The Issue At issue in this proceeding is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Earle Anthony Bennett, is now and was at all times material hereto licensed by petitioner as an insurance agent in the State of Florida. Pursuant to Chapter 626, Florida Statutes, petitioner has jurisdiction over the insurance licenses and appointments of respondent. On October 17, 1990, respondent entered into a home service agent's contract with The Independent Life and Accident Insurance Company (Independent Life). Pertinent to this case, such contract provided: Article 1. Description of General Duties The Agent agrees to canvass for insurance, to collect premiums as due on the policies assigned to the agency, to aid in the proper settlement of claims, to keep true records of the business on the books, to forward to the Company on Company forms a true account of each week of the agency, and to give full time to the business of the Company. Article 2. Collections The Agent agrees to pay over all monies collected to the District Sales Manager or to such other person as the Company may direct. No money shall be retained by the Agent out of collections for any purpose. The agent agrees that should legal proceedings be necessary to collect monies due from the Agent to the Company the Agent shall pay legal costs and a reasonable attorney's fee. * * * Article 37. Indebtedness Due Company The Company may use any commissions, vacation pay, or other compensation due the Agent to reimburse itself for any indebtedness due the Company by the Agent. In November 1991, respondent terminated his employment with Independent Life, and Independent Life notified petitioner of the cancellation of respondent's appointment as one of its insurance agents. Thereafter, on November 7, 1991, Independent Life conducted an audit of respondent's account which revealed a deficiency of $1,613.70 in insurance premiums collected by respondent and not remitted to the company. Subsequent audits in November reflected an additional deficiency of $213.62, in December an additional deficiency of $178.84, and in February 1992, an additional deficiency of $43.48. By letters of November 18, 1991, November 21, 1991, December 2, 1991, December 13, 1991, and March 18, 1992, Independent Life made demand upon respondent to satisfy the deficiencies disclosed by the audits. Such letters reflected, however, varying amounts the company claimed to be due as a consequence of newly discovered deficiencies in ongoing audits, discussed supra, as well as varying credits accorded respondent. Such correspondence lends credence to respondent's testimony that he was unsure as to the exact sum owing Independent Life, and that he had, subsequent to his termination of employment, remitted funds to the company. Respondent did concede, however, that when he terminated his employment with Independent Life, his account had a deficiency of approximately $1,400. Regarding any deficiency that may have been owing Independent Life, the proof demonstrates that respondent did, over time, satisfy all outstanding obligations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding respondent guilty of the violations set forth in the conclusions of law, and suspending his licenses and eligibility for licensure for a period of nine months. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of October 1993. 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 22nd day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3885 Petitioner's proposed findings of fact are addressed as follows: 1 & 2. To the extent supported by the proof, addressed in paragraph 1. 3. Addressed in paragraph 2. 4 & 5. Addressed in paragraph 3. 6. Addressed in paragraph 4. 7 & 8. Addressed in paragraph 5. 9 & 10. Addressed in paragraphs 6 & 7, otherwise rejected as not supported by competent proof. 11. Rejected as a conclusion of law. COPIES FURNISHED: William C. Childers, Esquire Department of Insurance 612 Larson Building Tallahassee, Florida 32399-0333 Earle Anthony Bennett 12100 North West 11th Avenue Miami, Florida 33168 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact Respondent is a licensed medical doctor having been issued license number 0028827. At all times material hereto, Respondent worked at or operated Health Centers, Inc., a clinic which ostensibly treated persons suffering from stress. At the behest of the Legislature, Petitioner performed a survey of prescriptions for Schedule II controlled substances filled by all pharmacies in the State of Florida. That drug survey revealed that nine different pharmacies in Dade County filled 3,139 prescriptions issued by Respondent between June 1980 and August 1981 for a total of 137,314 tablets of Methaqualone, a Schedule II controlled substance commonly known as quaaludes. Michael Bransfield visited Respondent at Health Centers, Inc. on July 28, 1980, August 26, 1980, December 2, 1980 and December 31, 1980. On the first visit he received a prescription for 45 quaaludes, and he received a prescription for an additional 40 quaaludes on each subsequent visit. On September 17, 1980 Bransfield was admitted to Mount Sinai Hospital after an overdose of quaaludes caused him to fall two stories. The hospital records indicate that Methaqualone was in his blood at the time of the injury. "Drug abuse" was listed on the hospital records as both an admission and discharge diagnosis. In addition to the other injuries Bransfield received in his fall, he fractured his skull and was required to undergo brain surgery for the removal of an epidural hematoma. Bransfield had a set of his medical records from Mount Sinai Hospital forwarded to Respondent. Prior to issuing to Bransfield the 40 quaaludes on December 2, 1980 and the 40 quaaludes on December 31, 1980, Respondent knew that Bransfield had undergone brain surgery as a result of a quaalude overdose. Under the circumstances, issuing prescriptions to Bransfield for quaaludes was life threatening in that it would have been impossible to distinguish a loss of consciousness from drug-induced sleep. Thus, unconsciousness as a result of the head injury would go unnoticed and untreated. Michele Heller visited Respondent on the following dates and received the following prescriptions from him: August 1, 1980 40 quaaludes December 12, 1980 40 quaaludes January 9, 1981 40 quaaludes February 10, 1981 40 quaaludes March 23, 1981 40 quaaludes April 22, 1981 45 quaaludes May 22, 1981 45 quaaludes July 25, 1981 45 quaaludes August 29, 1981 45 quaaludes September 26, 1981 -0- September 29, 1981 45 quaaludes Ana L. Fernandez visited Respondent at Health Centers, Inc. on August 22, 1981 and received a prescription for 45 quaaludes. Methaqualone is a hypnotic drug, used for the production of sleep. It was used initially for the treatment of insomnia but only on a short-term basis- -approximately two weeks--for the reason that it is strongly addictive. By approximately 1980 the use of Methaqualone was largely abandoned by the medical profession since it was well known by that time that Methaqualone was being highly abused, both by drug abusers and by people who wanted to "get high." Since Methaqualone is a depressant, it is an inappropriate medication for a person who is depressed. The medical records of Bransfield, Fernandez and Heller all indicate that they often suffered from depression. The medical records of Bransfield, Fernandez and Heller all indicate that Respondent started them on a monthly prescription of either 40 or 45 quaaludes on their very first visit to him although no tests were administered and no laboratory results obtained in order too ascertain if any of those three patients suffered from some physical problem. The only diagnosis appearing in the medical records of Bransfield, Fernandez or Heller is the word "stress" without any modifiers in explanation of that alleged condition. Additionally, the only "treatment" reflected in Respondent's records of those patients is the monthly prescription of 40 or 45 quaaludes. No other medication was tried, and the only time Respondent failed to prescribe 40 or 45 quaaludes occurred when Heller returned to Respondent's office for her monthly prescription without waiting the required 30 days. Although Heller's medical records indicated on her first visit to Respondent that she awakened rested, Respondent prescribed for her Methaqualone, a sleep producing drug. Respondent's records for Bransfield's December 2, 1980 visit indicate that Bransfield reported be was feeling much improved, that he was dealing with his stress, and that he was feeling that he had control over his present life. Yet, Respondent continued to prescribe 80 additional quaaludes after the patient said that he was better. Respondent's medical records for Bransfield, Fernandez and Heller do not reflect that any of them suffered from any condition for which Methaqualone could be statutori1y prescribed. The mere prescription of Methaqualone is not an appropriate treatment for stress since it does nothing to identify a patient's stressors so that the patient can effectuate necessary life style changes and/or learn how to deal with those stressors.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against him and revoking his license to practice medicine under the laws of the State of Florida. DONE and ORDERED this 8th day of March, 1985 at Tallahassee, Florida. LINDA M. RIGOT, 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 8th day of March, 1985. COPIES FURNISHED: Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael J. Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 32301 William A. Cain, Esquire May L. Cain, Esquire 11755 Biscayne Boulevard Suite 401 North Miami, Florida 33181
Findings Of Fact Petitioner was initially interviewed for the purpose of establishing a presumptive parole release date ("PPRD") on December 14, 1981. Petitioner could not be interviewed prior to December 14, 1981, because he had been released from the custody of the Department of Corrections pursuant to a supersedes bond on July 16, 1979, and was not returned to the custody of the Department of Corrections until February 26, 1981. Petitioner received a two-year commitment for two counts of uttering a forged instrument, which commitment was imposed on February 17, 1981. Petitioner's two-year commitment for possession of a controlled substance which had been imposed on November 27, 1978, expired on July 29, 1981. Petitioner's current PPRD was established for November 11, 1991, by Commission action taken at a meeting held on January 13, 1982. Petitioner is scheduled for biennial review of his PPRD in October of 1983. Rules 23-21.11(3) and 23-21.02(2), Florida Administrative Code, were amended August 1, 1983, after the establishment of Petitioner's PPRD.
Findings Of Fact Petitioner was employed by Respondent from August 26, 1986 to November 6, 1986 as a millworker cutting wood for floor joists used in the manufacture of mobile homes. His employment was terminated by Respondent on November 6, 1986 due to his inability to keep up with production. Petitioner timely filed his request for hearing with the Florida Commission on Human Relations. Respondent is an employer within the terms of the Human Rights Act of 1977, Chapter 760, Florida Statutes, and manufactures mobile homes. Petitioner is handicapped by virtue of the amputation of his left arm above the elbow due to a motorcycle accident in 1977. During the approximately two and one-half month period that Petitioner was employed by Respondent, four mobile homes per day were being produced. However, Respondent determined in late October, 1986 to increase production to five mobile homes per day and implemented this increased level of production in November, after Petitioner was terminated. All employees are evaluated within thirty days of their employment by Respondent. Petitioner's thirty day evaluation was conducted on September 23, 1986. On a five point scale, with one being excellent and five being poor, Petitioner received a rating of four in productivity. This is a low average rating. Comments by his group leader on the evaluation form state that Petitioner "needs to get a system down in order to increase productivity." Petitioner was counsel led about the need to increase his productivity at the time of this evaluation. From September 23 to October 24, 1986 Petitioner's productivity did not improve. His group leader at the time he was terminated, Frederick W. Moulder, testified that it took Petitioner 3 1/2 hours to do a job which it took Moulder 1 1/2 to 3 hours to do. Moulder also helped Petitioner finish his work since Moulder regularly finished early and Petitioner never completed his work early, even though production at the time was four homes per day and had not yet been increased to five. On October 24, 1986 Petitioner's supervisor, Tim Powers, prepared a written warning notice which stated that Petitioner "needs to improve his speed to enable him to keep up with his production . . . ." Petitioner refused to sign this warning notice to acknowledge receipt, and instead stated to Powers that his production was fast enough. Petitioner was assigned to work with Charles Rogers on the last day of his employment to show Rogers how the machines he worked with operated. Rogers replaced Petitioner after his termination. There is no evidence that Petitioner ever asked for a reassignment due to production demands of his millworker position. To the contrary, Petitioner continues to feel that he was working fast enough and was meeting production that he felt was sufficient. In any event, there is no evidence that alternative positions were available. During October and November, 1986 Respondent terminated eleven employees for slow or insufficient production, in addition to Petitioner.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued by the Florida Commission on Human Relations dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 23rd Day of November, 1987, in Tallahassee, Florida. DONALD D. CONN 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 23rd day of November, 1987. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-3407 Rulings on Respondent's Proposed Findings of Fact: 1-3 Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 1. Adopted in Finding of Fact 6. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 8-9 Adopted in Finding of Fact 8. 10-11 Rejected as irrelevant and unnecessary. 12 Adopted in Finding of Fact 4. 13-16 Adopted in Finding of Fact 7. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 11. Adopted in Finding of Fact 1. COPIES FURNISHED: Joseph Scott Shepherd 108 Flores Way Auburndale, Florida 33823 Jeffrey W. Bell, Esquire 600 Peachtree At The Circle Building 1275 Peachtree Street, N.E. Atlanta, Georgia 30309 Donald A. Griffin Executive Director 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 30th day of March, 2018.
Findings Of Fact Petitioner is the Department of Health and Rehabilitative Services. Respondent is ETC Investments, Inc., licensed at all times pertinent to these proceedings to operate Tarpon Springs Care Center, an adult congregate living facility in Tarpon Springs, Florida. Petitioner's employees conducted inspections of Respondent's facility on September 30, 1986; May 29, 1987; and June 30, 1987. As a result of these inspections, certain deficiencies were discovered. Dates for correction of the deficiencies were determined by Petitioner's employees. Respondent was informed of the correction deadlines. Upon subsequent inspections by Petitioner's employees, some of the deficiencies continued to exist. On September 30, 1986, Petitioner's employees determined that Respondent did not have an admission and discharge record which was being properly maintained. Respondent was required to make available to Petitioner's representative by October 7, 1986, documentation indicating that a current register was being maintained. The deficiency remained uncorrected on May 29, 1987. The deficiency consisted of Respondent's failure to record the name of one resident on the facility's central log or register and a failure to note the discharge of three other residents in that register. A required health assessment form was not present in the file of one resident in Respondent's facility on September 30, 1986; a correction deadline of October 30, 1986 was set. The required form was still not in the file as required on May 29, 1987. On May 29, 1987, Respondent still had not provided proof of continuing liability insurance availability for Petitioner's review. This deficiency had been noted on September 30, 1986, with correction to be made by Respondent by October 30, 1986. Respondent failed to provide evidence at the September 30, 1986 inspection that weights of two residents of the facility were recorded semiannually. The purpose of weight records is to assist in ascertaining if a resident has a health problem. This deficiency remained uncorrected on May 29, 1987, although, as a result of the September 30, 1986 inspection, correction had been required to be made by October 30, 1986. On May 29, 1987, Respondent had not provided documentation for review by Petitioner's representative indicating that quarterly fire alarm tests were conducted; likewise, Respondent had not provided documentation indicating the performance of required smoke detector tests and inspections. These deficiencies were noted in the September 30, 1986 inspection. Documentation of testing in both instances was required to be made available by Respondent no later than October 30, 1986. Respondent has been charged with failure to provide documentation of food service policies as a result of the September 30, 1986 inspection. However, in the absence of direct testimony, Petitioner exhibit number 1, alleged to be a statement of deficiencies issued by Petitioner, is not corroborative or credited with probative value as to existence of Respondent's failure to provide documentation of the facility's food service policies and procedures by the deadline of October 30, 1986. Further, testimony of Respondent's witness, that correction of this deficiency was overlooked during subsequent inspections by Petitioner's employees, is corroborated by the witness' provision of a copy of Respondent's policies dated October 3, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the Department of Health and Rehabilitative Services enter a final order finding the commission of six class III violations by Respondent and assessing total civil penalties of $900 for such violations. DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1989. COPIES FURNISHED: Edward A. Haman, Esquire 7827 N. Dale Mabry Highway Tampa, Florida 33614 Elaine Chicles, pro se President, ETC Investments, Inc. 1210 East Oakwood Street Tarpon Springs, Florida 34689 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what penalty should be imposed?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent has been licensed to practice medicine in the State of Florida since September 4, 1970. Respondent was formerly licensed to practice medicine in the State of New York. By order issued July 3, 1987, by the New York Commissioner of Education, Respondent's New York license was revoked on the ground that he had been convicted of committing an act constituting a crime under the law of another jurisdiction, which, if committed in New York State, would have constituted a crime under New York State Law, in that: On or about January 18, 1984, in the Superior Court of California, County of Los Angeles, in the People of the State of California v. Jose Minaya (No. A344 720), aff'd No. B005332 (Ct. of Appeals, 2nd App. Dist., Oct. 1985), the Respondent, following a jury trial, was convicted of one count of grand theft and six counts of filing false Medi-Cal claims. Upon his conviction, Respondent was sentenced to four years imprisonment, was fined $10,000 for each of the six counts of filing false Medi-Cal claims, and restitution to the State of California was imposed in the sum of $14,866.80. The convictions which resulted in the revocation of Respondent's New York license were more specifically described as follows in the California appellate court opinion referenced in the Education Commissioner's July 3, 1987, order: [Respondent], specializing in ophthalmology, was charged and convicted primarily of filing falsified Medi-Cal treatment authorization requests (hereinafter referred to as TARs) in order to obtain permission to perform elective cataract surgeries on Medi-Cal beneficiaries. The People of California proved that the cataract surgeries were not medically justified and that the TARs were falsified by the appellant himself or at his direction, so that he could obtain payment from the state by false pretenses. * * * Count VIII, grand theft, was proven by the People as larceny by false pretense for the accumulation of all monies received from the surgeries performed on the Medi-Cal recipients named in the false claims counts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license to practice medicine in the State of Florida based upon the revocation of his New York license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of November, 1989. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2120 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case: Rejected because it is more in the nature of a conclusion of law than a finding of fact. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected because it is more in the nature of a conclusion of law than a finding of fact. COPIES FURNISHED: David G. Pius, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jose Minaya, M.D. 536 North 19th Street Montebello, California 90640 Jose Minaya, N.D. c/o Carlos Lorente 1018 Cyrus Lane Arcadia, California 91006 Jose Minaya, N.D. c/o P.A. Boyens Parole Agent II 9500 Norwalk Boulevard Santa Fe Springs, California 90670 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in Division Of Administrative Hearings Case No. 87-5413; and whether, in the absence of such substantial justification, Petitioner is entitled to an award ofattorneys' fees and costs pursuant to Section 57.111, Florida Statutes, in connection with that previous administrative proceeding.
Findings Of Fact Petitioner is Mircea Albin Morariu, M.D. Respondent is the Department of Professional Regulation, the agency charged with regulation of physicians in the State of Florida. The parties stipulated that Petitioner is a resident of the State of Florida; that Petitioner is a "small business party"; and that there is no dispute as to the correctness or amount of fees and costs requested by Petitioner, the $15,000 maximum allowed under provisions of Section 57.111, Florida Statutes. Petitioner is a "prevailing small business party" with regard to Division Of Administrative Hearings Case No. 87-5413, because he was found to have committed only one of the four alleged violations set forth in the administrative complaint in that case, failure to maintain written records justifying the course of the patient's treatment. No appeal from the final order entered in Division Of Administrative Hearings Case No. 87-5413 has been taken and the time for filing such an appeal has expired. Respondent initiated administrative proceedingsagainst Petitioner in Division Of Administrative Hearings Case No. 87-5413 as the result of a complaint lodged with Respondent in September of 1986 by a former patient of Petitioner. The complainant, afflicted with long standing paralysis of one side of her body, had paid Petitioner $5,000 for functional electrical stimulation treatment of her paralyzed limbs and had not achieved the level of recovery which she felt had been promised to her by Petitioner; namely, that her paralyzed arm movement would improve by 25 percent and her paralyzed leg movement would improve by 50 percent. The complainant alleged that her condition had worsened as a result of the treatment. Following receipt of the patient's complaint, Respondent undertook an investigation. In that process, an investigator employed by Respondent interviewed the complainant, her husband and Petitioner. The investigator obtained the complainant's medical records and correspondence from Petitioner, as well as prior and subsequent medical records from complainant's doctors in the state of Indiana. This entire report was submitted to a board certified neurologist, Dr. Victor B. Robert, for an expert opinion as to the standard of medical care rendered by Petitioner. In expressing his expert opinion, Dr. Robert stated that he "was not familiar with this therapeutic modality and the records available do not provide a description or a rationality" for the treatment accorded the complainant by Petitioner. Robert also opined that the complainant's motor impairment was permanentand that such "neurological deficit cannot be improved by any therapeutic modality known to medical science." Robert further stated that it was misleading as well as unethical to make any promises regarding significant improvement in a patient with such a long standing neurological deficit; that Petitioner's standard of care would be subject to question if the complainant's allegations were true; that the complainant underwent several unnecessary diagnostic procedures; and that there could exist a pattern of abuse by Petitioner calling for further investigation. Dr. Robert's testimony was not credited at the final hearing in lieu of other more persuasive expert testimony. Respondent's entire investigative file, consisting of the affidavits of the patient and her husband, Petitioner's statements, the complainant's medical records and Dr. Robert's expert medical opinion, was provided to the members of a probable cause panel of the Board of Medicine several weeks in advance of the panel's meeting on August 21, 1987. At that meeting, the panel, after review and discussion of the materials provided them, determined that probable cause existed sufficient to support the filing of an administrative complaint against Petitioner. The administrative complaint was filed against Petitioner on August 26, 1987, as a result of the panel's probable cause finding. The administrative complaint contained four counts of alleged misconduct by Petitioner. Count I charged Petitioner with violation of Section 458.331(1)(t), Florida Statutes, through gross or repeated malpractice or failure to practice medicine withlevel of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Count II charged Petitioner with making deceptive, untrue, or fraudulent representations in the practice of medicine, a violation of Section 458.331(1)(k), Florida Statutes. Count III charged Petitioner with exercising influence on a patient for financial gain, a violation of Section of 458.331(1)(o), Florida Statutes. Count IV of the complaint contained the charge which Petitioner was later found to have committed; namely his failure to maintain written medical records justifying the course of medical treatment accorded the complainant, a violation of Section 458.331(n), Florida Statutes.
