The Issue Whether Respondent committed the offenses as set forth in the Administrative Complaint dated June 13, 2000, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent is a licensed Certified General Contractor in the State of Florida. At all times material to this case, Respondent was the qualifying agent for Rivero Construction, Inc. On or about June 20, 1996, Respondent contracted with Manuel Chamizo (Chamizo) to construct a parking lot with drainage at 4735 Palm Avenue, Hialeah, Florida, and to repave the parking lot at 4719 Palm Avenue, Hialeah, Florida, for the total price of $7,090.00. Chamizo paid Rivero Construction, Inc., the full contract price. Respondent constructed the parking lot at 4735 Palm Avenue, but did so in a substandard manner. Specifically, the parking lot flooded and was rendered unusable because Respondent had broken a sewer pipe during construction. After being notified of the problem, Respondent failed to correct it. Respondent failed to perform any of the contracted work at 4719 Palm Avenue. Dissatisfied with Respondent's performance, Chamizo sued Rivero Construction, Inc., for damages in the County Court in and for Miami-Dade County, Florida. On or about August 24, 1998, the lawsuit was concluded in Chamizo's favor with the entry of a final judgment against Rivero Construction, Inc. Respondent has failed to satisfy the final judgment. Respondent has failed to obtain a qualified business certificate of authority. Petitioner has incurred costs of $1,669.09 in the investigation and prosecution of Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent committed the offenses set forth in the Administrative Complaint dated June 13, 2000; ordering that Respondent pay an administrative fine in the amount of $1,250; pay restitution to Manuel Chamizo in the amount of the Final Judgement obtained by Manuel Chamizo; and pay costs incurred in the investigation and prosecution of this proceeding in the initial amount of $1,669.09, plus costs incurred through the date of final action, which revised affidavit of costs will be submitted to the Board at final action. DONE AND ENTERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS 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 12th day of December, 2001. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Manuel Rivero 61 East 16th Street Hialeah, Florida 33010 Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent, Invarrary Retirement Center, Inc. (IRC), is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregate living facility (ACLF). The facility operates under the name of Inverrary Retirement Center at 5811 Northwest 28th Street, Lauderhill, Florida. On or about April 4, 1984, two HRS inspectors performed a routine relicensure survey of IRC. The purpose of the survey was to determine whether IRC was complying with all HRS requirements relating to record keeping, sanitation, fire and safety. During the course of the survey, the inspectors noted the following violations of HRS rules: There was no staff member within the facility at all times who was certified in an approved first aid course (Rule 10A- 5.19(5)(f), F.A.C.); The facility failed to keep "current" records of self administered medication (Rule 10A-5.18(6)(f), F.A.C.); Menus were not planned and posted where they could be easily viewed by the residents (Rule 10A-5.20(1)(j), F.A.C.); The kitchen was not equipped with an approved exhaust hood over the stove (Rule 10A-5.23(15)(a), F.A.C.); An electrical extension cord was used to service the coffee maker (Rule 10A- 5.23(15)(a), F.A.C.); One of the buildings had an insufficient means of egress for the residents (Rule 10A- 5.23(15)(a), F.A.C.); There were no manually operated fire alarms capable of being heard throughout the facility (Rule 10A-5.23(15)(a), F.A.C.); Respondent failed to provide documenta- tion reflecting the smoke detectors were tested on a weekly basis (Rule 10A- 5.23(15)(a), F.A.C.); and (j) There was a sliding bolt on an exit door on one of the buildings (Rule 10A- 5.23(15)(a), F.A.C.). All of the foregoing constituted a separated violation of HRS rules. 1/ When the survey was completed, the inspectors reviewed all violations with IRC's manager and advised her that a resurvey would be taken in about thirty days, and that all violations must either be corrected by that time, or some action instituted which reflected an intent on the part of the facility to correct the same. This was in accordance with HRS policy governing ACLFs, and approximated the time given other facilities to make similar corrections. On April 10, 1984, a Corrective Action Plan was issued by HRS and sent to IRC. This document set out in detail the various violations found in the April 4 inspection and set a compliance date of May 4, 1984 for all corrections to be made. A resurvey of IRC's facility was made by the same two HRS inspectors on May 18, 1984. With the exception of item (3)(h), which required documentation verifying that smoke detectors be tested weekly, the inspectors noted that no corrections had been made. However, respondent presented evidence that items (3)(b) and (3)(c) had indeed been corrected by that date and such evidence is deemed to be more persuasive than contrary evidence offered by HRS representatives. Further, the violation in item (3)(f), and turns on whether an HRS publication or the City of Lauderdale fire code was controlling when the inspection was made. Because no evidence was presented to establish which standard was in effect, the allegation that an HRS publication was violated must fail. Accordingly, it is found that IRC failed to timely correct items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i), and (3)(j) as required by the Corrective Action Plan. Respondent eventually made all corrections, although not within the HRS imposed deadline. One of the deficiencies [item (3)(d) required extensive renovations, including bids and a city permit, which took considerable time to accomplish. However, IRC's manager neglected to provide HRS inspectors with any evidence on the May 18 visit showing that bids were being solicited, or that there was any "movement" on the project. The same is true for item (3)(g) which required competitive bids from suppliers. IRC also failed to advise HRS that it could not immediately enroll an employee in the Broward County First Aid Course [item (3)(a)] because of the large number of participants in the class. IRC failed to do so even though its manager had been told that an extension on the May 4 deadline could be obtained where IRC gave some evidence to the inspectors that action was being instituted to correct the deficiency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating agency rules as set forth in items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i) and (3)(j) of the administrative complaint, and that a $900 administrative fine be imposed, to be paid within thirty days after the data of the final order rendered in this proceeding. All other charges should be DISMISSED. DONE and ORDERED this 11th day of March, 1985, 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 11th day of March, 1985.
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaints are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged, pursuant to Chapter 465, Florida Statutes (2006), with regulation of the practice of pharmacy. At all times material to this case, the Respondent was a licensed pharmacist in the State of Florida, holding license number PS 26142. On May 3, 2005, a Final Order (DOH-05-0782-S-MQA) was filed based on the stipulated resolution of disciplinary proceedings initiated against the Respondent by the Petitioner in DOH Case Nos. 2002-27092 and 2002-25746. The Final Order imposed a suspension of the Respondent's license as follows: Respondent's license to practice pharmacy shall be suspended until such time as Respondent petitions and appears before the Board and can demonstrate that he is able to practice pharmacy with skill and safety to patients. Proof of his ability to practice safely shall include an evaluation of respondent by the Professional Resources Network (PRN) and a recommendation from PRN to the Board that Respondent can practice pharmacy with reasonable skill and safety to patients. The Final Order imposed a probationary period as follows: Upon the termination of suspension of Respondent's license, Respondent's license shall be placed on probation concurrent with the PRN contract or three (3) years whichever is longer. If, after completing an evaluation of Respondent, the PRN deems it necessary for Respondent to execute a contract for supervision and/or treatment, the three-year probationary period shall run concurrent with the PRN's contract. During the period or probation Respondent shall be subject to the following terms and conditions: Respondent or his employer shall submit written reports to the Compliance Officer at the Board office. The written reports shall contain Respondent licensee's name, license number, current address and phone number; current name, address and phone number of each pharmacy in which Respondent is engaged in the practice of pharmacy; the names of all pharmacists, pharmacy interns, pharmacy technicians, relief pharmacists, and prescription department managers working with the Respondent. These reports shall be submitted to the Compliance Officer every three (3) months in a manner as directed by the Compliance Officer. * * * Respondent shall submit documentation evidencing that his employer, or if employed as a relief pharmacist, his supervision pharmacists(s) and the relief agency, have been provided with a copy of the Final Order describing these probationary terms within ten (10) days of the entry of the Final Order or upon initiation of employment. Respondent shall ensure that his employer or, if employed as a relief pharmacist, the supervising pharmacist at each pharmacy at which the Respondent works, submits written reports to the Compliance Officer for the Board of Pharmacy. These reports shall contain: the name, current address, license number, and telephone number of each pharmacy intern, pharmacy technician, relief pharmacist, and prescription department manager working with the Respondent in the prescription department; a brief description of Respondent's duties and responsibilities; and Respondent's work schedule. These reports shall be submitted by the employer to the Compliance Officer every three (3) months in a manner directed by the Board. The Final Order imposed an administrative fine of $2,000. In the stipulation for settlement of the disciplinary cases, the assessment of costs was addressed as follows: Respondent agrees to reimburse the Department for any administrative costs incurred in the investigation, prosecution, and preparation of this case, not to exceed eleven thousand dollars ($11,000). The total amount of the costs will be assessed at the time the stipulation is presented to the Board. The fine and costs are to be paid by the Respondent . . . within sixty (60) days of the filing of a Final Order accepting and incorporating this Agreement. The copy of the stipulation admitted into evidence at the hearing included a handwritten notation related to the time for payment of the fine and costs and appears to indicate that the 60-day deadline for payment was extended to six months. The source of the handwriting was unclear; but in any event, the Final Order adopted the agreed stipulation and assessed costs of $10,852.66. The Final Order extended the deadline for payment of the costs to six months from the date of the Final Order, but did not specifically reference the deadline for payment of the administrative fine. The evidence establishes that both the fine and the assessed costs were to be paid within six months of the date of the Final Order, or by November 2, 2005. The evidence establishes that the Respondent paid neither the fine nor the assessed costs by the November 2, 2005, deadline. There is no evidence that the Respondent has made any attempt to pay any portion of the financial penalty, and the $12,852.66 remained unpaid at the time of the administrative hearing. The Respondent's suspension was lifted pursuant to an Order of Reinstatement filed June 28, 2005, at which time the probationary period began. According to the Respondent's Responses to the Petitioner's First Request for Admissions, the Respondent was placed by "Healthcare Consultants" to work in relief status at the Winn-Dixie #736 pharmacy and at the Winn-Dixie #741 pharmacy for a total of five days during the month of August 2005. According to the terms of the stipulation as adopted by the Final Order, the Respondent's first quarterly report was due three months following the beginning of the probationary period, or approximately September, 28, 2005. Cheryl Sellers, a compliance officer for the Petitioner, was assigned the responsibility of monitoring the Respondent's compliance with his obligations under the May 3, 2005, Final Order. The Respondent had several extended telephone conversations with Ms. Sellers shortly after the Respondent's probationary period began. During the conversations, the specific disciplinary requirements of the stipulation and Final Order were discussed at length. Additionally, in 1997, the Petitioner had incurred a substantially similar penalty, including a suspension, a fine, and compliance with quarterly reporting requirements. It is reasonable to presume that the Respondent was aware of, and understood, his obligations under the May 3, 2005, Final Order. As was her standard practice, Ms. Sellers sent a package of information to licensees with disciplinary restrictions, including various forms, related to compliance with requirements set forth by Final Orders. The package was mailed by regular mail to the Petitioner on August 4, 2005; but for reasons unknown, the information was not delivered to the Respondent and was returned to the Petitioner by the postal service. The package was not re-mailed to the Respondent until October 12, 2005. The Respondent filed his quarterly reports on October 19, 2005, several weeks after the deadline had passed. Apparently the first Employer's Quarterly Report was completed by an individual identified as Robert Miller, presumably employed by Healthcare Consultants, an otherwise unidentified entity which supposedly placed the Respondent in the Winn-Dixie pharmacies for the August 2005 employment. Mr. Miller was not the pharmacist in charge of the Winn-Dixie units where the Respondent had been employed. By letter dated October 21, 2005, Compliance Officer Cheryl Sellers notified the Respondent that he was "not in compliance" with the May 3, 2005, Final Order and stated as follows: Guidelines for submitting Employer Quarterly Reports were sent to you on October 12, 2005, the Employer's Quarterly Report from Robert Miller received on October 19, 2005, is not acceptable. Efren Rivera the PDM at the Winn Dixie store #736 is the appropriate person to complete this form. [sic] The Employer's Quarterly Report subsequently submitted by Efren Rivera was dated and notarized on November 1, 2005, and was filed thereafter. The Respondent filed for Chapter 7 bankruptcy in late 2005 and was discharged from debt on January 31, 2006. The Respondent has asserted that his obligation to pay the administrative fine and assessed costs was discharged through the bankruptcy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Pharmacy, enter a final order directing that the Respondent pay a total of $16,352.66, to the Petitioner. The total reflects the $12,852.66 imposed by the May 3, 2005, Final Order and the additional $3,500 penalty related to the violations set forth herein. Additionally, the final order should extend the Respondent's current probationary period by 18 months to be served consecutively to the current probationary period. DONE AND ENTERED this 10th day of August, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 10th day of August, 2007. COPIES FURNISHED: Patrick L. Butler, Esquire Billie Jo Owens, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Denis R. Bousquet 5125 Cedar Springs Drive, Unit 203 Naples, Florida 34110 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Rebecca Poston, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C04 Tallahassee, Florida 32399-1701
The Issue Count I: Whether or not Respondent violated a provision of Chapter 458 and a lawful order of the Department of Professional Regulation by refusing to comply with a March 23, 1988 order of the Secretary of the Department of Professional Regulation to produce and release medical reports pertaining to Respondent's mental or physical condition, and in so refusing violated Sections 458.331(1)(x) and 458.339(2) F.S. Count II: Whether or not Respondent violated a lawful order of the Board of Medicine previously entered in a disciplinary hearing, that is, whether or not Respondent specifically violated probation conditions imposed by a final order entered April 18, 1988, by failing to notify the Board of a change of residence address, and in so doing violated Sections 458.331(1)(x) and 458.339(2) F.S.
Findings Of Fact Respondent was first licensed as a medical physician under the laws of the state of Florida in 1971. Thereafter, he regularly renewed license number ME 0017326 until it expired December 31, 1989. The instant case's DPR number is 8902496. Due to the defenses and motions, it is important to note that the instant case constitutes the third formal administrative complaint against Respondent. Prior to August 10, 1987, Respondent was charged in the first formal administrative complaint (DPR Case No. 63959) by the Department of Professional Regulation, Board of Medicine, with certain professional violations, none of which involved allegations Respondent was physically or mentally impaired to practice. On August 10, 1987 the Board of Medicine entered a Final Order approving, adopting, and incorporating a May 14, 1987 stipulation signed by Respondent. In pertinent part, the disposition of that case under the August 10, 1987 Final Order provided as follows: Respondent's license shall be placed on probation for a period of one (1) year subject to the following terms of probation: Respondent shall not violate the provisions of Chapters 455, 458, or 893 Florida Statutes. In the event the Respondent should leave Florida to reside or practice outside of Florida for periods longer than thirty (30) consecutive days, the Respondent shall notify the Board in writing of the dates of departure and return. Periods of residency or practice outside of Florida will not apply to the reduction of the Respondent's probationary period. The Respondent shall advise the Board of any change in his residence and/or office address. Respondent's term of probation under the August 10, 1987 Final Order commenced on August 10, 1987 and would have concluded on August 9, 1988 but for subsequent intervening events. On or about July 10, 1987, the second formal administrative complaint had been filed against Respondent. That administrative complaint was referenced by DPR Case No. 75536. The second case also did not involve any allegations of Respondent's unfitness to practice due to any type of impairment, but did allege inappropriate or excessive prescribing of drugs and failure to treat a patient with that level of care, skill and treatment recognized by a reasonably prudent similar physician, failing to keep written medical records, gross or repeated malpractice, and prescribing outside of professional practice. In October 1987, Respondent considered himself "burned out" and under stress and at the request of his partners submitted himself to evaluations for alcohol and drug abuse. The results of these evaluations are not in evidence. 2/ For a period of time, the precise dates of which are not clear on the record, Respondent also submitted himself to counselling with a psychiatrist, Dr. Virzi. While counselling with Dr. Virzi, Respondent was under the impression that Dr. Virzi was in confidential communication with, and following instructions given by, Dr. Roger Goetz on behalf of the Board of Medicine. Respondent "thought" Dr. Goetz was the "Florida Director of the Impaired Physicians Program for the entire State," but was a little vague on how he came by that knowledge and equally vague on whether he or Dr. Virzi ever actually provided any medical records to Dr. Goetz. Respondent testified that Dr. Goetz appeared with him at a Board of Medicine probationary hearing, but the exhibits which purport to be the Respondent's record before the Board and the Department of Professional Regulation (DPR) are silent on any official involvement of Dr. Goetz with Respondent either on behalf of the Board of Medicine or the DPR or before the Board for any reason. Neither Dr. Virzi nor Dr. Goetz testified; no records of Respondent's psychiatric treatment or of his entry into any impaired physician program were offered in evidence. Respondent presently has no agreement with anybody, including Dr. Virzi or Dr. Goetz, to complete any type of treatment program and he is not now and never has been in the Physicians Recovery Network. Respondent testified that although he acknowledged to himself and possibly to his partners in February 1988 that he was impaired, the nature of that impairment, other than "stress," was undisclosed and unacknowledged by Respondent at formal hearing. Indeed, Respondent further testified that at some point, he stopped seeing Dr. Virzi because Dr. Virzi recommended that Respondent enter an alcoholic treatment program and Respondent personally understood his evaluations to be that he was not an alcoholic. As of the date of formal hearing, Respondent was seeing a different psychiatrist. Respondent's testimony leaves the overall impression that Dr. Goetz' contact with him was secondhand at best and that no medical releases were executed by Respondent specifically for Dr. Goetz. However, there was sufficient evidence from which one may infer that a Board consultant was informally notified that there was reason to believe Respondent was impaired as a result of the misuse or abuse of alcohol and drugs, or both, or due to mental condition, and that throughout this period of the consultant's involvement, Respondent was simultaneously under investigation and prosecution by the DPR under the second formal administrative complaint which did not allege impairment. On February 23, 1988, Respondent signed a stipulation to settle the second disciplinary case upon presentation of the stipulation to the Board. The stipulation, however, bore DPR Case No. 75537. On or about March 23, 1988, an Order to Produce and Release Medical Records signed by the Secretary of the Department of Professional Regulation was entered in DPR Case No. 0090191. In pertinent part, that order found, determined, and ordered that: . . . The Department of Professional Regulation has reason to believe Glenn L. Pohlman, M.D. has violated Section 458.331(1)(s), Florida Statutes, by being mentally impaired and unable to practice medicine with reasonable skill and safety to patients. . . . Furthermore, the Department has need for additional information relative to the mental and physical condition of Glenn L. Pohlman, M.D. . . . pursuant to Section 458.339 Florida Statutes Glenn L. Pohlman M.D. is hereby ORDERED to forthwith release to the Department of Professional Regulation the names of all physicians treating him for the period of time from on or about January 1, 1986 through and including the date of the filing of this Order for any mental or physical condition, and it is further ordered that Glenn L. Pohlman, M.D. release to the Department of Professional Regulation all medical records and reports pertaining to his own mental and physical condition within that same period of time. In order to comply with this order, Glenn L. Pohlman M.D. shall execute five (5) Patient Consent for Release of Medical Information forms. . . . The foregoing Departmental Order is facially sufficient. Its case number corresponds to a computer cross-reference sheet listing a confidential complaint dated November 10, 1987. (P-5, last page) Respondent admitted receiving a copy of the Department's Order in March 1988. Respondent did not appeal the Department's Order or directly take issue with its "lawfulness." He merely refused to comply with it until the Board gave him more information. On April 18, 1988, the Board of Medicine entered a Final Order in DPR Case No. 75537 approving, adopting, and incorporating, as modified therein, the February 23, 1988 stipulation signed by Respondent in DPR Case No. 75537. The witnesses' testimony and the chronology of the official records admitted in evidence are persuasive that, despite the discrepancy of case numbers, the Final Order/Stipulation in DPR Case No. 75537 disposed of the charges contained in the formal administrative complaint in DPR Case No. 75536. That is, the second disciplinary case initiated July 10, 1987 by the second formal administrative complaint described in Finding of Fact 5, supra. That Final Order provides, in pertinent part: 5. Respondent's license shall be placed on probation for a period of up to two (2) years subject to the following terms of probation: * * * b. In the event the Respondent should leave Florida to reside or practice outside the State of Florida for periods longer than thirty (30) consecutive days, the Respondent shall notify the Board in writing of the dates of departure and return. Periods of residency or practice outside of Florida will not apply to the reduction of the Respondent's probationary period. The Respondent shall advise the Board of any change in his residence and/or office address. * * * 8. Respondent agrees to abide by all terms and conditions of this Stipulation. It is expressly understood that a violation of this stipulation shall be considered a violation of Chapter 458, Florida Statutes, for which a disciplinary action may be initiated. There is no acknowledgment within the February 23, 1988 stipulation and no finding within the April 18, 1988 Final Order that the Respondent was impaired. The order requires his prescribing to be monitored but does not limit the scope of Respondent's practice or require his withdrawal from practice. Respondent's term of probation under the April 18, 1988 Final Order would have concluded on April 17, 1990 but for subsequent intervening events. Regardless of testimony by the Administrative Assistant to the Florida Board of Medicine that on the basis of an August 1988 letter from Dr. Scales described in Finding of Fact 25, infra, the Board had tolled the Respondent's probationary periods under each of the two prior Final Orders of probation, beginning in February 1988, it is found that any tolling of the Respondent's probationary periods by the Board must legally be based upon the terms of the respective Final Orders. In a March 28, 1989 interview initiated by a DPR investigator, Respondent gave the investigator a North Carolina address and telephone number, saying it was his temporary residence, and again refused to comply with the Department's March 23, 1988 Order to release his medical records. On May 15, 1989, a letter pursuant to Section 455.225 F.S. from DPR Investigator Dowd to Respondent at Respondent's last known Jacksonville professional address (see Finding of Fact 23) informed Respondent that he was being investigated in connection with a complaint that Respondent had "failed to honor a lawful order by the Department of Professional Regulation to sign and execute a Release of Medical Information." That letter referenced Case No. ME0017326 3/ 8902496 4/. Approximately July 5, 1989, Respondent confirmed that the North Carolina address and telephone number were temporary. At formal hearing, Investigator Danson acknowledged that at all times material, investigators could always, eventually, locate Respondent through the North Carolina telephone number and address or through the Jacksonville professional address. On August 11, 1989, DPR Investigator Danson sent Respondent another copy of the March 23, 1988 Order and requested immediate compliance. On August 21, 1989, Respondent's then-attorney wrote Investigator Danson, asking to be informed of any lawful complaints pending at that time which might relate to Respondent. The evidence does not reflect any reply from any DPR employee to the attorney's letter, and Respondent continued to refuse to provide medical records or sign releases therefor. Respondent never produced any medical records and never signed any releases. He has consistently refused to provide his medical records or sign releases therefor up to and including the date of formal hearing herein which was the result of the third formal administrative complaint dated October 24, 1990. At least until February 20, 1988, Respondent maintained a professional practice at 3599 University Boulevard South, Jacksonville, Florida 32216. Even when not actively practicing at that address, Respondent has continued to receive mail there up to and including the date of formal hearing herein. He has also continued to be a stockholder in the medical practice of his partners still practicing there and a stockholder in the building at that address. He likewise draws disability insurance payments from the insurer for the partnership. Respondent has never taken the initiative to provide DPR or the Board with any other address in writing despite the two prior Final Orders requiring him to do so. At formal hearing, Respondent represented that, in collaboration with his partners, he voluntarily ceased to practice medicine in the state of Florida on February 20, 1988, a date prior to his signing the second stipulation, prior to entry of the Order of the Secretary, and prior to entry of the second Final Order of probation. The record is clear, however, that in May 1988, pursuant to the terms of the April 18, 1988 Final Order, Respondent qualified Dr. Scales as his monitoring physician to oversee his professional practice. In August 1988, Dr. Scales, Respondent's monitoring physician, notified the Department of Professional Regulation that he had nothing to monitor or report on since Respondent had ceased active practice in February 1988, three months before Dr. Scales was even qualified as monitoring physician. At no time did Respondent surrender his license to the Board or request being placed on inactive status. He is currently on inactive licensure status only because he did not timely renew his license prior to its natural expiration on December 31, 1989. Between February 1988 and the date of formal hearing, Respondent lived in several locations. Although he asserted that he has never "established residency" outside the state of Florida, Respondent admitted that since entry of the April 18, 1988 Final Order, he has "lived" outside Florida for more than 30 consecutive days, that he spent five weeks in Europe, and many months, at least intermittently, in Arizona and North Carolina. Since February 1989, much of Respondent's time has been devoted to repairing and refurbishing for sale a house in Charlotte, North Carolina. The house was damaged by a hurricane after he had purchased it in January 1989. Respondent simultaneously maintained a residence in Jacksonville with his daughter, but he has never taken affirmative action to notify DPR or the Board in writing of this address or of an address where he lived in Melbourne, Florida, for more than thirty days in 1988, either. Although vague and inconclusive as to the exact time frames of his absences from the state of Florida, it is clear that on several occasions, Respondent has failed to notify DPR or the Board of Medicine in writing of his dates of departure and return to Florida and has frequently resided outside the state of Florida for more than 30 consecutive days. Nor has he notified anyone in writing of his in-state changes of residence.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order providing as follows: Finding Respondent guilty of Counts I and II as alleged in the third administrative complaint (two violations of Section 458.331(1)(x) F.S.), and suspending his license to practice medicine in the state of Florida until the March 23, 1988 Order of the Department is complied with, subject to the statutory cap for suspension of a license, and thereafter ordering probation under the terms and conditions of the two prior final orders. DONE and ENTERED this 1st day of October, 1991, at Tallahassee, Florida. ELLA JANE P. 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 1st day of October, 1991.
The Issue The issue in this case is whether Respondent, Phillip J. Aleong, D.V.M., violated Section 474.214(1)(f), Florida Statutes (2005), by failing to pay an administrative fine and investigative costs within 30 days from the date of the filing of Final Order BPR-2005-04911 with Petitioner's Clerk as alleged in an Administrative Complaint filed by Petitioner, the Department of Business and Professional Regulation, on June 26, 2006, in BPR Case Number 2005-066424; and, if so, what disciplinary action should be taken against his license to practice veterinary medicine in the State of Florida.
Findings Of Fact The following facts were stipulated to by the parties: Respondent is licensed in the State of Florida as a veterinarian, having been issued license number VM-6466. On September 1, 2005, Respondent appeared before the Florida Board of Veterinary Medicine to approve a Settlement Stipulation as to DOAH Case No. 05-1971PL. At the hearing, the terms of the Settlement Stipulation (herein after the "Stipulation") were placed on the record and the members of the Board voted to approve the settlement. On September 9, 2005, the Florida Board of Veterinary Medicine rendered the Final order Approving Settlement Stipulation Number BPR-2005-04911 (herein after the "Final Order") against Respondent's veterinary license, by filing the original Final Order with the Department's Agency Clerk. A copy of the Final Order was mailed to Respondent's Counsel. However, a copy was not sent or mailed directly to the Respondent. The Settlement Stipulation, as adopted by the Final Order, amongst other terms, required Respondent to pay an administrative fine in the amount of $5000.00 and investigative costs in the amount of $479.76 within thirty (30) days from the date of filing the Final Order with the Department's Agency Clerk. As the Final Order was filed with the Agency Clerk on Setpember [sic] 9, 2005, Respondent's compliance with the payment terms of the Final Order was required on or before October 9, 2005. Pursuant to the Final Order and the Stipulation Agreement incorporated therein by reference, Petitioner and Respondent agreed that Respondent's veterinarian license would be suspended for 90 days in the event that Respondent failed to comply with the terms of the Settlement Stipulation or the Final Order. Respondent was aware of this penalty provision at the time of signing the agreement, was present as the time of its adoption by the Florida Board of Veterinary Medicine, and was aware that the sums would be due 30 days after the Board signed the Final Order itself which was to occur sometime after the September 1, 2005 meeting. Respondent failed to remit payment of the administrative fine and cost required under the Final Order by October 9, 2005. On December 27, 2005, the DBPR mailed Respondent an investigatory complaint placing Respondent on notice that the fine had not been paid. The computer printout attached to the investigatory complaint, as well as the handwritten complaint generated by the Petitioner, both of which were included therein allege that Respondent had not paid the fine. Neither document asserts that the Respondent failed to remit the costs, however, a copy of the Stipulation and Order were included with the investigatory complaint. On January 12, 2006, after receipt of the investigatory [sic] complaint, Respondent paid the fine. Respondent paid the costs on May 8, 2006. On June 26 2006, after both the fine and costs were paid in full, Petitioner filed this proceeding alleging that the fine and costs had not been paid. Petitioner has stated that it has not located any cases in its records where a fine was imposed, then paid late, in which an administrative complaint was not filed. However, Petitioner is unable to offer testimony, with absolute certainty, that prior to the administrative complaint filed in this matter, that all other veterinarians have paid fines assessed in a final order by their due date. Petitioner has not found any evidence indicating that it has ever filed an administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. Petitioner has found no evidence contrary to or may otherwise reasonably dispute that the administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. The facts in Final Order BPR-95-05774 (Exhibit "B") and Final Order BPR-2003-02869 (Exhibit "C") are distinguishable from the facts of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Veterinary Medicine finding that Phillip J. Aleong, D.V.M., has violated Section 474.214(1)(f), Florida Statutes, as described in this Recommended Order, and requiring that he pay an administrative fine of $2,000.00. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2007. COPIES FURNISHED: Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Bradford J. Beilly, Esquire Law Offices of Bradford J. Beilly, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At the time of hearing, the Respondent was incarcerated at Union Correctional Institution, Raiford, Florida. Having maintained eligibility for parole consideration, Petitioner had his effective parole release date interview on July 18, 1983. As a result of the interview, the Parole and Probation Commission on August 24, 1983, extended the Respondent's presumptive parole release date from September 13, 1983, to March 13, 1984. This was an extension of six months. The basis for the extension was "unsatisfactory institutional adjustment" as evidenced by two disciplinary reports dated October 19, 1982, and December 13, 1982. The commission action made specific reference to Rule 23-21.02(43). The disciplinary report dated October 19, 1982, arose out of a charge that Petitioner caused a disturbance in the chow line. Petitioner was found guilty and required to forfeit 30 days of gain time and to spend an indefinite period not to exceed 30 days in disciplinary confinement. The disciplinary report dated December 13, 1982, arose out of a charge that Petitioner was removing sweet rolls from the serving line and refused to comply with an order to leave the serving line. Petitioner was found guilty of the charge and was required to forfeit 30 days gain time. During the period prior to his July 18, 1983, interview, Petitioner received two disciplinary reports dated June 16, 1983, and April 1983. These two disciplinary reports were dismissed and were not the basis for the commission action of extending Petitioner's presumptive parole release date. Subsequent to the extension of his presumptive parole release date, Petitioner appealed the extension. The appeal was reviewed and denied by the commission on November 9, 1983.
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter. When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of December, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 5th day of December, 2011. COPIES FURNISHED: Kevin Vaughn, Jr. 931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409 Tom Barnhart, Esquire Special Counsel Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair, Florida Real Estate Commission 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel, Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order (“SWO”) and Third Amended Order of Penalty Assessment (“Third AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Based on the oral and documentary evidence admitted at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Gregg Construction is a corporation engaged in business in the State of Florida. Gregg Construction has been operating as a business since November 9, 2007. William Gregg is the owner of Gregg Construction and its sole employee. The address of record for Gregg Construction is 166 Big White Oak Lane, Crawfordville, Florida 32327. On June 15, 2017, the Department’s investigator, Lewis Johnson, conducted a routine visit to a jobsite to conduct a compliance investigation. Mr. Johnson observed Mr. Gregg use a table saw, measure, and cut a piece of wood. Mr. Johnson then observed Mr. Gregg nail the wood to the exterior wall of the home at the jobsite. After Mr. Johnson inquired about the work Mr. Gregg was performing, Mr. Gregg ultimately told Mr. Johnson that he was working as a subcontractor for Respondent. Based on Mr. Johnson’s observations, Mr. Gregg was performing construction-related work at the job site. Mr. Johnson then conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Mr. Gregg. Based on the results of his investigation, on May 10, 2017, Mr. Johnson issued a SWO to Respondent for failure to maintain workers’ compensation coverage for its employees. On May 10, 2017, Mr. Johnson hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”) on Respondent. The Records Request directed Respondent to produce business records for the time period of May 10, 2015, through May 11, 2017. While Respondent provided tax returns, it did not provide sufficient business records to the Department. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, May 10, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Johnson’s observations at the jobsite on May 10, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5645 to calculate the penalty. Classification code 5645 applies to work involving carpentry. Ms. Jackson applied the approved manual rates for classification 5645 for the work Mr. Johnson observed Mr. Gregg perform. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $15.91 for the period of May 11, 2015, through December 31, 2017; and $16.92 for the period of January 1, 2016, through June 10, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Mr. Johnson discovered that Mr. Gregg previously held an exemption, which expired on April 26, 2013. Although Mr. Gregg currently has an exemption, his exemption was not in effect during the audit period. On June 6, 2017, the Department issued its first AOPA that ordered Respondent to pay a penalty of $46,087.72, pursuant to section 440.107(7)(d). On August 1, 2017, Petitioner issued the Second AOPA based upon records submitted by Respondent, which reduced the penalty assessment to $14,752.62. After this matter was referred to the Division, on January 23, 2018, Petitioner filed a Motion for Leave to Amend Order of Penalty Assessment and issued the Third AOPA based upon records submitted by Respondent. Based on the Department’s calculation, the record demonstrates that the penalty assessment, based on records provided by Respondent, would be $9,785.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding the following: that Respondent failed to secure and maintain workers’ compensation coverage for Mr. Gregg; and that Respondent shall pay a penalty of $9,785.50.1/ DONE AND ENTERED this 23rd day of March, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2018.
