Recommendation Based on the above facts and conclusions of law, I recommend that the licensee be issued an oral reprimand. DONE and ENTERED this 20th day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue presented by these cases is whether fines totaling $350.00 should be imposed upon the Respondent for its alleged failure to report the absence of two residents from the facility, the first occurring on December 4, 1980, and the second on January 7, 1981, to the Petitioner as required by Chapter 10A-5, Florida Administrative Code.
Findings Of Fact The Respondent Jubilee Retirement Center is licensed as an Adult Congregate Living Facility (ACLF) pursuant to the "Adult Congregate Living Facilities Act", Part II, Chapter 400, Florida Statutes. On December 4, 1980 a sixty-three-year-old female resident of the facility who was on medication left the center sometime between the lunch and evening meal. A thorough search of the Center and the immediate neighborhood by Center personnel proved fruitless and a missing person report was promptly filed by the Respondent with the City of Miami Police Department. (Case No. 339- 3748B). The resident's husband was also contacted immediately by the Respondent. On December 12, 1980, an article appeared at page 4B of the Miami Herald entitled, "Woman Walks Out 0f Nursing Home, Vanishes." The article apparently alerted the Department to the disappearance of this particular resident. Mr. Rosenfeld, Administrator of the Jubilee Retirement Center, was contacted by Mr. Alvin DeLaney, ACLF Program Specialist, on December 12, 1980, concerning this incident and at that time he informed Mr. DeLaney that the resident was located at the Miami Beach Mental Health Center and sent from there to Dodge Memorial Hospital on December 8, 1980. On December 15, 1980, the resident was transferred from Dodge Memorial to South Florida State Hospital. Following this incident, Rosenfeld discussed with DeLaney the requirements of Rule 10A-5-06, Florida Administrative Code, which requires the reporting of major incidents as defined at Rule 10A-5.01(18), Florida Administrative Code, within 24 hours following the occurrence of the incident. Rosenfeld agreed to follow the Rule in the event of any future problems. Rosenfeld was unaware of this Rule since he had not received a copy of Chapter 10A-5 which was mailed by the Department to all licensed ACLF operators in July, 1980. Following his discussion with DeLaney, Rosenfeld also believed that in computing the time limit, three working days would be allowed and weekends and holidays would be excluded. On January 12, 1981, Bill Garrett, then an ACLF Specialist with the Department, received a call from Rosenfeld concerning the disappearance on January 6, 1981, of a male resident from the Center. On January 7, 1981, Center personnel had reported the resident to the City of Miami Police as a missing person and contacted a relative of the resident. From January 17-27, 1981, Rosenfeld was in frequent contact with the Department concerning efforts to locate this resident. The resident was located through an obituary in the Miami Herald which stated that the resident passed away on January 26, 1981 following a heart attack which occurred on January 6, 1981, in a MacDonald's Restaurant near the Center. Following this incident, Rosenfeld agreed to notify the Department within twenty-four hours of discovery of any missing resident. The Center has implemented policies designed to minimize the residents' ability to leave the facility without notifying Center personnel and at the same time guaranteeing basic privacy rights of residents. A twenty-four hour a day sign-in and sign-out sheet is now located at the front desk and alarms have been installed at all other exits. Many of the residents are former mental patients and this coupled with the size and physical lay-out of the facility makes it difficult for the Center to be aware of the movement of all residents. Additionally, at the same time of these incidents the Department had no access to the Missing Persons Report Registry maintained by law enforcement agencies and could do little to assist in the search for missing residents other than contact friends or relatives who might be unknown to the ACLF operators.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order assessing a $100.00 administrative fine for the failure to report a major incident which occurred on December 4, 1980 as alleged in the administrative complaint filed January 23, 1981, and dismiss the complaint filed February 27, 1981 which alleged a failure to report a major incident occurring on January 7, 1981. DONE and ORDERED this 14th day of July, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1981. COPIES FURNISHED: Martha Barrera, Esquire Department of Health and Rehabilitative Services 1320 South Dixie Highway Eleventh Floor Coral Gables, Florida 33146 Nelson Rosenfield, Administrator Jubilee Retirement Center 8000 Biscayne Boulevard Miami, Florida 33138
Findings Of Fact The Respondent was certified by the Commission on January 22, 1981, and was issued certificate number 02-026742. At all times material to the allegations of this case, Respondent has been employed as a law enforcement officer with the City of Pompano Beach Police Department. Cocaine is a schedule II controlled substance pursuant to Section 893.03, Florida Statutes. Pursuant to Section 893.13, Florida Statutes, possession of cocaine is a felony. In accordance with a collective bargaining agreement, the Police Benevolent Association, as the bargaining unit for its members, agreed to random drug and alcohol testing for all police officers employed by the City of Pompano Beach Police Department. Pursuant to that agreement, Respondent was requested to, and agreed to submit a urine sample for testing on September 24, 1992. In order to coordinate the testing, the City of Pompano Beach had contracted with a private company, Worker's Compensation Medical Center (WCMC), which was to conduct the collection of urine samples for testing purposes. On the testing dates selected, WCMC employees set up collection facilities at the police station. Ms. Bobkier, a WCMC employee with four and a half years experience, was responsible for collecting the urine sample from Respondent. According to Ms. Bobkier, employees from WCMC set up tables at the police station during the hours of 6:00 a.m. until 6:00 p.m. on September 24, 1992. On that date, Respondent presented for testing, completed the paperwork to accompany the sample, went into the bathroom designated for use, and returned a sample to the collection table. This sample was identified as DO482663-5. As she did with all samples collected that date, Ms. Bobkier then placed the sample into a holding cooler until it was transferred back to the WCMC office. Before transferring the samples back to the office, they were cataloged and inventoried. Once back at WCMC, a courier from the testing center, National Health Laboratories (NHL) picked up the samples at approximately 7:15 p.m. on the evening of September 24, 1992. The courier presumably took the samples to NHL where they were given assension numbers by a NHL employee. Neither the courier nor the "assension" employee testified at the hearing. The assension number assigned to sample DO482663-5 was 3303217-5. According to Dr. Donald R. Stalons, the director of NHL, testing on assension sample no. 3303217-5 was performed on September 24, 1992 at approximately 2:45 p.m. NHL is a clinical laboratory fully licensed by the State of Florida and the federal government and is authorized to perform forensic toxicological testing. According to the test results for assension sample no. 3303217-5, such sample was positive for cocaine metabolite. The "assension number" referred to above was the control number assigned to the sample for testing purposes. The sample retained that number throughout the testing process.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Criminal Justice Standards and Training Commission enter a final order dismissing the administrative complaint. DONE AND RECOMMENDED this 29th day of April, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 29th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3695 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 12, and 21 are accepted. Paragraphs 13 through 20 are rejected to the extent that they conclude the sample was Respondent's. The Petitioner failed to prove the sample was Respondent's as his sample was not transported to the testing center until approximately 7:15 p.m. on September 24, 1992. The sample tested by NHL purported to be Respondent's sample was tested at 2:45 p.m. that same day. This would be physically impossible. To the extent that the paragraphs correctly outline the testing procedures and results at NHL, they could be accepted but are irrelevant as the sample could not have been Respondent's. Paragraph 22 is rejected as it is not supported by the weight of credible evidence. Paragraphs 23 through 32 are rejected as irrelevant and outside the scope of the administrative complaint. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted in a form which can be addressed by either accepting or rejecting a statement of fact. Otherwise, Respondent's proposed findings of fact are rejected as argument. COPIES FURNISHED: Richard E. Lober Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 W. George Allen One River Plaza, Suite 701 305 S. Andrews Avenue P.O. Box 14738 Fort Lauderdale, Florida 33302 Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact On 17 July 1979, a few days after Harry W. Soward and his wife returned from a motor trip vacation and before the date he was to report for duty as Principal of Garden Elementary School in Venice, Florida, Soward left his residence to shop for shelving. Not finding the items desired at stores close to his residence, he proceeded further afield. After lunch he went to his son's place of business for a visit and upon arrival found his son absent. He then decided to go to a nearby beach for some sun enroute home. At this time Respondent was dressed in shorts, T-shirt and shoes. Upon parking the van he was driving, Respondent took off the T-shirt and donned a beach jacket which had been under the front seat of the van, locked his wallet in the van and walked north along the scarcely populated beach away from the area where most people congregate. Under the corduroy shorts Respondent was wearing black bikini briefs. After going some one-half mile or more from the parking area Respondent removed his corduroy shorts to sunbathe, leaving him wearing black bikini briefs and jacket. He then walked away from the water towards the wooded area clearly shown in Exhibit 1, and photographs constituting Exhibits 6 through 13. Officer Meredith of the Sarasota Police Department was assigned to the Lido Beach area on 17 July 1979 and had proceeded to North Lido Beach in response to a report that a nude made had been seen on the beach. Lido Beach is a publicly-owned swimming and sunning area; however, the north end of this beach is reputed to be an area where nude bathing occurs and homosexuals meet. Because of the topography and insects this area is not popular for picnicking. Officer Meredith had requested via radio a back-up when he departed for North Lido Beach and shortly after his arrival he was joined by Sergeant Schott, also of the Sarasota police. They saw no evidence of a nude male but decided to proceed southward inside the tree line from the beach where they would be able to observe activity on the beach without being seen. Meredith had 8 x 50 binoculars with which to detect something that might not be discernible to the naked eye. While walking inside the tree line the officers observed a large group of young boys supervised by older teenagers playing and proceeding southerly near the water's edge. After walking for several minutes inside the tree line the officers observed a white male ahead and a little seaward of them also moving southerly inside the tree line. When he reached a thicker clump of trees this man stopped for several seconds and Meredith focused the binoculars on him. This individual, later identified as Respondent, was facing south with his back to the officers when he stopped approximately 75 feet from the officers and some 500 feet from the water's edge where the young boys had been observed. For approximately one minute he was observed from the location occupied by the officers. Respondent, whose back was toward the officers, appeared to lower his bikini briefs and manipulate his penis in a manner both officers thought was masturbating. Meredith's testimony was that he could see Respondent's right arm moving but could not see his penis. While still under close scrutiny Respondent turned some 90 degrees to his left, placing his back to the water's edge and his profile to the officers. At this time they could see Respondent's briefs had been dropped enough to allow penis and testicles to be over the top of the briefs. At this time Respondent had his penis in his hand. Both officers testified Respondent did not have an erection but they did not believe the penis to be flaccid, nor did they believe he was urinating. Shortly thereafter Respondent turned towards the north, saw the two officers, pulled the briefs back over his privates and started to walk back to the beach. At this time, Officer Meredith yelled for Respondent to stop, which he did. Officer Meredith asked what he was doing in the tree area and Respondent replied "urinating". When asked his name, age and occupation, Respondent replied Soward, 54 years old, and a teacher at Venice. Respondent pronounces his name in one syllable. When Meredith asked if the name was spelled S-o-r-d, Respondent did not reply. When Meredith saw what he thought to be Respondent reaching into a pocket of the jacket he grabbed his hand, reached into the pocket and extracted a tube of K-Y jelly. Respondent extracted a pair of yellow women's briefs from the other pocket. When asked why he had the lubricant Respondent replied he used it occasionally for his hemorrhoids. The yellow bikini Respondent identified as belonging to his wife who also occasionally used the same jacket. After berating Respondent and accusing him of being a deviate Meredith ordered Respondent to get off the beach and warned him not to return "to our city beaches in the future." (Tr. p. 33). The testimony of all witnesses, consisting of the two police officers and Respondent, was essentially the same with respect to the facts noted above. Respondent testified that he went into the wooded area where he could not be seen by anyone on the beach to urinate, that he had a prostate condition which made it difficult at times for him to commence urination, and that massage of the prostate behind he testicles sometimes helped induce urination. He further testified that he was taking diuretics, which caused more frequent urination. The taking of diuretics was confirmed by his physician. Respondent produced at the hearing the jacket and briefs he was wearing, plus the yellow bikini bottom that was in the jacket pocket when he was accosted. This bikini bottom was identified by Mrs. Soward as belonging to her and having been left in the jacket pocket. Respondent identified it as the one removed from the jacket when he was apprehended, while Officer Meredith testified the yellow briefs removed from the jacket pocket had lace around the legs, were women's underpants and not the bottom of a bikini swimsuit presented at the hearing. After being ordered to leave the beach, Respondent donned his corduroy shorts and proceeded back to the parking lot. Meredith also went to the parking lot and after Respondent got in his van, Meredith came up to demand identification partially because he didn't think Respondent to be as old as he had stated. When he saw the name on the driver's license was not spelled Sord, Meredith accused Respondent of giving the wrong name. The driver's license did confirm Respondent's age to be what he had told Meredith. Meredith did not arrest or prefer charges against Respondent. His reason given for not doing so was that Respondent could not be seen from the beach and unless lewd and lascivious behavior was perpetrated in a place from which the perpetrator could be seen by "civilians" (as opposed to police) the judges in the Sarasota courts would not convict those arrested on charges of lewd behavior. Nevertheless, when he returned to the station Meredith prepared a report of his encounter with Respondent which, since a member of the school system was involved, was passed to the Superintendent of Schools of Sarasota County. The Superintendent talked to Meredith and Schott and received a copy of the report prepared by Meredith. The Superintendent advised the Director of Elementary Education, who was the supervisor of principals, of the police report and requested she bring Respondent to his office. When presented with the police report in the presence of the Superintendent, Respondent again denied any wrongdoing, insisted he had entered the wooded area to relieve himself and explained the purpose for which he had the K-Y jelly in the jacket, as a lubricant for hemorrhoids. The Superintendent chose not to believe the explanation offered by Respondent and gave him the option of resigning rather than suffer the unpleasantness of further investigation by Petitioner, to whom the Superintendent would refer the matter, and a possible hearing. Respondent declined to resign. Respondent was relieved of his duties as principal of Garden Elementary School, a position which he had held since the school opened in 1974, and was reassigned temporarily to the administrative staff of the school system. These charges here under consideration were subsequently preferred. A substitute principal was assigned to Garden Elementary School and when the school year began the Superintendent addressed the faculty at Garden Elementary to explain Respondent's absence was due to a report submitted by the police which had been turned over to the Petitioner and if the faculty wanted to know more they could read the police report at the police state. Many of them did so. The newspapers were aware of this police report but did not publish any news items relating thereto. After the School Board took action to relieve Respondent from duty and refer the matter to Petitioner, an article appeared in the Sarasota Herald-Tribune on August 2, 1979 and a similar article appeared in the Venice Gondolier, a newspaper whose circulation is limited to the southern part of Sarasota County. These articles reported the reassignment of Respondent pending an investigation of an incident reported by police and stated that no charges had been preferred by the police. Of the 17 witnesses called by Petitioner only two, the police officers, saw Respondent at any time material to these charges. Both of these officers were looking for nudes or perverts when they saw Respondent. Meredith was looking so hard he used 8 x 50 binoculars to observe Respondent from a distance of 75 feet. At that range this magnification should allow resolution of the order of one-fourth to one-eighth inch. A stationary housefly on an appropriate background could be seen at 75 feet with 8-power binoculars. Meredith testified regarding the reputation of North Lido Beach and anytime he saw someone in this section of the beach there was a question in his mind why they were there. (Tr. p. 62). One looking for deviate behavior would be more likely to associate movement that could be manipulation of the penis with masturbation than would an observer not looking for such behavior. Follow this impression with discovery of K-Y jelly in one pocket, ladies' bikini bottoms in the other pocket of the jacket, and a group of young boys in the vicinity (albeit 500 feet distant) and Officer Meredith was quite sure he had encountered a pervert. When Respondent told Meredith that he was a teacher, Meredith undoubtedly commented, as Respondent testified, about perverts working with kids (Tr. p. 352) and told Respondent he would get him out of the school system. Without sufficient evidence to arrest Respondent, Meredith was left to the writing of the report. Most of the witnesses called by Petitioner had read the police report and gathered from this report that Respondent was observed masturbating on North Lido Beach in the vicinity of an in view of children of tender ages and that he had questionable items in his jacket pocket. These witnesses were aware of the reputation of North Lido Beach as a nude and gay beach and many didn't think that was an appropriate place for a principal to go. These factors led them to conclude that Respondent could no longer function effectively in the Sarasota County School System. This conclusion was reached without the benefit of Respondent's explanation of his actions, without full knowledge of the density of the foliage, without realizing that no one but the police could or did see him with penis exposed, and without knowledge that neither K-Y jelly nor bikini bottoms were in use or evidenced until after Respondent started back to the beach. Those witnesses called by Petitioner who had been associated with Respondent at Garden Elementary School acknowledged that prior to this incident they considered Respondent to be an able and effective administrator. Many of these witnesses opined that even if found innocent of any wrongdoing, Respondent's effectiveness in the school system has been seriously reduced. Many of the 33 witnesses called by Respondent knew Respondent socially and professionally as a "fine man". Respondent's church workers think highly of him both in integrity and morality and they did not believe the truth of the police report that Respondent had masturbated on Lido Beach. The pastor of the First Church of Nazarene in Bradenton, an ordained minister, has known Respondent for the past 6-1/2 years as the church's unpaid associate pastor. Respondent has taught Sunday School at this church for many years and the pastor considers Respondent one of the finest men he ever knew. Neighbors know Respondent as a quiet family man and good neighbor who had never shown any indication of questionable morals or conduct. Professional associates found Respondent a competent administrator and teacher. Some found him strict but none ever had cause to question his moral character prior to July 17, 1979.
The Issue The issues are whether Respondent engaged in a discriminatory housing practice, in violation of the Florida Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes (2007),1 by refusing to grant an accommodation which would have allowed Ms. Rose Marie Owens to keep a comfort cat in her condominium, and, if so, the amount of damages suffered by Ms. Owens.
Findings Of Fact Ms. Owens was a resident owner of a condominium in Longboat Harbour Condominiums (Longboat Harbour) during the alleged unlawful housing practice. Ms. Owens was a seasonal resident of the condominium from sometime in July 1987 through March 2007. Ms. Owens still owns the condominium at Longboat Harbour with Mr. Hank Airth, her husband. However, Ms. Owens and Mr. Airth purchased a second condominium after the alleged unlawful housing practice, and Ms. Owens and Mr. Airth no longer reside in the Longboat Harbour condominium. Longboat Harbour is a covered, multifamily dwelling unit within the meaning of Subsection 760.22(2). The Longboat Harbour condominium owned by Ms. Owens and Mr. Airth was a dwelling defined in Subsection 760.22(4) at the time of the alleged unlawful housing practice. Respondent is the entity responsible for implementing the rules and regulations of the Longboat Harbour condominium association. Relevant rules and regulations prohibit residents from keeping cats in their condominiums. Sometime in May 2006, Ms. Owens requested Respondent to permit her to keep a comfort cat, identified in the record as “KPooh,” as an accommodation for an alleged handicap. Respondent refused the requested accommodation, and this proceeding ensued. In order to prevail in this proceeding, Petitioner must first show that Ms. Owens is handicapped. Neither Petitioner nor Ms. Owens made a prima facie showing that Ms. Owens is handicapped within the meaning of Subsection 760.22(7). Cross-examination of Ms. Owens showed that Ms. Owens suffers from a cardiovascular ailment, osteoarthritis, and a trigeminal nerve condition. Surgery performed sometime in the 1990s improved the nerve condition. After the surgery, all of the medical conditions of Ms. Owens have been successfully treated with various medications, with no significant modification of the medications before and after Ms. Owens acquired KPooh in 2000. The testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed as suffering from depression. Nor does that testimony show that Ms. Owens has ever been diagnosed with panic disorders or panic attacks. Finally, the testimony of Ms. Owens during cross-examination shows that Ms. Owens has never been diagnosed with an emotional or psychiatric condition. A preponderance of the evidence does not show that any of the health problems suffered by Ms. Owens substantially limits one or more major life activities. Nor does Respondent regard Ms. Owens as having a physical or mental impairment. Ms. Owens and others testified concerning the medical conditions of Ms. Owens. None of that testimony showed that the medical conditions substantially limit one or more major life activities for Ms. Owens. Mr. Airth drives the vehicle for Ms. Owens most of the time and prepares most of the meals at home. However, Mr. Airth performs both life activities because he wishes to perform them. Neither Mr. Airth nor Ms. Owens testified that Ms. Owens is unable to perform either life activity. Part of the therapy medically prescribed for Ms. Owens is a special bicycle for exercises that will improve some of the medical conditions of Ms. Owens. However, as Ms. Owens testified, “I have not submitted to that . . . [because] I hate exercise.” Ms. Owens admits that exercise therapy would improve some of her medical conditions. Ms. Owens first took possession of KPooh in 2000. KPooh was a stray cat that showed up at the primary residence of Ms. Owens and Mr. Airth in Maryland. KPooh was hungry. Ms. Owens gave KPooh food and adopted KPooh. Petitioner attempts to evidence the alleged handicap of Ms. Owens, in relevant part, with two letters from the primary care physician for Ms. Owens. Each letter was admitted into evidence without objection as Petitioner’s Exhibits 3 and 4. The first letter, identified in the record as Petitioner’s Exhibit 3, is dated May 4, 2006. The text of the letter states in its entirety: Mrs. Owens has been a patient of mine since 1990. I know her very well. It is my opinion that she would suffer severe emotional distress if she were forced to get rid of her cat. I request an exception to the “No Pet” rule in her particular case. I understand that the cat is confined to her home, and that it is not allowed outside to disturb other residents. Petitioner’s Exhibit 3 (P-3). The first letter contains no diagnosis of an existing physical or mental impairment. Nor does the first letter evidence a limitation of a major life activity that is caused by a physical or mental impairment. The first letter opines that Ms. Owens, like many pet owners, would suffer severe emotional distress if she were required to get rid of her pet. However, the letter contains no evidence that the potential for severe emotional distress, if it were to occur, would substantially limit one or more major life activities for Ms. Owens. The second letter, identified in the record as Petitioner’s Exhibit 4, is dated January 2, 2007. The text of the letter consists of the following three paragraphs: Mrs. Rose Marie Owens is my patient. She has been under my care since 1990. I am very familiar with her history and with her functional limitations imposed by her medical conditions. She meets the definition of disability under the various Acts passed by the Congress of the United States since 1973. Mrs. Owens has certain limitations related to stress and anxiety. In order to help alleviate these limitations, and to enhance her ability to live independently, and to use and enjoy fully the unit she owns at Longboat Harbour Condominium, I have prescribed her cat, K-Pooh, as an emotional support animal. This should assist Mrs. Owens to cope with her disability. I am familiar with the literature about the therapeutic benefits of assistance animals for people with disabilities. Should you have questions concerning my recommendation for an emotional support animal for Mrs. Owens, please contact me in writing. P-4. The second letter does not identify a specific physical or mental impairment. The letter does not disclose what health conditions comprise Ms. Owens “medical conditions.” The letter does not describe the “functional limitations” that the doctor concludes, as a matter of law, satisfy the legal definition of a disability. Nor does the letter specify what major life activities are limited by the patient’s medical conditions. The second letter opines that KPooh will enhance the ability of Ms. Owens to live independently. The letter does not opine that KPooh is necessary for Ms. Owens to live independently. There is no evidence that KPooh is trained as a service animal. The two letters from the primary care physician of Ms. Owens are conclusory and invade the province of the trier- of-fact. The two letters do not provide specific and precise factual accounts of the medical conditions of Ms. Owens and the limitations that those conditions impose on major life activities. The two letters deprive the fact-finder of the opportunity to review and evaluate the specific and precise facts underlying the medical and legal opinions reached by the doctor. The two letters deprive the ALJ of the opportunity to independently decide the legal significance of any medical findings, which are not disclosed in either of the letters.2 Petitioner called as one of its witnesses a member of the Board of Directors (Board) for Respondent who had recommended that the Board approve the accommodation requested by Ms. Owens. Petitioner presumably called the witness, in relevant part, to bolster the two letters from the treating physician for Ms. Owens. The witness testified that his recommendation placed great weight on the fact that the doctor who authored the two letters is a psychiatrist. The undisputed fact is that the doctor specializes in internal medicine, not psychiatry. Petitioner attempted to show that Respondent’s stated reasons for denial of the accommodation were a pretext. Petitioner relied on evidence that arguably showed Respondent did not adequately investigate the alleged handicap of Ms. Owens before denying her request for an accommodation. Respondent made adequate inquiry into the alleged handicap when Ms. Owens requested an accommodation. Respondent requested a letter from the treating physician, which resulted in the letter that became Petitioner’s Exhibit 3. Finding that letter less than instructive, Respondent requested a second letter that became Petitioner’s Exhibit 4. Respondent properly determined that letter to be inadequate. In any event, this proceeding is not an appellate review of the past conduct of Respondent. This proceeding is a de novo proceeding. Counsel for Respondent fully investigated the medical conditions and alleged handicap of Ms. Owens prior to the final hearing. The investigation included pre-hearing discovery through interrogatories and requests for medical records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 26th day of June, 2009.
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 was a licensed chiropractic physician in the state of Florida with license number CH 0003034. Respondent treated Mr. Richard Turner several times between February 3, 1988 and February 13, 1988. Respondent had treated Turner previously and, in fact, had been Turner's chiropractic physician for several years before treating him on this occasion. Turner had health care coverage through the Daytona Beach Community College Health Care Plan. However, Turner had not met the $200.00 annual deductible at this time. Therefore, Respondent allowed Turner to pay $20.00 per visit to be applied to the portion of his bill not covered by insurance. Turner furnished Respondent's office with certain information concerning his insurance coverage and was made aware by Respondent's office that a claim for reimbursement would be filed with Turner's insurance carrier as had been done on previous occasions. Respondent filed a claim for reimbursement with the Daytona Beach Community College Health Care Plan for services rendered Turner but failed to provide a copy of this billing to Turner until some 2 to 3 months after filing with the insurance carrier. Respondent was not reimbursed for these services by Turner's insurance carrier or Turner; therefore, a claim was filed in the County Court of Volusia County, Florida against Turner. The court awarded the Respondent a judgment in the amount of the unpaid balance, plus costs.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter of Final Order reprimanding Respondent, Michael A. Petker for his failure to strictly comply with Section 460.413(1)(bb), Florida Statutes. Respectfully submitted and entered this 16th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 16th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5267 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 parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Finding of Fact 5. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 5. Adopted in Findings of Fact 2 and 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. COPIES FURNISHED: Cynthia Shaw, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0760 Paul Bernardini, Esquire LaRue Bernardini, Seitz & Tresher Post Office Drawer 2200 Daytona Beach, Florida 32015-2200 Lawerence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation, Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32399-0750
