The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Lakeside is an apartment building with 19 units located at 1048 Northeast 18 Avenue, Fort Lauderdale, Florida 33304- 2408. The Division issued Lakeside a license, numbered 16- 10553-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Lakeside's license] is December 1, 2000." On July 20, 2000, Division employee Robert Shaw conducted a routine inspection of Lakeside and found the apartment complex to be open and operating. On a Lodging Inspection Report that he prepared on that date, 2/ Mr. Shaw noted two minor violations, neither of which is at issue here. On the same form, Mr. Shaw inscribed the date that Lakeside's license would expire, as shown below, in the blank spaces provided for that purpose in a line that read: REMINDER: Your license expires 12 /01 /00 Petitioner's Exhibit 2. Mr. Shaw testified, however, that at the time of this inspection, he did not know whether or not Lakeside was licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Lakeside Apartments. DONE AND ENTERED this 24th day of January, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 24th day of January, 2001.
Findings Of Fact The Respondent, Richard M. Woodley has two inactive contracting licenses numbered CB CA 17970 and CB CO 17970, and was so licensed in 1986. The Respondent's license CB CA 17970 qualified "Woodley Builders, Inc." with the Florida Construction Industry Licensing Board. At the time of the hearing, the Respondent was no longer in the construction contracting business as a licensed contractor. With respect to case number 87-2809, on December 15, 1985, the Respondent, on behalf of Woodley Builders, Inc., entered into a contract with Catherine M. Richardson and Jonathan P. Richardson to build a residence in or near Orlando, Florida. The contract price was $90,000, with $20,000 attributable to the land. The contract specified that payments would be made to Woodley Builders, Inc. "in accordance with the disbursement schedule set forth by the construction lender." P. Ex. 1, paragraph 7. Woodley Builders, Inc. also agreed in the contract to furnish to the Richardsons lien waivers as required by the construction lender for disbursements. The construction lender disbursed the following amounts on the indicated dates: $10,200 March 17, 1986 $10,200 March 19, 1986 $17,000 March 27, 1986 $17,000 April 24, 1986 To induce these disbursements, a total of $54,400, the Respondent signed lien waivers stating that all bills for labor and materials used had been paid in full. P. Ex. 5. At the time of signing, the Respondent told the construction lender that he had paid all bills due to that time, but had not paid bills not yet presented. T. 89. Thus, the lien waivers were intended to be a certification of the partial completion and payment for the work billed to the date of the waiver, and a promise to pay other bills for work already completed as such bills were presented. Six claims of liens were filed by subcontractors. The Richardsons hired a lawyer, and the lawyer was able to defend against two of the liens for failure to properly comply with procedures for mechanic's liens. Four liens for the following amounts and for work beginning on the dates indicated ultimately had to be satisfied by the Richardsons: $ 2,851.45 March 19, 1986 $13,462.34 March 7, 1986 $ 1,944.57 April 8, 1986 $ 785.01 April 9, 1986 These liens were for work commenced before the last lien waiver was signed on April 24, 1986. Thus, the Respondent failed to comply with the oral representations he made at the time of signing the lien waivers. The Richardsons were forced to execute a second mortgage in excess of $17,000 to pay off the unpaid liens. The Richardsons terminated the contract with Woodley Builders, Inc. when subcontractors quit working for lack of payment by Woodley Builders, Inc. Some money was obtained from family loans. It cost the Richardsons about $30,000 to have the house finished, which has added about $325 per month to their mortgage obligations. The Respondent and Woodley Builders, Inc. have not paid anything on these liens. Woodley Builders, Inc. filed bankruptcy. The Richardsons sued the Respondent as trustee for Woodley Builders, Inc. and obtained a default judgment for $149,839, which was a judgment of $32,380 in compensatory damages, trebled, plus costs, interest, and attorney's fees. With respect to case number 87-2810, on June 11, 1986, Woodley Builders, Inc. entered into a contract with Tom Jamieson to construct an addition to his residence in Orlando, Florida. The price of the work was $18,500. The contract specified that the price was a cash price, and that draws were to be made according to a schedule stated in the contract. Mr. Jamieson paid to Woodley Builders, Inc. about $11,700 of the contract price. At some time before completion of the addition, the owner, Mr. Jamieson, evidently became dissatisfied with the Respondent's work. Mr. Jamieson was given the Respondent's copy of the contract and refused to return it to the Respondent. Mr. Jamieson then owed the Respondent a draw of $3500, but refused to give it to him, and refused to have it put in escrow for the payment of subcontractors. The date that this occurred is not in evidence. T. 35-36, 39. Since Mr. Jamieson had taken back the contract, the Respondent thought that he (the Respondent) no longer had any legal proof of the contract (either scope of work or amount due), and thus had no contract to complete the work. He also did not receive the draw that was due. The Respondent thus ceased work on the addition for fear that he would not be paid without a copy of his contract. T. 36-37. The Respondent offered to complete the work. T. 51. The drywall contractor, Rick's Drywall, Inc., filed a lien for $465 for work done from August 12, 1986 and August 20, 1986. The Respondent would have paid this lien had Mr. Jamieson not terminated the contract and refused to give the Respondent a draw still due of $3500. T. 49-50. There may be a claim for unpaid electrical work in July, 1986, see P. Ex. 15, but it is impossible to tell if this occurred before or after Mr. Jamieson terminated the contract, or whether the Respondent had received draw money that should have paid this claim. The only evidence is that the Respondent had an agreement with the electrical subcontractor to pay that subcontractor at the time of the final draw, a draw never received as discussed above. T. 53. P. Ex. 11 is insufficient evidence that there were unpaid claims for roof trusses. Moreover, it cannot be determined whether the Respondent received a draw before contract termination which should have been used to pay for roof trusses. The Respondent had been a contractor for eight years before he began to have financial difficulties resulting in the problems with the Richardson's residence. There is no evidence of any prior discipline.
Recommendation It is recommended that the Construction Industry Licensing Board enter its final order finding in case number 87-2809 that the Respondent, Richard M. Woodley, violated sections 489.129(1)(m), 489.129(1)(j), and 489.119, Fla. Stat. (1986), misconduct in contracting by diversion of funds, and failure to supervise as a qualifying agent, and in case number 87-2810, dismissing the administrative complaint for failure of proof by clear and convincing evidence. It is further recommended for the violation set forth above that the license of the Respondent be suspended for one year. DONE and ENTERED this 22nd day of July, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. COPIES FURNISHED: Richard M. Woodley 2521 Tuscaloosa Trail Maitland, Florida 32751 David Bryant, Esquire 1107 East Jackson, Suite 104 Tampa, Florida 33602 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Nonroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether Respondent is entitled to a refund of license fees and late penalties.
Findings Of Fact On September 6, 1988, a lien on License No. 68-01319, Series 4-COP, was recorded with the Division of Alcoholic Beverages and Tobacco (Respondent). The named lienholder was Francis D. Sawyer (Petitioner). Framay, Inc., d/b/a Thirsty Parrot was the holder of License No. 68-01319. On May 21, 1990, an administrative action was filed by the Respondent against Framay, Inc., d/b/a Thirsty Parrot. The administrative action, alleged that Framay failed to maintain the license in an active status. Framay never requested a hearing and a Final Order was entered on September 25, 1990, revoking License No. 68-01319. On November 8, 1990, the Respondent filed a Notice to Show Cause alleging failure to comply with the terms of the September 25, 1990 Final Order. On May 6, 1991, a second Final Order was entered revoking License No. 68-01319. In February 1992, the Respondent was contacted by attorney Stanley Chapman as counsel to Petitioner, Sawyer. Petitioner claimed that the Respondent had failed to provide him a point of entry as lienholder to foreclose his lien, and sought to have the license "reinstated in escrow" in order to allow him to proceed in foreclosure. After some discussion, the Respondent agreed to cooperate with Petitioner's efforts to foreclose by not opposing a summary judgement motion filed by Petitioner. Normally, foreclosure of a lien on a revoked license is permitted only when the lienholder brings an action within 12 days of an order or revocation. Even though the time had expired, the Division nonetheless permitted Sawyer to foreclose on the license because Sawyer had a legitimate claim and the Division's interests would not be adversely affected by ignoring the 12 day time frame. In August 1992, Petitioner, through his attorney Stanley Chapman, filed a complaint to foreclose his lienholder's interest in the license. Framay, Inc., d/b/a Thirsty Parrot, Wayne F. Sawyer and the Division were named as defendants. The Petitioner foreclosed on License No. 68-01319 and a Final Judgment of Foreclosure and Transfer of Beverage License was entered on January 27, 1993. Upon the entry of foreclosure, Petitioner, as required by the Respondent, filed an application for the delinquent renewal of License No. 68- 01319. The delinquent renewal of the license required that past due license fees totalling $5,512.50 for the years 1990-1991, 1991-1992, and 1992-1993 be paid to activate the license. Petitioner requested that the Respondent waive the payment of delinquent annual license fees and penalties which the Respondent was seeking prior to issuing the license to any transferee. The Respondent denied the request to waive applicable fees and required payment of delinquent renewal fees in the amount of $5,512.50. Petitioner paid the fee under protest, claiming that the fee was not applicable to this transaction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,
The Issue Whether the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board) erred in issuing an order that denied reinstatement of Irene Acosta's (Ms. Acosta or Petitioner) mental health intern license.
Findings Of Fact The Board is the state agency that licenses mental health interns in the State of Florida. The Board initially licensed Ms. Acosta as a mental health intern on March 19, 1999, when it issued to her license number IMH 1515. This license was issued after Ms. Acosta completed and submitted to the Board an application for the license. Ms. Acosta received her higher education from Newport University in California. It is the Board's position that in 2002, Newport University, located in California, was not a regionally accredited university as defined by the Council on Higher Education and, consequently, degrees from that institution did not meet the Board's credentialing requirements for licensure as a mental health intern. Newport University, located in Virginia, was appropriately accredited, and degrees from that institution met the Board's credentialing requirements. Newport University in California is not affiliated with Newport University in Virginia. Ms. Acosta provided to the Board as part of her application package transcripts and correspondence from Newport University which clearly indicate that the university is in California, not Virginia. Ms. Acosta did not bribe, coerce, use undue influence, make fraudulent misrepresentations, commit any intentional wrongdoing, or unlawfully conceal any information in order to obtain her intern license. Intern licenses are issued for two-year periods. Ms. Acosta's license was last renewed on February 5, 2001. In 2002, the Board realized that Ms. Acosta had obtained her master's degree from Newport University in California. The Board, notwithstanding a diligent search and investigation, is unable to determine how Ms. Acosta's credentialing issue was brought to its attention. That determination could not be made because of the passage of time and the possible destruction of documents. In 2002, Ms. Foster was Executive Director for the Board. Ms. Foster concluded that Ms. Acosta's license had been issued in error because Ms. Acosta lacked required educational credentialing. By letter dated March 18, 2002, Ms. Foster advised Ms. Acosta as follows: As the Executive Director for the Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling, I am writing concerning your intern registration license which was issued by the Board on March 19, 1999. At the time your application was approved, Newport University was not a regionally accredited university as defined by the Council on Higher Education. As such, the intern registration was issued in error. Section 491.009(1)(a), F.S. provides that: The following acts constitute grounds for denial of a license or disciplinary action as specified in s. 456.072(2): Attempting to obtain, obtaining, or renewing a license, registration, or certificate under this chapter by bribery or fraudulent misrepresentation or through an error of the board or the department. After consulting with Board counsel, I have been instructed to request that you voluntarily relinquish your intern registration licensed [sic] within 15 days of the receipt of this letter. Failure to do so will result in a complaint being filed with the Agency for Health Care Administration. Should you have any questions, please feel free to contact us at our office at . . . . Petitioner contacted Ms. Foster by telephone to discuss the March 18 letter. Petitioner told Ms. Foster that she was going to contact an attorney to advise her. John Schwartz, Petitioner's attorney, contacted Ms. Foster by letter dated April 1, 2002. Among other questions, Mr. Schwartz asked for documentation that Newport University was not regionally accredited. Edward A. Tellechea was, in 2002, an Assistant Attorney General who served as legal counsel for the Board. Mr. Tellechea responded to Mr. Schwartz's letter by letter dated April 16, 2002. Mr. Tellechea's letter identified his status as counsel for the Board and included the following: Chapter 491.005(4)(b)2., Florida Statutes, requires that the education programs for mental health counseling applicants be obtained from institutions that are properly accredited. The relevant statutory language reads as follows: 2. Education and training in mental health counseling must have been received in an institution of higher education which at the time the applicant graduated was fully accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. . . . Based upon the publication titled: The Accredited Institutions of Postseconday Education, which is published in consultation with the Council for Higher Education Accreditation, Newport University in Newport Beach, California, is not an institution that is accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. It does contain the name of a Newport University, with is located in the Commonwealth of Virginia, but Board staff has verified that the two institutions are not affiliated with each other. If you have any documentation that indicates that Newport University [in California] is accredited by a regional accrediting body recognized by the Commission on the Recognition of Postsecondary Accreditation, please forward it to the Board office by May 2, 2002. Otherwise, this matter will be referred to the Agency for Health Care Administration for appropriate legal action. Mr. Schwartz provided Ms. Acosta with a copy of Mr. Tellechea's letter. On May 7, 2002, Robin McKenzie, a program administrator for the Florida Department of Health, sent a memo to the Bureau of Consumer Protection within the Agency for Health Care Administration (Consumer Protection) that contained the following: Please initiate a complaint against Irene Acosta. An intern registration license was issued to her in error. A letter dated March 18, 2002, was sent to Ms. Acosta requesting that she voluntarily relinquish this license. As of this date, Ms. Acosta has not returned her license to the board office. Petitioner relinquished her license by handwritten letter addressed to Ms. Foster. The letter, dated May 1, 2002, bears Ms. Acosta's signature. The letter, received by Ms. Foster's office on May 7, 2002, provided as follows: As requested by your office, I hereby relinquish my intern registration license. Thank you for all your help. Please note I have destroyed the license. On May 21, 2002, Ms. McKenzie sent a memo to Consumer Protection that enclosed a copy of Ms. Acosta's letter dated May 1, 2002, and asked that the complaint against her be closed. Between the time she was issued the subject license and the time she relinquished the license, Ms. Acosta earned her livelihood working as a mental health counselor. Petitioner never engaged in any unlawful concealment or otherwise intentional wrongdoing in her application process. When she submitted her application, Ms. Acosta was unaware that Newport University (in California) was not accredited for purposes of her licensure application. Petitioner testified that when she relinquished her license, she was unaware that she could have had the Board's intended action reviewed by a probable cause committee or challenge the intended action in an administrative hearing. She further testified that had she known of these rights, she would have challenged the intended action. She further testified that she relinquished her license because she believed that she would be charged with a crime if she did not do so. That testimony has been considered in making the finding as to voluntariness that follows. Also considered is the fact that Ms. Acosta consulted an attorney before deciding to relinquish her license. While it is evident that Petitioner did not want to relinquish her license, and did so only after concluding she had no other choice than to proceed to an administrative hearing, the Board did not coerce her into that action. Ms. Foster's letter and Mr. Tellechea's letter identified the problem with Ms. Acosta's credentials and simply laid out her options - - either relinquish the license or the Board will file an administrative complaint to revoke the license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a Final Order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is further Recommended that the Final Order deny Irene Acosta's "Amended Emergency Motion to Reinstate Licensed Mental Health Counselor Intern License or for Alternative Relief." DONE AND ENTERED this 16th day of November, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 16th day of November, 2012. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman Suite 210 7695 Southwest 104th Street Miami, Florida 33156 Deborah B. Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Susan Foster, Executive Director Department of Health Board of (Certified Master Social Worker) Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-3258 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether or not on or about December 8, 2000, Petitioner possessed the appropriate license to operate a body-piercing salon establishment in accordance with Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code.
Findings Of Fact Based upon the evidence presented, the testimony, and upon the personal inspection of the undersigned, the following findings of fact are made: At all times material hereto, Respondent, Department of Health, Division of Environmental Health, is the state agency charged with implementation of Section 381.0075, Florida Statutes, and Chapter 64E-19, Florida Administrative Code. At all times material hereto, Petitioner, Rita Moroz, operated a manicure-pedicure, nail-lengthening establishment, "A New Adventure of Tampa Bay," located at 11608 North Dale Mabry Highway, Hillsborough County, Tampa, Florida 33618. Section 381.0075(2)(a), Florida Statutes, defines "BodyPiercing" as for commercial purposes the act of penetrating the skin to make, generally permanent in nature, a hole, mark, or scar. "Bodypiercing" does not include the use of a mechanized, presterilized ear-piercing system that penetrates the outer perimeter of lobe of the ear or both. At all times material hereto, Petitioner admitted that she operated a body-piercing establishment salon and provided body-piercing services without first having obtained a body-piercing license as required by law. At all times pertinent hereto, Petitioner possessed a manicure-pedicure license issued by another country and her foreign license also authorized body-piercing services. Petitioner, upon receipt of the Certificate of Violation, discontinued performing body-piercing services. The representative for the Agency stated that the Department would accept, in consideration of Petitioner's admissions and prompt discontinuation of body-piercing services, a reduced fine in an amount not to exceed $500.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
Findings Of Fact On March 10, 1983 Marvin L. Lessne was issued a non- active broker license #0051792. His non-active license expired on September 30, 1984 and was not renewed. (Petitioner's Exhibit 1) On September 13, 1984, Marvin Lessne pled guilty to seven cases of Grand theft. (Petitioner's Exhibits 9 and 10). On January 7, 1985, he was sentenced by Judge Patricia W. Cocalis, Circuit Judge for the Seventeenth Judicial Circuit in and for Broward County. His total sentence was for two and a half years in prison, ten years of probation and full restitution to his victims. The total amount of money taken by Mr. Lessne from his victims was approximately $215,000.00. (Petitioner's Exhibit 10) By affidavit, Harold R. Huff, Director of the Division of Real Estate certified that a search of Division records failed to reflect that Marvin Lessne informed the Division of his conviction and subsequent incarceration.
Recommendation It is therefore, RECOMMENDED That a Final Order be entered finding that Respondent violated Section 475.25(f) Florida Statutes. (Count I, Administrative Complaint) and dismissing counts II and III of the Administrative Complaint. DONE AND RECOMMENDED this 28th day of July, 1986, at Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1986 COPIES FURNISHED: Sue Hartmann Division of Real Estate P.O. Box 1900 400 West Robinson Street Orlando, Florida 32802 Marvin L. Lessne 4341 Northwest 16th Street Apartment 101 Lauderhill, Florida 33313
The Issue The issue is whether Rule 64B8-4.022(1), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority, in violation of Section 120.52(8)(b) and (c), Florida Statutes.
Findings Of Fact Petitioner obtained a bachelor's degree from Yale University in 1970. He obtained a Juris Doctor degree from St. John's University in 1980 and practiced law in New York City for five years. Petitioner then completed coursework at Columbia University in preparation for medical school. He obtained a medical degree from New York Medical College in 1990. Petitioner obtained a license to practice medicine in New York in 1993. However, problems with depression interfered with Petitioner's completion of post-graduate work in medicine. In 1995, Petitioner applied for a physician's license in California. This application was initially denied in 1998, but it was granted in January 2002 with a condition of probation for five years with some sort of psychiatric monitoring during and possibly after the termination of the probationary period. In the interim between the two actions on Petitioner's application for a California license, New York revoked Petitioner's license to practice medicine, although it later reduced the sanction to a suspension of the latter of one year or a showing of safeness to practice. In May 1997, Petitioner relocated to Florida and, the following year, after having completed additional rehabilitative therapy, applied for a license to practice medicine in Florida. Respondent has denied the application in reliance upon Rule 64B8-4.022(1), Florida Administrative Code. (All references to Rules are to the Florida Administrative Code.) Rule 64B8-4.022 states in its entirety: In most cases the Board evaluates applicants on a case-by-case basis; however, in the following circumstances the Board, as a matter of policy, shall deny the application for licensure in Florida: When the applicant has had action taken against a medical license or the authority to practice medicine by the licensing authority of another jurisdiction and the applicant does not demonstrate that the applicant has a license in the jurisdiction which took action and that license is in good standing and unencumbered. When the applicant has been convicted of, been found guilty of, or entered a plea of nolo contendere to a crime and the applicant does not demonstrate that all criminal sanctions imposed by the court have been satisfied. Petitioner challenges Rule 64B8-4.022(1) on the grounds that it requires in all cases that Respondent deny applications when, for any reason, the applicant has had action taken against his or her medical license in another jurisdiction or the applicant's application has been denied in another jurisdiction, unless, in either case, the applicant presently has an unencumbered license in that jurisdiction. Petitioner contends that this categoric denial of licensure under these circumstances exceeds the underlying statutory authority for denial of licensure. The rule implements three statutes. Section 458.311, Florida Statutes, governs licensure by examination. (All references to Sections are to Florida Statutes.) Section 458.313 governs licensure by endorsement. And Section 458.331 provides grounds for the denial of an application or discipline of an existing license. As is relevant to this case, Section 458.311 provides: The board may not certify to the [Department of Health] for licensure any applicant who is under investigation in another jurisdiction for an offense which would constitute a violation of this chapter until such investigation is completed. Upon completion of the investigation, the provisions of s. 458.331 shall apply. Furthermore, the department may not issue an unrestricted license to any individual who has committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331. When the board finds that an individual has committed an act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331, then the board may enter an order imposing one or more of the terms set forth in subsection (8). Each applicant who meets the requirements of this chapter shall be licensed as a physician, with rights as defined by law. Upon certification by the board, the department shall impose conditions, limitations, or restrictions on a license if the applicant is on probation in another jurisdiction for an act which would constitute a violation of this chapter. When the board determines that any applicant for licensure has failed to meet, to the board's satisfaction, each of the appropriate requirements set forth in this section, it may enter an order requiring one or more of the following terms: Refusal to certify to the department an application for licensure, certification, or registration; Certification to the department of an application for licensure, certification, or registration with restrictions on the scope of practice of the licensee; or Certification to the department of an application for licensure, certification, or registration with placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, attend continuing education courses, submit to reexamination, or work under the supervision of another physician. As is relevant to this case, Section 458.313 provides: Upon certification by the board, the department shall impose conditions, limitations, or restrictions on a license by endorsement if the applicant is on probation in another jurisdiction for an act which would constitute a violation of this chapter. The department shall not issue a license by endorsement to any applicant who is under investigation in any jurisdiction for an act or offense which would constitute a violation of this chapter until such time as the investigation is complete, at which time the provisions of s. 458.331 shall apply. Furthermore, the department may not issue an unrestricted license to any individual who has committed any act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331. When the board finds that an individual has committed an act or offense in any jurisdiction which would constitute the basis for disciplining a physician pursuant to s. 458.331, the board may enter an order imposing one or more of the terms set forth in subsection (7). When the board determines that any applicant for licensure by endorsement has failed to meet, to the board's satisfaction, each of the appropriate requirements set forth in this section, it may enter an order requiring one or more of the following terms: Refusal to certify to the department an application for licensure, certification, or registration; Certification to the department of an application for licensure, certification, or registration with restrictions on the scope of practice of the licensee; or Certification to the department of an application for licensure, certification, or registration with placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, attend continuing education courses, submit to reexamination, or work under the supervision of another physician. As is relevant to this case, Section 458.331 provides: The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2): * * * (b) Having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions. The licensing authority's acceptance of a physician's relinquishment of a license, stipulation, consent order, or other settlement, offered in response to or in anticipation of the filing of administrative charges against the physician's license, shall be construed as action against the physician's license. * * * The board may enter an order denying licensure or imposing any of the penalties in s. 456.072(2) against any applicant for licensure or licensee who is found guilty of violating any provision of subsection (1) of this section or who is found guilty of violating any provision of s. 456.072(1). In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the physician. All costs associated with compliance with orders issued under this subsection are the obligation of the physician.
Findings Of Fact At all times relevant hereto, Denver Owens was licensed as a barber in this state and has been so licensed for 26 years. Although Owens has worked in barbershops for most of the last 26 years, he never owned a shop until he opened this barbershop in Apopka some two years ago. At the time he opened the shop he obtained an occupational license which, with his current barber's license, he thought was all he needed to operate a one-man shop. On April 26, 1984, an inspector with the Department of Professional Regulation saw the barber's sign on the site not on her records and entered the shop to inspect. The only discrepancy which is material to the issues here is that no registration had been issued for the barbershop. When questioned by the inspector, Owens readily acknowledged that he had not applied for registration for a shop because he was unaware such registration was required. The following day Owens submitted an application to register his shop and obtained registration dated May 4, 1984. When told the Department proposed to assess a fine of $250 against him for operating without a shop license, Owens requested a hearing, the file was forwarded to the Division of Administrative Hearings, and this hearing ensued.
The Issue The issue for determination is whether Respondent, a licensed physician, committed a violation of Section 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary sanctions should be imposed against his license.
Findings Of Fact Respondent is Grayson C. Snyder, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0004035. Respondent's last known address is 635 West Central Avenue, Blountstown, Florida 32424-1909. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.165, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. On December 29, 1994, the Board of Medicine issued a final order against Respondent. The final order suspended Respondent’s license to practice for at least 6 months, pending his demonstration to the Board that he could practice medicine with skill and safety by undergoing an evaluation by a psychiatrist approved by the Physicians Recovery Network (PRN). The final order also required Respondent’s completion of a period of probation after reinstatement and his payment of an administrative fine in the amount of $5,000 within 30 days of the final order. Respondent has consistently failed to comply with the final order, inclusive of the payment of the $5,000 administrative fine. Other requirements of the final order relating to psychiatric evaluation and completion of a probationary period have also not been met.
Recommendation Based on the foregoing and in accordance with Petitioner's penalty guidelines set forth in Rule 64B-8.001, Florida Administrative Code, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the violation alleged in the administrative complaint and revoking Respondent's license. DONE AND ENTERED this 2nd day of April, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1998. COPIES FURNISHED: Carol Lanfri, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403 Michael Stone, Esquire 116 East 4th Street Panama City, Florida 32401 Marm Harris, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health Building 6, Room 102-E Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health Building 6, Room 306 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Petitioner filed an application or request for reactivation of his license to practice medicine in the State of Florida pursuant to Section 458.313(8), Florida Statutes.
Findings Of Fact The Petitioner, Carlos Warter, M.D., 4/ was first issued a license to practice medicine in the State of Florida on August 2, 1977. It was a license by endorsement. For several years following 1977, the Petitioner practiced medicine in Chile. By letter dated July 2, 1980, the Florida Board of Medical Examiners wrote to the Petitioner about the status of his Florida license. The letter included the following: Pursuant to Section 458.051(3), Florida Statutes, a license obtained by endorsement in this State shall become void and of no force and effect unless the recipient utilizes the same by actively engaging in the practice of medicine in the State of Florida within three (3) years after the issuance of the license and continues such practice in this State for a minimum period of one (1) year. This practice requirement may be postponed only if and while the holder of an endorsement license is in the active military service of the United States or in an AMA approved training program. The Petitioner never actively engaged in the practice of medicine in Florida. Accordingly, by operation of Section 458.051(3), Florida Statutes, his Florida license, obtained by endorsement, became void and of no force and effect. After practicing for many years in other jurisdictions, the Petitioner decided he wanted to live in Florida and practice medicine in Florida. To that end, he contacted the staff of the Board of Medicine to inquire as to what would be required of him to obtain a license to practice medicine in Florida. As a result of his conversations with Board staff, the Petitioner believed that he could not reactivate his prior Florida license, which had become void by his failure to ever practice medicine in Florida. 5/ Based on that belief, the Petitioner did not file an application seeking to reactivate his void license. Rather, he filed an application seeking a new license by endorsement pursuant to Section 458.313(1), Florida Statutes. The Petitioner filed an application for licensure by endorsement on or about April 19, 1998. Question 9 on the application form reads: "Are you or have you ever held any professional/medical license in any State in the U.S., to include Canada, Guam, Puerto Rico or U.S. Virgin Islands? (If yes, list profession(s), state(s), license numbers(s), and date(s) of issuance.)" The Petitioner's answer was: "California 1980 to date/A35572." The Petitioner did not list his prior Colorado or New Mexico licenses to practice medicine. More importantly, he did not list his prior, now void, license to practice medicine in the State of Florida. Further, the Petitioner's prior license to practice medicine in the State of Florida is not mentioned anywhere else in the Petitioner's application for license by endorsement filed on May 19, 1998. 6/ Following several requests for additional information, the Petitioner's 1998 application was scheduled for consideration at a meeting of the Credentials Committee of the Board of Medicine on November 14, 1998. The Petitioner was present at the November 14, 1998, meeting, at which time he was not represented by legal counsel. At the conclusion of that meeting, the Credentials Committee voted unanimously to recommend that the Petitioner's application for licensure by endorsement be denied. During the meeting on November 14, 1998, there was no mention by either the Petitioner or any member of the Credentials Committee of the subject of reactivating the Petitioner's prior void license. The Petitioner was, of course, disappointed with the vote of the Credentials Committee. He was also of the view that the members of the Credentials Committee had treated him in a shabby, rude, and disrespectful manner, and that they had failed to properly perform their duties. Following his first appearance before the Credentials Committee of the Board of Medicine, the Petitioner obtained legal counsel. On January 20, 1999, the Petitioner wrote a letter to Governor Jeb Bush, which included the following comments: I first called the Board of Medicine and asked to have my license reactivated, but was informed that was not possible, and that I would have to reapply for licensure. * * * I then hired an attorney to assist with my application. She notified me that I was eligible to receive a license under a provision that allowed for reactivation of my license in certain circumstances. Therafter, the Petitioner's legal counsel made numerous efforts to persuade the Credentials Committee and the full Board of Medicine to treat the Petitioner's application of May 19, 1998, as an application for reactivation under Section 458.313(8), Florida Statutes. Those efforts were unsuccessful and the Board of Medicine, on March 5, 1999, issued a Notice of Intent to Deny Application for Licensure by Endorsement. The stated grounds in the notice were failures to meet several requirements of Section 458.313(1), Florida Statutes. The notice did not mention Section 458.313(8), Florida Statutes.
Recommendation Based on all of the foregoing, it is RECOMMENDED that a final order be issued in this case concluding that the Petitioner, Carlos Warter, M.D., is not eligible for licensure under Section 458.313(1), Florida Statutes, because he admittedly fails to meet all of the requirements for issuance of a license under Section 458.313(1), Florida Statutes, and that he is not eligible for licensure under Section 458.313(8), Florida Statutes, because he has never filed an application for reactivation of his prior voided license pursuant to Section 458.313(8), Florida Statutes, and the statutory deadline for filing such applications has expired. 7/ DONE AND ENTERED this 28th day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 28th day of September, 1999.
