The Issue The issues in this instance are promoted in keeping with an administrative complaint brought by the Petitioner against the Respondent, charging violations of Sections 943.13 and 943.145, Florida Statutes. These allegations relate to the claim that Respondent was involved in a liaison with a prostitute in which he exchanged Valium for sex. The encounter between the Respondent and the prostitute is alleged to have occurred while the Respondent was on duty. This Valium was allegedly obtained from an automobile which was examined as part of the Respondent's duties as a law enforcement officer. It is further alleged that the Valium should have been turned in as part of his responsibilities as a law enforcement officer.
Findings Of Fact Respondent is a holder of a certificate as law enforcement officer, Certificate No. 98-10527. That certificate is issued by the State of Florida, Department of Law Enforcement, Criminal Justice Standards and Training Commission, and Respondent has held that certificate at all relevant times in this proceeding. Respondent has been employed as a police officer by the Daytona Beach, Florida, Police Department in the relevant time period and it was during that tenure that Respondent is accused of having committed the offense as set forth in the administrative complaint. Debbie Ofiara is the only witness to the Respondent's alleged indiscretion while on duty. Ms. Ofiara is an admitted prostitute, who has drug problems so severe that she required specific program treatment to address them. In particular, that drug difficulty relates to the drug Dilaudid. In addition, Ofiara has served six months in jail for grand theft, a felony conviction. At the time of the alleged incident with the Respondent she was under the influence of drugs and was under the influence of drugs when she reported that incident to a police investigator in the Daytona Beach Police Department. When testimony was given at the hearing, Ofiara was attending a drug program while awaiting a sentence for a drug offense related to cocaine. She had pled guilty to that drug charge, a felony. Ofiara has been arrested for prostitution, arrests made by the Daytona Beach Police Department on three different occasions. She had been arrested for hitchhiking by Officer Cadenhead prior to the incident which underlies the administrative charges and indicates that she "took offense" at the arrest. Moreover, she acknowledges some past concern about her treatment in encounters with Officer Gary Gallion of the Daytona Beach Police Department in his official capacity. Ms. Ofiara claims that sometime in November 1982, in the evening hours, the Respondent, while on duty as a police officer, in uniform and driving a marked patrol car, approached Ofiara and made arrangements to meet her. She further states that this rendezvous occurred in Daytona Beach, Florida, and that in exchange for Valium tablets which the Respondent had obtained from an examination of a car he had been involved with in his police duties, which tablets were not turned in, Ofiara performed oral sex for Respondent's benefit. Some time later, Ofiara related the facts of the encounter with Officer Cadenhead to an internal affairs investigator with the Daytona Beach Police Department, Lieutenant Thomas G. Galloway. She also gave Galloway a bottle which she claimed was the bottle in which the Valium was found. The vial or container was not examined for any residue of the substance Valium or examined for fingerprints of the Respondent. Following Galloway's investigation of the allegations, the Daytona Beach Police Department determined to terminate the Respondent from his employment. That termination was effective February 11, 1983. Respondent was subsequently reinstated after service of a four-week suspension without pay by order of the City of Daytona Beach Civil Service Board, effective March 9, 1983. Having considered the testimony of Ms. Ofiara and the testimony of the Respondent in which he denies the incident with her, and there being no corroboration, Ms. Ofiara's testimony is rejected for reasons of credibility. As a prostitute, drug user, felon and person with a certain quality of animosity toward the Respondent and in consideration of the demeanor of the accusing witness and Respondent, her testimony is rejected.
Findings Of Fact Born September 3, 1956, Stephen Darryl Hand holds police certificate No. 02-18775. Respondent Hand was employed as a police officer by the Indian Harbour Beach Police Department from July 3, 1977, to December 21, 1979. On December 22, 1979, he began working for the Melbourne Police Department, which he left in February of 1980, at the Police Chief's behest. In the fall of 1978, respondent was entrusted with the keys to the evidence locker at the Indian Harbour Beach Police Department. After Officer Martin came into possession of $14,990 in cash, it was stored in the evidence locker. Although seized in suspicious circumstances, the money was labeled as abandoned property, and not as evidence. Two weeks or so before he left Indian Harbour Beach Police Department, respondent stole fifteen hundred dollars ($1,500) from the cash in the evidence locker. This was the first time that he had been custodian of a large amount of cash. During respondent's final week with the Indian Harbour Beach Police Department, he and his replacement were directed to count the money again. Respondent then reported a shortage of $1,500 to Lt. Ferguson, without revealing that he had taken the money himself. He had used it for various personal purposes, including $250 he paid for the benefit of his sister. Lt. Ferguson reported the missing money to Chief Fernez who encouraged all personnel to take polygraph tests. Many resented this suggestion and morale problems arose. The theft made the local papers. When respondent, who was by that time employed by the Melbourne Police Deportment, was originally scheduled for a polygraph examination, he feigned illness and declined to take it. After Chief Fernez contacted Chief Miller of the Melbourne Police Department, however, he submitted to a polygraph examination, during which he denied knowing what had happened to the $1,500 he had recently spent. Some time later, respondent told Sergeant Keller of the Indian Harbour Beach Police Department that he had found the missing money among some papers at home. Respondent made full restitution before criminal charges were filed. On March 6, 1980, he pleaded guilty to grand theft, second degree and, on May 20, 1980, was placed on two years' probation, adjudication of guilt being withheld. Sixteen law enforcement officers testified on behalf of respondent to the effect that respondent was a good police officer who should be given a second chance even though he was guilty of an offense none of them could condone. Similarly, petitioner's witnesses commended respondent's conduct as a police officer, apart from the theft of a large sum of cash from the evidence locker, and the lying afterwards. To the extent that proposed findings of fact in petitioner's proposed recommended order have not been adopted in substance, they have been rejected as not established by the preponderance of the evidence or deemed irrelevant, after careful consideration.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke the certificate it issued to respondent, No. 02- 18775. DONE AND ENTERED this 18th day of June, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II 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 19th day of June, 1981. COPIES FURNISHED: James M. Corrigan, Esquire The Capitol, Suite 1601 Tallahassee, Florida 32301 Stephen Darryl Hand 105 Elm Avenue Satellite Beach, Florida 32937
The Issue The issues for determination in this proceeding are whether Respondent, KaShamba Miller-Anderson, violated section 112.3145(8)(c), Florida Statutes (2016), by willfully failing to file a 2015 CE Form 1, “Statement of Financial Interests”; and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently a member of the Riviera Beach City Council. As a member of the Riviera Beach City Council, Respondent served as a “local officer” as defined in section 112.3145(1)(a), throughout the year 2015. Respondent was aware that she was required to file a CE Form 1 every year, including for the year 2015. Financial disclosures are filed in order to allow the public to monitor public officials and employees for any conflicts of interest that may arise. The requirement that financial disclosures be filed is intended to deter corruption and increase the public’s confidence in government. In 2016, Respondent received e-mails at the address kmiller@rivierabch.com. She received regular mail at the address 430 West 28th Street, Riviera Beach, Florida 33404. The CE Form 1, “Statement of Financial Interests,” for calendar year 2015 was required to be filed on or before July 1, 2016. There is a grace period for filing the form that expired on September 1, 2016. After the expiration of the grace period, an automatic fine of $25 per day was imposed for each day the form is late, up to a maximum fine of $1,500. The maximum fine accrued on October 31, 2016. The Palm Beach County Supervisor of Elections (Palm Beach SOE) office sent Respondent the original blank 2015 financial disclosure form, along with the requirements for filing the form, before June 1, 2016. She was instructed to file her completed form no later than July 1, 2016. Respondent failed to file her 2015 CE Form 1 by either July 1, 2016, or September 1, 2016. Respondent received notice from the Commission regarding her failure to file her 2015 CE Form 1. On July 31, 2016, the Palm Beach SOE sent a delinquency memorandum to Respondent at 430 West 28th Street, Riviera Beach, Florida 33404 by certified mail. The mail was unclaimed. The July 31, 2016, memorandum included the following statement: Pursuant to State law, please be advised that although you are delinquent in filing Form 1, a grace period is in effect until September 1, 2016. If your form is not received by September 1, 2016, we will be required by law to notify the Commission on Ethics of the delinquency. A fine of $25 for each day late will be imposed, up to the maximum penalty of $1500. In addition, pursuant to enacted legislation, the Commission on Ethics must initiate investigations of delinquent filers in certain circumstances. This can result in you being removed from your public office or employment. Respondent took no action to file her form by September 1, 2016. If she had done so, it would have been considered timely. Commission staff sent Respondent a courtesy letter on September 7, 2016, and advised her that she was accruing a fine of $25 per day for failure to file her 2015 CE Form 1. The Commission also e-mailed Respondent on September 20, 2016, using the e-mail address kmiller@rivierabch.com. Respondent accrued the maximum fine of $1,500 as of October 31, 2016, as authorized by section 112.3145(7)(f), for failing to file her CE Form 1 for the year 2015. On November 4, 2016, the Commission again e-mailed Respondent at the same e-mail address, advising her that the maximum fine had accrued and she still needed to file her 2015 CE Form 1. The November 4, 2016, e-mail attached a blank 2015 CE Form 1 and a form to appeal her fine. Respondent did not avail herself of the opportunity to appeal the fine that had accrued. On February 21, 2017, the Commission sent Respondent a Notice of Assessment of Automatic Fine by certified mail, using the 430 West 28th Street address. Respondent acknowledged receipt of the February 2017 notice. This e-mail also provided the appeal process for contesting the maximum fine. Respondent did not pay the fine at that time because she did not have the funds to do so. She believed, in error, that she now could not file the 2015 CE Form 1 until she paid the fine. Her belief, however misplaced, was sincere. On June 16, 2017, the Commission mailed Respondent a Notification of Issuance of Default Final Order at the 430 West 28th Street address. The Notice was not returned to the Commission as undeliverable. On June 22, 2017, Respondent paid the $1,500 fine. On June 28, 2017, Respondent filed her CE Form 1 for calendar year 2015. Respondent did not have a particularly compelling reason for not timely filing her 2015 CE Form 1. Her position on the city council is a part-time position, for which she is not assigned an assistant. She admitted at hearing that the notice and the form simply got lost on her desk, and she did not make it a priority. However, Respondent claims that while filing her 2015 CE Form 1 was not the priority it should have been, she never intended not to file the form, and she never indicated to anyone that she would not do so. Respondent filed her 2015 CE Form 1 and paid the fine prior to the finding of probable cause in this case. There are some differences between the financial disclosure Respondent filed when she initially ran for office and the one filed for 2015. Those differences however, are not so great as to support an inference or finding that she was attempting to hide something by not filing timely. The term for which Respondent was elected expired on March 21, 2018. She was re-elected for another term which began March 21, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that no violation of section 112.3145(8)(c) has been demonstrated. DONE AND ENTERED this 7th day of June, 2018, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 7th day of June, 2018. COPIES FURNISHED: Millie Wells Fulford, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Melody A. Hadley, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Ronald G. Meyer, Esquire Meyer, Brooks, Demma and Blohm, P.A. 131 North Gadsden Street (32301) Post Office Box 1547 Tallahassee, Florida 32302 (eServed) C. Christopher Anderson, III, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed) Virlindia Doss, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 (eServed)
Findings Of Fact The Petitioner, Department of State, Division of Licensing, licenses and regulates private investigators in Florida. The Respondent, Edward W. Salvato, is licensed in Florida as a Class C private investigator. On August 31, 1993, while working in his capacity as a private investigator, the Respondent was monitoring the movements of a subject who entered Sea World in Orlando, Florida. As he entered Sea World, the Respondent hurriedly "flashed" his Class C private investigator license credentials and told the admissions gate attendant that he was a "state investigator" who was following a subject into the park. He told the attendant that, under those circumstances, he normally does not have to purchase a ticket. The Respondent's gestures and words gave the gate attendant the impression that the Respondent was a law enforcement investigator with official status. The gate attendant was new on the job and was unsure how to handle the situation. She referred the Respondent to a supervisor. The Respondent repeated essentially the same gestures and words to the supervisor. Understanding from the Respondent's gestures and words that the Respondent was a law enforcement investigator with official status, the supervisor authorized the Respondent to enter the park without having to purchase a ticket. Before he left the park, the Respondent telephoned his employer and reported on his activities. The employer advised the Respondent that it was against the employer's policies for the Respondent to seek free admission to Sea World under the conditions described by the Respondent. The employer instructed the Respondent to purchase a ticket and get a receipt for reimbursement by the Respondent's client. Before leaving Sea World, the Respondent proceeded to the "Special Services" window to purchase a ticket and get a receipt. He also told "Special Services" that he was a "state investigator." Subsequent misunderstandings resulted in the Respondent being arrested by Sea World security guards. When a law enforcement officer responded to a call from Sea World, the Respondent also told the officer that he was a "state investigator." The officer cautioned him that his use of the term "state investigator" to describe himself could lead one to believe he was a law enforcement officer. He advised the Respondent to stop using the term to describe himself to members of the public. Evenually, the Respondent's admission to the park was paid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of State, Division of Licensing, enter a final order finding the Respondent, Edward W. Salvato, guilty of violating Section 493.6118(1)(i), Fla. Stat. (1993), and fining him $500. RECOMMENDED this 29th day of June, 1994, 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 29th day of June, 1994. COPIES FURNISHED: Richard R. Whidden, Jr., Esquire Assistant General Counsel Department of State The Capitol, MS #4 Tallahassee, Florida 32399-0250 Edward W. Salvato, pro se 1051 South Hiawassee Road, #2121 Orlando, Florida 32835 Hon. Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact On September 13, 1989, petitioner, Donald Ray Ballard, filed an application with respondent, Department of State, Division of Licensing (Department) for a Class "A" private investigative agency license and Class "C" private investigator's license. Pertinent to this case, the application, which was attested to by petitioner, averred that he had never been convicted for any violation of the law. By letter of February 8, 1990, the Department timely denied petitioner's application predicated on its contention that petitioner had been convicted of four felonies on April 28, 1980, to wit: sale of cocaine, possession of cocaine, possession of a short barreled rifle, and possession of narcotics paraphernalia. Petitioner filed a timely request for formal hearing, which contested the fact that he had ever been so convicted, and the matter was referred to the Division of Administrative Hearings to conduct a hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, the Department introduced into evidence certified copies of a judgment, order and commitment entered by the Circuit Court for Palm Beach County, Florida, on April 28, 1980, and bearing Case No. 79-2970 CF B 02. Those documents reflect that one Donald Ballard entered a plea of guilty to the offense of sale of cocaine (Count I), possession of cocaine (Count II), possession of a short barreled rifle (Count III), and possession of narcotics paraphernalia (Count IV). The documents further reflect that such person was found guilty on Counts I and II and that imposition of sentence was withheld, and that adjudication of guilt and imposition of sentence was withheld as to Counts III and IV. As to each count, such person was placed on probation for a period of 5 years, to run concurrently with each other, under the supervision of the Florida Department of Corrections. Petitioner denies that he and the Donald Ballard so charged and convicted are the same person. Officer Stephen Lobeck, the officer who arrested the person charged and convicted, as heretofore discussed, identified petitioner within a 90 percent degree of certainty as the same person he arrested. Melanie Eggleston, who was employed as a probation parole officer with the Florida Department of Corrections from 1980 until April 1985, positively identified petitioner as the same Donald Ballard she supervised as a probationer following his conviction for drug dealing. Given such credible identification, and the fact that the term of probation for the person she supervised was due to terminate in April 1985, it is more likely than not that the respondent is the same Donald Ballard who was convicted on April 28, 1980, as heretofore discussed. In concluding that respondent was so convicted on April 28, 1980, it has been unnecessary to consider the arrest record of the Sheriff's Office, Palm Beach County, Florida, for August 3, 1979 (Respondent's exhibit 3, page 2) or Officer Lobeck's arrest report (Respondent's exhibit 2). These documents are hearsay, as discussed supra at footnote 3, but due to the provisions of Section 120.58(1)(a), Florida Statutes, are, nevertheless, admissible in administrative proceedings to supplement or explain competent evidence. Harris v. Game and Fresh Water Fish Commission, 495 So.2d 806 (Fla. 1st DCA 1986). Here, the persuasive testimony of Officer Lobeck and Ms. Eggleston, provided competent proof of petitioner's identity as the Donald Ballard who was convicted on April 28, 1980. Were the arrest record considered, as supplementing that proof, it would be supportive of the ultimate conclusion reached. In this regard, the arrest record identifies the subject as Donald Ray Ballard; his local address as 149 Granada Drive, Palm Springs, Florida; his occupation as disabled veteran; his date of birth as December 2, 1931; his social security number as 240-40-4932; and his general description as that of a white male, height 5'7", weight 144 pounds, black hair, brown eyes, and medium complexion. Petitioner's general description is grossly consistent with the description contained in the arrest record, his residence address at the time was 149 Granada Drive, Palm Springs, Florida, and he is a disabled veteran. Further, while the identification petitioner produced at hearing referenced a date of birth of December 3, 1931, the proof also reflects that he had, on other occasions, been attributed with a date of birth of December 2, 1931. Specifically, the two DD214 forms he attached to his application to evidence his military service, as well as his transcript from Indiana Technical College, reflect a date of birth of December 2, 1931. Finally, petitioner's social security number has been variously reported as 240-40-4937 and 240-40-4937A. But for the last digit, petitioner's social security number is consistent with the social security number contained on the arrest record. 4/ On balance, the arrest record is supportive of the competent proof which identified petitioner as the Donald Ballard convicted on April 28, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "A" private investigative agency license and Class "C" private investigator's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March 1991. WILLIAM J. KENDRICK 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 27th day of March 1991.
The Issue Whether Respondent, a dentist, committed the offenses alleged in the second amended administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (AHCA), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 466, Florida Statutes. References to Petitioner in this Recommended Order include the Department of Business and Professional Regulation, which regulated the practice of dentistry prior to the creation of AHCA. Respondent is, and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0005929. Respondent's main area of practice is general dentistry. Respondent's last known address is his residence at 1205 Lincoln Road, Miami Beach, Florida 33139. At all times pertinent to this proceeding, Respondent lived at that address with his wife, Lisa Iver. Cocaine is a highly addictive central nervous system stimulant. Benzodiazepines, such as Valium and oxazepam, are central nervous system depressants that have the opposite effect of cocaine on the central nervous system. The usage of these two types of drugs by a cocaine user with medical knowledge may act to balance the visible and medically detectable effects of cocaine on the central nervous system. Since at least 1988, Respondent has been a cocaine addict. Various toxicology tests have reflected that he has taken a form of benzodiazepine following cocaine use. There are several factors that have worked to make Respondent's recovery more difficult. He has experienced severe marital problems, his mother was an alcoholic, and wife is also chemically dependent. The addiction recovery of one spouse directly affects the addiction recovery of the other. If one spouse falls off the wagon, the other spouse is very likely to fall out of recovery. The Physician's Recovery Network (PRN) is an independent program for monitoring certain impaired professionals, including dentists. PRN requires individuals to be evaluated and enter drug treatment, if appropriate, pursuant to a written agreement with the impaired practitioner. The PRN conducts random drug screens and provides for the exchange of information between the treatment programs, PRN, and the Petitioner for the protection of the public. The advocacy of PRN is designed to protect practitioners who have been offered the opportunity to receive care instead of discipline. The PRN program is confidential and not subject to public scrutiny. THE FIRST PRN CONTRACT - 1988 On or about March 12, 1988, Respondent was arrested as a result of a shooting incident involving his wife. Respondent was transported to South Miami Hospital due to his alleged cocaine abuse. Respondent was admitted to South Miami Hospital for substance abuse evaluation and treatment. During his evaluation and treatment at South Miami-Hospital, Respondent claimed a prior sedative overdose which required hospitalization at Mount Sinai Medical Center, allegedly due to his wife spiking his drink. During his evaluation and treatment, Respondent admitted to prior sporadic use of intra-nasal cocaine. Respondent also admitted to previously free basingcocaine, experiencing paranoia, and having other reactions from cocaine. Respondent refused a nasal examination. Detoxification was required and Respondent was diagnosed as possibly being addicted to cocaine. Respondent left South Miami Hospital against medical advice on March 15, 1988, two days after being admitted. Respondent was readmitted to South Miami Hospital on April 11, 1988. As a result of Dr. Iver's arrest in March 1988, and the recommendations of the doctors who evaluated him, the PRN was contacted. Respondent signed a Chemical DependencyContract with the PRN on or about May 23, 1988. On or about June 26, 1990, Respondent signed a Chemical Dependency Contract extending his monitoring for an additional three (3) years. On or about June 26, 1993, Respondent completed his PRN contract. AFTER THE FIRST PRN CONTRACT - SEPTEMBER 1993 On September 21, 1993, the PRN received multiple telephone calls from Ms. Iver stating Respondent was using "free base" cocaine. She later retracted this story and stated that she had spiked his food. On that date, Mrs. Iver filed a domestic violence complaint (#93-33887) against Respondent with the Miami Beach Police Department. An assault rifle, and other gun-related items were taken into custody by the police. The offense report states that the attack by Respondent on his wife was a result of an argument regarding his "narcotic use." The PRN ordered Respondent to submit to a professional evaluation. On September 24, 1993, Respondent was admitted to Mount Sinai Hospital for an inpatient evaluation. Dr. John Eustace was the evaluating physician. Dr. Eustace is board certified by the American Society of Addiction Medicine and is the medical director of the addiction treatment program at Mount Sinai. During that evaluation, Respondent tested positive for oxazepam and cocaine. As a result of the inpatient evaluation, Dr. Eustace formed the opinion that Respondent was in relapse and recommended that Respondent sign a chemical dependency contract with PRN and that he refrain from practicing dentistry until he had entered a recovery life-style. Dr. Eustace used the term "relapse" without regard to whether the ingestion was voluntary or involuntary. Dr. Eustace was of the opinion that Respondent did not have an adequate recovery program in September 1993 because he was no longer involved in the PRN monitoring program, he was not attending or actively involved in the twelve step program for recovering addicts. During the evaluation, Respondent admitted responsibility for having an inadequate recovery program. Dr. Eustace's diagnosis on Respondent's discharge were as follows: Chemical dependency, inactive by history. Chemical dependency relapse behaviors, active. Obsessive compulsive traits. Adult child of alcoholic mother. Co-dependent behavior. Dr. Eustace's specific recommendations for Respondent pertinent to this proceeding, made at a time Respondent and his wife were contemplating divorce and before she entered a treatment program, were as follows: Reinstitute a program of total abstinence. Enter into a second PRN contract with the length of time to be determined by the PRN staff. Recruit a home group of Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). Recruit a sponsor for the purpose of working the twelve steps. Attend ninety meetings of AA or NA within the next ninety days. Detach from his office practice until his drug screen had cleared and he had entered a life- style of recovery. Detach emotionally and physically form his wife. Turn all further matters concerning his divorce over to his attorney. Obtain a personal physician to avoid self- medication. Begin a professional relationship with a therapist knowledgeable about the adult child of an alcoholic syndrome, knowledgeable about the disease of addiction, and knowledgeable about co-dependency treatment. PRN, based largely on Dr. Eustace's evaluation, recommended that Respondent enter into a new contract for monitoring and to continue treatment. Respondent refused to sign a new contract. On or about December 16, 1993, PRN forwarded a letter of complaint to Petitioner. Dr. Roger Goetz, Director of PRN, noted that Respondent had a urinalysis which contained metabolites of cocaine and benzodiazepines and that Respondent refused to voluntarily enter PRN. No further action was taken against the Respondent at that time. JULY AND AUGUST 1994 On or about July 7, 1994, PRN informed Petitioner it had information from a confidential informant that Respondent was free basing cocaine. The allegations stated that Respondent appeared to be "coked" up and failed to show up at his dental office. Dr. Goetz, Director of PRN, believed that intervention might be possible through a Miami affiliate. On July 7, 1994, Dr. Jules Trop, a doctor with the Miami affiliate of PRN, evaluated Respondent. Respondent denied any drug use but refused to submit a urine sample for drug testing. Dr. Trop observed Respondent's appearance to be disheveled and his speech pattern strained. Dr. Trop expressed the opinion that Respondent was in need of professional help. On or about July 26, 1994, the Agency was informed by PRN that Respondent refused intervention by PRN. As a result of the foregoing, an Order Compelling Physical and Mental Examination was ordered by the Agency on August 15, 1994. The evaluation pursuant to the Order Compelling Physical and Mental Examination was conducted a week after the Order was served upon Respondent. On August 23, 1994, Dr. Hans Ueli Steiner, a psychiatrist, evaluated Respondent pursuant to the Order Compelling Physical and Mental Examination. Dr. Steiner formed the opinion that Respondent presented characteristics of an addict in denial and was a potential risk to his patients. Dr. Steiner believed that objective monitoring was the only reliable way to ascertain the continued sobriety of Respondent. Respondent admitted to Dr. Steiner that he had used drugs in the past. He further admitted that he was an addict. JULY AND AUGUST 1995 On July 28, 1995, police officers from the City of Miami Beach Police Department were called to the Iver residence in response to a 911 call. Upon arrival the officers observed drug paraphernalia commonly associated with free basing cocaine in the bedroom shared by Dr. and Mrs. Iver. Respondent had been free basing cocaine prior to the arrival of the police. The officers confiscated the paraphernalia, but took no further action against Respondent that evening. On Wednesday, August 2, 1995, at approximately 8:38 p.m., police officers with the City of Miami Beach Police Department were dispatched to the Iver residence because Mrs. Lisa Iver called 911 stating that her husband Robert Iver had overdosed on cocaine. The 911 tape reveals a voice in the background making a loud verbal noise. According to the incident report prepared by the Miami Beach Police Department, Ms. Iver told the police officers who came to the Iver residence in response to the 911 call that the Respondent had gone crazy and was out of control due to free-basing cocaine. Accompanied by professionals from the City of Miami Beach Fire and Rescue Unit, the police officers entered the Iver residence and found Respondent naked and covered in blood. Additionally, the police discovered broken glass along with a cocaine pipe, propane torch, a glass beaker, and a can that had been altered to accommodate the smoking of crack cocaine. The cocaine pipe, propane torch, and glass beaker are items or devices commonly associated with free basing cocaine and are similar to the items removed from the house on July 28, 1995. Respondent indicated to the police officers at the scene that he had been free-basing cocaine and stated that he had taken a "hit" off the pipe and then thought he was being attacked by three men. According to the Miami Beach Police Department incident report, Mrs. Iver stated that Respondent had been smoking a lot of cocaine and then requested that she sodomize him with a sexual apparatus. Upon refusing, he began punching her in the chest and kicking her. He also pulled her across the floor by her hair. Ms. Iver had physical injuries that were consistent with the reported abuse by Respondent. Respondent was arrested for battery as a result of this incident. During this police investigation, Mrs. Iver was wearing a bandage on her chin and had two (2) broken teeth. Mrs. Iver stated that the observed injuries were a result of her husband, Respondent, punching her two days earlier, on Monday, July 31, 1995 after an argument regarding Respondent's drug abuse. A police photographer was called to the scene by Officer Hochstadt. Color photographs of Dr. and Mrs. Iver and of the scene were taken by the crime scene technician. The photographer's report listed the investigation as a possible attempted suicide. The cocaine pipe, propane torch, and glass beaker were taken into custody by the police. Respondent was transported by the Fire and Rescue Unit to Jackson Memorial Hospital emergency room for treatment. The States Attorney's Office charged Respondent with two counts of misdemeanor battery and one count of misdemeanor possession of drug paraphernalia based on the events of August 2, 1995. On or about October 17, 1995, Robert Iver was found guilty of one count of use, possession, manufacture, delivery, or advertisement of drug paraphernalia, and one count battery, after pleading nolo contendre to each charge. Adjudication was withheld and Iver was sentenced to twelve months probation for each charge to run concurrently. Among the terms of his probation was the requirement that he participate in a PRN approved recovery program. The aforementioned crimes relate to the practice of dentistry or dental hygiene. 1/ THE EMERGENCY SUSPENSION ORDER - SEPTEMBER 15, 1995 On September 13, 1995, after reviewing the substance abuse history of Respondent and the foregoing police incident reports relating to drug usage in the middle of the workweek, Dr. Roger Goetz of PRN opined that Respondent is impaired and that his inability to practice dentistry poses an immediate and serious danger to the public health, safety, and welfare. This opinion resulted in an Emergency Suspension Order being filed on September 15, 1995. Respondent has been prohibited from practicing dentistry since that date based on that order. MISCELLANEOUS FACTS BASED, IN PART, ON THE STIPULATION Respondent, by and through counsel, on approximately February 15, 1994, proffered to the Agency that Respondent had submitted himself to numerous drug screens and all were negative for any controlled or illegal substances. No actual laboratory reports were produced. From approximately January 1994 to June 1994, the Petitioner actively cooperated with Respondent's counsel to negotiate a satisfactory resolution to the complaint. Respondent has, at times, denied his addiction to cocaine after numerous past positive tests, treatment and counseling. Respondent's enthusiasm about prior recovery attempts tailed off as he became more involved with his dental practice. Lisa Iver testified that she and her husband, Robert Iver, Respondent, were getting along better since entering the Mount Sinai program in September 1995, because they were currently both clean and off drugs. THE SECOND PRN CONTRACT - OCTOBER 20, 1995 On September 22, 1995, Respondent went to Dr. Eustace for the purpose of establishing a program of personal recovery, marriage and family recovery, and reentry into the PRN. Mrs. Iver also entered a recovery program at Mt. Sinai. On October 20, 1995, Respondent signed a new contract with the PRN. While Respondent asserts that he "voluntarily" entered into this contract, that characterization is inaccurate since he entered this contract after the entry of the ESO. The order of probation entered in the criminal proceeding, also signed October 20, 1995, required his participation in such a program. By signing this PRN contract, Respondent agreed that he would have random unannounced urine or blood screens, that he would abstain from using all mood altering substances, medications, alcohol and others, that he would be monitored by a physician, that he would notify the PRN if he changed his address or employment; that he was to attend a self help group such as AA or NA seven times per week; that he would receive continuing care in group therapy one time per week; that he would attend a twelve step program for recovering professionals; that he would notify the PRN in the event of a relapse; that he would agree to withdraw from practice at the request of the PRN if any problem developed; and that his wife would also enter a recovery program. In his present capacity, Dr. Eustace provides evaluations for the PRN. In this respect he sees his role as that of a servant for the PRN. He renders reports and recommendations to the PRN. The PRN relies with confidence upon Dr. Eustace's opinions and reports. Since October 20, 1995, the date Respondent signed a PRN contract, Dr. Eustace has been his monitoring physician within the program. While in the program, Respondent has undergone psychological testing, personal interviews and has otherwise complied with the terms of his PRN contract. Dr. Eustace found no evidence of any chemical relapse, Respondent's behavior is one of compliance with the PRN and he is participating in a monitored group and in a peer professional group. Both Dr. and Mrs. Iver are progressing satisfactorily. It is important to the recovery life-style of Respondent that his wife continue progressing satisfactorily in her recovery program. One important difference in Respondent's life-style prior to his signing the October 20, 1995, PRN contract and subsequent thereto is that his wife is seeking professional help for her addiction. On October 31, 1995, Dr. Eustace wrote to Dr. Goetz advising him that it was his opinion that Respondent is adhering to a recovery life-style, is in full compliance with PRN directives, is not a danger to the public or himself and that he can safely practice dentistry. Dr. Goetz acquiesced in Dr. Eustace's opinion in testimony before the Board of Dentistry in November 1995. Both Dr. Eustace and Dr. Goetz testified that in their opinions, Respondent can practice dentistry with safety and without danger to the public health, safety or welfare as long as he is being monitored by the PRN. Dr. Goetz further testified that there has been a "decent" period of time over which to monitor Respondent since his emergency suspension in September. Dr. Hans Ueli Steiner, who had evaluated Respondent in August 1994, expressed the opinion that Respondent was beyond hope. Dr. Steiner based this opinion on his one and one half hour conversation with Respondent in August 1994, on the testimony presented at the formal hearing, and on his observations of Respondent at a deposition and on the first day of the formal hearing. He did not review any medical records as he thought that they were not important. It was Dr. Steiner's opinion that Respondent was not safe to practice dentistry based primarily on the fact that Respondent had relapsed in 1993 and 1994 and therefore the PRN program was unsatisfactory for him. Dr. Steiner also questions Respondent's honesty and his commitment to recovery. Dr. Steiner disagrees with Dr. Goetz and Dr. Eustace and states that they are emotionally involved with his recovery. This emotional involvement, in Dr. Steiner's opinion, prevents them from giving an objective medical opinion. However, Dr. Eustace clearly stated that all of his opinions related to Respondent were based upon the professional relationship and were medical opinions. Dr. Goetz stated that he had never met Respondent until the Board's November 1995 meeting and has relied, in most part, on the opinions expressed by Dr. Eustace. There was testimony as to the dangers of a recovering addict. An addict may be sober one day and under the influence of an addictive substance the next. It is possible that even after signing a PRN contract and being monitored, the Respondent may relapse. It is also possible that if the Respondent falls off the wagon or falls out of recovery, he could harm a patient before PRN is notified and appropriate action is taken. It is also true that no one, including PRN, Dr. Goetz, and Dr. Eustace, can guarantee that the Respondent will not use cocaine, and no one can guarantee that Respondent is able to practice dentistry with reasonable skill and safety. The greater weight of the evidence established, however, that the PRN was developed to assist recovering addicts, that the program is as good as any of its type, and that the program works as long as the impaired practitioner is adhering to the terms of the contract. The testimony of Dr. Eustace and of Dr. Goetz on January 10, 1996, that Respondent is presently safe to practice dentistry and that he poses no danger to the public's health, safety or welfare is more persuasive than that of Dr. Steiner that Respondent is beyond help. This conclusion is reached, in part, because of Dr. Eustace's expertise, his extensive work with the Respondent, and because Respondent was able to practice without incident while being monitored by the PRN. It is also concluded that Dr. Eustace is in a better position than Dr. Steiner to evaluate Respondent's honesty and his commitment to recovery. The PRN program worked for Respondent in the past as he was able to safely practice between 1988 and 1993 when he was being monitored pursuant to a PRN contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent violated the provisions of Section 466.028(1)(c) and (s), Florida Statutes, which imposes an administrative fine in the amount of $6,000.00, which suspends his license to practice dentistry until September 14, 1996, which requires the PRN to attest at its Board meeting in August 1996 that Respondent has adhered to the terms of his PRN contract and that he remains capable of safely practicing dentistry, and which places his licensure on probation for as long as he practices dentistry in Florida. It is further recommended that the terms of his suspension and the terms of his probation require that he maintain a contract with the PRN at all times and that he strictly adhere to all terms of the PRN contract. It is further recommended that Respondent be reprimanded for these two offenses. DONE AND ENTERED this 2nd day of February 1996 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 2nd day of February 1996.
The Issue Whether petitioner's application for a Class "G" license, statewide gun permit, should be granted.
Findings Of Fact The parties stipulated that petitioner's application for a Class G" statewide gun permit was properly filed with the Department of State, Division of Licensing. The application was not entered into evidence; however, the parties stipulated that the only bases for the denial of the license were those stated in the letter of February 16, 1987. On April 7, 1969, petitioner was adjudicated guilty of the offenses of breaking and entering an automobile and petty larceny. Petitioner was placed on probation for a period of five years. On April 16, 1987, petitioner entered a plea of nolo contendere to the offense of battery and was placed on probation for a period of six months. Respondent testified that between 1969 and 1974, while he was on probation, he tried to get his civil rights restored but that he has never been able to determine the status of his civil rights. Petitioner presented no evidence establishing that his civil rights had been restored. No evidence was presented at this hearing regarding the factual circumstances surrounding petitioner's arrest and conviction for breaking and entering an automobile. In his proposed findings of fact, petitioner describes facts from a document he describes as "listed as Item 4, Case Number 85-67 in a hearing held in 1985 on file with the Division of Administrative Hearings." However, no evidence regarding the breaking and entering conviction was submitted at this hearing, and a document submitted during the course of some prior hearing cannot be used to establish factual findings in this proceeding. Petitioner is the owner of Sun Coast Securities, Inc. His company provides security for major events needing crowd control, and a primary employer is the Florida State Fairgrounds. Petitioner has a Class "D" license and an agency license. On the night of October 31, 1986, petitioner was hired by the owner of Yesterday's Lounge to provide security at a Halloween party. Samuel Valez was one of the customers at the Halloween party. The Halloween party was supposed to start at about 9:00 p.m. However, Mr. Valez and a few of his friends got to the bar about 7:00 or 7:30 p.m. Mr. Valez had several drinks during the course of the evening. At some time after 10:00 p.m., Mr. Valez got into a dispute with a bartender. Petitioner thought he saw Mr. Valez take a swing at the bartender. However, Ms. Spalding, who was sitting at the bar, did not see any incident with the bartender. Ms. Ryan observed the dispute with the bartender and stated that Mr. Valez did not hit anyone but was having a disagreement over the service of the drinks. In any event, Mr. Valez was asked to leave the premises by the owner. Mr. Valez was intoxicated. Petitioner and the owner escorted Mr. Valez outside. After they got outside, petitioner and Mr. Valez exchanged a few words. Petitioner pushed Mr. Valez and then hit him in the face. Ms. Imschweiler, Ms. Spalding, and Ms. Ryan all observed the incident. None of the three saw Valez attempt to hit anyone, either petitioner or the owner of the lounge. Ms. Ryan testified that petitioner hit Valez more than once. After Mr. Valez had fallen, petitioner grabbed Valez by his ankle and dragged him across the parking lot ground. Mr. Valez kept stating he didn't want to fight, but every time he tried to get up petitioner pushed him to the ground again. Mr. Valez was bleeding. Ms. Ryan described Valez as having been beaten to a pulp. Petitioner contended that he was merely protecting the owner, that Mr. Valez had taken a swing at the owner, and that petitioner grabbed Valez' arm to prevent the owner from being hit. He also testified that Mr. Valez tried to hit him, and he hit Mr. Valez in self-defense. However, none of the witnesses saw Mr. Valez swing at anyone. The witnesses characterized petitioner's attack on Mr. Valez as unprovoked. Petitioner is 5'10" and weighs 300 pounds. Petitioner does power lifting and holds state and national records. He can squat lift 830 pounds. Mr. Valez is approximately 5'7" tall and weighs about 140 pounds. As a result of the altercation with Mr. Valez, petitioner was arrested and charged with aggravated battery. Petitioner ultimately pleaded nolo contendere to simple battery. The evidence presented at the hearing established that petitioner's attack on Mr. Valez was not in self-defense or in the defense of his client.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying petitioner's application for a Class "G" license. DONE AND ORDERED this 1st day of August, 1988, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 1st day of August, 1988.
