The Issue Whether Petitioner's request that she be reissued a medical technologist license without taking an examination should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Norma Howell, seeks to have her medical technologist license reactivated after it was rendered "null" by operation of law on June 30, 1996. A Notice of Intent to Deny Application for Licensure was entered by respondent, Board of Clinical Laboratory Personnel (Board), on March 21, 1997. Because Petitioner requested that the Board grant a variance or waiver of the rule requiring her to take an examination in order to be relicensed, the Board reconsidered the matter at its April 3, 1997, meeting. On April 11, 1997, the Board entered its Notice of Intent to Deny Variance or Waiver on the ground Petitioner had not demonstrated that she would suffer a substantial hardship or that the application of the rule would affect her in a manner significantly different from other applicants for licensure. On May 9, 1997, Petitioner filed a request for a hearing in which she contended that the statute relied upon by the Board for denying her request "did not apply to her case" and that the Board "did not comply with the 90-day notification requirement of the statute which it relied upon to nullify her license." Petitioner has been practicing in the field of medical technology for some thirty years and she has practiced in Florida for at least nine years. Until this controversy arose, she held medical technologist supervisor license number JC-0026722. Prior to July 1, 1994, medical technogist licenses were subject to the regulatory authority of the former Department of Health and Rehabilitative Services (HRS). At that time, licenses were issued for two-year periods, and if not renewed, they "automatically" reverted to an inactive status. Section 483.819, Florida Statutes (1993), provided that if a license was inactive for less than one year, it could be reactivated by payment of a late renewal penalty. If the license was inactive for more than one year but less than five, it could be reactivated "upon application" to HRS and proof that the licensee had completed 15 hours of continuing education requirements for each year the license was inactive, but not more than a total of 65 hours. If a license was inactive for more than five years, it was automatically suspended, but one year prior to the date the suspension took effect, HRS was required to give written notice to the licensee. Once suspended, a license could not be reactivated unless a licensee met all "requirements for reinstatement." Among other things, HRS possessed the discretionary authority to require reexamination before reinstatement. Effective July 1, 1994, Section 483.819, Florida Statutes (1993), was repealed, and regulatory authority over medical technologist licensees was transferred from HRS to the Department of Business and Professional Regulation (DBPR). In addition, a new Section 455.271, Florida Statutes (Supp. 1994), was created to provide new requirements relative to the inactive and delinquent status of all professional licenses, including those for medical technologists. Section (5) provided that the "[f]ailure of a licensee to renew before the license expires shall cause the license to become delinquent in the license cycle following expiration." Section (6) provided that: a delinquent status licensee must affirmatively apply with a complete application, as defined by rule of the board, or the department when there is no board, for active or inactive status during the licensure cycle in which a licensee becomes delinquent. Failure by a delinquent status licensee to become active or inactive before the expiration of the current licensure cycle shall render the license null without any further action by the board or the department. (Emphasis added) The same subsection provided that once a license was rendered "null," any subsequent licensure "shall be as a result of applying for and meeting all requirements imposed on an applicant for new licensure." In other words, a licensee would have to retake the examination in order to be relicensed. As a safeguard to automatic cancellation of a delinquent license, however, new Section 455.273 (Supp. 1994), provided that "[a]t least 90 days before the end of a licensure cycle, the Department of Business and Professional Regulation shall . . . [f]orward a notice of pending cancellation of licensure to a delinquent status licensee at the licensee's last known address of record with the department." Against this statutory backdrop, Petitioner's license was due for renewal on June 30, 1994, when her latest biennial cycle ended. Because the license was not renewed, it became delinquent under the terms of Section 455.271(5). Therefore, it was incumbent on Petitioner to seek active or inactive status before the end of the next licensure cycle, or by June 30, 1996, or have her license rendered "null" by operation of law. It is noted that Petitioner was one of approximately 2,000 licensees whose license was not renewed at the end of the June 30, 1994, licensure cycle and thus became delinquent. In January 1992 Petitioner relocated from Florida to Mississippi in order to care for her elderly mother. She continued working as a medical technologist in Mississippi. When her license came up for renewal on June 30, 1994, Petitioner had no need for an active Florida license and therefore did not renew it. She assumed, however, that she could keep it in an inactive, delinquent status for up to five years under the terms of Section 483.819, Florida Statutes (1993). Petitioner acknowledges that she became aware of the new law in general terms, but not in specifics, in June 1995. This occurred when the Board her sent a Notice to Delinquent and Inactive Licensees advising that changes in the law had been made and that "the changes affected the manner in which licensees regulated under Chapter 483, F.S., clinical laboratory personnel, may reactivate a license or request to be placed on inactive status." The notice further provided that if Petitioner "would like to receive an application to reactivate (her) license or to be placed on inactive status," she should fill out a form at the bottom of the Notice and return it to the Board. There was no mention in the Notice that Petitioner's license would become "null" by operation of law if she did not take affirmative action by June 30, 1996. In response to the Notice, on June 16, 1995, Petitioner filed the Notice and form with the Board requesting that she be sent an application to place her license in an inactive status. The Board says that the Notice described in finding of fact 8 was a part of a packet of information attached to a form letter sent to all delinquent status licensees on May 27, 1995. According to a Board representative, the form letter contained an admonition to licensees that unless they reactivated their licenses by June 30, 1996, their licenses would be null and void. However, the actual contents of the letter are not of record. This is because the letter was not identified by Respondent's counsel as an exhibit in the prehearing stipulation; it was not a part of the Board's official file pertaining to Petitioner; opposing counsel had no notice that such a letter existed or would be used as evidence at hearing; and thus it was not received in evidence. Even though the form letter was sent some thirteen months before the licensure cycle ended, the Board takes the position that it constituted the statutory notice of pending cancellation required by Section 455.273(1)(b) to be sent to each delinquent status licensee "at least 90 days before the end of the licensure cycle." Board records do not establish that Petitioner received the form letter, and she denies having received any statutory notice of pending cancellation. Approximately two thousand (out of eighteen thousand) licenses under the Board's jurisdiction became delinquent because they were not renewed by June 30, 1994. While the number that were automatically cancelled on June 30, 1996, by operation of law is not of record, only four licensees, including Petitioner, have asked that their licenses be reinstated because of cancellation. Given this unusual circumstance, it is reasonable to accept Petitioner's testimony that she did not receive a notice of cancellation as required by law. This omission by the Board, while unintentional, constituted a material error in procedure which occasioned serious prejudice to Petitioner. In addition to filing the form on June 16, 1995, Petitioner also sent a letter to the Board on June 23, 1995. The letter stated, in pertinent part, as follows: Please place my Medical Technologist Supervisor's Lic # JC 0026722 on inactive status until further notice. I am presently residing in Mississippi. Enclosed is the required fee of $25.00 plus copies of Continuing Education certificates; 39 hrs. The letter provided her most current address in Mississippi, and it contained a postscript that "[i]f an additional form is necessary please advise." By letter dated June 28, 1995, the Board acknowledged receiving Petitioner's letter and check. In the letter, a Board representative advised petitioner that her "request for inactivation of licensure . . . cannot be processed" because she had sent an incorrect fee and a formal application had to be completed. The letter indicated that an application to reactivate her license was also enclosed. Apparently in response to the June 16, 1995, request for an application form, on July 14, 1995, the Board sent Petitioner another reactivation application. Because Petitioner did not want to reactivate her license, but she only wanted to place her license in an inactive status, she did not complete the application at that time. Again, however, she assumed that her license could remain inactive for up to five years after June 30, 1994, without placing it in jeopardy. Petitioner received no further advice, oral or written, from the Board until after she filed a Reactivation Application with the Board on December 19, 1996, together with a $470.00 fee and proof of 39 hours of continuing education. She did so at that time since she had been offered a job in Florida and intended to relocate to this state. On December 20, 1996, Petitioner and the Board's administrator spoke by telephone regarding Petitioner's application. Among other things, Petitioner was told that her license was null and void by operation of law since she failed to reactivate her license by June 30, 1996. On December 27, 1996, the administrator sent Petitioner a letter in which she reconfirmed this fact, but advised that the matter would be taken up by the Board. Petitioner asked that an exception be made since she lived out-of-state and had never received notice of cancellation. The Board later denied her request. Rule 59O-7.001(2), Florida Administrative Code, prescribes the examination requirements for licensure as a supervisor. The purpose of the underlying statute is to ensure minimum competency of all persons engaging in the profession. Petitioner has satisfied this purpose by having successfully practiced in the field for some thirty years and being certified in five specialties. In addition, during the period of time in which her license was delinquent, she successfully completed all necessary continuing education courses. If the request for a variance or waiver is denied, Petitioner will suffer economic hardship since she will be unable to practice her profession in Florida until she passes an examination. More specifically, she will be unable to accept a pending job offer as a medical technologist supervisor. Unusual circumstances are present here. Of the two thousand licensees in a delinquent status after June 30, 1994, only Petitioner has contended that she failed to receive the statutory notice of cancellation. To her detriment, the license was subsequently cancelled by operation of law. The literal application of the rule requiring an examination would unintentionally penalize Petitioner's good faith efforts to reactivate her license. Because it is presumed that all other licensees in a delinquent status received notice of pending cancellation, Petitioner will be treated in a manner significantly different from the way the rule affects other similarly situated persons seeking licensure. That is to say, any other persons requesting relief from the rule because of automatic cancellation on June 30, 1996, would have been on notice that unless they renewed their license by that date, they would be subject to the terms of the rule. Petitioner had no such notice. Therefore, fairness requires an exception. Petitioner has paid all filing fees and completed all continuing education courses necessary for reactivation. If her request is ultimately denied, she is entitled to a refund of her fees.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Clinical Laboratory Personnel enter a final order granting Petitioner's request for a waiver or variance from Rule 59O-7.001(2), Florida Administrative Code, and reinstating her license number JC-0026722. DONE AND ENTERED this 31st day of July, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1997. COPIES FURNISHED: Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel 1940 North Monroe Street Tallahassee, Florida 32399-2200 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michelle L. Proctor, Esquire 7637 State Road 52 Bayonet Point, Florida 34667 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050
The Issue Whether or not Petitioner may be issued a 2-COP License to operate a business to be known as the 101 Club located at 424 North 11th Street, Palatka, Florida.
Findings Of Fact On September 21, 1987, Petitioner, Johnnie Lee Simmons, submitted a completed application for a new permanent and temporary 2-COP (beer and wine) alcoholic beverage license(s) to the Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) at DABT's Gainesville, Florida District Office. The application involved the proposed "101 Club, located at 424 North 11th Street, Palatka, Putnam County, Florida." At the time Petitioner submitted the application(s) he was issued a temporary ninety-day license, numbered 64-00378. By the terms on the face of this first or initial temporary license, it expired on December 19, 1987. This first or initial temporary license likewise indicated on its face that it would expire upon disapproval of the pending permanent license application. The application listed Willie Lee Simmons, Sr., the Petitioner's father, as having a direct interest in the "101 Club" through a personal loan of $1,000.00 by which Petitioner would finance the "101 Club". Also in the Personal Questionnaire portion of the application, Petitioner admitted that he and his father had once held beverage license number 64-00029 for the "Palatka Blue Diamond", a bar previously located at the same address and location as the proposed "101 Club", and further admitted that the prior license had been revoked. Other "Personal Questionnaires" were also submitted simultaneously with, and as part of, the initial application. These had been completed by Petitioner's wife; the father, Willie Lee Simmons, Sr.; and Willie Lee Simmons, Sr.`s wife because the property at 424 North 11th Street, Palatka, Florida is owned together by these four family members. Petitioner and his father, Willie Lee Simmons, Sr., were formerly co- license holders for the "Palatka Blue Diamond". The revocation of that prior license was based upon Department of Business Regulation, Division of Alcoholic Beverage Control v. Willie Lee and G. L. Simmons d/b/a Palatka Blue Diamond, DOAH Case No. 83-3023, resulting in a July 12, 1984 Final Order, which was upheld on appeal to the First District Court of Appeal in Simmons v. Department of Business Regulation, Division of Alcoholic Beverages, 465 So.2d 578 (Fla. 1st DCA 1985). The First District Court of Appeal found, "[T]here was competent substantial evidence to support the hearing officer's findings that the underlying violations had occurred. We also conclude there was sufficient evidence of flagrant, persistent and recurring violations from which the hearing officer could infer that the licensees failed to supervise the premises in a reasonably diligent manner and thus, were culpable." Significant and material undisturbed findings of fact contained in the underlying Recommended Order of that case were that "Respondents did keep a public nuisance on the licensed premises by maintaining it as a place visited by persons for the unlawful use or sale of a controlled substance [marijuana], in violation of Section 823.10, F.S." The hearing officer specifically found that although Petitioner might not have been on the premises of the "Palatka Blue Diamond" when drug sales and gambling were going on, he surely knew about these activities from conversations with his wife who tended bar there. When Petitioner submitted the initial license application for the "101 Club" on September 21, 1987, Sgt. Homer Scroggin, DABT Supervisor of the Gainesville Sub-District, already knew the Petitioner and had knowledge about the revocation proceedings against Petitioner's prior license for the "Palatka Blue Diamond". He led Petitioner to believe that the prior revocation would not impede the new license application for the "101 Club", but he made no specific promise or guarantee of licensure. On December 1, 1987, seventy-one days after receiving Petitioner's application, DABT issued a written request to Petitioner for information concerning an alleged arrest in North Carolina. Subsequently, on December 16, 1987, DABT issued Petitioner a Notice of Intent to Disapprove his application for permanent licensure for failure to furnish information on the alleged North Carolina arrest. On December 23, 1987, ninety-three days after the license application and four days after the first temporary license had expired, but prior to the agency's completing its background checks, DABT's Gainesville office issued Petitioner the second of five temporary licenses. Also on that day, Petitioner signed a waiver, reading: I, Johnnie Lee Simmons, do hereby wave [sic) the 90 day period for my beverage license Sgt. Scroggin testified that if the Petitioner had not signed the foregoing waiver, he, Sgt. Scroggin, would have denied the Petitioner's application for a permanent 2-COP license at that point in time, December 23, 1987, because DABT cannot grant a license without receiving information concerning fingerprints and that information had not arrived. While it is clear that Sgt. Scroggin, told this to Petitioner, thereby inducing him to sign the waiver, the statement itself is erroneous and not credible because the thrust of the entire remainder of Sgt. Scroggin's testimony, the greater weight of the documentary evidence, and much of the testimony of DABT Licensing Bureau Chief, Barry Schoenfeld, is that Sgt. Scroggin's recommendations from the District are not binding on the Bureau of Licensing, located in Tallahassee, that the ultimate decision to grant or deny an application is made by Schoenfeld unless a prior revocation is involved, and that in unusual circumstances, such as appearance of a prior revocation history, an entire committee review procedure, culminating in the signature of the Director of DABT, Leonard Ivey's signature, was in place, and that in each alternative situation, Sgt. Scroggin was only the first recommender.1/ Moreover, the specific terms of the December 16, 1987 Notice of Intent to Disapprove is contrary to Sgt. Scroggin's December 23, 1987 statement to the Petitioner/applicant. That document provided, in pertinent part: The purpose of this letter is to notify you of our intention to recommend disapproval of your application for a license as referenced above. We are giving you ten (10) days in which to correct the deficiencies or supply additional documentation to correct the reason(s) for the recommended disapproval as indicated on the reverse of this letter. The response must be received or postmarked no later than ten (10) days from the date of this letter. If you have not complied within this time period the application will be sent to the Bureau of Licensing and Records in Tallahassee to be disapproved. No amendments or supplements will be accepted after this ten (10) day period unless specifically requested by the Division. Any documentation submitted after this period will be returned. XXX The application is deficient as indicated: 14 day letter was sent to applicant requesting disposition on case #FL0540000 Offense #4999, to date we have not heard from applicant as to his ability to clear up this matter. 14 day letter was dated on December 1, 1987. Despite the agency's characterization of this December 16, 1987 document (R-4, page 2), as an "intent to disapprove/deny," it is clearly nothing more than a repeated untimely agency request for the same information already untimely requested on December 1 (R- 4, page 1; see Finding of Fact No. 6, supra.) It is an untimely request for information, and not a denial of the permanent application. It also is clearly misleading to the applicant concerning his rights with regard to time limits which had become effective by operation of law. It specifically represents that Petitioner had until December 25 to prevent denial of his application, when in fact, the 90-day statutory period starting with the initial application date would lapse on December 20. It is also noted that Schoenfeld and Scroggin agreed, with regard to a subsequent Notice of Intent to Disapprove, that such a notice does not constitute final agency action; therefore, it is clear that both these notices in December, 1987 could not be "final" either. For these reasons and for the reasons set forth in the following Conclusions of Law, Sgt. Scroggin's statement was an erroneous legal conclusion, which either by error or design misled the Petitioner. Sgt. Scroggin also led Petitioner to believe that a backlog in license processing was the reason he needed the waiver signed. Petitioner was subsequently issued three more temporary licenses on March 31, 1988, June 30, 1988, and September 27, 1988. All five temporary licenses clearly notified Petitioner that they expired 90 days from issuance and would expire if the permanent license application were disapproved. The December 23 license lapsed March 22, nine days before the issuance of the March 31 license. The March 31 license lapsed June 28, two days before the June 30 license was issued. All the temporary licenses were issued without fee and permitted Petitioner to continue to operate his bar/nightclub, the "101 Club", pending further license processing which included out of state arrest inquiries, FBI fingerprint processing, and further background checks. Approximately January 22, 1988, the criminal background checks on all four members of Petitioner's family were completed and determined to be no impediment to licensure. On February 4, 1988, Sgt. Scroggin recommended that Tallahassee DABT approve the Petitioner's application and that it issue the requested permanent license. On or about May 18, 1988, Sgt. Scroggin received a memorandum from Mr. Schoenfeld questioning Sgt. Scroggin's February 4 favorable recommendation. Sgt. Scroggin then reconsidered and recommended that Petitioner's application should be disapproved for several reasons. At formal hearing, however, Sgt. Scroggin was unable to provide any evidence supportive of the allegations/reasons contained in this disapproval recommendation. Rather, and contrariwise to those allegations, Sgt. Scroggin admitted that his Gainesville office had received no complaints of any kind relating to the "101 Club" during the 15 months it had operated on its five temporary licenses; that he had, subsequent to his disapproval recommendation, determined that only one police incident report involving the "101 Club" had ever been made; and that that single report had been made by a customer whose boyfriend had slapped her. The DABT witnesses concede that this incident report does not reflect badly in any way on any "101 Club" principal and would not preclude issuing the license. On August 4, 1988, DABT sent Petitioner its "Amended Notice of Intent to Disapprove," naming Petitioner's prior "Palatka Blue Diamond" license revocation as the reason for disapproval. By the terms of that Amended Notice, and in response to it, Petitioner's attorney timely submitted further information, and Sgt. Scroggin, untimely, but by August 19, 1988, advised Tallahassee DABT in favor of licensure approval due to the results of his check of local police incident reports. On September 27, 1988, the fifth temporary license was issued to Petitioner with the approval of Tallahassee DABT. On December 1, 1988, Tallahassee DABT issued its final "Notice of Disapproval," citing the prior license revocation and Petitioner's and his father's lack of good moral character as the only reasons for the license denial. The record as a whole clearly shows that the only unfavorable evidence of moral character that DABT had before it with regard to this license application arose out of the prior license revocation 4-5 years before. Petitioner/applicant, Johnnie Lee Simmons, is 40 years old. He has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of any offense against the beverage laws of Florida, the United States, or any other state; has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; and has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of a felony in this state, or the United States. Willie Lee Simmons, Sr., Petitioner/applicant's 58 year old father and an interested party, also has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of any offense against the beverage laws of Florida, the United States, or any other state; has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; and has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of a felony in this state, or the United States. Upon the testimony of Dorothy Carter, accountant- bookkeeper for, and long-time friend of, all the Simmons family members, the testimony of Sgt. Scroggin, and admissible hearsay statements of Palatka Chief of Police Hill and Assistant Chief of Police Rowe (P-12), it is found that as of the date of formal hearing, Petitioner and his father respectively have good reputations for honesty, fair dealing, and personal character in the Palatka, Putnam County community. Both men are reputable and responsible business persons, each employing between 25 and 40 migrant laborers. They pay their taxes. They have established credit. Further, upon the record as a whole, it is found that the Simmons father and son, between them, support three Palatka city-league baseball teams and are also engaged in other activities which benefit the community with an emphasis on youth. Also, Johnnie Lee Simmons, the applicant/Petitioner, has long been active in the local chapter of the NAACP and served two years as its President. In so finding, the undersigned has assessed Mrs. Carter's credibility in several respects. First, it is recognized that as a social friend and business associate of all the Simmons family members, her view of them is favorably weighted by that association. Second, her view of the prior license revocation is also affected in their favor by their business and social association. Mrs. Carter has, in her own mind at least, minimized the importance of the prior license revocation by her belief that all wrongdoing in the "Palatka Blue Diamond" occurred while the Simmons men were out-of-town, for the purpose of transporting laborers to northern farms and while they were not physically within the licensed premises providing active management. This belief of Mrs. Carter is directly contrary to the responsibilities imposed by statute, rule, and case law upon beverage licensees who are required to know and to monitor affairs on their premises, but it is accurate in terms of the factual absence of applicant/Petitioner's absence from the "Palatka Blue Diamond" at times crucial to the prior revocation. However, third, and most importantly, it is found that Mrs. Carter was testifying concerning the status of the Simmons mens' affairs, conduct, and character in 1989, 6-7 years after the prior revocation events, 4-5 years after actual revocation, and at a time when other evidence confirms that Petitioner and his father have centralized all their business and community activities within the Palatka community. The moral character of the principals approximately 5 years after the prior revocation, at the time of the new application and the de novo formal hearing, is material and persuasive. Mrs. Carter, as a long-time local resident, has had opportunity and reason to know the current situation, and her testimony that the Simmons father's and son's character (based on her own experience and opinion) is now "good" is credible and unrefuted. Moreover, her conclusion with regard to their good character and reputation (arising from word of mouth in the community) is reinforced by Sgt. Scroggin's investigation and ultimate favorable recommendation, which in turn was based on the customary predicate for "reputation in the community". Mrs. Carter's evidence of current good character is direct and unrefuted. Sgt. Scroggins' testimony is in the nature of reputation testimony but is bolstered by his personal examination of the police incident reports and corroborates the statements/opinions of Palatka's Chief and Assistant Chief of Police, which, though hearsay, are admissible pursuant to Section 120.58 F.S. Sgt. Scroggins' and the officers' opinions are consistent as to reputation with Mrs. Carter's unrefuted opinion as to character.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages, issue a Final Order confirming that the permanent 2 COP beverage license was issued to Petitioner pursuant to operation of law on December 20, 1987. DONE and ENTERED this 5th day of September 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1989.
The Issue Whether Petitioner's license to practice clinical social work was lawfully annulled.
Findings Of Fact Petitioner, Patricia Katz, was licensed as a clinical social worker in Florida, license number SW 0002228, on March 31, 1989. Thereafter, Petitioner intended to remain fully licensed. The Respondent is the state agency charged with the responsibility of regulating and licensing clinical social workers within the State of Florida. Based upon the testimony of Petitioner and documentary evidence received in this cause, it is undisputed that Petitioner remained actively licensed until January 31, 1995. Prior to the expiration of her license in January 1995, the Respondent was required to send Petitioner a license renewal notice. Renewal notices are typically computer generated and the Respondent does not maintain copies of the notices to verify that they are sent to, or received by, its licensees. In this case, there is no direct evidence to establish Petitioner received the renewal notice; however, the computer records maintained by the Respondent reflect that the renewal notice was sent to Petitioner's Miami address on or about September 20, 1994. The address the Respondent maintained for Petitioner for the 1995 renewal time frame was accurate: 9720 Southwest 159th Street, Miami, Florida. In June 1995, Petitioner acquired a new residence in Broward County, Florida. She has remained at the Broward residence, 762 Heritage Drive, Weston, Fort Lauderdale, Florida, continuously since that time. In August 1995, Petitioner sold her old residence in Miami. Between this sale and the acquisition of the Broward residence, Petitioner maintains she notified the Respondent, in writing, of the address change. For some unexplained reason, the Respondent did not change its records regarding Petitioner's address. It continued to carry Petitioner's address as the Miami residence. For some unexplained reason, Petitioner did not contact the Respondent, in writing, to question why she did not receive a renewal notice for the 1995-97 period. Petitioner knew or should have known that her license renewals were due every two years. In addition to renewal forms, license fees are due and payable to the Respondent at renewal time. Had Petitioner renewed her license for the 1995-97 period, it would have expired at the end of January 1997. In October 1996, Respondent, again by way of the computer-generated form, sent Petitioner a notice of license nullification. According to the computer records, this notice was also sent to the Petitioner's old Miami address. Respondent does not have a copy of the notice or verification that Petitioner received it. In February 1997, the Respondent declared Petitioner's license null and void. Petitioner chose not to renew her license in January 1995, but believed it had automatically gone into an "inactive" status which would continue indefinitely. During this time Petitioner encountered several personal challenges which rightfully preempted her interest in her license status. Among these crises were two close relatives with cancer who required her assistance. Nevertheless, because she desired to maintain her license for the 1995-1997 time frame, Petitioner took the required continuing education courses. Such course work, completed during calendar year 1996, is fully documented in Petitioner's Exhibit 3. Petitioner did not pay any fees associated with her license status for the period 1995-1997. Sometime in 1997, Petitioner became concerned regarding her license status and contacted the Respondent by telephone. She spoke with Lucy Gee, the former executive director for Respondent, and sought clarification as to her license. When Ms. Gee advised Petitioner that her license had been annulled as a matter of law, Petitioner immediately sought to challenge such decision. In August 1997, the Respondent advised Petitioner that she would have to re-apply for licensure as a new licensee. Other options were not suggested. Petitioner did not receive notice that her license would be annulled prior to the agency action in February 1997. Petitioner was not afforded a point of entry to challenge the agency decision until March 1998. Thereafter, the Petitioner's challenge was forwarded to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's request for reinstatement to an inactive license status with leave to reactivate her license upon the payment of fees and demonstrated compliance with continuing education be denied. DONE AND ENTERED this 13th day of January, 1999, 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 13th day of January, 1999. COPIES FURNISHED: Susan Foster, Executive Director Department of Health Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pete Peterson, General Counsel Department of Health BIN A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health BIN A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 E. Renee Alsobrook, Esquire Alsobrook & Dove, P.A. Post Office Box 10426 Tallahassee, Florida 32302-2426 Edward Tellechea, Esquire Department of Legal Affairs Attorney General's Office The Capitol, Plaza 01 Tallahassee, Florida 32399-1050
Findings Of Fact On or about September 30, 1980, petitioner mailed its application to respondent for registration of the trademark "Cachet". Accompanying the application were a check for fifteen dollars ($15.00) and shoe insoles stamped "Cachet", each bearing an escutcheon and the legend "MADE IN SPAIN". On October 14, 1980, respondent returned petitioner's application, declining to register "Cachet" as a trademark in the absence of consent by Cachet, Inc., an unrelated active Florida corporation for profit with a Miami address, duly registered with respondent. Cachet, Inc. has not registered any trademark with respondent, and does not sell shoes. Ms. Nettie Sims, chief of respondent's bureau of corporate records and an employee of respondent for 27 years, testified that this action was in keeping with respondent's policy going back as far as she could remember.
The Issue Whether the Respondent, Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes (Respondent or Division), acted arbitrarily or capriciously in denying Christian Welvaert’s (Petitioner or Welvaert) application to be licensed as a yacht and ship salesmen under Chapter 326, Florida Statutes.
Findings Of Fact Respondent is the state agency charged with regulating and licensing of yacht and ship brokers under Section 326.002(2), Florida Statutes. On October 16, 2001, Welvaert submitted to the Division his application for licensure as a yacht and ship salesman. Licensure is a privilege granted to individuals who affirmatively demonstrate good moral character. The Division is authorized to, and does in fact investigate an applicant's criminal background if one exists. This is done so that the state may determine if the individual's criminal history is of a nature which would warrant denial of licensure. To facilitate the state's investigation, applicants are asked to fully disclose any criminal history. It is required that this question, and all the questions on the application, be answered truthfully. Welvaert falsely stated on his application that his only criminal background was "traffic offense." A Florida Department of Law Enforcement (FDLE) background check revealed that Welvaert had been arrested on several occasions on charges relating to possession of drugs and drug paraphernalia; domestic battery and resisting an officer without violence; probation violation by possessing drug paraphernalia and cannabis; and driving under the influence of drugs or alcohol. Welvaert did not offer any evidence to contradict the FDLE's findings in any material way. He asserted that he never violated probation, claiming that he didn’t know when his court date was because he had moved. This experience did not teach Welvaert the importance of attending to his legal affairs. In this case, he blamed his landlady for his failure to respond to the Division's Request for Admissions, which was properly served upon him at the address he had on file in this case. Welvaert stated, "I thought the person, the landlady I was staying with, I thought she was going to call me or tell me if I had something this important in the mail. I guess she didn't." Petitioner testified that he has "changed his life around" and is now rehabilitated. While he did not unequivocally deny the drug charges, he implied that he "just [took] the time" on the advice of the presiding judge. He further stated, "It was at someone's house. I was in a college town at the time." Nothing in Welvaert's testimony constitutes a legally or factually sufficient excuse for his failure to disclose his criminal background.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's application to be licensed as a yacht and ship salesman’s be denied. DONE AND ENTERED this 4th day of November, 2002, 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 4th day of November, 2002. COPIES FURNISHED: Joseph S. Garwood, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Christian P. Welvaert 7 Kenmore Lane Boynton Beach, Florida 33435 Ross Fleetwood, Division Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Petitioners' applications for the delinquent renewal of their special restaurant licenses pursuant to Section 561.27(2), Florida Statutes, should be denied for the reasons set forth in the Notices of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: There are various types of DABT-issued licenses authorizing the retail sale of alcoholic beverages. Among them are quota licenses, SRX licenses, and SR licenses. All three of these licenses allow the licensee to sell liquor, as well as beer and wine. Quota licenses, as their name suggests, are limited in number. The number of quota licenses available in each county is based upon that county's population. SRX and SR licenses are "special" licenses authorizing the retail sale of beer, wine, and liquor by restaurants. There are no restrictions on the number of these "special" licenses that may be in effect (countywide or statewide) at any one time. SRX licenses are "special restaurant" licenses that were originally issued in or after 1958.3 SR licenses are "special restaurant" licenses that were originally issued prior to 1958. For restaurants originally licensed after April 18, 1972, at least 51 percent of the licensed restaurant's total gross revenues must be from the retail sale of food and non- alcoholic beverages.4 Restaurants for which an SR license has been obtained, on the other hand, do not have to derive any set percentage or amount of their total gross revenues from the retail sale of food and non-alcoholic beverages. DABT-issued alcoholic beverage licenses are subject to annual renewal.5 License holders who have not timely renewed their licenses, but wish to remain licensed, may file an Application for Delinquent Renewal (on DABT Form 6015). Until recently, it was DABT's longstanding policy and practice to routinely grant applications for the delinquent renewal of SR and other alcoholic beverage licenses, regardless of the reason for the delinquency. DABT still routinely grants applications to delinquently renew alcoholic beverage licenses other than SR licenses, but it now has a "new policy" in place with respect to applications for the delinquent renewal of SR licenses. The "new policy" is to deny all such applications based upon these SR licenses' not having been in "continuous operation," action that, according to DABT, is dictated by operation of Section 561.20(5), Florida Statutes, a statutory provision DABT now claims it had previously misinterpreted when it was routinely granting these applications. Relying on Section 561.20(5), Florida Statutes, to blanketly deny all applications for the delinquent renewal of SR licenses was the idea of Eileen Klinger, the head of DABT's Bureau of Licensing. She directed her licensing staff to implement the "new policy" after being told by agency attorneys that this "was the appropriate thing [from a legal perspective] to do." Abkey and Amy Cat have SR licenses that were originally issued in 1956 "per general law and not pursuant to any special or local act." Maneros has an SR license that was originally issued in 1952 "per general law and not pursuant to any special or local act." As applicants applying to delinquently renew their SR licenses, Petitioners are substantially affected by DABT's "new policy" that SR licenses cannot be delinquently renewed because they have not been in "continuous operation," as that term is used in Section 561.20(5), Florida Statutes. Their applications for the delinquent renewal of their licenses would have been approved had the status quo been maintained and this "new policy" not been implemented. Abkey filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on February 21, 2007. On the application form, Abkey gave the following "explanation for not having renewed during the renewal period": "Building was sold. Lost our lease." On April 2, 2007, DABT issued a Notice of Intent to Deny Abkey's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. Maneros filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 2005) on June 4, 2007. On the application form, Maneros gave no "explanation for not having renewed during the renewal period"; however, the application was accompanied by a letter from a Maneros representative, which read, in pertinent part, as follows: I am today submitting a delinquent renewal application for the above-referenced alcoholic beverage license. The building has been demolished, and there is a vacant lot at the site at this time. Redevelopment is scheduled for this area, and I expect new construction to begin shortly. The license was first issued to this location 55 years ago. I have inquired with the City of Hallandale Beach, Florida, and there remains a question as to whether zoning approval for this type of alcoholic beverage license would be permitted under current uses once reconstruction is complete. The licensee of record wishes to reinstate and possibly use or transfer the license. . . . On June 8, 2007, DABT issued a Notice of Intent to Deny Maneros' application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 2005, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued. Amy Cat filed its application (on DABT Form 6015) for the delinquent renewal of its SR license (which had been due for renewal on March 31, 1999) on December 6, 2006. On the application form, Amy Cat gave the following "explanation for not having renewed during the renewal period": "Building was closed." On June 8, 2007, DABT issued a Notice of Intent to Deny Amy Cat's application. DABT's notice gave the following reason for its intended action: The request for delinquent renewal of this license is denied. Florida Statute 561.20(5) exempted restaurant licenses issued prior to January 1, 1958 from operating under the provisions in 561.20(4) as long as the place of business was in continuous operation. This business failed to renew its license on or before March 31, 1999, therefore it did not comply with the requirements and is no longer valid. SR licenses will not be allowed to be moved from the location where the license was originally issued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a Final Order granting Petitioners' applications for the delinquent renewal of their SR licenses. DONE AND ENTERED this 30th day of April, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 April, 2008.
Findings Of Fact Some time before May 15, 1992, the Petitioner, Executive I & II, Inc., applied for licensure to operate as an adult congregate living facility (ACLF). (It had been, and is still, operating as a licensed boarding home.) The exact date of the application, or how long before May 15, 1992, the application was made, is not clear from the evidence. The facility operated by the Petitioner is the same facility that was the subject of Division of Administrative Hearings (DOAH) Case Nos. 90-3356 and 90-3791. Before and during the pendency of those proceedings, the facility was owned and operated by Kriscour, Inc., d/b/a Executive I & II. Kriscour, Inc., is a separate legal entity from the Petitioner. The sole owner and operator of the Petitioner was the sole owner and operator of Kriscour, Inc., until October 10, 1989, when he became a 49% owner of Kriscour and ceased all involvement in the operation of the facility. Throughout, however, he owned the real property operated by Kriscour and by the Petitioner. In DOAH Case No. 90-3356, HRS sought to revoke Kriscour's conditional ACLF license. While it was pending, Kriscour applied for renewal of the license, and HRS denied renewal. Kriscour initiated formal administrative proceedings, which became DOAH Case No. 90-3791. The two cases were consolidated at DOAH. Ultimately, they resulted in an HRS Final Order denying the renewal application and "cancelling" the conditional license. Kriscour appealed the Final Order to the District Court of Appeal, Second District of Florida, where it was given Case No. 91-00751. Kriscour obtained a stay of the Final Order and continued to operate the facility as an ACLF during the appellate proceedings. Meanwhile, on or about November 26, 1991, the Petitioner, Executive I & II, Inc., was formed and became licensed to operate the facility as a boarding home. The Petitioner made extensive renovations and improvements to the physical plant. At the same time, Kriscour continued to operate the facility as an ACLF. Ultimately, the appellate court upheld the Final Order. The court's Mandate, which operated to dissolve the stay, was entered on January 2, 1992. On or about that date, Kriscour ceased to operate the facility as an ACLF and began operating the facility as a boarding home. To date, the Petitioner has operated the facility exclusively as a boarding home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying the application of the Petitioner, Executive I & II, Inc., for licensure to operate as an ACLF. RECOMMENDED this 21st day of October, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992.
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Findings Of Fact The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126. The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan. On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting. Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him. On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas. On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing. Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address. The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Respondent the Agency enter its Final Order finding the violation of Section 458.331(1)(b), Section 458.331(x) and 458.331(1)(kk) and, Florida Statutes, and revoking the Respondent's license to practice medicine in Florida. DONE and ENTERED this 28th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997.
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.
