The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated January 26, 1999, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints against persons holding licenses as real estate brokers and salespersons. Section 455.225, Florida Statutes. The Florida Real Estate Commission operates within the Department of Business and Professional Regulation and is the entity responsible for imposing discipline on those holding real estate broker or salesperson licenses. Sections 475.02 and 475.25, Florida Statutes. On or about July 11, 1996, John and Darleen Bothe, as buyers, and John Zucarelli, as seller, entered into a contract to purchase and sell real property located in Rolling Hills, Florida. Donald L. Brady was the real estate salesperson who represented Mr. and Mrs. Bothe in the transaction, and David Taylor represented Mr. Zucarelli. Mr. Brady represented in the Contract for Sale and Purchase executed July 11, 1996, and in addenda thereto, that, for purposes of the transaction, he was the real estate licensee and Westar International was the brokerage firm with which he was associated. Although the real estate transaction closed, neither Westar International nor Mr. Brady received any commission on the transaction. The commission that was to have been paid to Westar International was placed into an escrow account by the closing agent when Mr. Brady was unable to present the license of his supervising broker at the closing. At the time of the transaction, Mr. Brady's supervising broker, David A. Brady, was not licensed as a real estate broker because he had failed to renew his license. Mr. Brady was not aware at the time that his broker was not licensed. At the time of the transaction, Donald L. Brady had a valid and current license as a real estate salesperson, license number 0537988, which was effective from April 1, 1995, through March 31, 1997. 2/
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 Donald L. Brady did not violate Section 475.42(1)(a), Florida Statutes (1995), and dismissing the Administrative Complaint. DONE AND ENTERED this 14th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1999.
Findings Of Fact Briccio Dizon Valdez, M.D., (Petitioner) is an applicant for licensure as a medical doctor by examination. The Department of Professional and Business Regulation, Board of Medicine, (Board) is the state agency with responsibility for regulation of licensed medical practitioners in the State of Florida. In 1977, the Petitioner became licensed to practice medicine by the State of Florida. On or about September 25, 1984, the Petitioner entered a plea of nolo contendere to a charge of witness tampering in medical malpractice litigation in which the Petitioner was a party. Adjudication was withheld. The Petitioner was placed on two years probation, fined $1,000 and ordered to perform 250 hours of community service. By Final Order filed June 25, 1985, the Petitioner's Florida license to practice medicine was suspended for a period of three years for sexual misconduct with a patient under his care. By Final Order filed February 27, 1987, the Petitioner's Florida license to practice medicine was suspended for a period of 44 days to run concurrently with the existing suspension. The additional suspension was based on the fact that the Petitioner continued to practice during the appeal of the sexual misconduct suspension, incorrectly believing that his appeal stayed the suspension. On or about August 27, 1987, the Petitioner entered a plea of guilty to a charge of engaging in the sale of encyclopedias without an occupational license. Adjudication was withheld. The Petitioner was placed on probation for a period of one year. By Final Order filed October 24, 1988, the Petitioner's Florida license to practice medicine was revoked for practicing medicine without a license. The case was based on an account by an investigator posing as a patient who allegedly received psychiatric services from the Petitioner during his period of suspension. By Final Order filed November 9, 1989, the Petitioner's Georgia license to practice medicine was revoked based on the revocation of his Florida license. In February 1990, the Petitioner submitted a Florida application for medical licensure. By Final Order filed February 8, 1991, the application was denied by the Board. In October 1991, the Petitioner again submitted a Florida application for medical licensure. In May 1992, the Board Credential's Committee reviewed the licensure application of the Petitioner. The Petitioner appeared before the committee, as did Dr. Ernest Miller, who had performed a psychiatric evaluation of the Petitioner. On June 6, 1992, the Board of Medicine reviewed and denied the Petitioner's application. This is the denial at issue in this proceeding. By Order filed August 5, 1992, the Board denied the Petitioner's application for licensure by examination. The letter of denial provides as follows: The Board of Medicine reviewed and considered your application for licensure by examination on June 6, 1992, in Tampa, Florida and has determined that said licensure by examination be denied, stating as grounds therefore: that you have previously had your medical licensure in Florida and Georgia revoked. Prior to revocation, your Florida license was acted against because of sexual misconduct. You have not provided any evidence of rehabilitation since having your licenses revoked. You have not been in medical practice since 1985. You provided false statements in an affidavit accompanying your licensure application and you were lacking in candor in the testimony you provided to the Board's Credentials Committee. The following findings specifically address each of the identified grounds for the Board's denial of the application: PREVIOUS REVOCATION OF LICENSURE IN FLORIDA AND GEORGIA As set forth herein, the Petitioner's Florida license to practice medicine was revoked for practicing medicine without a license. Based on the Florida proceedings, the State of Georgia first suspended and then revoked the Petitioner's Georgia license. The Final Order revoking the Petitioner's license does not prohibit him from applying for re-licensure. DISCIPLINE OF FLORIDA LICENSE PRIOR TO REVOCATION BASED ON SEXUAL MISCONDUCT The evidence establishes that prior to the revocation of his Florida license, the Petitioner's license has been suspended for sexual misconduct. The period of suspension has been served. The order of suspension does not prohibit the Petitioner from applying for re-licensure. LACK OF EVIDENCE OF REHABILITATION SINCE LICENSE REVOCATION There is no evidence that the Board has directed the Petitioner to undertake any defined program of rehabilitation. There is no evidence that the Board directed the Petitioner to undergo psychiatric evaluation. The Petitioner has sought such evaluation on his own initiative. On several occasions between November 1991 and December 1993, the Petitioner was examined by expert psychiatrist Dr. Ernest Miller. Dr. Miller has been professionally familiar with the Petitioner for approximately eleven years. According to the testimony of Dr. Miller, the Petitioner demonstrates no dysfunction or disorder which would prevent him from adequately practicing psychiatry at this time. There is no cause to believe that the events which led to the Petitioner's suspension and revocation will be repeated. Dr. Miller attended the May 26, 1992 meeting of the Board's Credentials Committee and was prepared to speak on his behalf. Although the evidence is unclear as to whether Dr. Miller was provided the opportunity to speak to the committee during the May 26 meeting, Dr. Miller provided to the Board a written record of the evaluation and his findings prior to the meeting. The greater weight of the evidence establishes that there is no "lack of evidence of rehabilitation since license revocation." There is no evidence that the Petitioner manifests dysfunction or disorder which would prevent him from adequately practicing psychiatry. OUT OF MEDICAL PRACTICE SINCE 1985 Other than as set forth herein, the Petitioner has been out of medical practice since 1985, at the approximately time of the license suspension. He has remained active as a mental health counselor since 1989. There is no credible evidence which would establish that the passage of time since the Petitioner actively practiced is sufficient to deny an application for licensure by examination. FALSE STATEMENTS IN AN AFFIDAVIT ACCOMPANYING THE LICENSURE APPLICATION The letter of denial fails to specifically identify which statements the Board considered to be false. Based on the evidence offered at hearing, it appears that the allegedly false statements are in relation to the Petitioner's performance on the "FLEX" exam. In response to an application question directed at whether the applicant had ever failed the FLEX exam, the Petitioner in his initial application for licensure in April 1977 asserts that he has never failed the FLEX examination. At the time the Petitioner submitted the 1977 application, he had failed the Flex exam in both North Carolina and Georgia. In response to an application question directed at whether the applicant had ever failed the FLEX exam, the Petitioner in the October 1991 application asserts that he has taken the FLEX exams in the State of Georgia and passed on his second attempt. In a sworn affidavit dated January 28, 1992 and forwarded to the Board, the Petitioner states that he took and passed the FLEX exam in 1978 on his second attempt in Georgia. At the hearing, the Petitioner testified that he had taken the FLEX exam in June 1977 and December 1977, both times in Georgia. At the Board's request, the Petitioner authorized the Federation of State Medical Boards to furnish the Petitioner's "Examination and Board Action History Report" to the Board. The report identifies the dates upon which the Petitioner has submitted to the Federation Licensing Exam (FLEX) and the results of those tests. Florida law provides that the FLEX exam must be passed by an applicant prior to licensure. According to the report, the Petitioner has taken the Flex exam on four occasions prior to January 31, 1992. In June 1976, the Petitioner took and failed the FLEX examination in North Carolina. At no time has the Petitioner disclosed that he had taken and failed the FLEX exam in North Carolina. The Petitioner has taken the FLEX examination three times in Georgia. He failed the examination on attempts made in December 1976 and June 1977. He passed the Flex exam in Georgia in December 1977. The Petitioner has disclosed only that he had twice taken the exam in Georgia and has asserted that he passed the exam on his second attempt. The Petitioner suggested at hearing that he was confused by the dates of examination and asserted that he had not intended to misrepresent the facts. The assertion is not credible. The evidence establishes that the Petitioner has submitted false statements in the affidavit accompanying his 1991 licensure application. The evidence further establishes that the Petitioner has submitted false statements regarding his experience with the FLEX examination since the time of his initial application for licensure by the State of Florida. LACK OF CANDOR IN THE TESTIMONY PROVIDED TO THE BOARD'S CREDENTIALS COMMITTEE No transcript of the proceedings before the Board's Credentials Committee was offered or admitted into evidence at the hearing. There is no evidence to support the Board's position that the Petitioner demonstrated a lack of candor in the testimony provided to the committee.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional and Business Regulation, Board of Medicine, enter a Final Order denying the application of Briccio Dizon Valdez for medical licensure by examination. DONE and RECOMMENDED this 25th day of April, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 25th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5581 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 9. Rejected, irrelevant. 11. Rejected, irrelevant. 14. Rejected, argumentative, not supported by the greater weight of the evidence. The cited Georgia Final Order does not state that the Georgia license is subject to restoration upon reinstatement of the Florida license. The Georgia order provides that upon revocation, the license "shall not be subject to restoration." The order also provides that should the Respondent wish to return to medical practice in Georgia, the Georgia board may impose such conditions or restrictions as are deemed necessary for the protection of the public. 25-28. Rejected, irrelevant. 30. Rejected, conclusion of law. 31-33. Rejected, irrelevant, not at issue in this proceeding. 36. Rejected, conclusion of law. 37-39. Rejected, irrelevant, not at issue in this proceeding. 40. Rejected, irrelevant. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 17. Rejected, unnecessary. COPIES FURNISHED: Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Paul Watson Lambert, Esquire Michael I Schwartz, Esquire 2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749 Gregory A. Chaires, Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the charges against respondent, R. Hughes, Inc. d/b/a The Odyssey, contained in the Notice To Show Cause in this case. RECOMMENDED this 6th day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1984.
The Issue The issue in this case is whether the Respondent’s license to practice pharmacy should be revoked or otherwise disciplined based on conduct that resulted in criminal convictions and his failure to report the convictions to the Board of Pharmacy (Board), as required.
Findings Of Fact The Respondent has been a licensed pharmacist in Florida and held Florida license PS 36908 at all pertinent times, until it expired on September 30, 2013. On December 14, 2010, the Respondent was indicted in federal court in the Middle District of Florida, Case No. 8:10- CR-530-T-33AEP. On September 5, 2012, the Respondent pled guilty to one count of conspiring to violate 21 U.S.C. sections 841(a)(1), 843(a)(2), 843(a)(3), and 856(a)(1), all of which also constituted violations of 21 U.S.C. section 846, and to two counts of knowingly engaging in monetary transactions, in and affecting interstate and foreign commerce, in property of a value of greater than $10,000, which was derived from a felonious criminal conspiracy to traffick in controlled substances, in violation of 18 U.S.C. section 1957. The plea also admitted to the factual basis of the charges--namely, that the Respondent conspired to allow the pharmacy he owned and operated in Tampa, Florida, to be used by the criminal conspiracy to fill and dispense forged, and otherwise illegal, prescriptions for over a million doses of Schedule II controlled substances, mostly oxycodone. The cash proceeds of the illegal sales were treated as income of the pharmacy, and the Respondent and others participated in monetary transactions whereby the illegally- obtained cash was used to purchase cashier’s checks and other assets and to conceal the illegal source of the money. Based on his guilty pleas, the Respondent was adjudicated guilty and sentenced to 108 months in prison. The special conditions of supervision in the Judgment require the Respondent to “refrain from engaging in any employment related to dispensing prescriptions drugs either in a pharmacy, pain clinic, or other medical environment.” The Respondent’s convictions clearly were related to his practice of pharmacy. The Respondent now maintains that he should not have pled guilty and would not have done so but for the incompetence of his attorney, who advised him to enter into the plea agreement. Based on this ground and others, he has been seeking to have his convictions vacated or his sentence reduced. There is no evidence that he has been successful in altering his convictions or sentence in any way, and the evidence does not suggest that it is likely that he will succeed in accomplishing either objective. The Respondent did not report his guilty pleas to the Board in writing within 30 days. The Respondent contends that his incarceration since his arrest made it impossible for him to do so. However, the greater weight of the evidence was to the contrary. More likely, compliance with the technical requirement to report to the Board in writing was not in the forefront of his mind. The Respondent has been licensed since July 31, 2002. This is the first time action has been taken by DOH and the Board to discipline his license. The Respondent’s actions had the potential to expose numerous people to harm from the misuse and abuse of oxycodone and other controlled substances. This violated the trust placed in him by the State of Florida when he became licensed as a pharmacist. His violation of the public trust demonstrated unsound judgment and a lack of integrity. As a result, the Respondent’s professional standing among his peers was lowered. (The only direct evidence of this was the testimony of DOH’s expert witness, but this fact can be inferred from the nature of his convictions and sentence, as well as the comments of the sentencing federal judge, who viewed the Respondent’s actions as an abuse of the public trust and undeserving of a second chance to be a pharmacist.) The Respondent also contends that he should be treated leniently in this case because alcohol abuse and long-standing emotional and psychological problems were primary reasons for his actions. His contention belies the criminal convictions, which were for intentional crimes and based on voluntary guilty pleas. To the extent that these problems were contributory factors, it is commendable that the Respondent is taking them seriously, and he will benefit in the long run from continuing to seek treatment and counseling to address them. Neither the problems, in themselves, nor the start of treatment and counseling warrants lenient license discipline. The Board has guidelines for the imposition of penalties for license violations. DOH submitted Petitioner’s Exhibit 4 as evidence of the guidelines in effect at the time of the Respondent’s guilty pleas and convictions. However, the exhibit actually purports to certify the guidelines in effect at various times from January 1, 2011, until December 31, 2013. It appears from the exhibit that as of the time of the Respondent’s guilty pleas and convictions, the range of penalties for a first violation of section 456.072(1)(c), Florida Statutes (2012), for a felony conviction or guilty plea was from a year probation and a $3,000 fine to a year suspension to revocation and a $5,000 fine. Fla. Admin. Code R. 64B16-30.001(o)3. (revised Nov. 29, 2006). The range of penalties for a first violation of section 456.072(1)(x), Florida Statutes (2012), is from a $1,000 fine to a $2,500 fine and a year probation. Fla. Admin. Code R. 64B16-30.001(o)(18) (revised Nov. 29, 2006). The guidelines in effect at that time also included aggravating circumstances that would justify deviating above the guidelines and mitigating circumstances that would justify deviating below the guidelines. The aggravating circumstances included: a history of previous violations; in the case of negligent acts, the magnitude and scope of the damage or potential damage inflicted on a patient or the general public; and violations of professional practice acts in other jurisdictions. The mitigating circumstances included: in the case of negligent acts, the minor nature of the damage or potential damage to the patient’s or the general public’s health, safety, and welfare; the lack of previous discipline; restitution of monetary damage suffered by the patient; the licensee’s professional standing among his peers; the steps taken by the licensee to ensure the non-occurrence of similar violations in the future, including continuing education; and the degree of financial hardship incurred by the licensee. In this case, there are no aggravating circumstances justifying a deviation above the guidelines. As for mitigating circumstances: the minor nature of the damage or potential damage to the patient’s or the general public’s health, safety, and welfare from his failure to report his convictions and guilty pleas to the Board might justify a deviation below the guidelines for that violation, but not for the convictions and pleas, themselves; the Respondent’s lack of previous discipline is a mitigating circumstance; restitution of monetary damage to the patient is not relevant; the Respondent’s professional standing among his peers has suffered and does not justify a deviation below the guidelines in this case; the Respondent forfeited all ill-gotten gains to the federal government and has incurred financial hardship as a result of the forfeitures and his incarceration, but that does not justify a deviation below the guidelines in this case; the Respondent has taken several continuing education courses since he has been incarcerated, but that does not justify a deviation below the guidelines in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Pharmacy enter a final order finding the Respondent guilty as charged and revoking his license to practice pharmacy. DONE AND ENTERED this 23rd day of June, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 23rd day of June, 2014. COPIES FURNISHED: Mark Whitten, Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C-04 Tallahassee, Florida 32399-3254 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Yolanda Y. Green, Esquire Lucas L. May, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher S. Switlyk Register No. 53913-018 Federal Satellite Camp Post Office Box 779800 Miami, Florida 33177-9800
The Issue The issue in this case is whether Respondent is guilty of operating as a broker or salesperson without holding a valid and current license as a broker or salesperson, in violation of Sections 475.25(1)(a) and 475.25(1)(e), Florida Statutes.
Findings Of Fact Respondent was licensed as a real estate salesperson in the State of Florida and held license number 0443677. She placed her license with Active One Realty, Inc. in 1990 for two months in the spring and, after a brief interval during which her license was not with Active One, one month in the early summer. Each time, Respondent terminated her license with Active One. On September 4, 1990, Respondent again placed her license with Active One. Respondent worked as a 100% commission agent. She retained 100% of the commission earned by her broker on sales or purchases on which she participated. In return, Respondent paid Active One $150 monthly and $100 per closed transaction. In late October, 1990, Respondent informed her broker that she had purchased a daycare center, which was taking a lot of her time. Accordingly, Respondent wanted again to terminate her license with Active One. The broker and Respondent agreed that her last day of work would be November 5, 1990. The broker offered to return a $450 deposit to Respondent, but she asked that the broker retain it until she returned to Active One, as she intended to do. Respondent terminated her license with Active One effective November 6, 1990. Since that date, Respondent's license has continuously been on current inactive status, meaning that she may not engage in real estate activities for which a license is required. By letter to Respondent dated November 8, 1990, Active One confirmed the effective date of the termination. The letter contains a copy of a completed form informing Petitioner of the termination of the license. On November 26, 1990, Respondent prepared a standard contract for sale and purchase in connection with a proposed purchase of real property by her husband. Respondent completed the portions of the contract showing the buyer's name, purchase price, and mortgage information. Respondent delivered the contract, together with a business card showing Respondent as a salesperson with Active One, to another salesperson who was employed by the broker representing the sellers. Respondent also signed the contract as a cooperating broker on behalf of Active One. Prior to the sellers' execution of the contract, which had already been signed by Respondent's husband, Respondent informed the sellers' agent that certain provisions of the contract needed to be changed. The sellers' salesperson prepared another contract, which Respondent's husband signed December 2, 1990. Over Respondent's objection, the sellers' salesperson insisted that the contract contain an addendum stating that Respondent would be participating in the commission and her spouse was the buyer. Respondent's husband, as buyer, also signed the addendum on December 2. Respondent failed to inform Active One of the contract, which the sellers signed on December 8, 1990. The closing was set for no later than January 30, 1991. Active One learned of the contract by chance. An employee of the title company writing the title insurance noticed the name of Active One on the contract. He mentioned the fact to his wife, who is a broker with Active One. When the broker called Respondent and asked her why she was writing a contract when she was no longer licensed, Respondent said only that she had not realized that she was not licensed.
Recommendation Based on the foregoing, it is hereby recommended that the Florida Real Estate Commission enter a final order determining that Respondent violated Sections 475.42(1)(a) and, thus, 475.25(1)(e), Florida Statutes, issuing a reprimand, and imposing an administrative fine of $1000. RECOMMENDED this 17th day of June, 1992, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1992. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Poornawatie Tiwari 9916 N.W. 9th Ct. Plantation, FL 33322
Findings Of Fact At all times relevant hereto, Denver Owens was licensed as a barber in this state and has been so licensed for 26 years. Although Owens has worked in barbershops for most of the last 26 years, he never owned a shop until he opened this barbershop in Apopka some two years ago. At the time he opened the shop he obtained an occupational license which, with his current barber's license, he thought was all he needed to operate a one-man shop. On April 26, 1984, an inspector with the Department of Professional Regulation saw the barber's sign on the site not on her records and entered the shop to inspect. The only discrepancy which is material to the issues here is that no registration had been issued for the barbershop. When questioned by the inspector, Owens readily acknowledged that he had not applied for registration for a shop because he was unaware such registration was required. The following day Owens submitted an application to register his shop and obtained registration dated May 4, 1984. When told the Department proposed to assess a fine of $250 against him for operating without a shop license, Owens requested a hearing, the file was forwarded to the Division of Administrative Hearings, and this hearing ensued.
Findings Of Fact Paul M. Leyden was licensed as a dentist in Florida in 1945 and was so licensed at all times here relevant. Helen Hampton went to Sheppard Dental Center on September 21, 1981, to have crowns on her lower teeth replaced and was referred to Respondent for consultation and treatment. At this initial appointment Respondent examined the crowns Ms. Hampton wanted replaced, viewed X-rays that Ms. Hampton had brought with her of these teeth, and advised Ms. Hampton that the existing crowns appeared to be alright. Ms. Hampton did not like the appearance of these crowns and wanted them replaced. An appointment to do this work was made. On October 1, 1981, Respondent removed the existing crowns on teeth Nos. 20 through 28 of Ms. Hampton and took impressions for replacement crowns. Decay was noted on teeth Nos. 21 and 22, the decay was removed, and the space left thereby cemented. The teeth were prepared and temporary crowns put on pending the construction of the permanent crowns by the laboratory. Ms. Hampton was given an appointment for October 12, 1981, to have the permanent crowns seated. The laboratory was two days late and on October 15, 1981, the permanent crowns were seated by Respondent. Ms. Hampton was pleased by the appearance of these crowns. On October 19, 1981, Ms. Hampton returned to Respondent for replacement of crowns on teeth Nos. 2, 3, 4, 9, and 14. At this time she complained of pain in the lower jaw where crowns had recently been put. At this time Ms. Hampton wanted tooth No. 24 redone but this was postponed until the crowns were replaced on the upper jaw on November 5, 1981. When Ms. Hampton first visited Respondent, he observed some irritation in her gums and prescribed a penicillin mouthwash. Subsequently, when Ms. Hampton complained about soreness in the lower jaw where crowns had been placed on teeth Nos. 20 through 28, Respondent again prescribed penicillin mouthwash. Before the crowns were replaced, he relied upon the X-rays Ms. Hampton provided. After the crowns had been replaced and Ms. Hampton complained of pain and soreness, no additional X-rays were taken. Respondent told Ms. Hampton that she could expect soreness for sometime after new crowns were installed Ms. Hampton's testimony that Respondent told her she could experience pain for two years after crowns were installed was denied by Respondent, who testified that he advises all his patients that crowns can be sensitive for three to six months. On November 23, 1981, when the redone crown was replaced on tooth No. 24, Ms. Hampton again complained of pain in the lower jaw and Respondent suggested she use a water pic. Ms. Hampton called the Sheppard Dental Center several times to talk to Respondent about the pain in her lower jaw, but was unable to make contact with him. When Respondent tried to return her calls, she was out. On December 14, 1981, Ms. Hampton did speak with Respondent on the telephone and complained about the pain. Respondent prescribed penicillin mouthwash with Phenaphen and suggested Ms. Hampton make an appointment for him to check her teeth. By this time Ms. Hampton had been in Respondent's office three times since he had placed the crowns on teeth Nos. 20 through 28, each time she complained of pain in those teeth, and each time Respondent had done other work in her mouth, paid scant attention to her complaints, and left Ms. Hampton quite dissatisfied with the treatment she received. Accordingly, when Respondent, on December 14, 1981, suggested Ms. Hampton come back for him to check her teeth, she did not do so. On December 15, 1981, Ms. Hampton went to John T. Flanigan, D.D.S., complaining of pain in her lower jaw and told him she had those crowns replaced some two months ago. Dr. Flanigan took Panorex X-rays, conducted a visual examination of Ms. Hampton's mouth, found the margins on some of the crowns short, which could cause sensitivity, and suggested she go back to the dentist who had installed the crowns. He did not treat Ms. Hampton. In his deposition (Exhibit 2) taken February 1, 1983, Dr. Flanigan reviewed the X-rays of Ms. Hampton's crowns and testified that tooth No. 20 had an open and short margin on the distal side; tooth No. 21 had an open margin on the mesial side; tooth No. 28 had an open margin on the mesial side; tooth No. 29 had an open margin on the mesial side; and several teeth had short margins on the lingual side. Dr. Flanigan concluded that the crowns on teeth Nos. 20 and 21 were below minimal acceptable standards for the community. In March, 1982, Ms. Hampton went to Woodrow W. Garcia, D.D.S., complaining of pain in the lower jaw. Dr. Garcia briefly examined her, took full mouth X-rays, and told her to go back to the clinic where she had the work done. His examination revealed, inter alia, a fracture of the root of one of the capped teeth. She told Dr. Garcia it hurt so bad "and so I advised her to have it extracted but to go back to the Sheppard Dental Clinic and let them do what they had to do over there because I did not want to take that case on" (Exhibit 1 p. 8). Ms. Hampton returned to Dr. Garcia on May 3, 1982, again complaining of pain. In his deposition (Exhibit 1) Dr. Garcia appears to confuse the March and May visits, as Exhibit 1 leaves some doubt as to whether X-rays were taken on the March or May visit, or both. Regardless of when the X- rays were taken, Dr. Garcia observed some decay on the capped teeth but performed no work on Ms. Hampton. Subsequent to her last visit to Respondent, Ms. Hampton complained to Petitioner and, on March 22, 1982, she was examined by Daniel R. Manrique, Jr., D.D.S. Dr. Manrique heard the patient's complaints, took X-rays of teeth Nos. 20 through 28, and conducted a clinical examination on Ms. Hampton. The radiological examination revealed (Exhibit 5): Tooth No. 20 - distal margin open and short Tooth No. 21 - mesial margin open and short Tooth No. 22 - mesial margin open and short Tooth No. 26 - mesial and distal margins open and short. The clinical examination revealed open margins on teeth Nos. 20 and 21 and margins short on all other teeth. On teeth Nos. 23 and 26 the margins were short as much as 2 mm. Dr. Manrique concluded that the work done on Ms. Hampton by Respondent failed to meet the minimum standards of the community. Following the examination of Dr. Manrique, Ms. Hampton went to a Dr. Collins and he replaced the crowns on the teeth that were bothering her. When open margins exist they can lead to decay of the tooth under the crown, as there is a space between the crown and the tooth that is not protected by enamel and can be attacked by bacteria. If the tooth is vital such decay will cause pain. A root canal had previously been done on Ms. Hampton's tooth No. 20, so this tooth was no longer vital. She would not experience pain if decay started in that tooth as she would in a vital tooth. Where short margins exist the crown does not cover the prepared surface where the enamel has been disturbed or removed by the dentist in preparing the tooth to receive the crown. Short margins can also lead to decay even if below the gingiva, as the exposed dentine is more susceptible to caries than is the tooth covered by enamel. Some tolerance in the fit of the crown over the tooth is inevitable; however, the amount of prepared tooth surface the short crown fails to cover should average about 50 microns, or .050 millimeters. Accordingly, a crown that is two millimeters short far exceeds the allowable tolerance. Since the enamel has been removed to prepare the tooth for the crown, failure of the crown to cover the prepared surface subjects the tooth to attack by bacteria where there is no enamel to provide protection. All witnesses, including Respondent, testified that the crown on tooth No. 20 should have been redone because of the open margin. The open margins on teeth Nos. 21 and 22 were also recognizable from the X-rays, as were the short margins on most of these teeth. Since the X-rays cannot penetrate the metal in the crown, all sides of the tooth cannot be observed on the X-rays that were taken. The only witness who acknowledged performing a clinical examination of Ms. Hampton while the crowns installed by Respondent were in place is Dr. Manrique. No evidence to rebut his clinical findings was submitted. Before crowns are permanently seated, it is routine dental practice to place these crowns on the teeth for which they are made to see if they fit. When doing this the dentist can observe if the crown covers the prepared surface and fits snugly to the teeth so no open margins will remain when the crown is cemented on. The crowns on teeth Nos. 20 and 21 should have been observed by Respondent to fit so poorly that open margins would exist when the crowns were permanently attached. Likewise, the crowns for teeth Nos. 23 and 26, which were short by two centimeters when examined by Dr. Manrique, certainly should have been found unacceptably short when first put on these teeth by Respondent. Leaving open margins on crowns sufficiently large that an explorer can be inserted between the crown and the tooth constitutes dental practice which fails to meet the minimum standards of performance generally prevailing in the community. Leaving margins on crowns that fail to cover as much as 1.5 to 2 millimeters of prepared tooth surface likewise fails to meet the minimum standards of performance in the community.
The Issue Whether Petitioner's license as a Professional Surveyor and Mapper became void on March 1, 1997, by operation of Section 455.271, Florida Statutes. If so, whether the Board of Surveyors and Mappers (Board) has the authority to reinstate Petitioner's license in any manner other than that set forth in Section 455.271(6), Florida Statutes. Whether the Board is estopped from asserting that Petitioner's license should not be reinstated. Whether Petitioner is entitled to have his license reinstated by operation of Section 472.041, Florida Statutes.
Findings Of Fact Petitioner was initially licensed as a Professional Surveyor and Mapper on July 11, 1986, and issued license number 0004297. Such licenses must be renewed every two years pursuant to Section 472.017, Florida Statutes. The Board is an agency of the State of Florida with the duty to regulate those licensed as Professional Surveyors and Mappers. Pursuant to Section 472.015, Florida Statutes, DBPR is the agency of the State of Florida that actually issues such licenses. It is undisputed that Petitioner renewed and maintained an active license through the 1993/1994 biennium, which ended February 28, 1995. There is a conflict in the evidence as to whether Petitioner renewed his license after the 1993/1994 biennium. Petitioner testified that he mailed to DBPR by regular mail a form renewing his license for the 1995/1996 biennium, enclosed a check in the appropriate amount with the renewal form, and requested in writing on the back of the renewal form that the status of his license be changed from active to inactive because he could not at that time meet continuing education requirements. Petitioner produced a copy of the renewal form and a copy of the check, dated February 10, 1995, he said he mailed to DBPR. Petitioner did not know whether his check had been cashed, and he did not receive anything from DBPR reflecting that his license had been renewed and placed in an inactive status. Whenever any licensee renews a professional license, DBPR issues and mails a two-part license containing a wallet portion and a display portion that verifies the renewal. 3/ Petitioner made no effort to determine why his check had not been cashed or why he had not received his renewed license. Petitioner's failure to follow-up on his renewal request can be explained, in part, by the fact that his life was in disarray, both from a personal and a professional perspective. During this period in 1995, Petitioner had closed his surveying business and was working in an unrelated business, he was living in the marital residence on an intermittent basis, and he was depending on his estranged spouse and his children to deliver his mail to him. Respondent's records do not reflect that Petitioner took any action after the 1993/94 biennium to renew or inactivate his license. Had Petitioner taken such action, Respondent's records would have contained a renewal request form, the request to inactivate the license, and documentation that a renewed license had been forwarded to Petitioner. Had DBPR received a renewal check from Petitioner, its records would reflect that the check had been received and negotiated. The conflict in the evidence is resolved by finding that Petitioner failed to renew his license after the 1993/1994 biennium. On March 1, 1995, Petitioner's license became delinquent pursuant to Section 455.271(5), Florida Statutes. On March 9, 1995, DBPR changed its computer records to reflect that Petitioner's license status had been changed to delinquent. In November 1996, Petitioner's address of record with DBPR was his marital residence, 1620 Southwest 99 Court, Miami, Florida. Petitioner continued to use the marital residence as his address of record with the Board and DBPR until November 1999. There was a dispute in the evidence as to whether DBPR and the Board had Petitioner's correct address of record. Petitioner introduced a roster of individuals and firms holding active Professional Surveyors and Mappers licenses that was prepared from the Board's data base as of October 1994. This roster contained an incorrect address for Petitioner. Respondent established that this roster was not used by either the DBPR or the Board to mail any of the forms or notices at issue in this proceeding. Respondent also established that both DBPR and the Board had Petitioner's correct address of record at all times pertinent to this proceeding. The conflicting evidence is resolved by rejecting Petitioner's contention that the pending cancellation notice was not mailed to his address of record in November 1996. Petitioner testified that he never received any notice that his license was about to be cancelled. The records of DBPR established that a Notice of Pending Cancellation of License was processed by DBPR on November 18, 1996, and mailed to Petitioner at his address of record on November 22, 1996. The notice advised that Petitioner's license would become null and void on March 1, 1997, if the license was not placed on an active or inactive status by that date. The notice also advised that it was the only notice Petitioner would receive before his license became null. Petitioner initiated no communication with either DBPR or the Board in 1996, 1997, or 1998. On March 1, 1997, Petitioner's license became null by operation of Section 455.271(6), Florida Statutes. DBPR entered in its computer system on March 9, 1997, that the status of Petitioner's license had been changed from the classification of "delinquent" to the classification of "null and void." In 1999, Petitioner decided to return to activities requiring licensure as a Professional Surveyor and Mapper. When he applied for a job with a surveying company in the fall of 1999, he learned that his license was classified null and void. Petitioner, through attorney T. S. Madson, II, moved the Board to reinstate his license and requested the opportunity to present argument in support of his motion at the Board meeting scheduled for January 12-14, 2000, in Tallahassee, Florida. Mr. Madson and Petitioner appeared before the Board on January 13, 2000. Upon hearing Petitioner's claim that he had not received the pending cancellation notice in November 1996, the Board voted to reinstate his license. 1/ The Board did not enter a written order memorializing that vote. On March 6, 2000, counsel for DBPR filed a formal motion that the Board reconsider its vote to reinstate Petitioner's license, arguing that the Board lacked the legal authority to reinstate a license that had become null and void. Subsequent to the Board's vote on January 13, 2000, Petitioner engaged in activities that require licensure as a Professional Surveyor and Mapper. Until May 2000, Petitioner sealed surveys using license number 0004297. On May 18, 2000, at a duly noticed meeting in Key West, Florida, with Petitioner and Mr. Madson in attendance, the Board addressed DBPR's motion to reconsider. After debate, the Board voted to grant the motion to reconsider and thereafter voted to rescind its previous order reinstating Petitioner's license. A written Order Rescinding Reinstatement of License was formally entered on May 31, 2000. The basis for the vote was the Board's determination that it lacked the legal authority to reinstate Petitioner's license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application that his license be reinstated. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 13th day of February, 2001.
Findings Of Fact 1. The Administrative Law Judge’s Findings of Fact are hereby approved and adopted and incorporated herein by reference. 2. There is clear and convincing evidence to support the Administrative Law Judge’s Findings of Fact.
Conclusions THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the “Board”) pursuant to Section 120.57(1)(I), F.S., on August 9, 2001, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the Administrative Law Judge in the above styled case, and Respondent's Exceptions to the Recommended Order. The Petitioner was represented by Robert A. Crabill, Esq. The Respondent was present at the Board meeting and was represented by his counsel, Jeffrey A. Blau, Esq. Upon consideration of the Administrative Law Judge’s Recommended Order, the exceptions filed thereto, the arguments of the parties, and after a review of the complete record in this matter, the Board makes the following findings:
Conclusions THIS MATTER came before the Construction Industry Licensing Board (hereinafter referred to as the “Board”) pursuant to Section 120.57(1}(I), F.S., on October 11, 2001, in Fort Lauderdale, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the Administrative Law Judge in the above styled case. The Petitioner was represented by Robert A. Crabill, Esq. The Respondent was not present nor was he represented by Counsel at the Board meeting. Upon consideration of the Administrative Law Judge’s Recommended Order and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings:
