Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating entry into the profession of licensed respiratory therapists. It is also responsible for regulating the practice standards of such professionals, including enforcing the disciplinary provisions embodied in Chapter 468, Florida Statutes. The Respondent, at all times pertinent hereto, has been a licensed respiratory therapist. He holds License No. TT0003956 issued by the State of Florida. He was employed as a technician in the Respiratory Therapy Department of Citrus Memorial Hospital (CMH) in Inverness, Florida, during an 18-month period ending on or about January 23, 1996. A respiratory therapy technician, such as the Respondent, is frequently called upon to make independent decisions and exercise a great deal of discretion and autonomy with regard to the clinical support provided to patients to whom they are assigned. Therapists working an evening shift, as the Respondent did, at times critical hereto, generally exercise a greater degree of autonomy and discretion than the technicians working on day shifts. The Respondent, in his capacity as a respiratory therapy technician (RTT), with CMH, frequently cared for critically-ill patients. In his capacity as an RTT, the Respondent makes decisions which affect the health, safety and welfare of patients to whom he is assigned. The Respondent was first terminated from CMH for an unexcused absence of more than five days during the month of August, 1995. He maintained that he had a personal emergency which called him out of state at that time. The time period, however, corresponds to his own assertions concerning the period when he was "binging" on crack cocaine. He was re-hired by CMH on the condition that any further problems with absenteeism would result in his immediate termination. On or about January 22, 1996, he reported to work at CMH and advised his supervisor, Clarence Davis, that he would return to work after going to cash his paycheck. He left CMH during his shift on that occasion, ostensibly for that purpose, but did not return to work at all that evening. He did not return several calls made to his pager. He never offered his employer any explanation for his absence. His employment was, therefore, terminated on or about January 23, 1996. The Respondent was aware of the fact that his failure to return to work, based upon the previous warning, would result in his termination from CMH. On or about January 26, 1996, the Respondent acknowledged that he had a drug-dependency problem and voluntarily admitted himself to Charter Springs Hospital (CSH) in Ocala, Florida. This followed a five-day binge on crack cocaine, which was the reason for the January, 1996 absence from work. Upon admission to CSH, the Respondent's urine drug screen was positive for cocaine and cannabinoids, or marijuana. Upon his admission to CSH, the Respondent reported a previous history of treatment for drug abuse in 1987 at the KOALA facility in Bushnell, Florida. Kenneth Thompson, M.D., a physician and addiction specialist, who practices at CSH, is certified in addiction medicine and practices almost exclusively in that area. The doctor evaluated the Respondent upon his admission to CSH on or about January 26, 1996. The evaluation consisted of a diagnostic interview by Dr. Thompson and a physical examination performed by Larry Rick, a physician's assistant. The Respondent advised Dr. Thompson that he had recently been on a five-day binge on crack cocaine and had been unable to return to his work with CMH as a respiratory therapist. The Respondent further revealed that he had spent approximately $1,200.00 buying the drug on his recent binge on crack cocaine. He also acknowledged that he smoked marijuana on a daily basis. The Respondent appeared agitated and distraught during the evaluation by Dr. Thompson and advised the doctor that he had had suicidal thoughts and was depressed. He explained that he felt out of control with his cocaine use and revealed that at times, he thought he might smoke crack cocaine "until my heart blew out." During his stay at CSH, he was also psychologically tested by William Benet, Ph.D. The Respondent advised Dr. Benet, as he had Dr. Thompson, that he had used crack cocaine in the past and that he had recently been on a five-day binge using crack cocaine. He also advised Dr. Benet that he had the habit of smoking marijuana on a daily basis. The Respondent was thus admitted to the Chemical Dependency Unit at CSH with a diagnosis of cocaine and marijuana dependence. After that admission, he experienced withdrawal symptoms associated with his use of crack cocaine. After completing a five-day detoxification and evaluation regimen at CSH, the Respondent began an outpatient program, including entering an "advocacy contract" with the Physicians Recovery Network (PRN). Roger A. Goetz, M.D. is the Director of PRN. He directs PRN's efforts and, among other things, accepts referrals regarding individuals who are unable to practice their health-related professions with reasonable skill and safety due to substance abuse, mental illness or physical disability. He refers individuals to treatment and reports to the Petitioner whenever the continued practice by a health-care professional presents an immediate and serious danger to the health, safety and welfare of the patient public. The PRN devised a treatment regimen for the Respondent, to include unannounced bodily fluid examinations, abstention from all medications, participation in group therapy, and an agreement that he would not work as a respiratory therapist pending successful completion of the treatment. The Respondent, however, failed to comply with the PRN contract by failing to attend required outpatient therapy meetings and by returning to work as a respiratory therapist, without PRN approval. Dr. Goetz determined that the Respondent's continued practice as a respiratory therapist, under these circumstances, presented an immediate, serious danger to the health, safety and welfare of the public. An emergency suspension of the Respondent's license to practice as a respiratory therapist was recommended by Dr. Goetz. Crack cocaine is known to be the most highly-addictive form of cocaine. Users may mistakenly feel that use can be controlled. The Respondent has an admitted history of drug dependence and treatment regarding the use of crack cocaine, as early as 1987. He himself has reported a history of recent crack cocaine binges in August, 1995 and January, 1996. He himself has admitted that he was unable to control his use of crack cocaine. The potential for recovery from cocaine addiction is poor. Use of crack cocaine changes the user's perception of himself and is associated with paranoia and sometimes a tendency toward violence. The Respondent has admitted having a chemical dependency problem and has admitted to using both crack cocaine, powdered cocaine, and marijuana. He sought treatment for his chemical dependency and was diagnosed as chemically dependent. Thereafter, he failed to complete the prescribed treatment. He was provided alternatives by PRN to obtain the necessary treatment to overcome the dependency and, in turn, allow him to again practice respiratory therapy. He rejected their alternatives and chose not to complete the necessary treatment program. A respiratory therapist has increased access to drugs in the workplace. The Respondent's return to practice of respiratory therapy, where he will have increased access to drugs, prior to completing his prescribed treatment program for chemical dependency, made his continued practice of his profession an immediate danger to the public. His assertions that he refused to continue treatment for his dependency, because of Dr. Thompson's unethical practice, were not borne out by the evidence. The Respondent essentially admitted that he made the decision not to continue treatment because of disagreement with Dr. Thompson and because he felt that the treatment program was too costly. He further admitted that, although he favored obtaining treatment from Petra Rosenzweig, a therapist in whom he had previously expressed confidence, he had actually stopped seeking treatment from her. This is additional confirmation that his purported ethical conflict with Dr. Thompson was not really the reason he discontinued treatment. In summary, it has been established that the Respondent is chemically dependent and has not yet successfully completed the treatment program. At the present time, he is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of this impairment due to chemical dependency. The Respondent's supervisors established that he has an exemplary practice record, in terms of the competency and skills with which he cares for patients. The Respondent's attitude and testimony at the hearing, coupled with the strong support of his wife, who testified at hearing, leads the judge to believe that there is a substantial opportunity for him to overcome his chemical dependency and be able, in the future, to return to unfettered practice of respiratory therapy, provided he continues his cooperative spirit and agrees, once and for all, to objectively and wholeheartedly submit himself to a treatment program and successfully complete it.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered finding the Respondent guilty of violating Section 468.365(1)(x), Florida Statutes, in the particulars delineated in this Recommended Order, and that, in that Final Order, the Respondent's license to practice respiratory therapy be suspended for a minimum of one year or until such time as he receives treatment from a board-approved physician or physicians for his chemical dependency and is pronounced safe to resume the practice of respiratory therapy by a board-approved physician and on the condition that he thereafter comply with any and all terms of a PRN advocacy contract with regard to his chemical dependency. DONE AND ENTERED this 21st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1996. COPIES FURNISHED: Britt Thomas, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Keith A. Klausner 1725 Springlake Road Fruitland Park, Florida 34731 Marm Harris, Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency”) concerning the Certificate of Need (“CON”) 10111 Application which was filed by BAY HOSPITAL, INC. d/b/a GULF COAST MEDICAL CENTER (hereinafter “Gulf Coast”) to establish a 6- bed Level III NICU in Bay County, Florida. The Agency preliminarily approved Gulf Coast’s application. On July 14, 2011, Tallahassee Memorial Healthcare, Inc. d/b/a Tallahassee Memorial Hospital (hereinafter “TMH) filed a Petition for Administrative Hearing challenging the Agency’s approval. This petition was forwarded to the Division of Administrative Hearings (‘DOAH”), by the Agency and assigned to an Administrative Law Judge. Filed November 21, 2011 9:11 AM Division of Administrative Hearings A 9 Ae 253 On October 27, 2011, the parties entered into a settlement agreement and a Joint Motion to Relinquish Jurisdiction was filed. On October 28, 2011, the Department of Administrative Hearings (hereinafter “DOAH”) issued an Order Relinquishing Jurisdiction and Closing the File. Prior to Final Hearing, the parties entered into a Settlement Agreement (Exhibit 1) which is attached hereto, and the Agency being otherwise well advised in the premises: It is ORDERED AND ADJUDGED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. | The Agency shall issue CON 10111 to Gulf Coast. 3. The Parties shall abide by the terms and conditions of the Settlement Agreement. 4. Each Party shall be responsible for its respective own costs and attorney’s fees. 5. | The above-styled case is hereby closed. DONE and ORDERED this _/4/ day of Nive-d- , 2011, in Tallahassee, Florida. oo 2
The Issue Whether Respondent is guilty of being in violation of Section 468.365(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since January 5, 1987, a Florida-licensed respiratory therapist. He holds license number CRT 830. Respondent has a lengthy history of drug abuse. In or about June of 1996, when he was employed as a blood gas laboratory technologist by Miami Children's Hospital (MCH) in Miami, Respondent submitted to a drug screen (performed at the request of MCH) and tested positive for cocaine. 2/ MCH referred Respondent to South Miami Hospital's (South Miami's) addiction treatment program, to which Respondent was admitted on June 6, 1996. Respondent successfully completed the South Miami program. He was discharged from the program on July 3, 1996. Respondent thereafter voluntarily enrolled in the state-approved program for impaired Florida health care practitioners offered by Physicians Recovery Network (PRN). PRN monitors the care, treatment, and evaluation of the impaired practitioners in its program. On July 11, 1996, Respondent entered into an "Advocacy Contract" with PRN, in which he agreed to, among other things, the following: "participate in a random urine drug and or blood screen program through [the] PRN office within twenty-four hours of notification"; "release by waiver of confidentiality the written results of all such screens to the Physicians Recovery Network to validate [his] continuing progress in recovery"; "abstain completely from the use of any medications, alcohol, and other mood altering substances including over the counter medication unless ordered by [his] primary physician, and when appropriate, in consultation with the Physicians Recovery Network"; "attend a self help group such as AA or NA"; "participate in continuing care group therapy"; "attend a 12- step program of recovering professionals"; "notify Physicians Recovery Network in the event of use of mood altering substances without a prescription"; and "be appropriately courteous and cooperative in all contacts with the PRN staff and representatives of PRN." The contract further provided that "[r]elapse will result in re-assessment and possible residential treatment." A "monitoring professional" or "facilitator" was appointed by PRN to assist in Respondent's recovery. PRN "facilitators" are responsible for providing therapy in a group setting to those under their charge and reporting to PRN any suspected failure on the part of a member of their group to adhere to the terms of the group member's "Advocacy Contract." (There are 33 "therapy groups" led by PRN "facilitators" throughout the State of Florida.) In March of 1997, Respondent's "facilitator" reported to PRN that Respondent had started using cocaine again (this time intravenously), resulting in his being fired from his position at Miami Children's Hospital. PRN responded to the facilitator's report by voiding Respondent's July 11, 1996, "Advocacy Contract." Respondent was thereafter involuntarily hospitalized pursuant to the Baker Act at the request of his family. Following his discharge from the hospital, Respondent was reported missing. In June of 1997, Respondent resurfaced and, pursuant to a court order, was admitted to Miami-Dade County's Treatment Alternative to Street Crime (TASC) program. In August of 1997, after Respondent completed Phases I and II of the TASC program, he was evaluated, at PRN's request, by Anthony P. Albanese, M.D., the Co-Director of the Addiction Treatment Program at Mount Sinai Medical Center in Miami Beach. Dr. Albanese determined that Respondent was suffering from "cocaine . . . dependence in early remission" and was "medically able to return to work." On September 10, 1997, Respondent entered into a second "Advocacy Contract" with PRN, which was similar to the first contract. In March of 1998, after receiving word that Respondent had again relapsed, as evidenced by the results of a urine screen, which revealed the presence of cocaine metabolites, PRN voided Respondent's second "Advocacy Contract." Subsequent analysis of Respondent's hair confirmed that he had been using cocaine. In July of 1998, Respondent was evaluated by David Myers, M.D., a PRN-approved evaluator and treatment provider. Dr. Myers diagnosed Respondent as having "cocaine dependency, continuous and severe," "marijuana dependency," and "nicotine dependency." On July 7, 1998, Respondent was admitted as a patient in the Tampa-based Healthcare Connection P.I.N. [Professionals in Need] Program (P.I.N. Program). Respondent was referred, through the P.I.N. Program, for treatment at the Salvation Army Adult Rehabilitation Center. On January 8, 1999, after receiving treatment at Salvation Army Adult Rehabilitation Center and successfully completing the P.I.N. Program, Respondent entered into a third "Advocacy Contract" with PRN, which was similar to the first two contracts. In early February of 1999, Respondent's "facilitator" reported that Respondent was not attending required group meetings and could not be located. Based upon the facilitator's report, PRN voided Respondent's third "Advocacy Contract." At no time subsequent to the voiding of his third "Advocacy Contract" has Respondent made contact with PRN. Because of the "continuous and severe" nature of his cocaine dependency, Respondent is presently unable to deliver respiratory care services with reasonable skill and safety to patients.
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 is in violation of Section 468.365(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and disciplining him therefor by revoking his license and fining him $500.00. DONE AND ENTERED this 10th day of January, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 10th day of January, 2001.
Findings Of Fact Mr. Young has been employed full-time in the field of respiratory care since 1977. He completed training as a respiratory therapy technician at Miami Dade Community College in December, 1977. Mr. Young completed the registry examination of the National Board for Respiratory Care in December, 1985, and became a Registered Respiratory Therapist. This professional title can be somewhat confusing, however, because under the Respiratory Care Act, Section 468.35, Florida Statutes, et seq., it is necessary to apply for registration with the Advisory Council on Respiratory Care to practice as a respiratory therapist. Mr. Young's application for registration as a statutory respiratory therapist by endorsement under Section 468.358(2), Florida Statutes, has given rise to this proceeding. Mr. Young's application for statutory registration was made in June of 1986. The Advisory Council on Respiratory Care issued a Notice of Intent to Deny the application on February 19, 1987, on the grounds that Applicant falsified the reason for termination of employment on his application. Applicant was terminated for being addicted to pain medication and forging prescriptions. See Section 468.365(1)(a), (g), (x), and 468.365(2), Florida Statutes. Applicant is denied without prejudice to reapply for licensure in two years. It is undisputed that Mr. Young meets the education and training requirements for registration as a statutory respiratory therapist. Mr. Young sought a hearing on this denial and in the prehearing stipulation the parties agree the issues of fact are whether Mr. Young's application contained false information amounting to fraudulent misrepresentation, whether he is chemically dependent, and whether his past conduct is cognizable under Section 368.365(1)(g), Florida Statutes. Question 5 on page 3 of the application submitted by Mr. Young, for registration by endorsement as a respiratory therapist, asks Have you ever been terminated, disciplined or allowed to resign from any employment setting where you were employed to deliver respiratory care services? Yes No If "yes", give name of employer or institution, date and reason for such action. Mr. Young answered "yes" and gave as his response "Coral Reef Hospital, January 7, 1983, Seizure Disorder." On the same page of the application Mr. Young stated that he had been addicted to or excessively used alcohol, narcotics, barbiturates or other medication and that he had been treated at South Miami Hospital Addiction Treatment Center. In a letter which Mr. Young wrote to the Advisory Council on September 27, 1986, he stated On March 27, 1981, I was admitted to South Miami Hospital Addiction Treatment Program for chemical dependency. I was instructed to attend aftercare for one year. I attended two (2) months of aftercare and stopped. It was at this time I changed jobs and began to work at Coral Reef Hospital. I did however attend Alcoholics Anonymous meetings in South Miami area twice a month. In December of 1982 I had a grand mal seizure due to medication that I was taking. The medication contained Codine. I was admitted to Coral Reef Hospital January 1, 1983 and evaluated for seizure disorder. I was under the care of Dr. Timothy Grant, a Nurologist. I was placed on Dilantin for two (2) years. After I was released from the hospital I was terminated. From what I now/still understand I was terminated as a "high risk. Mr. Young's account is literally true with respect to the grand mal seizure he suffered, but his version is so shaded in his favor as to be seriously misleading. His explanation that he was terminated from employment because he was a "high risk" is partly true. To fully explain the situation it is necessary to go back to the beginning of Mr. Young's chemical dependency. In 1980 Mr. Young had a laminectomy and was given Percodan for pain control. At this time he had been working at South Miami Hospital. Mr. Young became addicted to Percodan, and began going from physician to physician in order to get Percodan prescriptions. Eventually, his supervisor at South Miami Hospital directed him to the hospital's addiction treatment program where he spent 21 days in inpatient care. The program calls for one year of participation in an aftercare program. After he left the inpatient care, he participated in aftercare for no more than four months, but was drug-free. He thereafter had the opportunity to take a better job at Coral Reef Hospital where he began employment in September 1, 1981. He then developed an upper respiratory infection in the summer of 1982 and his physician prescribed Actifed with Codine. He then began the addiction cycle again, and went to different physicians to get Actifed with Codine from them. In addition, he forged prescriptions on a prescription pad to which he had access at Coral Reef Hospital for Actifed with Codine, but listed the prescription in the name of his wife and his daughter. As the result of the Codine he was taking, either due directly to the Codine, or to the activation of some underlying seizure disorder, Mr. Young had a grand mal seizure December 24, 1982, for which he was treated in the hospital emergency room, and another on December 31, 1982, which led to his hospitalization for a seven- day evaluation. He was given Dilantin for seizure control after the second seizure on December 31, 1982. Mr. Young no longer took the Dilantin after about June of 1983. After the December, 1982, seizures Mr. Young began attending Alcoholics Anonymous on a regular basis, i.e. about twice a month, and has regularly attended those meetings since that time. He attended Alcoholics Anonymous meetings because he was more comfortable there than at Narcotics Anonymous, although these self-help programs are almost identical. Returning to Mr. Young's September 26, 1986, letter to the Council, it was seriously misleading to inform the Advisory Council that he had the grand mal seizure in December of 1982 "due to medication that I was taking." Mr. Young did not merely suffer an adverse reaction to over-the-counter medication or something prescribed by his physician, but as the result of physician shopping, and forging prescriptions accessible to him at the hospital where he worked to obtain preparations containing Codine. Moreover, immediately after he was released from the hospital following the second seizure, he was terminated from his position at Coral Reef Hospital. The hospital's record, which he signed, shows a supervisory contact for Use of controlled substances which were not prescribed by a physician. This potential abuse could have been a contributing factor to two syncopal episodes (12/24, 12/31) had while on duty at the hospital. Mr. Young was terminated the same day. It is clear that Mr. Young was not only terminated for the seizures which interfered with his ability to perform his duties as a respiratory therapist, but also for forging prescriptions for controlled substances. Mr. Young's contention that he did not know his termination was based on the illicit use of controlled substances cannot be credited. Mr. Young has had two bouts of chemical dependency, the first resulting from addiction to Percodan in 1980 which led to his treatment at South Miami Hospital where he did not complete the aftercare program, and the second resulting from addiction to Actifed with Codine in the second half of 1982, which he had dealt with by attending Alcoholics Anonymous meetings approximately every other week, but at least twice a month. The testimony of Dr. Roger Goetz for the Advisory Council on Respiratory Care concerning the need for a highly controlled aftercare program for persons to continue practicing health care professions was generally persuasive. After the completion of an inpatient program for drug dependency, the practitioner must complete an extended care program and continue a period of monitoring. Participation in Alcoholics Anonymous or Narcotics Anonymous, while valuable, is not comparable to a structured aftercare program because those programs involve no - monitoring. Indeed, it is against the philosophies of those programs to monitor participants. Health care practitioners are at particularly high risk for relapse into drug dependency because they are surrounded by and have access to drugs in hospital settings and their jobs involve high levels of stress. Particularly, respiratory care practitioners are subject to stress because they are often the only persons on duty in intensive care wards, and they have access to drugs in critical care areas of the hospital. Although Mr. Young did introduce into evidence two drug screenings, there is no indication whether they were announced or unannounced, or whether the collection of the urine sample was witnessed. Two drug screenings performed over a four-month period is insufficient evidence to determine whether the person is drug free. Moreover, for a person to succeed in long-term recovery, the person should attend at least two meetings of an organization such as Alcoholics Anonymous or other aftercare program each week. Attending one or two meetings a month as Mr. Young has done is "skating on very thin ice" (Tr. 118). The report of the psychiatric evaluation performed by Arthur T. Stillman, M.D., a diplomate of the American Board of Psychiatry, is entitled to little weight. Dr. Stillman did not testify, and it is impossible to determine the accuracy of the information contained in his report, since he was not subject to cross-examination. Similarly, testimony of Gloria Gross does not play an important part in the evaluation of Mr. Young's ability to practice respiratory therapy safely. While he may have been a good employee while a teacher of respiratory care services at Flagler Career Institute since September, 1983, and may generally have a good reputation in the community, that provides very little in the way of predicting whether Mr. Young will be able to deliver respiratory care services with reasonable skill and safety to patients due to Mr. Young's history of addictions.
Recommendation It is recommended that the current application of Mr. Young for registration as a statutory respiratory therapist be denied, but that upon entry into a structured aftercare program with monitoring, Mr. Young be eligible to reapply for licensure after one year's successful participation in such a program. DONE AND ORDERED this 18th day of December, 1987, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 18th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2641 The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Petitioner's Proposed Findings: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 17 Covered in finding of fact 17. Covered in finding of fact 17. Covered in finding of fact 17. Covered in finding of fact 6. Covered in finding of fact 6. While true, rejected as unnecessary. Rejected. See finding of fact 12. Covered in finding of fact 10. Covered in finding of fact 10 and 12. Rejected for the reasons given in the rulings on documentary evidence. Rejected. See finding of fact 12. Covered in finding of fact 14 and 15. Rejected as unnecessary. Rejected as unnecessary. Rejected because the underlying facts have not been proven, i.e. there is insufficient proof that Mr. Young has actually been drug free for four years, and while he is regularly attending AA meetings, he has not been attending as regularly as the testimony of Dr. Goetz shows is appropriate. Rejected because I am not satisfied that the grand mal seizure resulted in any memory loss to Mr. Young. Rejected as unnecessary. Rulings on Respondent's Proposed Findings: Covered in finding of fact 3. Covered in finding of fact 3. Rejected as unnecessary. Covered in finding of fact 6. Covered in finding of fact 7. Generally covered in findings of fact 8, 10 and 13. Rejected as argument, not a finding of fact. Generally accepted in finding of fact 12. Rejected as argument, not a finding of fact. Rejected as constituting argument, rather than findings of fact. Generally covered in findings of fact 14 and 15. While some monitoring of a person in Mr. Young's position is appropriate, the Hearing Officer is not convinced of the need for lifetime monitoring, nor certain what the intensity of the "lifetime monitoring" Dr. Goetz referred to would be. To condition professional licensure based on lifetime monitoring, rather than monitoring for a period such as one year, is not warranted by this record. Covered in finding of fact 15. Covered in finding of fact 16. Covered in finding of fact 17 to the extent necessary and relevant. COPIES FURNISHED: Rosanne Brady, Esquire 2030 Douglas Road, No. 21 Coral Gables, Florida 33134 M. Catherine Lannon, Esquire Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neill, Esquire Gereral Counsel Department of Professional Regulation Tallahassee, Florida 32399-0750
The Issue Whether the Division of Administrative Hearings (DOAH) has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Florida Commission on Human Relations (FCHR) does not make a "cause" or "no cause" determination, as provided in Section 760.11(3), Florida Statutes, but rather issues a Notice of Dismissal, pursuant to Section 760.11(8), Florida Statutes. Whether DOAH has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Section 760.11(6), Florida Statutes. Whether DOAH has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if Petitioner fails to name Respondent in the Petition for Relief filed with the FCHR, as required by Section 760.11(1), Florida Statutes.
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the Petition of Manuel Pedraza in DOAH Case No. 02-0237, and FCHR Case No. 99-0849, for failure to timely file his Petition for Relief and for failure to properly name Respondent in the Petition. DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE 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 21st day of June, 2002. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire Erlenbach Law Offices, P.A. 2532 Garden Street Titusville, Florida 32796 W. Russell Hamilton, III, Esquire Morgan, Lewis & Bockius, LLP 5300 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2339 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
