The Issue Whether a proposed amendment to Rule 33-5.006(8), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, W. Gerry Hargrove, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is housed in Tamoka Correctional Institution. The Petitioner is subject to the rules of the Respondent, including the proposed rule amendment at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing visiting hours and privileges and all other aspects of the operation of the prison system in Florida. The Proposed Amendment to Rule 33-5.006(8), Florida Administrative Code. Section 944.23, Florida Statutes, provides, in pertinent part: The following persons shall be authorized to visit at their pleasure all state correctional institutions: The Governor, all Cabinet members, members of the Legislature, judges of state courts, state attorneys, public defenders, and authorized representatives of the commission. No other person not otherwise authorized by law shall be permitted to enter a state correctional institution except under such regulations as the department may prescribe. . . . [Emphasis added]. Pursuant to the authority of Sections 944.09 and 944.23, Florida Statutes, the Respondent has adopted Chapter 33-5, Florida Administrative Code. Rule 33-5.006(1), Florida Administrative Code, provides, in pertinent part, the following: Upon being committed to the custody of the Department, each inmate shall be given the opportunity to submit a list of persons from whom he wishes to receive visits. The initial list . . . shall be limited to members of the inmate's immediate family. Once the inmate has been assigned to a permanent institution, additional relatives and friends, business associates and others may be considered, but only after a criminal history background inquiry has been made. Rule 33-5.006(7), Florida Administrative Code, provides: (7) Inmate visits with approved family members or friends should be encouraged for the positive purpose of maintaining home and community ties, which after release should provide a deterrent to recidivism. To the extent that it is safe and practicable to do so, such visiting should be allowed to take place in a relaxed atmosphere. Rule 33-5.006, Florida Administrative Code, also provides certain circumstances when a person may be excluded from an inmate's visitors list. For example, persons convicted of a felony may be excluded. Rule 33-5.006(5), Florida Administrative Code. Rule 33-5.007, Florida Administrative Code, is titled "Visitation Denial." Pursuant to this rule, it is provided that visitation may be denied under certain circumstances, i.e., if a visit would present a clear and present danger to the security and order of an institution. Rule 33-5.007, Florida Administrative Code, also provides: (3) No visit should be denied: . . . . (c) for any reason unrelated to the security, order or rehabilitative objectives of the institution. At issue in this proceeding is a proposed amendment to Rule 33- 5.006(8), Florida Administrative Code: (8)(a) An unmarried i[I]nmate[s] [not married] may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-immediate family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. Married or unmarried inmates may have non- immediate family member couples on the visiting list after approval, but the member of the couple who is the opposite sex of the inmate may not visit the inmate without the spouse. New proposed language of the rule is denoted by underlining and words or letters removed are indicated by brackets. In this proceeding the Petitioner has only challenged proposed paragraph (c) of Rule 33-5.006(8), Florida Administrative Code (hereinafter referred to as the "Proposed Rule Amendment"). The Respondent has indicated it proposed the addition of paragraph (c) to Rule 33-5.006(8), Florida Administrative Code, because of security concerns. As explained by a representative of the Respondent the following are those security concerns: One spouses (i.e., the wife) may be visiting an inmate without the knowledge of the other spouse (i.e., the husband). If the husband becomes aware of the fact that his wife is visiting an inmate the husband may become alarmed and complain to the Respondent and his wife about the visitation. When the husband complains to his spouse or the Respondent and the inmate learns of the problem, the inmate may become upset. The Respondent indicated that there have been a few instances where inmates who, upon learning that husband of the inmate's visitor has been making it difficult for the visiting spouse to continue with visitation, have attempted to escape to get to the husband. The evidence failed to prove that there is a significant security problem if inmates are allowed to have visitation from a married visitor without requiring that both spouses visit the inmate at the same time. The evidence concerning escape attempts (at best, 5 to 10 attempts during the past thirty years) was speculative. No specifics concerning such attempts were provided when the Petitioner asked for specifics. Nor did the evidence prove that the Respondent's security is inadequate to handle the relatively low number of such escape attempts or that any such escape attempt has been successful. The Notice of Proposed Rulemaking for the Proposed Rule Amendment included a "Summary of the Estimate of Economic Impact of the Rule". Although the Petitioner challenged the adequacy of the Respondent's determination of the economic impact of the Proposed Rule Amendment, the evidence presented during the final hearing of this case failed to prove that the economic impact statement was inadequate.
The Issue Whether Rule 33-5.006(8), Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Darryl James McGlamry, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, an agency of the State of Florida, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing inmate visitation and all other aspects of the operation of the prison system in Florida. Rule 33-5.006(8), Florida Administrative Code. Rule 33-5.006(8), Florida Administrative Code (hereinafter referred to as the "Challenged Rule"), provides: Inmates not married may be allowed to have one single non-immediate family member of the opposite sex on the visiting list, after approval. A married inmate may be allowed to have one single, non-family member of the opposite sex on the visiting list, after approval, if a pending divorce or separation of long duration can be verified and the spouse is removed from the list. [Emphasis added]. The Petitioner, a married male inmate, has made requests to have females, by whom he has had children and who have custody of those children, placed on his visiting list. The females by whom the Petitioner has children are his current wife, his former wife and a girlfriend. Those requests have been denied by the Respondent. The Petitioner has attempted to add his former girlfriend and his former mother-in-law to his visiting list. His former wife and all of his children are currently on his visiting list. His current wife was not on his visitor list because she was also incarcerated at the time of the final hearing. The Petitioner has suggested that he has been denied visitation with his children by his former wife and his current wife that he is unable to see because of his inability to have more than one female visitor. The Petitioner's former girl friend was offered a special visitor's pass which was limited to week days but, due to her employment, did not visit the Petitioner. Although the evidence proved that the application of the Challenged Rule to the Petitioner and the Petitioner's circumstances make it difficult for the Petitioner to have visitation with some of his children, the evidence failed to prove that the Challenged Rule itself bars married inmates from having visitation with minor children from other marriages or relationships. The Respondent promulgated the Challenged Rule to limit the number of female visitors a married inmate may have for the following reasons: Male inmates tend to request visitation from more females than males. Due to limited space for visitation, the increasing number of inmates at every institution and the burden placed on the staff of the correctional institutions to handle visitation, the number of visitors had to be limited. Each visitor has to have a local law enforcement background check and each visitor must be checked by staff before visitation. Visitation is generally allowed between 9 and 3 on visiting days but visitors may all show up at essentially the same time. There is limited staff to handle the checking of visitors and the supervision of the visitation area.
The Issue Whether Rule 33-7.005, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, Richard Charles Gaston, is an inmate in the custody of the Respondent, the Department of Corrections. The Petitioner is subject to the rules of the Respondent, including the rule at issue in this proceeding. The Respondent stipulated that the Petitioner has standing to institute this proceeding. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent adopt rules governing the administration of the correctional system in Florida. Rule 33-7.005, Florida Administrative Code. Section 944.292, Florida Statutes, provides that the civil rights of persons convicted of a felony as defined in Section 10, Article X of the Constitution of the State of Florida, are suspended "until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to s. 8, Art. IV of the State Constitution." Section 8, Article IV of the Constitution of the State of Florida, authorizes the Governor to grant pardons restoring civil rights with approval of three members of the Cabinet. The initiation of the process for consideration of whether an inmate should have his or her civil rights restored pursuant to Section 8, Article IV of the Constitution of the State of Florida, is governed by Section 944.293, Florida Statutes (1989). Section 944.293, Florida Statutes (1989), provides the following: Initiation of restoration of civil rights. --With respect to those persons convicted of a felony, the following procedure shall apply: Prior to the time an offender is discharged from supervision, an authorized agent of the department shall obtain from the Governor the necessary application and other forms required for the restoration of civil rights. The authorized agent shall insure that the application and all necessary material are forwarded to the Governor before the offender is discharged from supervision. In implementing Section 944.293, Florida Statutes, the Respondent has promulgated Rule 33-7.005, Florida Administrative Code (hereinafter referred to as the "Challenged Rule"). The Challenged Rule provides, in pertinent part: Discharge of an Inmate. When an inmate has completed all combined sentences imposed upon him or is released by parole, pardon or court order, the Secretary or his designated agent shall furnish such inmate with a certificate of discharge upon his release from custody. All qualified inmates shall be given the opportunity at the time of their release to complete an application for restoration of civil rights, Form DC4-322, Restoration of Civil Rights. Form DC4-322 is hereby incorporated by reference. A copy of this form may be obtained from any institution or from the Bureau of Admission and Release, Department of Corrections . . . . The Respondent releases approximately 40,000 to 45, 000 inmates each year. The release of an inmate, including an inmate convicted of a felony, involves a somewhat lengthy process and the completion of a number of forms, including a form for restoration of civil rights. The date upon which an inmate is to be released from prison becomes "frozen" seven days prior to the inmate's release. Even after the release date is determined and considered "frozen", however, that release date may be modified because of conduct of the inmate after the date is "frozen" but before the inmate is actually released. The completion of the forms necessary to institute a determination of whether an inmate's civil rights should be restored begins approximately 120 days prior to the inmate's projected release. Pursuant to the Challenged Rule, the Respondent has designated an employee of the Respondent at Marion Correctional Institute to interview inmates to be released and provide a Form DC4-322, Restoration of Civil Rights (hereinafter referred to as the "Application"), to inmates to be released. A completed Application is mailed by the Respondent to the Florida Parole Commission (hereinafter referred to as the "Commission") on the date that the inmate is released from prison. The Respondent does not send the completed Application until the day the inmate is actually released from prison because the release date may change at any time prior to the actual time the inmate is released. The weight of the evidence failed to prove, however, that the Respondent cannot inform the Commission after it has forwarded an application that the inmate's proposed release date has been modified or that the Commission would not ignore an application upon such notification. Some, but not all, inmates convicted of felonies may not be eligible for restoration of their civil rights at the time of their release from prison; these inmates are subject to supervision after leaving prison. Some inmates convicted of felonies, such as the Petitioner, have, however, completely served their sentences and are released from all supervision at the time they are released from prison. The weight of the evidence failed to prove that such inmates are not eligible for restoration of their civil rights immediately upon their release from prison.
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 in this case is whether the Respondent, the Department of Insurance, should pay reasonable attorney fees and costs to Crudele under Section 57.111, Florida Statutes (1997), the Florida Equal Access to Justice Act, after Crudele appealed and reversed the Department's Emergency Order of Suspension.
Findings Of Fact On July 15, 1996, the Department issued an Emergency Order of Suspension of Crudele's eligibility for licensure and license as a Florida life insurance agent and life and health insurance agent. The Emergency Order of Suspension was based on alleged violations of the insurance code in connection with the surrender of insurance annuities for purchase of a startup company's unsecured promissory notes. It stated: Based on the foregoing specific facts and for the reasons of protecting the insurance-buying public and insurers from further harm, preventing further abuses of fiduciary relationships, and preventing further defrauding of insureds and insurance companies by the [Petitioner], the Insurance Commissioner finds that [Crudele] constitutes and is an immediate and serious danger to public health, safety, or welfare necessitating and justifying the Emergency Suspension of all licenses and eligibility for licensure and registrations heretofore issued to [Crudele] under the purview of the Department of Insurance. The danger, more specifically, is to the insurance-buying public which must place its trust in the honesty and competence of insurance agents. The trust involves the responsibility that insurance agents have for fiduciary funds accepted by them and insurance matters entrusted to them. The danger is clear and present that failure to properly handle such funds and matters may cause serious losses and damage to the insurance-buying public. Prior to issuance of the Emergency Order of Suspension, the Department received two verified complaints--one by the alleged victim, and the other by her adult daughter. The complaints alleged essentially: Crudele was introduced to Mary Clem, an 84 year-old widow of a tenant farmer, by Charles Perks, Clem's insurance agent, in 1992. In 1992, Crudele and Perks solicited and sold Clem two annuities for a total of $50,000, representing Clem's life savings from working in sick people's homes as a nurses aide. A year after selling the annuities, Crudele and Perks returned to Clem and convinced her to invest the money she had in her annuities into a new company called Zuma that was to recycle automobile tires into useful products. Crudele and Perks represented that Zuma was a "sure fire business." They said they were offering Clem the opportunity to get "in on the ground floor" and that the stock would then go on the open market and double in value. Clem did not have a great deal of education and had no experience investing in stocks or bonds. Her sole source of income was Social Security plus her modest savings. She conceded that when she was offered a 12% interest rate, she found the offer too irresistible to refuse. Neither Crudele nor Perks gave Clem a prospectus or any other descriptive brochure about Zuma. Clem purchased a total of three Zuma promissory notes at three separate times for a total of $60,000. This represented the bulk of her retirement savings. Clem acted based on her trust and confidence in Crudele and Perks. Clem later went to a lawyer to draft a will. The lawyer became very concerned about Clem's purchases of the Zuma promissory notes and her inability to understand the nature of the transaction. Clem was not getting any of her payments from Zuma as promised. Clem was "going out of her mind" with worry. She summoned her daughter, Roberta Anderson, to come down to Florida from Indiana to investigate the matter. Anderson was unable to contact Crudele, and he did not contact her. Anderson and Clem were not aware of any efforts on Crudele's part to recover the funds or otherwise remedy the situation. After a great deal of effort, Anderson was able to recover approximately $23,000 of her mother's money. Crudele apparently played no part in helping Anderson recover the $23,000. The Zuma notes went into default, and apparently the remainder of the money was lost. Clem suffered a very serious financial loss that, given her circumstances, she could ill afford. It may be inferred from the evidence that the Department based its Emergency Order of Suspension on the Clem and Anderson verified complaints. There was no evidence of any other basis for the Emergency Order of Suspension. There was no evidence as to whether the Department conducted any investigation of any kind prior to entry of the Emergency Order of Suspension. Nor is there any evidence as to the Department's decision-making process. The Emergency Order of Suspension stated: (1) that it was being issued pursuant to "sections 120.59(3) [and] 120.60(8) [now Section 120.60(6), Florida Statutes (1997)], Florida Statutes [1995]; (2) that Crudele had "the right to request a hearing in accordance with the provisions of Section 120.59(4), Florida Statutes [1995]"; and (3) that Crudele "was entitled to seek review of this Order pursuant to Section 120.68, Florida Statutes [1995], and Rule 9.110, Florida Rules of Appellate Procedure." The Emergency Order of Suspension also stated that an Administrative Complaint seeking final disciplinary action would be filed within 20 days. On July 15, 1996, the Department filed an Administrative Complaint on essentially the same allegations as those in the Emergency Order of Suspension. Crudele sought judicial review of the Emergency Order of Suspension in the District Court of Appeal, First District. On August 19, 1997, the court issued an Opinion reversing the Emergency Order of Suspension because it did not "set forth particularized facts which demonstrate sufficient immediacy or likelihood of continuing harm to the public health, safety, and welfare to support a suspension of his license without notice and hearing." The court's Mandate issued on September 4, 1997; it referred to the court's Opinion and commanded that "further proceedings, if required, be had in accordance with said opinion, the rules of Court, and the laws of the State of Florida." The Administrative Complaint filed against Crudele was given Division of Administrative Hearings (DOAH) Case No. 97-2603. On February 17, 1998, a Final Order sustaining some of the charges and suspending Crudele's license and eligibility for licensure for six months was entered in Case No. 97-2603.
Findings Of Fact 14. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on September 29, 2004, the Amended Order of Penalty Assessment issued on October 14, 2004, the second Amended Order of Penalty Assessment issued on January 20, 2005, and the 3rd Amended Order of Penalty Assessment issued on August 25, 2010, attached as “Exhibit A”, “Exhibit B”, “Exhibit C“, and “Exhibit F”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the request for administrative hearing received from Bill Veczko, d/b/a Bill’s Painting, the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the second Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On September 29, 2004, the Department of Financial Services, Division of _ Workers’ Compensation (hereinafter “Department”), issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 04-590-D1 to Bill Veczko, d/b/a Bill’s Painting. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On September 29, 2004, the Stop-Work Order and Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On October 14, 2004, the Department issued an Amended Order of Penalty Assessment to Bill Veczko, d/b/a Bill’s Painting. The Amended Order of Penalty Assessment assessed a total penalty of $30,844.10 against Bill Veczko, d/b/a Bill’s Painting. The Amended Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was. advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On May 27, 2010, the Amended Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On January 20, 2005, the Department issued a second Amended Order of Penalty Assessment to Bill Veczko, d/b/a Bill’s Painting. The second Amended Order of Penalty Assessment assessed a total penalty of $104,044.10 against Bill Veczko, d/b/a Bill’s Painting. The second Amended Order of Penalty Assessment included a Notice of Rights wherein Bill Veczko, d/b/a Bill’s Painting was advised that any request for an administrative proceeding to challenge or contest the second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 6. On May 27, 2010, the second Amended Order of Penalty Assessment was personally served on Bill Veczko, d/b/a Bill’s Painting. A copy of the second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On June 8, 2010, Bill Veczko, d/b/a Bill’s Painting filed a petition for administrative review (“Petition”) with the Department. Pursuant to Sections 120.54(5)(b) and 120.569(2), Florida Statutes, the Department carefully reviewed the Petition to determine if it was in substantial compliance with Rule 28-106.2015, Florida Administrative Code. A copy of the Petition is attached hereto as “Exhibit D”. 8. After reviewing the Petition, the Department determined that the Petition was not in substantial compliance with the requirements of 28-106.2015, Florida Administrative Code, in that the Petition did not contain a statement identifying the material facts in dispute, or a statement indicating that there were no material facts in dispute. Accordingly, on June 24, 2010, the Department issued an Order Dismissing Petition for Section 120.57(1), Florida Statutes, Proceeding Without Prejudice. In the Order Dismissing Petition for Section 120.57(1), Florida Statutes, Proceeding Without Prejudice, Bill Veczko, d/b/a Bill’s Painting was given an opportunity to file, within 21 days, an amended petition curing the defects in the original Petition. 9. On August 9, 2010, Bill Veczko, d/b/a Bill’s Painting filed an amended petition for administrative review (“Amended Petition”) with the Department, which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-7312. A copy of the Amended Petition is attached hereto as “Exhibit E”. 10. On August 25, 2010, the Department filed with the Division of Administrative Hearings a Motion to Amend Order of Penalty Assessment with an attached 3rd Amended Order of Penalty Assessment. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $103,958.56 against Bill Veczko, d/b/a Bill’s Painting. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 11. On August 25, 2010, Administrative Law Judge W. D. Watkins entered an Order Granting Motion to Amend Order of Penalty Assessment. 12. On October 12, 2010, Bill Veczko informed the Department that Bill Veczko, d/b/a Bill’s Painting did not wish to proceed to an administrative hearing in DOAH Case No. 10- 7312. 13. On October 12, 2010, the Department filed a Joint Motion to Relinquish Jurisdiction with the Division of Administrative Hearings. As a result, Administrative Law Judge W. D. Watkins entered an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit G”.
The Issue The issue to be determined is whether Respondent violated section 458.331(1)(b) and (kk), Florida Statutes (2010), and if so, what penalty should be imposed for the violations proven.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to the Amended Administrative Complaint, Respondent has been licensed as a medical doctor in the State of Florida, having been issued license number ME94098. During all times relevant to the Amended Administrative Complaint, Respondent also held a license to practice medicine in the State of California. On September 7, 2010, Linda Whitney, the Executive Director of the California Board of Medicine, filed an Ex Parte Petition for Interim Suspension Order (Ex Parte Petition) in Case No. 06-2007-187158, seeking to suspend, pending a full hearing on the merits, Respondent’s physician’s and surgeon’s certificate in the State of California. On September 9, 2010, Administrative Law Judge Samuel Reyes of the California Office of Administrative Hearings entered an Ex Parte Interim Suspension Order, stating that the Ex Parte Petition had come up for hearing, with both the Executive Director (through counsel) and Dr. Fenton appearing and submitting documents and presenting argument. Judge Reyes granted the Ex Parte Petition; suspended Respondent’s California Physician’s and Surgeon’s certificate; scheduled a hearing on September 30, 2010; and set a deadline for submitting additional affidavits and other documents. After the hearing on September 30, 2010, Judge Reyes entered an Interim Suspension Order, containing findings of fact and conclusions of law. The Interim Suspension Order indicates that it was entered pursuant to California Government Code section 11529, which, as stated in the Interim Suspension Order, authorizes licensure suspension and the imposition of other conditions pending a resolution of underlying disciplinary allegations. Subdivision (a) of the statute provides that: “[i]nterim orders may be issued only if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act . . . and that permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare.” Subdivision provides: “[t]he administrative law judge shall grant the interim order where, in the exercise of discretion, the administrative law judge concludes that There is a reasonable probability that the petitioner will prevail in the underlying action. (2) The likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order.” The Interim Suspension Order granted the Petition and suspended Respondent’s license in accordance with Government Code section 11529. On May 8, 2012, the Medical Board of California adopted a Stipulated Settlement and Disciplinary Order as the Decision and Order of the Medical Board of California (Board Order), effective June 7, 2012. The Stipulated Settlement and Disciplinary Order, which was signed by Dr. Fenton, states in pertinent part: Respondent does not contest that, at an administrative hearing, complainant could establish a prima facie case with respect to the charges and allegations contained in SAA No. 06-2007-187158, and that he has thereby subjected his license to the disciplinary action. Respondent admits the truth of paragraph 31C. in SAA No. 06-2007-187158. SSA No. 06-2007-187158 refers to the Second Amended Accusation, which is the charging document in the underlying California case, akin to an administrative complaint in Florida. The SAA alleges that Respondent is subject to discipline based upon impairment because of physical or mental illness affecting competency in violation of the California Business Code, section 822; conviction of a crime substantially related to the qualifications, functions, and duties of the medical profession in violation of section 2236; and general unprofessional conduct, in violation of section 2234. The Board Order revoked Respondent’s Physician’s and Surgeon’s Certificate. The revocation was stayed, however, and Respondent was placed on probation for a period of seven years, subject to terms and conditions outlined in the Board Order. Those terms and conditions included abstinence from the use of any controlled substances and any drugs requiring a prescription other than those lawfully prescribed by another practitioner; abstinence from alcohol use; biological fluid testing; completion of a professionalism program; submission to a psychiatric evaluation; psychotherapy by a California-licensed, board-certified psychiatrist or licensed psychologist; monitoring of Respondent’s practice while on probation; and a prohibition against supervising physician assistants during the course of probation. Respondent did not report the Interim Suspension Order dated September 9, 2010, to the Florida Board of Medicine within 30 days of the Interim Suspension Order. Respondent also did not update his practitioner profile to include the discipline in the State of California. The Board received notice from the State Federation of Medical Boards that another state had taken action, i.e., that the Interim Suspension Order had been issued by the State of California. There is no allegation, nor was any evidence presented, that Respondent has violated the terms of the Board Order entered in California. No evidence was presented indicating that Respondent has ever been disciplined previously, in Florida or in California. At the time of the hearing, Respondent was not practicing medicine. He testified at hearing that he has enrolled voluntarily in the Florida Physicians’ Resource Network (PRN). However, no contract with PRN was entered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent violated subsections 458.331(1)(b) and (kk), Florida Statutes, as charged in the Amended Administrative Complaint. It is further recommended that Respondent’s license in Florida be suspended until such time as Respondent demonstrates the ability to practice medicine with reasonable skill and safety, followed by probation with such terms as the Board deems appropriate. Respondent’s demonstration of the ability to practice with reasonable skill and safety shall include an evaluation by a board-certified psychiatrist approved by PRN and compliance with any recommendations PRN may make as a result of that evaluation. DONE AND ENTERED this 29th day of July, 2013, 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 29th day of July, 2013.
