Findings Of Fact For purposes of the Motion, the following allegations contained in the petitions are accepted as true: Albert Figueroa is an approved visitor for an inmate in the custody of the Florida Department of Corrections. Albert Figueroa regularly visits an inmate under the custody of the Florida Department of Corrections. Jaylin Figueroa has a brother in the custody of the Florida Department of Corrections. Jaylin Figueroa regularly visits with this brother. Martin Glick is on the Florida Department of Corrections approved visitor list for an inmate in its custody. Imposition of visitation restrictions upon an inmate, including indefinite suspension of these privileges, would affect the Petitioners’ visitation of that inmate.
Conclusions THIS CAUSE came before the Board of Osteopathic Medicine pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on November 6, 2010, in Tampa, Florida, for the purpose of considering the Administrative Law Judge’s Order Relinquishing Jurisdiction and Closing File in the above-styled cause, Petitioner was tepresented by Richard Withers, Esquire. Respondent was represented by Donna Canzano McNulty, Esquire. Neither Petitioner nor Mr. Withers were © Present for the Board’s consideration of the Administrative Law Judge’s Order. Upon review of the Administrative Law Judge’s Order and after a review of the complete record in this case, the Board determined to adopt the Administrative Law Judge’s Order Relinquishing Jurisdiction and Closing File and continue to deny Petitioner’s Petition to Reinstate Licensure. WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that the Administrative Law Judge Order Relinquishing Jurisdiction and Closing File is ADOPTED and that Dr. Zebranek’s Petition to Reinstate License is DENIED. DONE AND ORDERED this /_ day orhecerh e—__, 2010. BOARD OF OSTEOPATHIC MEDICINE Executive Director for Joél Rose, D.O., Chair
Findings Of Fact Ernest Brown is a registered real estate salesman holding a registration issued by the Florida Real Estate Commission. Brown received notice of the instant hearing as required by the statutes and rules. His probation officer testified she had contacted him and he had advised her that he would not attend the proceedings. Brown was placed on probation with an adjudication of guilt withheld by the Circuit Court of Pinellas County, Florida, on January 25, 1989 (see Exhibit 2). Paragraph 10 of the conditions of probation requires that Brown serve 180 days in the Pinellas County Jail on weekends from 7:00 p.m. Friday until 7:00 p.m. Sunday. Because of the appeal of his case, Brown did not begin serving this jail term until August 24, 1989. He has served 72 of the 180 days according to the records of his probation officer. Brown is currently in the custody of the State's probation department.
Recommendation The Board's counsel advised the Hearing Officer after hearing that Respondent had surrender his license. This constitutes an ex parte communication of which notice is hereby given to all parties. This fact is immaterial to consideration of the matter at hand. The Board has long taken the position, quite correctly, that surrendering of a license did not impair jurisdiction to consider violations of its statutes by a licensee while licensed. Similarly, surrender of a license cannot terminate the Hearing Officer's consideration of the matter after hearing. The instant case was duly heard and the Recommended Order prepared prior to receipt of any pleadings relative to surrender by Brown of his license. At this point, the Board may accept surrender of the license and dismiss the Administrative Complaint, in which case Brown would be considered not to have had any disciplinary action against him, or the Board may enter its final order based upon the record and this Recommended Order. Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the license of Ernest Brown. DONE and ORDERED this 23rd day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mr. Ernest B. Brown 2027 Thirteenth Street, South St. Petersburg, Florida 33172
The Issue The issue presented for consideration concerns the question whether action taken by the Respondent in its efforts to comply with the mandate of Subsection 120.60(5), Florida Statutes (1978), constitutes a rule or rules which has or have not been duly promulgated in accordance with the provisions of Sections 120.53, 120.54 and 120.56, Florida Statutes.
Findings Of Fact This case is here presented on the Petition of Livingston B. Sheppard, D.D.S., by an action against the Board of Dentistry, an agency of the State of Florida and the Department of Professional Regulation, an agency of the State of Florida, as Respondents. The purpose of this Petition is to have declared invalid certain activities of the Respondents pertaining to their efforts at complying with the provisions of Subsection 120.60(5), Florida Statutes (1978), in promoting license revocation or suspension cases against various dentists licensed to practice in the State of Florida. The Petitioner contends that these activities by the Respondents constitute a rule or rules which fail to comply with requirements of Sections 120.53, 120.54 and 120.56, Florida Statutes. The Petitioner, Livingston B. Sheppard, D.D.S., is a dentist licensed to practice in the State of Florida and thereby regulated by the Respondents. The Petitioner is also the subject of disciplinary action in Case No. 78-1481 before the State of Florida, Division of Administrative Hearings, and it is the action which was taken against Dr. Sheppard in the course of that prosecution, dealing with the subject of Subsection 120.60(5), Florida Statutes (1978), which the current Petitioner asserts to be an invalid rule or rules. The language of Subsection 120.60(5), Florida Statutes (1978), states: (5) No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license. If the agency is unable to obtain service by certified mail or by actual service, constructive service may be made in the same manner as is provided in chapter 49. Having considered the statement found in the above-referenced Subsection 120.60(5), Florida Statutes (1978), counsel for Dr. Sheppard in D.O.A.H Case No. 78-1481 filed a Motion to Dismiss the Administrative Complaint on August 31, 1979, alleging that the agency had failed to comply with the provisions. Oral argument on that motion was scheduled for 2:30 o'clock p.m. on September 17, 1979, and was heard at that time; however, prior to the oral argument, the Board of Dentistry on September 14, 1979, filed a docent in the case, which document attempted compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). The document was entitled "Notice of Intended Action Conference" and by its terms granted Dr. Sheppard an opportunity to appear before H. Fred Varn, Executive Director, Florida State Board of Dentistry, on September 17, 1979, at 10:00 a.m. in Tallahassee, Florida. (A copy of this "Notice of Intended Action Conference" was attached to the Petition in the case sub judice as an exhibit.) The Board of Dentistry had alerted the Hearing Officer to the action it had contemplated by its "Notice of Intended Action Conference." It did so through the Board prosecutor by correspondence of September 14, 1979, a copy of which may be found as the Petitioner's Exhibit No. 1 admitted into evidence. Dr. Sheppard filed an objection to the adequacy of the "Notice of Intended Action Conference" and refused to appear at that conference. After considering the oral arguments of the parties directed to the Motion to Dismiss of August 31, 1978, in D.O.A.H. Case No. 78-1481, the Honorable Delphene C. Strickland, Hearing Officer with the Division of Administrative Hearings, entered her Order dated September 26, 1979. (A copy of that Order has been attached as an exhibit to the current Petition.) In her Order, the Hearing Officer found the "Notice of Intended Action Conference was insufficient, in that the notice did not grant Sheppard sufficient time to prepare for the conference to be held on September 17, 1979, to the extent of demonstrating his compliance with the provisions of Chapter 466, Florida Statutes, as contemplated by Sub section 120.60(5), Florida Statutes (1978). The Hearing officer did feel that Dr. Sheppard had been notified of those allegations for which he was called upon to defend against and she granted the Board of Dentistry thirty (30) days from the date of her Order, September 26, 1978, to allow the accused an opportunity to show that he had complied with all lawful requirements for the retention of his license. There followed the current Petition which was filed on September 28, 1979. That Petition has been the subject of a Motion to Dismiss which challenged the adequacy of the Petition. The Motion to Dismiss was responded to and in the course of that response the Petitioner's counsel attached a copy of a "Notice of Informal Conference" to be held on October 23, 1979, at 9:00 a.m., in Tallahassee, Florida. (The location of that conference was subsequently changed to a place more convenient for Dr. Sheppard, specifically, St. Petersburg, Florida, but the amendment was otherwise the same as the original October 23, 1979, notice.) When the Motion to Dismiss and response to the motion were considered, the motion was denied by written Order of the undersigned dated October 22, 1979. That Order found in accordance with the Order of Hearing Officer Strickland, in D.O.A.H. Case No. 78-1481, referring to the Order dated September 26, 1979; that the efforts of complying with Subsection 120.60(5), Florida Statutes (1978), made by the Board of Dentistry in its attempted action conference to be held September 17, 1979, were not adequate and the prospective events of an action conference that would have been held on September 17, 1979, were deemed to be moot. Nonetheless, in view of the further action by the Board of Dentistry to conduct an informal conference on October 23, 1979, the present case was allowed to go forward on the basis that the Petitioner would be afforded an opportunity to show how the events leading to the written "Notice of Informal Conference" held on October 23, 1979, the notice itself, and the events at the conference constitute a rule or rules that has or have not been duly promulgated in the manner contemplated by Chapter 120, Florida Statutes. In furtherance of this permission, the Petitioner was and is allowed to make the "Notice of Informal Conference" as attached to the response to the Motion to Dismiss a part of the Petition and that "Notice of Informal Conference" is hereby made a part of the Petition. In the course of the hearing a number of witnesses were presented and those witnesses included Tom Guilday, a prosecutor for the Board of Dentistry; Liz Cloud, an employee of the State of Florida, Office of the Secretary of State; H. Fred Varn, Executive Director of the Board of Dentistry; Nancy Wittenberg, Secretary, Department of Professional Regulation; and the Petitioner, Livingston B. Sheppard. In addition, the Petitioner offered three items of evidence which were admitted. The testimony of attorney Guilday established that as prosecutor for the Board of Dentistry in the action against Dr. Sheppard, he spoke with Charles F. Tunnicliff, Acting General Counsel, Department of Professional Regulation, who instructed Guilday to attempt to comply with the requirements of Subsection 120.60(5), Florida Statutes (1978), and this was in anticipation of the pending Motion to Dismiss to be heard on September 17, 1979. One of the results of that conversation was the letter of September 14, 1979, Petitioner's Exhibit No. 1, addressed to Hearing Officer Strickland and the primary result was that of the September 14, 1979, "Notice of Intended Action Conference." The conference alluded to was to be held at the office of Mr. Varn. Attorney Guilday did not recall whether the contemplated disposition of September 17, 1979, was one which Tunnicliff indicated would be used in all similar cases pending before the Department of Professional Regulation. After Hearing Officer Strickland's Order was entered on September 26, 1979, attorney Deberah Miller of the Department of Professional Regulation instructed Guilday to comply with Hearing Officer Strickland's Order of September 26, 1979, on the subject of the dictates of Subsection 120.60(5), Florida Statutes (1978), and this instruction was supported by Memorandum of October 5, 1979, a copy of which may be found as Petitioner's Exhibit No. 2 admitted into evidence. There ensued the conference of October 23, 1979, which was held in St. Petersburg, Florida. After the conference, pursuant to the instructions of attorneys Miller and Tunnicliff, Guilday prepared a memorandum on the results of that conference. This memorandum did not carry a recommendation as to the disposition of the case. Throughout this period of time, attorney Guilday was unaware of any general policy within the Department of Professional Regulation or Board of Dentistry which dealt with attempts at compliance with the provisions of Subsection 120.60(5), Florida Statutes (1978). None of the discussions which Guilday had with attorneys Tunnicliff and Miller of the Department of Professional Regulation or with other officials of that Department or Board of Dentistry led him to believe that there was any set policy for handling those issues. Guilday did acknowledge that a member of his law firm, one Michael Huey, had been instructed by Staff Attorney Miller on the technique to be utilized in refiling a prosecution against John Parry, D.D.S., wherein the action against Dr. Parry had been dismissed for lack of compliance of Subsection 120.60(5), Florida Statutes (1978). A copy of that Memorandum dated October 3, 1979, may be found as Petitioner's Exhibit No. 3 and it carries with it an attached form for "Notice of Informal Conference" under the terms of Subsection 120.60(5), Florida Statutes (1970), and that format is similar to the October 23, 1979, "Notice of Informal Conference" in the Sheppard case. Guilday indicated in connection with this Memorandum, Petitioner's Exhibit No. 3, that to his knowledge no discussion on how to comply with the terms of the memorandum was made and no actual compliance with the memorandum has been taken to his knowledge. It was established through the testimony of Liz Cloud of the Office of the Secretary of State and through other witnesses that no formal rules have been filed with the Secretary of State by either of the Respondents dealing with the subject of compliance with the pie visions of Subsection 120.60(5), Florida Statutes (1978). Testimony offered by Nancy Wittenberg, Secretary, Department of Professional Regulation, and by H. Fred Varn, Executive Director, Board of Dentistry, established that neither the Department nor the Dental Board has formulated final policies on how to deal with the requirements of Subsection 120.60(5), Florida Statutes (1978), whether the cases pertain to those such as that of Dr. Sheppard in which the agency, although it has not complied with Subsection 120.60(5), Florida Statutes (1978), prior to the filing of the Administrative Complaint, has been granted an opportunity to try to comply or on the occasion where cases are in the investigative stage or the occasion where the cases have been dismissed for noncompliance with Subsection 120.60(5), Florida Statutes (1978), and are subject to refiling. It is shown through Secretary Wittenberg's testimony that such compliance with Subsection 120.60(5), Florida Statutes (1978), is still in the formative stages and the Memorandum of October 3, 1979, by Staff Attorney Miller with the format for noticing informal conferences to be held under the provisions of Subsection 120.60(5), Florida Statutes (1978), is but one method under consideration at this time. Moreover, Secretary Wittenberg has not spoken with attorney Guilday about the matters of the Sheppard case that are now in dispute or received reports of conversations between Guilday and Staff Attorneys Tunnicliff and Miller on the subject of the pending Sheppard dispute. Finally, Wittenberg has not instructed any of the support officials within the Department of Professional Regulation, to include departmental attorneys, to formulate policy directed to the implementation of the provisions of Subsection 120.60(5), Florida Statutes (1978), which action would constitute the final statement by the Department on those matters.
Conclusions Agency Clerk's Office This matter comes before the Agency for Persons with Disabilities (the Agency) following a hearing at the Division of Administrative Hearings and the issuance of a Recommended Order. A copy of the Recommended Order is attached to this Final Order, On March 30, 2012, the Agency sent Respondent a Notice indicating that it was denying its application for licensure. Respondent timely requested an administrative hearing and the matter was referred to the Division of Administrative Hearings where it was assigned to an Administrative Law Judge (ALJ). On May 15, 2012, after reaching a settlement agreement, the parties filed a Joint Motion to Dismiss with Prejudice and on May 15, 2012, the ALJ issued an Order Closing File and Relinquishing Jurisdiction. Based on the foregoing and being otherwise fully advised in the premises, it is hereby ORDERED that Respondent's request for an administrative hearing to contest the Agency's Notice of March 30, 2012, is DISMISSED with prejudice. APD-12-1978-FO | 4 Filed July 18, 2012 3:04 PM Division of Administrative Hearings DONE AND ORDERED, this _/ S date of La ly , 2012, in Tallahassee, Leon County, Florida. a ichael P. Hansen, Director Agency for Persons with Disabilities RIGHT TO APPEAL A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a “Notice of Appeal” with the Agency Clerk. The party seeking judicial review must also file another copy of the “Notice of Appeal,” accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. Review proceedings shall be conducted in accordance with Florida Rules of Appellate Procedure. The Notices must be filed within thirty (30) days of the rendition of this final order.’ Information about some sources of possible legal assistance may be found at: http://apd.myflorida.com/customers/legal/resource-listing.htm. ‘The date of the “rendition” of this Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date. APD-12-1978-FO | 2 Copies furnished to: Martez Whipple APD Area 15 Office Miracles House, Inc. address of record) Laurel Hopper, Esq. Claudia Llado, Clerk DCF, Legal Counsel Division of Administrative Hearings CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail or electronic mail, this day of | h y , 2012. Percy A ihe Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Fl 32399-0950 APD-12-1978-FO | 3
The Issue Whether Petitioner's Petition Seeking an Administrative Determination of the Invalidity of an Existing Rule (Petition) should be dismissed on the ground that the "challenged rule in this proceeding has been effectively repealed by the Florida Legislature by Section 626.854(11), Florida Statutes, effective October 1, 2008," as requested by Respondent.
Findings Of Fact Petitioner is a contractor engaged in highway construction and holds a certificate of qualification with Respondent. Action pending in DOAH Case No. 84-2538 could result in the suspension of Petitioner's certificate if an alleged contract delinquency is proven. Section 337.16, F.S., delegates to Respondent the authority to revoke or suspend a certificate when contract delinquency is demonstrated. This statute provides: No contractor shall be qualified to bid when an investigation by the highway engineer discloses that such contractor is delinquent on a previously awarded contract, and in such case his certificate of qualification shall be suspended or revoked. The department may suspend, for a specified period of time, or revoke for good cause any certificate of qualification. The purpose of the above statute is to enforce timely completion of construction work and to prevent a contractor from taking on new work which might require diversion of resources from the delinquent job, thus lessening the contractor's ability to catch up. Rule 14-23.01, F.A.C. was promulgated by Respondent to implement its authority to suspend or revoke contractor certificates for job delinquency. Because contractors charged with delinquency frequently catch-up or cure the delinquency during the pendency of administrative proceedings, 1/ Respondent's statutory authority to enforce construction schedules was easily thwarted. To "put teeth" in its ability to deter job delays, Respondent amended its delinquency rule in 1982 to provide after- the-fact certificate suspension where a contractor was proven to have been delinquent in its progress on a construction project. This provision, which is challenged here, states as follows: (b) REINSTATEMENT. Any contractor disqualified under the above provisions shall be disqualified from further bidding and shall be disapproved as a contractor until the delinquency is cured. Where a contractor cures the alleged delinquency during the course of administrative proceedings, the Department may suspend the qualification to bid and disapprove as a subcontractor for the number of days the contractor is administratively determined to be delinquent. Specifically, Petitioner challenges the last sentence which it contends amounts to unauthorized punishment since the deficiency sought to be corrected by the statute no longer exists. However, the provision would arguably have some deterrent force since contractors would recognize that suspension could not be avoided merely by requesting formal proceedings 2/ and counting on administrative delay to render the delinquency issue moot.
