Findings Of Fact The Department of Professional Regulation, Board of Dentistry, filed an Administrative Complaint in DPR Case Number 00-52375 against the Petitioner's license to practice dentistry on May 13, 1986. The Petitioner did not dispute the facts alleged in the Administrative Complaint and the Board of Dentistry held an informal hearing, pursuant to Section 120.57(2), Florida Statutes, on September 13, 1986. On October 2, 1986, the Board of Dentistry issued a Final Order suspending the Petitioner from the remunerative practice of dentistry for a period of ten (10) years and advised the Petitioner of his right to appeal the Board's Final Order. The Petitioner did not appeal the October 2, 1986 Final Order of the Board of Dentistry. On or about May 1, 1987, and/or May 2, 1987, the Board of Dentistry met to consider correspondence from the Petitioner seeking a determination of compliance with the Board's October 2, 1986 Final Order for his proposal to do volunteer community service dental work at "St. Catherine Laboure Manor" in Jacksonville, Florida. The Board of Dentistry requested further clarification from the Petitioner and took no further action with respect to the Petitioner's request. On June 10, 1987, the Board of Dentistry met to consider the Petitioner's request to allow him to provide volunteer community service dental work under indirect supervision, and on June 26, 1987, the Board of Dentistry issued an Order Denying the Modification. The Petitioner did not appeal the June 26, 1987, Order of the Board of Dentistry. On or about March 9, 1988, the Petitioner submitted his second request to the Board of Dentistry for modification of its October 2, 1986 Final Order. The Petitioner identified the following reasons as why the Board of Dentistry should grant his request: My obligation to the people of the State of Florida was fully satisfied on September 28, 1987 (enc.). My civil rights were restored on February 25, 1988 (enc.). The fine imposed by the Board of Professional Regulation ($2000.00) has been paid in full. Since July 1987 I have been treating patients in St. Catherine Laboure' Manor under the direct supervision of Owen Boales D.D.S., as required by order of the Board (enc.). I am currently 64 years of age and need gainful employment. My wife and I are currently surviving primary on her earnings as an employee of the Florida Community College at Jacksonville. My mentally disabled son was admitted to The Northeast Florida State Hospital approximately one month after my arrest. His condition would be benefited by whatever personal attention and care my wife and I may be able to provide. The ten year suspension order now in effect is tantamount to lifetime punishment. This long suspension does not benefit the public but severely obstructs rehabilitative effort. It minimizes the opportunities for professional public service and prevents professional employment. It reduces the available options to demonstrate reliability and observable conformity to the profession's ethical standards. It will continue to impede all my effort to becoming a self sustaining productive and worthy member of society. On April 23, 1988, the Board of Dentistry met to consider the Petitioner's second request for modification of the Board's October 2, 1986 Final Order. After discussion and consideration of the evidence and arguments of the Petitioner, the Board of Dentistry on July 13, 1988, issued an Order Denying Modification of Final Order. The Petitioner did not appeal the Board's July 13, 1988 Order denying his second request. On or about June 5, 1990, the Petitioner through his attorney submitted his third request to the Board of Dentistry for a modification of the October 2, 1986 Final Order. The Petitioner's third Motion for Modification of Final Order submitted to the Board on or about June 5, 1990, did not contain information or circumstances that were substantially different from those known to the Board at the time the Final Order of October 2, 1986, was entered, at the time the first order was entered denying the modification request, or that were known to the Board when it had previously heard and denied Petitioner's second request in 1988. On July 28, 1990, the Board of Dentistry met to consider the Petitioner's third request for modification of the October 2, 1986 Final Order. After discussion of the parties and upon the advice of legal counsel, the Board of Dentistry on August 13, 1990, issued an Order Denying Modification of Final Order. The Petitioner timely sought an appeal of the Board's August 13, 1990 Order in the First District Court of Appeal, Case Number 90-2369. On September 4, 1991, the First District Court of Appeal issued its opinion where they found the August 13, 1990 Final Order to be ambiguous, vacated the August 13th Final Order, and remanded the case back to the Board of Dentistry for further proceedings. On October 8, 1991, the First District Court of Appeal issued its Mandate to the Board of Dentistry to hold further proceedings consistent with the Court's opinion. On or about October 15, 1991, the Petitioner submitted an Amended Motion for Modification alleging for the first time that "there had been material changes in circumstances since his suspension was entered and/or since the previous rulings as to his suspension." On November 8, 1991, the Board of Dentistry met to consider the Petitioner's third request for modification of the Board's October 2, 1986 Final Order, the Amended Motion for Modification of Final Order, and the Opinion and Mandate of the First District Court of Appeal. After discussion and consideration of the Petitioner's requests for modification, the Opinion and Mandate of the First District Court of Appeal, and the evidence presented, on December 12, 1991, the Board of Dentistry issued a Final Order on Remand granting the Petitioner's Amended Motion for Modification of the Board's October 2, 1986 Final Order. The Petitioner is a sole proprietor of a professional practice of dentistry. His principal office and domicile are located in Jacksonville, Florida. He has fewer than twenty-five (25) full-time employees, and his net worth, at the time of filing, was less than two million ($2,000,000) dollars. The Petitioner incurred appellate attorney's fees in the amount of $8,990.00 and costs in the amount of $323.92. The Respondent did not dispute the reasonableness of the fees and costs in this case.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since August 27, 1971, a physician licensed to practice medicine in the State of Florida. He holds license number ME 0018306. Respondent previously faced charges of professional misconduct in DPR Case No. 89-0925. In that case, Respondent was charged with practicing medicine with an inactive license from on or about January 1, 1984, until on or about November 22, 1989. The matter was resolved by the parties entering into a settlement stipulation, which was approved by the Board of Medicine in a final order entered August 13, 1990. Under the terms of the agreement, Respondent, without admitting his guilt, agreed to pay a $500.00 administrative fine and not to "in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto." Facts Relating to Case No. 93-2640/Administrative Complaint #1 From on or about February 8, 1991, to March 24, 1991, patient R.D., a 43 year old male who had tested positive for the Human Immunodeficiency Virus (HIV), was hospitalized at North Florida Reception Medical Center Hospital (hereinafter referred to as "MCH"). During his hospitalization, R.D. received treatment for advanced Acquired Immunodeficiency Syndrome (AIDS) and related complications. Elizabeth Mutch, M.D., was R.D.'s attending physician at MCH. R.D. was experiencing difficulty in swallowing oral medications due to multiple ulcerations in his mouth secondary to an uncontrolled Herpes Virus. On or about March 16, 1991, Dr. Mutch determined that R.D. would benefit from intravenous medications through a central venous line. She therefore wrote an order for "central venous line placement Monday 3/18." In another written order, she directed that "IV fluids [be held] until central venous line in place." Both orders were dated March 16, 1991. In her progress notes for March 16, 1991, Dr. Mutch indicated "Central line ASAP." In the middle of March of 1991, Respondent was the acting medical director of MCH. In addition to his duties as acting medical director, he was on the staff of the hospital's internal medicine department. Respondent was the only internist on staff at the hospital with any significant experience in central line placements of the type ordered by Dr. Mutch, although there was a surgeon affiliated with the hospital, a Dr. Capliwski, who had such experience and in fact performed most of the placements needed by patients at the hospital. Sometime after she wrote the order for central venous line placement for R.D., Dr. Mutch verbally requested Respondent to attempt such placement at his earliest possible convenience. On March 18, 1991, Respondent made approximately five unsuccessful attempts to place a subclavian venous line in R.D., the first of which yielded air, indicating that R.D.'s lung had been punctured. Following these unsuccessful placement attempts, Respondent ordered a chest x-ray for R.D. The x-ray taken revealed no evidence of pulmonary distress. Respondent's progress notes for March 18, 1991, do not reflect that he ordered a surgical consultation that day after his placement attempts failed. The next two or three days Respondent was out of town on hospital business in his capacity as the hospital's acting medical director. Respondent reasonably assumed that, in his absence from the hospital, Dr. Mutch would ask Dr. Capliwski to try to perform the central venous line placement that she had initially requested Respondent to attempt. Upon his return to the hospital, Respondent learned that no such attempt had been made. Respondent therefore again made several attempts at central venous line placement. Placement was attempted via R.D.'s jugular vein. While the approach was different, the results were the same. Respondent was unable to accomplish his objective. Following this second series of unsuccessful placement attempts, Respondent ordered another chest x-ray for R.D. On March 24, 1991, at approximately 1:00 a.m., R.D. began to have difficulty breathing. He also had a rapid heart rate, a pulse rate of 140, a respiratory rate of 30, and a temperature of 103.3. degrees. Respondent was the "on call" physician. He was at home, approximately 35 miles away from the hospital. The duty nurse telephoned Respondent and spoke with him about R.D. 3/ Respondent instructed the nurse to give R.D. Tylenol and to make sure that he was receiving oxygen. He did not suggest that R.D. be seen by Dr. Chandler, the physician manning MCH's emergency room. By 9:15 p.m. that same day, R.D.'s condition had further deteriorated. His respiratory rate had increased to 40. The duty nurse again telephoned Respondent at home and informed him of R.D.'s deteriorating condition. This time Respondent directed that R.D. be immediately evaluated by Dr. Chandler. In accordance with Respondent's directive, Dr. Chandler was contacted. He ordered a chest x-ray for R.D. The x-ray revealed a 50 percent pneumothorax with right mediastinal shift. Dr. Chandler therefore performed an emergency thoracotomy. Arrangements were then made to transfer R.D. to Lake Shore Hospital. At approximately 10:10 p.m. on March 24, 1991, shortly after he was placed in the ambulance that was to transport him to Lake Shore Hospital, R.D. experienced respiratory arrest and expired. An autopsy was performed by Carolyn Hopkins, M.D., of the local Medical Examiner's Office. The autopsy report prepared by Dr. Hopkins lists "complications of acquire[d] immunodeficiency syndrome" as the cause of death. More specifically, Respondent died as a result of a tension pneumothorax. Facts Relating to Case No. 93-2683/Administrative Complaint #2 Counts 1 and 2 Respondent's license to practice medicine in the State of Florida was inactive due to non-renewal from on or about December 31, 1983, until approximately November of 1989. Respondent engaged in the practice of medicine at Cypress Medical and Professional Centre (hereinafter referred to as the "Centre") in Winter Haven, Florida, during a portion of the period that his medical license was inactive. On or about September 12, 1989, Respondent entered a plea of nolo contendere to the criminal offense of referring a patient to a business entity without disclosure of financial interest, in violation of Section 458.327(2)(c), Florida Statutes (1989). It was stipulated by Respondent and the prosecutor at the time of the entry of the plea that the crime to which Respondent pled was a lesser included offense of the crime of practicing medicine without a license. On or about October 25, 1989, adjudication of guilt was withheld and Respondent was ordered to pay a $500.00 fine. Counts 3, 4 and 5 On January 20, 1989, patient M.L. went to the Centre complaining, among other things, of chronic headaches. M.L. was first seen by a chiropractor at the Centre, who referred her "to M.D. for complete detailed neurologic-orthopedic exam." On January 24, 1989, M.L. was examined by Respondent at the Centre. The records maintained at the Centre reflect that, during this initial examination, Respondent explored the history and possible etiology of M.L.'s chronic headaches. The entries made on the Progress Notes and Patient Control Sheet maintained at the Centre (11 of which apparently were made by, or at the direction of, Respondent) reflect that M.L. visited the Centre on 21 different occasions. Bills from the Centre for 20 of these 21 visits were signed by Respondent. 4/ The Progress Notes and Patient Control Sheet do not reflect that Respondent saw M.L. on all 20 visits covered by these bills. Facts Relating to Case No. 94-0234/Administrative Complaint #3 On November 22, 1989, patient A.M.D., a 40-year old female, presented to the emergency room at Polk General Hospital (hereinafter referred to as "PGH") in Bartow, Florida, with complaints of a high fever, abdominal pain, vomiting and coughing. An examination revealed that she had rapid pulse and respiration rates. It was further observed that she had a flushed face and epigastric tenderness. A.M.D. was treated in the PGH emergency room with, among other things, an antibiotic, vibramyacin, for which she was also given a prescription. She was then discharged. A.M.D. returned to the PGH emergency room on November 23, 1989, with symptoms similar to those with which she had presented the previous day. She was again treated and discharged. Records of these two emergency room visits were made and kept by the hospital. A.M.D. paid a third visit to the PGH emergency room on November 24, 1989, with symptoms similar to those she had exhibited during her first two visits. On this occasion, she was admitted to PGH in the care of Respondent. She remained in Respondent's care throughout her entire stay at the hospital. As her attending physician, it was incumbent upon Respondent to review the records of A.M.D.'s prior two emergency room visits. Upon A.M.D.'s admission to the hospital, Respondent failed to order multiple blood cultures, notwithstanding that, as Respondent should have known, Respondent was already on an antibiotic. A single blood culture is insufficient to properly diagnose the condition of such a patient. Respondent's initial diagnosis of A.M.D., made without the benefit of results of multiple blood cultures, was undetermined gastrointestinal problems. A.M.D. was treated with, among other things, antibiotics. Although A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure, Respondent did not attempt to obtain a consultation with an infectious disease specialist, 5/ nor did he order that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics. A.M.D. continued to run a fever until December 4, 1989, after which her condition slightly improved. Even though a blood culture had indicated that A.M.D. had a staphylococcal infection, Respondent nonetheless ordered that the intravenous administration of antibiotics be discontinued because A.M.B. had been afebrile for a few days. Thereafter, A.M.D.'s condition quickly deteriorated. She suffered congestive hear failure, but Respondent did not seek to obtain a consultation with a cardiologist. On December 11, 1989, 17 days after she had been admitted to the hospital, A.M.D. expired. At the time of her death she was not on antibiotics. This was a factor which contributed to her demise. Respondent's final primary diagnosis of A.M.D. was toxemic shock, protracted. His secondary diagnoses included: staphylococcal septicemia, acute; cholelithiasis, chronic; and pneumonitis, subacute, staphylococcal. In not doing the following while A.M.D. was hospitalized at PGH and under his care, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time: ordering multiple blood cultures upon A.M.D.'s admission to the hospital in order to properly assess her condition; attempting to seek a consultation with an infectious disease specialist and ordering that A.M.D.'s treatment plan be modified to include intravenous administration of high dosages of at least two different broad spectrum, latest generation antibiotics when A.M.D. still had a high fever following the first several days of her hospitalization and the diagnosis of her condition remained obscure; seeking to obtain a consultation with a cardiologist when A.M.D. suffered congestive heart failure; and appropriately treating A.M.D. with antibiotics throughout the time she was under his care, including the period following the brief improvement in her condition and reduction of her temperature to normal. Facts Relating to Case No. 94-0235/Administrative Complaint #4 On or about August 17, 1992, patient A.A., a 69 year old male, presented to Respondent at Preferred Quality Medical Care in Plantation, Florida with complaints of shortness of breath and nocturia (two to three times a night). A.A. provided Respondent with a written medical history, which revealed, among other things, that he was a heavy smoker. During his physical examination of A.A., Respondent observed and noted in his written record of the examination, among other things, inspiratory wheezes, prolonged expiration, shortness of breath and that A.A. gave the appearance of being chronically ill. Respondent diagnosed A.A.'s condition as C.O.P.D. (chronic obstructive pulmonary disease) and what Respondent termed "tobaccism," which is a nonstandard diagnosis. Respondent ordered an EKG, spirometry, urinalysis and blood tests. He failed to order a chest x-ray, notwithstanding that A.A. had indicated he was a heavy smoker and that Respondent's examination had revealed that A.A. had shortness of breath and that he had the appearance of someone who was chronically ill. Under such circumstances, it was quite possible that A.A. was suffering from C.O.P.D., as Respondent had opined. There were other possibilities, however, such as cancer, 6/ tuberculosis, pneumonia and congestive heart failure. In order to fully investigate these other possibilities, it was necessary for Respondent to order a chest x-ray. On or about September 11, 1992, A.A. returned to Respondent complaining of intermittent coughing spells. Respondent examined A.A. and observed prolonged wheezing. Respondent diagnosed A.A.'s condition as C.O.P.D. and hypertensive disease and treated him with bronchodilators. Although a diagnosis of hypertensive disease requires a baseline chest x-ray as part of the initial evaluation, Respondent made his diagnosis without the benefit of such an x-ray. A.A. next visited Respondent on October 19, 1992, complaining of extreme nervousness and inability to sleep. Respondent found that A.A. was expectorating large amounts of mucus. Respondent treated A.A. with Sinequan, which is an antidepressant that helps with sleep. Once again Respondent failed to order a chest x-ray. A.A. returned to Respondent on November 23, 1992, complaining of shortness of breath and nocturia. Respondent examined A.A. and discovered a soft mass in the supraclavicular area. He also noted that A.A. had a heart murmur. Respondent finally ordered a chest x-ray. The x-ray revealed pleural effusion. Subsequent testing detected inoperable cancer, which led to A.A.'s death on May 9, 1993. In waiting until A.A.'s fourth visit before ordering a chest x-ray and, as a result, not making an earlier diagnosis of A.A.'s cancer, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent internist would have recognized as being acceptable and appropriate at the time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of subsection (1) of Section 458.331, Florida Statutes, noted above, dismissing the remaining allegations against him and disciplining him for the violations he committed by suspending his license for a period of eighteen months, placing him on probation for the following five years, and imposing an administrative fine in the amount of $4,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of November, 1994. STUART M. LERNER 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 15th day of November, 1994.
Findings Of Fact Based upon the pleadings and documents received into evidence at the hearing, the following relevant facts are found: Respondent Edward T. Goldstein holds Florida Teaching Certificate No. 174841, Post Graduate, Rank II, valid through June 30, 1992, covering the areas of science, junior college, administration and supervision. Based upon an investigation conducted by Police Detective Darron Peter Castiglione with the Hollywood Police Department, respondent Goldstein was arrested in September of 1977 and charged with two counts of first degree murder for the shooting and killing of his wife and son. (Petitioner's Exhibit 1). Respondent was found to be incompetent to stand trial and spent several years at the South Florida State Hospital. By "Order to Transport" dated March 30, 1981, Arthur J. Franza, Circuit Judge of the Seventeenth Judicial Circuit, found respondent competent to stand trial and ordered him to be transferred from the Hospital and placed in the custody of the Broward County Jail. (Petitioner's Exhibit 6). On June 1, 1981, respondent was indicted for two counts of murder in the first degree. (Petitioner's Exhibit 3). After a trial, respondent was adjudged guilty of two counts of murder in the first degree by Circuit Judge Franza. (Petitioner's Exhibit 4). On February 18, 1982, Judge Franza entered his Order sentencing the respondent to life imprisonment with a mandatory minimum twenty-five (25) year sentence on each of the two counts, the sentences to run concurrently. (Petitioner's Exhibit 5).
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violations of Section 231.28(1), Florida Statutes, and that respondent's Teaching Certificate Number 174841 be permanently revoked. Respectfully submitted and entered this 28th day of July, 1982, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1982. COPIES FURNISHED: Craig R. Wilson, Esquire Ruffolo & Wilson The Law Building 315 Third Street West Palm Beach, Florida 33401 Edward T. Goldstein Inmate No. 08163 Avon Park Correctional Institute Avon Park, Florida Joseph Varon, Esquire 2432 Hollywood Boulevard Hollywood, Florida Donald Griesheimer, Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
Findings Of Fact Petitioner, Henry L. Curry, was employed by Respondent, Department of Health and Rehabilitative Services, from October 26, 1970 to March 3, 1988. Petitioner was employed at Florida State Hospital, Chattahoochee, as a Human Services Worker I, Forensics, Unit 20, during the winter of 1988. The position was part of the Career Service System in which the Petitioner had attained "permanent" status. On February 1, 1988, Petitioner telephoned a person named Grady James, another employee at Florida State Hospital. (R-1) Petitioner informed Mr. James that, due to illness, Petitioner was not able to work and would bring a "sick slip" when he was able to return to work. Petitioner had no further contact with Respondent until March 28, 1988, when Petitioner's letter, dated March 24, 1988, was received by Florida State Hospital. (P-1) In the letter, Petitioner stated that he was "an inpatient at the VA Medical Center" and that "a letter of verification" of his hospitalization was forthcoming. On March 30, 1988, Florida State Hospital received a letter from the Atlanta Veterans Administration Medical Center's Alcoholism and Drug Dependence Treatment Unit in Decatur, Georgia. The letter, dated March 28, 1988, stated that Petitioner had been hospitalized March 16 - 28, 1988, in said unit. (P-2) There is limited information indicating Petitioner's physical location or functional ability during the period of time between February 1, 1988, when he contacted Mr. James, and March 16, 1988, when he was hospitalized. Petitioner testified that he was not in his "right mind", that he "was possessed", "drugged out", and "couldn't cope". Petitioner slept "in the car, in the crack houses and everywhere". (Testimony of Petitioner) Petitioner was seen once during that time by his father in Quincy, Florida, (Testimony of Perman Curry) and apparently was hospitalized for unexplained reasons in "Montgomery" for some period (Testimony of Petitioner) While Petitioner states that he did not intend to resign from his position, no contact was made with his employer from February 1, 1988 to March 28, 1988, a period of 56 days. Prior to February 1, 1988, Petitioner had been counseled on several occasions, and his attendance had been closely monitored, due to unscheduled absences. (R-1) On February 9, 1988, Dorothy N. Stinson, the supervisor of the unit in which Petitioner worked, sent by certified mail, appropriately addressed, a letter to Petitioner noting the lack of communication from Petitioner and stating that, unless medical certification for the unauthorized absence was provided within three days of receipt of the letter, Petitioner would be considered to have abandoned his position and resigned from employment. The letter was returned as "unclaimed" by the postal service on February 25, 1988, after two unsuccessful attempts to effect delivery. (R-3) On March 4, 1988, Faye H. Alcorn, Deputy Hospital Administrator, sent by certified mail, appropriately addressed, a letter (dated March 3, 1988) to Petitioner which stated that due to his absence without authorized leave from February 2 - March 2, 1988, during which time there had been no contact with Petitioner, he was deemed to have abandoned his position and resigned from the state's career service system pursuant to rules related to separation from employment resulting from abandonment of position. The letter was returned as "unclaimed" by the postal service on March 20, 1988, after two unsuccessful attempts to effect delivery. (R-2) In or around December, 1987, Ms. Stinson became aware that Petitioner had a substance abuse problem. Ms. Stinson testified that it is possible to take "leave without pay" for a period of up to one year and that such leave could possibly be granted to an employee who is ill due to a drug and alcohol addiction. A person seeking to take such leave would either submit a written letter of request or would submit medical certification indicating that the employee was unable to work. Petitioner did not request to be placed on "leave without pay" status. The "leave without pay" status assigned to Petitioner during that period was assigned for administrative purposes and did not indicate that the leave had been authorized or approved. The medical certification submitted by Petitioner is for the period of March 16 - 28, 1988. No medical certification was submitted for the period of February 1 - March 16, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be issued concluding that the Petitioner abandoned his position and resigned from the Career Service. DONE and ENTERED this 2nd day of August, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1988. APPENDIX The following constitute rulings on the proposed findings of fact submitted by the panties to this case. Petitioner Accepted. Accepted, however, letter indicated that continued absence would constitute abandonment. Accepted, insofar as the absence from 2/2/88 to 3/2/88, however, Petitioner did not notify Respondent of his situation until 3/28/88, (or 26 days following termination). Accepted. Accepted. Rejected, irrelevant. Accepted, however, such leave must receive prior approval. Accepted. Accepted. Accepted. Rejected, irrelevant. Rejected. If Petitioner was unable, as counsel asserts, to form the intent to resign from his position he was likewise unable to form the intent to return. Respondent Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, irrelevant. Accepted. Accepted. Accepted. Accepted. Rejected, unnecessary. COPIES FURNISHED: Kathy R. Newman, Esquire Legal Services of North Florida, Inc. 211 East Jefferson Street Quincy, Florida 32351 Dennis X. Crowley, Esquire Florida State Hospital Administration Building Chattahoochee, Florida 32324 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner, Leonard W. Sweeting (Sweating), was employed full time by Respondent, Department of Health and Rehabilitative Services (Department), as a licensed practical nurse (LPN), at South Florida State Hospital. The evidence establishes that Sweeting was absent without authorized leave on three consecutive workdays, to wit: April 8-10, 1985. At no time did Sweeting notify the Department of his intention not to appear for work on those dates. By certified letter dated April 11, 1985, return receipt requested, Sweeting was advised that his absence from work since April 5, 1985 was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., he was deemed to have abandoned his position and resigned from the Career Service. The letter further advised Sweeting of his right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. By letter dated April 13, 1985, and filed April 23, 1985, Sweeting timely petitioned the Department of Administration for review. On June 5, 1985, the Department of Administration accepted Sweeting's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing. Sweeting asserts that events predating his absence from work are pertinent to the issue of abandonment. The evidence establishes that on April 1, 1985 Sweeting's supervisor, Ms. Rotton, requested a copy of his current nursing license. Sweeting professed his inability to produce it, since he had not yet received it in the mail. Sweeting failed to produce his current license through April 4, 1985, or, alternatively, any evidence that he had applied for it. Finally, on April 4, 1985, Ms. Rotton advised Sweeting to produce proof of his application for licensure on April 5, 1985, or he would be unable to perform LPN duties at the hospital. Sweeting called in "sick" April 5, 1985, and did not report for work. April 6-7, 1985 were Sweeting's normal days off. By letter dated April 5, 1985 the personnel director advised Sweeting: Please be advised that your LPN license expired on March 31, 1985. You must submit proof of renewal by April 10, 1985 to Ms. Marge Rotton, Nurse Supervisor III. Failure to do so will result in your inability to continue to perform LPN duties at South Florida State Hospital and be subject to appropriate disciplinary action. From now until April 10, you will not be allowed to perform duties which require licensing. Should you have any questions, please contact Alice Tiscell, 983-4321, extension 2051. Sweeting did not contact Ms. Tisdell, or any other person at South Florida State Hospital. Sweeting initially assertec that the events of April 1- 4, 1985 were pertinent because he was told by Ms. Rotton that without his license he could not work. If Ms. Rotton had so advised Sweeting, his absence would have been authorized. However, Sweeting concedes he was advised that he would not be permitted to perform LPN duties, and that alternative duties would be assigned. Accordingly, the events of April 1-4, 1985 are not pertinent, and afford no justification for Sweeting's absence April 8-10, 1985.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order that: Petitioner, Leonard W. Sweeting, abandoned his position and resigned from the Career Service. Dismisses the petition of Leonard W. Sweeting with prejudice. DONE AND ENTERED this 19th day of July, 1985, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of July, 1985. COPIES FURNISHED: Leonard W. Sweeting 19574 N.W. 32nd Court Carol City, Florida 33056 Marc Gold, Esq. South Florida State Hospital 1000 S.W. 84th Avenue Hollywood, Florida 33025-1499 Richard L. Kopel, Esq. Deputy General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Gilda Lambert, Secretary - Department of Administration Carlton Building Tallahassee, Florida 32301 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301 STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION LEONARD W SWEETING Petitioner, DOA Case No. AB-85-9 DOAH Case No 85-1834 DEPARTMENT OF HEALTH AND. REHABILITATIVE SERVICES (South Florida State Hospital), Respondent. /
The Issue Whether the Petition for Relief from an unlawful employment practice was timely-filed, and if it was not timely-filed, is this cause barred?
Findings Of Fact Petitioner filed an undated Charge of Discrimination on the basis of "race and "age" with the Florida Commission on Human Relations (Commission). On June 21, 2000, the Commission issued its Notice of Determination: No Cause and mailed a copy thereof to Petitioner. Petitioner was required by Section 760.11(7), Florida Statutes, to request a formal hearing "within 35 days of the date of determination" of no reasonable cause, failing which the claim would be barred and the complaint dismissed. The Commission notified Petitioner of this 35-day deadline in its Notice of Determination: No Cause served on Petitioner on June 21, 2000. 5. Rules 60Y-5.004(5) and 60Y-4.007(2), Florida Administrative Code, provide that the Petition for Relief must be filed within 33 days of the date of a No-cause Determination which is served on a complainant by mail. The thirty-third day following the June 21, 2000, issuance of the No-cause Determination expired on Monday, July 24, 2000. The thirty-fifth day following the June 21, 2000, issuance of the No-cause Determination expired on Wednesday, July 26, 2000. The Petition for Relief was postmarked July 31, 2000, which is five days after expiration of the statutory filing deadline. The Petition was stamped-in by the Commission Clerk on Tuesday, August 1, 2000, which is six days after the statutory filing deadline. The certified copy of the Petition stamped-in by the Commission and its post-marked envelope show that the Petition for Relief was not timely-filed with the Clerk of the Commission. There has been no affirmative showing of excusable neglect by Petitioner.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 October, 2000. COPIES FURNISHED: James J. Dean, Esquire Ricky Polston, Esquire Polston & Dean, P.A. 106 East College Street Suite 900, Highpoint Center Tallahassee, Florida 32302-1836 Bobbi Debose 1129 Northeast 24th Street Gainesville, Florida 32641 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
