was in acute distress and that a low forceps delivery was in fact indicated. The condition requiring a medical necessity was present in this case and justified the Respondent's actions which were within accepted medical practice. Patient 274312 Patient 274312, a 19 year old female as admitted to the hospital on April 8, 1984 for labor and delivery (T. 222). Respondent was the admitting physician (Pet. No. 15). The principal complaint against the Respondent in the case of patient 274312 was that Dr. Song allegedly attempted to deliver a footling breech vaginally, was not prepared to deliver the baby by C-section and that this is a violation of the standard care. Respondent states in his Clinical Resume dated April 12, 1984 that "an x-ray was taken to rule out small pelvis or abnormal position of breech presentation. It turned out one leg extended frank breech and the other leg was a complete position." (Pet. 15, p.104: Clinical Resume dated 4-12-84). Dr. Song's notes for April 11, 1984 make the same comment about the position of the legs of the fetus. A complete breech presentation is where the bottom of the fetus is down and the feet are around the buttocks (T. 226). A footling breech is where the baby presents feet first (Pet. No. 22, p.59). Patient was admitted at 12:05 a.m., an x-ray taken at 12:25 a.m., and a mini-prep was done prior to 1:00 a.m. An IV was started just after 1:00 a.m. and an abdominal preparation done at 1:15 a.m. Dr. Song directed preparations for a C-section and the patient was fully prepared for a possible C-section at 1:15 a.m. According to the nurses notes, the patient did not reach full dilation prior to Dr. Song's decision to deliver her by C-section at approximately 4:20 a.m. when the patient had dilated to nine centimeters. See Pet 15, nurses notes, pages 115,116. (Pet. No. 22, p.62). Respondent was trying to permit the patient to deliver vaginally, however because of fetal distress he delivered the patient by cesarean section. Mother and baby progress normally and were discharged on April 12, 1984. (Pet. No. 19, p.57; Pet. No. 22, p.59). All the testimony indicates that footling breech presentations are too dangerous to attempt vaginal delivery unless there is rapid, spontaneous descent of the fetus. It is within acceptable standards of care in obstetrics to attempt vaginal delivery of frank breech or partial footling breech provided there is no fetal distress. (Fetterman Deposition: Page 90, line 6-23.) Dr. Marley's opinion was similar to that of Dr. Fetterman. She opined that a complete breech can be delivered vaginally provided you have adequate cervical dilation. Dr. Yelverton, who indicated his preference for a cesarean-section when confronted with a complete breech, indicated that in the case of complete and incomplete breech presentations there was controversy within the obstetrical community about proper method of delivery. There is no evidence in this case that the fetus was in other than a partial footling, partial complete breech. Dr. Song was the only witness who actually was present at the delivery in question and saw patient and the x-rays showing the presentation of the fetus. His descriptions of his findings dictated prior to the complained of conduct reflect a partial footling, partial complete breech. The x-ray report, referred to by Dr. Song, in his summary was not made available by the Department of the Navy, which was the custodian of the medical records of this patient who was a Navy dependent. Asked to articulate an opinion as to whether or not Dr. Song departed from the standard of care in doing this particular cesarean section, Dr. Stone replied that his personal choice would have been to perform a cesarean section sooner; however, he indicated that there were minorities of opinion which might differ with his. Dr. Stone believed that adequate preparation for an emergency had been made by Dr. Song. The evidence in this case indicates that the presentation of the fetus in question was a combination of footling and complete. Attempted vaginal delivery of a partial footling, partial complete or frank breech presentation is appropriate unless there is fetal distress. Caesarian section is indicated if there is fetal distress. Dr. Song did not attempt to deliver a footling breech vaginally, was prepared to deliver the baby by caesarian section, delivered the baby by caesarian section when fetal distress was noted, and did not violate the standard of care in treating this patient. Patient 196663 Patient 196663 was admitted to the hospital at 7:15 a.m. on November 10, 1982. in early labor with ruptured membranes. (Pet. No. 20, p.53; T. 238). The patient was transferred from the Navy Base Hospital on that date and had not been previously seen by the Respondent. (Pet. No. 13, T. 238; Pet. No. 20, p.53). The first page of Petitioner's Exhibit 13 indicates that the patient had a uterine pregnancy, 37 weeks; premature rupture membrane and labor; and postpartum bleeding. The same exhibit reflects delivery by low forceps. The records of the patient's treatment at the naval hospital reflect that the patient was VDRL reactive which means the patient had syphilis antibodies. On 4-8-82 the husband reported that she had been treated. On 7-20- 82 the patient was given penicillin for VD and a retest of VDRL was planned. On 7-23-82 a second RPR (VDRL) was conducted and FTA was ordered. On 8-3-82 penicillin (2,400,000 units x 3 was ordered. These records were attached to the patient's records when she was transferred to Dr. Song's care. See Petitioner's Exhibit 13, page 8. The Dr. Song's patient record indicates that on November 4, 1982 Respondent ordered a confirming test (RPR) upon the patient's next visit. Instead the patient entered the hospital in labor on November 10, 1982. At 8:00 p.m. on November 10, 1982 the Respondent ordered an FTS-ABS for the following morning. (T. 244; Pet. No. 13). Upon the baby's birth, mother and baby were released from the hospital and Respondent's care. Based upon the fact that the patient was transferred from the navy hospital and the patient's medical records were obtained from the Navy, presumably, the patient received after care from the naval medical facility which had made the original determination that the patient had a positive VDRL. Respondent recalled, at hearing, that the test came back negative and, therefore, no penicillin was given to the baby (T. 242, 244). Although the patient records are void of any notation that indicates that Respondent in formed the pediatrician of the FTA-ABS test results (T. 246), it would have been meaningless for Dr. Song to have advised the naval doctors of information which they knew prior to Dr. Song seeing the patient. The principal criticism of the care rendered to patient 663 by Dr. Song is that he performed a low forceps delivery, as reflected in Exhibit 13, without obstetrical indications or documentation which justified such a delivery, and the alleged failure to keep records. The records are clear that the patient had come into labor after premature rupture of the amniotic membrane, that the patient had a difficult labor, and that Pitocin was administered at 3:45 p.m. to eliminate an irregular labor pattern. Pitocin administration was continued until birth. At 5:10 the nurse and Dr. Song did a vaginal examination and noted swollen rim. Dr. Song instructed the patient not to push for awhile. Petitioner's Exhibit 13. Dr. Song used low forcep, an accepted procedure If there is any fetal distress. The notes reflect that the mother had been In labor for 10 hours, that she had remained dilated at 8-9 cm. since 4:30 p.m. The baby's respiration at birth was delayed a half minute and oxygen was administered. Petitioner's Exhibit 13. Regarding postpartum hemorrhage, Dr. Stone speculates that it may have indicated a hard forceps delivery; however, Dr. Stone admits it could also have been due to other things. Dr. Fetterman testified that it was "obvious" that the postpartum bleeding occurred from the uterus because of pieces of placental material which were not sloughed off and was not the result of the use of forceps. Dr. Fetterman testified that the baby in this case had excellent Apgar scores of 9 and 9, and that Dr. Song did not deviate from the standard of care in delivering the child of patient 196663. Drs. Fetterman and Song described how the premature ruptured membranes was an indication of potential infection or a problem for the fetus. Therefore, a low forceps delivery was indicated. There is less than a preponderance of evidence in this case to suggest that Dr. Song departed from the standard of care with regard to the examination, diagnosis and treatment of patient 196663. Patient 244254 Patient 244254 was a 26 year old Puerto Rican who was admitted to the hospital on September 26, 1984 in her forty-second week of her third pregnancy and who previously had delivered two children. The forty-second week of pregnancy is critical, being considered a maximum term. Respondent was brought in to induce pregnancy in this patient. The nursing notes for the period 8:30 p.m. until 12:40 a.m. are missing in the record. The last nursing note at 8:30 p.m. was that the patient was completely dilated and was being taken to the delivery room. It does not record any position for the baby. Other records show that the Respondent performed a caesarian section and delivery the baby at 11:19 p.m. and the mother was resting after surgery at 12:40 a.m. The Respondent's testimony is the only eyewitness account of what occurred during the intervening period. Expert testimony stated that a caesarian section under optimum conditions takes 15 minutes to perform. Approximately an hour before performing the caesarian section, at around 10:00 p.m., the Respondent's requested Dr. Hoover to examine the patient. Dr. Hoover recommended letting the woman remain in labor another hour unless fetal distress occurred. It was while waiting this hour, that fetal distress occurred, and Dr. Song performed the caesarian section and delivered a baby girl whose Apgar scores were 7 and 9. These Apgar scores indicate the baby was initially in some distress which was relieved by administration of oxygen. Just prior to asking Dr. Hoover to examine the patient, Dr. Song had attempted to rotate and deliver the baby because the baby stopped in the transverse position with its shoulders caught on the mother's pelvic ridges. In this position, the baby's head is at the zero or mid-forcep position. Dr. Adler's principal criticism of this case arose as a result of his hearing that Dr. Song had attempted a high forceps delivery. There is no evidence to support this supposition. Alternatively, Dr. Alterman complains that Dr. Song had departed from the standard of care by failing to make adequate notations in the record to justify any use of forceps in this case. It is true that there is a gap in the record; however, it appears that this was not the result of the failure to make notes, but the loss of notes. In Dr. Fetterman's opinion, Dr. Song had two options, one being an immediate cesarean section, the other being an attempt at rotating the head with forceps. Dr. Fetterman emphasized that it was his belief that the only use of forceps in this case involved a mid-forceps procedure to facilitate delivery of the fetus out of the transverse arrest position so that it might proceed down the birth canal. Dr. Fetterman testified that a mid-forceps rotation was an accepted obstetrical procedure. Dr. Fetterman testified that his reading of the charts in this case indicated that fetal heart sounds had dropped and that this was "certainly a reason for concern." This was the fetal distress which resulted in the caesarian section. DPR's witnesses regarded to utilization of forceps in this case improper based upon a belief that Dr. Song was attempting mid-forceps delivery of this patient while on "probation." Dr. Song was using mid-forceps to rotate the baby out the transverse position which was for the purpose of delivering the baby. This use of forceps for rotation out of transverse arrest is an acceptable obstetrical maneuver, although, as in this case, the forceps generally leave marks on the baby's face. On February 22, 1983, the Respondent resigned from his position at the Apopka Clinic by letter. See Exhibit 10.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Board of Medical Examiners dismiss its complaint against the Respondent. DONE and RECOMMENDED this 25th day of May, 1989, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1989. APPENDIX A Rulings on Respondent's Objections presented in Petitioner's Appendix A: Sustain the objection. Sustain the objection. Overrule the objection. Sustain the objection. Overrule the objection. Sustain the objection. Sustain the objection. Rulings on Respondent's Objections to Petitioner's Exhibits: Exhibit 2: Overruled. Note, however, the facts presented at the hearing reveal that half of the medication mentioned had not been prescribed by the Respondent. There was nothing unusual or inappropriate in the medications prescribed by Respondent. The Exhibit reflects an attitude of the hospital staff of suspicion concerning the Respondent which is not supported in the medical records. The Respondent's records for the patient reflect the basis for the prescriptions which, in the opinion of a medical expert, were appropriate in terms of the quantity of medications prescribed and the time frame in which they were prescribed. The suggestion by Dr. Adler that the pregnant patient be sent to an orthopedic specialist for low back pain in order to support the treatment was clearly a means of avoiding responsibility for the course of treatment. Dr. Song was willing to accept that responsibility and the records support the propriety of his decision. Exhibit 5: Sustained. This purports to be a statement of a medical examination conducted contemporaneously with the giving of the statement; however, a check of the dates reveals that it could not have been made on January 11, 1983 because Patient 178793 did not give birth until February 7, 1983. Because of this inconsistency, Respondent's objection is sustained. Exhibit 6, 7, 8, 10, 11: Petitioner seems to assert that Exhibits 6, 7, 8, and 10 relate to peer discipline and that as such they should be admissible. However, the only evidence of possible peer discipline is Exhibit 11, and it merely references an interview concerning possible corrective action. Part of the basis of this interview are cases discussed by Dr. Stone and the Respondent on December 1, 1982 and February 3, 1983 (Exhibit 11, second paragraph); however, Exhibits 6, 7, 8, and 10 relate to an event on February 7, 1983 which could not have been addressed in either of these conversations. It is conjectural whether any disciplinary action was taken and whether the event of February 7, 1983 was the basis for action, if any action was taken. The objection is sustained regarding Exhibits 6 and 7. Exhibits 8 and 10 will be considered to the extent that they state the findings of physical examinations about the baby whose treatment is the subject of a portion of the Board's administrative complaint. Objection of Petitioner to Respondent's Exhibit 3, Deposition of Henry H. Fetterman, M.D. Counsel for Petitioner presented a continuing objection to questions calling for an opinion on the standards of care in Florida on the basis that the witness was not licensed in Florida. The standard of practice for obstetrics is not so parochial that a recognized out-of-state expert cannot offer an opinion concerning the standards of care of obstetric practice. This objection is overruled and the testimony of Dr. Fetterman will be received. APPENDIX B Findings on Proposed Findings The findings contained in the following paragraphs of Petitioner's Proposed Findings were adopted substantially: 1, 2, 3, 4, 5, 6 - that forcep marks occur, 8, 15, 16, 17 - patient complained, 18-1 and 2*, 20 - only prescriptions written are in chart, 22, 26 - dates of admissions, 33, 38, 46, 47, 54, 56, 58, 69, 33, 35, 37 - use of low forceps safe, 38, 39, 46, 48 - indications for forcep delivery, 53, 54, 56, 58, 59, 60 - claim to rotate baby, 64 - head was at minus 1 on admission and 0 to plus 1 when rotation was attempted, 66 - standard to conduct vaginal exam and reflect chart, and 69. The findings contained in the following paragraphs of Petitioner's Proposed Findings were rejected because they were contrary to facts which were found to be more credible: 6 - that forcep marks occur when the doctor is rushed, 7, 9, 10, 11, 12, 17 - no indication of examination, 21, 26 - premature labor, 27 - see special finding, 28,29, 30 31, 32, 34, 36, 39 - concerning type of breech, 40, 44, 45, 47, 50, 51, 52, 57, 60 - all after first sentence is hearsay, 61, 64 - what prudent ob-gyn would do, 66 - Respondent's violating standard, and 70. The findings contained in the following paragraphs of Petitioner's Proposed Findings were rejected as irrelevant to the issues in light of other findings: 13, 14, 19, 20 - all after first sentence, 23, 24, 25, 41, 42, 43, 55, 62, 63, 65 - hearsay about restriction on forceps and inability of a hospital to restrict practice of physician in a manner contrary to patient's interest and contrary to full grant of practice by state licensing' agency, and 67. The findings contained in the following paragraphs of the Respondent's Proposed Findings were adopted substantially: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 29, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, and 32. The findings contained in the paragraph 24 of the Respondent's Proposed Findings were rejected as irrelevant in light of other findings. *Petitioner's Proposed Findings of Fact had two paragraphs 18. COPIES FURNISHED: Robert D. Newell, Esquire Newell & Stahl, P. A. 817 North Gadsden Street Tallahassee, Florida 32303 John D. Buchanan, Jr. Esquire Henry, Buchanan, Mick & English, P.A. Post Office Drawer 1049" Tallahassee, Florida 32302 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0729 Kenneth Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0729
The Issue The issue in this case is whether Petitioner is eligible for an exemption from disqualification from working with children.
Findings Of Fact The evidence presented at hearing established the facts that follow. In 2000, Petitioner Sonia Leggs-Stewart (“Leggs- Stewart”) sought employment with at least two entities that provide services under contract to Respondent Department of Juvenile Justice (“DJJ”). These two providers are the Dade Marine Institute, Inc. (the “Institute”) and Youth Services International/Everglades Academy (the “Academy”). The positions that Leggs-Stewart sought entailed contact with children. As a condition of applying for such employment, she was required to consent to a background investigation. Further, the employment applications that Leggs- Stewart completed and submitted to these two providers included queries pertaining to the applicant’s criminal record. Finally, Leggs-Stewart, as required for employment, executed and delivered to each prospective employer an Affidavit of Good Moral Character (the “Affidavit”). The Affidavit is a DJJ form. In it are listed 45 consecutively numbered criminal offenses, each identified by a citation to the applicable section of the Florida Statutes and a brief description of the crime. The affiant must either (a) attest that she has not been convicted of any of these disqualifying offenses “or of any similar offense in another jurisdiction” or (b) disclose any such convictions.1 Above the notary’s signature line on the Affidavit are two separate statements. The affiant is supposed to certify the accuracy of one or the other by signing below the applicable statement. These are the options: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand, under penalty of perjury, all employees in such positions of trust and responsibility shall attest to meeting the requirements for qualifying for employment and agreeing to inform the employer immediately if arrested of any of the disqualifying offenses. I also understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand prior to signing. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. SIGNATURE OF AFFIANT OR To the best of my knowledge and belief, my record contains one or more of the disqualifying acts or offenses listed above. (If you have previously been granted an exemption for this disqualifying offense, please attach a copy of the letter granting exemption.) (Please circle the offense(s) contained in your record.) SIGNATURE OF AFFIANT (emphasis added). Leggs-Stewart applied for employment with the Academy in March 2000. On the employment application, she answered “yes” to the question: “Have you ever been convicted of a felony or a first degree misdemeanor?” Leggs-Stewart explained that she had been convicted in February 1991 of “possession with intent to distribute cocaine.” On the corresponding Affidavit, however, which she executed on March 13, 2000, Leggs-Stewart incongruously signed below the first certificate (meaning no convictions) and failed to circle any of the listed offenses, including this one: [Chapter 893, Florida Statutes,] relating to drug abuse possession and control if the offense was a felony or if any other person involved in the offense was a minor (this includes charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.) The record is silent as to whether the Academy offered Leggs-Stewart a job; there is no evidence that she worked for the Academy. In December 2000, Leggs-Stewart applied for a job with the Institute. The employment application asked: “Have you ever been committed [sic] or convicted of a crime, pled guilty or nolo contendere, had a pretrial intervention or withheld adjudication? Yes NO If yes, give dates and type of action: .” Leggs-Stewart left these lines blank. Also, as before in connection with her application to the Academy, Leggs-Stewart signed the Affidavit below the first certificate and circled none of the listed offenses. The Institute hired Leggs-Stewart to work in a program for youth called W.I.N.G.S. for Life South Florida. Some months later, in June 2001, DJJ notified Leggs- Stewart that an investigation of her background had uncovered arrests for, on one occasion in 1990, federal charges involving the importation and possession of cocaine with intent to distribute and, on another in 1989, an unrelated state aggravated assault charge.2 She was asked to furnish DJJ with a detailed description of the circumstances surrounding the disqualifying offenses, to complete a new Affidavit, and to explain why the previous Affidavit failed to indicate any disqualifying offenses. On July 3, 2001, Leggs-Stewart executed a new Affidavit on which she circled the disqualifying offenses of aggravated battery and drug trafficking. In a letter of that same date, Leggs-Stewart wrote to DJJ: In regards to the Affidavit of Good Moral Character and providing a detailed explanation as to why the original affidavit was not truthful, to be honest I completed the affidavit in accordance to what my supervisor, at that time instructed me to do. I diligent [sic] explained the incidents to him and I personally did not identify which offense to circle for the Arrest #2 [aggravated assault] due to nothing never happen [sic] in court to my knowledge. In regards to Arrest #1 [drug trafficking], I believe that we, (both my supervisor and I) focused on the second part of the offense description that mentioned involving a minor which was his primary concern. I did not intentionally mean to mislead anyone regarding these offenses. The basic material facts concerning Leggs-Stewart’s arrest and conviction on drug-related criminal charges were not disputed. Leggs-Stewart was arrested in late 1990 by federal authorities for bringing cocaine into the United States from Panama. She was charged with two counts relating to this criminal activity. In February 1991, Leggs-Stewart pleaded guilty before the United States District Court for the Southern District of Florida to one count of possession with intent to distribute cocaine. (The second count relating to importation was dismissed.) The court sentenced Leggs-Stewart to four years in prison followed by five years of supervised release. Leggs- Stewart served her time and successfully completed probation. She has not been in trouble with the law since her arrest for the federal drug crime. Leggs-Stewart requested an exemption from disqualification from employment. As a result, an informal hearing on the matter was conducted on August 8, 2001, by a committee of three individuals whose responsibility was to make a recommendation to the ultimate decision maker, DJJ’s Inspector General. In a report dated August 9, 2000, the committee unanimously recommended that Leggs-Stewart be granted an exemption from disqualification, citing factors showing her rehabilitation. DJJ’s Inspector General disagreed with the committee, however, and decided that the exemption should be denied. Ultimate Factual Determinations The undisputed circumstances surrounding Leggs- Stewart’s conviction for drug possession demonstrate that the offense was more than a mere youthful indiscretion. Smuggling cocaine into the United States from a foreign country with intent to distribute is a serious crime. While there are no identifiable victims of Leggs-Stewart’s criminal misconduct, trafficking in cocaine is an offense that both the federal and state governments have deemed, as a matter of public policy, to be harmful to society as a whole. The gravity of Leggs- Stewart’s offense clearly “raises the bar” in terms of establishing rehabilitation. To her credit, Leggs-Stewart by all appearances has turned her life around. She is married and raising a family, owns a home, has attended community college, and has been gainfully employed since being released from prison. In short, she is now leading a stable and responsible life. These factors demonstrate that Leggs-Stewart has been largely, if not completely, restored to the capacity of law-abiding citizen. In addition, more than 11 years have passed since Leggs-Stewart’s arrest and conviction, and she has not been arrested during that time. This consideration also favors a finding of rehabilitation. Leggs-Stewart does not presently pose a danger to the safety or well being of children. However, the Affidavits that Leggs-Stewart signed—— wherein she attested, incorrectly, that her criminal record was clean——are a problem. Even if Leggs-Stewart’s explanations for nondisclosure are accepted3, the inescapable fact is that the Affidavits were not truthful, and she reasonably should have known that.4 Leggs-Stewart knew when she executed the Affidavits that she had served time in a federal prison on a serious drug charge. She knew (or reasonably should have known) that the list of disqualifying offenses in the Affidavit specifically included “possession of controlled substances” and “intent to sell controlled substances”——plainly apposite descriptions of the crime to which she had pleaded guilty. And she knew that any omissions or misstatement might be grounds for disqualification or termination. Yet, she attested under oath that her criminal record contained none of the listed disqualifying offenses. Thus, it is determined that while Leggs-Stewart did not intend to defraud her prospective employers, she nevertheless culpably misrepresented her past. In failing to disclose her criminal record, Leggs-Stewart committed acts tinged with dishonesty.5 Considered in light of all the relevant facts and circumstances, Leggs-Stewart’s willingness to be untruthful in applying for a position of trust and responsibility in a program for youth or children, regardless of her motivation, causes the trier of fact some hesitancy about the completeness of her rehabilitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Leggs-Stewart an exemption from disqualification from working with children. DONE AND ENTERED this 20th day of March, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2002.
The Issue The issue is whether the application of Petitioner for a Florida real estate broker’s license should be granted.
Findings Of Fact Petitioner is an individual residing in the State of Connecticut. Respondent is the state agency responsible for licensing real estate associates and brokers in the State of Florida, pursuant to Chapter 475, Florida Statutes. In June 2007, Petitioner submitted to Respondent an application to be licensed as a real estate broker in Florida. In his application, Respondent requested mutual recognition of his broker’s license in Connecticut. Petitioner held an active real estate broker’s license in Connecticut for at least 24 months during the preceding five years from the date of his application. Petitioner was first licensed in the State of Connecticut as a real estate salesperson from May 13, 1987 through July 28, 1989. Thereafter, Petitioner held an individual license as a real estate broker in Connecticut from July 28, 1989 through April 30, 1993, and again from June 22, 1993, until his real estate broker’s license with the State of Connecticut expired on March 31, 2006. In addition, Petitioner’s limited-liability company, America’s Home & Communities Real Estate, LLC, was licensed as a broker with the State of Connecticut, with Petitioner as the designated broker, on December 30, 2005. That license was active when Petitioner submitted his application with Respondent in June 2007, and expired, effective March 31, 2008. In his application, Respondent answered “No” to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withholding of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer “NO” because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering “NO.” YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. After receiving Petitioner’s application, the Commission ordered a criminal record check from the Florida Department of Law Enforcement (FDLE). The results of that check showed that Petitioner had no Florida criminal record history, but the National/FBI Criminal History Record Response (FBI Report) ordered by FDLE as part of that check under Petitioner’s name listed the following information in the following format: ARRESTED OR RECEIVED 1968/08/05 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848-R94 CHARGE 1-B OF P CHARGE 2-DC CHARGE 3-WIL DAM TO PRIV PROP ARRESTED OR RECEIVED 1972/07/27 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848-R94 NAME USED-PARKER,EDWARD LEON CHARGE 1-INCITING TO RIOT CHARGE 2-ESCAPE FROM CUSTODY ARRESTED OR RECEIVED 1974/09/12 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-LARC #3 ARRESTED OR RECEIVED 1975/09/30 SID- CT00246406 AGENCY CASE-4684R94 NAME USED PARKER, EDWARD L CHARGE 1-DC CHARGE 2-POSS NARC CHARGE 3-CARRY GUN W/O PERMIT ARRESTED OR RECEIVED 1975/10/23 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-L III BY POSS ARRESTED OR RECEIVED 1975/12/18 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-LARC IV CHARGE 2-CARRY DANG WPN CHARGE 3-INTERFERING W/POLICE ARRESTED OR RECEIVED 1976/01/27 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD CHARGE 1-INTERF W/PO CHARGE 2-DC * * * ARRESTED OR RECEIVED 1977/07/14 SID- CT00246406 AGENCY-POLICE DEPARTMENT WEST HARTFORD (CT0015500) AGENCY CASE-0786-77 CHARGE 1-ILL USE OF CREDIT CARD 31 CTS CHARGE 2-CRIM IMPERSONATION 31 CTS CHARGE 3-FORGERY 3RD DEG 31 CTS CHARGE 4-LARC 4TH DEG 31 CTS COURT- CHARGE-ILL USE OF CREDIT CARD 31 CTS SENTENCE- 09/01/77 PG 1YR 9/S ON EA CT 2YRS PROB CHARGE-CRIM IMPERSONATION 31 CTS SENTENCE- NOLLED CHARGE-FORGERY 3RD DEG 31 CTS SENTENCE-NOLLED CHARGE-LARC 4TH DEG 31 CTS SENTENCE-NOLLED ARRESTED OR RECEIVED 1985/11/14 SID- CT00246406 AGENCY-POLICE DEPARTMENT BLOOMFIELD (CT0001100) AGENCY CASE-7206 NAME USED-PARKER, EDWARD L CHARGE 1-ASLT 3RD RECORD UPDATED 2007/12/07 ALL ARREST ENTRIES CONTAINED IN THIS FBI RECORD ARE BASED ON FINGERPRINT COMPARISONS AND PERTAIN TO THE SAME INDIVIDUAL. THE USE OF THIS RECORD IS REGULATED BY LAY. IT IS PROVIDED FOR OFFICIAL USE ONLY AND MAY BE USED ONLY FOR THE PURPOSE REQUESTED. The preamble to the above-recited FBI Report provides: THIS RECORD IS SUBJECT TO THE FOLLOWING USE AND DISSEMINATION RESTRICTIONS UNDER PROVISIONS SET FORTH IN TITLE 28, CODE OF FEDERAL REGULATIONS (CFR), SECTION 50.12, BOTH GOVERNMENTAL AND NONGOVERNMENTAL ENTITIES AUTHORIZED TO SUBMIT FINGERPRINTS AND RECEIVE FBI IDENTIFICATION RECORDS MUST NOTIFY THE INDIVIDUALS FINGERPRINTED THAT THE FINGERPRINTS WILL BE USED TO CHECK THE CRIMINAL HISTORY RECORDS OF THE FBI. IDENTIFICATION RECORDS OBTAINED FROM THE FBI MAY BE USED SOLELY FOR THE PURPOSE REQUESTED AND MAY NOT BE DISSEMINATED OUTSIDE THE RECEIVING DEPARTMENT, RELATED AGENCY OR OTHER AUTHORIZED ENTITY. IF THE INFORMATION ON THE RECORD IS USED TO DISQUALIFY AN APPLICANT, THE OFFICIAL MAKING THE DETERMINATION OF SUITABILITY FOR LICENSING OR EMPLOYMENT SHALL PROVIDE THE APPLICANT THE OPPORTUNITY TO COMPLETE, OR CHALLENGE THE ACCURACY OF, THE INFORMATION CONTAINED IN THE FBI IDENTIFICATION RECORD. THE DECIDING OFFICIAL SHOULD NOT DENY THE LICENSE OR EMPLOYMENT BASED ON THE INFORMATION IN THE RECORD UNTIL THE APPLICANT HAS BEEN AFFORDED A REASONABLE TIME TO CORRECT OR COMPLETE THE INFORMATION, OR HAS DECLINED TO DO SO. AN INDIVIDUAL SHOULD BE PRESUMED NOT GUILTY ON ANY CHARGE/ARREST FOR WHICH THERE IS NO FINAL DISPOSITION STATED ON THE RECORD OR OTHERWISE DETERMINED. IF THE APPLICANT WISHES TO CORRECT THE RECORD AS IT APPEARS IN THE FBI’S CJIS DIVISION RECORDS SYSTEM, THE APPLICANT SHOULD BE ADVISED THAT THE PROCEDURES TO CHANGE, CORRECT OR UPDATE THE RECORD ARE SET FORTH IN TITLE 28, CFR, SECTION 16.34. - FBI IDENTIFICATION RECORD – WHEN EXPLANATION OF A CHARGE OR DISPOSITION IS NEEDED, COMMUNICATE DIRECTLY WITH THE AGENCY THAT FURNISHED THE DATA TO THE FBI. On March 5, 2008, Respondent wrote to Petitioner and asked Petitioner to provide a copy of the arrest reports and the final outcome for each of the arrests detailed in the FBI Report. Of the 9 reported arrests listed under Petitioner’s name on the FBI Report, only one, number 8 from July 14, 1977, indicates that Petitioner was convicted of a crime. According to that report, Petitioner was sentenced on September 1, 1977, for 31 counts of illegal use of a credit card. According to the report, the other charges listed under arrest number 8 (multiple counts for criminal impersonation, forgery, and larceny) were not prosecuted. Petitioner disputes that he was ever arrested on July 14, 1977, or convicted of any of the charges listed in item number 8. In correspondence and in his testimony at the final hearing, Petitioner pointed out that the record for July 14, 1977, is not supported by fingerprints, and further, that he is not white, as indicated in the police records for that arrest. Petitioner also disputes that he was ever incarcerated. Upon his request to obtain court records related to the disputed conviction, Petitioner was advised by the Records Center for the Superior Court of the State of Connecticut that the court records had been destroyed. At the final hearing, Petitioner submitted certified copies of correspondence from Connecticut’s Superior Court’s Record Center as evidence that the records had been destroyed. Nevertheless, in order to clear his name, Petitioner sought a pardon from the State of Connecticut for the listed conviction for illegal use of a credit card, as well as two other matters listed as arrests (apparently, the “interfering with police” charge listed in item number 6 and the “larceny” charge under item number 8) that Petitioner disputed. On June 8, 2009, Petitioner faxed to Respondent correspondence indicating Petitioner’s efforts to obtain records and clear his name. Included in the correspondence were three letters dated February 17, 2009, from Connecticut’s Superior Court Record Center indicating that records from the disputed charges had been destroyed; Petitioner’s letter dated February 18, 2009, to Connecticut’s Board of Pardons & Paroles requesting assistance in getting a pardon for the alleged crimes; and a letter dated June 3, 2009, to Petitioner from Connecticut’s Board of Pardons & Paroles conditionally granting Petitioner a pardon, pending confirmation from several criminal justice agencies that “the records of your conviction(s) have been erased, which takes at least 8 months.” On June 11, 2009, Petitioner sent to Respondent by facsimile three letters of reference which reflect positively upon Petitioner’s character. By letter dated July 17, 2009, Respondent advised Petitioner that his application would be considered at Respondent’s meeting scheduled for August 12, 2009, in Orlando, Florida, and that Petitioner should forward any additional letters of recommendation or other supporting documentation no later than July 20, 2009. Petitioner’s application file indicates that Respondent received a positive recommendation for Petitioner on July 23, 2009, from a real estate broker in Connecticut, and that, on July 24, 2009, Petitioner forwarded a letter to Respondent from the Greater Hartford Association of Realtors, Inc., stating that Petitioner “is a member in good standing with the Greater Hartford Association of Realtors® since December 11, 1998,” indicating that Petitioner’s local, state and national dues have been paid, and advising that Petitioner completed a code of ethics course on December 12, 2008. Petitioner appeared, pro se, and gave testimony at the August 12, 2009, meeting where his application was considered. Following that meeting, Respondent entered a Notice of Intent to Deny, which stated a number of grounds for the intent to deny Petitioner’s application. Respondent’s Notice of Intent to Deny recited Key findings of fact 1, 2, 4, and 7, and Key conclusions of law B, C, E and M, as grounds for its proposed denial of Petitioner’s application. Those Key findings and conclusions, as set forth on the Key for License Denials, attached to Respondent’s Notice of Intent to Deny, are as follows: Crimes in Application. Applicant’s criminal record is as revealed in application. Failure to disclose. Applicant’s complete criminal record was not revealed in application. 4. Unpersuasive Testimony. Applicant’s testimony or evidence in explanation/mitigation was unpersuasive. 7. No Showing Rehabilitation. Applicant has not had sufficient time free of government supervision to establish rehabilitation. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S. E. Guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in any business transaction; 475.25(1)(b), 475.181 F.S. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. In sum, all of Respondent’s reasons to deny Petitioner’s application for a broker’s license are related to a finding that Petitioner was convicted of crimes and failed to disclose them on his application. The evidence, however, does not support the grounds recited in Respondent’s Notice of Intent to Deny. Other than Petitioner’s disputes of, and eventual pardon from, three crimes listed on the pardon obtained on May 27, 2009, there is no evidence that Petitioner was ever convicted of a crime. At the final hearing, Petitioner admitted that he grew up in a rough neighborhood and had negative contacts with law enforcement for a number of years. He apologized for any appearance that he tried to deceive Respondent, but explained that although he had been arrested in the past, he has never been incarcerated. Petitioner further explained that he did not believe that he had a record because of the passage of time. In addition, at the final hearing, Petitioner submitted evidence that he has received a full pardon for the listed (and disputed) conviction for illegal use of a credit card.3/ It has been over 20 years since Petitioner has had any negative contact with law enforcement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding that Petitioner was not dishonest in his application to be licensed as a real estate broker in Florida submitted in June 2007, but denying that application, without prejudice, consistent with the terms of this Recommended Order. DONE AND ENTERED this 13th day of April, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2010.
The Issue Whether Petitioner should be given credit for certain answers provided on the State Officers Certification Examination (officers certification examination).
Findings Of Fact Petitioner, James H. Hall, Jr., took the officers certification examination and, thereafter, challenged certain answers to questions on the examination. Specifically, challenged questions were numbered 40, 49, 63, 89, 112, 115, 156, 143, 203, and 211. At hearing, Petitioner withdrew his challenges to questions 143 and 211, leaving eight questions to be challenged. The Commission is the state agency charged with the responsibility of administering officers certification examinations and establishing "standards for acceptable performance on each officer certification examination." § 943.1397(1), Fla. Stat. (2005).1 The officers certification examination is a multiple- choice examination with four answer choices for each question. Only one of the proposed answers is deemed correct. The answer deemed to be correct is the best of the four answer choices. The content of all the questions on the officers certification examination are derived from the basic recruit curriculum and from objectives that come from a job task analysis. The objectives appear in the beginning of every lesson of the curriculum. The curriculum materials are available to all applicants who take the officers certification examination. All the questions on the officers certification examination have been validated and field tested. Question 40 was clear and unambiguous and asked applicants to identify immunizations required for law enforcement officers. The correct answer to the Question 40 is (a). Petitioner selected answer choice (c), based on his belief as to what communicable disease officers should and could be vaccinated against. The correct answer to Question 40 is included in the curriculum materials and is not the answer selected by Petitioner. The question is statistically valid, and 69 percent of all test takers who have answered this question have answered it correctly. Petitioner's reason for choosing (c) as the answer to Question 40 does not constitute persuasive evidence establishing that the answer he chose is correct. Question 49 was clear and unambiguous and required the applicants to demonstrate knowledge and application of the phonetic alphabet used by the Federal Communications Commission and the United States military. The correct answer to Question 49 is (a). Petitioner selected answer (c), based on his belief that the response next to that choice "flowed, that it didn't have too many syllables in it." The correct answer to Question 49 is included in the curriculum materials and is not the answer selected by Petitioner. The question is statistically valid, and 89 percent of all test takers who have answered this question have answered the question correctly. Petitioner's rationale for selecting answer (c) does not constitute persuasive evidence establishing that the answer he chose is correct. Question 63 was clear and unambiguous and required the applicants to demonstrate their understanding of various mental disorders. The correct answer to the question is (d). Petitioner selected answer (a). The correct answer is included in the curriculum material and is not the answer chosen by Petitioner. The question is statistically valid, and 91 percent of all test takers who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 89 is clear and unambiguous and required applicants to know what an officer should do when a suspect is shot. The correct answer is (b). Petitioner selected answer choice (c). The correct answer is included in the curriculum material and is not the same answer selected by Petitioner. Question 89 is statistically valid, and 90 percent of all test takers who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 112 is clear and unambiguous and required applicants to demonstrate knowledge relative to parties at a traffic crash scene. The correct answer to the question is (d). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 68 percent of all test takers who answered this question answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 115 is clear and unambiguous and required the applicant to demonstrate knowledge of the officers' duty regarding the Miranda warning. The correct answer choice is (a). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 85 percent of all test takers who answered this question answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 156 is clear and unambiguous and required the applicant to demonstrate knowledge regarding the consent given by an adult needing assistance. The correct answer for Question 156 is (a). Petitioner selected answer choice (b). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 73 percent of all persons who have answered this question have answered it correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct. Question 203 is clear and unambiguous and required the applicant to demonstrate knowledge regarding the officers' responsibility in domestic violence incidents. The correct answer for Question 203 is (c). Petitioner selected the answer choice (d). The correct answer is included in the curriculum material and is not the answer selected by Petitioner. The question is statistically valid, and 68 percent of all test takers who have answered this question have answered the question correctly. Petitioner failed to introduce persuasive evidence establishing that the answer he chose is correct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Florida Department of Law Enforcement enter a final order rejecting Petitioner's challenge to the scoring on Questions 40, 49, 63, 89, 112, 115, 156, and 203 and dismissing the Petition. DONE AND ENTERED this 31st day of May, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2006.
