The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.
Findings Of Fact Respondent is Ernesto C. Jaranilla, M.D., a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0065787. Respondent's last known address is 633 Baker Street, Rochester Hills, Michigan 48307. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Chapter 458, Florida Statutes. The State of Michigan Department of Commerce, Board of Medicine, is the licensing authority for the State of Michigan. On or about May 9, 1994, the State of Michigan Board of Medicine issued a final order requiring Respondent to pay a fine of $1,000.00 within 60 days, placed Respondent's license on probation and required him to complete 100 hours of approved continuing education credits. As a result of the action of the Michigan Board of Medicine, Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. Respondent did not notify the Florida Board of Medicine within 30 days of the action taken by the State of Michigan against his license to practice medicine. Instead, Petitioner's personnel learned of Respondent's transgression by way of a report from the Federation of State Medical Boards dated April 19, 1996. The report indicated that the Michigan disciplinary action had been terminated by order dated January 26, 1996.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered imposing discipline upon Respondent's license in this cases as follows: An administrative fine of $750 for each Count of the Administrative Complaint for a total of $1500. Suspension of Respondent's license to practice medicine in the State of Florida with such suspension to be terminated upon Respondent's payment of the administrative fine, and successful compliance with such other terms and conditions as may be prescribed by the Florida Board of Medicine, inclusive of Respondent's personal appearance before the Florida Board of medicine for presentment of proof of his reinstatement to practice medicine in the State of Michigan and to certify his completion of any Board prescribed course for practitioners who have failed to comply with reporting or other obligations to the Board. DONE AND ENTERED this 8th day of January, 1997, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1997. COPIES FURNISHED: Kevin w. Crews, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, FL 32317-4229 E. Jaranillia, M.D. 301 State Street Harbor Beach, MI 48441 Marm Harris, Executive Director Agency for Health Care Administration 1940 North Monroe Street Tallahassee, FL 32399-0770 Jerome Hoffman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32309 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308
Findings Of Fact Petitioner, Omerea E. Herring, is a registered nurse with a degree in nursing from LaGrange College in Georgia which she attended between 1976 and 1978. No limitation was placed on her degree nor on her license as a registered nurse because of her handicap. Petitioner is handicapped visually. She was born with toxoplasmosis, a condition which leaves her nearsighted. This congenital condition has stayed the same over the years and will not likely change in the future. During Petitioner's education, she used regular textbooks, not Braille. She continued college for a year after receiving her nursing degree taking courses in liberal arts, and then was hired as an R.N. in September, 1979 by West Georgia Medical Center. Petitioner worked as a floating nurse, filling in and doing routine care and other general duties until she voluntarily left employment to move with her husband to another area in Georgia where she again secured employment as a registered nurse. Her duties entailed primarily sterilizing instruments and she remained in that job for approximately four months until her husband completed his education and they moved to Gainesville, Florida. When Petitioner applied for her nursing jobs, she informed her prospective employers of her condition and because of her handicap, there were some limits placed on her duties. For example, she requested not to be assigned to a heavy medication area and in each case, the hospital accommodated her. She asked for these limitation so as to not run the risk of inadvertently placing patients in danger. When Petitioner came to Gainesville, she was interviewed at Shands and at the time of her application, advised the interviewer she was physically handicapped and noted it on her application for employment. She was, nonetheless, selected for a further interview with the head nurse of the newborn nursery, Mrs. Wyman. Subsequently, as a result of this second interview, she was hired as an RN I in the newborn nursery starting in July, 1980. Petitioner worked on several shifts, primarily the seven am to three pm shift, but for three weeks during October, 1980, she worked the three to eleven pm shift. While on duty, her primary duties were to admit and assess patients, describe vital signs and discharges, and bathe and feed babies. She was also required to instruct new mothers on how to care for their children and did substantial charting. During her time in the nursery she did not give injections or administer medications because of her vision problems. She was unable to read the small print on the medicine bottles. Her supervisor knew this and agreed to the limitation and made alternate arrangements for the administration of medications. There was ample staff to do this consisting of between six and eight people on the shift of whom four or five were RN's and the others LPN's, Clerks and Aides. In November, 1980, she went on maternity leave. When she was originally hired, she was five months pregnant and it was obvious she would have to take maternity leave within a short time. Before leaving, she orally got permission from her supervisor. Her leave was to be for three to six months and when she left work, she was given no indication she would not be allowed to come back. It was only after the birth of her child, when she went to the hospital to fill out certain insurance forms for the hospital group insurance policy, that she was told by Mr. Bruce Malsbury, an official in the hospital personnel department, that there had been some difficulties with her work in the nursery and she would not be re-placed at Shands Hospital when she was ready to return off maternity leave. When she asked Mr. Malsbury about the availability of alternate employment with the hospital, since it was apparent to her that the decision not to bring her back was related to her visual handicap, he said there was no alternative placement available. To the day of the hearing, she has not received any official notice in writing of her termination. However, in January, 1981, she submitted a letter of resignation to Mr. Malsbury based on her need to be at home with her new child. Petitioner claims however, that this letter was suggested to her by Mr. Malsbury, after he advised her that she would not be rehired, on the basis that if she could show that she resigned, it would be easier for her to secure employment elsewhere. No evidence to contradict this was presented by Respondent. Mr. Malsbury did not testify and the custodian of the records was unfamiliar with the background relating to the letter in question. When it became obvious that Petitioner would not be rehired at Shands, she applied at the Alachua General Hospital in early 1981 for employment as an RN. Though she interviewed, she was turned down on the basis, she was told, of a poor recommendation from Shands. Respondent contends that Petitioner was terminated from employment as a part-time temporary employee on November 12, 1980, involuntarily, because of derogatory comments contained in her personnel record. On the termination report, signed by Mrs. Wyman on January 12, 1981, there was a recommendation that Petitioner not be rehired in any job. The termination was based on two incidents reflected in incident reports both dated October 27, 1980, thirty minutes apart. In each case, the shift supervisor, Ms. Hitchcock, wrote the Petitioner up because of minor injuries to infants which, it was claimed, were resulting from the improper handling of the infants by Petitioner. Petitioner did not take any action to contest the decision of the Respondent at the time. When Mr. Malsbury discussed the situation with Petitioner at the time she came in to file the insurance forms, he merely indicated there had been a complaint filed by Ms. Hitchcock, but gave no specifics. This was the only notice she was given of any complaints about her work and it related only to the one shift in October, 1980. Her license as a registered nurse is currently in effect, but during the period June, 1981 through June, 1984, her license was suspended for a period of time. The complaints submitted by Ms. Hitchcock to the Board of Nursing were identical to those described above including allegations that she was too rough with the babies, bumped into things with them, and was improper in her bottle feeding. Though she has applied for employment at other hospitals besides Shands and Alachua General in the general area where she lives, she has not been hired. She is now employed in industry as an industrial nurse doing primary care for employees. In addition to the part time job in industry, Petitioner also worked for the Sunland system as a cottage nurse during the period August to December, 1981. She left there because of a second pregnancy and decided to stay home and raise her children. Her three children are now ages 5, 3 and 8 months. She has never been fired from any employment other than with Shands. Petitioner contends there are many RN positions available at Shands where her handicap would not interfere with her duties and she is convinced she could satisfactorily fill any of them. Lists of vacant positions at Shands in the nursing career field for the period February 17, 1984 through September 10, 1984, reveal numerous staff nurse positions available in various departments throughout the hospital. However, Petitioner has failed to show that she is capable of performing duties safely in any of the numerous Staff Nurse I positions. Her unsupported allegations that she can perform many nursing positions which do not require good eyesight is insufficient to establish that she is qualified for any of the listed positions. Notwithstanding, her license is currently in good standing and current and she has completed all educational and other requirements necessary to keep her license current. In 1984, Petitioner again applied for employment with Respondent but was not given an interview. She was advised in writing that her application would be kept on file but that there was no job available for her at that time. A phone call to Mr. Malsbury revealed she was not hired because of her termination in 1980. It is because of this 1984 failure of Shands to hire her that Petitioner filed the complaint with the CHR. Shand's Policy C, as outlined in Memorandum PM-218, dated January 5, 1984 states that former employees terminated because of unsatisfactory performance, job abandonment, or misconduct, will not be considered for rehire. Since Petitioner had been terminated in 1980 because of unsatisfactory performance, consistent with that policy she was not eligible for rehire in 1984. Notwithstanding the fact that Ms. Hitchcock and Mrs. Wyman, along with several of the other nurses with whom Petitioner worked considered her performance to be unsatisfactory, others, all of whom are either RN's or LPN's who worked with her at various times when she was a Staff Nurse I in the newborn nursery, and who had the opportunity to observe her on a repeated basis, felt certain that she did her job in a satisfactory fashion. Petitioner made it known what duties she could not do and in all cases, when confronted with a situation where she felt it was improper for her to attempt to render patient care, she got assistance from someone else to do that particular job. None of them ever observed any deficiencies in Petitioner's nursing performance or her educational background which resulted in poor patient care. No one ever saw her injure any child under her care either intentionally or negligently. Most of these witnesses, who have been active in nursery nursing for a period of time, have concluded that babies do, in fact, scratch themselves due to long fingernails and there is no evidence that Petitioner was directly responsible for the injury to any patient under her care. It is also the opinion of one of her associates who complained about Petitioner, that she tended to over-react. Within the nursing community at Shands in the nursery, there was some difference of opinion as to the appropriateness of Petitioner's discharge in the first place. While it is obvious that Petitioner may not have been responsible for substandard care (though her license was suspended for a period) and her discharge may have been more the result of internal ward factionalism rather than ineptitude, there is no evidence that it was the result of unlawful discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Omerea Herring's Petition for Relief from Unlawful Employment Practice be denied. RECOMMENDED in Tallahassee, Florida this 29th day of April, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1986. COPIES FURNISHED: Phil S. Whiteka, Esquire 537-3 N.E. 1st Street Gainesville, Florida 32601 Thomas M. Gonzales, Esquire P. O. Box 639 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
The Issue The issue in the case is whether the application of Petitioner, Cody Pileski, for a Florida Educator's Certificate should be denied for the reasons set forth in the Notice of Reasons issued on July 27, 2004, by Respondent, Jim Horne, acting in his capacity as the Commissioner of Education.
Findings Of Fact Petitioner graduated from the University of Wisconsin in 1997. In 1999, he received a bachelor of science degree in education from Kennesaw State University in Atlanta. In September 1999, Petitioner went to work as an English teacher at Chattahoochee High School in Alpharetta, Georgia. In addition to his teaching duties, Petitioner became involved as a faculty advisor in a variety of extracurricular activities at the school, including acting as visual coordinator for the marching band and sponsor of the "Miss CHS" beauty pageant. By all accounts, Petitioner was a popular and hard- working teacher. He arrived at school early, around 6:45 a.m., and commonly stayed until 7 or 8 p.m. His classroom was a popular gathering place for students before classes, during lunch periods, and after school. The classroom was in a trailer that Petitioner shared with another teacher. Students at the school widely believed that Petitioner was gay, though Petitioner testified that he is not. During the 2001-2002 school year, Petitioner taught English to C.T., a male student in the 11th grade. Petitioner allowed C.T. to "hang out" in his classroom after lunch. They would discuss matters of concern to C.T. Petitioner testified that C.T. openly admitted to him that he smoked and sold marijuana. Petitioner stated that many of their conversations revolved around the subject of drug use, with Petitioner attempting to convince C.T. to cease his illicit activities. C.T.'s allegations involved a conversation that he had with Petitioner in early April 2002. C.T. testified that he told Petitioner that he needed to get a job to earn some money. Petitioner told C.T. that he had an opportunity for C.T. to make some quick money. Petitioner would pay C.T. to meet him at some location away from school and allow Petitioner to photograph him. Petitioner would pay C.T. $30.00 for "regular pictures," and $50.00 if C.T. would do "something more risqué," which Petitioner explained meant "get naked." Petitioner told C.T. that he couldn't tell anyone else about this offer, because Petitioner would get in trouble. C.T. testified that he tried to treat Petitioner's offer as a joke, but that "it did kind of weird [sic] me out that he had asked me to get naked." C.T. told Petitioner that he did not want to do it and that was the end of the matter. C.T. told a few of his friends about what had happened, but did not report Petitioner to the school's administration. In late May 2002, a teacher overheard C.T. talking about the matter to his friends. After fully discussing the situation with C.T., the teacher reported the matter to the school principal, who in turn reported the matter to the Fulton County Board of Education, which commenced an investigation. Petitioner denied offering C.T. money to pose for photographs. Petitioner admitted that he had a conversation with C.T. regarding posing for photographs, but that his purpose was to "shock" C.T. into understanding the immorality of selling drugs for money. They were discussing C.T.'s selling of marijuana. C.T. contended that it was "easy money" and, as such, was preferable to working at a legitimate job. Petitioner noticed the photograph of a lingerie model pasted to C.T.'s notebook and asked C.T. how much he made from selling a bag of marijuana. C.T. said, "fifty bucks." Petitioner asked C.T. what he would do if someone offered him the same amount to pose for photographs "in your underwear or worse." C.T. said he would take the money. Petitioner then realized his "shock" tactic was not working, and he dropped the subject of selling drugs in his conversations with C.T. Petitioner asserted that C.T. told his story to school authorities in revenge for Petitioner's embarrassing C.T. by calling him a "druggie" in front of his class. Petitioner based this assertion on the fact that the conversation in question occurred in early April 2002, but that C.T. did not make his allegations until mid-May 2002, only a few days after Petitioner called C.T. a "druggie." P.C. was a junior at Chattahoochee High School during the 2001-2002 school year. He did not take classes from Petitioner, but as the drum major for the school's marching band, P.C. had frequent contact with Petitioner. P.C. also worked on the school newspaper. P.C. testified that on Saturday, March 16, 2002, he went to the school to drop off his drum major application for the next school year. While there, he stopped by Petitioner's trailer, where Petitioner and some members of the band's color guard were working on preparations for the school beauty pageant. P.C. talked with Petitioner and the color guard members for a few minutes, then left to go to the school newspaper's office. Petitioner walked out of the trailer with P.C. and told him that he might have a job opportunity for him. Petitioner asked P.C. how old he was. P.C. told Petitioner that he was 16 years old, and Petitioner said that was too young. P.C. was interested in a job. He told Petitioner that he would be 17 years old in June and asked what the job entailed. Petitioner began by telling P.C. that he could not tell his parents. Petitioner told P.C. that he was starting a photography business with a grant he had recently obtained and that he was looking for models. A potential model had to be "very comfortable with [his] body" because some of the photographs would be "very abstract." P.C. asked whether "abstract" meant "nude." Petitioner answered in the affirmative. P.C. told Petitioner that his suggestion was disgusting and probably illegal. Petitioner replied that he had checked into the legalities and that what he proposed was legal in Georgia. P.C. again declined the offer. Petitioner said that he thought P.C. might like to make $75.00 "for a quick 15 minutes of just standing there." P.C. again said, "no" and walked away from Petitioner. Thereafter, P.C. avoided interaction with Petitioner when possible. P.C. told friends about the conversation, but was embarrassed to bring the matter to school authorities. By late May 2002, C.T.'s allegations were under investigation by the Fulton County Board of Education, but were still being treated as confidential. Nonetheless, rumors were circulating around the school regarding allegations against Petitioner. P.C. heard the rumors, though he had no idea who the accuser was. On May 28, 2002, P.C. went to the band room to pick up a costume and ran into Frederick Chang, the band director. They spoke about Petitioner. Mr. Chang told P.C. that a student had made "bogus charges" against Petitioner, but declined to discuss the details. P.C. testified that he had "a feeling," and asked Mr. Chang whether the accusations had anything to do with photography. Mr. Chang said they did, and P.C. told Mr. Chang about his incident with Petitioner in March. Mr. Chang cautioned P.C. that he needed to be sure that Petitioner meant to proposition him before he jeopardized Petitioner's career with his allegations. Mr. Chang had spent a lot of time with P.C. and had noted that P.C. did not always "get it" when someone was joking with him. Mr. Chang was not convinced that Petitioner had done anything inappropriate. Petitioner testified that he was joking with P.C. and denied offering him money in any serious way. Petitioner testified that he and some color guard members were working on pageant preparations in his classroom on that Saturday when P.C. walked in wearing pajama pants, in violation of the school dress code. The girls in the room began making fun of P.C., who was there to ask Petitioner for his key to the newspaper room. Petitioner gave P.C. the key, and P.C. left the room. Petitioner and the girls in the color guard continued to joke about P.C. The photographers for the beauty pageant were coming in, and the girls joked that they could get P.C. to pose for a picture in his pajamas. In the midst of all this joking, Petitioner decided to take some of the pageant cash they had been counting to his car and lock it up there for safe keeping. As he left the classroom, Petitioner ran into P.C., who was coming out of the newspaper office. Petitioner testified that he continued the joke that the girls had started. He asked P.C. if he wanted to do some modeling. P.C. was confused and asked Petitioner what he meant. Petitioner asked if he would consider modeling in his underwear or pajamas. P.C. said that he wasn't "into that," but also asked what was in it for him. Petitioner was holding the pageant money in his hand and told P.C. he could make "50 bucks." P.C. said, "no, that's all right," and that was the end of the conversation. W.H. was a freshman at Chattahoochee High School during the 2001-2002 school year. W.H. did not have a class with Petitioner, but he knew Petitioner because he played trumpet in the marching band. W.H. would "hang out" in Petitioner's classroom early in the morning, because it "was a good social place," and Petitioner was "easy to talk to." W.H. testified that he was sitting in Petitioner's classroom very early one morning in November or December 2001. No other students had arrived. Petitioner casually started talking about a photography or modeling business that he had with a friend. Petitioner asked W.H. if he would be interested in modeling in his underwear at Petitioner's apartment for $50.00 per session. Petitioner also asked W.H. not to tell anyone else about his business. W.H. did not respond, and the matter was dropped. W.H. did not think the incident merited reporting until a mutual friend told him about P.C.'s encounter with Petitioner. The friend was unsure of what to do, because she believed that Petitioner was a good teacher and a friend, but P.C. was her best friend and she wanted to support him. At that point, W.H. told the friend that Petitioner had approached him in a similar manner. W.H. testified that he knew P.C. because they were both in the band, but that they were not friends. Shortly after the conversation with his friend, W.H. was contacted by and gave a statement to the Fulton County Board of Education's investigator. W.H. was not sure who told the investigator about him. Petitioner testified that he was attempting to help another teacher start a "Mr. CHS" pageant, a male counterpart to the very popular female beauty pageant that Petitioner sponsored. The female pageant was run by a professional modeling agency, with professional photographers and a "Miss Photogenic" prize in each of various judging categories. Petitioner proposed that the male pageant would look more legitimate if it, too, had a photographic aspect. He further proposed that more boys would participate in the pageant if cash prizes were offered for the best photos in various categories. Petitioner testified that W.H. must have misconstrued his attempt to get W.H. to participate in the contest and possibly win a $50.00 cash prize for his photograph. Petitioner denied saying or implying anything inappropriate in his conversations with W.H. Petitioner resigned his position at Chattahoochee High School during the summer of 2002. The Fulton County Board of Education's investigator completed his investigation of the allegations and made his report. The Board found probable cause to believe that Petitioner asked the students to pose for sexually explicit photographs. On December 18, 2002, Petitioner submitted a Voluntary Surrender of his Georgia teaching certificate. On January 8, 2003, the GPSC entered a Final Order adopting the findings of fact and conclusions of law in the Voluntary Surrender, and revoking Petitioner's Georgia teaching certificate. The findings of fact in the Voluntary Surrender expressly stated that Petitioner denied the allegations made against him. Under the terms of the Voluntary Surrender, Petitioner will be eligible to apply for a new certificate or reinstatement on January 9, 2006, or three years after the effective date of the Voluntary Surrender. Petitioner testified that once the allegations became public, he was embarrassed and humiliated. He felt that he had no choice but to resign his teaching position at Chattahoochee High School. Petitioner became physically ill during the investigation. His physician prescribed an anti-depressant, and Petitioner accidentally took an overdose. Petitioner was represented by counsel in his dealings with the GPSC, but, in retrospect, did not believe that the lawyer sufficiently explained the full implications of a voluntary surrender of his teaching certificate. Petitioner contends that his mental state at that time did not allow him to make clear decisions about his career. Petitioner introduced the testimony of several character witnesses, fellow teachers, and administrators who spoke highly of his dedication to the teaching profession and his abilities in the classroom. These witnesses disbelieved the accusations, though they had no personal knowledge of the events in question. Even his accusers hesitated to lodge complaints against Petitioner because of their overall respect and affection for him. Nothing in the record suggests there is any question as to Petitioner's skill and competence as a teacher. Nonetheless, the weight of the evidence leads to a finding that Petitioner approached three male students3/ and asked if he could take photographs of them in a state of partial or total nudity and that he offered them money to pose for the photographs. None of the three boys was a particular friend of either of the others, making it unlikely that they conspired to invent their remarkably similar stories. Further, none of the three boys appeared eager to volunteer his story to the school authorities or to press a case against Petitioner. All three spoke highly of Petitioner, save for the "weird" experience of being propositioned by him. Petitioner's version of these events was, at best, unconvincing. In the case of C.T., Petitioner claimed to be attempting a form of "shock" therapy. In the case of P.C., Petitioner claimed he was joking. In the case of W.H., Petitioner claimed that the boy simply misunderstood Petitioner's efforts to promote the "Mr. CHS" pageant. Petitioner would have it that in each of these disparate situations, he innocently raised the question of the boy posing for photographs. By his own admission, Petitioner mentioned posing "in your underwear" to two of the boys. Despite the innocence of Petitioner's intentions, each boy somehow came away from his encounter believing that Petitioner had offered him money to pose for nude or semi-nude photographs and that Petitioner had urged him not to tell anyone about the offer. Petitioner's testimony was not credible. Petitioner's conduct fell short of the reasonable standard of right behavior that defines good moral character. By any reasonable standard, it is wrong for a teacher to ask students to pose for nude photographs. That wrong is compounded when the teacher instructs the students to conceal the fact that he asked them to pose for the photographs, thus encouraging the children in his charge to behave dishonestly. Petitioner's pattern of behavior with these boys, however anomalous it appears in the context of his entire career, makes him an unsuitable candidate for a teaching certificate. The conduct in which Petitioner engaged occurred on school grounds during the 2001-2002 school year. His conduct directly involved the students in his care. Thus, the conduct established by the facts of this case is recent and bears directly on Petitioner's fitness to teach in the public schools of Florida. The evidence failed to establish that Petitioner possesses the good moral character required of a teacher in this state. For this reason, Petitioner is not eligible for certification. The evidence establishes that Petitioner committed an act or acts for which the Education Practices Commission would be authorized to revoke a teaching certificate. The evidence establishes that Petitioner has been guilty of gross immorality or an act involving moral turpitude. The evidence establishes that Petitioner has had a teaching certificate revoked in another state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying Petitioner's application for a teaching certificate and providing that he be permanently barred from re-application pursuant to Subsection 1012.796(7)(a), Florida Statutes. DONE AND ENTERED this 4th day of August, 2005, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 4th day of August, 2005.
Findings Of Fact Based on the evidence received at the formal hearing, I make the following findings of fact. The Respondent, Ahmed M. Elmariah, M.D., is a licensed physician in the State of Florida, having been issued license number ME0027974. The Respondent's last known street address is 215 Pine Ridge Drive, Panama City, Florida 32405. During calendar year 1978, the Respondent was a practicing orthopedic physician in Lakeland, Florida. During calendar year 1978 he had staff privileges at Lakeland General Hospital in Lakeland, Florida, and, pursuant to those staff privileges, admitted patients and performed surgery at Lakeland General Hospitals. By letter dated July 24, 1978, from Luther A. Youngs, III, M.D., President of the Attending Staff at Lakeland General Hospital, the Respondent was notified as follows: This is to inform you that a hearing will be held before the Executive Committee of the Attending Staff of Lakeland General Hospital at 7:00 p.m. on Wednesday, August 2, 1978, in the hospital Board Room, to determine whether disciplinary action should be taken against you on the basis of the following charges: [Here followed four paragraphs of charges.] These charges are serious and may result in suspension or revocation of your probational privileges in Orthopedic Surgery. A regularly scheduled meeting of the entire Medical Attending Staff was held on October 17, 1978. An item on the agenda for that meeting was a proposal that the Respondent's hospital privileges be terminated. Shortly before the commencement of that meeting, the Respondent delivered a letter addressed to Luther A. Youngs, III, M.D., which letter stated. "I hereby resign from membership of the medical attending staff at Lakeland General Hospital as of today Tuesday October 17, 1988". Thereafter the Respondent's resignation was accepted by the Governing Board of Lakeland General Hospital. Subsequent to the Respondent's resignation from Lakeland General Hospital, on or about June 6, 1979, the Respondent applied to Lake Seminole Hospital in Seminole, Florida, for, staff privileges. As part of the application process at Lake Seminole Hospital, the Respondent was required to fill out an application form. Among the questions on the application form was the following: "Have your privileges at any hospital ever been suspended, diminished, revoked or not renewed?" The question was followed by a "yes" box and a "no" box. The Respondent answered the above-quoted question by placing a typed "x" in the "no" box. When the Respondent submitted his 1979 application to Lake Seminole Hospital, he knew that he had resigned his hospital privileges at Lakeland General Hospital during the pendency of disciplinary proceedings involving allegations that he had improperly or unnecessarily performed various surgeries. Thereafter, on or about January 25, 1984, the Respondent applied for appointment to the medical staff at Humana Hospital Northside in St. Petersburg, Florida. As part of the application process at Humana Hospital Northside, the Respondent was required to fill out an application form. Among the questions on the form were the following: Have your privileges at any hospital ever been suspended, diminished, revoked or not renewed? Have you ever been denied membership or renewal thereof, or been subject to disciplinary action in any medical organization? The foregoing questions (along with some others) were followed by a "yes" box and a "no" box. The Respondent did not indicate "yes" or "no" in response to either of the questions quoted immediately above on his initial application to Humana Hospital Northside. Instead, he left both of these questions unanswered. The Respondent was subsequently notified by Humana Hospital Northside that the two questions last quoted above were unanswered on the initial application form and that those questions must be answered in order for the Respondent's application to be processed. Along with that notification, Humana Hospital Northside also provided the Respondent with another blank application form. The Respondent thereafter furnished to Humana Hospital Northside an application form which was blank, except for a signature at the end and the following typed information: On the first page of the application form were the words "Addendum to Original Application Dated 1/26/84," followed by the name "Ahmed M. Elmariah, M.D." On the third page of the application there was an "x" in each of the "no" boxes corresponding to the following four questions: Has your license to practice medicine in any jurisdiction ever been limited, suspended or revoked? Have your privileges at any hospital ever been suspended, diminished, revoked or not renewed? Have you ever been denied membership or renewal thereof, or been subject to disciplinary action in any medical organization? Has your narcotic or dangerous drug certificate ever been suspended or revoked? When the Respondent furnished the above-described addendum to his application, he knew that he had resigned his hospital privileges at Lakeland General Hospital during the pendency of disciplinary proceedings involving allegations that he had improperly or unnecessarily performed various surgeries. On or about January 26, 1984, the Respondent made a second application for medical staff privileges at Lake Seminole Hospital. Again the Respondent was required to file an application form. The application form included the following questions under Section 16: F. Have your privileges or Staff Membership at any hospital ever been denied, suspended, diminished, revoked, not renewed, or otherwise acted against? H. Have you ever been denied membership or renewal thereof, or been subject to disciplinary action, in any medical organization or by any licensing agency of any state or country? The foregoing questions (along with some others) were followed by a "yes" box and a "no" box. The Respondent did not indicate "yes" or "no" in response to either of the questions quoted immediately above on his initial 1984 application form submitted to Lake Seminole Hospital. Instead, he left both of those questions unanswered. The Respondent was subsequently notified by Lake Seminole Hospital that the two questions last quoted above were unanswered on the initial 1984 application form and that those questions had to be answered in order for the Respondent's application to be processed. Along with that notification, Lake Seminole Hospital returned Respondent's initial 1984 application form so that he could complete it. Shortly thereafter the Respondent returned the initial 1984 application form to Lake Seminole Hospital, where it was received on February 15, 1984. When the Respondent returned the application form on February 15, 1984, there was a typed "x" in each of the two "no" boxes corresponding to the two questions last quoted above. When the Respondent returned his 1984 application to Lake Seminole Hospital on February 15, 1984, he knew that he had resigned his hospital privileges at Lakeland General Hospital during the pendency of disciplinary proceedings involving allegations that he had improperly or unnecessarily performed various surgeries.
Recommendation Based on all of the foregoing, it is recommended that the Board of Medicine enter a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 16th day of May, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1988. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-4527 The following are my specific rulings on all of the proposed findings of fact submitted by the parties. Findings Proposed by Petitioner Paragraphs 1 and 2: Accepted. Paragraph 3: Rejected as irrelevant or as subordinate, unnecessary details. Paragraph 4: Rejected as irrelevant and as not established by clear and convincing evidence. (It should be noted that the Amended Administrative Complaint does not allege any negligent acts by the Respondent.) Paragraph 5: Accepted in substance, with some additional findings. Paragraph 6: Accepted in substance with certain unnecessary or irrelevant details omitted. Paragraph 7: Rejected as irrelevant and as not fully supported by clear and convincing evidence. Paragraphs 8 and 9: Accepted. Paragraph 10: This paragraph is accepted with the exception of the portions described immediately hereafter. In the penultimate sentence, everything after the second comma is rejected as unnecessarily repetitious. The last sentence is rejected as not being fully in accord with the greater weight of the evidence. Paragraph 11: Accepted. Paragraph 12: First sentence rejected as subordinate and unnecessary details. Most of last three lines rejected as repetitious. The remainder of this paragraph is accepted. Paragraph 13: First five lines accepted. The remainder of this paragraph is rejected as in part irrelevant, in part not supported by persuasive competent substantial evidence, and in part not fully in accord with the greater weight of the evidence. Findings Proposed by Respondent (None) COPIES FURNISHED: David E. Bryant, Esquire Bryant, Reeves & Deer 220 East Madison Street Suite 530 Tampa, Florida 33602 Ahmed M. Elmariah, M.D. Post Office Box 16473 Panama City, Florida 32406-1473 Dorothy Faircloth, Executive Director Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent is a Florida-licensed real estate broker. Prior to the events alleged in the Administrative Complaint and during all times material hereto, Respondent had an ongoing business relationship with James W. Argo. Between the filing of the Administrative Complaint and the formal hearing in this cause, Respondent and Argo were married. At all times material hereto, Alexander W. Wells, Jr., was a real estate broker licensed in the State of Georgia. Argo and Wells had a business relationship. In August, 1979, Argo referred Respondent to Wells. Wells and Respondent entered into a co-brokerage contract regarding future real estate dealings in Georgia. During the last week of October or the first week of November, 1979, Respondent showed to Frank Firoz certain real property in Kingsland, Georgia, for the purpose of possible purchase by Firoz. At the time Respondent and Firoz viewed the property in Kingsland, Georgia, Firoz asked Respondent to determine the size and price of the property. On November 9, 1979, Respondent told Firoz the price of the property, but had still not ascertained the size. Respondent further advised that she had an appointment in Georgia on November 10. On November 10, Respondent and Argo went to Wells' office in Kingsland, Georgia. Respondent carried with her a Deposit Receipt and Purchase and Sale Agreement utilized by the Jacksonville Board of Realtors indicating that she held a $10,000 deposit on the land which carried a total purchase price of $170,500. Wells then had prepared a Georgia Sales Contract, which contract recited that the land in question involved 31 acres, and the purchase price was $170,000. An addendum to the form contract was also prepared. Respondent signed the contract as the agent of Frank Firoz, the buyer, but did not sign the addendum. Firoz never authorized Respondent to sign any contract for him, and Respondent had no power of attorney from Firoz. Wells presented the "contract" to the sellers. The sellers signed the "contract" on November 12, 1979, but rejected the terms of the addendum. On November 13, 1979, Respondent showed Firoz the "contract" signed by the sellers. She advised him that the sellers wanted to meet him. Argo and Respondent took Firoz to Georgia, where they met with Wells. During that November 13 meeting, another addendum was prepared and signed by Firoz. In conjunction with that new offer, Firoz gave to Respondent his check dated November 13 for $10,000 payable to Respondent's corporation, All-Clay Realty, Inc., with a notation on the check which read "Subject to acceptance of contract on Bluff Rd., as Binder." Firoz instructed Respondent that she was not to deposit the check unless the sellers accepted the addendum. Respondent advised Firoz that she could not hold his $10,000 binder check, since she was not licensed to sell real estate in Georgia and that Georgia law required deposit moneys for Georgia transactions to be retained physically within the State of Georgia. Wells suggested that attorney Richard W. Littlefield, Jr., be designated as the person to retain the escrowed deposit money, and Firoz added Littlefield's name on the payee line as a joint payee with All-Clay Realty, Inc. No one advised Firoz that Littlefield was also Argo's attorney and Wells' attorney. Firoz advised the brokers that he did not at that time have sufficient funds in his account to cover the $10,000 check, but that a transfer could be effected. On November 15, 1979, Respondent prepared for Firoz' signature a second Jacksonville Board of Realtors' Deposit Receipt and Purchase and Sale Agreement whereby Firoz offered $120,000 cash for the approximate 30 acres in question. Respondent suggested that a cash offer might entice the sellers. Firoz signed the contract, Respondent witnessed the contract, and Respondent signed the section acknowledging that she held a $10,000 check in escrow as deposit moneys. The offer signed on November 15 included a provision which states "This contract shall be null and void if other contract from same Buyers is accepted by Sellers." Firoz then went to Lincoln, Nebraska. Also on November 15, the sellers rejected Firoz' addendum of November 13 by transmitting their addendum dated November 15. Approximately the third week of November, Respondent spoke by telephone with Firoz, who was in Lincoln, Nebraska. She advised him that the sellers had accepted his November 13 addendum, that attorney Littlefield had put through for payment the $10,000 check, and that if Firoz did not immediately fund the check and release the moneys, he could be put in jail for "writing a rubber check." Firoz had funds transferred to his Florida account on November 28 to cover the binder check. On December 4, while Firoz was still in Lincoln, Nebraska, he received in the mail from Respondent the addendum containing the sellers' offer of November 15. This was the first knowledge Firoz had that the sellers had rejected his November 13 addendum and submitted their November 15 addendum. Firoz went to his attorney in Lincoln, Nebraska. On December 5, 1979, Firoz signed and sent to Respondent the addendum prepared in Nebraska which changed the payment dates contained in the addendum signed by the sellers on November 15. After Respondent received the December 5 addendum, she did not forward it to Wells to present to the sellers; rather, she gave it to James Argo, who made changes on the addendum to conform with the terms that the sellers desired. Argo then signed the addendum as a "buyer. Although the December 5 addendum was never executed by the sellers, Respondent advised Firoz that it had been accepted and that a closing would take place on December 31, 1979. Around the middle of December, 1979, Georgia attorney J. Robert Morgan received a telephone call from Respondent inquiring as to his fee for preparing a note, mortgage, and warranty deed for the December 31 closing. She advised him that the title work involved had already been done and that he would receive some documents from her and some from attorney Littlefield. By letter to him dated December 17, 1979, Respondent enclosed the "contract" and advised him that title would be taken by her clients, Frank Firoz and James W. Argo, since they were partners in a "joint venture." She further advised him how to make out the commission checks, including one to her, and that the buyers would pay all attorney's fees. Attorney Morgan next received a letter from attorney Littlefield dated December 27, 1979. The letter transmitted copies of his "title work" in accordance with his instructions from Respondent. The letter noted that the purchasers were Frank Firoz and James Argo, and enclosed a statement for services rendered to James Argo for "this and other matters" in the amount of $750. The letter further directed Morgan to give Littlefield's check for $750 to Wells at the time of closing. Morgan prepared closing documents reflecting both Firoz and Argo as the buyers in accordance with Respondent's instructions to him. The documents forwarded to Morgan by Respondent for use in preparing the closing documents were a copy of the Georgia form signed by her on November 10, but the amount of acreage was decreased from 31 acres to 30 acres, and the purchase price was decreased from $170,500 to $165,000, and the signature of James W. Argo had been added; a copy of the November 15, 1979, addendum bearing the signatures of all sellers, but only the signature of James W. Argo as the buyer; and a copy of the December 5, 1979, addendum bearing the signatures of Frank Firoz and James W. Argo, as the buyer, and bearing changes in dates initialed by James W. Argo, but bearing no signature of any of the sellers. After Christmas, Firoz went to see Respondent at Argo's office to obtain a copy of the contract showing the sellers' acceptance of his last addendum offer. When Respondent showed him the addendum which had Argo's signature on it, changed dates for payments, and no signatures of the sellers, Firoz told Respondent he would not close on the property. Respondent reassured him that the sellers were anxious to sell the property, and that if they all went to the closing with the additional $37,500 required to close on the property, the sellers might accept the addendum drawn up by Firoz' attorney on December 5. On December 31, 1979, the day scheduled for the closing, Firoz was still upset with Respondent and Argo and refused to ride with them in their car to the closing, but followed in his own vehicle. At the anticipated closing at attorney Morgan's office, Firoz engaged in negotiations with the sellers and listing broker Charles Wood. After some time, the entire group went to a nearby restaurant and continued to negotiate. They contacted attorney Morgan and returned to Morgan's office, where they again negotiated. Although the negotiations lasted for many hours, Firoz and the sellers could not reach an agreement as to the terms of a contract, and the closing did not take place. As it became apparent that no agreement regarding the sale of the property could be reached, the Georgia brokers repeated to Firoz Respondent's advice to him earlier in the day that he would lose his deposit if he "defaulted" on the alleged contract. On January 3, 1980, Wells went to Littlefield's office to tell Littlefield that the buyer had defaulted and to disburse his $10,000 to the sellers and brokers involved. Littlefield called Respondent while Wells was in Littlefield's office, and Respondent authorized the disbursement of the $10,000 to the sellers, brokers, and attorneys. On January 4 or 5, Respondent called Wood, the listing broker, and Wood verified that the sellers had contacted Littlefield to disburse the funds. By letter dated January 4, 1980, attorney Littlefield advised all parties concerned, except Firoz, that he was disbursing the $10,000 escrow moneys. He paid to his law firm $750, which was the amount of James Argo's outstanding bill with his law firm; $250 to attorney Morgan, although Morgan had not even tendered a bill; and $1,500 each to the three sellers, the two Georgia brokers and Respondent. On January 6, 1980, broker Wood called Respondent to tell her that the moneys had been disbursed. After the aborted closing in Georgia and after returning from a vacation, Firoz demanded the return of his deposit moneys from Respondent. He sent a certified letter to her, which she received on January 17. Respondent then telephoned Firoz and advised him he could come to her office to get a copy of what she represented to be a demand letter written by her on his behalf. On January 18, Firoz obtained a copy of the letter which was purportedly written on January 14 and which was addressed to broker Wood, not attorney Littlefield, who held the moneys. Rather than demanding the return of the moneys, Respondent stated that she was making a request for the return only because she felt it her duty to make a formal request. The letter then explained all the reasons why Firoz should not receive the moneys and specifically agreed to abide by any decision the sellers made. At the time that Respondent represented to Firoz that she was demanding the return of his deposit moneys for him, she knew that the moneys had already been disbursed and withheld that information from Firoz. Respondent deposited her $1,500 check from Littlefield into her account on January 23. Firoz did not authorize the disbursement of any funds from his deposit to the sellers, brokers, or attorneys involved. Firoz did not meet attorney Morgan until the closing and did not retain him. Morgan was retained by Respondent. Firoz never met nor talked to attorney Littlefield. He authorized no work to be done for him by attorney Littlefield. Rather, he only authorized Littlefield to hold his moneys in escrow for him. The record fails to reflect who authorized Littlefield to do the title work on the property, although it is clear that Firoz did not. At no time did Firoz authorize Respondent to sign any contracts for him, and she never held a power of attorney from him. She was further never authorized to have James Argo sign papers for Firoz. While Firoz and the sellers were transmitting offers and rejections back and forth, Respondent suggested to Firoz that Firoz and Argo enter into a joint venture regarding the property in question. Although Argo prepared an agreement which was then sent to Firoz' attorney in Lincoln, Nebraska, no agreement was reached as to the specific terms, and no document reflecting a joint venture was ever executed. Respondent knew there was no executed joint venture agreement when she instructed attorney Morgan to put James Argo's name on the title to the property. Firoz did not authorize Argo to sign any of the documents in question or to make any changes, and Argo held no power of attorney from Firoz. Respondent admits that the "contract" which she signed for Firoz on November 10 was changed sometime in December as to both the size of the property and the purchase price by simply changing the first page and without the benefits of resignature by any of the parties involved. This is verified by the apparent "white out" of typed material and substituted typing on some of the documents admitted into evidence. The numerous conflicting, partially executed offers and addenda introduced in evidence in this cause clearly show that no contract was ever entered into for the purchase and sale of the property in question, and Firoz was unable to obtain a contract with the sellers after many hours of negotiation at the scheduled closing. Even the "contracts" newly discovered by Respondent after the hearing in this cause differ from the numerous "contracts" introduced in evidence during the hearing. Although Respondent, Wells, and Argo testified that there existed a valid contract and that a meeting of the minds among the parties had occurred, none of them were able to identify a date upon which that occurred. Further, Respondent offered no evidence to reflect the dates on which Argo's signature was placed on any of the documents. Since no contract existed for the purchase and sale of the property in question, Firoz could not have "defaulted" on that contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered finding Kathleen J. Nettles (now known as Kathleen J. Nettles Argo) guilty of violating Sections 475.25(1)(b), (d), and (k), Florida Statutes, and permanently revoking her license as a real estate broker under the laws of the State of Florida. RECOMMENDED this 11th day of August, 1982; in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1982. COPIES FURNISHED: James S. Quincey, Esquire Clayton, Duncan, Johnston, Quincey, Ireland, Felder & Gadd 226 South Main Street Post Office Box 1090 Gainesville, Florida 32602 Walter C. Rawls, Jr., Esquire Rawls & Rawls Suite 102, 2301 Park Avenue Orange Park, Florida 32073 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick H. Wilsen, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801
The Issue The issue is whether the medical license of Ted G. Avner, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material to his action, Dr. Avner has been licensed in the State of Florida, holding license ME 0014896. Dr. Avner was licensed to practice medicine in Colorado in 1974. The Colorado State Board of Medical Examiners is the licensing authority for the State of Colorado. On December 9, 1985, the Colorado Board of Medical Examiners summarily suspended Dr. Avner's license to practice medicine due to substance abuse involving his personal ingestion of cocaine. On February 14, 1986, the Colorado Board of Medical Examiners, by Stipulation and Order, granted a reinstatement of Dr. Avner's license to practice medicine with certain terms of probation, including the prohibition of his use of substances of abuse. Subsequently, Dr. Avner relapsed by again using cocaine. After testing positive for cocaine on a random urine test, Dr. Avner reported that fact to the Colorado Board. On January 23, 1987, he entered into an agreement with the Colorado Board of Medical Examiners that he would refrain from the practice of medicine until permitted to do so by order of the board. Thereafter he entered and completed an addiction treatment program and then moved to Virginia, a state in which he was not licensed to practice medicine. Effective March 11, 1988, the Colorado State Board of Medical Examiners accepted Dr. Avner's voluntary relinquishment of his medical license. The Stipulation which Dr. Avner signed clearly states that the relinquishment was permanent, but it also provides for the reinstatement of Dr. Avner's license to practice medicine if he submits "evidence satisfactory to the Board that he qualifies under all subsections of the Colorado Medical Practice Act." The terms of the Stipulation and Order of the Board make it clear that the relinquishment was called "permanent," but was in fact subject to reinstatement. After moving to Virginia, Dr. Avner contacted David G. Fluharty, M.D. Dr. Fluharty is the founder and present Chairman of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia. The purpose and function of that Committee in Virginia is the same as that of the Florida Physician's Recovery Network administered by Roger Goetz, M.D. Dr. Fluharty referred Dr. Avner to the Talbott Recovery Center in Atlanta, Georgia. Dr. Avner completed the addiction treatment program there and returned to Virginia in March, 1989. Since March 29, 1989, Dr. Avner has continued to reside in Virginia, has remained active in the recovery program of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia, and has complied with all the requirements of that program, including random drug testing, maintaining sobriety, and participating in required meetings. Between March 29, 1989, and July 25, 1991, Dr. Avner's urine has been tested numerous times and all tests have been negative. Dr. Avner is currently under contract with the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia which is very similar to and consistent with the kind of contract used by the Physician's Recovery Network in Florida for chemically dependent physicians. While residing in Virginia, Dr. Avner has worked regularly as a volunteer as a counselor and facilitator of the aftercare group, Caduceus. He also regularly attends other aftercare groups such as A.A. and N.A. Beginning in October, 1989, Dr. Avner worked once or twice a week as a volunteer at the Bradley Free Clinic, first as a nurse assistant and later assuming more responsibilities consistent with his licensure status. Dr. Avner has abstained from the use of cocaine since January 25, 1987, and from alcohol since August 19, 1989. He applied for a medical license in Virginia and was denied by Order dated April 11, 1988. In 1989, Dr. Avner applied for his medical license in Colorado and was initially denied. On his request for reconsideration, the Colorado Board granted licensure. By Order dated January 18, 1991, the Colorado Board of Medical Examiners approved a Stipulation and Order granting Dr. Avner an "unrestricted license" to practice medicine in Colorado, subject to the terms of probation set forth in the Order. On Dr. Avner's return to Colorado he can commence the practice of medicine under the terms and conditions of a monitored three-year probation which require that he maintain sobriety and abstain from all addictive, habit forming drugs or controlled substances not prescribed by his personal physician or dentist; that his practice and sobriety be monitored by a physician approved by the Board; that he and his monitor provide quarterly reports to the Board regarding the status of his practice and sobriety; that he participate in a Board approved drug abuse treatment program; that he provide urine tests on a random basis; and that he obtain and provide periodic psychological reports. Dr. Avner again applied for a medical license in Virginia and was denied by Order dated April 5, 1990. He again applied and was finally granted an unrestricted license by Order of the Virginia Board dated February 13, 1991. The Virginia license contains no term of probation or other restriction. In July, 1991, Dr. Avner began a one-year surgical fellowship in pediatric otolaryngology at the University of Virginia Medical School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order and therein: Reprimand Dr. Avner for violation of Section 458.331(1)(b). Restrict Dr. Avner's Florida license by requiring that Dr. Avner continue to remain in good standing in both Colorado and Virginia and that he comply with his contract in Virginia for its entire term. The Virginia Physicians' Health and Effectiveness Committee is to be asked to immediately notify the Florida Board of Medicine if Dr. Avner fails to remain in full compliance with that contract. Fine Dr. Avner in the amount of $1000.00. DONE and ENTERED this 8th day of October, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5275 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Medicine Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 3(3). Proposed finding of fact 2 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ted G. Avner, M.D. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-9(1-8); 10-15(10-15); 17-22(17- 21); and 23(22). Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order Proposed finding of fact 16 is unsupported by the competent, substantial evidence. Dr. Falkinburg is not accepted as an expert qualified to render such an opinion, Dr. Fluharty's statements are hearsay and cannot support a finding of fact, and Dr. Goetz' testimony is entitled to little weight because it is based essentially on hearsay information. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Wilson Jerry Foster Attorney at Law 227 East Virginia Street Tallahassee, FL 32301-1263 Francesca Small Plendl Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner was licensed as a clinical social worker by the State of Georgia on June 4, 1987. Petitioner is now an applicant for Florida licensure by endorsement as a clinical social worker. Her application was filed prior to August 25, 1990, the date on which the Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counselling met to consider her application. The September 29, 1990 Florida Board's Order of Intent to Deny Petitioner's application stated, in pertinent part: 2. The Board stated the following factual grounds for denial: At the time your license as a clinical social worker was obtained in the State of Georgia, the requirements were not substantially equivalent to nor more stringent than those set forth in Chapter 491, Florida Statutes; therefore, you are not eligible for endorsement under s. 491.006, Florida Statutes. Specifically, although the Georgia Board did not require a master's degree in social work, the information submitted concerning the educational criteria in that state did not list any specific clinical coursework requirements. In addition, a review of the transcript of your master's program in social work indicates that you would not meet Florida's clinical social work education requirements. Your master's program at University of Georgia School of Social Work did not contain 21 semester or 31 quarter hours in theory of human behavior and practice methods as courses in clinically oriented services, including a course in psychopathology, as required by Chapter 21CC-11.002(1), Florida Administrative Code. The Board did not find a course in psychopathology and determined you completed only 24 quarter hours of the 31 quarter hours of clinical coursework required. In addition, your transcript did not document that you completed an advanced field placement in a clinical (direct service) setting as required by Chapter 21CC-11.002(2), Florida Administrative Code. Therefore, your master's program did not emphasize direct clinical patient or client health care services as defined by Board rule and required by Chapter 491.005(1)(b), Florida Statutes. The two year post-master's level supervised experience requirement for licensure in Florida [s. 491.005(1)(c), F.S.] was also not documented by your application materials. [Emphasis supplied] At formal hearing, Petitioner documented that her master's program at University of Georgia School of Social Work, completed prior to Georgia licensure, did, indeed, contain 21 semester or 31 quarter hours of the appropriate type studies, and included a "practicum" or clinical direct service requirement completed before Georgia licensure. Petitioner also presented documentation and testimony to establish that she had satisfactorily completed a course in psychopathology during the summer of 1991 at Florida State University, after her Georgia licensure (1987) and after her initial application for licensure by endorsement in Florida. At the time Petitioner applied for Florida licensure, she was two months short of the two years of post-master's clinical supervision required by Florida. At formal hearing, Petitioner was able to document that since applying for Florida licensure by endorsement, she had completed the last two months of the required two years of post-master's level supervised experience under Imogene Darby, CSW. Petitioner's testimony that she had done similar supervised work before Georgia licensure was unrefuted. Thereafter, Respondent's counsel stipulated at formal hearing that the post-master's clinical supervision requirement and the number of hours and content in Petitioner's master's program were "no longer issues." Specifically, Respondent's stipulation was, "I don't think there is an issue with the specific course work. I don't think that that is an issue. I think . . . after having heard her testimony regarding the psychopathology course that she took as well as the two additional . . . months experience, . . . that those are not longer issues. . . . I will be more than happy to stipulate to those issues on behalf of the Board." (TR 25-26) Prior to the Respondent Florida Board's August 25, 1990 consideration of Petitioner's application, the Georgia State Board of Professional Counselors, Social Workers and Family Therapists sent the Florida Board a verification of Petitioner's Georgia license. This verification form, independently submitted by the Georgia authorities on or about May 16, 1989, represented that Petitioner was originally licensed in Georgia by examination. In marking the box showing that Petitioner had been licensed in Georgia by "examination," the Georgia authorities simultaneously rejected the boxes that would have designated Petitioner as having been originally licensed in Georgia "without examination," by "grandfathering," or by "reciprocity." However, in the course of formal hearing, Petitioner testified, Question by Respondent's counsel: Were you grandfathered in? By that I mean: Did you take any examination? Petitioner's Answer: No, because I was not offered an exam, and I showed proof I met the requirements of the State of Georgia for licensure without exam. Q You have not taken any examination by the State of Georgia regarding your licensure as a social worker? A No, sir, because I was not offered an exam. When I submitted my application, I was qualified, according to the Board of the State of Georgia. Upon learning for the first time at formal hearing that Petitioner had not taken a written examination for licensure in Georgia, Respondent's counsel asserted that because Petitioner was able to obtain Georgia licensure in 1987 without taking a written examination, the Georgia requirements for licensure were not substantially equivalent but were less stringent than the Florida requirements, and therefore Florida licensure by endorsement was not appropriate, but that Petitioner would be eligible to sit for the Florida license examination on the basis of all the evidence. The reason given for lack of prior notice that a written examination was necessary for Florida licensure by endorsement was that Respondent first became aware at formal hearing that, contrary to the prior representations of the Georgia Board, the Petitioner had not been licensed originally by written examination in Georgia. Neither party offered any testimony to show that the licensure requirements in Florida and Georgia were similar or dissimilar on June 4, 1987, the date Petitioner was originally licensed in Georgia, nor was a copy of the applicable Georgia statute(s) submitted by the parties. The record is devoid of evidence as to the precise date Petitioner applied in Florida, but since 1981 Florida continuously has required a written examination for Clinical Social Worker licensure. See, the pertinent portions of Sections 491.005-491.006 F.S., first enacted effective October 1, 1987 by Section 15, Ch. 87-252 Laws of Florida, and the pertinent parts of predecessor statutes, Sections 490.005(2)(a)4. and 490.006 F.S. [1981-1986 Supp.], first enacted by Sections 1, 3, Ch. 81-235 Laws of Florida.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order denying Petitioner's application for Florida licensure by endorsement and determining her eligible to sit for the Florida Clinical Social Worker license examination. DONE and ENTERED this 8th day of November, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 91-1003 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: Petitioner waived the filing of PFOF. Respondent's PFOF: 1, 3-5 Accepted. 2, 7 Accepted in substance; modified to conform more closely to and reflect the factual nuances of the record. 6 Sentence 1 is rejected as contrarty to the evidence (See Respondent's Exhibit 1). Sentence 2 is rejected as conclusionary legal argument and contrary to the evidence (See TR and Respondent's Exhibit 1). COPIES FURNISHED TO: Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol, MS #4 Tallahassee, FL 32399-1050 Elaine L. Owens 304 South Division Street Lake City, FL 32055 Diane Orcutt, Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact At all times relevant hereto, respondent, Paul D. French, was a licensed medical doctor having been issued license number ME 0010248 by petitioner, Department Professional Regulation, Board of Medicine (DPR or Board). He has practiced medicine since at least 1968 but the date of issuance of his license is not of record. He was board certified in family practice from 1978 until 1986 when his certification expired. Respondent presently resides at 7114 Southgate Boulevard, Suite 9, North Lauderdale, Florida. On August 21, 1985, the Medical Licensure Commission (Commission) for the State of Alabama filed a complaint against respondent alleging that he had violated certain statutory provisions governing the conduct of medical doctors in that state. Two days later, the Commission temporarily suspended respondent's license to practice medicine. After a hearing was conducted on September 25, 1985 the Commission entered an order on October 11, 1985 revoking his medical license. As grounds, the Commission found that urine and blood tests performed on respondent revealed the presence of alcohol and meperidine, a Schedule II controlled substance with highly addictive properties, and that this violated a prior restriction on his license. Certified copies of these documents were introduced into evidence as petitioner's exhibit 1. Armed with the above information, the Board filed an administrative complaint against respondent on February 10, 1986 charging that Dr. French had violated Subsections 458.331(1)(b) and (s), Florida Statutes (1985), by having had his medical license revoked by another state and with being unable to practice medicine with reasonable skill and safety due to his use of alcohol and drugs or because of a mental or physical condition. The issuance of the complaint prompted Dr. French to initiate this proceeding. On April 21, 1987, the Board filed an order of emergency suspension wherein it suspended Dr. French's license "until such time as (respondent) can demonstrate satisfactorily that he is able to practice medicine with reasonable skill and safety to his patients." That order still remains in effect. Testifying by deposition on behalf of the Board was Dr. Roger A. Goetz, who is director of the Florida Medical Foundation's practitioner recovery network and an expert in the evaluation and treatment of impaired physicians. Doctor Goetz's deposition was taken in September 1987. According to Dr. Goetz, respondent was then unable to safely practice medicine "unless he was very carefully and almost continually supervised." Doctor Goetz opined further that, as a prerequisite to respondent returning to the practice of medicine, he be required first to have "a period of stabilization in his life followed by a reevaluation months from now." At that time, Dr. Goetz found a decrease in respondent's I.Q. and "some cognitive disability." The amount of decrease in I.Q. and the nature and extent of the cognitive disabilities are not of record. In any event, the expert was unsure if this was caused by alcohol abuse or by a cerebral aneurysm suffered by respondent in the mid or late 1960's. However, Dr. Goetz did not rule out an increase in mental capacity in the future and respondent's eventual return to medical practice. The witness suggested that, after a year, Dr. French be given a short period of retraining, a mini-residency or some other form of evaluation to determine if he could function as a physician. No evidence was offered to refute this recommendation. Respondent denies using any alcohol or drugs at the present time, and this was corroborated by Dr. Goetz who said the evaluations conducted in 1987 "did not indicate any usage." Doctor French desires to reenter the medical profession and agrees to several restrictions, such as becoming recertified in family practice, submitting to random testing for drugs and alcohol, and if necessary, being supervised by another physician. He has not practiced medicine in the state since August 1985 when he closed his West Palm Beach office. As to the cognitive disability, respondent denied that he lacks the necessary physical skills to practice medicine pointing out that he practiced medicine for many years after suffering an aneurysm over twenty years ago.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 458.331(1)(b) and (s), Florida Statutes (1985), and that his license remain suspended until he successfully completes a Board prescribed short period of retraining or a mini-residency, and he demonstrates through a Board prescribed reevaluation that the mental and/or physical impairments that existed in mid- 1987 have been resolved. Also, respondent should be required to submit to random blood/urine testing for such period of time as the Board deems appropriate. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of November, 1988. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1988.
