The Issue Whether Petitioner, Alexander DeArmas ("Petitioner") can establish, by a preponderance of the evidence, that at least three years have elapsed since he has been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felonies pursuant to section 435.07(a)(1)1., Florida Statutes, such that he is eligible for an exemption from disqualification.
Findings Of Fact Petitioner is a 38-year-old male seeking to qualify, pursuant to section 435.07, to participate in the Medicaid program. AHCA is the state agency responsible for administration of the Medicaid program in Florida. On February 27, 2014, Petitioner pled guilty to the two disqualifying felony drug offenses. Petitioner was adjudicated guilty and he was sentenced to five years of drug offender probation. On April 15, 2014, the court entered an Order that the "remainder of the defendant's probation shall be converted from drug offender probation to regular probation." On February 23, 2017, Petitioner was released early from his probation. On October 4, 2018, Petitioner submitted an application for exemption from disqualification to AHCA pursuant to section 435.07. In a letter dated December 28, 2018, AHCA notified Petitioner that his request for an exemption from disqualification was denied. AHCA determined Petitioner is ineligible for an exemption because section 435.07 requires that three years elapse between the date Petitioner was lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felonies and the date of application for the exemption. Petitioner is ineligible for an exemption because three years have not elapsed since he was released from probation on February 23, 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying Petitioner's request for an exemption from disqualification as a Medicaid provider. DONE AND ENTERED this 5th day of September, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2019. COPIES FURNISHED: Bradley Stephen Butler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Alexander DeArmas 8874 West 35th Lane Hialeah, Florida 33018 Ryan McNeill, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Kim Annette Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
The Issue The issue in this case is whether Respondent, Amelia Kay Jacobs, committed the offenses alleged in an Administrative Complaint entered by the Insurance Commissioner of the State of Florida on February 20, 1998.
Findings Of Fact Petitioner, the Department of Insurance (hereinafter referred to as the "Department"), is an agency of the State of Florida charged with the responsibility for, among other things, the licensing and discipline of insurance representatives in Florida. Chapter 626, Florida Statutes (1997). Respondent, Amelia Kay Jacobs, is currently licensed by the State of Florida as a nonresident life and health agent. Ms. Jacobs agent number is 510427789. On or about July 24, 1980, a Complaint/Information was filed in the District Court of the Eighteenth Judicial District in and for Sedgwich County, Kansas, charging Ms. Jacobs with one count of Giving a Worthless Check in violation of Section 21- 3707, Kansas Statutes, a Class E Felony. On or about April 28, 1981, Ms. Jacobs entered a plea of guilty to the charge of Giving a Worthless Check before the Kansas District Court. The Court adjudicated Ms. Jacobs guilty as charged, but withheld sentencing for a period of one year from June 26, 1981. Ms. Jacobs was subsequently released early from probation. On or about May 20, 1996, Ms. Jacobs swore to and signed an Insurance License Application (hereinafter referred to as the "Application") with the Department. Ms. Jacobs filed the Application seeking licensure as a nonresident life and health agent. On the Application Ms. Jacobs, while under oath, responded "NO" to the following questions: 13. Have you ever been convicted of, found guilty of, or pleaded no contest to a crime involving moral turpitude No (yes or no), or a felony No (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or country, whether or not a judgment of conviction has been entered? No (yes or no) If yes, give date(s): N/A Ms. Jacobs knew or should have known that her answers to question 13 were false and a material misrepresentation of fact. The Department relied upon the incorrect misrepresentation of Ms. Jacobs to question 13 on the Application in approving the Application. Ms. Jacobs was informed by the Department by letter dated August 14, 1996, that the Department had received information concerning the foregoing. The Department gave Ms. Jacobs an opportunity to explain the incident or to withdraw her Application because she was a first-time applicant still on probation. On or about February 20, 1998, the Insurance Commissioner entered an Administrative Complaint against Ms. Jacobs. The complaint was based, in part, on the incident described, supra. On or about February 28, 1998, Ms. Jacobs executed an Election of Rights form denying the factual allegations of the Administrative Complaint and requesting a formal administrative hearing. Rule 4-231.160(2), Florida Administrative Code, lists certain aggravating and mitigating circumstances which should be considered in determining the appropriate penalty for a violation of Sections 626.611(14) or 626.621(8), Florida Statutes (1997): The number of years since the criminal proceeding: It has been 18 years since Ms. Jacobs was charged with Giving a Worthless Check in violation of Section 21-3707, Kansas Statutes. Age of licensee at the time the crime was committed: Ms. Jacobs was 36 when the offense was committed. Whether licensee served time in jail: The evidence failed to prove that Ms. Jacobs served time in jail. Whether or not licensee violated criminal probation: Ms. Jacobs did not violate probation. She was released from probation early. Whether or not licensee is still on criminal probation: The evidence failed to prove that Ms. Jacobs is still on probation. Whether or not licensee's actions or behavior resulted in substantial injury to the victim: Ms. Jacobs made restitution of the amount of the worthless check. The victim, therefore, did not suffer substantial injury. Whether or not restitution was, or is being timely, paid: Ms. Jacobs made restitution. Whether or not licensee's civil rights have been restored: Ms. Jacobs' civil rights were not impacted. Other related factors: The evidence failed to prove that any other factors apply in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Insurance finding that Amelia Kay Jacobs has violated the provisions of Sections 626.611(2), (7), and (14), and 626.621(1) and (8), Florida Statutes (1997), as alleged in the Administrative Complaint. It is further RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Jacobs violated Sections 626.611(1) and (13), and 626.621(2), Florida Statutes (1997), be dismissed. It is further RECOMMENDED that the nonresident life and health agent license issued to Ms. Jacobs be suspended for a period of six months from the date of the Final Order. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998. COPIES FURNISHED: Robert F. Langford, Jr., Esquire Department of Insurance 645A Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Amelia Kay Jacobs Post Office Box 8073 Wichita, Kansas 67268-8073 Bill Nelson State Treasurer and Insurance Commission The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Daniel Y. Sumner, Esquire Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300
Findings Of Fact The Respondent, Alton Lynn Gillen, Jr., is a licensed Surety Agent doing business in the State of Florida. Respondent was charged by information, on or about December 23, 1980, in the Circuit Court of the Twentieth Judicial Circuit of the State of Florida, with a violation of the Racketeering Influenced and Corrupt Organization Act and with conspiracy to traffic in cannabis. On February 5, 1981, Respondent pled nolo contendere to the charges contained in the information. On May 13, 1981, an Order was entered in the Circuit Court of the Twelfth Judicial Circuit in and for Lee County, Florida, adjudicating Respondent guilty of a violation of the Racketeering Influenced and Corrupt Organization Act and of conspiracy to traffic in cannabis. Respondent was sentenced by the same order to state prison for a period or term of ten years. Respondent, having reserved his right to appeal as a condition of the nolo contendere plea, thereafter appealed this conviction and is currently awaiting its determination. Respondent, through his attorney, contacted Petitioner to ascertain whether or not he would be permitted to continue operating under his license after adjudication of guilt and while his appeal was pending. In a telephone conversation between Respondent's attorney and Onez O'Neill, Chief of Bureau of Licensing, on February 20, 1981, Respondent was advised that once the Department received formal notice of the convictions, a revocation proceeding would probably be instituted, but that his license would be reinstated upon receipt by the Department of certified copies of the information, judgment and sentence, and notice of appeal. Within a few days after being adjudicated guilty (May 13, 1981), Respondent obtained certified copies of those documents, as well as certified copies of notice of appearance by the appellate attorney, motion for supersedeas bond, and the supersedeas bond. On or about May 20, 1981, Respondent personally delivered those documents to O'Neill's office with a cover letter from his attorney (R-Ex 1). Since O'Neill was not in her office that day, Respondent gave the documents to the assistant chief, Joe Crutchfield. Respondent explained the nature of the problem and the reason for the delivery of the documents. Crutchfield assured him that everything appeared to be satisfactory and that he would personally discuss the matter with O'Neill the next day. On or about June 1, 1981, Petitioner caused a letter to be sent to Respondent by John Rich, a licensing specialist employed by Petitioner (R-Ex 2). This letter advised that Respondent could "continue operating as a bondsman under his current license until such time as the legal appeal process has been finalized...", subject to approval by the surety company underwriting Respondent. Based on the affirmative representations of Petitioner, by telephone and by its letter of June 1, Respondent continued to write bonds and incur financial obligations as a result thereof. Respondent also continued making contributions to a "build-up fund" held in trust for his underwriter. The buildup fund is money generated out of bond premiums which is held in an escrow account for the underwriter if it becomes legally liable for an estreature of a bond written by Respondent. On September 30, 1981, Petitioner renewed Respondent's license with full knowledge of his convictions (P-Ex 3). On April 5, 1982, Petitioner filed its Administrative Complaint seeking to revoke Respondent's license based on his adjudication of guilt of the two criminal charges to which he pleaded on February 5, 1981.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint, subject to refiling if Respondent's appeal is denied. DONE and ORDERED 30th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1982. COPIES FURNISHED: David A. Yon, Esquire Department of Insurance and Treasurer 428-A Larson Building Tallahassee, Florida 32301 Burton C. Conner, Esquire 207 N.W. Second Street Okeechobee, Florida 33472 The Honorable Bill Gunter Insurance Commissioner & Treasurer Department of Insurance The Capitol Tallahassee, Florida 32301
The Issue The primary issue in this case is whether the crimes of which Respondent was convicted are directly related to the practice of medicine. If so, it will be necessary to determine an appropriate penalty.
Findings Of Fact At all times relevant to this case, Respondent Algirdas Krisciunas, M.D., was licensed to practice medicine in the state of Florida. His office was located in Broward County. Petitioner has regulatory jurisdiction over licensed physicians such as Dr. Krisciunas. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Exercising its prosecutorial authority, the Department has charged Dr. Krisciunas with one such offense, namely, being tried and found guilty of a crime which directly relates to the practice of medicine. It is an undisputed fact that, on October 13, 2010, in a case styled United States v. Krisciunas, No. 0:10-6007-CR- DIMITROULEAS-001, the U.S. District Court for the Southern District of Florida entered a judgment of conviction which adjudicated Dr. Krisciunas guilty of five counts of unlawfully dispensing oxycodone, a narcotic pain medication, and one count of conspiring to distribute oxycodone. Based on this conviction, the court sentenced Dr. Krisciunas to a term of 97 months' incarceration in a federal prison. At the time of the final hearing in this case, Dr. Krisciunas was serving his sentence in the custody of the U.S. Bureau of Prisons. The crimes of which Dr. Krisciunas was convicted are directly related to the practice of medicine——a fact that Dr. Krisciunas concedes is true. Because it is undisputed that Dr. Krisciunas was convicted of crimes that directly relate to the practice of medicine, the conduct which gave rise to Dr. Krisciunas's conviction is relevant only for the limited purpose of determining the appropriate penalty to be imposed in this proceeding. In this regard, the undersigned finds that the principal events which gave rise to Dr. Krisciunas's conviction occurred on July 13, 2009; August 6, 2009; and September 9, 2009. On each of these dates, Detective William Schwartz of the Broward County Sheriff's Office, working undercover, presented to Dr. Krisciunas as "Bill Rix." During each visit, Dr. Krisciunas gave "Bill Rix" prescriptions for oxycodone and the anxiolytic alprazolam despite the absence of any legitimate medical justification for prescribing these medications. "Bill Rix" (Detective Schwartz) paid Dr. Krisciunas's staff in cash for the drugs, which he received in Dr. Krisciunas's office at the conclusion of each visit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Krisciunas guilty the offense described in section 458.331(1)(c), Florida Statutes, i.e., being convicted of a crime that directly relates to the practice of medicine. It is further RECOMMENDED that the Board of Medicine revoke Dr. Krisciunas's medical license and impose an administrative fine of $10,000. DONE AND ENTERED this 27th day of June, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2011.
The Issue Whether the Respondent's license as a life insurance agent should be suspended or revoked based on the allegations set forth in the Department's Amended Administrative Complaint.
Findings Of Fact Respondent is currently licensed by the Department as a life insurance agent. On or about January 29, 1987, Respondent was charged with the felony, Misapplication of Funds, in the Circuit Court of the Thirteenth Judicial Circuit in and for the County of Hillsborough, Florida, Case No. 86-10485B. On or about February 12, 1987, Respondent was charged with the felony, Misapplication of Funds, in the Circuit Court of the Thirteenth Judicial Circuit in and for the County of Hillsborough, Florida, Case No. 87-1826B. On or about March 27, 1987, Respondent pled nolo contendre to two counts of Misapplication of Funds, a felony. The court withheld adjudication and placed Respondent on five years' probation for each count, to run concurrently; required Respondent to perform community service; and to pay restitution and court costs. On or about June 1, 1988, Respondent submitted an application to the Department for licensure as a health agent. Question 8 of the application asked, "Have you ever been charged with a felony?" Respondent answered "no" to that question. On or about September 20, 1988, Respondent submitted an application to the Department for licensure as a life insurance agent. Question 8 of the application asked, "Have you ever been charged with a felony?" Respondent answered "no" to that question. On the application dated June 1, 1988, and on the application dated September 20, 1988, Respondent signed and swore to the statement that read: I do solemnly swear that I will not directly or indirectly divide my commissions with any person other than a qualified life and/or health insurance agent, licensed by the State of Florida; that all answers to the foregoing questions are true and correct to the best of my knowledge and belief; that I will in good faith conduct myself in a manner befitting the insurance profession as set forth in the Code of Ethics; that I have not or will not withhold any information on myself that will in any way affect my qualifications as an insurance agent. (emphasis supplied) On or about August 15, 1991, the court revoked Respondent's probation because of a probation violation and Respondent was convicted of a felony, Misapplication of Funds, in Case Nos. 86-10485 and 87-1826. Respondent was sentenced to three and one-half years in prison followed by community control and probation. Respondent was incarcerated in both county jail and state prison for this felony conviction. Respondent's civil rights have not been restored. On or about May 21, 2000, Respondent completed and submitted an application for a health insurance agent license to the Department as his health agent license apparently had expired. Respondent answered "yes" to questions 3 and 4 on the application which inquired whether the applicant had ever been convicted, found guilty, or pled nolo contendre to a felony or to a crime punishable by imprisonment of one year or more. From November 1998 to March 2000, Respondent resided in Tucson, Arizona. Respondent did not notify the Department of his address change or his move from Florida to Arizona until May of 2000, when he submitted his health agent application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Insurance enter a final order finding that Respondent violated Sections 626.611, 626.621, and 626.551, Florida Statutes, and revoking Respondent's life insurance agent license. DONE AND ENTERED this 10th day of August, 2001, in Tallahassee, Leon County, Florida. Hearings Hearings BARBARA J. STAROS Administrative Law Judge Division of Administrative 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 this 10th day of August, 2001.
Findings Of Fact Petitioner, Maxine Padawer, made application for Examination as a Licensed Limited Surety Agent (hereinafter the Application) on or about February 21, 1985. The Application was denied by the Department of Insurance, Bureau of Licensing, in a letter dated July 2, 1985. On August 9, 1980, approximately five and a half years ago, Padawer was detained in Orange County, Florida, for the offense of shoplifting (petit theft), a misdemeanor. Padawer appeared in court and entered a plea of no contest to the charge (petit theft) in Case No. M080-4451, which plea was accepted by the court. Adjudication was withheld and Padawer was placed on probation for a period of six months. Padawer was twenty-one years of age at the time of the charge and plea. No derogatory information, except the events and plea set forth above, was uncovered in the course of the Department's background check of Padawer. At no other time has Padawer been charged with a crime. Padawer submitted to a Psychological Evaluation on September 9, 1985, conducted by Bruce F. Hertz, Ph.D., Licensed Psychologist. Hertz concluded that there is no reason to be concerned about the reliability, trustworthiness or emotional stability of Padawer and that it is unlikely that her past behavior would reappear. Court records relating to the above detention and plea of no contest to the charge of shoplifting (petit theft) were sealed on October 8, 1985, by the County Court of the Ninth Judicial Circuit for Orange County, Florida, pursuant to Section 943.058, Florida Statutes. The isolated instance of criminal activity by Padawer came at the culmination of a long (approximately eight years) divorce by her parents which was very bitter and very traumatic for Padawer. Since 1980, Padawer has actively changed the course of her life. She has been successfully employed. For approximately two years, Padawer worked for the Exxon Car Wash and her employer found her to be very honest and responsible. He would gladly rehire her. During this time she supported her brother, Henry Padawer. Since July 1, 1984, she has been employed by bail bond agencies. According to David Mollison of Freedom Bail Bonds where Padawer has worked since January 1, 1985, Padawer handles much of the financial business of Freedom and is a signatory on Freedom's checking account. She has been completely honest and dedicated and there have been no discrepancies in the financial affairs of Freedom. Padawer has attended bonding school and taken all of the examinations connected therewith, scoring 100 on five of the tests and 98 on one. Padawer has successfully rehabilitated herself since 1980 and is a person of high character and integrity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a Final Order determining that Maxine Padawer is qualified and eligible for examination and licensure as a limited surety agent (bail bondsman) and that a license is to be issued upon satisfactory completion of the examination. DONE and ENTERED this 21st day of February, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1986. COPIES FURNISHED: Leland L. McCharen, Esquire Legal Division 413 Larson Building Tallahassee, Florida 32301 Alan B. Robinson, Esquire O. Box 1544 Orlando, Florida 32802 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol-Plaza Level Tallahassee, Florida 32301 APPENDIX 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. Rulings on Proposed Findings of Fact Submitted by the Respondent Proposed Findings of Fact 1-9 are adopted in substance in Findings of Fact 1-9. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF INSURANCE MAXINE PADAWER, Petitioner, vs. Case No. 85-2961 DEPARTMENT OF INSURANCE AND TREASURER, Respondent. /
The Issue The issue in this case is whether the Respondent’s medical license should be revoked or otherwise disciplined under section 456.072(1)(c), Florida Statutes, based on criminal convictions related to the practice of medicine or the Respondent’s ability to practice medicine—namely, convictions for obtaining a controlled substance by fraud, a third degree felony under section 893.13(7)(a)9., and for fraudulently using, or possessing with intent to fraudulently use, personal identification information, a third degree felony under section 817.568(2)(a).1/ The Respondent disputes that the convictions are related to the practice of medicine or her ability to practice medicine and asserts various defenses.
Findings Of Fact The Respondent, Christina Paylan, M.D., holds a license, ME 82839, to practice as a medical doctor in the State of Florida, as regulated by DOH and the Board of Medicine. On April 25, 2014, she was charged with obtaining or attempting to obtain a controlled substance, Pethidine/Meperidine (known by the brand name Demerol), by fraud, forgery, deception or subterfuge in violation of section 893.13(7)(a)9., Florida Statutes; and with fraudulently using the personal identification information of a patient, C.M., without first obtaining the patient’s consent, in violation of section 817.568(2)(a), Florida Statutes. The charged conduct was alleged to have occurred in July 2011. The Respondent was tried by jury in the circuit court in Hillsborough County on July 29 and 30, 2014, and was found guilty. On August 22, 2014, the Respondent was adjudicated guilty and sentenced to 364 days in the county jail. The Respondent appealed the convictions. The appeal is pending. DOH filed an Administrative Complaint based on the criminal convictions and suspended the Respondent’s license pending the resolution of the Administrative Complaint. The Respondent’s convictions related to her practice of medicine. She was convicted of fraudulently writing a prescription for Demerol for a patient, C.M., and using the patient’s personal identification information (driver license and insurance card) without the patient’s consent to present the prescription to a pharmacy to be filled on July 1, 2011. The Respondent’s status as a medical doctor gave her the ability to obtain the patient’s personal identification information and write the prescription. A medical license carries with it a high level of public trust and requires good judgment, integrity, and high morals. Licensure carries a duty to safeguard patients’ personal information and use it only for legitimate purposes. The Respondent was convicted of crimes that violate the public trust, demonstrate warped judgment and a lack of integrity, involve misuse of patient information, and undermine public confidence in the Respondent’s ability to practice medicine. The Respondent maintained her innocence and essentially sought to re-try the criminal case. Various rulings denied the Respondent’s efforts to do so, including rulings that sustained many of DOH’s objections to the Respondent’s proffered evidence. The Respondent’s convictions are on appeal. As discussed in the Conclusions of Law, if the convictions are overturned on appeal, there would be no basis for disciplining the Respondent’s medical license based on the Amended Administrative Complaint. The Respondent’s Answer to the Amended Administrative Complaint denied that she (i.e., Christina Paylan, M.D.) was convicted because a “fictitious Christina Paylan was found guilty.” By this, the Respondent meant the prosecutor in the criminal trial “fraudulently represented that Respondent is neither a doctor nor a licensed practitioner.” In her Proposed Recommended Order, the Respondent refined her argument to be that her convictions were for crimes that apply only to laypersons, not to medical doctors. These are grounds of her appeal from the criminal convictions. These defenses are invalid, as discussed in the Conclusions of Law. The Respondent asserted affirmative defenses of res judicata, collateral estoppel, laches, and unclean hands based on the actions taken by the Board of Medicine in this case and in prior investigations of her practice of medicine. One of those prior investigations, designated by DOH file 11-0006, involved an investigation of whether the Respondent met the standard of care with respect to patient L.B. This investigation had nothing to do with the Respondent’s conduct regarding the patient C.M., which was the subject of the criminal convictions giving rise to the Amended Administrative Complaint in this case. Another investigation, designated by DOH file 11-18577, was opened to investigate allegations regarding the Respondent’s drug prescriptions, specifically for Demerol, for patients J.E.A. and J.M.A. During the 11-0006 investigation, DOH obtained patient records for patient C.M., which were removed from that investigative file and added to investigation 11-18577. In May 2014, investigation 11-18577 was terminated when the Board of Medicine found no probable cause, dismissed the cases, and closed the investigation. A primary basis of this decision was DOH’s inability to obtain the patient records of J.E.A. and J.M.A. and their unwillingness to cooperate with a prosecution of the Respondent. Although C.M.’s patient records were available, and C.M. may have been willing to cooperate with a prosecution of the Respondent, the probable cause decision, dismissal of the cases, and closure of the investigation included C.M. as well as J.E.A. and J.M.A. There was no evidence to prove unclean hands on the part of DOH or the Board of Medicine. This affirmative defense was not mentioned in the Respondent’s Proposed Recommended Order. As explained in the Conclusions of Law, the Respondent’s affirmative defenses are not valid. In the Respondent’s Proposed Recommended Order, the Respondent refined her defense of laches by arguing that she was prejudiced by the action taken by the Board of Medicine in May 2014 because it “eliminated” her option to plead nolo contendere. Clearly, the action of the Board of Medicine did not eliminate the Respondent’s options or force her to go to trial on the criminal charges. Even if the Respondent’s decision to go to trial had been influenced by the action of the Board of Medicine, her new defense of laches is also not valid, as discussed in the Conclusions of Law. Regarding the appropriate penalty, the Respondent has been licensed and practicing medicine in Florida since June 2001. There was no evidence of any prior discipline being imposed against the Respondent’s medical license. The Amended Administrative Complaint is based on criminal convictions arising out of a single, isolated incident. Except for the conviction for a single misuse of a patient’s personal identification information, there was no evidence of any exposure of a patient or the public to any other injury or potential injury. The Respondent’s actions resulted in no pecuniary benefit or self- gain.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: finding the Respondent guilty as charged; fining her $5,000; suspending her medical license for two years, with credit for the time under emergency suspension; placing her on probation for one year after suspension; requiring her to take appropriate continuing medical education; and assessing costs related to the investigation and prosecution. The final order should retain jurisdiction to vacate all discipline if the Respondent’s convictions are overturned on appeal. DONE AND ENTERED this 23rd day of October, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2015.
