The Issue At issue is whether Respondent committed the offenses set forth in the Administrative Complaint dated March 3, 2000, and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Robert Gibson McLester, III ("McLester") is a licensed pharmacist 2 with a heretofore unblemished record. McLester graduated from the University of Florida with a degree in pharmacy in August 1977. He was licensed by the State of Florida to practice pharmacy in February 1978. He currently holds an Alabama pharmacy license, and was previously licensed in Mississippi but at some point ceased to pay the state's licensing fee; the license thus lapsed by operation of law. McLester received a Master of Science degree in hospital pharmacy from the University of Mississippi in December 1987 and a Master of Health Care Administration from the same institution the following May. McLester entered the Navy as an aviator cadet in June 1965, and was commissioned as a naval aviator in February 1967. He flew 103 missions with Attack Squadron 147 and was honorably discharged as a lieutenant in December 1970. Following a brief stint in the insurance and investment business, McLester applied unsuccessfully to medical school. McLester entered the University of Florida's pharmacy school in September 1974 and following his graduation in August 1977, has been continuously employed as a pharmacist when not pursuing advanced degrees in pharmacy and related fields. Much of McLester's pharmacy employment has been in the Navy, which he reentered in February 1978 as an ensign in the Medical Service Corps. McLester served in a variety of posts before retiring as a lieutenant commander in August 1992, including at the National Naval Medical Center in Bethesda, Maryland, where he supervised in excess of 25 pharmacists and pharmacy technicians in the preparation of an average of 1600 outpatient prescriptions per day. McLester continued the practice of pharmacy as a civilian, working briefly as a relief pharmacist for the Eckerd Drug chain in the Vero Beach area before being hired full time by Winn-Dixie in August 1992. Under McLester's supervision, Store No. 2358 enjoyed high sales volume and was used as a training site for other Winn-Dixie pharmacies. At all times during McLester's employment at Winn- Dixie, reports of annual inspections of his pharmacy conducted by the Agency for Health Care Administration ("AHCA") pursuant to law showed no deficiencies of any kind. McLester worked at the Winn-Dixie Store No. 2358 until June 17, 1998. McLester's separation from Winn-Dixie was voluntary. McLester left Winn-Dixie because he considered the hours assigned to him by his new supervisor, Steve Howard ("Howard") to be "slave hours." Following McLester's departure, sales and customer satisfaction at Store No. 2358 deteriorated. For most of the time relevant to this case, McLester was responsible for filling in the neighborhood of 150 prescriptions per day. That number placed his store at the high end of Winn- Dixie pharmacy productivity. 3 During the course of his employment at Winn-Dixie, McLester had occasion to report approximately a dozen instances of prescription drug fraud to the authorities, including St.Lucie County Detective Scott Silverman (Silverman). Following his resignation from Winn-Dixie, McLester worked briefly with various services which would find him work as a relief pharmacist. On the instructions of Howard, McLester was not permitted to work at any of the Winn-Dixie stores in the area. In October 1998, McLester found full-time employment with Doctors' Clinic Pharmacy in Vero Beach, a "closed pharmacy" which serves only the patients of that multi-specialty practice. During his term of employment at Winn-Dixie, McLester was assisted by about a half dozen pharmacy technicians. Pharmacy technicians are licensed by the state and must work under the close supervision of a registered pharmacist. Tasks which the law permits to be delegated to pharmacy technicians and which, in fact, are typically delegated to a pharmacy technician include ordering drugs, including controlled substances; receiving drugs and other inventory; counting and transferring drugs from their original containers to packages for individual prescriptions; shelf maintenance; department maintenance; and stocking shelves. Other tasks which pharmacy technicians may legally perform, and which were in fact performed by technicians at Winn-Dixie stores, include logging invoices into the computer system for payment; verifying orders shipped into the store; answering telephones; taking refills from patients or doctors provided that there is no change in any element of the prescription (i.e. instructions to the patient, dosage, etc.); requests to doctors to issue new prescriptions on behalf of a patient; preparing labels and delivering filled prescriptions to the pharmacist for final verification. Because of the nature of the tasks delegated to pharmacy technicians, the relationship between pharmacist and technician must be one of, as several witnesses testified, implicit trust. McLester trusted all of the pharmacy technicians with whom he worked at Winn-Dixie. One of the Winn-Dixie pharmacy technicians, Tonya Tipton ("Tipton") betrayed McLester's trust, along with the trust of the State of Florida which licensed her, Winn-Dixie which employed her, and several other pharmacists under whose supervision she worked. Weeks after McLester left Winn-Dixie, Tipton's betrayal of trust was discovered. Soon after, she was fired from Winn-Dixie and subsequently arrested for crimes she allegedly committed in and against the Winn-Dixie pharmacy. Tipton's arrest set in motion a chain of events which led to this Administrative Complaint. Following a work-related injury suffered in the early 1990s, Tipton developed a dependence upon prescription painkilling medication, including the narcotic nasal spray Stadol.4 Unbeknownst to anyone, Tipton devised a scheme by which she could steal Stadol from Winn-Dixie, and also obtain Stadol under a forged prescription. At all times prior to Tipton's firing from Winn-Dixie, she was a trusted employee. Tipton fell under suspicion when she stated to a co- worker that a package would be arriving the following day and that it should not be opened. Store employees opened the package nevertheless and discovered it contained Stadol. Thereafter, a fellow pharmacy technician followed Tipton into the ladies' room and discovered empty bottles of Stadol in the wastebasket. Confronted by store employees about her inappropriate instruction to the co-worker not to open the package, as well as the empty Stadol containers in the ladies' room, Tipton admitted only to taking one bottle of Stadol from the Winn-Dixie pharmacy. Abundant circumstantial evidence suggests that Tipton's dependence upon Stadol led her to commit more than the one offense to which she admitted. McLester had been the primary pharmacist on duty at Store No. 2358 during many of the shifts when Tipton was alleged to have illegally obtained Stadol. Following a criminal investigation by Detective Silverman and the arrest of Tipton, McLester's former supervisor, Howard, lodged a complaint against McLester with the Board of Pharmacy. In his letter of complaint, Howard characterized his complaint as an effort to protect the interests of Winn-Dixie "in case this problem was found out." Howard claimed that Mostafa Macida ("Macida"), who had replaced McLester as the store's primary pharmacist,"discovered" that Stadol was being stolen from the pharmacy but this testimony is rejected as inconsistent with the testimony of numerous individuals who, unlike Howard, had personal knowledge of the events surrounding Tipton's arrest. Macida suspected nothing and discovered nothing. Tipton's employment at Winn-Dixie began in February 1995 when she was hired as a pharmacy technician by McLester.5 In that capacity, Tipton worked not only with McLester, but also with then-Head Technician Ava Forsythe (Forsythe). Forsythe trained Tipton in the technicians' duties, including the various methods by which prescription drugs, both controlled and non-controlled, may be ordered. At all times relevant to this case, there are three ways in which Winn-Dixie pharmacies may procure drugs and medical supplies requiring prescriptions for resale to the public. The primary system is a computer-generated daily order. The system was referred to by many witnesses as "the PDX system" ("PDX"). Technicians, working under the supervision of the pharmacist, would review the order to verify that the required types and quantities of supplies were being ordered. When the order was deemed complete, "the button was pushed" and the order electronically transmitted to Winn-Dixie's major drug supplier, Bindley-Western.6 In theory, the computer would accurately track stock in over 2,000 line items. The computer was supposed to automatically add to the inventory based upon what was ordered, and subtract based upon records of what was actually dispensed to customers. In reality, the computer-generated inventory was corrupt on a daily basis. Because of the PDX system's unreliability, technicians often had to make adjustments by hand so that the computerized records would match what was actually in stock. Orders could also be manually keypunched into a unit called a Telxon, which also transmitted orders to Bindley- Western. The Telxon unit is portable. The size of a telephone, the Telxon unit at Store No. 2358 was generally kept in a drawer when not being used. Finally, drugs can be ordered from Bindley-Western and/or from one of two secondary suppliers used by Winn-Dixie from any telephone, whether or not the telephone is located in a Winn-Dixie store. None of the systems used by Winn-Dixie, either singly or in combination, had the ability to flag the fact that hundreds of bottles of Stadol had been ordered and paid for by Winn-Dixie, yet not placed on the shelves as pharmacy inventory in Store No. 2358, during the period of Tipton's employment. Under Winn-Dixie's system, it is possible for a pharmacy technician to order medications unbeknownst to the pharmacist, to have them paid for by Winn-Dixie, and to physically divert them to his possession before the medications were logged in to pharmacy inventory. Once drugs are properly entered into inventory, it is reasonable to expect that the pharmacist could be aware of large amounts of a drug being stolen from the inventory. Any single incident of placing unauthorized drug orders could take place in the two or three minutes the duty pharmacist might be absent to go to the restroom, or have his attention diverted for any reason. Silverman is an experienced police officer, having served for over two decades in various law enforcement positions in Florida. For nearly five years Silverman has been exclusively assigned to work with pharmacies and other law enforcement agencies in St. Lucie County. Silverman's job is to assist in the prevention and prosecution of crimes involving the misuse of prescription drugs. Silverman's involvement in this case began when Tipton sought him out. Tipton knew Silverman because her husband is a fellow St. Lucie County detective, and Tipton herself was a sworn St. Lucie officer. Tipton approached Silverman to confess that she had taken a bottle of Stadol from the Winn-Dixie store where she worked. Tipton's confession was not provoked by an attack of conscience. Rather, after she was fired by Winn-Dixie, she began damage control. As Silverman's investigation progressed, substantial effort was made to determine how Tipton had diverted Stadol and what, if any, other crimes may have been committed. Documents collected in the course of the investigation revealed that Tipton had developed a dependency on prescription painkillers dating to a back injury in 1990 in which she suffered a herniated disc. Tipton developed a dependency on Stadol in 1996, after dealing with pain related to the 1990 injury. Tipton claimed to Winn-Dixie security supervisor Robert Blakely ("Blakely") that she had told McLester of the problem, and that he referred her to her doctor for help. Ultimately, Silverman arrested Tipton on 17 counts of insurance fraud and one count of felony possession of a controlled substance. No evidence was offered regarding the disposition of Tipton's case. No evidence was presented of what, if any, effort was made to determine from Tipton if McLester had any complicity in her crimes. It was clear to Silverman that while Tipton had figured out a way to illegally divert Stadol to her unauthorized use, as of the date of the final hearing, "nobody knows how it was done." 7 There was conflicting testimony as to precisely how much Stadol was diverted by Tipton over the relevant period of time but Tipton's ability to obtain the drug through the use of fraudulent prescriptions and outright theft was audacious in scale. Stadol was a legend drug until June 1997 when the Drug Enforcement Agency upgraded its status to a Schedule IV controlled substance. Prior to October 19, 1996, Tipton had a legitimate prescription for Stadol. On that date, Les Gessley ("Gessley"), a relief pharmacist at Store No. 2358, approved a new Stadol prescription for Tipton under a legend number. Tipton used this approved prescription number subsequently when she herself prepared numerous unauthorized refills under this same number. Each of these unauthorized refills was listed on daily pharmacy logs certified mostly by McLester, but also by other duty pharmacists as well. Because these unauthorized prescriptions were refills rather than original prescriptions, the duty pharmacist was not required to personally view the original written prescription. McLester was the pharmacist on duty a majority of the days on which Tipton is believed to have diverted Stadol illegally. Somewhere between ten and twenty percent of the Stadol believed to have been unlawfully diverted by Tipton from Store No. 2358 was diverted after McLester had ceased to be employed there. Some of the Stadol obtained by Tipton under fraudulent prescription at Store No. 2358 was obtained on days when McLester was not the pharmacist on duty. In addition to Les Gessley and Mostafa Macida, other pharmacists on duty while Tipton was believed to have engaged in the criminal diversion of Stadol are Ted Kline and Al Leota. McLester admitted knowing Tipton had a problem with Stadol but did not know the extent of her problem. Forsythe told McLester that she thought there might be some Stadol missing from the shelves. When she shared her concern with McLester, he instructed Forsythe not to leave Tipton alone in the pharmacy. No evidence placed McLester's conversation[s] with Tipton and other parties about her use of Stadol in the context of when Tipton's alleged diversions occurred. According to Forsythe's unrebutted testimony, If you were that desperate you could order any medication you wanted on the Telxon machine or verbally order without knowledge of the pharmacist knowing what you were doing. And then when the medication comes in, you pay the invoice. You throw the invoice away. You throw the copy that you received from the computer away. The invoice is paid. The only person that will know about it will be the person at the headquarters that pays the payment on the invoice without knowing what is on it and the person gets the medication. Take the medication home via however and no one is the wiser. Winn-Dixie has no security procedures in place, such as searching handbags or packages, to prevent employee theft in the pharmacy. Winn-Dixie's ordering system is tailor-made to be abused by individuals who are, in Forsythe's words, "that desperate." It is not illegal for pharmacy technicians to fill their own prescriptions. It is possible for a pharmacy technician to fill or refill a prescription without the pharmacist knowing that had been done if he was absent from the pharmacy or had his attention diverted in some fashion. It appears that Tipton refilled her own fraudulent prescription on a number of occasions, but that her preferred method of diverting Stadol was outright theft. The Winn-Dixie system by which the pharmacies are stocked is flawed in a manner which allowed Tipton to divert Stadol without being detected by the duty pharmacist. The Department failed to show that McLester knew or should have known that Tipton had diverted Stadol to her unauthorized use at Store No. 2358.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges in the Administrative Complaint be dismissed. DONE AND ENTERED this 17th day of November, 2000, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 17th day of November, 2000.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the 7% day of Serrmenser , 2011, in Tallahassee, Florida. jd. ft ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Page 1 of 2 Filed September 13, 2011 1:23 PM Division of Administrative Hearings Copies furnished to: Kristina L. Schlieter, Esquire Agency for Health Care Administration (Interoffice Mail) Javier Talamo, Esquire Kravitz & Talamo, LLP 7600 West 20th Avenue, Suite 213 Hialeah, Florida 33016 (U.S. Mail) Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Building Tallahassee, Florida 32399-3060 Michael Blackburn, Chief, Medicaid Program Integrity Kathy Herold, Medicaid Program Integrity Finance and Accounting Health Quality Assurance Department of Health CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to 7 the above named addressees by U.S. Mail on this the [Z day of Sle bs, 2011. Richard Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630 Page 2 of 2
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. iN . DONE AND ORDERED on this |3 day of MAK | , 2010, in Tallahassee, Florida. be Thomas W. Arnold, Secret: Agency for Health Care Administration Agency for Health Care Administration v. Humanitary Pharmacy, Inc. Final Order — Page 1 of 3 Filed April 15, 2010 3:03 PM Division of Administrative Hearings. A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Copies furnished to: Bernard M. Cassidy, Esquire Bemard Cassidy, P.A. One East Broward Boulevard, Suite 1410 Fort Lauderdale, Florida 33301 Telephone: (954) 764-6430 Facsimile: (954) 764-6448 (Via U.S. Mail) Justin M. Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Kim Kellum, Chief Medicaid Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Tracie L. Hardin, Esquire ; Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Ken Yon, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Peter Williams, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Iinteroffice Mail) Florida Department of Health License No.: PH0020034 (Via Email Only) Agency for Health Care Administration vy. Humanitary Pharmacy, Inc. Final Order — Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to —h— the above named addressees by U.S. Mail, or the method designated, on this the ae) day of Ayal , 2010. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 Agency for Health Care Administration y. Humanitary Pharmacy, Inc. Final Order — Page 3 of 3
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this “a” day of Deste , 2013, in Tallahassee, Florida. ye Dudek, cle t Agency for Health Care Administration Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order — Page 1 of 3 Filed October 24, 2013 3:14 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Copies furnished to: Michael J. Glazer, Esquire Jennifer F. Hinson, Esquire AUSLEY & McMULLEN 123 S. Calhoun Street, P.O. Box 391 Tallahassee, Florida 32301 melazer@ausley.com jhinson@ausley.com (Via Electronic Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Electronic Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Electronic Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Electronic Mail) Richard Zenuch, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Electronic Mail) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Electronic Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Electronic Mail) Florida Department of Health Medical License #ME0060415 (Via Email Only) Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order - Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the ZZ “day of LASDf2S 2013. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630/(850) 921-0158 FAX Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order — Page 3 of 3
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by the Honorable Robert S. Cohen, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Motion to Dismiss and Relinquish Jurisdiction, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Sky Powersports North Orlando, LLC to sell Slingshot Motorcycles manufactured by Polaris Industries, Inc. (SLNG) at 855 North US Highway 17-92, Longwood (Seminole Count), Florida 32750. Filed February 13, 2015 4:10 PM Division of Administrative Hearings DONE AND ORDERED this (3 County, Florida. Filed in the official records of the Division of Motorist Services this 13 _ day of February, 2015. Moke: Ur Nalini Vinayak, Dealer License Administrator Copies furnished to: Nalini Vinayak Dealer License Section Nicholas A. Bader, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 Michael W. Malone Polaris Sales and Service, Inc. 2100 Highway 55 Medina, Minnesota 55340 Robert S. Cohen Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 day of February, 2015, in Tallahassee, Leon Cobuv Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 e Charles R. Northey Sky Powersports North Orlando, LLC 246 McLean Point Winter Haven, Florida 33884 Nathan D. Stickney Sky Powersports North Orlando, LLC 709 Elkhorn Fern Lane Deland, Florida 32720 Jonathan Breenen Butler, Esquire Akerman, LLP 777 South Flagler Drive Suite 1100, West Tower West Palm Beach, Florida 33401 NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORTS CENTER, Petitioner, vs. Case No. 14-6038 POLARIS SALES AND SERVICE, INC., AND SKY POWERSPORTS NORTH ORLANDO, LLC, Respondents. ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Respondent’s Motion to Dismiss and to Relinquish Jurisdiction, filed on January 23, 2015, and Petitioner’s Notice of No Objection to Respondent’s Motion to Dismiss, filed on February 5, 2015, and the undersigned being fully advised in the premises, it is, therefore, ORDERED that: 1. Respondent’s Motion to Dismiss and to Relinquish Jurisdiction is granted. 2. The final hearing scheduled for September 8 through 11, 2015, is canceled. 3. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles, Division of Motor Vehicles. DONE AND ORDERED this 6th day of February, 2015, in Tallahassee, Leon County, Florida. ROBERT S. COHEN 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 6th day of February, 2015. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, MS 61 Tallahassee, Florida 32399 (eServed) William Edward Van Cott Government Operations Consultant Office of the General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway, Room A-430 Tallahassee, Florida 32399 (eServed) Nicholas A. Bader, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 (eServed) Michael W. Malone Polaris Sales and Service, Inc. 2100 Highway 55 Medina, Minnesota 55340-9770 Charles R. Northey Sky Powersports North Orlando, LLC 246 McLean Point Winter Haven, Florida 33884 Nathan D. Stickney Sky Powersports North Orlando, LLC 709 Elkhorn Fern Lane Deland, Florida 32720 Jonathan Brennen Butler, Esquire Akerman, LLP Suite 1100 West Tower 777 South Flagler Drive West Palm Beach, Florida 33401 (eServed) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORT CENTER, CASE NO.: 14-6038 Petitioner, vs. POLARIS SALES AND SERVICE, INC., AND BROWARD SKY POWERSPORTS NORTH ORLANDO, LLC, Respondents, / RESPONDENT'S MOTION TO DISMISS AND TO DICTION Respondent, POLARIS SALES AND SERVICE, INC. ("Polaris"), by and through their undersigned counsel and pursuant to Sections 120.569, 320.642 and 320.642, Florida Statutes, and Florida Administrative Code Rule 28-106.204, respectfully move for entry of an Order dismissing the Petition initiating this proceeding and relinquishing the Division of Administrative Hearings' jurisdiction over this proceeding. As grounds, Polaris states as follows. 1 This proceeding was initiated by the Petition Protesting Establishment of Dealership Pursuant to Florida Statutes Section 320.642 ("the Petition") filed by Petitioner CYCLE SPORT CENTER, INC., d/b/a CYCLE SPORT CENTER (‘Cycle Sport"). In relevant part, Cycle Sport is protesting Polaris’ Notice of Intent to establish Sky Powersports North Orlando, LLC ("Sky") as an additional dealer for the sale of Polaris' line of Slingshot motorcycles at 855 North U.S. Highway 17-92, Longwood, Florida ("the Notice of Intent"). 2. On January 15, 2015, however, Polaris filed formal notice of withdraw of the Notice of Intent with the Florida Division of Motor Vehicles, whereby Polaris withdrew its request that Sky be authorized as an additional dealer of the Slingshot line. A copy of Polaris Notice of Withdraw is attached as Exhibit A. 3. As a consequence of Polaris' withdraw of its Notice of Intent, there is no longer any basis or need for an administrative hearing on Cycle Sport's Petition protesting the Notice of Intent, Rather, Cycle Sport's Petition is now moot as there are no substantial interests or rights of the parties to be adjudicated nor any disputed facts to be determined. 4. Polaris accordingly requests that the Division of Administrative Hearings dismiss this proceeding and relinquish jurisdiction of this matter to the Division of Motor Vehicles. Respectfully submitted, !s/ Jonathan B. Butler Jonathan B. Butler, Esq. Florida Bar No. 56197 Akerman LLP 777 South Flagler Drive, Suite 1100 West West Palm Beach, FL 33401 Office: (561) 671-3642 Fax: (561) 659-6313 E-mail: jonathan. butler@akerman.com Secondary e-mail: luke.bovat@akerman.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 23, 2015, I electronically filed the foregoing document with the Division of Administrative Hearings via eALJ, and served the foregoing documents via U.S. Mail and email on Robert C. Byerts, Esq. and Nicholas Bader, Esq., Bass, Sox and Mercer, 2822 Remington Green Cir, Tallahassee, FL 32308. /s/ Jonathan B. Butler Jonathan B. Butler, Esq. Florida Bar No. 56197 G— PSLaARIs “~~ SALES inc. Polaris Sales Inc, 2100 Highway 55 Medina, MN 55340-9770 763-542-0500 763-847-8149 fax January 15, 2015 Nalini Vinayak, Administrator Dealer License Section Division of Motor Vehicles 2800 Apalachee Parkway Room A-312, MS-65 ; Tallahassee, FL 32399-0635 Dear Nalini Vinayak, On October 30, 2014, Polaris Sales Inc. provided the Florida Division of Motor Vehicles with notice that It intended to authorized Sky Powersports North Orlando, LLC., d/b/a Sky Powersports North Orlando as a dealership for the sale of Slingshot at 855 North Highway 17-92, Longwood, FL, 32750. Polaris hereby formally withdraws that notice of intent to authorize. Please acknowledge receipt of this letter and notice of withdrawal, Should you require any additional Information, please contact Peggy Payne at 763-847-8403. Sincerely, % ee ¥ UMICHAUL ULE bus Michael W. Malone ~ { VP Finance, CFO
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this yr Y say of fag , 2014, in Tallahassee, Florida. Mk rfl for ¢ . izabeth Dudek, Se tary Agency for Health Care Administration Agency for Health Care Administration v. James C, Lyons, D.D.S. Final Order Page 1 of 3 Filed May 30, 2014 12:49 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Copies furnished to: Alex Arreaza, Esq. 320 W. Oakland Park Boulevard Wilton Manors, Florida 33311 Phone: (954) 565-7743 Facsimile: (954) 565-7713 Email: alex@alexmylawyer.com (Via Electronic Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Via Electronic Mail) Agency for Health Care Administration Bureau of Financial Services 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Via Electronic Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Via Electronic Mail) Richard Zenuch, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Via Electronic Mail) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 4 Tallahassee, Florida 32308 (Via Electronic Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via Electronic Mail) Florida Department of Health Medical License # DN17884 (Via Email Only) Agency for Health Care Administration v. James C. Lyons, D.D.S. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by Electronic Mail, or the method designated, on this the 26 day of CO » 2014. NS Richard Shoop, Esquiré Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630 Agency for Health Care Administration v. James C. Lyons, D.D.S. Final Order Page 3 of 3
The Issue At issue is whether petitioner's application to take the examination required for licensure as an optician should be approved.
Findings Of Fact Mr. Silverstone seeks licensure through the apprenticeship program. His organized sponsor indicated he only supplied initial sponsorship forms. The vast majority of the hours Mr. Silverstone claims were not certified by his sponsor whose signature was forged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered approving petitioner's application to take the examination required for licensure as an optician, and imposing an administrative fine of $1,000. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.
The Issue The issue in this matter is whether the Respondent, Gloria Scavella, should be suspended from her employment for thirty days for just cause. The Petitioner, School Board of Miami-Dade County, Florida, (Petitioner or Board) maintains the suspension should be upheld.
Findings Of Fact The Petitioner is authorized by Florida law to operate and administer the public schools within the Miami-Dade County School District. Accordingly, all personnel decisions, such as the matter at issue herein, fall within its operational authority. At all times material to the issues of this case, the Respondent was an employee of the School District. The Respondent served as a full-time paraprofessional assigned to Skyway Elementary School. The Respondent has been so assigned for approximately eight years. The terms and conditions of her employment with the School District are governed by a collective bargaining agreement between the Petitioner and the United Teachers of Dade (UTD contract). School employees receive training annually regarding the rules and regulations of the School District. More specifically, staff members, including the Respondent herein, are apprised of the School Board’s policy regarding corporal punishment. At all times material to the incident complained of in this case, the Petitioner maintained a policy that prohibited corporal punishment. That policy, School Board Rule 6Gx13-5D- 1.07 (prohibiting the use of corporal punishment), was clearly and fully outlined in a handbook distributed to school employees. There is no dispute that the Respondent knew or should have known of the policy. In fact, according to records maintained at Skyway Elementary School, the Respondent was present during the staff meeting when employees were reminded, among other topics, of the policy regarding corporal punishment for the school year at issue in this proceeding. It is undisputed that the Respondent’s assignment at Skyway Elementary was difficult. At times the Respondent was charged with the responsibility of maintaining order among numerous students, some acted disruptively. Prior to the incident complained of, the Respondent enjoyed a reputation as an excellent employee. She had no prior disciplinary incidents and had been recommended for commendations for her fine work. Nevertheless, on February 27, 2003, the Respondent struck a student in such a manner that it caused the student embarrassment and minor physical discomfort. On the date in question, the Respondent was supervising a group of students on the “hard court” outside the school building during the early pre-school time. Students congregate in the area before entering the classrooms at the time designated for school to start. It is common for parents to wait with their children in this area as well. The incident complained of in this case occurred while one student, R. F., played with the younger sibling of another student who was present on the hard court waiting with the parent. Following a minor exchange between the parent and R. F., the Respondent came to the scene to ask what had happened. The parent, who had observed the young sibling and the student, R. F., told the Respondent that R. F. had hit the sibling. When the Respondent was so advised, she turned to R. F. and slapped him on the head. The manner of the “slap” did not result in physical injury to R. F. Although the student cried, the credible evident would suggest that the tears were prompted more from embarrassment than from physical pain. Later, on realizing the student had been embarrassed, the Respondent promptly went to the student, apologized for the incident, and believed the matter had been fully resolved. The Respondent maintains that she did not intend to embarrass the student and did not strike the student as an act of corporal punishment. The Respondent claims she “pushed” the student’s head to get his attention so that he would refrain from involvement with the young sibling. As one might expect, word of the incident spread among members of the school community. Eventually the principal learned of the incident. The principal spoke to several persons regarding the incident including R. F., his parents, and the Respondent. Pursuant to School District protocol, the principal referred the matter to the school police for investigation. The school police followed up with an investigation of their own and decided to substantiate the claim that Respondent had violated the Board’s corporal punishment policy. School employees are expected to conduct themselves in a manner that will reflect credit on themselves and the School District. The Petitioner’s Office of Professional Standards (OPS) conducted a conference for the record to address the findings substantiated by the school police’s investigation. During that conference the Respondent was again offered an opportunity to explain the incident that occurred on February 27, 2003. The Respondent has not offered a credible explanation for why she touched the student, R. F., on the date in question. There is undisputed evidence that there was physical contact between the student and the Respondent. It is undisputed that Respondent initiated that contact. It is undisputed that the student was sufficiently embarrassed by that contact that he began to cry. And it is undisputed that the Respondent knew she had caused the student distress because she went to him and apologized. It is immaterial whether the touching was a “tap,” a full force “slap,” a “smack,” or a “pop.” It was directed from the Respondent to the student and it was intended to get his attention and to modify his behavior. It was an inappropriate touching. When the OPS reviewed the incident a recommendation for a 30-day suspension was made to the Petitioner. According to Ms. Siblesz the Petitioner does not suspend employees for more or less than 30 days. Presumably, if a suspension is warranted it must be for 30 days. Presumably, if more than a 30-day suspension is warranted, termination is appropriate. Thus the question becomes, what if less than a 30-day suspension is warranted? Apparently the Petitioner has no mechanism to discipline an employee with less than a 30-day suspension. The Respondent is a 13-year employee of the School District with an excellent work history. The Respondent serves in a difficult role and is invaluable to the teachers she assists.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Miami-Dade County School Board enter a Final Order affirming the 30-day suspension of the Respondent. S DONE AND ENTERED this 30th day of March, 2004, in Tallahassee, Leon County, Florida. J. D. 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 30th day of March, 2004. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Marci A. R. Rosenthal, Esquire Miami-Dade County School Board Suite 400 1450 Northeast Second Avenue Miami, Florida 33132
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this day of Aol’ -2644-in Tallahassee, Florida. Elizabeth (Dudek Aecretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. AHCA vs. Superior Stores Discount Distributor d/b/a Surgical World Final Order (C.I. #11-2146-000) Page 1 of 2 Copies furnished to: Louise T. Jeroslow, Esquire 6075 Sunset Drive, Suite 201 Miami, Florida 33143 Telephone: (305) 740-7431 Facsimile: (305) 740-8960 (Via Facsimile and U.S. Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive - Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Interoffice Mail) Mike Blackburn, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Eric Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Interoffice Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Agency for Persons with Disabilities 4030 Esplanade, Suite 380 Tallahassee, Florida 32399-0950 (Via Email Only) CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the x day of Pyar arf , 2014-7 a= ee Richard Shoop, Esquire Agency Clerk State of Florida, Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 Telephone: (850) 412-3630 AHCA vs. Superior Stores Discount Distributor d/b/a Surgical World Final Order (C.1. #11-2146-000} Page 2 of 2
Conclusions THE PARTIES resolved all disputed issues and executed a settlement agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is hereby CLOSED. DONE AND ORDERED on this “a” day of Deste , 2013, in Tallahassee, Florida. ye Dudek, cle t Agency for Health Care Administration Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order — Page 1 of 3 Filed October 24, 2013 3:11 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A 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 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. Copies furnished to: Michael J. Glazer, Esquire Jennifer F. Hinson, Esquire AUSLEY & McMULLEN 123 S. Calhoun Street, P.O. Box 391 Tallahassee, Florida 32301 melazer@ausley.com jhinson@ausley.com (Via Electronic Mail) Tracie L. Hardin, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Electronic Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Electronic Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Stop 9 Tallahassee, Florida 32308 (Electronic Mail) Richard Zenuch, Bureau Chief Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Electronic Mail) Eric W. Miller, Inspector General Medicaid Program Integrity 2727 Mahan Drive Building 2, Mail Station 6 Tallahassee, Florida 32308 (Electronic Mail) Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Electronic Mail) Florida Department of Health Medical License #ME0060415 (Via Email Only) Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order - Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, or the method designated, on this the ZZ “day of LASDf2S 2013. Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630/(850) 921-0158 FAX Agency for Health Care Administration v. Maxim Health Care Services, Inc. Final Order — Page 3 of 3
