The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his race in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made concerning the alleged discrimination. Petitioner did not appear and did not submit any evidence to support findings of fact. Findings are required concerning the adequacy of notice of the administrative hearing. On March 9, 2005, Petitioner, through his qualified representative, filed Petitioner's Request for Final Hearing and Petitioner's Request for the Reopening of Discovery. Petitioner received adequate notice of the administrative hearing. The Commission referred this matter to DOAH by cover letter dated July 19, 2004. DOAH assigned the matter to ALJ Fred L. Buckine and transferred it to the undersigned on October 26, 2004. The record shows that the two ALJs issued 10 notices or orders in this proceeding between August 12 and December 1, 2004.1 DOAH properly addressed, stamped, and delivered each notice and order by U.S. mail to the address of record for Petitioner, 1527 South Central Avenue, Apopka, Florida 32703. On and after August 30, 2004, DOAH also delivered a copy of each notice and order by U.S. mail to the qualified representative. The address of record for the qualified representative is the same as that for Petitioner. No notice or order was returned to DOAH as undelivered. During the four months preceding the administrative hearing, Petitioner declined to participate in discovery due to the poor health of his qualified representative. Respondent requested two continuances in an effort to complete discovery. Petitioner declined to complete discovery, and Respondent moved to dismiss for failure to complete discovery. Respondent alleged the qualified representative was "physically unqualified" to represent Petitioner. The undersigned denied Respondent's motion to dismiss and granted a motion for continuance filed by Petitioner on November 30, 2004. The motion for continuance was part of a document entitled, "Petitioner's Request for Continuance of Final Hearing and Injunctive Relief Against Retaliatory Termination" (Petitioner's Motion for Continuance). Petitioner's Motion for Continuance discusses numerous grounds for the continuance and only parenthetically states that his qualified representative was in poor health. The Order Granting Continuance and Re-scheduling hearing included the following notice to Petitioner: The undersigned deems Petitioner's motion for continuance to be based on the illness of Petitioner's Qualified Representative. Petitioner has had ample time to obtain a replacement for his Qualified Representative or to proceed pro se. The undersigned will grant no further continuances based on the illness of the Petitioner's Qualified Representative. Order Granting Continuance and Re-scheduling Hearing, dated November 30, 2004. Petitioner's Motion for Continuance expressly admits that Petitioner received delivery of relevant documents in this proceeding. In relevant part, Petitioner states: On or about November 25 and 26, 2004, the Friday and Saturday following Thanksgiving, Petitioner, who receives the mail in this case at his address for both him and his Qualified Representative (who has been repeatedly hospitalized during this case for the sudden occurrence of life- threatening congestive heart failure), received in those days' mail the following pleadings. . . . (emphasis added) Petitioner's Motion for Continuance at 6. Petitioner had actual notice of the administrative hearing. During the week preceding the hearing, staff at DOAH contacted Petitioner, in the normal course of prehearing procedure, and provided information concerning the date and time of the hearing. Petitioner had ample time between the last order continuing the administrative hearing and the date of the hearing to file any motion for relief to which he was entitled for good cause or extreme emergency. Petitioner did not file a motion for relief. Petitioner did not represent that no other person was competent or capable of representing Petitioner except for his qualified representative. At the administrative hearing, the undersigned telephoned Petitioner at a telephone number of record. Petitioner answered, and the undersigned asked Petitioner if he intended to attend the hearing. Petitioner refused to answer and directed the undersigned to Petitioner's qualified representative. DOAH provided Petitioner and his qualified representative with adequate notice of the administrative hearing, and the undersigned conducted the hearing. Petitioner chose to neither request a continuance of the hearing or attend the hearing. Petitioner now seeks to begin the process anew by filing post-hearing motions for an administrative hearing. The record does not support the remedy requested by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of March, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 2005.
The Issue The issue in this case is whether the license of Allen B. Erde, M.D., should be disciplined by the Florida Board of Medicine based upon actions he is alleged to have taken, or failed to have taken, between August and November, 1986, in the care and treatment of his patient, C.W.
Findings Of Fact At all times material hereto, Respondent has been licensed as a physician in the State Of Florida, having been issued license number ME-0008625. Respondent was C.W.'s obstetrician during her pregnancy in 1986, and initially examined her on August 26, 1986, when she was six weeks pregnant. During this initial visit, C.W. was informed by Respondent that her pregnancy was progressing normally. At her second visit, on September 23, 1986, Respondent detected no fetal heartbeat. However, he informed C.W. that this was not a problem. He requested that she bring her husband with her for her third visit so that they both could hear the heartbeat. Prior to her third visit, C.W. saw Respondent in his office on October 6, 1986, complaining of urinary problems, and a stiff neck and back. Respondent treated her for a urinary tract infection. Later that same day she began to bleed vaginally, passed clots and experienced cramping pains. She then saw Respondent at the Winter Haven Hospital emergency room, but was told that nothing seemed wrong. Respondent advised her simply to go home, put her feet up, and rest. There were several other occasions during October, 1986, when C.W. experienced cramping and vaginal bleeding. She called Respondent each time to express her concerns, but was told simply to lie down, and keep her feet up. On October 22, 1986, C.W. and her husband visited Respondent for her third scheduled visit. No heartbeat was heard. Respondent again told C.W. that there was no cause for concern, the baby was just small and probably behind her pelvic bone. C.W. was presumably 14 weeks pregnant at this time, but Respondent's office records indicate that the fetus was decreasing in size, there was no weight gain, and no heartone. C.W. continued to experience pain and bleeding, sometimes accompanied by clots. She was not gaining weight, and had none of the other indications of pregnancy which she had experienced in her prior pregnancies. C.W. continued to express concern to Respondent, but his advice remained simply to lie down, and keep her feet up. In response to a five day episode of bleeding, C.W. saw Respondent in his office on November 12, 1986. Although she was 17 weeks pregnant at that time, Respondent's office records indicate a fetus 14 weeks in size. Respondent did not order any fetal viability tests, and there is no evidence in his office record that he considered any testing of the fetus. C.W. saw Respondent for her fourth scheduled visit on November 19, 1986, and, again, no fetal heartbeat was detected. She was still experiencing vaginal bleeding. Her uterus was only 10-12 weeks in size, although she was presumably 19 weeks pregnant at this time. C.W. was distraught, and expressed great concern to Respondent that she was presumably almost five months pregnant and no fetal heartbeat had ever been detected. C.W. demanded that Respondent do something. He then ordered a quantitative Beta-subunit Human Chorionic Gonadotropin blood test to determine her hormone level. On November 2l, 1986, Respondent called C.W. at her place of employment, and informed her that her hormone levels were extremely low, and that she might not have a viable pregnancy. He told her she should keep her next regularly scheduled appointment with him, but if she experienced any severe bleeding or cramping to call him. C.W. left work and became increasingly upset. She contacted him later on that same day for a more complete explanation of what she should expect. Respondent told her that the fetus was "reversing itself and was losing weight instead of gaining." C.W. was not informed by Respondent that the fetus was not viable, and she took his advice to mean that if she was extremely careful there was still a chance of carrying the pregnancy to term. Respondent admitted to the Petitioner's investigator, Jim Bates, that he knew the fetus was dead at this time, but he was trying to let nature take its course, and if she did not abort in two or three months, he would take the fetus. Because she was extremely upset and her friends were concerned about the advice she was receiving from the Respondent, an appointment with another obstetrician, Dr. Vincent Gatto, was made for C.W. by one of her friends. Dr. Gatto saw C.W. on or about November 21, 1986, and after examining her he immediately diagnosed her as having had a missed abortion. A sonogram confirmed this diagnosis. A dilation and curettage was performed on C.W., and subsequent pathological reports revealed remnants of an 8-week fetus. The medical records which Respondent maintained of his care and treatment of C.W. are incomplete and contain discrepancies concerning his evaluation of the patient. They do not reflect C.W.'s numerous telephone calls, or that she was increasingly upset over the course of her pregnancy. There is no delineation of a plan of treatment in these records, or any explanation of the type of treatment he was pursuing for her. There is no explanation or justification in these records of Respondent's failure to order a sonogram or test, other than the one Beta-subunit Human Chorionic Gonadotropin, for C.W., although she repeatedly reported vaginal bleeding and cramping, and there was a continuing inability to detect a fetal heartbeat. Respondent failed to carry out the correct tests on C.W., and therefore, he failed to make a correct diagnosis of missed abortion, or to treat her correctly. He allowed her to carry a dead fetus for almost two months. Retention of the products of a non-viable pregnancy can lead to several complications, including infection, blood clotting and psychological trauma. In fact, this experience caused C.W. severe emotional anguish. In his care and treatment of C.W., Respondent failed to meet the standard of care that is required of a physician practicing under similar conditions and circumstances.
Recommendation Based upon the foregoing, it is recommended that Florida Board of Medicine enter a Final Order suspending Respondent's license to practice medicine for a period of five years, and imposing an administrative fine of $3,000. DONE AND ENTERED this 21st day of August, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1989. APPENDIX (DOAH CASE NO. 88-4785) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding l. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 5. 6-7. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 11. Rejected as irrelevant. 14-17. Adopted in Finding 13. 18-21. Adopted in Finding 12. 22. Adopted in Finding 14. The Respondent did not file Proposed Findings of Fact. COPIES FURNISHED: Mary B. Radkins, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Allen B. Erde, M.D. P. O. Box 1817 Winter Haven, FL 33883-1817 Allen B. Erde, M.D. 198 First Street, South Winter Haven, FL 33880 Dorothy Faircloth Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth Easley, General Counsel Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0729
The Issue The issues in this case are whether Respondent violated section 401.411(1)(g), Florida Statutes (2009),1/ and, if so, what discipline should be imposed.
Findings Of Fact Mr. Colon is eligible for Emergency Medical Technician (EMT) licensure, license number EMT 50126, and is licensed as a paramedic, license number PMD 510323. On January 15, 2011, Mr. Colon pled nolo contendere to a charge of exposure of sexual organs in Case No. 09-003621- MMM-A in the County Court, Fifth Judicial Circuit in and for Hernando County, Florida. Adjudication was withheld, and Mr. Colon was placed on probation for one year and sentenced to 25 hours of community service. On January 15, 2011, Mr. Colon pled nolo contendere to a charge of exposure of sexual organs in Case No. 09-003622- MMM-A in the County Court, Fifth Judicial Circuit in and for Hernando County, Florida. Adjudication was withheld, and Mr. Colon was placed on probation for one year and sentenced to 25 hours of community service. The sentence in Case No. 09- 003622-MMM-A ran concurrently with the sentence in Case No. 09- 003621-MMM-A. One of the cases dealt with an argument that Mr. Colon had with a young lady. Mr. Colon had made a u-turn into the drive way of a mobile home park, and saw a young lady walking by. Mr. Colon and the young lady had words, and the young lady make a remark that Mr. Colon considered derogatory. He got out of his car sans his lower garments; showed the young lady his anatomy, bare from the waist down; and told her to kiss his ass. He got back into the car, knowing that he had done a very stupid thing, and drove off. The young lady took a picture of Mr. Colon's bareness with her telephone. The other case dealt with Mr. Colon again lowering his pants at a school. Mr. Colon admitted to an officer of the Hillsborough County Sheriff's office that the incidents were identical as far as the amount of clothing that he was not wearing. Again, Mr. Colon's nakedness was caught by a camera. Mr. Colon thinks that the reason that he showed himself on this occasion was a result of a bet that he lost. Mr. Colon admitted to the officer of the Hillsborough County Sheriff's Office that on at least three to four other occasions that he has disrobed while outdoors. He contends that these occasions happened late at night when he was drunk and stupid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Amended Administrative Complaint against Mr. Colon. DONE AND ENTERED this 23rd day of August, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2011.
The Issue Whether Respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed veterinarian in the State of Florida, having been duly issued license number VM 0002694. In April of 1988 Respondent practiced veterinary medicine from an establishment located in Dade County, Florida, that had not been licensed by Petitioner. Upon receiving a notice of violation, Respondent executed a cease and desist agreement, which he did not violate. Within thirty days of the notice of violation an application for licensure of the establishment was filed with Petitioner. Accompanying the application was a check which included the amount of the application fee and the amount of the late payment. On or about April 22, 1988, Respondent performed surgery on Yahara, a female dog owned by Arcadio Rolon. The purpose of the surgery was to spay Yahara. On or about April 25, 1988, Respondent informed Arcadio Rolon that Yahara had died on April 22, 1988. On April 27, 1988, Arcadio Rolon took the carcass of Yahara to Dr. David T. Wise, Jr., D.V.M., to have an autopsy performed. The autopsy revealed that the dog had recently been spayed. One ligature adjacent to the right ovarian string and artery had been partially attached to fat and was partially free floating. Another ligature was attached to fat mesentery in the caudal abdomen adjacent to the uterine strings and artery. Several sutures had been attached primarily to fat. There was a great deal of clotted blood in the abdominal cavity. The cause of Yahara's death was internal hemorrhaging, followed by shock and eventual death. The internal hemorrhaging was caused by Respondent's failure to properly tie off the severed ovarian and uterine arteries during the spay procedure. Yahara was a healthy dog before the spay procedure. The spay procedure on Yahara was not performed properly by Respondent in view of the standard of care exercised in the practice of veterinary medicine in the State of Florida There was no direct evidence that the premises utilized by Respondent in the practice of veterinary medicine were maintained in an unsanitary condition. The inspection reports were the only evidence that the premises had been kept in an unsanitary condition. These inspection reports were compiled by persons who were not witnesses at the hearing. None of Petitioner's witnesses had observed the premises before the Administrative Complaint was filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Professional Regulation, Board of Veterinary Medicine, enter a final order which finds Respondent guilty of violating the provisions of Section 474.215, Florida Statutes, as alleged in Count I of the Administrative Complaint, which finds Respondent guilty of violating the provisions of Section 474.214(1)(o), Florida Statutes, as alleged in Count II of the Administrative Complaint, which finds Respondent not guilty of having violated the provisions of Section 474.214(1)(d), Florida Statutes, as alleged in Count III of the Administrative Complaint, and which further finds Respondent not guilty of having violated the provisions of Section 474.214(1)(v), Florida Statutes, as alleged-in Count IV of the Administrative Complaint. For his violation of Section 474.214(1)(o), Florida Statutes, it is recommended that Respondent's license to practice veterinary medicine in the State of Florida be suspended for a period of ten days, that Respondent's license be thereafter placed on probation for one year, and that an administrative fine in the sum of $1,000.00 be imposed against Respondent. It is further recommended that there be no additional penalty imposed for Respondent's violation of Section 474.215, Florida Statutes, because of the action taken by Respondent following the notice of violation. DONE AND ENTERED this 31st day of August, 1989, 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 31st day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-642 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. The proposed findings relating to the inspection reports are rejected because the contents of the inspection reports are hearsay. Addressed in paragraph 3. Addressed in paragraph 4. Rejected as being unnecessary to the results reached. Addressed in paragraph 9. The proposed findings of subparagraphs A., B., C., and E. are rejected as being speculative and as being unsupported by competent, substantial evidence. The proposed findings of subparagraph D. are addressed in paragraph 7 and are subordinate to the findings reached in paragraph 9. The proposed findings of subparagraph F. are rejected because Petitioner failed to establish that the medical record introduced as Petitioner's exhibit 1 constituted all the records kept by Respondent on this matter. Addressed in paragraphs 5 and 6. Addressed in paragraphs 7 and 8. Rejected as being based only on hearsay evidence. Rejected as not being a finding of fact. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-4. Addressed in paragraph 2. Rejected as being irrelevant and unnecessary to the conclusions reached. Rejected as being recitation of testimony. 7-9. Rejected as being conclusions of law and as being unnecessary to the results reached. 10. Rejected as being unnecessary to the results reached. 11-14. Rejected. Dr. Wise's report identified the dog upon which Dr. Wise performed the autopsy as being the dog Mr. Rolon brought to him. 15-16. Rejected as being unnecessary to the results reached. 17-20. Rejected as being unnecessary to the results reached. 21-22. Rejected as being contrary to the evidence. Rejected as being unnecessary to the results reached. Addressed in paragraph 2. Addressed in paragraph 10. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Juan C. Elso, Esquire 1331 Southwest 85th Court Miami, Florida 33144 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Linda Biedermann, Executive Director Department of Professional Regulation Board of Veterinary Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 ================================================================= AGENCY AMENDED FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF VETERINARY MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs DPR CASE NUMBER: VM 0098214 DOAH CASE NUMBER: 89-0642 SALVADOR ALDEREGUIA, D.V.M., LICENSE NUMBER: VM 0002694 Respondent. /
