The Issue May Petitioner be granted credit for Questions 11, 12, and 18 on his February 1989 Certified General Contractor Examination so as to be considered to have successfully passed the examination?
Findings Of Fact Petitioner sat for the certified general contractors' examination on February 18, 1989. Petitioner has passed two parts of the examination, but scored 65 on the part of the examination containing the three challenged questions which serve as the basis for the appeal. The Petitioner requires a score of 69.01 to pass the third part of the examination. Petitioner timely and properly challenged the grading of three examination questions for which he received no credit, to wit: Questions 11, 12, and 18 in Test Booklet GC 421-0749. Petitioner alleged that his answers to Questions 11 and 12, which had been marked incorrect, were equally correct with those selected as correct by Respondent. He also contended that the network drawn in the critical path method which formed the reference point for each of these questions was so illegible, due to labelling of the network diagram, that no ore, including Petitioner, could have been expected to successfully complete it in the timeframe allotted. Additionally, he contended that his answer of "B" to Question 18, amounting to $6642 should be counted correct, the same as Answer A which amounted to $6400 because Petitioner's answer amounted to only a few dollars more than the answer Respondent designated as correct. With regard to the illegibility issue, Petitioner did not object to legibility at any time during the course of the examination itself, nor did he fill out a comment form at the time of turning in his examination or claim to have a defective test booklet at those times. He did, however, later challenge legibility as to the specified questions, and he has been permitted to present evidence of lack of legibility on that basis. Apparently, Petitioner's concern was based on a misunderstanding that certain letter-number configurations in Questions 11 and 12 could be used more than once, when, in fact, each could be used only one time. He did not understand that letters appear always above a line while numbers always appear below a line and that based on the legend, some of his interpretations of component parts of the diagram could not have logically occurred. Petitioner also thought some numbers and/or letters could be repeated and so became confused. As a result, he worked some problems presented by the diagram incorrectly. These interpretations, as opposed to lack of a legible diagram, appear to have accounted for his mistakes. Also, George Bruton, who was qualified as an expert on the requirements of certified general contractors in Florida, was able to correctly answer Questions 11 and 12 without utilizing those symbols the Petitioner stated were illegible. Therefore, it must be concluded that the quality of the diagram did not prevent the Petitioner from correctly answering the questions. Question 18, a multiple choice question, required the Petitioner to estimate the cost of construction for a perimeter fence built with certain materials. The Petitioner utilized materials not included in the question and his perimeter did not accomplish the goal set by the problem. Among other problems, the Petitioner used six corner posts instead of four corner posts. Therefore, he answered the question incorrectly. Under this set of circumstances, Petitioner's dollar amount answer in excess of the correct answer also is clearly incorrect and not subject to "rounding off" simply because it is "close." Questions 11, 12, and 18 are each worth 4 points. Petitioner failed to demonstrate his entitlement to have his score of 65 raised above 65 by 4 (69), 8 (73), or 12 (77) points respectively.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Professional Regulation enter a final order continuing to keep sealed the exhibits herein, finding that Petitioner abandoned his challenges to all questions except Questions 11, 12, and 18 of Test GC 421-0749, denying Petitioner's challenge to the foregoing questions, and denying a raise in the test score therefor. DONE and ENTERED this 22nd day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 15th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4098 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 and 2 are rejected as not supported by the record. 3 is accepted but immaterial to the facts ash found and issue raised herein. Respondent's PFOF: 1 is subordinate and a conclusion of law 2, 3, 4, 5, 6, 7, and 8 are accepted. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward K. Fewox, Jr. 3924 Wormwood Circle Jacksonville, Florida 32210 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner, Frank W. Fender, should have received a passing grade on the March 1997 Clinical Chemistry Technologist examination.
Findings Of Fact Petitioner, Frank W. Fender, took the Clinical Chemistry Technologist examination in March 1997 (hereinafter referred to as the "Examination"). The Examination consists of fifty multiple choice questions. The instructions for the Examination specifically informed persons taking the examination that they were to "[a]lways choose the BEST answer." It was determined that Mr. Fender had answered twenty- seven of the Examination questions correctly. Mr. Fender was, therefore, awarded a score of 349. A score of 350 or more was required for a passing score. If Mr. Fender were determined to have answered one more question correctly, he would receive a passing score. Mr. Fender was informed that he had not passed the Examination. By letter dated July 25, 1997, Mr. Fender requested a formal administrative hearing to contest his failing score. In particular, Mr. Fender challenged the determination that he did not answer questions 3, 9, 16, and 21 correctly. Question 3: Question 3 involved obtaining "true serum triglyceride results." Mr. Fender selected answer "D" which was: "measure a blank in which the dye-coupling is omitted." The answer considered correct was "B." The evidence failed to prove that answer "D" was the best answer. While the use of blanks in triglyceride methodologies is correct, "dye-coupling" is not. Therefore, answer "D" is not a correct response. The evidence failed to prove that answer "D" was the best answer for question 3. Question 9: Question 9 asks which enzyme listed in the answers is found to be elevated in the majority of alcoholics. Mr. Fender selected "B," ALT, as the correct response. The evidence failed to prove that answer "B" was the best answer. While ALT may be raised in an alcoholic, it also may not be. GGT is the most sensitive indicator of alcoholism. Even if ALT is normal, GGT will be raised in an alcoholic. The best answer to question 9 was, therefore, "C," GGT. The evidence failed to prove that answer "B" was the best answer to question 9. Question 16: Question 16 asks why one must wait approximately 8 hours to draw a blood sample after administering an oral dose of digoxin. Mr. Fender selected "D" as the correct response. This answer indicates that the reason one must wait is because "all" of the digoxin "will be in the cellular fraction." Mr. Fender's response was not the best response because of the use of the work "all" in the answer he selected. The most digoxin that could be in the cellular fraction is approximately twenty-five percent, because approximately seventy-five percent is excreted through the kidneys. The evidence failed to prove that answer "D" was the best answer to question 16. Question 21: Question 21 asks the best way to test for suspected genetic abnormalities in an unborn fetus. Mr. Fender selected answer "B," "performing L/S ratios" as the best answer. While the evidence proved that L/S ratios will measure immature fetal lungs, this condition results in respiratory distress syndrome. Respiratory distress syndrome is an "acquired" disorder and not a "genetic" abnormality. While an L/S ratio can be used to test for acquired disorders, a "chromosome analysis," answer "C," is used to test for genetic abnormalities. The evidence failed to prove that answer "B" was the best answer to question 21. The evidence failed to prove that Mr. Fender should have received a score higher than 349 on the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health dismissing Frank W. Fender's challenge to the grade awarded to him on the March 1997 Clinical Chemistry Technologist examination. DONE AND ORDERED this * day of March, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this * day of March, 1998. * Mailed 3/2/98 undated. -ac COPIES FURNISHED: Frank W. Fender 7603 North Laura Street Jacksonville, Florida 32208 Anne Marie Williamson, Esquire Department of Health Office of the General Counsel 1317 Winewood Boulevard Building 6, Room 106 Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
The Issue Whether disciplinary action should be taken against the Respondent's license to practice nursing, based upon alleged violations of Sections 464.018(1)(h), 464.018(1)(I), 464.018(1)(j), and 455.227(1)(q), Florida Statutes, and if so, what discipline is proper.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of pharmacy pursuant to Section 20.42, Florida Statutes; Chapters 455 and 465, Florida Statutes. The Respondent, Fred Leon London, III, a 48-year-old male, and at all times material to this matter, holds active nursing license numbers PN 1089021 and RN 2804642. Respondent has been a registered nurse for approximately five years. In October of 1995, Respondent was employed as a registered nurse at Columbia Park Medical Center in Orlando, Florida, working the 3:00 p.m. to 11:00 p.m. shift. On October 4, 1995, the hospital, at which Respondent worked, had a discrepancy with one of its narcotic systems called the Phyxis machine. The discrepancy was reported by Respondent. A search was conducted to locate the missing drugs and the narcotics could not be located at that time. It was determined that Respondent and one other nurse were the last two nurses who operated the machine. Pursuant to hospital policies, the Respondent and the other nurse were asked to submit to a urine screen for the purpose of determining if they had ingested any drugs. The Respondent submitted to a urine screen as requested by his employer on October 5, 1995. The urine screen was performed by Smith Kline Beecham Laboratories. The test results performed on behalf of the hospital and the subsequent voluntary test taken by Respondent on October 13, 1995, cannot support a finding of fact, since the reports are uncorroborated hearsay. Following the in-house investigation, the Respondent was terminated from his employment and a report was filed with the Board of Nursing. The missing narcotics were subsequently located the following day. They had been misplaced, but not tampered with. They were returned to inventory. Respondent was referred to the Intervention Project for Nurses (IPN). Respondent participated in a psychosocial assessment on October 12, 1995. Respondent has no prior criminal or disciplinary history and denies that he used marijuana or any other controlled substance on October 4 or 5, 1995.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Nursing find the Respondent not guilty as to Counts I, II, III, and IV of the Administrative Complaint, dated August 4, 1997, and that the Administrative Complaint be dismissed. DONE AND ENTERED this 8th day of April, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998. COPIES FURNISHED: Craig A. McCarthy, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Dr. Xavier C. Pinellas Qualified Representative 211 Broadway, Suite 115 Kissimmee, Florida 34741 Pete Peterson, General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Marilyn Bloss, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207
The Issue The issue in this case is whether the termination of Respondent was in accordance with the personnel policy and procedures established by Emerald Coast Utility Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. On September 25, 2006, Respondent was employed by Petitioner as a lead service worker. At the time, Respondent was given a copy of the employee handbook and the Drug Free Work Place Program notice. Receipt of both documents was acknowledged by Respondent. Until the time of the incident described in this order, Respondent was considered an excellent employee with high potential for advancement. The handbook is a summary of Petitioner’s human resource policies. Specific human resource policies are contained in Petitioner’s Human Resource Policy Manual. The Human Resource Policy Manual states, in relevant part, as follows: * * * Section F-4 Disciplinary Offenses (29) Use of or Being Under the Influence of any Controlled Substance as Defined in Section 893.03, Florida Statutes or Federal regulation, Not Pursuant to Lawful Prescription While on Duty; or Possession, Sale, ‘Illegal drug’ means any controlled substance as defined in Section 893.03, Florida Statutes or Federal regulation, which is not possessed, sold, distributed, or dispensed in accordance with law. * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes . . . . Chapter G Drug and Alcohol Abuse Policy It is a condition of employment with the Escambia County Utilities Authority for an employee to refrain from reporting to work or working with the presence of drugs and alcohol in his or her body. If an employee tests positive for alcohol or drugs, his or her employment may be terminated . . . Section G-2 Definitions B. ‘Drug abuse’ means the use of any controlled substance as defined in Section 893.03, Florida Statutes, as amended from time to time, not pursuant to lawful prescription. The term ‘drug abuse’ also includes the commission of any act prohibited by Chapter 893.03, Florida Statutes, as amended from time to time. The use of illegal drugs, or being under the influence of illegal drugs on the job, by ECUA employees is strictly prohibited. Section G-5 Rehabilitative/Corrective Action B. Any employee found to have possessed, used or been under the influence of illegal drugs or alcohol while on duty shall be subject to disciplinary action, up to and including dismissal . . . . E. Any employee who tests positive for alcohol or who tests positive for illegal drugs on a confirmation test shall be subject to disciplinary action, up to and including dismissal . . . . On August 14, 2009, Respondent was driving an ECUA vehicle while performing his job duties for Petitioner. Respondent did not see a low-hanging tree branch and struck the branch with the vehicle, causing minor damage to the vehicle. Respondent contacted his supervisor to report the accident. Respondent’s supervisor met Respondent at the accident site. He did not observe any behavior by Respondent that would indicate he was under the influence of any substance. However, because a vehicle accident had occurred, Respondent was required by ECUA policy to undergo a urine test for drugs and alcohol. That day, Respondent reported to LabCorp, ECUA’s occupational testing services company. LabCorp is a licensed facility under state and federal law to obtain urine samples for drug-testing purposes. Respondent was seen by a LabCorp technician who was well-qualified to obtain and process urine samples. The technician checked Respondent’s identification and had him empty his pockets prior to the test. The technician gave Respondent a sample cup, with a temperature strip on it. The temperature strip helps ensure that the liquid in the cup is close to body temperature indicating the liquid is urine and has not been adulterated. Respondent took both cups in the bathroom and urinated in them. Respondent returned the sample to the technician. In the presence of Respondent, the technician checked the temperature of the sample, which was normal. The technician then split the sample into to two test tubes, sealed each tube, labeled them and had Respondent initial each tube. The technician recorded her activity in processing the sample on a custody and control form which Respondent then signed, acknowledging the sample-taking process. Again in the presence of Respondent, both the custody and control form and the two samples were placed in a sample bag which was sealed with an evidence sticker and placed in a locked specimen box for transport to a licensed testing facility in North Carolina. There was no evidence that appropriate procedures were not followed by LabCorp in processing Respondent’s urine sample. Respondent’s sample arrived at LabCorp’s testing facility at Triangle Park in North Carolina on August 17, 2009. Sample A was used for initial testing and Sample B was frozen to preserve it for later testing if required. The sample was tracked through the test process by number and the name of Respondent is not known to the technician performing the tests. The first test performed on Respondent’s sample A was an immunoassay test. The sample was initially tested with a cut-off level of 15 nanograms per milliliter. The cut-off level is used to limit the possibility of a positive result due to secondhand exposure. Respondent’s sample tested positive for Cannabis. Since the sample was positive, it was sent for gas chromatography/mass spectrometry (GCMS) confirmation testing. GCMS tests for the presence of THC, the exact metabolite of marijuana. Respondent’s sample produced a positive result for THC. The results were reported to ECUA’s medical review officer and to ECUA. Upon learning of the positive test results, Respondent requested that the second sample be tested by another lab. The sample was sent to another LabCorp testing facility in Houston, Texas. Unfortunately, the second sample tested positive for marijuana. Respondent had no explanation for the positive test results and testified that he had not used marijuana for some 15 years. However, no credible evidence was produced at hearing that demonstrated the samples were adulterated, mixed up or improperly tested. Given these facts, Petitioner has established that Respondent tested positive for marijuana and that such results violate its drug policy.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is Recommended that the Executive Director of the Emerald Coast Utility Authority find that Respondent violated its Human Resource Policies F-4 (29) and (33) and impose such discipline on Respondent as determined appropriate. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 27th day of May, 2010. COPIES FURNISHED: John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Terrance D. Peace 5748 Juergen Way Milton, Florida 32570 Richard C. Anderson, SPHR Director of Human Resources & Administrative Services Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514 Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Pensacola, Florida 32514
Findings Of Fact The Petitioner, James Ilardi, was an unsuccessful candidate for the June, 1989 General Contractor's Construction Examination in the State of Florida. He is an experienced contractor and is licensed in the State of South Carolina. He is the past President of the Charleston Contractor's Association in South Carolina. He has experience with most types of building construction, including office buildings, military facilities, hospitals, factories and other large projects. He served as Chief Executive Officer for a design and construction firm for a period of ten years. The Respondent is an agency of the State of Florida charged with administering the certified general contractor's examination and with regulating the licensure and practice of construction contractors in the State of Florida. The Petitioner sat for the certified general contractor's examination in June, 1989. He has challenged the scoring of his answers to questions 2, 11, 12, 17, 19 and 33 on that examination. During the course of the hearing, he abandoned his challenges to questions 2, 17, 19 and 33. If he were accorded correct answers to either of the remaining challenged questions, numbers 11 or 12, he would have a sufficient score to obtain a passing grade of 70 on that examination. Both questions 11 and 12 used a "critical path network diagram" for use in working out the correct answer to the questions. The Petitioner criticized the diagram as being obscure, difficult to read and containing error. He maintained that it was not supported by the representations found in the reference materials recommended by the Respondent, in its "Instructions to Candidates", as being the material to use to arrive at answers to the questions. The Petitioner contends that the size of the diagram, "the multiple fonts, the difference in the intensity of the print, and the use of symbols all contribute to the obscurity and illegibility of the diagram, itself". In particular, he complains that the symbol listing includes a symbol which he did not find on the diagram. That is, the symbol for "structural steel" and "steel bar joists, which is two straight vertical parallel lines. He also complains that general practice in the construction industry, in his experience, and as indicated in the reference work "Construction Contracting", pages 325-326, one of the references listed for candidates to use in answering these questions, recommends against the use of symbols in lieu of abbreviated notations for description of activities on such a diagram. The main complaint he had concerning the use of symbols, however, was the fact that use of symbols, and having to constantly defer to the symbol legend on the exam materials, was time-consuming and was not generally accepted industry practice or procedure. He contends that the diagram contains error or is obscure and does not conform to the Respondent's recommended reference materials nor to industry standards and. is deficient in format, design and reproductive quality. Thus, he maintains that questions 11 and 12 do not adequately test the knowledge or skills necessary for licensure as a general contractor. The Petitioner acknowledged that the questions at issue had been reviewed twice by the Respondent's examination content specialist and that an "item analysis and review process" by the Respondent's expert resulted in the Respondent maintaining its position that the two questions and supporting materials were valid in fairly testing the knowledge of general contractor licensure candidates. In summary, the Petitioner contends that as to question 11, the symbol for steel bar joists, the two parallel vertical lines, does not appear on the diagram; therefore, he was unable to determine whether his answer was correct or not. As to question number 12, he maintains, in essence, that the use of symbols instead of brief abbreviated descriptions of the activities involved, accompanying the arrows in the diagram which indicate the critical path for the activity in question (paint work), render answering the question confusing and time consuming in having to constantly refer to the symbol legend and look for the symbols. He states that, in his 20 years of construction industry experience, he has not had to use symbols in working with a critical path diagram. The Petitioner did not demonstrate, however, that the use of symbols was incorrect procedure as delineated in the reference materials supplied to the candidates and which they were instructed to use in answering the questions on the examination. The Respondent produced the testimony of Mr. Olson, a Florida certified general contractor, who is also employed with the National Assessment Institute which developed this examination. Mr. Olson, however, did not, himself, have a hand in developing the examination. Mr. Olson did, however, review the Petitioner's challenges to the questions at issue and his responses, reviewed questions 11 and 12, as well as the Respondent's asserted correct answers to those questions and the methodology used in reaching those answers. Mr. Olson established that this was an "open-book" examination and the candidates were informed of and supplied all necessary reference materials to answer these two questions. The only optional consideration was that candidates could have used a calculator to speed up their calculations and were informed that it was permissible to use a calculator. Question 11 required candidates to calculate the total time necessary to install structural steel and steel bar joists in interpreting the activity network represented by the diagram in question. They were asked to calculate whether the installation was ahead of schedule or behind schedule and by how much. Mr. Olson established that the correct response was "C", which is two days behind schedule. Mr. Olson demonstrated that it was quite possible for a candidate to make this calculation and track this in formation on the diagram provided the candidates, through reading the path with the symbols, which alphabetically represent the activity, and which are numerical in representing the time in days. He established that this is very typical of the construction industry, related to the preparation, reading and interpreting of blueprints. A tremendous amount of symbols and legends are typically used in preparing and interpreting blueprints. Mr. Olson established that the pertinent number, 85 days, could be calculated for installation of structural steel and steel bar joists, based upon the information supplied to the candidates. By using the diagram and the information supplied with the question, the candidate can calculate that the actual number of days that were taken for the job was 87 days and therefore, that the project, at that point, was two days behind schedule. Mr. Olson performed this calculation by using the actual diagram the Petitioner used and reference information the Petitioner was given to use in answering the actual examination question at issue. He also established that the two parallel lines representing steel bar joists and structural steel on the diagram, and in the symbol legend supplied with the diagram, were indicated on the diagram supplied to Mr. Ilardi at the examination. Mr. Olson also established that the reference quoted for question number 11 was walkers Building Estimator's Reference Book, which, indeed, listed the type of activity network depicted in the diagram used by candidates for question number 11 and 12. Mr. Olson also established that question number 12 requires a candidate to work through an activity network diagram to find the amount of days necessary from the beginning of a project to the time the painting activity begins. He established that the answer could be obtained without the use of any other reference materials other than the information depicted on the diagram, itself, associated with the question. He established that the only correct answer from that information on the diagram could be "D" or 153 days. The Petitioner did not establish that his answer to question number 12, nor to question number 11 for that matter, was a correct answer and did not establish that there was any misleading quality or ambiguity in the wording of the questions and the associated information which would mislead a candidate into calculating the wrong answers or that there was erroneous information depicted in the reference materials or the diagram which would result in the candidate being misled into giving a wrong answer to questions 11 and 12.. Mr. Ilardi challenged the examination as to the testing environment, as that relates to the ambient light level in the examination room and to the acoustic qualities of the room. He also asserted that the test was not standardized throughout the State and was biased due to age, because of the perceived hearing and vision difficulties which he believed were caused by the acoustics in the examination room and the light available. Other than stating his opinions in this regard, he produced no testimony or evidence concerning these alleged qualities of the testing environment. It was demonstrated by she Respondent that, indeed, the test is standardized throughout the State and is the one given to all candidates in Florida, regardless of the test location.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered denying Petitioner's request to receive a passing grade on the certified general contractor's licensure examination. DONE and ENTERED this 4th day of May, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 4th day of May, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-3784 Petitioner's Proposed Findings of Fact Rejected. The Petitioner was not qualified as an expert witness. Other than that, this finding is accepted. Rejected, as not in accord with the preponderant weight of the evidence. Rejected, as not supported by the preponderant weight of the evidence. 4.A.-4.C. Accepted. 4.D. Rejected, as not in accordance with the preponderant weight of the evidence. Accepted, but not itself materially dispositive. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as not constituting a finding of fact, but rather a quotation from the transcript of the proceedings. Rejected, as not in accordance with the preponderant weight of the evidence and as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected, as immaterial and not probative of the issues of whether the questions were ambiguous or misleading or whether the Petitioner's answers were correct. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence. Rejected, as not in accordance with the preponderant weight of the evidence, and as not materially dispositive. 4.1. Rejected, as not materially dispositive. Rejected, as immaterial. Rejected, as immaterial. Accepted, but not a matter of factual dispute and immaterial. Respondent's Findings of Fact 1-10. Accepted. COPIES FURNISHED: Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board P.O. Box 2 Jacksonville, FL 32202 Kenneth D. Easley, Esq. General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 E. Harper Field, Esq. Deputy General Counsel Department of Professional Regulation 1940 N. Monroe Street, Ste. 60 Tallahassee, FL 32399-0792 Mr. James Ilardi P.O. Box 8095 Jacksonville, FL 32239
The Issue Whether Petitioner is entitled to additional credit for his answers to certain challenged questions on the air conditioning "B" contractor's examination administered by the Respondent in July 1994.
Findings Of Fact Petitioner applied to Respondent for licensure as a Class B air conditioning contractor. As part of the licensing process, Petitioner was required to pass an examination administered by Respondent, the state agency responsible for the licensure of contractors in Florida. In July 1994, Petitioner sat as a candidate for the licensure examination. He was thereafter notified that he received a score of 68 points on Part I of the examination, which was a failing grade. A minimum of score of 70 points was required to pass Part I of the examination. Petitioner thereafter timely challenged the grading of several of his answers to questions on Part I of the examination. A correct answer to each question challenged by Petitioner is worth one point. Part I of the licensure examination was divided into two sessions. Each question at issue in this proceeding was a multiple choice question which required the candidate to select the best answer from among four possible responses. Petitioner initially challenged Questions 18, 19, 27, 36, 47, and 48 of Part I, Session I and Questions 1, 2, 7, 9, 16, 22, and 23 of Part I, Session II. At the formal hearing, Petitioner withdrew his challenges to Questions 27, 47, and 48 of Part I, Session I. He also withdrew his challenges to Questions 1, 2, 7, and 22 of Part I, Session II. Prior to the beginning of the formal hearing, Respondent determined that Petitioner gave a correct answer to Question 18 of Part I, Session I, one of the questions that had been challenged, and adjusted his score from a 68 to a 69. The following questions remained at issue at the formal hearing: Questions 19 and 36 of Part I, Session I and Questions 9, 16, and 23 of Part I, Session II. The answer Petitioner selected for Question 19 of Part I, Session I was not the correct answer to the question, a fact conceded by the Petitioner. Petitioner was properly denied credit for his response to this question. The answer Petitioner selected for Question 36 of Part I, Session I was not the correct answer to the question, a fact conceded by the Petitioner. Petitioner was properly denied credit for his response to this question. The answer Petitioner selected for Question 9 of Part I, Session II was not the correct answer to the question, a fact conceded by the Petitioner. Petitioner was properly denied credit for his response to this question. The answer Petitioner selected for Question 16 of Part I, Session II was not the correct answer to the question, a fact conceded by the Petitioner. Petitioner was properly denied credit for his response to this question. The answer Petitioner selected for Question 23 of Part I, Session II was not the correct answer to the question, a fact conceded by the Petitioner. Petitioner was properly denied credit for his response to this question. Petitioner did not establish that the standards used to score the examination were arbitrary, capricious, or devoid of logic. Petitioner did not establish that the application of those scoring standards to Petitioner's response to any of the questions at issue at the formal hearing was arbitrary, capricious, or devoid of logic. Each question at issue at the formal hearing is a reliable and valid test item. Petitioner is not entitled to additional credit for his response to any of the questions at issue at the formal hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order that adopts the findings of fact and the conclusions of law contained herein and which DENIES Petitioner's challenge to the scoring of his answers to Questions 19 and 36 of Part I, Session I and Questions 9, 16, and 23 of Part I, Session II of the Class B air conditioning contractor's examination administered by the Respondent in July 1994. DONE AND ENTERED this 6th day of October, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1995. COPIES FURNISHED: Freddy Alvernia, pro se 13708 SW 9th Street Miami, Florida 33184 William M. Woodyard, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent violated Sections 231.28(1)(c) and 231.28(1)(i), Florida Statutes (1997), and Rules 6B-1.006(3)(a) and 6B-1.006(5)(a), Florida Administrative Code, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida educator's certificate No. 539913. This certificate authorizes Respondent to teach art, early childhood education, and elementary education. Respondent's certificate is valid through June 30, 2002. Respondent has thirteen years of experience as a certified fifth-grade teacher at Florosa Elementary School in Okaloosa County, Florida. At the time of the hearing, the Okaloosa County School District employed Respondent under a continuing contract. The Florida Comprehensive Assessment Test (FCAT) currently is administered to third, fourth, and fifth grade students once each year. The test is designed to determine whether students meet certain academic levels in Florida's Sunshine State Standards, which range from level 1 as the lowest below-average score to level 5 as the highest above-average score. The test is also used to provide a "report card" for each school, based upon the number of students who score level 3 or above. At all times relevant here, student performance on the FCAT had no positive or negative consequences for individual teachers. Respondent participated in the administration of the FCAT in 1998 as a field test. Neither the school nor the students received the test results in 1998. Respondent also participated in administrating the FCAT in 1999, the first year that fifth-grade students received their scores. Susan Lowery was the school district's Director of Student Services for the 1998-1999 school term. Ms. Lowery's position included serving as the district's Director of Assessment Testing. As such, she was responsible for ensuring that each school site followed correct testing procedures. Prior to the administration of the FCAT in 1999, Ms. Lowery attended training sessions at the state level to learn the proper testing procedures for the FCAT. Upon her return to the district, Ms. Lowery trained the individual school test coordinators on the FCAT testing procedures. Sonia Weikel was the school counselor at Florosa Elementary School for the 1998-1999 school year. Her duties included serving as the school's testing coordinator. Ms. Weikel first participated in Ms. Lowery's FCAT training session then conducted a training session at Florosa Elementary School for all the classroom teachers, including Respondent. During her FCAT training session for the 1998-1999 school year, Ms. Weikel explained to Respondent and her colleagues that they could answer questions concerning test instructions but they were not to assist students in answering questions on the test. Specifically, the classroom teachers were not supposed to interfere with the natural responses of the children during the test. Ms. Weikel directed the teachers to inform the students of the test schedule, and the specific start and stop times. This was necessary because the fifth-grade test consisted of two 45-minute sessions on the morning of the first day and two 40- minute sessions on the morning of the second day. A short break between the two test sessions was also scheduled. However, if all the students finished a particular test session in less than the allotted time, the break time for an individual class could be adjusted as long as testing in other classrooms was not disrupted. Ms. Weikel instructed the teachers to maintain test security by making sure that students did not look at each other's test booklet. The students' desks were supposed to be at least three feet apart. Ms. Weikel told the teachers to make sure that the students were working in the correct test booklet. As the teachers scanned the room, they were advised to ensure that the students were following prescribed directions. During the training session, the teachers were reminded that it was a crime to interfere with a student's responses. This information was contained in the testing manual and the security paper that individual teachers, including Respondent, were required to sign.1 See Section 228.301, Florida Statutes, and Rule 6A-10.042, Florida Administrative Code. Ms. Weikel used a hand-out containing an outline of the testing procedures for the 1998-1999 FCAT. The outline stated as follows in relevant part: TEST SECURITY-PROHIBITED ACTIVITIES: Copying or reading the student responses during testing or after testing. Mishandling of secure material--Breaks in number codes, Destruction of materials. Reading test items. Interpreting a test passage or item from the test. The outline also reminded the teachers to read certain pages in the testing manual regarding test modifications for special students and test booklet directions. Sometime prior to Ms. Weikel's training session, the teachers at Florosa Elementary School were given a copy of the testing manual. This was done so that the teachers could familiarize themselves with the specific testing procedures and student instructions set forth by the developers of the FCAT.2 Based on the instructions she received from Ms. Weikel, and after having read the teacher's instructions in the testing manual, Respondent understood that she was responsible for the following: (a) circulating around the room to ensure that the children were working in the right section; making sure that the students followed and understood the test and the test instructions; (c) making sure that the students were bubbling in the answers in the correct manner and not indiscriminately; (d) ensuring that a student was not falling too far behind other students; (e) making sure that a student was not spending too much time on one item; and (f) ensuring that a student was not hurrying through the test. Each classroom was assigned a parent volunteer to act as a proctor for the 1998-1999 FCAT. Kimberly Clark was the proctor assigned to Respondent's classroom. Ms. Clark assisted Respondent in administering the FCAT on the first day, February 2, 1999, and for the first 40-minute test session on February 3, 1999. Some of Respondent's students requested assistance as Respondent circulated around her classroom during the test on February 2, 1999, and during the first test session on February 3, 1999. Respondent told the students that she could not help on the test. However, she verbally encouraged the students with comments such as "you can do it," "go ahead," "go back and reread it." Respondent used non-verbal cues when communicating with students during the test. These cues included gesturing and pointing with her hands to redirect the students to the test booklet. In addition to gesturing with her hands, Respondent would nod her head when encouraging students and shake her head when telling students that she could not help them. On a few occasions, Respondent pointed toward a particular question in the booklet that some students had inadvertently passed over because of its placement on the page. The question was small in size and placed at the top of the page. The remainder of the page was filled entirely by another question. Respondent circulated in the room and alerted several students to the question that was skipped, telling them to go back and not skip it. A new student was placed in Respondent's class on or about February 3, 1999. This student had never taken the FCAT and was not prepared to take it on the date in question. Throughout the administration of the FCAT, this student would frequently close his test booklet and stop working. Respondent used verbal and non-verbal means of communication, repeatedly telling the student to go back in his book, to reread the questions, and keep working. Prior to the break in testing between the two 40- minute test sessions on February 3, 1999, Ms. Weikel visited Respondent's classroom several times, observing no testing irregularities. On each such occasion, Ms. Clark signaled to Ms. Weikel that everything was fine. On February 3, 1999, Ms. Weikel visited Respondent's classroom during a time that appeared to be an early break between the two 40-minute test sessions. Ms. Clark informed Ms. Weikel that everyone had finished the test and that the proper times had been observed. Respondent did not post the stop and start times for the test on the blackboard as required by the testing manual. Instead, she posted the testing schedule on a legal size paper. She also wrote "10 minutes" and "5 minutes" on the blackboard as appropriate to remind her students of the time remaining to complete each test session. Respondent knew that the children could not rely on the school clocks to follow the prearranged test schedule because the clocks were not synchronized. Therefore, she used an egg timer to time the FCAT test sessions, ensuring that her students would be provided the correct amount of time to complete the FCAT. If students are not allowed the correct amount of time for a section of the test, their tests must be invalidated. None of the tests in Respondent's class were invalidated for timing irregularities. Additionally, none of the tests in the surrounding classes were compromised because Respondent's class started or stopped a testing session a few minutes earlier than scheduled. While Ms. Weikel was visiting Respondent's classroom during the break between the two 40-minute test sessions on February 3, 1999, Ms. Clark reported a suspicion that Respondent appeared to be assisting students on the test. Ms. Clark's suspicions were based on her observations of the physical movements and gestures of Respondent. Assisting a student with a question on the FCAT is considered cheating. Such assistance would require invalidation of the student's test. None of the tests in Respondent's class were invalidated for cheating. After hearing Ms. Clark express her suspicions, Ms. Weikel sought the assistance of Kathleen Ball, the assistant principal. Ms. Ball met with Ms. Weikel and Ms. Clark briefly. Ms. Ball then decided to relieve Ms. Clark of her duties and to serve as Respondent's proctor for the last 40-minute test session. When Ms. Ball entered Respondent's classroom, Respondent informed Ms. Ball about the question that several students had overlooked at the top of one page. Respondent told Ms. Ball that she had told the students to go back to the question.3 Ms. Ball stood in the back of Respondent's class when the testing resumed. Ms. Ball observed Respondent walk up to a student's desk and bend over, putting one hand on the back of his chair and one hand flat on his desk. Respondent gave the appearance that she was reading a test question. Ms. Ball approached Respondent and said, "Ms. Mulhearn, we're not allowed to read the test questions on standardized testing." Respondent then left the area, stopped circulating among the students, and went to sit at the front of the room for the duration of the test. During the hearing, Ms. Weikel testified that it was appropriate for a teacher to point out a question that a student had overlooked or skipped on the test. According to Ms. Weikel, the FCAT testing procedures have been tightened considerably in recent years, with increased restrictions on the amount of assistance that teachers can give to students. During the hearing, Ms. Ball testified that it is recommended for a teacher to circulate during a test to make sure the students are moving through the test and not stopping and spending too much time on one item. According to Ms. Ball, if a child spends too much time on one question, the teacher should tell the child to keep working or not to stop. Respondent's expert, Rebecca Spence, Okaloosa County School District's Chief of Human Resources, expressed a similar opinion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Education Practices Commission dismiss the Administrative Complaint. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 20th day of April, 2001.
The Issue The issue in this case is whether Petitioner is entitled to credit for 14 challenged examination questions in the State Officers Certification Examination (SOCE) for Law Enforcement Officers.
Findings Of Fact Petitioner challenged 14 questions after failing the SOCE for the third and final time on September 30, 2009. The challenged questions are numbered 32, 62, 63, 79, 87, 128, 139, 154, 155, 156, 170, 187, 212, and 236. During the hearing, Petitioner withdrew her challenges to questions 79, 87, 155, and 212. Ten questions remain at issue in this proceeding. A preponderance of the evidence does not support Petitioner’s challenges to the 10 questions at issue. Expert testimony shows the challenged questions were validated through appropriate field testing. The questions are accurate to the curriculum and perform sufficiently during testing. The correct answer to each challenged question was identified in the curriculum by expert testimony during the hearing. The statistical probability of an examinee answering a question correctly is identified in the record by a "P" value. For challenged question 32, the “P” value was 0.80, which means that 80 percent of examinees answered the question correctly. Only 78 of 5,220 examinees chose the answer chosen by Petitioner for question 32. The "P" value for challenged question 62 was 0.76, meaning that 76 percent of examinees answered the question correctly. Only 222 of 1,655 examinees chose the response that Petitioner chose for question 62. The "P" value for challenged question 63 was 0.95, meaning that 95 percent of examinees answered the question correctly. Only 150 of 3,387 examinees chose the response that Petitioner chose for question 63. The "P" value for challenged question 128 was 0.59, meaning that 59 percent of examinees answered the question correctly. Approximately 2,142 of 4,456 examinees chose the response that Petitioner chose for question 128. The "P" value for challenged question 139 was 0.93, meaning that 93 percent of examinees answered the question correctly. Only 20 of 568 examinees chose the response that Petitioner chose for question 139. The "P" value for challenged question 154 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 51 of 4,331 examinees chose the response that Petitioner chose for question 154. The "P" value for challenged question 156 was 0.80, meaning that 80 percent of examinees answered the question correctly. Only 404 of 5,721 examinees chose the response that Petitioner chose for question 156. The "P" value for challenged question 170 was 0.81, meaning that 81 percent of examinees answered the question correctly. Only 596 of 4,681 examinees chose the response that Petitioner chose for question 170. The "P" value for challenged question 187 was 0.90, meaning that 90 percent of examinees answered the question correctly. Only 28 of 2,908 examinees chose the response that Petitioner chose for question 187. The "P" value for challenged question 236 was 0.92, meaning that 92 percent of examinees answered the question correctly. Only 133 of 2,449 examinees chose the response that Petitioner chose for question 236.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order denying Petitioner’s challenge to the 10 examination questions from the September 20, 2009, Law Enforcement State Officer Certification Examination numbered 32, 62, 63, 128, 139, 154, 156, 170, 187, and 236. DONE AND ENTERED this 9th day of April, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 9th day of April, 2010.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Since 1990, Respondent has operated a recreational club in Broward County, Florida. Horse riding is among the activities offered at the club. Horses owned by Respondent and stabled on the club's premises are used by club members. Respondent has sold approximately six horses during the time he has operated the club. Two of these sales were made to Orlando "Pete" Trilla and his wife. The first of these two sales to the Trillas was made on or about December 31, 1994, when Respondent sold a quarter horse named Chance to the Trillas for $1,800.00. Pursuant to the Trillas' instructions, Respondent delivered Chance to Troy Doniny's stables. Respondent provided the Trillas with all of the paperwork that he (Respondent) had regarding Chance, including a report of a negative Equine Infectious Anemia (EIA) Laboratory Test administered August 20, 1993, and a report of a subsequent negative EIA Laboratory Test administered within 12 months of the date Respondent relinquished possession of Chance to the Trillas. (Respondent, who does not sell horses on a regular basis, did not retain copies of the paperwork he provided the Trillas.) The Trillas had difficulty handling Chance. In or about October of 1995, they asked Respondent if they could exchange Chance for another horse. The Trillas subsequently entered into an agreement with Respondent, which provided that the Trillas were to receive a Tennessee Walker named Walker from Respondent in return for Chance plus $1,000.00. On or about October 30, 1995, Respondent, through his agent, Daryl Woods, delivered Walker to the Trillas at the Trillas' residence in Palm Beach County, Florida. 3/ At the time of delivery, the Trillas were provided with all of the paperwork that Respondent had regarding Walker, including a report of a negative EIA Laboratory Test administered within the previous 12 months. 4/ (Respondent did not retain copies of the paperwork he provided the Trillas.) After receiving Walker, the Trillas relinquished possession of Chance to Woods. Chance returned to Respondent's club on Wood's trailer. The Trillas were dissatisfied with Walker. They complained to Respondent that Walker had "bad feet" and asked that Respondent return Chance, as well as the money that they had paid to obtain Walker. Respondent refused. The Trillas subsequently filed a civil action against Respondent. A trial was scheduled. The Trillas' lawsuit was dismissed when they failed to appear at trial.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order dismissing all charges against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1996. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 1996.
The Issue The issue in these cases is whether disciplinary action should be taken against Respondent's license to practice medicine, No. ME 0046170, based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint dated April 6, 1989, (the "First Administrative Complaint") which has been assigned DOAH Case No. 89-3723 and/or the Administrative Complaint dated August 16, 1990, (the "Second Administrative Complaint") which has been assigned DOAH Case No. 91-3864.
Findings Of Fact Based on the evidence adduced at the hearings on October 3, 1990, and March 10, 1992, and the entire record in this proceeding, the following findings of fact are made: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 0046170 by the State of Florida. Respondent was initially licensed to practice medicine in the State of Florida in approximately April of 1985. No evidence was presented of any prior disciplinary action against Respondent. Respondent's last known address is 10611 N.E. 11th Avenue, Miami Shores, Florida 33138. Sometime around 1986, Respondent became affiliated with EMSA which is an emergency room provider. EMSA contracts with hospitals to staff emergency rooms. Thus, Respondent has been working as an emergency room physician since 1986. The evidence did not establish the extent of Respondent's obligations with EMSA since 1986. As discussed in more detail below, since 1986, Respondent has also been affiliated with at least two other entities, the Institute of Specialized Medicine and the Immunology Allergy Institute, Inc. Facts Regarding the First Administrative Complaint Respondent was employed as a salaried employee of the Institute of Specialized Medicine (the "Institute") for at least several months during the year 1987. Although the evidence regarding Respondent's affiliation with EMSA was not entirely clear, it appears that he retained his affiliation with that company during the time that he worked at the Institute. In June of 1987, Respondent was associated with the Institute. In June of 1987, J.P. was a 36 year old female who saw an advertisement in a newspaper for the Institute of Specialized Medicine. That advertisement suggested that weight loss could be accomplished through adjusting a person's metabolism. J.P. called the Institute and scheduled an appointment for June 30, 1987. J.P. had been seriously overweight all of her adult life and had previously tried almost every possible method of weight loss. Shortly before her visit to the Institute, J.P. had been able to lose 80 pounds by diet and exercise alone. On June 30, 1987, J.P. visited the Institute and was told that she needed to provide certain information to determine her eligibility for the Institute's program. J.P. was advised that the Institute charged a $925 fee for testing and consultation. That fee included her first two visits, after which she was to be charged $40 per visit. The Institute's staff told J.P. that she had to pay $285 and that the rest would be billed to her insurance company. J.P. paid $285 on this first visit. On her first visit, J.P. filled out various questionnaires regarding her health, background and other general information. She was given a "blood test," a spirometric test, an EKG, and she provided a urine sample. J.P. did not see a physician or dietician during this visit. On July 6, 1987, J.P. returned to the Institute and was seen for about ten minutes by Respondent, who listened to her heart and lungs. Her height, weight, blood pressure, and pulse rate were noted, but no other physical examination was performed and Respondent did not inquire regarding any of the matters disclosed in the questionnaire filled out by J.P. during her first visit. During the July 6, 1987 visit, Respondent informed J.P. of his interpretation of her test results. He told J.P. that her tests showed she had an irregular thyroid, that her metabolism was below normal range, and that her body retained fluid. In his records of J.P.'s July 6, 1987 visit, Respondent diagnosed J.P. as having "Euthyroid Sick Syndrome." Euthyroid Sick Syndrome is a condition which may arise in a patient seriously ill from another cause. In such a situation, there are abnormal findings in blood tests for thyroid function, but these findings do not indicate the true thyroid status which is normal. The evidence established that this was an incorrect diagnosis for J.P. based upon the test results and history provided. Respondent did not provide a cogent explanation for his written diagnosis of Euthyroid Sick Syndrome nor did he explain the verbal diagnosis given to J.P. Respondent's records do not include the results of the spirometric test or the EKG. In addition, the urinalysis was incomplete and, while the doctor's notes and billing records reflect a chest x-ray was taken, there is no evidence of such an x-ray in the records. The results of J.P.'s blood tests reflect all normal values with the exception of a slightly low "total iron." At the conclusion of the July 6, 1987 visit, Respondent prescribed Cytomel, 25 micrograms BID, and Maxzide for J.P. No directions were given regarding the administration of Maxzide. Cytomel is a prescription drug containing the active ingredient of the secretions of the thyroid gland. Cytomel is used to replace the hormone in cases of thyroid underactivity (hypothyroidism). There is no indication from the medical records that J.P. was suffering from Euthyroid Sick Syndrome, that her thyroid was malfunctioning, that her metabolism was below normal, or that she required any hormonal replacement therapy. Respondent now admits that the test results indicate J.P. was not hypothyroid. Respondent claims that if he had actually believed that the patient had been hypothyroid, the dosage prescribed would have been approximately three times greater. He contends that he prescribed Cytomel to increase oxygen consumption. To justify his prescription of Cytomel, Respondent cited to two medical texts which he claims were in wide circulation in 1987. He says those texts support his prescription of Thyroid hormone to encourage weight reduction. Only one of the two cited references even marginally supports Respondent's contention. In any event, the more persuasive evidence established that, before the advent of thyroid testing (approximately twenty years ago), Cytomel was occasionally used in an attempt to encourage weight loss in patients. However, the prescription of Cytomel for weight loss in 1987 was below the standard of care expected of a reasonably prudent physician under similar conditions and circumstances. Respondent also attempted to justify his prescription of Cytomel by claiming that J.P. had advised him that she had previously been taking a thyroid supplement. Respondent contends that some patients who stop taking thyroid supplements have a "rebound effect where their metabolic rate decreases." During her testimony, J.P. denied having ever been on thyroid medication. The questionnaires filled out by J.P. during her first visit to the Institute do not reflect that she had ever taken thyroid medication in the past. Furthermore, there is no notation in the medical records indicating that J.P. had been on thyroid medication in the past. Respondent's testimony that J.P. advised him that she had previously been on thyroid supplements but was no longer taking them is not credited. Maxzide is a prescription drug, a diuretic appropriate for patients with high blood pressure. Maxzide should not be used as initial therapy for fluid retention. Maxzide can have deleterious effects on a patient and should not be used in a weight reduction program unless other reasons indicating its use are present. Respondent's medical records do not justify the prescription of Maxzide to J.P. There is no indication that the patient had high blood pressure. Furthermore, J.P. denied having any previous problems with fluid retention and no such problems are noted on the medical history that she filled out. While Respondent noted "++edema" as part of his examination on July 6, 1987, the notation is not consistent with Respondent's other notes of his exam or J.P.'s testimony regarding her condition. Moreover, J.P.'s weight loss of only three pounds between July 6 and July 30, 1987, indicates that she had no edema on July 6, 1987. During the July 6, 1987 visit, J.P. saw the Dietitian at the Institute of Specialized Medicine for about 20 minutes. The only thing the Dietitian did was to give J.P. a 1,000 calorie per day diet which she was told to follow. On July 30, 1987, J.P. returned to the Institute to see Respondent because she thought she was suffering nausea from the effects of the medications Cytomel and Maxzide. Respondent did not document in his notes any treatment for her nausea. J.P.'s health insurance claim form, submitted under Respondent's signature, reflects a diagnosis of "Euthyroidism" and a corresponding insurance code number of 244.9. Euthyroidism means normal thyroid function. An insurance company will not pay for a diagnosis of a normal condition. Insurance code number 244.9 indicates a condition of hypothyroidism or thyroid insufficiency which Patient J.P. did not have. The health insurance claim form submitted under Respondent's signature reflects overlapping billings for a hemogram and WBC, includes charges for an x- ray and spirometry of which there is no record, and contains a coded diagnosis of Hypothyroidism which conflicts with the results of the tests performed on J.P. and also conflicts with the Respondent's recorded diagnosis of Euthyroid Sick Syndrome. The insurance claim form also includes charges for a complete history and physical. After J.P. filed a complaint with Petitioner, Respondent attempted to justify this billing by telling Petitioner's investigator that he gave J.P. a complete physical examination and a "full workup". However, the evidence established that Respondent did not perform a complete physical examination of J.P. Respondent did not examine J.P.'s breasts, recommend a mammogram, perform or refer J.P. for a gynecological examination, examine her throat, eyes, ears, or abdomen; address her familial history of diabetes, kidney disease, hypertension or obesity; question her about her listed allergies, past anemia, abnormal stomach x-rays, or changing moles; consider her serious depressions and emotional problems; interpret her EKG; or address the basic causes of her obesity. Respondent contends that he did not handle the billing for the Institute and did not himself submit any diagnosis to the insurance carrier. In addition, he claims that he has subsequently learned that the Institute forged his name on some insurance documents. These contentions do not provide a defense to the charges in this case. It is clear that the billings to the insurance company were submitted under Respondent's signature. There is no evidence that the health claim form in this case was forged. The insurance company directed an inquiry to Respondent regarding his diagnosis of J.P. and Respondent did little or nothing to clarify the situation. Furthermore, when J.P. complained to Respondent about the treatment and costs, there is no indication that Respondent took any steps to investigate the situation or correct the problems. In the original billings submitted to J.P.'s insurance company, the Institute sought payment of $925 for the treatment and tests rendered to J.P., even though the patient had already paid $285 of that agreed upon fee. Respondent's records reflect that ultimately the insurance company paid $670 for the services rendered to J.P. Respondent's treatment of J.P. failed to meet that level of care, skill and treatment expected of a reasonably prudent similar physician under similar conditions and circumstances because Respondent inappropriately prescribed Cytomel and Maxzide to J.P. when the need for those drugs was not indicated by the results of the tests performed and because his final diagnosis of "Euthyroid Sick Syndrome" was incorrect and unsupported by any tests or physical findings. Respondent failed to keep written medical records justifying his course of treatment of J.P. because the records (1) do not justify his diagnosis of Euthyroid Sick Syndrome, (2) do not justify his prescription of Cytomel for the patient who had no evidence or history of hypothyroidism, (3) do not justify his prescription of Maxzide for the patient who had no fluid retention and who presented with normal findings other than her obesity, (4) do not justify the extensive and inappropriate tests performed, (5) do not appropriately reflect J.P.'s EKG, do not report on results of her x-ray (if it was made) or spirometry, and (6) do not indicate that Respondent either advised or treated J.P. on July 30, 1987, when she complained that the medications were making her nauseous. By prescribing medications for J.P. which were medically unnecessary, by filing conflicting diagnoses, by charging for a complete physical examination when one was not performed, and by signing off on duplicative billing on J.P.'s health insurance claim form, Respondent has made deceptive, untrue and/or fraudulent representations in the practice of medicine. Facts Regarding the Second Administrative Complaint Respondent quit working at the Institute in approximately November of 1987. As noted in the Preliminary Statement above, Respondent was indicted in October of 1988 in connection with his affiliation with the Institute of Specialized Medicine. While the circumstances and facts surrounding that indictment were not fully explained at the hearing in this cause, it appears that Respondent was indicted with several other individuals for allegedly participating in a scheme to defraud insurance companies by billing for tests and treatments that were unnecessary or unrelated to patients' true conditions. The indictment was pending through out the time of the incidents alleged in the Second Administrative Complaint. Respondent ultimately entered into a pretrial diversion program as a result of those charges. Sometime in 1988, Respondent became associated with the Immunology Allergy Institute, Inc., (the "Allergy Clinic"). Respondent claims that he was seeking to establish a private family practice and associated with the Allergy Clinic as part of an office sharing arrangement. The Allergy Clinic was owned by Frank Seedarnee and his ex-wife. Respondent contends that in return for office space, he was to serve as the "medical director" for the office and would be responsible for examining and diagnosing all medical problems and prescribing necessary controlled substances. Respondent contends that he never discussed cases with Seedarnee and did not rely on any recommendations from him because Seedarnee was not a doctor. Respondent further contends that Seedarnee's only function was to recommend diet changes, vitamins, or other products to help patients keep their homes free from allergies. However, the evidence presented in this case established that the Allergy Clinic did not always function in this manner, at least with respect to the patient S.L. and her son A.L. In March of 1989, S.L. was experiencing sinus problems and had a cough. In addition her son, age 10 months at the time, had been coughing for a few months. S.L. had previously been diagnosed as having allergies. S.L. was told of the Allergy Clinic by a friend who recommended "Dr. Seedarnee" as a allergist. She assumed from this conversation that Dr. Seedarnee was a medical doctor. She made an appointment at the Allergy Clinic for herself and her son for March 30, 1989. On March 30, 1989, S.L. arrived at the Allergy Clinic with her son as scheduled. She did not see a sign at the Allergy Clinic or any indication as to who the doctors were. During her initial visit, S.L. filled out an extensive health questionnaire form on herself and her son, A.L. S.L. and her son were escorted by a woman who appeared to be a nurse into an office. The nurse stated "Dr. Seedarnee will see you now." This nurse also mentioned that Respondent was not in because he was out on an emergency. The office contained a large microscope and a TV-like screen. A man in a white coat introduced himself as Dr. Seedarnee. Seedarnee reviewed S.L.'s health history forms and discussed with her the reasons why she wished to see an allergist. He told S.L. that he had developed an immune booster to help immune systems, that he would be taking blood from S.L. and A.L. so he could diagnose their problems, and that he had invented a microscope capable of evaluating the blood that same day. Seedarnee did not physically examine S.L. or A.L. or inquire if anyone else in the office had examined them. Seedarnee ordered a nurse to draw blood from S.L. and A.L. The blood was drawn as requested without question or surprise by the nurse. S.L. also provided a urine sample at the nurse's request. After the samples were obtained, S.L. and A.L. returned to Seedarnee's office where an enlarged picture of two slides of blood were shown to S.L. on the TV-like screen. Seedarnee took photographs of the blood slides and gave them to S.L. Those photographs were introduced as Petitioner's Exhibits 2 and 3. Seedarnee told S.L. that the white cell in the middle of her blood slide was an "allergy cell" and the other figures in the picture were iron- deficient cells. He also told her that she had a "low immune system." Seedarnee told S.L. that A.L.'s blood slide had clumped-together cells because he had a sluggish immune system. Seedarnee indicated that his conclusions were based on the blood pictures. He recommended that S.L. receive one of his "immune boosters" once a month for the next few months and one yearly thereafter. He also indicated that A.L. needed an immune booster and should get one yearly thereafter. Seedarnee specifically used the words "diagnosis" and "treatment" and stated that he was going to run further tests in order to make his final diagnosis. Seedarnee's statements to S.L. on March 30 constituted a diagnosis and the practice of medicine. The evidence presented at the hearing established that the diagnosis made by Seedarnee on March 30 could not validly be made on the basis of the blood slides. Moreover, the pictures of S.L.'s and A.L.'s blood appear normal. The "allergy cell" was simply a white blood cell and the clumping of A.L.'s blood was due to an artifact. S.L. did not see Respondent or any other person she thought was a physician on the March 30 visit. At this point, she still believed Seedarnee to be a physician. S.L. was told that she was required to pay 20% of the "total cost" for the treatment and her insurance company was to pay the remaining 80%. At the conclusion of the March 30, 1989 visit, S.L. wrote a check to the Allergy Clinic for $371.20. On April 4, 1989, S.L. returned without her son to the Allergy Clinic. She did not bring her son because her husband was skeptical that a proper diagnosis could be made from the blood slide picture. On April 4, S.L. was taken directly to Seedarnee's office where Seedarnee reviewed with her the results from her blood test and urinalysis, told her that she was allergic to dust and had a sensitivity to milk and yeast, and suggested to her that she needed his immune booster and B-12 injections. Seedarnee also reviewed with S.L. her son's test results. He told S.L. that A.L. had no allergy problems, but, because A.L. had a low immune system, he recommended an immune booster. During the April 4 visit, S.L. asked Seedarnee where he went to school. He told her India and England and said he had a Ph.D. and worked under a physician. Until this time, S.L. believed him to be a medical doctor. The office staff at the Allergy Clinic all referred to Seedarnee as "doctor." The medical records from the Allergy Clinic for S.L. and A.L. are captioned as follows: Patient: L, S. Physician: Seedarnee/Kunen and Patient: L, A. Physician: Seedarnee/Kunen After S.L. met with Seedarnee in his office on April 4, she was given two injections by a nurse. The medical records indicate the injections were (1) B-12 and Folic Acid and (2) "URT." There was no doctor's order for these injections. At the hearing, neither Seedarnee nor Respondent could, or would, identify "URT." Seedarnee's interpretation of tests, diagnosis of allergies and development of a treatment plan for S.L. on April 4 by ordering two injections for her which were given before S.L. ever saw a physician constitute the practice of medicine. After the injections, the nurse took S.L. to an examining room. Shortly thereafter, Respondent entered and introduced himself as Dr. Kunen. He asked S.L. what Dr. Seedarnee had recommended. Thus, it is clear that Respondent was aware that the patient had already seen Seedarnee and that he knew Seedarnee had at least developed some recommendations for her treatment. It is not clear whether Respondent knew that S.L. had already been given two injections. S.L. told Respondent that Seedarnee had diagnosed her allergies and told her that she needed B-complex, an immune booster and yearly immune boosters thereafter. Respondent's only response was something to the effect of "good, fine." He said nothing more about her treatment. S.L. was with Respondent for only about five minutes. Respondent briefly examined her. He listened to her heart and lungs and checked the glands in her neck. She was fully clothed during the exam. Respondent did not review with S.L. any of the items on her health form questionnaire. He did not inquire as to any of the items noted on the form such as the antibiotics she was taking, her sensitivity to perfume, her symptoms of fatigue and/or lethargy, her complaints of pressure in her head, muscle weakness and heart palpitations, or her notations of mucus in her stool or problems with urinary frequency. Her blood pressure was never taken. She was not asked about her history of rheumatic fever. Respondent did not discuss with S.L. her allergy symptoms, what she was allergic to, her test results or why she needed an immune booster and B-complex. Respondent did not ask about A.L. and S.L. did not tell Respondent that she wanted A.L. to be tested. Respondent's medical records regarding S.L. contain one undated page of notes indicating that Respondent requested allergy testing for S.L. and that S.L. wanted her son to be tested. S.L. denies telling Respondent that she wanted her son tested. Indeed, the evidence established that S.L. and her son had already been tested the week before by Seedarnee and that S.L. told Respondent of Seedarnee's diagnosis and treatment plan. Respondent's medical records for A.L. contain the boy's birth date rather than a current date. The notation in Respondent's handwriting states "patient here for testing, will return next week." Respondent claims that he saw the son otherwise he would not have filled out this medical note on the child. S.L. claims that her son was not with her on the April 4, 1989 visit and, therefore, Respondent never saw him. S.L.'s testimony is credited. In sum, it is concluded that Respondent's notes in the medical records for S.L. and A.L. do not accurately reflect the events that occurred and were an apparent attempt to justify after the fact Seedarnee's actions and treatment. It is also concluded that Respondent never saw A.L. as a patient and that Respondent "recommended" a treatment plan for S.L. which had already been carried out. At the conclusion of her April 4 visit, S.L. wrote a check to the Allergy Clinic for $162 to cover the cost of her visit and the purchase of a product which Seedarnee had recommended and supposedly developed called Allergex. This product was supposed to be put in the laundry and used to wipe down tables, etc. to eliminate household dust. After her visit on April 4, S.L.'s suspicions were aroused. She inquired of authorities about the licensure of the Allergy Clinic (it had none) and of Respondent and Seedarnee (he had no license). Following the April 4 visit to the Allergy Clinic, S.L. went to see a Board certified allergist who questioned the treatment she received at the Institute. The allergist advised S.L. that she was allergic to items other than those Seedarnee had claimed. On May 23, 1989, S.L. wrote to Respondent elaborating on what Seedarnee had done, complaining that she was mislead to believe that Seedarnee was a physician and that Respondent had done nothing but rubber stamp Seedarnee's findings and treatment. Respondent was on notice at least from this time that Seedarnee was practicing medicine without a license. S.L. filed a complaint with the Department of Professional Regulation on June 9, 1989. During the ensuing investigation, Respondent told the Department's investigator on January 23, 1990 that Seedarnee only worked under his supervision and that Seedarnee never made recommendations to patients. These statements were made even though S.L. had told Respondent during her April 4th visit and in her letter of May 23, 1989 about Seedarnee's actions. At the hearing, Respondent disclaimed any knowledge of the "diagnosis" made by Seedarnee and/or the administration of injections to S.L. pursuant to Seedarnee's instructions. He suggests that if any such actions took place, they were contrary to the specific understandings that he had as to the procedures of the Allergy Clinic. Even if Respondent thought that he was supposed to make all diagnoses and develop all treatment plans at the Clinic, it is clear that these procedures were not followed with respect to S.L. and A.L. Moreover, it is clear that Respondent was aware of Seedarnee's activities by at least April 4, 1989. It is the physician's responsibility to formulate a treatment plan and treat a patient. Professional responsibility should be delegated only to individuals who have training and degrees to perform those tasks and non-medical personnel should not be allowed to assume functions that are to be performed by physicians. It is the physician's obligation, if he knows an unlicensed, untrained individual with whom he is working is following practices which constitute the practice of medicine, to stop that activity if possible and report it to the Department of Professional Regulation. Respondent was aware that Seedarnee was not a licensed medical doctor and was not qualified to make a diagnosis or to treat patients. Respondent never reported Seedarnee's unlicensed activity to any authority. Respondent's actions on April 4 with respect to S.L. constitute an acquiescence to Seedarnee's recommendations and treatment. Respondent contends that even if S.L. was administered the two injections discussed above, there is no evidence that those injections were controlled substances. Thus, Respondent argues there is no evidence that Seedarnee engaged in the unauthorized practice of medicine. This contention is rejected. As noted above, neither Seedarnee nor Respondent could explain what the immune booster or "URT" was. They both suggest that anything not prescribed should be considered part of a therapy program not medicine. However, the administration of an injection, particularly if not indicated by medical testing, always runs the risk of causing a reaction in a patient. The Respondent's interpretation of the practice of medicine is unduly narrow and is rejected. As discussed above, it is clear that the Clinic operations led at least one person, S.L., to believe that Seedarnee was a physician and it is clear that, with respect to at least this patient, Seedarnee interpreted test results, developed a diagnosis and directed a treatment plan. Moreover, it is clear that Respondent was made aware of these activities by at least April 4, 1989 and that he took no steps to halt or correct the situation and, indeed, that he acquiesced to it. The Allergy Clinic has been owned by Seedarnee for approximately 12 years. Seedarnee refers to the entity as a "research institute" rather than a laboratory or medical clinic. Seedarnee formulated the internal rules and procedures for the Allergy Clinic. Seedarnee's testimony on these procedures and other issues at the hearing was evasive, ambiguous and inconsistent. Seedarnee recognized that he needed a licensed physician to "approve prescribed substances and supervise techniques." However, it is clear that, at least during the time in question, the Allergy Clinic was operated in a manner that permitted him to diagnose and order vitamins and booster injections. Respondent was Medical Director of the Allergy Clinic from 1988 until at least mid-1990. Other than the matters raised in the Second Administrative Complaint and discussed above, no evidence was presented as to any other situations where Respondent acquiesced in the practice of medicine by Seedarnee. Respondent's testimony regarding his relationship with the Allergy Clinic was vague, conveniently selective and sometimes inconsistent. Respondent admits that he was hired to be Medical Director and was given office space. However, he claims that he had no obligation to Seedarnee, was not salaried (although he admits he was "loaned" money by Seedarnee, only some of which he paid back) and that he had no duties as Medical Director except "to be a good physician and see patients and to build a practice." He says he never had the need to discuss a case from a medical standpoint with Seedarnee or with other physicians there. He also says there were no staff meetings. Seedarnee's version of the relationship was quite different. Seedarnee testified that Respondent was paid a salary for his duties at the Allergy Clinic. At one point, Seedarnee claimed that the Medical Director made decisions for testing of patients on the basis of the patient's medical questionnaire. Because the allegations of the Second Administrative Complaint are limited to the treatment rendered to S.L. and her son, it is not necessary to fully explore and/or resolve the nature of Respondent's affiliation with the Allergy Clinic. That evidence established that, at least with respect to S.L. and her son, Respondent's role differed greatly from his description of the Clinic's operations. Respondent failed to report what was clearly the unauthorized practice of medicine by Seedarnee. Furthermore, by acquiescing in Seedarnee's diagnosis and treatment, Respondent unlawfully delegated professional responsibility to a person he knew to be unlicensed. Finally, Respondent's participation in the treatment of S.L. and her son constitutes the employment of a trick or scheme in the practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding Respondent guilty of violating Sections 458.331(1)(k), (m) and (t), Florida Statutes as alleged in the First Administrative Complaint and finding Respondent guilty of violating Sections 458.331(e), (k) and (w), Florida Statutes as alleged in the Second Administrative Complaint. As punishment therefore, Respondent should be (1) reprimanded, (2) fined $15,000, (3) suspended from the practice of medicine for five years, two years of which should be suspended if Respondent successfully completes Board approved continuing medical education courses, and (4) thereafter, Respondent should be placed on probation for a period of three years, the terms and conditions of which should be set by the Board of Medicine. It is recommended that one condition of probation should be a limitation on Respondent's establishment or participation in a private office practice. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of September, 1992. J. STEPHEN MENTON 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 16th day of September, 1992. APPENDIX Case Numbers 89-3723 and 91-3864 Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. The Petitioner's Submittal with Respect to the October 3, 1990 Hearing Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 1. 2. Adopted in substance in Findings of Fact 6. 3. Adopted in substance in Findings of Fact 4. 4. Adopted and 8. in substance in Findings of Fact 7 5. Adopted in substance in Findings of Fact 9. 6. Adopted 10. in substance in Findings of Fact 7. Adopted 14. in substance in Findings of Fact The first sentence is adopted in substance in Findings of Fact 15. The second sentence is subordinate to Findings of Fact 12. Subordinate to Findings of Fact 20. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 23. Rejected as unnecessary. Subordinate to Findings of Fact 26. Adopted in substance in Findings of Fact 26. Adopted in substance in Findings of Fact 29. Adopted in substance in Findings of Fact 30. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 25. Adopted in substance in Findings of Fact 31. The Petitioner's Supplemental Proposals regarding the First Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Subordinate to Findings of Fact 27. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 21. Subordinate to Findings of Fact 20 and 21. Adopted in substance in Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 11. The Petitioner's Proposed Findings regarding the Second Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 36 and 38. Adopted in substance in Findings of Fact 37. Adopted in substance in Findings of Fact 38. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 40. Adopted in substance in Findings of Fact 41. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 43. Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 45. Adopted in substance in Findings of Fact 46. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 50. Adopted in substance in Findings of Fact 52. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 53. Adopted in substance in Findings of Fact 56. Adopted in substance in Findings of Fact 54. Adopted in substance in Findings of Fact 55. Adopted in substance in Findings of Fact 57. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 58. Adopted in substance in Findings of Fact 59. Adopted in substance in Findings of Fact 59. Adopted in substance in Findings of Fact 59 and 61. Adopted in substance in Findings of Fact 62. Adopted in substance in Findings of Fact 63. Subordinate to Findings of Fact 64. Subordinate to Findings of Fact 66 and 67. Adopted in substance in Findings of Fact 68. Adopted in substance in Findings of Fact 69. Adopted in substance in Findings of Fact 69. Rejected as unnecessary. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 57. Adopted in substance in Findings of Fact 76. Subordinate to Findings of Fact 74. Adopted in substance in Findings of Fact 71. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 72. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 76. Subordinate to Findings of Fact 77. Subordinate to Findings of Fact 76 and 77. Subordinate to Findings of Fact 79 and 80. The Respondent's Proposed Findings of Fact regarding the Second Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. The first and the third sentences are adopted in substance in Findings of Fact 1. The second sentence is subordinate to Findings of Fact 3. Subordinate to Findings of Fact 33-35, 70, 75 and 79-80. Adopted in pertinent part in Findings of Fact 34. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 38. 6.-10. Subordinate to Findings of Fact 35, 70, 75, 77, 79 and 80. Rejected as unnecessary and subordinate to Findings of Fact 40, 58 and 59. Rejected as unnecessary and subordinate to Findings of Fact 58 and 59. Subordinate to Findings of Fact 59. Adopted in substance in Findings of Fact 36. Adopted in substance in Findings of Fact 37. Adopted in pertinent part in Findings of Fact 37. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 40. The first sentence is adopted in substance in Findings of Fact 40. The second sentence is rejected as constituting argument. Adopted in substance in Findings of Fact 41 Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 44. Adopted in substance in Findings of Fact 45. Adopted in substance in Findings of Fact 42. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 49. Adopted in substance in Findings of Fact 46 and 47. 28.-29. Rejected as unnecessary and subordinate to Findings of Fact 70. Adopted in substance in Findings of Fact 50. Rejected as unnecessary. Adopted in substance in Findings of Fact 52 and 53. Adopted in substance in Findings of Fact 54. The first two sentences are adopted in substance in Findings of Fact 55 and 57. The remainder is subordinate to Findings of Fact 70, 79 and 80. Adopted in substance in Findings of Fact 35, 70, 75, 79 and 80. 36.-37. Subordinate to Findings of Fact 70, 75, 77, 79 and 80. Subordinate to Findings of Fact 70. Rejected as unnecessary. Subordinate to Findings of Fact 76, 77 and 78. Subordinate to Findings of Fact 75. Subordinate to Findings of Fact 75, 79 and 80. Rejected as vague, ambiguous and unnecessary. This subject matter is addressed in Findings of Fact 56. Rejected as unnecessary and subordinate to Findings of Fact 64. Subordinate to Findings of Fact 70. Subordinate to Findings of Fact 70. Rejected as unnecessary. This subject matter is addressed in Findings of Fact 34 and 77. Subordinate to Findings of Fact 57 and 70. Rejected as unnecessary. The evidence established that Respondent continued working at the Allergy Clinic for a year or more after S.L. alerted him to Seedarnee's actions. Subordinate to Findings of Fact 76. Subordinate to Findings of Fact 76. The Respondent's Proposed Findings of Fact regarding the First Administrative Complaint Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Rejected as unnecessary. Adopted in substance in Findings of Fact 1. Addressed in the Preliminary Statement. Addressed in the Preliminary Statement. Addressed in the Preliminary Statement. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 4. Subordinate to Findings of Fact 6. Adopted in substance in Findings of Fact 7 and 8. Subordinate to Findings of Fact 9 and 10. Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 18 and 19. Adopted in substance in Findings of Fact 14. Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 18 and 19. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Rejected as unnecessary and as constituting argument rather than a finding of fact. Subordinate to Findings of Fact 12. Subordinate to Findings of Fact 12. Adopted in substance in Findings of Fact 23. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 27 and 28. Rejected as unnecessary and subordinate to Findings of Fact 27. Subordinate to Findings of Fact 27. Subordinate to Findings of Fact 27. Rejected as constituting argument rather than a finding of fact. Addressed in the Preliminary Statement. Rejected as constituting argument. The issues raised by Respondent go to the weight of the evidence and not to its admissibility. Subordinate to Findings of Fact 12. Rejected as unnecessary. The issues raised by Respondent regarding Dr. Lindbergh's qualifications go to the weight to be given to his testimony rather than its admissibility. Rejected as constituting argument. See #31 above. Rejected as speculative, constituting argument rather than a finding of fact and unnecessary. Subordinate to Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. Addressed in Findings of Fact 12. Rejected as unnecessary. Rejected as unnecessary. COPIES FURNISHED: Mary B. Radkins, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Neil F. Garfield, Esquire Suite 333 3500 North State Road 7 Lauderdale Lakes, Florida 33319 Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
