The Issue Should discipline be imposed against Respondent's license to practice dentistry for violation of Sections 456.072(1)(r) and 466.028(1)(s), Florida Statutes (2005)?
Findings Of Fact Facts Admitted in Response to Petitioner's Request for Admissions The Petitioner is the State Agency charged with the regulation of the practice of dentistry pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 466, Florida Statues. Respondent is Robin Young. At all times material to the Administrative Complaint, Respondent was licensed in the state of Florida to practice dentistry, having been issued license number DN 12815. Indian River Health Department (Indian River) hired Respondent as a dentist on or about March 2005. Indian River notified Professional Resources Network (PRN) on or about September 12, 2005, that Respondent had been placed on compulsory leave until Respondent had an evaluation due to paranoid behavior. On or about September 27, 2005, Respondent presented to a PRN approved evaluator, Dr. Martha Brown, for evaluation. Dr. Brown's diagnosis for Respondent was: Axis I- Psychosis NOS; Axis II-R/O Axis II Disorder; Axis III-None Known; Axis IV-Moderate: Axis V-Current GAF=>50. A letter from PRN was sent on October 19, 2005, advising Respondent of in-patient evaluation options and directing Respondent to complete the confidentiality forms and return them to PRN. Respondent did not comply with the requirements of the October 19, 2005, PRN letter. A dentist must cooperate with a departmental investigation related to the proper and lawful regulation of the practice of dentistry. A dentist's willful evasion of service of a valid Department Order violates the level of professional conduct expected of one licensed to practice dentistry in the state of Florida. Respondent did not complete and return to PRN the specified confidentiality forms that were provided in the certified and signed for October 19, 2005, correspondence from PRN. Interfering with an investigation or inspection authorized by statute, or with any disciplinary proceeding is grounds for disciplinary action by the Board of Dentistry (the Board). Mental fitness, sober thinking and decision-making ability along with emotional stability are essential traits a dentist must possess in order to competently practice dentistry. License Status At present the status of Respondent's dental license is one of emergency suspension. Respondent's Background Respondent graduated from dental school in 1990 and began her practice in 1991 following her licensure by the State of Florida to practice dentistry. Since that time Respondent has practiced in private dental offices and public health clinics. Respondent's employment in public health clinics included her position at Indian River beginning in March 2005. Respondent's position with Indian River was as a senior dentist. Respondent's Recollection When Respondent began her employment at Indian River she commuted from another town to the job location in Vero Beach, Florida. In June 2005, she moved to Vero Beach and lived in a community referred to as Point West. This community was a new residential community that was still under construction when Respondent took up residence. On Monday through Friday Respondent lived alone in the residence at Point West. On occasion her relatives would live with her in that home. At the time Respondent was the only one living in the immediate area of her neighborhood. Respondent first leased her home. By this arrangement a Tom Moore, with whom the Respondent entered into the lease, could enter the home, although he should not have done so without Respondent's permission. The Respondent describes one instance in which when approaching her home from a street in back of the home, she found the garage door approximately one-third of the way open and observed a light on in the residence. Respondent called the police on occasion because of her concerns about her safety. The calls about safety were in relation to noises heard by Respondent. The noises were ultimately identified as being related to systems within the home that supported the lawn sprinkler system. A mailbox was damaged at Respondent's home. A call to the police had been made about the damage to the mailbox as well. In addition, a call to the Sheriff's Department had been made about the mailbox destruction. On July 1, 2005, while driving to her work, Respondent was stopped by a traffic officer and given a warning citation for speeding. The citation was written in the parking lot of the Indian River facility. As Respondent describes it, she had a sense of great humiliation and embarrassment, especially in view of the number of co-workers who were entering the facility while she was being given the warning for her driving offense. After Respondent entered the building she went into her office and closed the door and decided not to see her patients scheduled to be seen for dental care. She reached this decision because of her upset due to receiving the traffic citation. Respondent told Joyce Clemmons an employee at Indian River that she wanted Ms. Clemmons to call Joelle Wilmott, the Personnel Manager at Indian River and have Ms. Wilmott come to Respondent's office because Respondent intended to leave for the day. Before Ms. Wilmott came to see Respondent in her office, Miranda Swanson, the Assistant Administrator for Indian River came into Respondent's office and Ms. Swanson was informed of the issuance of the warning citation for Respondent's driving performance. Ms. Swanson attempted to console Respondent. Respondent had been crying before Ms. Swanson entered the office. Then Ms. Wilmott came into Respondent's office and was provided an abbreviated recount of the traffic stop. This explanation was made by Respondent. Respondent told Ms. Wilmott that she would not be seeing patients that day. Respondent was desirous of making Ms. Wilmott aware of that choice directly. Respondent told Ms. Wilmott that she was leaving. Respondent's assumption was that the patients she was scheduled to see would be rescheduled. When Respondent was provided the traffic citation warning, she told persons that worked at Indian River that she resented being a made into a statistic. As she explained at the hearing, she was referring to being Black and being profiled while driving and the need for law enforcement officers over the July 4, 2005, holiday to meet quotas. She considers herself to be an easier target in that she is a Black person. On another occasion two of the employees at Indian River were leaving their employment. In honor of their departure, someone approached Respondent about participating in a "pot-luck lunch" the next day. Respondent was asked if she wished to bring something to the luncheon. Respondent indicated that she would provide a fruit platter. To facilitate the preparation of this food Respondent bought a small knife, as well as a disposable plastic platter. The type of knife was not one that Respondent would keep in her home. When Respondent brought the fruit platter and knife into the building she asked another employee to assist in the preparation of the fruit on the platter. Respondent had no interest in participating in the social function. When treating patients Respondent differentiated between adult patients and children. For children in the age group two to four years old, Respondent introduced herself and commented about the patients' clothing, whether they had pets or she might discuss cartoon characters with the children. To some extent Respondent would "play-act" with the children who were being treated. Tracy Green was the Respondent's Dental Assistant. In mid August 2005, Ms. Green told Respondent that her eight or nine-year-old daughter had been diagnosed with strep throat and was being kept home from school. During this period, Ms. Green would come into Respondent's office and use the telephone. After the diagnosis of Ms. Green's child having strep, the child was seated in a clerical chair in Respondent's office. In the face of these events Respondent began to sense that she, meaning Respondent, had symptoms which she believed might be strep throat. As a consequence she determined to spray the telephone in her office with disinfectant. The disinfectant was Cavicide. After spraying disinfectant on her telephone she left a note attached to the phone which said "Dr. Young is out ill, the phone has been disinfected" and the further reference "do not use it." Respondent also unplugged part of the telephone. The reaction by Respondent to disinfecting the telephone and leaving a note about its use, was with belief on her part that Ms. Green's child had strep throat and Ms. Green had been exposed to the child's illness and returned to work after that. In the clinical setting at Indian River there were times when noises distracted Respondent from her work. Respondent considered taking a self-defense course to protect herself. In this connection, she heard an advertisement about an upcoming gun show in the central Florida area where she lived. Respondent considered attending the gun show to find out if she could participate in self-defense courses. She determined not to attend the gun show and to rely upon law enforcement to protect her, no matter how many times they had to be called out to offer protection. On September 2, 2005, Ms. Wilmott came to Respondent's office at Indian River. The purpose of the visit was to discuss Respondent's tardiness, that is, her being late for work. During the conversation Respondent made mention of calls that she had made to law enforcement officials to include the problem with Respondent's mailbox being destroyed, the garage door being partially opened and the unusual sounds which Respondent heard. Respondent also commented that for the first time in her life that she had considered self-defense by attending a gun show. On September 12, 2005, Respondent was called to an 11:30 a.m. meeting at Indian River to discuss her performance and the need to undergo a compulsory psychiatric evaluation based upon the observations made of Respondent in carrying out her duties at Indian River. The invitation to attend the meeting was made by Dr. David Holtzcalew, Respondent's supervisor at Indian River. Those in attendance included Respondent; Dr. Holtzcalew; Donna Korora, Esquire, attorney for Indian River; and Joe Guarine, a psychotherapist. When the meeting commenced Ms. Korora stated that the Administrator at Indian River had asked Ms. Korora to speak to Respondent. Ms. Korora said that she was going to read a letter to Respondent concerning compulsory disability leave to undergo the psychiatric evaluation. Respondent's reaction was that she did not have legal representation at the meeting and did not wish to proceed in the absence of a legal representation. After the meeting Respondent left the building. Respondent was provided written information concerning the need for compulsory psychiatric evaluation from the perception of the officials at Indian River. That written material was provided on September 12, 2005. Respondent was told that failure to sign the documents could lead to her being reported as an impaired practioner. The documentation was provided at Respondent's residence at Vero Beach, Florida. The documentation received by Respondent indicated on its lead page that it pertained to the subject "compulsory disability leave." On June 22, 2006, an investigator with DOH, Shawn K. McAlleer, went to Respondent's residence at 1575 Paul Russell Road, Tallahassee, Florida. (The purpose of that visit was to serve Respondent with a order compelling a mental examination.) Respondent would not take the papers from Mr. McAlleer. Respondent indicated that she would not accept the papers because she had an attorney in Orlando and no one had indicated to her that she was going to be served papers and that she should accept those papers. Dr. Martha Brown practices psychiatry in Florida. On September 27, 2005, she performed a consultation evaluation of Respondent, who had been referred by PRN for the evaluation. Respondent does not recall being made aware of by Dr. Brown that Dr. Brown was performing the evaluation in the interest of PRN. Respondent understood that she was to attend the evaluation session based upon her lawyer's advice. After the evaluation performed by Dr. Brown, Respondent received communication that she needed to submit herself to the PRN program and undergo further evaluation. Respondent acknowledges receiving that communication. Respondent acknowledges that she went to see Dr. Brown, who is a psychiatrist, in relation to participation in the compulsory psychiatric evaluation resulting from the September 12, 2005, meeting held at Indian River. Respondent was sent to see Dr. Brown based upon information provided by an unnamed attorney whom Respondent had seen in Tallahassee. Dr. Brown told Respondent of the need for Respondent to undergo further evaluation. Respondent did not proceed with those evaluations in the manner suggested by Dr. Brown, in particular the participation in in-patient evaluation of Respondent's mental status. Respondent recalls Dr. Jeffrey A. Danzinger, another psychiatrist that she saw on March 20, 2006, upon arrangements made by John Biedenharn, Jr., Esquire, an attorney. That doctor recommended that Respondent should have further evaluation of her status concerning mental health. As Respondent's recalls she has been seen for an evaluation by Dr. George Joseph, another psychiatrist. This independent evaluation was made on January 12, 2007. To the extent that there are several psychiatrists who evaluated Respondent and who recommended further treatment or evaluation, Respondent explains herself to the effect that she felt entitled to a "second opinion." Then she refers to a second opinion that is offered by a psychiatrist as being different from the first opinion offered by a psychiatrist. She perceives that the information that the medical professionals relied upon in evaluating her " . . . is just utterly outright false in many regards." Facts Established by Others On July 1, 2005, when Ms. Swanson entered Respondent's office at Indian River after the traffic stop, she noted that Respondent appeared upset and tired. Respondent grabbed Ms. Swanson's arm and was sobbing and rocking back and forth. Ms. Swanson considered calling paramedics if she were unable to calm Respondent down. Ms. Swanson describes Respondent's state as that of being in hysterics. Ms. Swanson suggested that Respondent go home and offered to have someone drive Respondent home; later, Respondent left work. In addition to the situation that transpired when Respondent was pulled over for a speeding infraction, it had been reported from other employees to Ms. Swanson as the Assistant Administrator or Assistant Director within Indian River, that Respondent was exhibiting odd behavior. This included a report concerning the aforementioned staff luncheon, in which it was stated to Ms. Swanson that Respondent had mentioned not wanting to cut her hand with a knife that had been purchased, not wanting to hurt her hand with the knife that Respondent had purchased to prepare the fruit. In addition, there were remarks made by staff about the Respondent talking to a patient and talking for the patient while providing treatment, in effect having a conversation with herself. There was a report by staff that Respondent would be jumpy and agitated when a bell or buzzer would sound in the clinic. There was a report about a note left on Respondent's telephone, after disinfecting the phone and unplugging it. There was a report by staff that Respondent indicated that people were living in the attic at her home and they had smashed her mailbox and that Respondent would vacuum her carpet under the space of the attic to allow her to detect footprints from people in the attic. There was a report, beyond the report about people living in the attic, concerning Respondent's considering attending a gun show so that she could get a gun to protect herself. Although Ms. Swanson did not believe the Respondent was a danger herself or others, while having a good opinion of Respondent's dentistry, it was decided to consult with the attorney for Indian River about appropriate action to compel Respondent to participate in the compulsory evaluation of her mental state. This led to the meeting on September 12, 2005, at Indian River to arrange an appointment for an evaluation. This effort was not well received by Respondent. As a consequence, absent a participation in the compulsory evaluation of her mental status Respondent was not allowed to return to her duties at Indian River. To summarize, there was no concern by her employer that Respondent did not have the necessary technical skills to practice dentistry. The concern by the employer was that the employer believed that Respondent evidenced signs of a potential mental problem that would affect her decision making in carrying out her practice. Tracy Green who worked as a Dental Assistant at Indian River observed Respondent's reaction to noises in the clinic. For example, if other dentists were in another room and were using a timer that would sound in relation to dental work, Respondent would be in a state of panic. When noise made by the timer occurred Respondent would comment, "I don't like that" and state, "Can't we do something about that." Ms. Green observed that when Respondent had a patient in the examining chair who was a child, Respondent would look down at the patient and talk to the patient, answering herself. For example Respondent would say, "We're going to fix your tooth" and then answer in a child's voice, "No, I don't want you to fix the tooth" and then go back to her original voice and say, "Yes we're going to fix your tooth." When this role playing took place, parents would give Ms. Green an imploring look. However, there were no formal complaints by the parents about the service rendered to a child patient, and Ms. Green never saw the Respondent place patients in danger by her actions as a dentist. Respondent told Ms. Green that people were walking around on the carpet in her house, and that she, the Respondent, was vacuuming the carpet every day just to observe their presence because she, the Respondent, knew people were in her house during the day. The vacuuming every morning was done to detect footprints by the persons that Respondent felt were in her home while she was absent. From the remarks of the Respondent the impression left with Ms. Green was that people were in her house while the Respondent was absent, people who were not guests in the home. Once when Ms. Green was out sick and returned, Respondent was upset and commented that she could not believe that people come to work when they are sick. Respondent then left the job and said she might be back Monday or might be back next week. Before leaving Respondent had taken Cavicide, a disinfectant spray and sprayed her phone with it and took the phone off the hook, and wrote the words "caution" and "disinfected" and tapped the message to the telephone to keep other people from using the telephone. As the Personnel Manager for Indian River, Joelle Wilmott was responsible for overseeing hiring, disciplinary action, terminations, payroll, training and other human resources functions. In that capacity she had interaction with the Respondent. On July 1, 2005, when Respondent was stopped by a policeman for a driving offense, Ms. Wilmott went to Respondent's office to speak with Respondent. This followed a report to Ms. Wilmott that Respondent was in her office and refused to see patients who were waiting for treatment. Ms. Wilmott knocked on the door and went in to see Respondent who was visibly upset. Respondent was rocking back and forth. When asked what was "Going on," Respondent told Ms. Wilmott that she had been pulled over. Respondent had tears coming down her face. Respondent told Ms. Wilmott that she was pulled over because of the color of her skin and pointed at her own arm. Respondent kept referring to the police officer as "the man with the gun." Ms. Wilmott tried to console Respondent by telling her that people got pulled over all the time. It was difficult for Ms. Wilmott to follow the conversation from Respondent's side at times. During the course of Respondent's comments, she said something to the effect, "I always wear my seat belt, and I have seen dead bodies." Ms. Wilmott told Respondent that she, Respondent, had patients ready and needed to calm down. Respondent replied that "her hands were burnt." Then Respondent held her hands up in the air and said, "My hands are burnt I can't see patients today my hands are burnt." After a time, Ms. Wilmott commented that it was obvious that Respondent was unable to see patients that day and she suggested that Respondent go home. Respondent then replied "I can't, I can't, I can't, he's out there waiting for me, he is going to get me if I leave." Ms. Wilmott thought this reference was to the policeman who had pulled Respondent over for the traffic violation. Ms. Wilmott volunteered to go look in the area near the building to see if the policeman was still around. She did this and found that the policeman was no longer in the area. Being concerned, Ms. Wilmott arranged to have Ms. Swanson the Assistant Director at Indian River talk to Respondent in an effort to console Respondent. Ms. Swanson took over the situation beyond that point and Ms. Wilmott did not speak to Respondent again on that date. Sharen Rumberger had been a Dental Hygienist at Indian River who worked with Respondent. She found the Respondent's dental work performed on the patients to be very good and meticulous with the patient notes being very good. On July 1, 2005, when Respondent received her warning citation, Ms. Rumberger overheard Respondent say that she thought that she received the warning citation because she was Black. Respondent also commented that policemen were racist in Tallahassee. On the morning Respondent received the warning citation, Ms. Rumberger observed Respondent literally run into her office and shut the door. Concerning the incident in relation to the luncheon in which Respondent had purchased fruit and a knife to prepare the fruit, Respondent told Ms. Rumberger she did not like this kind of activity. Respondent asked Ms. Rumberger if she would cut the fruit into smaller pieces because Respondent did not want to use a knife. Respondent said that she did not want to use the knife because she had nothing sharper than a butter knife in her house and because she did not want to cut herself. Concerning Respondent's bringing the fruit and knife to the office for the luncheon, Respondent told Ms. Rumberger to cut the fruit because "These hands don't touch a knife. These hands are too valuable." It had been reported to Ms. Wilmott that Respondent was habitually late for work. These reports were made by other members of the staff at Indian River. The staff reported to Ms. Wilmott that Respondent was late almost every day and patients were left to wait for services 30 to 40 minutes before Respondent arrived to assist the patients. Ms. Wilmott went to discuss the matter with Dr. Holtzcalew, the Medical Director and Respondent's supervisor. Dr. Holtzcalew commented that he was busy and asked that Ms. Wilmott speak to Respondent about her tardiness. Ms. Wilmott met with Respondent on September 2, 2005, to discuss the problem with Respondent's attendance. Respondent was in her office. Ms. Wilmott knocked on the door and entered. Ms. Wilmott explained that she was there to discuss Respondent's tardiness and explained what her concerns were. Those concerns had to do with Respondent being late for work in the morning and returning late from lunch. Respondent seemed agitated by these remarks and started moving her hands around. Respondent commented that she had a lot going on at home that was interrupting her sleep and her coming to work on time. Ms. Wilmott commented that she was unaware of that problem. Respondent then told Ms. Wilmott about having police at her home on numerous occasions because she thought she was hearing people in her attic. According to Respondent, the police told the Respondent that the noise in the attic may have been bats. Respondent told Ms. Wilmott that she knew the difference between bats and people moving around in the attic. Respondent told Ms. Wilmott that she had seen footprints on her carpet that were bigger than her footprints, and she went on to explain in some detail about a smudge on the light switch in the garage. Respondent made mention of a person who spoke English and was a white person. Ms. Wilmott asked Respondent if she saw this person. Respondent said no. Respondent talked about vacuuming her carpet, staying up all hours of the night to do this and making "booby" traps. Respondent told Ms. Wilmott about taking a flashlight and looking around at the ceiling to see if they, the people, were trying to get in the house from the attic. All of this by way of explaining the reason for being late to work. Respondent commented about changing the locks on her home and the day after the locks had been changed, her mailbox had been run over by a car. Respondent commented that she thought she had angered the "person" and that maybe they had "a key to (her) house and I know that bats could not have done that to my mailbox." Respondent commented that she did not know how long she could live in such terrorism and that she lived alone in a new neighborhood that was being built. Respondent told Ms. Wilmott that she, Respondent, " . . . should have gone to the gun show in Orlando on the previous weekend". This was followed by a comment about never owning a gun and that people kill with guns and that Respondent was thinking about getting a gun to protect herself because there are crazy people in the world. Respondent told Ms. Wilmott that she might have to "pickup and go back to Palm Beach" and live in her apartment so that she could feel safe. Ms. Wilmott concluded the conversation by telling Respondent until Respondent figured out what she was going to do to please arrive at work on time and return from lunch on time. As a result of her conversation with Respondent that took place on September 2, 2005, Ms. Wilmott told Ms. Swanson about her concern for the safety of Respondent and the well- being and safety of other staff members. This led to the decision to call on the assistance of Donna Korora, Esquire, the lawyer for Indian River. Discussions eventuated in the September 12, 2005, meeting in which Respondent was requested to undergo a psychological evaluation to determine her fitness to remain in her position at Indian River. Donna Korora, Esquire, is the chief legal counsel for Indian River. Following the July 1, 2005, incident in which Respondent was stopped for a traffic violation and acted in the manner that was observed by personnel at Indian River, Ms. Korora was made aware of these events. She discussed the possibility that Respondent might be under stress and should be referred to the Employee's Assistance Program. This possibility was not pursued at the time. Later Ms. Korora was told by Ms. Wilmott and Ms. Swanson that Respondent had related a story to the effect that people were in her attic and that she was staying up with a flash-light to see what was in the attic and vacuuming the floor to see footprints on the floor after returning from work. There was also discussion concerning the Respondent's stating that she had wished that she had gone to a gun show in Orlando to buy a gun to protect herself. As a result, there was an assessment made about whether there was a reasonable suspicion that Respondent was under some stress and could not perform her duties, such as mandate or compel Respondent to get a physical or mental exam. To this end, Ms. Korora presented Respondent with a letter that constituted a notice that Respondent was being compelled to undergo an examination under rules pertaining to employees at Indian River. An appointment had been made with a Dr. Urfer, a psychiatrist in the area. Respondent replied that she would have to talk to her attorney and left the September 12, 2005, meeting with issues unresolved. More specifically, on September 12, 2005, when the meeting was held Ms. Korora; the Medical Director, Dr. Holtzcalew; a psychologist for Indian River, Joe Guarine; and Respondent were in attendance. During the meeting Ms. Korora reminded Respondent that Respondent was an employee of Indian River. Ms. Korora explained to Respondent that it was not a disciplinary matter at that point and that there was a concern about her safety and that there was an interest in discussing some of Respondent's behavior that had been witnessed by other members of the staff. Respondent kept asking, "who told you this information” and remarking that the staff was not qualified to make a determination as to Respondent's need for a mental examination. Respondent was asked by other persons in the meeting to please comply with having a mental status examination performed by Dr. Urfer. During the meeting mention was made by Ms. Korora that Respondent had told Indian River staff that she was going to buy a gun and there was a concern for Respondent's safety and that of the other staff. Ms. Korora told Respondent by refusing the examination she would most likely be dismissed from her position at Indian River and that a report would be made to PRN. The basis for proceeding with the September 12, 2005, meeting was under a provision of the State of Florida, Department of Management Services, a rule, that allowed, upon a reasonable suspicion, to compel an employee to have a mental status examination upon notification in writing. That notification was provided to Respondent at the meeting. The rule requiring compulsory examination is Florida Administrative Code Rule 60L-34.0061. A couple of weeks passed beyond that date before the decision was made by Indian River to terminate Respondent for not undergoing an evaluation by a psychiatrist. The termination from employment took place at the end of September 2005. In the last analysis, the officials at Indian River were concerned that Respondent's conduct might affect the safety of the patients that were seen at Indian River. The concern was not over the issue of patient complaints, it was a concern over the mental stability of the Respondent to allow her to practice dentistry. Shawn Kenneth McAlleer, as an investigator for DOH, received an order from DOH compelling Respondent to undergo mental status evaluation. He went to Respondent's residence at Paul Russell Road in Tallahassee, Florida, to serve that document. When Respondent answered the door, she acknowledged that she was the Respondent. Mr. McAlleer told Respondent that he was there to drop off paperwork. Respondent told him that she was not authorized to receive the paperwork upon instructions from her attorney not to accept documents. Respondent took a cell-phone out from her person and attempted to call someone that she identified as being her lawyer. In the interim, Mr. McAlleer tried to persuade the Respondent to receive the service of the order. Respondent declined. This discussion took place around 6:45 to 7:00 p.m. There was no indication that Respondent succeeded in reaching her lawyer's office by telephone. Respondent then turned around and re- entered the residence closing the door, not to return. The date of the attempted service was June 22, 2006. During the encounter, Mr. McAlleer did not identify the papers that he had with him as being an order of DOH. He did not make any explanation of the documents that were being delivered. On June 23, 2006, another attempt at service of the documents at the residence was made but no one was home to receive the documents. Expert Opinion Dr. Martha Eugenia Brown is a psychiatrist licensed to practice in Florida. She is an Associate Professor of Psychiatry at the University of South Florida, College of Medicine, in addition to being the Associate Dean for Faculty Development at that institution. Among her duties she performs impairment evaluations and fitness for duty evaluations which she refers to as independent medical evaluations for DOH and PRN, among other organizations. Dr. Brown is board certified in psychiatry and addiction psychiatry. Based upon testimony provided in Dr. Brown's deposition that was taken on October 11, 2007, Dr. Brown is received as an expert in psychiatry, as well as impairment and addiction psychiatry. On September 27, 2005, in performing a consultation evaluation of Respondent, Dr. Brown followed a pattern that she had pursued before. In this form of evaluation, basically she looked to determine if Respondent could practice with reasonable skill and safety and what other recommendations might be needed to address the case. The approach in Respondent's case was not to read records concerning Respondent's circumstance before undertaking the evaluation. In the interview, Dr. Brown went through a complete psychiatric evaluation and medical history, which was typed into a computer by Dr. Brown, after which Dr. Brown and Respondent went through records concerning Respondent's reason for undergoing the evaluation. After the process had been concluded, Dr. Brown rendered a report. Dr. Brown undertook Respondent's evaluation upon referral from PRN. In the course of the evaluation, Respondent told Dr. Brown that there were compulsory papers that she chose not to sign at her work place. Respondent explained that she was a dentist and allegations had been made against her by her employer to the effect that she was "doing drugs" and that she was a mental patient. Respondent in discussion with Dr. Brown mentioned the September 12, 2005, meeting where Respondent had been told by persons in the meeting that Indian River had concerns about Respondent's behavior and that ultimately Respondent was reported to PRN to have an evaluation. Respondent also made mention of the word paranoia in describing the statement of concerns by other persons in the meeting. In the evaluation, Respondent made mention of allegations that people in her attic had guns. Respondent told Dr. Brown about the garage door in her home being open for unknown reasons. Respondent told Dr. Brown about having her son make a call to 911. Respondent told Dr. Brown about events in mid July 2005 when she heard bumping and things around 4:00 a.m. or 5:00 a.m. in her home. She then called 911. She commented about seeing a light in her attic and greasy black soot marks on light switches, although she acknowledged marks on the switches may have been made by her son. Respondent mentioned calling a lock-smith because there were "master keys floating around the neighborhood." She had her house re-keyed. Respondent mentioned her mailbox being destroyed. At the time of the evaluation, Dr. Brown found Respondent's presentation to be quite paranoid. Respondent was very pressured in her speech, more than Dr. Brown would consider normal, and the history provided by Respondent was hard to follow, rambling and disjointed. It was difficult for Dr. Brown to follow the logic and flow of the conversation. Her behavior appeared psychotic and/or paranoid to Dr. Brown. The impairment was such that Dr. Brown did not believe that Respondent could work at that time and needed further evaluation to address the etiology of the symptoms being exhibited. In the evaluation under AXIS I: Dr. Brown reached the opinion that Respondent suffered from a psychosis NOS, not otherwise specified. In order to address the situation Dr. Brown recommended that Respondent undergo extensive inpatient evaluation with psychological testing and be under observation to ascertain whether the underlying condition was a medical condition or psychiatric condition. At the time of the evaluation, the results of a urine drug screen did not reveal any presence of drugs or alcohol. Given the evaluation, Dr. Brown found that Respondent was oriented as to person, place and situation and date, but Respondent's mood was intense and her affect labile, referring to frequent changes. Dr. Brown in relation to AXIS II: indicated R/O, referring to the need to rule out the existence of any AXIS II disorder. At the time no psychological testing had been performed to address this prospect. In relation to AXIS III: there was a reference to "None," meaning there was no indication of a physical condition that appeared to be significant. Dr. Brown noted that the AXIS IV was moderate. This observation was somewhat subjective in that it related to the impression that stresses were ongoing in Respondent's life. The AXIS V: finding by Dr. Brown was a GAF score of This is in relation to global functioning. It is desirable to have a score better than 70. According to the basis for evaluation, AXIS I refers to major psychiatric or substance abuse diagnosis. AXIS II is in relation to personality disorders. AXIS III refers to medical conditions. AXIS IV is a measurement of stressors in a persons life. AXIS V is a global assessment of function at the time of the evaluation. These measures are recognized in the diagnostic manual referred to as DSM-IV. Dr. Brown's impression of the Respondent's condition is that it would influence the Respondent's ability to relate to any patient Respondent saw in a manner that created concern on Dr. Brown's part. The prognosis and recommendations by Dr. Brown were to the effect that Respondent should: 1) Have an inpatient evaluation for further assessment and treatment; 2) participate in PRN and follow all recommendations they deem appropriate; and 3) that Respondent's prognosis is unknown at the time. On October 11, 2007, when Dr. Brown gave her deposition she still continued to express the opinion that Respondent needed inpatient evaluation. On March 20, 2006, having been requested by John Biedenharn, Jr., Esquire, to perform an evaluation, Dr. Jeffrey A. Danzinger saw Respondent. Dr. Danzinger practices psychiatry in Florida. He treats patients with mental, emotional and behavioral problems. He performs independent evaluations of individuals to ascertain their mental status. Dr. Danzinger is board-certified in general psychiatry, forensic psychiatry, geriatric psychiatry and addiction psychiatry. He is an expert in the field of psychiatry. In performing the evaluation of Respondent, Dr. Danzinger tried to ascertain whether she had a paranoid psychotic disorder, did she need to be hospitalized, did she need to be started on medications, was she showing any signs of symptoms of acute psychotic illness and whether further evaluation would be appropriate. Before beginning his evaluation, Dr. Danzinger looked at materials concerning the Respondent that had been made available to him, to include the report by Dr. Brown following her September 27, 2005, evaluation of Respondent. The overall material that was reviewed by Dr. Danzinger to prepare him for the evaluation was made up of documents from DOH, various investigative records, affidavits, information concerning the suspension of Respondent's dental license, as well as the report by Dr. Brown. To the extent that there were differences in Dr. Danzinger's opinion compared to the findings by Dr. Brown, Dr. Danzinger commented that some of the differences could be in relation to the passage of time. Before beginning his evaluation, Dr. Danzinger explained to Respondent that the purpose was not to treat her or establish a doctor/patient relationship to carry out his evaluation. Dr. Danzinger discussed Respondent's social and background history. More specifically he focused on Respondent's recollection and version of the events at Indian River which caused concern by persons in charge of that agency. Respondent essentially disputed allegations that had been made against her concerning her employment at Indian River. In his diagnosis Dr. Danzinger did not see signs or symptoms of a current active psychiatric diagnosis under AXIS I. He did not find any disturbance in the flow of thought by Respondent. Therefore, he did not find that the Respondent met any criteria for involuntary civil commitment to a mental hospital. He did not find the need for impatient evaluation. Dr. Danzinger believed that further evaluation was needed but could be done on a outpatient basis. The form of that evaluation should subject the Respondent to psychological testing. The nature of that testing could be a MPI-2 or PAI instrument. Dr. Danzinger did not believe that Respondent needed intervention through the use of psychotropic medications. Dr. Danzinger did not conclude a diagnosis under AXIS II and AXIS III and when referring to AXIS IV he commented on the severity of stressors related to license suspension and financial concerns. His AXIS V finding was a current GAF of 70. According to Dr. Danzinger, to arrive at the proper impression under AXIS II it would be necessary to conduct psychological testing. On March 9, 2006, when Dr. Danzinger evaluated Respondent he did not believe that anything that she displayed was suggestive of representing a danger to patients or a threat to others. On the other hand, Dr. Danzinger indicated on November 2, 2007, when he was deposed concerning his evaluation, no present opinion about Respondent's psychiatric or psychological state and her ability to safely practice dentistry, given the passage of time between his evaluation and the date for deposition. On January 12, 2007, Dr. George M. Joseph evaluated Respondent. Dr. Joseph practices psychiatry in Florida. He is a general psychiatrist with an interest in forensic psychiatry, as well as research in psychotropic medications. He is board certified in psychiatry and neurology. He is an expert in the field of psychiatry. He acts as an consultant and does some work in legal cases. Dr. Joseph does work for PRN. The basis for evaluating Respondent concerned questions about her ability to practice dentistry safely. To carry out this function, he reviewed materials concerning the subject and did a psychiatric interview with the individual and a mental status examination. Following these opportunities, he wrote a report of his findings. When performing his evaluation, Dr. Joseph was familiar with Dr. Brown's report of the September 27, 2005, evaluation. Dr. Joseph expressed no doubts about the findings made by Dr. Brown. Dr. Joseph made different findings based upon his evaluation. Dr. Joseph reviewed the material provided to him concerning allegations about Respondent before he conducted the evaluation. This method was perceived by him to be the more appropriate approach to the assignment. Under AXIS I, Dr. Joseph indicated that there was no current diagnosis. It is described as V71.09. Dr. Joseph's AXIS II diagnosis was 301.0, paranoid personality disorder. Dr. Joseph did not find Respondent out of touch with reality, that is to say delusional. What he did find was that Respondent met the definition of DSM-IV-TR at page 288, which refers to personality disorders of the kind where it is "a pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent, beginning by early adulthood and present in a variety of contexts, as indicated by four (or more) of the following." In the findings in his report Dr. Joseph noted "I believe, however, it is likely further instances of mistrust, suspicion, vigilance, hypersensitivity and estrangement are likely in the performance of her profession. I therefore cannot, at this time recommend reversal of the emergency suspension of her license." This refers to the existence of the emergency suspension order. In his deposition testimony, Dr. Joseph said that "I believe the paranoid personality disorder, if untreated, and without any kind of supervision by a regulating kind of agency, would be a significant problem in the performance of her work with patients and under colleagues and that is my best opinion as of the time I saw her." This refers to his evaluation of Respondent. This constituted Dr. Joseph's opinion as of the taking of his deposition on October 12, 2007. His continuing opinion is that Respondent's condition negatively affects her professional ability to perform services with reasonable skill and safety. In expressing his opinion concerning Respondent's ability to practice given her mental status, doubts about her ability to deliver services in a safe manner does not require that a patient be harmed to express concern about safety of patients. The paranoid personality evidenced in Respondent was of long-standing duration in Dr. Joseph's opinion. It is constant in her personality. This was evidenced by the tone of formality in Respondent's presentation. She presented herself in a constricted way. Behavior that Dr. Joseph observed in Respondent was that of mistrust, caution, and formality that implies a kind of caution that is excessive. On the subject of the AXIS V score, being GAF 50/60, at a level of 60 there are moderate symptoms or moderate difficulties in social and occupational functioning, whereas 50 represents serious symptoms and some serious impairment in social and occupational functioning. Dr. Joseph saw Respondent as having some serious problems in occupational functioning but at times that functioning might be described as moderate. Going forward, Dr. Joseph in his deposition recommended that Respondent receive regular treatment by a board-certified psychiatrist, starting out perhaps with weekly sessions and graduating to something as infrequent as every month or two. The use of medications could be discussed with Respondent to alleviate problems with suspiciousness on her part. If needed, a report could be made to PRN periodically indicating that it was safe for her to practice. Respondent's Patients Respondent practiced dentistry in Tallahassee, Florida. A number of her patients that were seen by her in that community testified. They found her approach to their treatment commendable and the results acceptable. The patients were not mindful of the circumstances while Respondent cared for patients at Indian River and interacted with other staff.
Recommendation Based upon the findings of facts and the conclusions, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 466.028(1)(s), Florida Statutes (2005), as alleged in Count I; dismissing Count II, and suspending Respondent's dental license until she undergoes further mental status evaluation(s) to determine whether she may practice dentistry with due regard for the safety of her patients. See § 456.072(2)(b), Fla. Stat. (2005). DONE AND ENTERED this 8th day of January, 2008, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 8th day of January, 2008. COPIES FURNISHED: H. Wayne Mitchell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Wayne D. Knight, Esquire 1277 Cedar Center Drive Tallahassee, Florida 32302 Susan Foster, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $1,600.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed August 23, 2011 4:13 PM pivlsion of Administrative Hearings ORDERED at Tallahassee, Florida, on this 7 7 day of Heegerat , 2011. Elizabeth Dudek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct a of this Final Order was served on the below-named persons by the method designated on this ay of , u fi “0k , 2011. f/f? Richard Shogp, Agency Clerk Agency fos Health Care Admigéstration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Mary Daley Jacobs _| Bruce D. Lamb Office of the General Counsel Attorney for the Respondent Agency for Health Care Administration Ruden McClosky, P.A. (Electronic Mail) 401 East Jackson Street, 27" Floor Tampa, Florida 33602 U.S. Mail) Errol H. Powell Division of Administrative Hearings (Electronic Mail)
The Issue The issue to be determined by this Recommended Order of Dismissal is whether the Petitioners have standing to challenge a Settlement Agreement in OGC File No. 07-0177 (the Settlement Agreement), entered into by the Department of Environmental Protection (DEP) and Respondents, Allied Universal Corporation (Allied) and Chem-Tex Supply Corporation (Chem-Tex), for the assessment and remediation of contamination at a bleach- manufacturing and chlorine-repackaging facility in St. Lucie County.
Findings Of Fact The Parties The Conservation Alliance is a Florida, not-for-profit corporation in good standing, incorporated in 1985, with its corporate offices currently located at 5608 Eagle Drive, Fort Pierce, Florida. It has approximately 200 members, at least 100 of which reside in St. Lucie County. The Conservation Alliance was formed to “protect the water, soil, air, native flora and fauna, upon which all the earth?s creatures depend for survival.” Indian Riverkeeper is a Florida, not-for-profit corporation in good standing, incorporated in 1999, with its corporate offices currently located at 1182 Southeast Mendavia Avenue, Port St. Lucie, Florida. It has approximately 150 members. The parties agreed, by stipulation, that Indian Riverkeeper has 25 or more members that live in St. Lucie County. Indian Riverkeeper was formed “to enforce local, state and federal environmental laws through citizen suits, [and] scientific and educational programs to increase awareness of citizens? standing to compel government to enforce laws to protect the environment.” The DEP is an agency of the State of Florida having jurisdiction to control and prohibit pollution of air and water, pursuant to chapters 376 and 403, Florida Statutes, and the rules promulgated thereunder. Pursuant to that authority, the DEP took the enforcement action that culminated in the entry of the Settlement Agreement that is the subject of this proceeding. Allied owns and operates the Facility, and is responsible for the remediation of contamination resulting from activities at the Facility. Chem-Tex owns the real property on which the Facility is located. Entry of the Settlement Agreement On June 21, 2010, the DEP, Allied, and Chem-Tex entered into the Settlement Agreement that is the subject of this proceeding. The Settlement Agreement required Allied and Chem- Tex to pay a monetary penalty to the DEP, and to identify, prevent, and remediate contamination on the Facility. The Settlement Agreement required publication of a notice of the Settlement Agreement, which provided that persons whose substantial interests are or will be affected could, within 45 days of the date of publication, petition for a hearing to challenge the proposed Settlement Agreement. The notice was published on June 28, 2010. Thus, the last date for filing a timely petition was August 12, 2010. On August 12, 2010, Petitioners electronically filed their Petition with the DEP. Allegations of Standing Petitioners alleged standing to challenge the Settlement Agreement based on the following, as set forth in the Petition: The Conservation Alliance is a conservation group based in Fort Pierce, Florida, organized for the purpose of protection of the State?s natural resources, including drinking water, and the rivers and other waters in St. Lucie County. Indian Riverkeeper is a citizen?s group, organized for the purpose of protecting and restoring the State?s natural resources within St. Lucie County. Members of both the Conservation Alliance and Indian Riverkeeper own real property within St. Lucie County. Substantial amounts of hazardous waste have contaminated the Facility, which has caused significant environmental harm to the groundwater underlying the site and resulted in off-site surface water discharges. Contamination is spreading to adjacent properties which pump groundwater for potable water supply and agricultural irrigation purposes. St. Lucie County has proposed a major drinking water wellfield within one-quarter mile of the Facility, which use is endangered by the existing groundwater contamination. Petitioners have a substantial interest in ensuring that Allied and Chem-Tex comply with requirements established by the Resource Conservation and Recovery Act. The DEP has executed a Settlement Agreement that will become valid and destroy the DEP?s right to seek additional penalties and enforcement relating to Allied?s violations. Allied?s past violations have created substantial plumes of contaminants in the groundwater system underlying its property, which if not remediated may migrate off-site and contaminate deeper zones of the surficial aquifer system. Standing -- Effects of Contamination Petitioners alleged that deficiencies in the Settlement Agreement may affect their substantial interests due to the effects of the contamination on the interests of their members, who use the potable water and other resources affected by the contamination. The only testimony offered at the hearing as to the use of the lands in the vicinity of the Facility was offered by Anthony Brady, the current president of the Conservation Alliance, who knew of no members of the Conservation Alliance that used any lands within five miles of the Facility. There was no testimony or other evidence offered regarding the use of lands in the vicinity of the Facility by any member of Indian Riverkeeper. As to the allegations that deficiencies in the Settlement Agreement would affect “potable water and irrigation wells located in the immediate vicinity of the facility,” there was no evidence that any member of the Conservation Alliance or Indian Riverkeeper received service from those wells. Mr. Brady and Elaine Souza receive water service from unidentified public water supply sources in St. Lucie County. Kevin Stinnette receives water from a source other than the Fort Pierce Utilities Authority. There was no allegation or evidence that the sources of their water were threatened by the contamination -- regardless of whether any such threat could be proven on the merits. There was no competent, substantial, non-hearsay evidence as to a particular source of potable water for any member of either the Conservation Alliance or Indian Riverkeeper that would “connect the dots” between the general allegations of groundwater contamination at the Facility, and the potable water supply of any member. For example, Petitioners alleged that their members own property in St. Lucie County, and that contamination is spreading from the Facility to adjacent properties which pump groundwater for potable water supply and agricultural irrigation purposes and, that if not remediated, such contamination may impact deeper zones of the surficial aquifer system and affect potable water and irrigation wells in the vicinity of the Facility. However, Petitioners utterly failed to prove that any of their members use, own, or have any interest in the adjacent properties that are in jeopardy of being contaminated, or that they are served by any of the potable water or irrigation wells alleged to be threatened by the contamination. The undersigned -- having accepted the allegations in the Petition of adverse effects of the contamination at the Facility and the deficiencies of the Settlement Agreement, having accepted and applied the testimony and evidence taken at the hearing, and without going to the merits of the Settlement Agreement -- is unable to find, based on the record of this proceeding, that Petitioners? substantial rights could be affected by the Settlement Agreement. Thus, Petitioners failed to produce the quantum of admissible, non-hearsay evidence necessary to demonstrate that they or their members will suffer an injury in fact which is of sufficient immediacy to entitle them to a hearing to challenge the Settlement Agreement. Standing -- Effects on Recreational Use In addition to the foregoing, Petitioners assert in their Proposed Recommended Order that “[a] substantial number of [their] members use, recreate, and protect the waters of St. Lucie County,” and that those members could be adversely affected by exposure to contamination due to the proximity of the Facility “to nearby navigable water bodies, fisheries, rivers and streams from which Conservation Alliance and Indian Riverkeeper members are provided with potable water and recreation.” The Conservation Alliance holds an Annual “Party in the Park” at the Fort Pierce Inlet State Park, and has monthly meetings at the Savannas State Preserve Education Center. There was no allegation or evidence as to how either of those locations were or could be affected by contamination from the Facility or by the Settlement Agreement. Indian Riverkeeper holds an annual “Mullet Run Festival” in Fort Pierce, and “other quarterly events that are sort of like our meetings” at locations in Fort Pierce and Jensen Beach, Florida. The venues for the Indian Riverkeeper events, beyond the cities in which they were held, were not identified. There was no allegation or evidence as to how those particular locations were or could be affected by contamination from the Facility or by the Settlement Agreement. Mr. Brady understood that one of Petitioners? members, George Jones, fishes in the C-24 canal. Mr. Brady has not personally fished in the C-24 canal for 25 years. Mr. Brady otherwise provided no evidence of the extent to which he or any members of the Conservation Alliance used or enjoyed the waters in or around St. Lucie County. Mr. Stinnette has recreated in various water bodies that are tributaries of the Indian River Lagoon system. He indicated that he had engaged in recreational activities in and on the waters of St. Lucie County with “dozens” of people over the past 16 years, some of whom were members of the Conservation Alliance or Indian Riverkeeper. There was no evidence offered as to how many of those persons were members of either of the Petitioners, as opposed to friends that have visited his house to fish off of the dock, or whether they were current members during the period relevant to this proceeding. Mr. Stinnette testified that the previously mentioned Mr. Jones told him that he kayaked in the waters of St. Lucie County. However, as to the recreational activities of other Conservation Alliance members, Mr. Stinnette testified that “I don't know, I don't keep up with their day-to-day activities to that extent.” Although Mr. Jones testified at the hearing, he provided no information as to the nature or extent of his recreational uses of the waters of St. Lucie County. The only evidence of Mr. Jones? recreational use of the waters of St. Lucie County is the hearsay testimony of Mr. Brady and Mr. Stinnette, which is not sufficient to support a finding of fact as to Mr. Jones? use. The only finding that can be made as to the recreational use of the waters of St. Lucie County by current members of the Conservation Alliance and Indian Riverkeeper is limited to a single member, Mr. Stinnette, who is a member of both organizations. Based thereon, Petitioners failed to prove that a substantial number of their members make any recreational or other use of the waters of St. Lucie County. Thus, Petitioners failed to produce the quantum of admissible, non- hearsay evidence necessary to demonstrate that they or their members will suffer an injury in fact to their substantial rights of use, recreation, and protection of the waters of St. Lucie County which is of sufficient immediacy to entitle them to a hearing to challenge the Settlement Agreement. Standing -- Other Issues Petitioners, and primarily Indian Riverkeeper, allege that their substantial interests are affected by the inadequacy of the penalty assessed in the Settlement Agreement, and by the purported preclusion of their right to “bring[] a citizen suit against Allied and Chem-Tex for their chemical spills . . . for violation of the Clean Water Act if it were not for the settlement negotiations taking place between Allied and the FDEP.” As to the issue of the inadequacy of the monetary penalty, the undersigned finds that the penalty to be assessed and paid by Respondents to the DEP has no effect on the substantial interests of Petitioners or their members. In that regard, the economic component of the Settlement Agreement does not result in any of Petitioner?s members being exposed to contaminants, or in any restriction on their recreational or other uses of the lands or waters of St. Lucie County. Therefore, the penalty amount does not result in an injury in fact which is of sufficient immediacy to entitle Petitioners to a section 120.57 hearing. Cf. Dillard & Assocs. Consulting Eng'rs v. Fla. Dep't of Envtl. Prot., 893 So. 2d 702 (Fla. 1st DCA 2005) (finding no standing on the part of a DOT contractor to challenge an administrative penalty levied by the DEP against DOT, even when the penalty may, at some time in the future, be assessed against the contractor). As to the injury resulting from the alleged restriction on Petitioners? rights to bring a federal lawsuit under the Clean Water Act, there was no evidence of any current intent on the part of Petitioners to bring such a lawsuit, nor was there any evidence, beyond the bare assertion, of any such restriction or preclusion on bringing a suit. Thus, Petitioners failed to prove any injury in fact which is of sufficient immediacy to entitle Petitioners to a section 120.57 hearing. Furthermore, the effect of agency action on the ability of a person to bring an independent action in another forum is not an injury of the type or nature that this proceeding is designed to protect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Environmental Protection, enter a final order dismissing the Petition for Formal Administrative Proceedings. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of May, 2013.
