The Issue Whether Petitioner's application for licensure as a health insurance agent should be granted.
Findings Of Fact By application dated December 18, 2001, Visser applied to the Department for a license as a health insurance agent. On the application, Visser answered affirmatively to the following question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? In March 1999, a three-count information was filed in the Circuit Court of the Tenth Judicial Circuit In and For Polk County, State of Florida, charging Visser with burglary of a dwelling, a second degree felony; grand theft dwelling $100 or more, a third degree felony; and possession of cannabis less than 20 grams, a first degree misdemeanor. On July 27, 1999, Visser pled nolo contendere to all three counts. Adjudication was withheld. Visser was placed on probation, required to reimburse the Lakeland Police Department $250 for the costs of investigation, assessed $500 in court costs, and required to perform 60 hours of community service. Visser completed her probation, and an Order Terminating Probation was entered on November 21, 2002. The Department denied her application for licensure by letter dated May 17, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.831(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of Naomi A. Visser for licensure as a health insurance agent. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 January, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Naomi A. Visser 1617 London Grove Port Road Grove City, Ohio 43123 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether Dr. Veloso is subject to discipline because he was convicted of the first degree misdemeanor of Medicaid fraud.
Findings Of Fact A three count information was filed against Dr. Veloso in the circuit court for Palm Beach County on April 2l, 1989, alleging that Dr. Veloso was guilty of filing a false Medicaid claim, receiving payment for a false Medicaid claim, and grand theft. A probable cause affidavit had been executed by a special agent for the Medicaid fraud control unit of the Office of the Auditor General on July 19, 1988, setting forth the results of interviews the agent had with persons on whose behalf Medicaid billings had been submitted by Dr. Veloso in 1986 and 1987. Patients stated that they had not actually been treated by Dr. Veloso. According to the judgment entered by the circuit court in Palm Beach County on October 2, 1989, Dr. Veloso entered a plea of guilty to the first degree misdemeanor of Medicaid fraud, as a lesser included offense encompassed within Count I of the information, which had charged him with the felony of filing a false Medicaid claim in violation of Section 409.325(4) (a), Florida Statutes. The judgment bears a hand interlineation that the guilty plea is an "Alford" plea. The judge withheld adjudication of guilt on October 6, 1989, and placed Dr. Veloso on probation for a period of one year, subject to a number of conditions, including that he pay restitution to the Department of Health and Rehabilitative Services of $492, along with $5,000 as the cost of investigation and $80.25 in court costs. A separate order requiring restitution in those amounts was also entered on October 2, 1989. At the time Dr. Veloso entered his guilty plea, he was represented by counsel. At the time of the events charged in the information, Dr. Veloso had been licensed as a medical doctor by the State of Florida since 1975. He was also a licensed pharmacist. Dr. Veloso has never before been the subject of disciplinary action by the Board of Medicine or the Board of Pharmacy. Dr. Veloso testified during the hearing that he is innocent of any wrong doing, and entered his plea of guilty only as a plea of convenience. He testified about the six patients who are named in Count I of the information, in an attempt to demonstrate that he had actually treated those persons, was familiar with them, and was therefore entitled to bill Medicaid for his services as a physician. Dr. Veloso also testified that he would not have pled guilty if he had known that doing so would jeopardize his licensure. The testimony of Dr. Veloso is not convincing. At the time when the State of Florida was prepared to go to trial on the criminal charges Dr. Veloso himself determined that there was a sufficient likelihood that his testimony would not be persuasive that he declined to go to trial, and entered the plea of guilty which is the basis for the board's administrative complaint. Dr. Veloso himself describes an "Alford" plea in his proposed findings of fact in the following way: A plea of "Alford" is the result of the holding in North Carolina v. Alford, 400 U.S. 25 (1970). Essentially, the Alford plea recognizes three elements: (a) a consistent affirmance of innocence, (b) a waiver of the right to a trial and (c) the existence of a record, at the time of the plea which contains overwhelming evidence against the accused. Based upon the certified copies of the documents from the criminal prosecution, Dr. Veloso's probation should have terminated by October 6, 1990. Dr. Veloso apparently has successfully completed his period of probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Veloso be found guilty of having violated Section 458.331(1)(c), Florida Statutes (1985), that his license to practice medicine be suspended for a period of six months, and that he be fined $1,500. DONE and ENTERED this 26th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 26th day of February, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5481 Rulings on findings proposed by the Respondent: Findings 1 and 2 have been accepted. Finding 3 has been rejected. The reasons for the rejection are detailed in the Findings of Fact. COPIES FURNISHED: Richard Grumberg, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Andrea Newman, Esquire Law Office of Michael P. Weisberg 1840 Coral Way, 4th Floor Miami, FL 33145 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent, a certified law enforcement officer, failed to maintain good moral character by unlawfully acquiring or obtaining, or attempting to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge on or about July 16, 1999; by unlawfully withholding information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance on or between April 1, 1999, and August 5, 1999; by corruptly using or attempting to use his official position as a law enforcement officer in such a manner as to secure a special privilege for himself or others, to wit: prepared a fictitious Offense/Incident Report as set forth in the Administrative Complaint; and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Tad K. Moody, is a certified law enforcement officer in the State of Florida. He was issued Law Enforcement Certificate No. 160029 on February 11, 1996. Respondent was employed by the City of Tampa Police Department as a police officer during the period February 11, 1996, through May 19, 2000. In August of 1998, Respondent received an on-duty injury and was prescribed pain medications as a result. Respondent signed a contract with Dr. Greenberger stating that he would only receive controlled substances from Dr. Greenberger. Respondent went to several different doctors after August 1998 and received prescription pain medications from all of them. Respondent never advised his treating physicians that he was receiving Hydrocodone or other pain medication from each of his treating physicians. Respondent did not inform any of the physicians that he was receiving prescription pain medications from any of the other physicians. On or about July 16, 1999, Respondent reported to his treating physician’s office that his vehicle was stolen with his medication in it. Dr. Batas required substantiation of the theft in the form of an auto theft report prior to issuing additional medication. On or about July 16, 1999, Respondent prepared a false Tampa Police Department Offense/Incident Report, reporting that his vehicle containing medications had been stolen. He submitted it to Dr. Batas' office in order to receive additional medication. On August 4, 1999, Respondent presented a prescription for 90 Vicoprofen to the Eckerd Drug Store pharmacy at 1904 West Lumsden in Brandon, Florida. Dr. Steven J. Tresser, M.D., had written Respondent a prescription on August 4, 1999, for 40, not 90, Vicoprofen. The Eckerd Drug Store personnel identified Respondent as the individual who submitted the altered prescription for Vicoprofen or Hydrocodone. Respondent admitted to Detective Lusczynski, during an interview, that he had an addiction problem due to the back pain he suffered as a result of the injury he received in 1998. In late 1999, Respondent was charged with obtaining a controlled substance by fraud (2 counts) and obtaining drugs from a physician by withholding information. On or about July 24, 2000, Respondent entered into a Drug Court Agreement for 18 months' probation with the Thirteenth Judicial Circuit's State Attorney's Office. As part of the agreement, Respondent was required to successfully complete the Drug Court Program, including evaluation; counseling; random urinalysis; and pay $372 court costs, plus $40 a month toward supervision. Respondent's drug case was dismissed on March 14, 2002, based on his successful completion of the Drug Court Program. The evidence is clear and convincing that Respondent unlawfully acquired possession of a controlled substance by misrepresentation on or about July 16, 1999. The evidence is clear and convincing that Respondent unlawfully withheld information from a medical practitioner from whom he sought to obtain a prescription for a controlled substance during the relevant time period. The evidence is clear and convincing that Respondent corruptly used, or attempted to use, his official position as a law enforcement officer in such a manner as to secure a special privilege for himself by preparing a fictitious Offense/Incident Report on or about July 16, 1999.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: Respondent be found guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes (2000). Respondent's certification be revoked. DONE AND ENTERED this 20th day of February, 2004, in Tallahassee, Leon County, Florida. S 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 20th day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Tad K. Moody 10124 Woodberry Road Tampa, Florida 33619 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether the Respondent's life and health insurance license should be disciplined for the reasons set forth in the Administrative Complaint filed on June 15, 1989. That Complaint alleges that Respondent has violated certain provisions of the Florida Insurance Code. Specifically, Petitioner alleges Respondent has violated Section 626.611(7), Florida Statutes as a result of a demonstrated lack of fitness or trustworthiness to engage in the business of insurance, Section 626.611(14), Florida Statutes as a result of having been found guilty of, or having pleaded guilty or nolo contendere to, a felony in this state which involves moral turpitude and/or Section 626.621(8), Florida Statutes as a result of being guilty of, or having pleaded guilty, or nolo contendere to a felony in this state.
Findings Of Fact At all pertinent times, Respondent has been licensed by Petitioner as a life and health insurance agent. In October of 1987, Respondent was arrested and formally charged by the State Attorney of the Seventeenth Judicial Circuit for the State of Florida with grand theft of over $20,000.00 and three counts of perjury in an official proceeding. The criminal charges against Respondent arose in connection with her relationship with an elderly woman who was stricken with cancer. The evidence provided only sketchy details of the circumstances that led to the criminal charges. From the evidence presented, it appears that Respondent befriended the woman a short time before she died. After the woman died, a controversy arose regarding certain transfers of property to Respondent and a will executed by the deceased woman naming Respondent as beneficiary. A civil law suit was filed contesting the will and the property transfers to Respondent. Ultimately, the will which left all of the elderly woman's property to Respondent was disallowed and certain transfers of property to Respondent were overturned. Criminal charges were initiated against Respondent by the prevailing heir. As part of a plea bargain arrangement, Respondent entered a plea of guilty to the charge of grand theft and the three perjury counts were dismissed. The Circuit Court for Broward County withheld adjudication on the grand theft count and placed Respondent on probation for ten years with a requirement that she make restitution to the victim, an heir of the estate. The restitution required as part of the criminal proceeding was intended to compensate the prevailing heir for attorney's fees incurred in connection with the civil action. While Respondent continues to deny any wrongdoing in her dealings with the deceased woman, she claims she had inadequate resources to fight the criminal matter further. In entering into the plea arrangement, Respondent anticipated that she would be able to continue in the insurance business. Her insurance business is the only source of income which Respondent can reasonably anticipate generating sufficient money to make the restitution payments. It is clear from the transcript of the sentencing proceeding that the circuit court judge withheld adjudication on the grand theft charge with the understanding that by doing so the Respondent would be able to continue to sell insurance. Respondent has been making the restitution payments required as part of her probation and she is dependent upon the continuation of her insurance business in order to make those payments in the future. As a result of the initiation of this proceeding against Respondent by Petitioner, Respondent has been cancelled by the various insurance companies for whom she used to write insurance. Thus, she has been effectively suspended from the insurance business since shortly after the initiation of this proceeding. No evidence was introduced that Respondent committed any other criminal offenses of any nature at any time, nor was any evidence produced of any other violations of the insurance code by Respondent since her initial licensure in 1981.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending Respondent's licensure and eligibility for licensure for six- months. DONE and ORDERED this 19 day of March, 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 19 day of March, 1990. COPIES FURNISHED: Robert F. Langford, Jr., Esquire Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Barbara Helen Askea 2315 Northeast 5th Avenue Pompano Beach, Florida 33064 Tom Gallagher Department of Insurance and Treasurer State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of allegations that the Respondent has violated subparagraphs (m), (q), and (t) of Section 458.331(1), Florida Statutes, by allegedly failing to keep written medical records justifying the course of treatment of a patient, by allegedly prescribing legend drugs other than in the course of the physician's professional practice, and by allegedly failing to practice medicine with the level of care, skill, and treatment recognized as acceptable by a reasonably prudent similar physician.
Findings Of Fact The Respondent is and has been at all times material hereto, a licensed physician, having been issued license number ME 0025256 by the State of Florida. The Respondent has been licensed for approximately forty years and is Board certified in Internal Medicine. He practices Rheumatology. Diazepam is a Schedule IV controlled substance pursuant to Chapter 893, Florida Statutes. Roxicet is a generic form of Percocet, a legend drug containing oxycodone, a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Seconal is a legend drug containing Secobarbital, a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. The Patient T. P., a 40-year-old male, initially presented to the Respondent on or about May 14, 1991, with complaints of lower back pain and right side sciatica leg pain, which the Respondent treated with various legend drugs. The Respondent's records indicate that the Patient T. P. returned to the Respondent's office on a monthly basis from May of 1991 until April of 1993. On each visit, the Respondent prescribed multiple legend drugs to treat the Patient T. P.'s lower back pain and right side sciatica leg pain. Between December 19, 1991, and April 29, 1993, the Respondent prescribed to the Patient T. P. a total of eleven hundred ninety tablets of 10mg generic diazepam, eleven hundred ninety tablets of Percocet or Roxicet (oxycodone), and four hundred fifty capsules of Seconal. These quantities of drugs prescribed by the Respondent to the Patient T. P. during the course of his treatment were appropriate amounts. On or about April 30, 1993, the Patient T. P. was found dead in a Broward County hotel room of a drug overdose. Empty bottles of Valiums and Seconals prescribed by the Respondent to Patient T. P. were found at the scene of death. 2/ The Respondent did not refer the Patient T. P. to an orthopedic surgeon or to a neurosurgeon. The Respondent's medical records for the Patient T. P. do not contain any documentation of a referral of the patient to an orthopedic surgeon or neurosurgeon. The Patient T. P. had previously been treated by an orthopedic surgeon and the Respondent had in his possession the records related to that prior treatment. The Respondent did perform appropriate neurological and orthopedic evaluations of the Patient T. P. The evidence in this case is insufficient to establish that the Respondent failed to keep written medical records justifying the course of treatment of the Patient T. P. 3/ To the contrary, the persuasive evidence is to the effect that the Respondent's records at issue here, although sparse and brief, were sufficient. 4/ The evidence in this case is insufficient to establish that the Respondent prescribed legend drugs other than in the course of his professional practice. To the contrary, the persuasive evidence is to the effect that the drugs prescribed to the Patient T. P. were reasonable under the circumstances. The evidence in this case is insufficient to establish that the Respondent failed to practice medicine with the level of care, skill, and treatment recognized as acceptable by a reasonably prudent similar physician under similar circumstances. To the contrary, the persuasive evidence is to the effect that the Respondent's care and treatment of the Patient T. P. was consistent with acceptable standards of care under the circumstances.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 12 th day of January, 1994 , at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1994.
The Issue The issue for consideration in this case is whether Respondent's certification as a corrections officer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Respondent was certified as a corrections officer under Certificate No. 502-5580. The Criminal Justice Standards and Training Commission is the agency in this state responsible for the certification and regulation of the conduct corrections and law enforcement officers in Florida. On June 24, 1992, at approximately 11:45 PM, Officer Bryant K. Doyle, a four and a half year veteran of the Orlando Police Department, came across Respondent sitting in his car in a warehouse district near the 400 block of West Grant Street in Orlando. He called for backup by another unit, but before that unit arrived, the Respondent's vehicle, in which Respondent was accompanied a female, came toward him. Doyle stopped and approached the vehicle and at that time recognized Respondent from a prior contact which had occurred several months earlier. At that time, Doyle had come across Respondent in a car late at night in the same general area, again accompanied by a female. At that time, Respondent claimed he was a janitor but also showed Doyle a corrections officer certification card. On the second occasion, because Respondent had no identification with him, Doyle ran a routine identification check and found no prior arrest record. Though he did not know the person with Respondent, he claims Respondent implied she was a prostitute. She has an arrest record in Orange County, Florida but no evidence was produced as to what the arrests were for. Doyle asked the woman to step out of the car and, taking her behind the car, questioned her. Doyle claims she indicated Respondent had picked her up and had paid her $10.00 to fondle herself. She identified herself as Ms. McKie, who resided on Michael Avenue in Orlando. Doyle contends the interview of Ms. McKie lasted for four or five minutes. Officer Doyle then called in the information he had received from Ms. McKie and placed Respondent under arrest for solicitation of prostitution. On each occasion, at the scene, according to Doyle, Respondent cried and said he was sorry, but at no time did he deny her version of the story. There is no evidence, however, that he was made aware of it. Petitioner was unable to present the testimony of Ms. McKie. A subpoena issued to procure her presence at the hearing could not be served on her because the address given for her turned out to be a vacant lot. Ms. McKie had not been deposed previously, and, therefore, her testimony was not available. Respondent, testifying in his own behalf, indicated on the first incident described by Doyle, he had been visiting his brother, who resides in a Department of Health and Rehabilitative Services sponsored group home for the mentally disabled, the Golden Age Retirement Home, in the general area near where he was stopped by Doyle. Respondent is his brother's guardian, and on the night of that first alleged incident, had been visiting him somewhat late in the evening. During that visit, his brother introduced him to his girlfriend, whom he identified as Ms. McKay, and asked Respondent to take her to the store to pick up some items for him. After leaving the local convenience store where she purchased some snack items, on the way back she got sick and Respondent pulled over to the side of the road to allow her to relieve herself. While he was sitting there, with the auto engine running, Doyle arrived and directed him to get out of the car. When he complied, Doyle questioned him and in response, Respondent indicated he was a janitor and a corrections officer. At this time, he claims, Doyle accused him of prostitution, though Respondent denied it. Though he did not arrest Respondent, Doyle allegedly told him at that time to stay out of the area in the future even though Respondent claimed to have a lot of relatives living there. Throughout this interview, Respondent claims, Doyle was hostile and threatening. On June 24, 1992, Respondent, who was working the 6:30 AM to 2:30 PM shift, again visited his brother late in the evening. His visit was late because, after getting off work, he had to have some car repair work done and then took his wife to dinner. By the time they got back and he was ready to go, it was after 10:00 PM. However, because, he had to get his brother to sign some papers for the Social Security Administration, he decided to go even though it was late, and since his wife did not care to accompany him, he went by himself. On the way there, he saw a female walking on the street whom he recognized as a woman named Sally (McKie). He had known her for several years as a friend of his sister, but no idea she had an arrest record as a prostitute. Ms. McKie apparently walked out in front of his car and he stopped. He told her he was going to visit his brother, but if her destination was anywhere near his, he would give her a ride. She accepted. On the way, Ms. McKie indicated she was having some problems and began to get upset. She directed him into the warehouse area as a shortcut, but, for some reason, he claimed instinct, Respondent decided not to take it, turned around, and went back the way he had come. As he did so, however, he met Officer Doyle who stopped him and asked him for his driver's license which he did not have with him. According to Respondent, Doyle had Ms. McKie get out of the car and go with him to the rear where, for a period which Respondent estimates as approximately thirty minutes he allegedly threatened her with arrest if she did not admit she was engaged in prostitution at Respondent's solicitation. Respondent admits he did not hear the entire conversation and did not observe Doyle in his relationship with Ms. McKie, but he recalls the nature of the conversation. After speaking with McKie, Doyle came back to Respondent, had him get out of the car, and arrested him. Respondent was not prosecuted on the charge for which he was arrested. A Nol Prosequi Order dated October 13, 1992 so indicates. Even though Respondent notified his agency of his arrest, no action was taken against him by his supervisors. His appraisal report, dated June, 1993, for the preceding year which included the time of the incident in question reflects he exceeded standards, receiving 38 out of a possible 44 rating points. In that report he is described as an individual who can be depended upon to get the job done; who takes the initiative to insure those working for him have the requisite tools to do their job; accepts additional duties and puts every effort into accomplishing a task; works well with others; and can be depended upon to be there when needed. His three prior performance appraisal records, covering the period from January, 1989 through January, 1992, also reflect ratings of either "exceeds standards" or "outstanding." Respondent's supervisor, Sergeant Lacienski, and a fellow corrections officer and sometime subordinate, Officer Charette, both indicate Respondent has a good record and reputation within the corrections community for truth and veracity. According to Lacienski, even though Respondent's arrest was known within the correctional community, no one indicated any reluctance to work with him for that reason. This opinion is shared by Officer Charette, who asserts that Respondent's arrest for this incident had no effect on his work, and his effectiveness has not been diminished. Respondent has worked with the Orange County Department of Corrections for more than eleven years, achieving the rank of corporal. While serving as a corrections officer over that period, he has, at various times, held various part time jobs such as security officer, psychic technician, nurse's aide, and, for a period, janitor with Duncan Janitorial Service. He has never received any type of disciplinary action during his corrections career.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint against the Respondent, John H. Girtman. RECOMMENDED this 13th day of December, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 13th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3299 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 15. Accepted and incorporated herein. Rejected as hearsay evidence not properly corroborated by other admissible evidence of record. & 18. Accepted and incorporated herein. FOR THE RESPONDENT: 1. - 3. Accepted and incorporated herein. 4. - 6. Accepted. 7. - 12. Accepted. 13. - 15. Accepted and incorporated herein. 16. & 17. Accepted. 18. & 19. Accepted. Accepted. & 22. Accepted. COPIES FURNISHED: Steven O. Brady, Esquire Florida Department of Law Enforcement 400 West Robinson Street, N-209 Orlando, Florida 32801 Joan Stewart, Esquire 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact The Respondent, Walker L. Whaley, is a licensed physician in the State of Florida, having been issued license number ME 0025950. On February 7, 1984, Respondent was convicted, in the United States District Court for the Middle District of Florida, of conspiracy, to wit: Between at least on or about June 1982, and on or about April 7, 1983, Respondent did unlawfully, willfully, willingly, and intentionally combine, conspire, confederate and agree together with persons known or unknown to manufacture cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) Initially, Dr. Whaley was indicted on three counts. He was acquitted of two of the three counts appearing in the indictment against him. There was a mistrial because of the jury's inability to reach a verdict on the remaining count. He was ultimately convicted on the remaining count after a second trial. Respondent's criminal conviction is currently on direct appeal. The matters alleged in the indictment against Dr. Whaley pertain to alleged personal activities and were not alleged to have occurred as part of the conduct of his medical practice.
Recommendation Based upon the foregoing findings of fact and conclusions of law, and upon consideration of the exhibits presented by the parties, it is RECOMMENDED that the Board of Medical Examiners enter a final order finding Dr. Whaley guilty of the act set forth in Section 458.331(1)(c) and imposing the following penalty: suspension of Dr. Whaley's license for one year, followed by five years of probation subject to such conditions as the board may specify. It is further recommended, in accordance with the parties' stipulation, that the imposition of the penalty be stayed until the direct appeal of the criminal conviction has been decided and that, if the criminal conviction is reversed, this case be dismissed. DONE and ENTERED this 16th day of December, 1985, in Tallahassee, Florida. DIANE A. GRUBBS 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 16th day of December, 1985. APPENDIX Petitioner's and Respondent's
Findings Of Fact Before 1989, the Petitioner, Gregory Miller, was a community control counselor (in effect, a juvenile probation officer) working for HRS. After several years of satisfactory job performance, his employment was terminated for unsatisfactory job performance in 1989. The Petitioner believes his termination by HRS was unfair. On January 30, 1991, the Petitioner, Gregory Miller, pled nolo contendere to attempted arson in violation of Section Section 806.01, Fla. Stat. (1991). Adjudication was withheld, and the Petitioner was placed on probation for two years. The attempted arson charge arose at a time in October, 1990, when the Petitioner, who has a 20-year history of substance abuse and suffers from bipolar disorder and borderline personality disorder, decompensated under financial and other stress and attempted to burn his automobile in order to fraudulently obtain property and casualty insurance benefits. At the time of the arson attempt, his car was parked in the garage, and a tenant was residing in the garage apartment overhead. The tenant noticed the fire started by the Petitioner, put it out and reported it to the Petitioner. The Petitioner berated him for putting the fire out and told him to get his personal belongings out of the garage apartment and leave. While the tenant was in the garage apartment gathering his belongings, the Petitioner was attempting to restart the fire. The tenant had been a worker's compensation client of the Petitioner. The Petitioner continued to have mental and emotional and substance problems that led to additional criminal charges. On February 13, 1991, he was arrested and charged with battery of a law enforcement officer, a third degree felony. On October 3, 1991, the Petitioner pled guilty to the lesser included offense of resisting arrest without violence, a misdemeanor, and was sentenced to seven days time served in jail. On or about December 22, 1991, the Petitioner overdosed on a mixture of drugs and alcohol in a possible suicide attempt. When confronted with law enforcement officers, the Petitioner struck the officers and was arrested and charged with battery of a law enforcement officer, a third degree felony. The Petitioner was involuntarily committed under the Baker Act, and on September 21, 1992, he pled nolo contendere to simple battery, a first degree misdemeanor, and was sentenced to one day time served in jail and ordered to pay $200 in fine and court costs. As a result of his other criminal charges, the Petitioner was charged with violation of his probation on the attempted arson charge. On or about March 16, 1992, the Petitioner pled guilty to violation of probation. Adjudication on the violation of probation was withheld, but probation was revoked, and he was resentenced under the attempted arson charge to a year of community control, followed by a year of probation. On or about March 8, 1992, the Petitioner was charged with driving with his license suspended or revoked for failure to maintain required insurance coverage. Since 1992, the Petitioner has not been involved in any additional criminal activity or charges. On February 23, 1993, his community control was converted to probation. He moved to Pasco County and, on December 22, 1993, his probation was terminated early. The Petitioner has sought professional counseling. On or about March 22, 1993, he was referred to a vocational rehabilitation counselor with the Department of Labor and Employment Security, Division of Vocational Rehabilitation. Since approximately early 1994, he also has been under the care of a psychiatrist. With the help of counseling, the Petitioner has been sober since before August, 1993. Fortunately, therapy seems to have been successful. Except for two short hospitalizations for decompensation and medication adjustment early in his counseling, the Petitioner has been sober and mentally stable over the course of the last three years. From a mental health standpoint, the Petitioner no longer seemed to be a danger to himself or others, and he was making good progress in rehabilitating himself. On or about May 18, 1995, the Petitioner sought employment with Action Youth Care, a provider on contract with HRS. When he applied for the job, he was required to complete an Affidavit of Good Moral Character that swore, in pertinent part, that he had "not been found guilty of, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Section 806.01 [Florida Statutes, arson]." The affidavit also required the Petitioner to "acknowledge the existence of any criminal . . . record regardless of whether [he] was adjudged guilty by the court and regardless of whether or not those records have been sealed or expunged." The Petitioner signed without acknowledging his attempted arson record. When his name was screened, the attempted arson record disqualified him from employment, and the Petitioner was terminated from his employment pending his request for an exemption. Despite the Petitioner's commendable progress in rehabilitating himself, there still are signs that some instability persists. He does not seem to appreciate the seriousness of his criminal record and history of substance abuse and mental illness, as they relate to HRS's statutory obligation to properly assess his moral character under Section 409.175, Fla. Stat. (1995). Instead, he blames HRS's actions on a "political" conspiracy to prevent him from obtaining employment. Similarly, he attempts to excuse his criminal record by blaming it all on HRS--the termination of his employment in 1989 allegedly was the sole cause of his decompensation and the resulting criminal offenses. His excuse for falsifying his Affidavit of Good Moral Character was that it was reasonable not to disclose the arson record because it was only attempted arson, not arson. He does not seem to appreciate that there is little or no difference in blameworthiness between the two. (The only real difference between the two is how soon the fire goes out or is put out.) Finally, the Employee Closing Summary produced by Action Health Care upon termination of the Petitioner's employment stated that Action would not re-hire the Petitioner and that the Petitioner's "weak areas" included: "poor rapport with team"; "would not accept authority"; and "documentation skills." (No "strengths" were noted on the form.) The Petitioner again blamed HRS, contending that the person who completed the form was lying to cooperate with HRS's conspiracy against the Petitioner. It is found that the evidence, taken as a whole, was not clear and convincing proof of rehabilitation and good moral character at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioner's request for an exemption from disqualification. DONE and ENTERED this 21st day of August, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 21st day of August, 1996.
