Findings Of Fact The Respondent, Willia's Bahamas Home Care Center (Willia's), is an Assisted Living Facility (ALF) located at 125 W. Dixie Highway, Riviera Beach, Florida, with a standard license to operate an ALF for 24 residents. Petitioner, Agency for Health Care Administration (Agency), surveyed the facility on November 9, 1994 and cited deficiencies. A time frame was given to the facility for the correction of thirty deficiencies. As a result of the survey of November 9, 1994, the facility was issued a conditional license. On September 28, 1995, a fire inspector from the Riviera Beach Fire Department conducted an appraisal visit of the facility. Many deficiencies were cited and the facility was furnished with a letter dated September 29, 1995, listing the deficiencies and requesting that Willia's notify the Fire Department when the deficiencies were corrected so that the Fire Department could conduct a follow up inspection. During the September 28, 1995, visit, the fire inspector noticed that a lawn mower was in an inside room with a container of combustible liquid next to a gas water heater. This condition posed an immediate threat to the residents of the facility and the fire inspector had the facility move the lawn mower before he left the facility. The fire inspector also noted on the September 28 visit that the fire alarm system was not working. The fire alarm system had been out of service for some time and was not being monitored. There were no reports of testing or inspection of the fire alarm system. The lack of a working fire alarm system prevented immediate identification of a fire problem, the immediate alerting of the residents for escape, and the immediate notification to the fire department. On January 4, 1996, an employee of the Riviera Beach Fire Department, made a follow-up visit to Willia's. The fire alarm system was still non- functional and had been since July, 1995. The facility is a two-story building which does not have a sprinkler system. The lack of a functional fire alarm system posed a threat to the safety of the residents. On September 28, 1995, the Environmental Services' section of the Department of Health and Rehabilitative Services conducted an appraisal visit of the facility. Deficiencies were cited and the facility was furnished with an inspection report dated September 28, 1995, which listed the deficiencies. The following deficiencies were a threat to the health, safety, and welfare of the residents: 1) hot water at a temperature of 122 degrees Fahrenheit; 2) an extension cord that was too long which presented a trip hazard; and 3) protruding nails. On October 13, 1995, Environmental Services conducted a follow-up visit and found that the most serious of the deficiencies had been corrected. On September 28, 1995, the Agency conducted an appraisal visit of Willia's along with Nathan Wetiz, a member of the Ombudsman Council. Thirty one deficiencies were cited. Fifteen of these deficiencies had been previously cited during the November 9, 1994, visit by the Agency. The facility was given a statement of deficiencies along with a time frame for correcting the deficiencies. Some of the residents of the facility were entitled to receive personal funds from OSS/SSI. The records at the facility showed that the residents were being asked to sign for the funds two months before the funds were due to be disbursed. At the time of the September 28, 1995 appraisal visit both Mary Jane Battaglia, R.N. and Mr. Weitz found that residents' medications were being recorded in error. Medications were recorded as having been administered on the day after the survey. The records showed that residents were not being given their medications at the prescribed times. The nurse counted the medications of one resident and compared them with the medication record and found that there were medications which were not being given as prescribed. Such medications included Persantin which reduces blood clots and Verapamil which reduces the heart rate and prevents strokes. During the September 28 visit, Ms. Battaglia discovered that one resident was inappropriate for an ALF. This resident required the assistance of two people to help her stand. The resident was unable to propel herself in a wheel chair and had diminished vision. She had to be given her medications, which were being administered by unlicensed staff. The resident needed 24-hour nursing supervision. During the visit, Mrs. Mackey was observed being verbally abusive to the resident, telling her to shut up and calling her stupid. In addition to the deficiencies discussed in the preceding paragraphs, the following deficiencies were also cited. The weight records of the residents were being filled in without weighing the residents, thereby threatening the residents's health since there would be no way to track whether the residents were actually losing weight. One resident was being restrained by 3/4 bedside rails without a physician's order. Activities were not being provided for the residents. There was no documentation that the nutritional needs of the residents were being met. Menus were not being reviewed by a licensed dietitian. The posted menus were not being followed and the meals were not served on time. Two screw-in fuses were missing in the day room, which could lead to residents being shocked. On October 10, 1995, the Agency advised the facility that it was being placed under a moratorium. At that time Willia's had a census of nine residents. By letter dated October 17, 1995, the Agency gave written notification to the facility of the moratorium. A follow-up visit was conducted on November 29, 1995 by Joe Narkier and Nathan Weitz. Twenty deficiencies were cited including nineteen uncorrected deficiencies and a violation of the moratorium imposed on October 10, 1995. Eleven of these deficiencies were deficiencies which had been cited during the November 9, 1994 survey. At the time of the November 29 revisit, the following conditions still threatened the health, safety, and welfare of the residents. The fire alarm system still was not working. There was an inappropriate resident in the facility, who needed care beyond that which the facility was licensed or staffed to provide. Medication records were inaccurate. Semi-annual weights were still not being recorded for all residents. Menus were not being followed and meals were not being served on time. Another follow-up visit was conducted on January 10, 1996. The deficiencies which were noted in the November 29 visit had not been corrected. Administrative Complaint number 9-95-639 ACLF was issued against Willia's, fining the facility $2,400 as a result of twelve deficiencies which were found at the November 9, 1994 survey which were repeat violations found during the September 28, 1995 appraisal visit. No hearing was requested by the facility. A Final Order was issued by the Agency on December 1, 1995, imposing the fine against Willia's for the repeat deficiencies alleged in the administrative complaint. At the final hearing Mrs. Mackey, the administrator of Willia's stated that she was going to voluntarily surrender her license to the Agency. She tendered the license to the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered affirming the imposition of the moratorium. DONE AND ENTERED this 15th day of February, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 15th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5676 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the Petitioner's proposed findings of fact: Petitioner's Proposed Findings of Fact: Paragraphs 1-9: Accepted in substance. Paragraph 10: Accepted to the extent that the resident were signing for funds before the funds were due to be disbursed. Rejected that the residents were not receiving funds as hearsay. Paragraphs 11-12: Accepted in substance. Paragraph 13: The tenth sentence is rejected as hearsay. The remainder is accepted in substance. Paragraph 14: Accepted in substance. Paragraph 15: The eighth sentence is rejected as hearsay. The tenth sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as unnecessary. Paragraph 18: Accepted in substance. Paragraph 19: Accepted in substance to the extent that Mrs. Mackey intended to voluntarily surrender the license for the facility. Respondent's Proposed Findings of Fact: The Respondent did not file proposed findings of fact. COPIES FURNISHED: Linda L. Parkinson Senior Attorney Agency For Health Care Administration Division of Health Quality Assurance 400 West Robinson Street, Suite S-309 Orlando, Florida 32801-1976 Willia Mae Mackey Owner/Administrator Willa's Bahamas Home Care Center 125 Old Dixie Highway Riviera Beach, Florida 33404 R. S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue Whether the petition for administrative determination of the invalidity of a proposed rule was filed within the time Section 120.54(4)(b), Florida Statutes (1987), prescribes for instituting challenges to proposed administrative rules?
Conclusions The time limit Section 120.54(4)(b), Florida Statutes (1987) sets for filing petitions which seek determinations of invalidity under Section 120.54, Florida Statutes (1987), before proposed rules ever take effect, is jurisdictional Department of Health and Rehabilitative Services vs. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979); Organized Fishermen of Florida vs. Marine Fisheries Com'n, No. 88-3821R (DOAH; Sept. 14, 1988); City of Gainesville vs. Florida Public Service Com'n., 3 FALR 2448-A (DOAH 1981). Contra, Florida Medical Center vs. Department of Health and Rehabilitative Services, No. 88- 3970R and consolidated cases, Nos. 88-4018R and 88-4019R (DOAH; Nov. 1, 1988). If a petition challenging a proposed rule is not filed within 21 days of the notice initiating rulemaking which Section 120.54(13)(b), Florida Statutes (1987) requires agencies to publish, those seeking invalidation are relegated to rule challenge proceedings under Section 120.56, Florida Statutes (1987), unless they are parties to the rulemaking, and take timely stems to secure judicial review of the agency action adopting the rule. See City of Key West vs. Askew, 324 So.2d 655 (Fla. 1st DCA). Substantially affected parties who fail to file a Section 120.54 challenge in time are not without an administrative forum in which to litigate both whether the substance of a rule is authorized by statute and whether the manner of its adoption was lawful. Since the petition alleges no constitutional infirmity in the rule, nothing petitioners have pleaded here would be foreclosed from consideration in a Section 120.56 proceeding. See Department of Environmental Regulation vs. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977). On appeal from an order invalidating an existing rule which had been challenged pursuant to Section 120.56, Florida Statutes (1987), the court in Department of Administration vs. Herring, 530 So.2d 962 (Fla. 1st DCA 1988), while rejecting the hearing officer's conclusions, considered the propriety of the procedures employed in rulemaking. Challenges to existing rules on grounds of inadequacy of economic impact statements are other instances in which rulemaking procedures have been tested in Section 120.56 proceedings. See Department of Health and Rehabilitative Services vs. Delray Hospital Corp., 373 So.2d 75 (Fla. 1st DCA 1979). Even where an agency makes no claim that it has followed any of the procedures required for rulemaking, challengers must ordinarily file under Section 120.56, Florida Statutes (1987). See State, Department of Administration vs. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). The petition in the present case may be read as alleging that DER published notice of proposing a mitigation rule in June of 1987, although the Florida administrative Weekly reflects publication on May 1, 1987. But it is clear from the petition that more than a year elapsed, after publication, before the present petition (or the earlier petition dismissed July 21, 1988) was filed. This makes the petition untimely under Section 120.54, Florida Statutes (1987) It is, accordingly, ORDERED: The petition for administrative determination of the invalidity of a proposed rule is dismissed, without prejudice to the filing of a petition pursuant to Section 120.56, Florida Statutes (1987). DONE and ENTERED this 15th November, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, FL 33704 David A. Crowley, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399 Janet E. Bowman, Esquire P.O. Box 1876 Tallahassee, FL 32302 James S. Alves, Esquire Thomas T. M. DeRose, Esquire P.O. Box 6526 420 First Florida Bank Building Tallahassee, FL 32314 Lawrence E. Sellers, Jr., Esquire P.O. Drawer 810 Tallahassee, FL 32302 Cindy L. Bartin, Esquire P. O. Box 271 Tallahassee, FL 32302
Findings Of Fact On April 24, 1992, Respondent issued a Request for Proposals for the provision of housekeeping services at South Florida State Hospital. The responses to the RFP were due June 5, 1992. A bidder's conference was scheduled for May 15, 1992. On page 21 of the RFP, the bidders are advised, in pertinent part, as follows: ... each proposal must contain a line item budget with detailed narrative justification for each expenditure category. A separate budget must be completed for each contract period ... The statement contained on page 21 of the RFP was repeated on page 31 of the RFP. Pages 70-72 of the RFP contained the RFP Rating Sheet to be used by Respondent's evaluation committee. Bidders are clearly notified that these criteria are considered to be "fatal items" and are advised: The following criteria must be met for the proposal to be considered for evaluation, failure to receive a "Yes" response for any [item] will result in automatic rejection of the proposal. (Emphasis in the original.) Listed as "fatal item" numbered 8 on page 71 of the RFP is the following: Does the proposal contain completed charts (page 11 through 14) and line item budgets for each contract period? Petitioner timely submitted a bid in response to the RFP. Petitioner had bid on prior contracts that Respondent had procured through the competitive bid process and was, at the time of the issuance of the RFP, the contract provider of the housekeeping services at South Florida State Hospital. Petitioner contends that its response to another item should be construed as an appropriate response to the requirements pertaining to line item budgets. This contention is without factual basis and is rejected. The bid submitted by Petitioner in response to the RFP did not contain a line item budget. Respondent's evaluation committee disqualified Petitioner's bid because it did not contain a line item budget as required by the RFP. On May 15, 1992, Respondent held a bidder's conference at which bidders were given the opportunity to ask questions about the bid requirements and specifications prior to the submission of bids. Petitioner was represented at the bidder's conference by Ritter Von Massenbach, who took notes at the meeting and who paid close attention to the discussion pertaining to fatal items. The minutes of the bidder's conference reflect that the bidders were told that a bid that failed to comply with a fatal item requirement would be disqualified. There were questions and answers as to how the bidders could meet the bid requirements pertaining to line item budgets and a specific discussion, with examples, as to what information Respondent expected to be contained in a line item budget. Mr. Massenbach was not instructed to ask about the line item budget requirement, nor did he do so. Mr. Massenbach reported to Andy Kontos, Petitioner's senior vice president, by telephone following the bidder's conference, but there was no discussion as to the line item budget requirement. Thereafter, Mr. Kontos prepared the bid that was submitted by Petitioner. An addendum to the bid along with the minutes of the Bidder's Conference was mailed to all bidders, including to Petitioner at the business address it had given Respondent, by certified mail, return receipt requested. This certified mailing was unclaimed by Petitioner and subsequently returned to Respondent on July 14, 1992, as being "unclaimed." The mailing envelope reflects that the package was postmarked on May 29, 1992, and that attempts at delivery were made on June 1, 1992, June 8, 1992, and June 16, 1992. Bids in response to the RFP were due June 5, 1992. The addendum did not pertain to or change in any material manner the fatal item requirement for a line item budget. Petitioner's contention that specific information as to what Respondent intended by the term "line item budget" was unclear and should have been included in an addendum is unsupported by the evidence and is, consequently, rejected. There was no evidence that Respondent was using the subject fatal item requirement to discriminate against or in favor of any proposer. Petitioner failed to establish that its failure to comply with the subject fatal item requirement was attributable to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the bid protest filed by Petitioner. DONE AND ORDERED this 8th day of October, 1992, 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 8th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4312BID The only post-hearing submittal filed by Petitioner is in the form of a letter addressed to the Hearing Officer. That letter contains argument, but not proposed findings of fact. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 5, 6, 7, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order. The proposed findings of fact in paragraph 4 pertaining to the reasons Mr. Massenbach paid attention to the fatal items discussion are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Intervenor. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 21, 22, 23, 27, 28, 29, 30, 32, 33, and 34 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 10, 18, 25, 26, 31, 35, 36, 37, 38, 40, and 42 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 20 are rejected as being unsubstantiated by the evidence. There was no evidence as to what was "made clear" to each bidder. The proposed findings of fact in paragraph 24 are rejected as being unnecessary to the conclusions reached since there is no contention on the part of Petitioner that it was prevented from making inquiry. The proposed findings of fact in paragraphs 39 and 41 are rejected as being argument. COPIES FURNISHED: Rey J. Nieto, President Andy Kontos, Vice President Allstate Specialty Services, Inc. 371 West 21st Street Hialeah, Florida 33010 Colleen A. Donahue, Esquire Department of Health and Rehabilitative Services District 10 Legal Office Room 513 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Stephen G. Murty, Esquire Jay R. Tome, Esquire Murty and Tome, P.A. 777 Brickell Avenue Miami, Florida 33131 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On December 30, 1991, the Petitioner, Peter B. Dolinger, filed a Petition for Administrative Determination of Rule Validity. In the Petition, the Petitioner challenged Rule 33-11.013, Florida Administrative Code, pursuant to Section 120.56, Florida Statutes. The Petitioner alleged that he was serving a county jail sentence of one year, imposed on March 4, 1991. Subsequent to the filing of the Petition, the Petitioner was released from custody. The Petitioner is no longer subject to the rules of the Respondent, including the Challenged Rule. The Petitioner has failed to allege any facts which would support a conclusion that he is currently subject to the Challenged Rule or that the Challenged Rule has any continuing impact on him. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of allegations that the Respondent has violated subparagraphs (m), (q), and (t) of Section 458.331(1), Florida Statutes, by allegedly failing to keep written medical records justifying the course of treatment of a patient, by allegedly prescribing legend drugs other than in the course of the physician's professional practice, and by allegedly failing to practice medicine with the level of care, skill, and treatment recognized as acceptable by a reasonably prudent similar physician.
Findings Of Fact The Respondent is and has been at all times material hereto, a licensed physician, having been issued license number ME 0025256 by the State of Florida. The Respondent has been licensed for approximately forty years and is Board certified in Internal Medicine. He practices Rheumatology. Diazepam is a Schedule IV controlled substance pursuant to Chapter 893, Florida Statutes. Roxicet is a generic form of Percocet, a legend drug containing oxycodone, a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Seconal is a legend drug containing Secobarbital, a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. The Patient T. P., a 40-year-old male, initially presented to the Respondent on or about May 14, 1991, with complaints of lower back pain and right side sciatica leg pain, which the Respondent treated with various legend drugs. The Respondent's records indicate that the Patient T. P. returned to the Respondent's office on a monthly basis from May of 1991 until April of 1993. On each visit, the Respondent prescribed multiple legend drugs to treat the Patient T. P.'s lower back pain and right side sciatica leg pain. Between December 19, 1991, and April 29, 1993, the Respondent prescribed to the Patient T. P. a total of eleven hundred ninety tablets of 10mg generic diazepam, eleven hundred ninety tablets of Percocet or Roxicet (oxycodone), and four hundred fifty capsules of Seconal. These quantities of drugs prescribed by the Respondent to the Patient T. P. during the course of his treatment were appropriate amounts. On or about April 30, 1993, the Patient T. P. was found dead in a Broward County hotel room of a drug overdose. Empty bottles of Valiums and Seconals prescribed by the Respondent to Patient T. P. were found at the scene of death. 2/ The Respondent did not refer the Patient T. P. to an orthopedic surgeon or to a neurosurgeon. The Respondent's medical records for the Patient T. P. do not contain any documentation of a referral of the patient to an orthopedic surgeon or neurosurgeon. The Patient T. P. had previously been treated by an orthopedic surgeon and the Respondent had in his possession the records related to that prior treatment. The Respondent did perform appropriate neurological and orthopedic evaluations of the Patient T. P. The evidence in this case is insufficient to establish that the Respondent failed to keep written medical records justifying the course of treatment of the Patient T. P. 3/ To the contrary, the persuasive evidence is to the effect that the Respondent's records at issue here, although sparse and brief, were sufficient. 4/ The evidence in this case is insufficient to establish that the Respondent prescribed legend drugs other than in the course of his professional practice. To the contrary, the persuasive evidence is to the effect that the drugs prescribed to the Patient T. P. were reasonable under the circumstances. The evidence in this case is insufficient to establish that the Respondent failed to practice medicine with the level of care, skill, and treatment recognized as acceptable by a reasonably prudent similar physician under similar circumstances. To the contrary, the persuasive evidence is to the effect that the Respondent's care and treatment of the Patient T. P. was consistent with acceptable standards of care under the circumstances.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 12 th day of January, 1994 , at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 12th day of January, 1994.
Findings Of Fact Respondent is comprised of 12 physicians and three members of the public. Respondent carries out the provisions of Chapter 458, Florida Statutes (the "Medical Practice Act"). Respondent's primary purpose is to ensure that physicians who practice medicine in the state meet the minimum requirements for safe practice and to prohibit the practice of medicine by those who are incompetent or unsafe. Respondent is not an employer for the purposes of this proceeding. Respondent does not employ anyone, does not serve as an employment agency or job training service, and is not a labor organization or trade association. Petitioner is a Cuban born, foreign trained individual who is seeking licensure by endorsement. Respondent graduated from the University of Camaguey, a Cuban medical school. Background When Petitioner initially applied for licensure on October 26, 1983, the University of Camaguey was not listed in the World Health Organization World Directory Of Medical Schools. The University of Camaguey was listed in a subsequent edition published after Petitioner was denied licensure in 1983. Petitioner, received a valid certificate from the Educational Commission on Foreign Medical Graduates on August 16, 1984. Respondent denied Petitioner's initial application for licensure on the ground that Petitioner failed to show that he possessed a valid certificate from the Educational Commission on Foreign Medical Graduates. A formal hearing was conducted on August 29, 1984, by Hearing Officer R.T. Carpenter, in Case No. 84- 2684. The Recommended Order issued on October 3, 1984, found that Petitioner had graduated from a recognized medical school and had obtained a valid certificate. Respondent was to consider the Recommended Order at its regularly scheduled meeting on February 3, 1985. In July, 1984, Petitioner was working at a medical clinic when a patient suffered a cardiac arrest while being administered anesthesia by Petitioner. Petitioner was charged with a felony violation of practicing medicine without a license. Petitioner entered into a plea bargain agreement in the criminal case in which Petitioner withdrew his application for licensure, entered a plea of nolo contendere, and was placed on probation. Respondent permitted Petitioner to withdraw his application for licensure and took no action on the application. Respondent satisfactorily completed his criminal probation and re- applied for licensure on January 27, 1987. Respondent denied the application on June 7, 1987, on the grounds that the criminal conviction rendered Petitioner morally unfit to practice medicine, that Petitioner had not demonstrated he could practice medicine with skill and safety, and that Petitioner had not graduated from an accredited medical school. A formal hearing was conducted on January 5, 1989, by Hearing Officer Linda M. Rigot, in Case No. 88-0270. A Recommended Order was issued on March 30, 1989, finding that Petitioner had graduated from an accredited medical school, that Petitioner had been rehabilitated, and that Petitioner should be licensed to practice medicine. Before Respondent considered the Recommended Order in Case No. 88-0270, Petitioner was charged with practicing medicine without a license in the field of plastic surgery. A subsequent formal hearing was conducted by Hearing Officer Rigot on December 21, 1990. The Supplemental Recommended Order issued on March 6, 1991, found that Petitioner had knowingly practiced medicine without a license in April, 1989, and that Petitioner was not rehabilitated from his prior conviction. The Supplemental Recommended Order recommended that Respondent deny Petitioner's application for licensure. Respondent adopted the Supplemental Recommended Order in a Final Order issued on May 24, 1991, which is currently pending appeal. No Unlawful Discrimination Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's licensure application. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's licensure application was based upon Petitioner's failure to satisfy applicable statutory criteria for licensure, his commission of acts constituting violations of the Medical Practice Act, and his failure to demonstrate rehabilitation and good moral character. From 1987-1991, Respondent has certified 10,963 applicants for licensure as physicians by endorsement. Approximately 3,479, or 31.7 percent, were foreign-trained applicants.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida. DANIEL S. MANRY 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021 Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted in finding 1. 2. Accepted in finding 2. 3. Accepted in finding 10 4. Rejected as conclusion of law. 5. Accepted in finding 4. 6. Accepted in finding 5. 7. Accepted in finding 7. 8. Accepted in finding 9. 9.-10. Accepted in finding 10. 11. Rejected as irrelevant and immaterial. 12. Accepted in finding 11 13. Rejected as irrelevant and immaterial. COPIES FURNISHED: Marcelino D. Mata 158 East 47th Street Hialeah, Florida 33013 Ann Cocheu Assistant Attorney General Department of Legal Affairs PL01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
The Issue At issue herein is whether or not the Respondent has engaged in conduct violative of Section 459.14(2)(a), Florida Statutes. 1/
Findings Of Fact Based upon the testimony adduced at the hearing and the entire record compiled herein, the following relevant facts are found. Pursuant to an Administrative Complaint filed herein dated July 8, 1978, the Florida State Board of Osteopathic Medical Examiners, herein sometimes referred to as the Board, seeks to discipline the Respondent/Licensee, Albert Jack Berg, based upon an Order of Summary Suspension entered against Respondent's Michigan Osteopathic license on February 16, 1977. The basis for the summary suspension in Michigan was a charge that Respondent had engaged in the unlawful sale and delivery of a controlled substance. Respondent was noticed of a hearing which was convened on May 9, 1978, to consider the allegations of the alleged unlawful delivery of the controlled substance. On July 10, 1978, a Final Order of Revocation was entered by the Board of Osteopathic Medicine and Surgery of Michigan, revoking Respondent's license to practice osteopathic medicine and surgery in Michigan. 2/ Respondent did not contest, at the hearing, the material allegations of the Administrative Complaint, but rather, offered mitigating evidence. In this regard, the evidence reveals that the Respondent has been licensed in Michigan since approximately July of 1961 and has been licensed in Florida since approximately 1972 (License No. 3460). In relating the circumstances surrounding his arrest in Michigan in February of 1977, Respondent avers that he was under tremendous emotional strain due to a divorce and that resultant pressures brought about from being a father of four children whose wife threatened suicide and being left with the task of rearing children alone. He related that he was undergoing parental pressure to remarry his wife and that he carried an excessive overload in his office practice. Respondent delivered several thousand Amphetamine tablets to an undercover agent in Michigan. The Amphetamine tablets had been in Respondent's possession for more than seven years and a laboratory analysis revealed that they contained ten percent (10 percent) of the Amphetamine content found in a commercially sold Amphetamine tablet. For his conviction in the State of Michigan, Respondent was initially sentenced for a period of two years, which sentence was later reduced to six months in jail, and he was thereafter released during the day hours to serve in a community guidance center under the supervision of a Dr. Richard M. Brown of Michigan. As evidence by the letter of recommendation from Doctor Brown, Respondent worked in ghetto areas of Detroit, Michigan, treating in excess of one hundred patients on a weekly basis for a period of approximately five months. Respondent has been under the care of a psychiatrist since approximately August of 1977, where he has been placed on a high protein diet with a reduced work load. Respondent presently attends "How To Control Your Life" seminars and is presently doing "pro bono publico" work for agricultural referral centers. Respondent purchased a degree from a school in Louisiana that issued medical doctor (M.D.) degrees to persons such as himself. He was motivated to purchase the degree based on instructions from a publisher who was interested in contracting to publish a book that Respondent was then writing. Respondent wrote a letter to the American Cancer Society withdrawing the "M.D." designation from his title. (Respondent's Exhibit 1.) If allowed to continue practice in Florida, Respondent intends to maintain a "ghetto" practice in order to provide medical services to the disadvantaged and those unable to pay the usual fee for such services. Respondent related that he did what sick physicians normally do; that is, turn to (1) drugs, (2) alcohol or (3) suicide. Respondent referred to an article published by the American Medical Association entitled, "The Sick Physician", dated February 5, 1973. (Respondent's Exhibit 2.) An examination of the pre-sentence memoranda submitted by Respondent to the Michigan authorities reveals that he has accounted for the mistakes and problems that he encountered in the State of Michigan during early 1977 and based on such memoranda, it is obvious that he recognized that a mistake was made and curative efforts have been taken (by Respondent) to rehabilitate himself. (Respondent's Composite Exhibit 3.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent be placed on probation in the State of Florida for a period of two (2) years. During the above two-year period of probation, it is RECOMMENDED that the Respondent be directed to engage only in the performance of medical services in a community service organization, with semi-monthly reporting requirements in a manner prescribed by the Board to its agents. RECOMMENDED this 21st day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1980.
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Findings Of Fact The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126. The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan. On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting. Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him. On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas. On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing. Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address. The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Respondent the Agency enter its Final Order finding the violation of Section 458.331(1)(b), Section 458.331(x) and 458.331(1)(kk) and, Florida Statutes, and revoking the Respondent's license to practice medicine in Florida. DONE and ENTERED this 28th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN 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 28th day of February, 1997.
