The Issue The issue in this case is how the Board of Nursing (Board) should discipline the Respondent’s registered nurse license for: pleading guilty to two counts of larceny-grand theft of a controlled substance, which were third degree felonies under section 812.014(2)(c)13., Florida Statutes1/; pleading nolo contendere to possession or use of narcotic equipment, a first degree misdemeanor under section 893.147(1), Florida Statutes; pleading nolo contendere to larceny-petit theft, a second degree misdemeanor under section 812.014(3)(a), Florida Statutes; and failing to report the criminal violations to the Board within 30 days.
Findings Of Fact In April 2014, the Respondent became licensed to practice as a registered nurse in Florida. He holds license RN 9381249. He also has a certified nursing assistant license, which he has held since 2009. From November 2014 until January 2015, the Respondent was working as a registered nurse at Sarasota Memorial Hospital. While working there, he diverted controlled substances for his own use. Specifically, he was putting Percocet pills prescribed for, but not used by, patients in his pocket and taking them later himself for pain. The Respondent was found out, fired, arrested, and charged with criminal violations. In August 2015, the Respondent entered pleas of: guilty to two counts of larceny-grand theft of a controlled substance, third degree felonies in violation of section 812.014(2)(c)13.; nolo contendere to possession or use of narcotic equipment, a first degree misdemeanor in violation of section 893.147(1); and nolo contendere to larceny-petit theft, a second degree misdemeanor in violation of section 812.014(3)(a). The Respondent was sentenced to a 14 month-long drug court program (which included random drug sampling), probation, fees and costs, and was prohibited from practicing as a nurse while he was on probation. Adjudication was withheld. The Respondent did not report his pleas and convictions to the Board in writing. He testified that he thought the Board had sufficient notice because an unidentified representative of the Board was present at the plea hearing and asked the judge to have the Respondent repeat the pleas so they could be properly and clearly recorded for use in a license discipline proceeding, and because he telephoned the Board soon after the incident and was told to stop practicing nursing. The Respondent successfully completed the drug court program and probation, and fulfilled all other conditions of his pleas and sentences. The Respondent acknowledged that his diversion of controlled substances from his place of employment was wrong, a mistake, and showed poor judgement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: finding the Respondent guilty of violating sections 456.072(1)(x) and 464.018(1)(e); reprimanding him; fining him $500; requiring IPN evaluation and treatment, if necessary; and assessing the costs of investigation and prosecution. DONE AND ENTERED this 6th day of February, 2017, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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, 2017.
The Issue Whether Petitioner was subjected to a hostile work environment condoned by Respondent due to his sex in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact The School Board of Orange County, Florida, (Respondent) is an employer within the definition found in Section 760.02, Florida Statutes. Dexter V. Thomas (Petitioner) was an employee of Respondent, as defined in Section 760.02, Florida Statutes, during the relevant time period. Petitioner timely filed his Charge of Discrimination (Charge) with the Commission, pursuant to the Florida Civil Rights Acts of 1992, on August 4, 1995. The Commission failed to make a Cause/No Cause Determination within 180 days of the filing of the Charge. Petitioner filed a form with the Commission on January 27, 1998, seeking to withdraw his Charge and filed a Petition for Relief to proceed to an administrative hearing. Petitioner has not filed a Petition with the Commission. However, the Commission forwarded Petitioner's Charge to the Division of Administrative Hearings for a formal hearing on February 2, 1999, and this proceeding followed. Petitioner is an adult male and a United States citizen of African-American descent. Petitioner worked as a custodian at Apopka Middle School on the day shift from 1989 until his termination on November 22, 1995. Petitioner testified that he had received good evaluations until the fall of 1994, when a new principal took charge of the school. Shortly thereafter, it was Petitioner's perception that he was being harassed because of certain statements that he made to other school employees about the faculty and staff at Apopka Middle School which he believed to be true. The statements made by Petitioner were defamatory in nature. In addition, they were perceived by other school board employees as threatening to the safety and welfare of staff and students. Due to these statements and his general conduct while working his shift, Petitioner was relieved of duty with pay on September 21, 1995. On October 4, 1995, Petitioner was directed to be examined by a licensed psychiatrist at the expense of the school board. Petitioner refused to be examined by the school board's licensed psychiatrist on the grounds that it was part of the continuing conspiracy to silence him about illegal activities he believed were going on at Apopka Middle School. Petitioner was subsequently terminated by action of the school board on November 22, 1995. None of the testimony and other evidence produced by Petitioner, taken as true, could be construed to establish a prima facie case of sexual harassment by employees or supervisors of Respondent. Petitioner failed to offer any credible evidence that he was subjected to any unwelcome sexual advances, request for sexual favors, or other conduct of a sexual nature by employees of Respondent. Petitioner appears to have mistakenly checked the "race" box on his Charge of Discrimination. At the hearing, Petitioner did not raise any contentions that he suffered discrimination on the basis of race while in the employ of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: The Charge of Discrimination should be dismissed, as Petitioner's request for administrative hearing was not timely filed under Chapter 760.11(4),(6), and (8), Florida Statutes. In the alternative, Petitioner has failed to prove that he was discriminated against on the basis of his sex by being subjected to a hostile work environment and the Petition should be dismissed. DONE AND ENTERED this 6th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 6th day of June, 2000. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire Orange County School Board Post Office Box 3471 Orlando, Florida 32802-3471 Dexter V. Thomas 3920 Country Club Drive, Number 3 Orlando, Florida 32808 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dennis Smith, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32302-3471
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts, are found: At all times material to this proceeding, Respondent has held Florida Teacher's Certificate No. 270021, issued by the Department of Education, State of Florida. Respondent's Florida Teacher's Certificate covers the areas of elementary education and early childhood education. On or about October, 1983, the Grand Jury filed an eight (8) count indictment against the Respondent in the Nineteenth Judicial Circuit. State of Florida vs. Laurence J. Jacobson, Case No. 83-1079-CF-A. On July 29, 1985, after being tried and convicted by a jury of three counts of sexual battery on a person eleven (11) years of age or less, a violation of Section 794.011(2), Florida Statutes and punishable as a life felony, and four (4) counts of making a lewd, lascivious or indecent assault or act upon or in the presence of a child under the age of fourteen (14) years, a violation of Section 800.04, Florida Statutes, and punishable as a second degree felony, the Respondent was sentenced to three (3) life terms with a 25 year minimum mandatory sentence, the last two (2) sentences to run concurrently with the first sentence and four (4) fifteen (15) year sentences with the first fifteen (15) year sentence to run consecutively with the first life sentence and the last three (3) fifteen (15) year sentences to run concurrently with the first fifteen (15) year sentence. The Respondents was given 686 days credit against his sentence for time incarcerated prior to imposition of sentence. The Respondent was committed to the department of Corrections and is presently serving the sentences imposed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witness, it is, therefore, RECOMMENDED that the Education Practices Commission enter a Final Order permanently revoking Respondent's Teaching Certificate for violation of Counts I and II of the Amended Administrative Complaint. It is further RECOMMENDED that Count III of the Amended Administrative Complaint be DISMISSED. RESPECTFULLY SUBMITTED and ENTERED this 1st day of April, 1988 in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2906 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Petitioner. The Respondent failed to submit any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1 - 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 2. 4 - 19. Adopted in Finding of Fact 3 but clarified. 20 - 21. Adopted in Finding of Fact 4 but clarified. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Karen Barr Wilde Executive Director Education Practices Commission Room 418, Knott Building Tallahassee, Florida 32399 Sidney H. McKenzie, Esquire General Counsel Department of Education Knott Building Tallahassee, Florida 32399 Chris H. Bentley, Esquire Mr. Laurence Jacobson W. Douglas Beason, Esquire ID No. 098761 ROSE, SUNDSTROM & BENTLEY Post Office Box 221 2544 Blairstone Pines Drive Raiford, Florida 32083-0221 Tallahassee, Florida 32302-1567
The Issue Whether respondent's licence as a medical doctor should be disciplined on charges that he: (1) was convicted in a foreign country of a crime relating to the practice of medicine, (2) obtained his license to practice medicine by fraud or deceitful misrepresentation, (3) had his license acted against by the licensing authority of another state, (4) made misleading, untrue, or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine, (5) engaged in unethical, deceptive, or deleterious conduct harmful to the public, (6) failed to prescribe controlled substances in good faith and in the course of his medical practice, and (7) engaged in immoral or unprofessional conduct, incompetence, negligence, or willful misconduct, all in violation of Section 458.1201, Florida Statutes (1973), and Section 458.331, Florida Statutes (1981).
Findings Of Fact Count I: Conviction of a Crime Relating to the Practice of Medicine In 1960, respondent was a first-year medical student at Fribourg University in Switzerland. On May 11, 1960, he was tried and convicted by the Criminal Court of Sarine in Fribourg, Switzerland, of the crimes of "attempted abortion committed by a third person, attempted abortion on an unsuitable object by a third person, and violation of the law regarding the health regulations." He was sentenced to a ten-month prison term, minus the time of detention served while awaiting trial, with a suspended execution of sentence during five years. Respondent was also fined 500 Swiss francs, deported from Switzerland, and barred from reentry for a period of fifteen years. (Testimony of Gordon, Alonso; P-3.) II. Count II: Obtaining Florida Medical License by Fraud or Misrepresentation On December 17, 1971, respondent filed with the Florida State Board of Medical Examiners a sworn application for examination and licensure as a medical doctor in the State of Florida. On his application, he responded in the negative to questions asking whether he had ever been convicted of a felony or a misdemeanor. The application also contained the following statement, in bold type, above the signature line of the applicant: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I fur- nish any false information in this applica- tion, I hereby agree that such act shall constitute cause for the denial, suspension, or revocation of my license to practice medicine and surgery in the State of Florida. (P-2.) On August 30, 1972, based on his application and passage of the examination, the Board of Medical Examiners issued respondent a license (license No. 24291) to practice medicine and surgery in Florida. (Testimony of Gordon; P-2.) Respondent explains his failure to reveal his Switzerland conviction on his application as a "peccadillo." (Tr. 245.) Since the New Jersey Medical Board records (where he was previously licensed) reflected his Switzerland conviction, he testified that he felt the New Jersey board would have notified the Florida board of the conviction. (Tr. 245-246.)(Testimony of Gordon.) By 1974, within two years after he was licensed in Florida, the Department became aware of his criminal conviction in Switzerland. In 1973 or 1974, soon after respondent opened his medical practice in North Miami Beach, a Department investigator, A. J. Stack, told him that the Department knew of his criminal conviction in Switzerland. (Testimony' of Gordon; R-2.) III. Count III: New Jersey's Action Against Respondent's Medical License On September 29, 1972, the New Jersey Board of Medical Examiners issued an administrative complaint seeking to suspend or revoke respondent's New Jersey medical and surgical license on charges he sexually assaulted two female patients and dispensed amphetamines to two other patients without good medical cause. One month later, the New Jersey board supplemented its complaint by adding two additional charges: (1) that he was convicted as an abortionist in Switzerland in May, 1960, and (2) that he failed to complete Section 12 of the application (i.e., disclose the Switzerland conviction), thereby obtaining his New Jersey medical license by fraud. (P-4, R-2.) On December 11, 1972, the New Jersey Department of Health suspended, for an indefinite period, respondent's New Jersey controlled substance registration. The suspension order states that, after being notified by certified mail, respondent failed to appear before the Department and show cause why his registration should not be suspended. No other reason is given for the suspension action. Respondent now asserts that the Department of Health did not notify him of its action to suspend his controlled substance registration. (Tr. 251-252.)(Testimony of Gordon; P-4.) The charges brought against respondent by the New Jersey Board of Medical Examiners were never adjudicated on their merits. On February 27, 1973, he resigned from the practice of medicine in New Jersey and surrendered his New Jersey medical license to the Board of Medical Examiners. (Testimony of Gordon; P-4, R-2.) When the New Jersey Board of Medical Examiners brought its charges against respondent, he had already obtained his Florida medical license. The Florida board of Medical Examiners learned of the New Jersey charges and respondent's resignation in May, 1973. In February, 1974, the board's counsel advised that "there is really nothing we can do unless Dr. Gordon violates the Florida laws." (R-2.) And, on May 15, 1974, the board's executive director made this notation in respondent's file: If he [respondent] has any trouble here in Florida we can suspend his license on the basis of the N.J. Board's action. (R-2.) IV. Counts IV, V, VI, and VII: Professional Misconduct in Treating Elizabeth Buffum Respondent began to practice medicine in Florida in 1973 at North Miami Beach, Florida. In December of that year--at the request of a third party--he went to the home of Elizabeth Buffum and treated her for alcoholism. Thereafter, he continued to treat her for chronic alcoholism. His treatment was to limit her use of alcohol and prescribe various sedatives, such as Thorazine and Sparine, which are scheduled controlled substances. In June, 1974, he and Ms. Buffum began living together; in September they were married. From December, 1973, until Ms. Buffum left him in November, 1975, respondent continuously acted as her physician and provided treatment for her alcoholism. (P-1.) Ms. Buffum was a woman of great wealth. During her marriage to respondent, she relied on respondent not only as her physician but also as her confidant and financial advisor. Extensive 9/ civil litigation which followed their broken marriage resulted in the Circuit Court of Dade County rendering a judgment in Bellman v. Gordon, Case No. 75-18967 (Fla. 11th Cir. Ct. 1979) [affirmed, Gordon v. Gordon, 386 So.2d 1326 (Fla. 3rd DCA 1980), opinion filed July 29, 1980], finding that: Edward Gordon breached this fiduciary duty [to Ms. Buffum and converted her assets to his own use and the use of his family so that nearly all of her assets were divested from her. The court ordered the return of her assets. (P-1, P-5.) In treating Ms. Buffum's alcoholism, respondent would allow her to drink limited amounts of alcohol: the thrust of his treatment program was to gradually decrease the dosages of alcohol. (Frequently, he would add water to her liquor bottles in an attempt to lessen the effects of alcohol.) He sometimes gave her an alcoholic drink to calm her, and ordinarily allowed her an alcoholic drink before evening meals. He also gave her vitamin B12 and Valium. When he thought she was having delirium tremors, he administered Thorazine. He acknowledges that, when she was in such a condition, it would have been proper to place her in the hospital, but he felt--at the time--that he could properly care for her at home. (Testimony of Gordon; P-1.) Dr. Delores Morgan, a qualified expert in family practice and alcoholism treatment, testified that respondent's medical treatment of Ms. Buffum deviated from the generally accepted and prevailing medical practice in the Miami area between 1973 and 1975. She testified Benzodiazepins (including Librium and Valium), rather than Phenathiazines (including Thorazine and Sparine) should be administered to patients suffering from alcohol withdrawal symptoms, such as delirium tremors; that such patients are medical emergencies and must be hospitalized, where their progress can be monitored and a thorough physical examination can be given, including checking eletrolyte patterns, potassium deficiencies, and chemical profiles; that, rather than decreasing doses of alcohol, treatment of alcoholism requires complete abstinence; and that if an alcoholic patient refused hospitalization, he or she should have been involuntarily hospitalized pursuant to state law. These opinions of Dr. Morgan are persuasive and are expressly adopted as findings. Respondent's contrary opinions are rejected as self-serving and uncorroborated. (Testimony of Morgan.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license to practice medicine and surgery in Florida be suspended for one (1) year. DONE AND RECOMMENDED this 22nd of June, 1982 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1982.
The Issue The issue in this case is whether Petitioner should be allowed to take the examination for licensure as a life and health insurance agent in the state of Florida despite the fact that Petitioner conducted business in this state as a life and health agent under a nonresident license when in fact he was a resident of Florida, and after his Virginia resident license had been canceled.
Findings Of Fact Petitioner filed an application with Respondent for examination and licensure as an ordinary life and health insurance agent on or about February 24, 1986. His application indicates he is a resident of Florida, and had been a resident for one year and three months at the time he filed his application. In response to a question about licensure in other states, the application states, "License in Virginia 1976 to present." From November, 1984 until April 25, 1986, Petitioner conducted business as an ordinary life and health insurance agent in the State of Florida under a nonresident license issued to him in November, 1984. During this time, he sold one hundred and twenty-five insurance policies in the State of Florida on a full- time basis, and there is no evidence he sold any policies in Virginia. On his application for nonresident licensure in October, 1984, Petitioner indicated he was licensed in Virginia, and would be active in the insurance business in Florida for two months per year. Petitioner was licensed as a life and health insurance agent in Virginia from April 13, 1979 to July 9, 1985, at which time his license was canceled without prejudice for nonpayment of required annual renewal fees. Since November, 1984 Petitioner has resided permanently in the Tampa area, although when he initially arrived in Florida he did not know if he would remain permanently. At all times material hereto, Petitioner has worked as an insurance agent for Mutual of Omaha Insurance Company. From November 24, 1984, he worked out of the company's Tampa office, and prior to that time he worked out of their office in Roanoke, Virginia. Mutual of Omaha transferred company records regarding Petitioner to Tampa on November 24, 1984. According to Petitioner, it was his understanding that the Roanoke office of Mutual of Omaha would take care of paying his annual license renewal fees in Virginia. Ken Boulden, Assistant Vice President for Licensing at Mutual of Omaha, confirmed that some of the company's local offices pay their agents' license fees, but this is not a general company policy, and he could not confirm whether this was the policy of the Roanoke office. It does not appear that Petitioner intentionally falsified his application of February 24, 1986 regarding his license status in Virginia. He first learned of the cancellation of his Virginia license on April 25, 1986, and up to that time assumed that Mutual of Omaha's Roanoke office was taking care of the payment of his annual renewal fees. Petitioner correctly completed his February 24, 1986 application by indicating he had been a resident of Florida for one year and three months. In view of this, however, Petitioner did not timely file his application for examination and licensure since he worked exclusively, and on a full-time basis, in Florida from November, 1984 to April 25, 1986 under a nonresident license. He has not conducted insurance business in Florida since April 25, 1986, pending the determination of this case. On or about August 5, 1986, Respondent notified Petitioner of its intent to deny his application for examination and licensure based upon the facts set forth above, and Petitioner timely filed his request for a hearing.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order approving Petition's application for examination and licensure filed on or about February 24, 1986. DONE AND ENTERED this 11th day of December, 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32381 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3723 Rulings on Respondent's Findings of Fact: 1,2. Adopted in Finding of Fact 2. Rejected as irrelevant and unnecessary, and outweighed by other competent substantial evidence. Adopted in Findings of Fact 2,4,5. COPIES FURNISHED: George Jesse Bailey 5505 Pine Forest Ct. #101 Tampa, Florida 33615 David G. Poucher, Esquire Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32301 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 Don Dowdell, Esquire General Counsel The Capitol, Plaza Level Tallahassee, Florida 32301 =================================================================
The Issue The issue to be presented is whether Respondent failed to maintain good moral character as alleged in the Administrative Complaint, in violation of Section 943.1395(7), Florida Statutes, and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was certified as a law enforcement officer by the Florida Department of Law Enforcement, having been issued certificate number 281123. Respondent was employed by the City of Madison Police Department from December 2008 through July 2009. At the beginning of 2009, Respondent was 23 years old. Sometime in late December 2008 or early in 2009, Respondent received the telephone number for E.B.H. from Paige Bell, a friend of E.B.H.'s. At the time Ms. Bell gave Respondent E.B.H.'s number, E.B.H. was 16 years old. Respondent knew that E.B.H. was under the age of 18. Although the exact time-frame of the communications is unclear, in approximately January or February of 2009, Respondent and E.B.H. texted and called each for a one to two-week period. They never met in person. During their short period of communication, the two sent each other pictures of themselves so that each knew what the other looked like. E.B.H. testified that the first pictures sent were normal photos where she was clothed. After receiving those, she testified that Respondent asked her for "sexy" photos of herself wearing no underclothing. In response, E.B.H. sent him two pictures of herself, either nude or partially nude. The communication between Respondent and E.B.H. was brief, lasting no more than a few weeks. Once E.B.H. learned that Respondent was a law enforcement officer, she stopped texting him because she did not want either of them to get in trouble. Sometime after the texting stopped, the police chief for City of Madison Police Department received an anonymous complaint alleging that Respondent had possession of nude pictures of a minor female. On July 7, 2009, Sergeant Benton Ebberson was assigned to conduct an internal investigation in response to the complaint. As part of his investigation, Sergeant Ebberson spoke to several individuals who did not testify at hearing. What those individuals told him during the investigation is clearly hearsay. However, from these interviews, Sergeant Ebberson was able to gather enough information to get descriptions of the photos and identify E.B.H. as the subject of the photos. As a consequence, Sergeant Ebberson located and, with the permission of her parents, interviewed E.B.H. She admitted sending the photos to Respondent, but no longer had possession of the phone from which the texts were sent or copies of the pictures. Her father had discovered her actions and the pictures earlier in the year, and had deleted the photos and confiscated her telephone. Respondent also was interviewed as a consequence of the internal investigation. Consistent with the information he gave during his interview, he denies asking for the photos and claims E.B.H. sent them to him on her own volition. Whether he asked for the pictures is not particularly relevant. There is no dispute that E.B.H. sent and Respondent received at least two pictures of E.B.H. in which E.B.H. was wearing little or no clothing. Respondent claims that, while he received the pictures and looked at them, he did not know they were pictures of E.B.H., and therefore a minor, because the pictures did not include her face. However, he knew that the pictures were received from E.B.H.'s telephone number. Respondent did not report receiving the pictures to either his supervisors or to E.B.H.'s parents. Respondent also claims that upon receiving the pictures, he simply deleted them. His testimony to this effect is not credible. E.B.H. testified credibly that while she had sent inappropriate photographs to a former boyfriend on a separate occasion, she had sent these photographs to Respondent only. Regardless of the possible motives involved for complaining, it makes no sense that anyone would be able to complain to the police department and that the photos could be described in sufficient detail for Sergeant Ebberson to be able to locate E.B.H. unless Respondent either talked about receiving the photos or showed the photos to someone else. The photos, however, are not in evidence. E.B.H. knew she was either completely nude or only partially dressed, but could provide very little other information about the photos. No evidence was presented to indicate that the photos included a depiction of sexual conduct.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Criminal Justice Standards and Training Commission enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 14th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 14th day of December, 2010. COPIES FURNISHED: Kerra A. Smith, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ernest M. Page, IV, Esquire Post Office Box 167 Perry, Florida 32348 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether the medical license of Ted G. Avner, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact At all times material to his action, Dr. Avner has been licensed in the State of Florida, holding license ME 0014896. Dr. Avner was licensed to practice medicine in Colorado in 1974. The Colorado State Board of Medical Examiners is the licensing authority for the State of Colorado. On December 9, 1985, the Colorado Board of Medical Examiners summarily suspended Dr. Avner's license to practice medicine due to substance abuse involving his personal ingestion of cocaine. On February 14, 1986, the Colorado Board of Medical Examiners, by Stipulation and Order, granted a reinstatement of Dr. Avner's license to practice medicine with certain terms of probation, including the prohibition of his use of substances of abuse. Subsequently, Dr. Avner relapsed by again using cocaine. After testing positive for cocaine on a random urine test, Dr. Avner reported that fact to the Colorado Board. On January 23, 1987, he entered into an agreement with the Colorado Board of Medical Examiners that he would refrain from the practice of medicine until permitted to do so by order of the board. Thereafter he entered and completed an addiction treatment program and then moved to Virginia, a state in which he was not licensed to practice medicine. Effective March 11, 1988, the Colorado State Board of Medical Examiners accepted Dr. Avner's voluntary relinquishment of his medical license. The Stipulation which Dr. Avner signed clearly states that the relinquishment was permanent, but it also provides for the reinstatement of Dr. Avner's license to practice medicine if he submits "evidence satisfactory to the Board that he qualifies under all subsections of the Colorado Medical Practice Act." The terms of the Stipulation and Order of the Board make it clear that the relinquishment was called "permanent," but was in fact subject to reinstatement. After moving to Virginia, Dr. Avner contacted David G. Fluharty, M.D. Dr. Fluharty is the founder and present Chairman of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia. The purpose and function of that Committee in Virginia is the same as that of the Florida Physician's Recovery Network administered by Roger Goetz, M.D. Dr. Fluharty referred Dr. Avner to the Talbott Recovery Center in Atlanta, Georgia. Dr. Avner completed the addiction treatment program there and returned to Virginia in March, 1989. Since March 29, 1989, Dr. Avner has continued to reside in Virginia, has remained active in the recovery program of the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia, and has complied with all the requirements of that program, including random drug testing, maintaining sobriety, and participating in required meetings. Between March 29, 1989, and July 25, 1991, Dr. Avner's urine has been tested numerous times and all tests have been negative. Dr. Avner is currently under contract with the Physicians' Health and Effectiveness Committee of the Medical Society of Virginia which is very similar to and consistent with the kind of contract used by the Physician's Recovery Network in Florida for chemically dependent physicians. While residing in Virginia, Dr. Avner has worked regularly as a volunteer as a counselor and facilitator of the aftercare group, Caduceus. He also regularly attends other aftercare groups such as A.A. and N.A. Beginning in October, 1989, Dr. Avner worked once or twice a week as a volunteer at the Bradley Free Clinic, first as a nurse assistant and later assuming more responsibilities consistent with his licensure status. Dr. Avner has abstained from the use of cocaine since January 25, 1987, and from alcohol since August 19, 1989. He applied for a medical license in Virginia and was denied by Order dated April 11, 1988. In 1989, Dr. Avner applied for his medical license in Colorado and was initially denied. On his request for reconsideration, the Colorado Board granted licensure. By Order dated January 18, 1991, the Colorado Board of Medical Examiners approved a Stipulation and Order granting Dr. Avner an "unrestricted license" to practice medicine in Colorado, subject to the terms of probation set forth in the Order. On Dr. Avner's return to Colorado he can commence the practice of medicine under the terms and conditions of a monitored three-year probation which require that he maintain sobriety and abstain from all addictive, habit forming drugs or controlled substances not prescribed by his personal physician or dentist; that his practice and sobriety be monitored by a physician approved by the Board; that he and his monitor provide quarterly reports to the Board regarding the status of his practice and sobriety; that he participate in a Board approved drug abuse treatment program; that he provide urine tests on a random basis; and that he obtain and provide periodic psychological reports. Dr. Avner again applied for a medical license in Virginia and was denied by Order dated April 5, 1990. He again applied and was finally granted an unrestricted license by Order of the Virginia Board dated February 13, 1991. The Virginia license contains no term of probation or other restriction. In July, 1991, Dr. Avner began a one-year surgical fellowship in pediatric otolaryngology at the University of Virginia Medical School.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order and therein: Reprimand Dr. Avner for violation of Section 458.331(1)(b). Restrict Dr. Avner's Florida license by requiring that Dr. Avner continue to remain in good standing in both Colorado and Virginia and that he comply with his contract in Virginia for its entire term. The Virginia Physicians' Health and Effectiveness Committee is to be asked to immediately notify the Florida Board of Medicine if Dr. Avner fails to remain in full compliance with that contract. Fine Dr. Avner in the amount of $1000.00. DONE and ENTERED this 8th day of October, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-5275 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Medicine Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1) and 3(3). Proposed finding of fact 2 is subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ted G. Avner, M.D. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-9(1-8); 10-15(10-15); 17-22(17- 21); and 23(22). Proposed finding of fact 24 is subordinate to the facts actually found in this Recommended Order Proposed finding of fact 16 is unsupported by the competent, substantial evidence. Dr. Falkinburg is not accepted as an expert qualified to render such an opinion, Dr. Fluharty's statements are hearsay and cannot support a finding of fact, and Dr. Goetz' testimony is entitled to little weight because it is based essentially on hearsay information. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0750 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Wilson Jerry Foster Attorney at Law 227 East Virginia Street Tallahassee, FL 32301-1263 Francesca Small Plendl Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
