The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when it fired her in March 2004.
Findings Of Fact Petitioner is an African-American female. Hampton Court is assisted living facility in Haines City, Florida. Its residents include elderly Medicaid recipients. Kenneth Wilder is the executive director of Hampton Court. Mr. Wilder is a white male. Mr. Wilder has approximately nine years of experience administering assisted living facilities, and at the time of the events giving rise to this proceeding, he had been the executive director of Hampton Court for approximately a year and a half. Petitioner’s immediate supervisor was Dorothy Pelemon. Ms. Pelemon, like Petitioner, is an African-American female. Petitioner was hired by Hampton Court as a Resident Care Aide in early February 2004. Her primary job duties in that position were providing direct care to Hampton Court residents. Petitioner’s salary was $7.50 per hour, and she typically worked 40 hours per week. Several weeks after she was hired, Petitioner was promoted to the position of Resident Care Manager. In that position, Petitioner still provided direct care to Hampton Court residents, but she also had some supervisory duties. Petitioner only held the Resident Care Manager position for two or three weeks. On March 10, 2004, she was demoted back to the position of Resident Care Aide for improperly transcribing medications on patient charts and for improperly assisting a patient with his medications. On Saturday, March 20, 2004, Petitioner was involved in an altercation with another employee, Ivette Rodriguez. Ms. Rodriguez is a Puerto-Rican female. She was re- hired as a Resident Care Aide at Hampton Court in early March 2004, after having been fired approximately six months earlier for excessive tardiness and absenteeism. The altercation between Petitioner and Ms. Rodriguez was the culmination of a series of disputes that the two had on March 20, 2004. According to Petitioner, the disputes started when Ms. Rodriguez got agitated with her when she took responsibility for the upstairs residents, who had fewer medications, and left Ms. Rodriguez with the downstairs residents, who had more medications. According to Petitioner, Ms. Rodriguez also got agitated with her later in the day for not taking a phone message. Petitioner also testified that she was agitated with Ms. Rodriguez for taking breaks and receiving numerous phone calls while “on the clock.” According to Petitioner, the altercation that led to her firing started when she observed Ms. Rodriguez writing in the “manager’s log” at the nursing station. Petitioner told Ms. Rodriguez that she was not allowed to write in the log and Ms. Rodriguez got upset. Petitioner and Ms. Rodriguez exchanged words, and at one point during the altercation, Petitioner told Ms. Rodriguez that “you don’t know who you’re dealing with,” or words to that effect, and she expressly threatened to send Ms. Rodriguez to the hospital. Petitioner did not follow through on the threat, and there was no physical contact between her and Ms. Rodriguez at any point during the altercation. The altercation was entirely verbal and never went beyond Petitioner and Ms. Rodriguez yelling at each other. The altercation was witnessed by other employees and by Hampton Court residents, and according to the “write-ups” given to Petitioner and Ms. Rodriguez, the altercation “created a hostile living environment for [the residents].” Petitioner and Ms. Rodriguez were separated for the remainder of the day, and there were no further incidents between the two. Neither Mr. Wilder, nor Ms. Pelemon was at the facility at the time of the altercation between Petitioner and Ms. Rodriguez. Mr. Wilder and Ms. Pelemon conducted an investigation into the altercation the following week. Based upon the investigation, they preliminarily decided that both Petitioner and Ms. Rodriguez should be fired and “write-ups” were prepared to effectuate that discipline. The “write-up” for Petitioner contains the following account of the altercation: On March 20, 2004, [Petitioner] was involved in an altercation with co-worker Ivette Rodriguez. The altercation resulted when [Petitioner] took control of the upstairs med cart instead of the one she was supposed to take control of. [Petitioner] refused to cooperate and escalated the level of aggression in the fight making threats such as, “I’ll send to you Heart of Florida Hospital!” . . . . The “write-up” for Ms. Rodriguez contains the following account of the altercation: On March 20, 2004, [Ms. Rodriguez] was involved in an altercation with co-worker [Petitioner]. The shouting and fighting took place in public areas and was witnessed by co-workers and residents. [Ms. Rodriguez] also had her brother-in-law come to the community to get involved by confronting [Petitioner]. . . . . The source of the accounts of the altercation in the “write-ups” is not entirely clear and, as a result, the findings made above regarding the altercation are based on Petitioner’s testimony at the hearing rather than the accounts in the “write- ups”. (It is noted, however, that the “write-up” given to Petitioner and her testimony at the hearing both make reference to her express threat of physical violence towards Ms. Rodriguez.) Mr. Wilder and Ms. Pelemon met with Ms. Rodriguez on March 24, 2004, to discuss the altercation. Ms. Rodriguez was given an opportunity to tell her side of the story and to explain her actions. In doing so, Ms. Rodriguez acknowledged that her actions were wrong, she expressed remorse for her role in the altercation, and she promised that it would not happen again. Based upon the remorse expressed by Ms. Rodriguez, Mr. Wilder and Ms. Pelemon agreed that Ms. Rodriguez should be suspended for one week rather than be fired. The “write-up” prepared in advance of the meeting was edited to change Ms. Rodriguez’s discipline from termination to “1 week suspension from 3/24/04 to 3/30/04.” Mr. Wilder and Ms. Pelemon met with Petitioner the following day, March 25, 2004, to discuss the altercation. Like Ms. Rodriguez, Petitioner was given an opportunity to tell her side of the story and to explain her actions, but unlike Ms. Rodriguez, Petitioner expressed no remorse for her actions and, according to Mr. Wilder, she was loud and acted aggressively during the meeting. Petitioner and Ms. Pelemon testified that Petitioner did not act aggressively during the meeting but, consistent with Mr. Wilder’s testimony, they acknowledged that Petitioner did speak in a loud voice at the meeting and that she never expressed any remorse for her involvement in the altercation with Ms. Rodriguez. Based upon the lack of remorse expressed by Petitioner regarding her role in the altercation, Mr. Wilder and Ms. Pelemon agreed that the preliminary recommendation of termination should stand for Petitioner, and her employment with Hampton Court was terminated on March 25, 2004. Ms. Pelemon testified that she fully supported the decision to fire Petitioner for her role in the altercation with Ms. Rodriguez and, consistent with Mr. Wilder’s testimony, Ms. Pelemon testified that race played no part in Petitioner’s termination. Ms. Pelemon also testified that she fully supported the decision to suspend Ms. Rodriguez rather than fire her based upon the remorse that she expressed for her role in the altercation. Petitioner started working for Wal-Mart in May 2004, and she is still working there. She is paid $15.10 per hour and she typically works 36 hours per week. Ms. Rodriguez was fired by Hampton Court in August 2004 for poor work performance.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Hampton Court. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 25th day of October, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kenneth Wilder Heart of Florida Care Inc., d/b/a Hampton Court of Haines City 301 South 10th Street Haines City, Florida 33844 Laurie Ann Johnson 623 Avenue O, Northeast Winter Haven, Florida 33881
The Issue The ultimate issues in this case are whether the Respondent has violated Section 458.331(1)(B), Florida Statutes, and the appropriate penalty to be assessed for said violation pursuant to Rule 21M-20.001, Florida Administrative Code.
Findings Of Fact The Department of Professional Regulation is the state agency responsible for regulating the licensure of physicians and the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Vincent John Rodriguez, M.D., the Respondent, is and was at all times material to this case a licensed physician in the state of Florida holding licensing no. ME0053547. The Respondent was also licensed to practice medicine in Colorado on August 7, 1987. See Petitioner's Exhibit 1, page 3. It is uncontroverted that the Respondent has had a long history of abusing various substances. The Respondent has on more than one occasion sought professional assistance in rehabilitation for his addiction. On February 6, 1990, the Board of Medicine of the State of Florida served an emergency suspension order on the Respondent. This emergency suspension order was followed up by an administration complaint (DPR No. 89- 100890) on March 1, 1990, charging the Respondent with failure to comply with the conditions of a drug treatment program resulting in his inability to practice medicine with skill and safety by reason of use of drugs, especially cocaine; and prescribing, dispensing or administering cocaine, a schedule II controlled substance contrary to Section 458.331(1)(s) and (r), Florida Statutes. See Petitioner's Exhibit 4. The original administrative complaint in DPR Case No. 89-100890 alleged the Respondent had been arrested for the attempted purchase of 1/8 ounce of cocaine in Tallahassee, Florida, contrary to Section 458.331(1)(r), Florida Statutes. Subsequently, an amended administrative complaint was filed by the Board of Medicine of the State of Florida which dropped the factual allegations of purchasing 1/8 of an ounce of cocaine in Tallahassee, Florida. See the amended administrative complaint to DPR Case No. 89-100890 dated October 25, 1990 in Petitioner's Exhibit 4. On February 19, 1991, the Respondent entered into a stipulation with the Department of Professional Regulation of the State of Florida to settle DPR Case No. 89-10080 and to submit the stipulation to the Board of Medicine of the State of Florida. The Respondent and his counsel attended a meeting of the Board of Medicine of the State of Florida on April 13, 1991, in which the proposed stipulation was presented to the Board. At that meeting, the Respondent revealed and discussed his arrest in Tallahassee for attempting to purchase 1/8 of an ounce of cocaine and his arrest for possessing a concealed weapon in Tallahassee, Florida which occurred during the same period of time as the Respondent's arrest for attempting to purchase the cocaine. These arrests and the circumstances surrounding them were presented to the Board and were discussed and in their deliberations on whether the proposed stipulation settling DPR Case No. 89-10080 should be accepted. The Respondent did not discuss with the Board his arrest in Texas for terrorist threats, a charge which was subsequently dismissed. From the Florida Board's deliberations, it is clear that they did not feel that the Respondent could practice medicine safely and that approval of the stipulation would halt his practice in Florida immediately. The Florida Medical Board accepted the stipulation settling DPR Case No. 89-100890 which alleged the Respondent could not practice with skill and safety by reason of his use of drugs, and suspended the Respondent's license until he demonstrated he was current in his medical knowledge and possessed the requisite skills to safely resume practice. By Order dated April 4, 1990, the Board of Medical Examiners of the State of Colorado summarily adjudicated the Respondent and suspended his license to practice medicine in the State of Colorado for violating 12-36-117(1)(s), C.R.S. A hearing on the Board's complaint was held on November 7 and 8, 1990. Although the Respondent received notice, he did not appear and was not represented at those proceedings. A copy of the Colorado administrative complaint was not introduced. A copy of the order entered by the Colorado Administrative Law Judge indicates that the charges against the Respondent were limited to 1) Respondent's alleged violation of Section 12-36-117(1)(f), C.R.S. (1985), by pleading nolo contendere to carrying a concealed firearm in contravention of Florida Statutes, and 2) the penalty to be assessed for violation of the aforestated statute and the summary judgment finding the Respondent guilty of 12-36-117(1)(s), C.R.S. See Page 1 of Preliminary Matters, Petitioner's Exhibit 4. The Respondent's arrest in Texas relating to purchasing controlled substances with a fraudulent prescription and his being charged with terrorists threats was dismissed by the Texas authorities; however, the Colorado Administrative Law Judge determined that consideration of the evidence of the arrests and acts of the Respondent in Texas was unnecessary because her recommendation was not affected by the Texas incident. The Colorado Administrative Law Judge discussed within her order the allegations that the Respondent was habitually intemperate. The Colorado Board had initially charged the Respondent with this violation, and had subsequently dismissed that charge only to request that the Administrative Law Judge find that the Respondent was habitually intemperate at the conclusion of the hearing. The Administrative Law Judge found the Board's request to discipline the Respondent on this charge "somewhat troublesome." The Administrative Law Judge concluded that she did not need to reach a legal conclusion regarding "habitual intemperance" because the evidence regarding alcohol use was sufficient to determine an appropriate discipline without categorizing the Respondent's use of alcohol in terms of habitual intemperance. Concerning the Respondent's plea of nolo contendere to the charge of carrying a concealed weapon in Florida, the State of Colorado specifically alleged that the Respondent engaged in unprofessional conduct by pleading nolo contendere to the charge. The Colorado Administrative Law Judge's discussion of the Colorado law reveals that the Colorado Supreme Court has ruled that a felony conviction alone is insufficient to warrant the denial or revocation of a license. Colorado requires that the circumstances be considered to determine whether the acts of the accused constitute unprofessional conduct. Discussing the circumstances, the Colorado Administrative Law Judge concluded that the Respondent had engaged in unprofessional conduct by pleading nolo contendere to the felony of carrying a concealed weapon. Based on the foregoing and her prior judgment on his emergency suspension that the Respondent had engaged in unprofessional conduct by excessive use of habit forming drugs, the Administrative Law Judge recommended to the Colorado Board that it revoke the Respondent's license. Petitioner's Exhibit 3, the final board order of the Colorado Board, reflects that the Colorado Board of Medicine adopted without change the findings of fact, conclusions of law and recommendation of the Administrative Law Judge. After the Colorado Board revoked the Respondent's license to practice in the State of Colorado, the Board of Medicine with the State of Florida brought this case to revoke the Respondent's Florida license on the basis that the Colorado Board had revoked or limited the Respondent's medical practice contrary to Section 458.331(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Florida Board of Medicine take no action on the instant Administrative Complaint and maintain its suspension of the Respondent pursuant to the stipulated settlement of DPR Case No. 89-01180. DONE and ENTERED this 2nd day of April, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 April, 1993. APPENDIX A Both the Respondent and the Petitioner submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Proposed Findings: Recommended Order Paragraphs 1-5 Paragraphs 1-3,5. Paragraphs 6a-6m Irrelevant as stated. Summarized in Paragraph 12-18. Unnumbered Paragraphs Treated as argument. Paragraph 7 et seq. unnumbered Paragraphs 5-11. Respondent's Proposed Findings: Recommended Order Paragraphs 1-7 Paragraphs 1-3,5-7 Paragraphs 8-12 Paragraphs 12-18. Paragraph 13 Irrelevant. Paragraph 14-20 Paragraph 7-11. COPIES FURNISHED: Barbara Whalin Makant, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dean R. LeBoeuf, Esquire Brooks & LeBoeuf, P. A. 863 East Park Avenue Tallahassee, FL 32301 Jack McRay, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth, Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner graduated from the New York University School of Medicine in June 1964 with the degree of Doctor of Medicine. During the period 1964 to 1967, he interned and practiced preventive medicine in the United States Army. From 1967 until 1971, Petitioner was a resident in public health with the New Jersey State Department of Health. He received a Master's Degree in Public Medicine from Columbia University in 1970, and was certified by the American Board of Preventive Medicine in Public Health in 1971. During the period 1971- 1973, he served as the medical director of the Trenton Neighborhood Family Health Center, in Trenton, New Jersey. He was thereafter employed as an Assistant Commissioner with the New Jersey State Department of Health from 1973 to 1980. Between 1978 and 1980, Petitioner served on weekends and two weeks summer duty with the National Guard, performing routine medical services for Guard personnel. In his position as an Assistant Commissioner for the New Jersey State Department of Health, Petitioner was involved in administrative medicine and did not have direct patient care responsibilities. (Testimony of Petitioner, Exhibit 1) On February 20, 1980, the Hillsborough County Board of County Commissioners appointed Petitioner to the position of Director of the Hillsborough County Health Department, effective May 1, 1980. By letter of March 5, 1980, Petitioner advised the New Jersey State Commissioner of Health that he had accepted the Hillsborough County position and that he planned to commence employment in that position on May 1, 1980. Petitioner thereafter filed an application for a limited license to practice medicine which was received by Respondent on April 1, 1980. The application reflected his "Date of retirement from active practice" as April 25, 1980. Attached to the application were various letters and documentation, including a copy of Petitioner's March 5, 1980 letter to the New Jersey State Commissioner of Health advising of his acceptance of the Hillsborough County position. In Petitioner's letter of March 26, 1980, transmitting his application for limited licensure, he characterized the March 5th letter as "Proof of retirement and residence in Florida" and as "My letter of resignation." Petitioner also attached letters of recommendation from a New Jersey physician and the New Jersey State Commissioner of Health, and a letter from the Mercer County (New Jersey) Medical Society attesting to his good standing in that organization, as well as the state and national medical associations. He also enclosed a copy of his letter of appointment from the Chairman of the Hillsborough County Board of County Commissioners, and a letter from the District VI Administrator of the Department of Health and Rehabilitative Services, dated February 27, 1980, advising the Board of Medical Examiners as to the Hillsborough County appointment and requesting that Petitioner be assisted with appropriate licensure. After receipt of Petitioner's application, Respondent determined that the application was incomplete and asked him to provide an affidavit that he had retired from the active practice of medicine and proof of residence in Florida. On May 7, 1980, Respondent received Petitioner's affidvait that he had retired from the licensed practice of medicine in New Jersey and was currently residing in Tampa, Florida. (Exhibit 1) Petitioner terminated his position with the State of New Jersey in April 1980, and assumed his new duties as Hillsborough County Health Director on May 1, 1980. (Testimony of Petitioner, Exhibit 1). At a meeting of the State Board of Medical Examiners on June 7, 1980, Petitioner's application for a limited license was denied for the stated reason that he had not retired from the practice of medicine as required by statute. On June 26, 1980, the Board issued an Order confirming its decision and advising Petitioner of his Chapter 120 right to an Administrative Hearing. (Exhibits 2- 3, 5) At the time Petitioner filed his application, Respondent's Rule 21M- 25.01(1)(b), F.A.C., provided pertinently as follows: 21M-25.01 Applications; Limited License. Each applicant for limited licensure pursuant to Section 458.317, Florida Statutes, shall file an application with the Department in an affidavit form as prescribed by the Department attesting to: * * * (b) Has, prior to his application for limited licensure, been retired from medical practice, and that he was in good standing in the state of his licensure at the time of his retirement. At the June 7, 1980 meeting of the Board of Medical Examiners, the Board considered a proposed amendment to Rule 21M-25.01(1)(b) that had been approved "in concept" as a Board policy at its last Board meeting, which would further define the term "retirement" within the meaning of Section 458.317, Florida Statutes, to permit persons who had retired from practice in another state, although not actually having retired from the practice of medicine, to obtain limited licensure. The proposed rule was not adopted by the Board, but at a meeting held on September 13, 1980, the Board approved an amendment to the rule which was promulgated on October 23, 1980. It provided as follows: 21M-25. 01 Applications; Limited License (1) No Change. * * * (b) Has, prior to his application for limited licensure, been retired from medical practice, and that he was in good standing in the state of his licensure at the time of his retirement. Retired as used herein means previously separated or withdrawn from the practice of medicine as distinguished from a relocation of the applicant's medical practice to a different geographic area. (Exhibits 2-8) Prior to accepting employment in Hillsborough County, Petitioner discussed his eligibility with various individuals whom he supposed to be knowledgeable of the state license laws, and none indicated that he would have any difficulty in obtaining a license. Petitioner testified at the hearing that if he had known the Board's position on limited licensure requirements, he doubted if he would have accepted the position of County Health Director. Although Petitioner still holds his New Jersey medical license, he is no longer a member of the state medical society. He considers that he "retired" from medical practice dealing with patients when he left his position with the Trenton Neighborhood Family Health Center in 1973, and that he "severed ties" with the New Jersey medical profession when he left his position as an assistant commissioner with the New Jersey State Department of Health in April 1980. He plans to obtain full licensure in Florida in the future, but desires a limited license at this time in order that he can become a full member of the local medical society, and therefore be in a position to work more closely with his peers. (Testimony of Petitioner).
Recommendation That Petitioner's application be DENIED. DONE and ENTERED this 10th day of March, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 10th day of March, 1981. COPIES FURNISHED: Kenneth E. Apgar, Esquire de la Parte and Butler, P.A. 403 North Morgan Street, Suite 102 Tampa, Florida 33602 William Furlough, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Christopher D. Rolle Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301
Recommendation Based on the foregoing findings of fact and conclusive of law, it is Recommended that the amended administrative complaint filed against Respondents be dismissed with prejudice. DONE and entered this 23rd day of May, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23 day of May, 1984.
The Issue The issue is whether the medical license of Ted G. Avner, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material to his action, Dr. Avner has been licensed in the State of Florida, holding license ME 0014896. Dr. Avner was licensed to practice medicine in Colorado in 1974. The Colorado State Board of Medical Examiners is the licensing authority for the State of Colorado. On December 9, 1985, the Colorado Board of Medical Examiners summarily suspended Dr. Avner's license to practice medicine due to substance abuse involving his personal ingestion of cocaine. On February 14, 1986, the Colorado Board of Medical Examiners, by Stipulation and Order, granted a reinstatement of Dr. Avner's license to practice medicine with certain terms of probation, including the prohibition of his use of substances of abuse. Subsequently, Dr. Avner relapsed by again using cocaine. After testing positive for cocaine on a random urine test, Dr. Avner reported that fact to the Colorado Board. On January 23, 1987, he entered into an agreement with the Colorado Board of Medical Examiners that he would refrain from the practice of medicine until permitted to do so by order of the board. Thereafter he entered and completed an addiction treatment program and then moved to Virginia, a state in which he was not licensed to practice medicine. Effective March 11, 1988, the Colorado State Board of Medical Examiners accepted Dr. Avner's voluntary relinquishment of his medical license. The Stipulation which Dr. Avner signed clearly states that the relinquishment was permanent, but it also provides for the reinstatement of Dr. Avner's license to practice medicine if he submits "evidence satisfactory to the Board that he qualifies under all subsections of the Colorado Medical Practice Act." The terms of the Stipulation and Order of the Board make it clear that the relinquishment was called "permanent," but was in fact subject to reinstatement. After moving to Virginia, Dr. Avner contacted David G. Fluharty, M.D. Dr. Fluharty is the founder and present Chairman of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia. The purpose and function of that Committee in Virginia is the same as that of the Florida Physician's Recovery Network administered by Roger Goetz, M.D. Dr. Fluharty referred Dr. Avner to the Talbott Recovery Center in Atlanta, Georgia. Dr. Avner completed the addiction treatment program there and returned to Virginia in March, 1989. Since March 29, 1989, Dr. Avner has continued to reside in Virginia, has remained active in the recovery program of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia, and has complied with all the requirements of that program, including random drug testing, maintaining sobriety, and participating in required meetings. Between March 29, 1989, and July 25, 1991, Dr. Avner's urine has been tested numerous times and all tests have been negative. Dr. Avner is currently under contract with the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia which is very similar to and consistent with the kind of contract used by the Physician's Recovery Network in Florida for chemically dependent physicians. While residing in Virginia, Dr. Avner has worked regularly as a volunteer as a counselor and facilitator of the aftercare group, Caduceus. He also regularly attends other aftercare groups such as A.A. and N.A. Beginning in October, 1989, Dr. Avner worked once or twice a week as a volunteer at the Bradley Free Clinic, first as a nurse assistant and later assuming more responsibilities consistent with his licensure status. Dr. Avner has abstained from the use of cocaine since January 25, 1987, and from alcohol since August 19, 1989. He applied for a medical license in Virginia and was denied by Order dated April 11, 1988. In 1989, Dr. Avner applied for his medical license in Colorado and was initially denied. On his request for reconsideration, the Colorado Board granted licensure. By Order dated January 18, 1991, the Colorado Board of Medical Examiners approved a Stipulation and Order granting Dr. Avner an "unrestricted license" to practice medicine in Colorado, subject to the terms of probation set forth in the Order. On Dr. Avner's return to Colorado he can commence the practice of medicine under the terms and conditions of a monitored three-year probation which require that he maintain sobriety and abstain from all addictive, habit forming drugs or controlled substances not prescribed by his personal physician or dentist; that his practice and sobriety be monitored by a physician approved by the Board; that he and his monitor provide quarterly reports to the Board regarding the status of his practice and sobriety; that he participate in a Board approved drug abuse treatment program; that he provide urine tests on a random basis; and that he obtain and provide periodic psychological reports. Dr. Avner again applied for a medical license in Virginia and was denied by Order dated April 5, 1990. He again applied and was finally granted an unrestricted license by Order of the Virginia Board dated February 13, 1991. The Virginia license contains no term of probation or other restriction. In July, 1991, Dr. Avner began a one-year surgical fellowship in pediatric otolaryngology at the University of Virginia Medical School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order and therein: Reprimand Dr. Avner for violation of Section 458.331(1)(b). Restrict Dr. Avner's Florida license by requiring that Dr. Avner continue to remain in good standing in both Colorado and Virginia and that he comply with his contract in Virginia for its entire term. The Virginia Physicians' Health and Effectiveness Committee is to be asked to immediately notify the Florida Board of Medicine if Dr. Avner fails to remain in full compliance with that contract. Fine Dr. Avner in the amount of $1000.00. DONE and ENTERED this 8th day of October, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5275 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Medicine Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 3(3). Proposed finding of fact 2 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ted G. Avner, M.D. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-9(1-8); 10-15(10-15); 17-22(17- 21); and 23(22). Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order Proposed finding of fact 16 is unsupported by the competent, substantial evidence. Dr. Falkinburg is not accepted as an expert qualified to render such an opinion, Dr. Fluharty's statements are hearsay and cannot support a finding of fact, and Dr. Goetz' testimony is entitled to little weight because it is based essentially on hearsay information. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Wilson Jerry Foster Attorney at Law 227 East Virginia Street Tallahassee, FL 32301-1263 Francesca Small Plendl Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue for determination is whether Petitioner's allegation of subjection to an unlawful employment practice is barred by Section 760.11(1), Florida Statutes.
Findings Of Fact Petitioner was previously employed by Respondent until her termination on November 15, 1996. Petitioner discussed the firing with her attorney in January of 1997. Petitioner was apprised by the attorney that she could file a complaint with the Florida Commission on Human Relations (FCHR) or the Equal Employment Opportunity Commission (EEOC). Prior to August of 1997, Petitioner's attorney informed her that he had filed a Charge of Discrimination on behalf of Petitioner with the EEOC. Petitioner was led to understand that an investigator for EEOC would contact her. Petitioner was never contacted by the EEOC. On April 14, 2000, Petitioner received a notice from her attorney that apprised Petitioner that the attorney had been suspended from the practice of law by the Supreme Court for a period of 10 days. Later in either May or June, Petitioner read a newspaper article that recounted the suspension of Petitioner's attorney from the practice of law. Petitioner then determined to consult her present counsel in this matter, David Glasser, Esquire, to handle the charge she believed had been filed with the EEOC. Petitioner learned through Glasser that her previous counsel had not filed a complaint or charge with the EEOC. On July 10, 2000, Petitioner filed her Charge of Discrimination with the FCHR. Petitioner has neither filed a complaint with the Florida Bar Association or filed a legal malpractice suit against her previous counsel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 17th day of September, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 17th day of September, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 David Glasser, Esquire Glasser and Handel 150 South Palmetto Avenue Suite 100, Box N Daytona Beach, Florida 32114 Douglas Kreuzkamp, Esquire American Red Cross Blood Services King & Spalding 191 Peachtree Street Atlanta, Georgia 30303-1763 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the registration of the Respondent, Betty Lou Haber, license #0034988 should be revoked or suspended, or whether Respondent should be otherwise disciplined.
Findings Of Fact An administrative complaint was filed by the Petitioner, Florida Real Estate Commission, on September 29, 1978, seeking to revoke or suspend or otherwise discipline Respondent Haber. The administrative complaint charged that the licensee was presently confined in a state prison. Respondent requested an administrative hearing. A stipulation was entered by Barry A. Cohen, Esquire, the attorney for Respondent, confirming that Respondent Haber was and had been continuously confined in the Broward Correctional Institution since August 16, 1977. Said stipulation is attached hereto and made a part hereof. Prior to the hearing a letter was received by the Petitioner, Florida Real Estate Commission, advising the Petitioner that Respondent did not intend to proceed to hearing and requesting Petitioner to close the matter. The Division of Administrative Hearings was not so notified. A copy of said letter is attached hereto and made a part hereof. Petitioner presented the aforesaid stipulation and aforesaid letter and a witness at the hearing. The witness, Martha Iglesias, Inmate Records Supervisor for the Broward Correctional Institution, testified that Respondent Haber was an inmate of said institution, having been found guilty by a jury of First Degree Murder in Case #75-518 in the Circuit Court in and for Hillsborough County, Florida, and sentenced to be imprisoned in the State Penitentiary for a period of her natural life.
Recommendation Revoke the non-active salesman license held by the Respondent, Betty Lou Haber. DONE and ORDERED this 18TH day of April, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Manuel E. Oliver, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barry A. Cohen, Esquire 100 Twiggs Street, Suite 4000 Tampa, Florida 33602 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue presented is whether Petitioner is entitled to be reimbursed for his attorney's fees and costs incurred in defending the underlying proceeding.
Findings Of Fact On July 2, 1992, the Department of Professional Regulation filed an Administrative Complaint against Petitioner, alleging that Petitioner had used the letters "D.D.S." following his name on letterhead and had testified as an expert in the field of dentistry in a case involving a Florida licensed dentist. The Administrative Complaint alleged that such conduct by Petitioner constituted the unlicensed practice of dentistry. Petitioner requested a formal hearing regarding those allegations. That cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding and was assigned DOAH Case No. 92-4570. On January 27, 1993, a Recommended Order was entered in DOAH Case No. 92-4570, holding that Petitioner's use of the letters "D.D.S." did not represent that he was licensed to practice dentistry in the State of Florida, but merely reflected Petitioner's educational background, and that Petitioner was not required by the Florida Evidence Code or any other law to be licensed in the State of Florida in order to testify as an expert in an administrative or judicial proceeding. The Recommended Order concluded that Petitioner should be found not guilty of the allegations in the Administrative Complaint. The Department of Professional Regulation entered a Final Order rejecting findings of fact and conclusions of law in that Recommended Order and found Petitioner guilty of the unauthorized practice of dentistry. Petitioner appealed that Final Order to the District Court of Appeal of Florida, Third District. The appellate court reversed the Department's Final Order and remanded the cause for entry of an order consistent with the Recommended Order. The attorney for the Department who prosecuted the underlying proceeding reviewed the investigative file and then discussed his recommendation with his supervisor. He recommended that Petitioner be prosecuted criminally, not administratively, because he believed that Petitioner was committing a criminal offense and not an administrative violation by holding himself out to be a dentist licensed in the State of Florida. No evidence was offered to show who made the decision to initiate the underlying proceeding on behalf of the Department, and, therefore, no evidence was offered to show what was considered by that person or persons when the decision was made to initiate the underlying proceeding against Petitioner. There is, accordingly, no evidence to show the factual basis for the Department's determination to issue an Administrative Complaint against Petitioner. No evidence was offered to show that anyone on behalf of the Department determined that there was a legal basis for initiating a proceeding against Petitioner for disclosing his educational credentials on letterhead or testifying as an expert witness without being licensed in the state where that testimony was given. In 1990 (the year during which Petitioner testified as an expert witness) and in 1991 (the year during which Petitioner wrote an opinion on the letterhead which concerned the Department), Petitioner performed his services as a legal-dental consultant as a sole proprietor of an unincorporated business, under his own name, although some other services were performed through Dental-Legal Advisors, Inc. Petitioner's principal office was located in Florida, he was domiciled in Florida, he had no employees, and Petitioner's net worth was less than $2,000,000, including both personal and business investments. The Department was not substantially justified in initiating the underlying proceeding against Petitioner. Petitioner qualified as a small business party when the underlying proceeding was brought against him. Petitioner is entitled to recover $15,000 from the Department for his costs and attorney's fees in defending the underlying proceeding.
