The Issue Whether Respondent, a corrections officer, has failed to maintain the qualification to have good moral character, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on February 19, 1993, as a Corrections Officer, Certification Number 136191. Respondent’s certification is active. At all times relevant, the Respondent was employed as a corrections officer with the Central Florida Reception Center. On November 5, 1994, Karen Mills was employed as a law enforcement officer with the Seminole County Sheriff’s office. At the time of the event, Officer Mills had been working under cover for five years with the City/County Investigative Bureau. Officer Mills was working undercover at one o’clock on a Saturday morning posing as a prostitute on the sidewalk and parking lot located at State Road 427 and Pomosa in Sanford, Florida. On November 5, 1994, Mills approached a black male driving a Toyota car, later identified as the Respondent, Travis Long, when he stopped for a traffic light at the corner of State Road 427 and Pomosa. After idle conversation, the Respondent asked what she was doing. She advised that she was trying to make some money. He asked her if she would “take it up the ass?” She took that to mean that he wanted anal intercourse. Mills said yes and asked him how much money he was willing to pay. Respondent said $25.00. Mills said she wanted $40.00. Respondent agreed but stated that he would have to go get the money from an ATM and also that he wanted to get something to eat. He asked Mills if she wanted to go with him to get something to eat. Mills declined. Mills did not immediately arrest Respondent because she wanted to see the money to confirm that he was there to buy sex. Respondent left the area and returned 20 minutes later. Upon his return, Respondent asked Mills if she was a cop and asked her to pull up her shirt to prove that she was not carrying a recording device (a wire). Mills asked Respondent if he was a cop. He said no, and ultimately exposed his penis as a way to prove it to her. Mills asked Respondent to show her the money and kept encouraging him to do so, by saying, “You ain’t gonna pay me . . . You ain’t got no money. I just want to be sure I’m gonna get paid.” Respondent finally showed Mills the money and mouthed, without speaking, “I will pay you.” As soon as she saw the money, Mills, who was wearing a wire, gave the predetermined code. Respondent began to pull away in his vehicle but other officers pulled him over and arrested him. Respondent plead Nolo Contendere to the charge of Lewd and Lascivious Behavior, a second degree misdemeanor, in the County Court for Seminole County, Florida, on January 5, 1995. Respondent was adjudicated guilty, and a $100 fine was imposed. Respondent’s testimony that, although he conducted himself as above stated, he did not have the intent to solicit for prostitution on the night of November 5, 1994, is not credible. Respondent was an energetic, hard-working individual. Respondent had no prior criminal or employment discipline problems prior to this incident. Respondent has continued in his current position as a corrections officer in the three years since the incident and has received above-average ratings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED as follows: Respondent be found guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes (1993). Respondent's certification be SUSPENDED for a period of six months and that the Commission impose such conditions on his reinstatement as it deems reasonable and necessary. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Amy Bardill, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 H. R. Bishop, Jr., Esquire 300 East Brevard Street Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
The Issue The issue for determination in this proceeding is whether Florida Administrative Code Rule 61D-6.011 is an invalid exercise of delegated legislative authority, in violation of section 120.52(8).
Findings Of Fact Petitioner, FHBPA, is a Florida not-for-profit corporation created to advance, foster, and promote the sport of thoroughbred horse racing in the State of Florida. FHBPA’s membership includes over 200 Florida-licensed horse trainers and over 5,000 Florida-licensed horse owners, and has associational standing to file and prosecute actions on behalf of its members. Respondent has not challenged FHBPA’s standing to bring this proceeding. Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (PMW), is the state agency charged with the regulation of pari-mutuel wagering in the State of Florida, pursuant to section 20.165 and chapter 550, Florida Statutes. The question to be decided in this proceeding is what the Legislature meant when it amended section 550.2415(7) in 2015, and whether rule 61D-6.011 carries out the legislative directive it contains. Before the 2015 legislative session, section 550.2415 stated, in pertinent part: (3)(a) Upon the finding of a violation of this section, the division may revoke or suspend the license or permit of the violator or deny a license or permit to the violator; impose a fine against the violator in an amount not exceeding $5,000; require the full or partial return or the purse, sweepstakes, and trophy of the race at issue; or impose against the violator any combination of such penalties. The finding of a violation of this section in no way prohibits a prosecution for criminal acts committed. * * * (7)(e) The division may, by rule, establish acceptable levels of permitted medications and shall select the appropriate biological specimens by which the administration of permitted medication is monitored. * * * The division shall adopt rules to implement this section. The rules may include a classification system for prohibited substances and a corresponding penalty schedule for violations. Except as specifically modified by statute or by rules of the division, the Uniform Classification Guidelines for Foreign Substances, revised February 14, 1995, as promulgated by the Association of Racing Commissioners International, Inc., is hereby adopted by reference as the uniform classification system for class IV and V medications. (Emphasis added). During the 2015 legislative session, the Legislature substantially amended section 550.2415. Ch. 15-88, § 1, Laws of Fla. Not all of the changes made are germane to the challenge at issue here, but the amendments to subsections (3) and (7) are critical: (3)(a) Upon the finding of a violation of this section, the division may revoke or suspend the license or permit of the violator or deny a license or permit to the violator; impose a fine against the violator in an amount not exceeding the purse or sweepstakes earned by the animal in the race at issue or $10,000, whichever is greater; require the full or partial return of the purse, sweepstakes, and trophy of the race at issue; or impose against the violator any combination of such penalties. The finding of a violation of this section does not prohibit a prosecution for criminal acts committed. * * * (7)(a) In order to protect the safety and welfare of racing animals and the integrity of the races in which the animals participate, the division shall adopt rules establishing the conditions of use and maximum concentrations of medications, drugs, and naturally occurring substances identified in the Controlled Therapeutic Medication Schedule, Version 2.1, revised April 17, 2014, adopted by the Association of Racing Commissioners International, Inc. Controlled therapeutic medications include only the specific medications and concentrations allowed in biological samples which have been approved by the Association of Racing Commissioners International, Inc., as controlled therapeutic medications. * * * (c) The division rules must include a classification system for drugs and substances and a corresponding penalty schedule for violations which incorporates the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the Association of Racing Commissioners International, Inc. The division shall adopt laboratory screening limits approved by the Association of Racing Commissioners International, Inc., for drugs and medications that are not included as controlled therapeutic medications, the presence of which in a sample may result in a violation of this section. (Emphasis added). The title page of the ARCI Document states, “Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule.” Each of the remaining pages of the ARCI Document, including those pages that encompass the ARCI Recommended Penalties, identifies the ARCI Document as the “Uniform Classification Guidelines for Foreign Substances.” The Notes Regarding Classification Guidelines, found at page ii, states that “Where the use of a drug is specifically permitted by a jurisdiction, then the jurisdiction’s rule supersedes these penalty guidelines.” (Emphasis added). Rules 61D-6.011 and 61D-6.008 were amended in 2016, in response to the amendments to section 550.2415. Rule 61D-6.008 addresses permitted medications allowed for horses, and rule 61D- addresses the penalties to be imposed for drug violations. Relevant portions of rule 61D-6.011 provide: The penalties in this rule shall be imposed when the stewards or the Division finds that the following substances have been identified by the state laboratory in a urine sample or blood sample collected from a horse participating in a pari-mutuel event: (a) Any medication listed in subsection 61D-6.008(2), F.A.C. [1.-3. provide penalty ranges for first, second, and third offenses] The penalty for any medication or drug which is not described in subsection (1) above shall be based upon the classification of the medication or drug found in the Uniform Classification Guidelines for Foreign Substances, revised December 2014, as promulgated by the Association of Racing Commissioners International, Inc., which is hereby incorporated and adopted herein by reference, https://flrules.org/Gateway/ reference.asp?No=Ref-06400, www.myfloridalicense.com/dbpr/pmw or by contacting the Department of Business and Professional Regulation, 2601 Blair Stone Road, Tallahassee, Florida 32399. The penalty schedule shall be as follows: Class I substances: First violation of this chapter Second violation of this chapter Third or subsequent violation of this chapter Class II substances: First violation of this chapter $3,000 to $5,000 fine and suspension of license 90 days to one year, or revocation of license; $4,000 to $5,000 fine and suspension of license of no less than one year, or revocation of license. $5,000 to $10,000 fine and revocation of license. $250 to $1,000 fine and suspension of license zero to 180 days; Second violation of this chapter Third or subsequent violation of this chapter Class III substances: First violation of this chapter Second violation of this chapter Third or subsequent violation of this chapter Class IV or V substances: First violation of this chapter Second violation of this chapter $500 to $1,000 fine and suspension of license of no less than 180 days, or revocation of license; $1,000 to $5,000 fine and suspension of license of no less than one year, or revocation of license $300 to $500 fine; $500 to $750 fine and suspension of license zero to 30 days, or revocation of license; $750 to $1,000 fine and suspension of license zero to 180 days, or revocation of license. $100 to $250 fine; $250 to $500 fine and suspension of license zero to 10 days; Third violation of this chapter $500 to $1,000 fine and suspension of license zero to 60 days. The Division may consider mitigation or aggravation to deviate from these penalty guidelines. * * * Absent mitigating circumstances, the stewards or the Division shall order the return of any purse, prize, or award from any pari-mutuel event for redistribution when a positive test for a drug or medication described in paragraphs (1)(a), (1)(b), (2)(a), or (2)(b) is reported by the state laboratory and confirmed through the hearing process. The stewards or the Division may order the return of any purse, prize, or award for redistribution when the positive test of a drug or medication reported by the state laboratory is not described in paragraphs (1)(a), (1)(b), (2)(a), or (2)(b) of this rule. In the event the stewards or Division orders the return of the purse, prize, or award for redistribution as described in this subsection, the reason(s) for the redistribution shall be provided in writing. (Emphasis added). Rule 61D-6.011 varies from the penalty provisions in the ARCI Recommended Penalties in several respects. First, in the drug classification tables in the ARCI Document, which the rule incorporates by reference, there are columns to identify the drug or substance; trade name, if any; drug class; and penalty class. Not all drugs in a drug class are in the same penalty class. For example, all class 1 drugs are in penalty class A, with the exception of cocaine, morphine, and strychnine, which are in penalty class B. The majority of class 2 drugs are also in penalty class A, with the exception of caffeine, carisoprodol, diazepam, hydroxyzine, ketamine, levamisole, lidocaine, mepivacaine, and romifidine, which are in penalty class B. Class 3 drugs are generally split between penalty classes A and B, and class 4 drugs include both penalty classes B and C. Similarly, class 5 drugs are split between penalty classes C and D. It is clear from the text of the ARCI Document that the drug classifications and the penalty guidelines are intended to work together as a comprehensive approach to the impermissible drugging of racing horses. In the Recommended Penalty and Model Rule portion of the ARCI Document, there are separate penalties recommended for licensed trainers and for owners. For trainers, class A penalties include a minimum fine of $10,000 or 10% of the total purse, whichever is greater, absent mitigating circumstances, to a maximum of $25,000 or 25% of the purse with aggravating factors for a first offense. For a second offense in any jurisdiction, the fine amount is $25,000 or 25% of the total purse, whichever is greater, absent mitigating circumstances, and may increase with aggravating circumstances to a maximum of $50,000 or 50% of the purse, whichever is greater. For a third offense in any jurisdiction, the minimum fine is $50,000 or 50% of the total purse, whichever is greater, absent mitigating circumstances, and may increase with aggravating circumstances to a maximum of $100,000 or 100% of the purse, whichever is greater. For owners, the first and second offenses include disqualification and loss of purse. The penalty for a third offense includes disqualification, loss of purse, and a $50,000 fine. For owners and trainers, the monetary penalties may exceed the maximum permitted under section 550.4215(3), which authorizes a fine not exceeding the purse or sweepstakes earned by the animal, or $10,000, whichever is greater. The parties have submitted the House and Senate Bill analyses that address the amendment to section 550.2415 at issue here.1/ The House of Representatives Final Bill Analysis for CS/HB 239 includes the following statements: The bill changes the maximum fine for violations from $5,000 to $10,000 or the amount of the purse, whichever is greater. The bill also reduces the time for the division to begin administrative prosecutions for violations from 2 years to 90 days. The bill requires the division to adopt the Association of Racing Commissioners International (ARCI) rules regarding the medications, drugs, and naturally occurring substances given to race animals, including a classification system for drugs that incorporates ARCI’s Penalty Guidelines for drug violations, and updates current methodologies used in testing procedures. . . . * * * Effect of Proposed Changes * * * The bill requires that the penalty schedule for violations must incorporate the Uniform Classification Guidelines for Foreign Substances, Version 8.0, revised December 2014, by the ARCI. These guidelines are “intended to assist stewards, hearing offices and racing commissioners in evaluating the seriousness of alleged violations of medication and prohibited substance rules. ” The bill analysis for CS/SB 226 contains similar provisions stating that the ARCI Penalty Guidelines must be incorporated into a rule adopted by Respondent. The penalty guidelines included in rule 61D-6.011 do not incorporate the ARCI Recommended Penalties. The PMW’s website includes a listing of statutes and rules, with links to the rules. Included in that list is a statement that “The Association of Racing Commissioners International, Inc. ‘Uniform Classification Guidelines for Foreign Substances and Recommended Penalties and Model Rule’ is adopted and incorporated by rule.” Notwithstanding this statement, the ARCI Recommended Penalties are not incorporated into rule 61D-6.011 or any other rule identified in this proceeding. The rule provides for consideration of a number of aggravating and mitigating circumstances, when warranted, that allow for deviation from the identified penalty guidelines. As noted above, rule 61D-6.011(1) refers to the medications listed in rule 61D-6.008. Rule 61D-6.008 provides in pertinent part: Permitted medications for horses: The prescription medications defined in this rule shall be permitted under the conditions set forth to conserve and protect the health of the horse which is entered to race. All such medications shall be procured and administered by a licensed veterinarian, except where a valid prescription or dispensing occurs in compliance with the requirements of Chapter 474, F.S. The following permitted medications at concentrations less than or equal to the following schedule shall not be reported by the racing laboratory to the Division as a violation of Section 550.2415, F.S. [list of medications and concentration levels for each one]. Thus, subsection (1) of rule 61D-6.011 addresses violations where too much of a permitted medication is found in a race day sample, whereas subsection (2) addresses violations based upon prohibited medications. Petitioner presented the testimony of Scott Hay and Edward Martin in support of its contention that the penalty guidelines adopted by PMW are arbitrary and capricious. Dr. Scott Hay is a veterinarian who has worked with thoroughbred racehorses since 1988. He is a member of the American Association of Equine Practitioners, the American Veterinary Medical Association, and the Florida Veterinary Association. He serves as co-chair on the scientific advisory committee for the Racing Medication and Testing Consortium, which worked on the development of the ARCI Document. Dr. Hay was familiar with the ARCI Document and described the process used to determine threshold levels for medications. He testified that the scientific advisory committee relied extensively on the expertise of some of its members to determine the appropriate levels of medications that would be appropriate under the drug classifications. On the other hand, while he is familiar with PMW’s rules and was involved in the rulemaking workshops when the rules were first amended after the 2015 statutory change, he did not believe that he made any comments on these particular rules during that process. He did not provide any testimony that provided information on what methodology PMW used when formulating its penalty guidelines. Mr. Martin works for the Association of Racing Commissioners International as its president and has done so since 2005. He testified that the Racing Medication and Testing Consortium is a consortium of racing industry organizations that advises ARCI and regulatory entities on medication and anti-doping policies. He described the process by which the scientific advisory committee meets and considers recommendations on changes to policies. According to Mr. Martin, the scientific advisory committee relies on the collective judgment of the pharmacologists, chemists, toxicologists, and veterinarians to provide advice and expertise about appropriate public policy. The controlled therapeutic medication schedule is an attempt to provide some consistency in the regulation of some commonly used medications that are considered appropriate for equine care. The schedule recommends a threshold for testing, and only if that threshold is exceeded, is there a violation of the rules of racing. Mr. Martin pointed to the reference in rule 61D-6.011 to rule 61D-6.008. He testified that what “struck him” about the Florida rules is that rule 61D-6.008 encompasses the controlled therapeutic list, but rule 61D-6.011(1) appears to provide the same penalty for any violation of a substance itemized in 61D- 6.008. This treatment is not consistent with ARCI’s penalty schedule, but Mr. Martin did not know whether Florida made a conscious decision to impose a different recommended penalty than what is contained in the ARCI Document, and did not know the intent of the drafters with respect to the rule.
Recommendation Based upon the foregoing it is recommended that Petitioner issue a Final Order imposing a $100 fine for each of the class III violations which have been established, for a total fine of $1200, but that no additional fine be assessed for the unclassified violations. DONE and ENTERED this 27th day of November, 1985, at Tallahassee, Florida. DONALD D. CONN, 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 27th day of November, 1985. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Dorothy K. Emrick Oakland Park Retuirement Annex Ageing and Adult Service, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 John Marfilius Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301
Findings Of Fact James W. Collins was suspended without pay for thirty (30) days effective February 9, 1976, having been charged with conduct unbecoming a public employee and willful violation of rules, regulations, directives or policy statements governing behavior of employees of the Department of Offender Rehabilitation and Sumter Correctional Institution. Specifically, he was charged with being intoxicated on institutional grounds and creating a disturbance by profane and abusive language directed toward other employees, loud and repeated knocking on the doors of other employees' rooms in the Bachelor Officer's Quarters during the night of February 5, 1976, and the early morning hours of February 6, 1976. Petitioner denied that he was intoxicated and requested an administrative hearing. Petitioner James W. Collins lived in the Bachelor Officer's Quarters of Sumter Correctional Institution of the State of Florida in the month of February, 1976. Beer was available and allowed after working hours and employees were allowed to consume beer and other refreshments after working hours. The Petitioner consumed approximately three (3) beers after five o'clock on February 5, 1976. He went to his room after 8:00 P.M. and later knocked on the doors of various persons who were also employed by the Department of Offender Rehabilitation and who lived in the Bachelor Officer's Quarters. He then went to the Administration Building. He appeared in an unstable condition and returned again to the BOQ Building and knocked on the door of a fellow employee asking for change. Later, in the early morning hours of February 6 about 2:30 A.M., Collins again left his room and was making noise either emptying trash or rummaging through the trash cans in the parking lot where he again met the officer in charge. Petitioner had consumed beer on the night in question after hours which was allowed by the institution. The fact that he knocked on the doors of various other persons, entered the lounge area in the Administration Building and later was in the parking lot emptying trash or rummaging through the cans is not conclusive that the Petitioner was in fact intoxicated even though alcohol or beer odor could be detected on his person. The Petitioner is a diabetic and his actions were consistent on the night in question with one who is suffering from this disease or one who is intoxicated. His contention that he was seeking change from his friends to use in a drink or candy machine or to acquire sugar to relieve him from his diabetic condition is consistent with the actions of a person seeking relief from the effect of the disease. There is no proof that the Petitioner James Collins was in fact intoxicated. The fact that Petitioner suffered diabetes and accepted employment in a sensitive area like the Sumter Correctional Institution should require him to protect his employment and his physical condition and refrain from the use of alcohol. He should keep within his quarters a sufficient amount of treatment such as sweets for his condition and keep sufficient change on hand in order not to burden others with his deficiencies. The failure to protect himself against his actions which resulted in the disturbing of a number of employees during the night in question shows the Petitioner to be remiss in his obligation toward his job, himself and others. A certified letter with return receipt requested was addressed and sent to the Petitioner Collins at his abode in the Sumter Correctional Institution's BOQ, Room 312, Bushnell, Florida 33513. The letter of suspension was sent pursuant to Rule 22A-1.05, Florida Administrative Code. Petitioner had been orally informed of his suspension and the time of his suspension and the length of it at the meeting with his superintendent. The fact that the certified letter was sent to a mailbox in Bushnell which merely put into writing information the Petitioner already had did not deprive him of any of his rights. It was the mailbox at which Petitioner received his mail and the fact that the institution has his Tallahassee address did not require it to send his letter of suspension, about the facts of which he was fully informed, to the Tallahassee address.
Recommendation Withdraw the penalty of suspension without pay and substitute a written reprimand. DONE and ORDERED this 11th day of April1 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Raymond W. Gearey, Esquire Room 300, Building 5 1311 Winewood Boulevard Tallahassee, Florida 32301 Jerry Traynham, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF JAMES COLLINS DOAH NO. 76-2050 DOCKET NO. 76-56 AGAINST SUSPENSION BY THE DEPARTMENT OF OFFENDER REHABILITATION / OPINION AND ORDER Chairman Catherine W. Chapin and Members Clare C. Leiby and Edwin G. Fraser participating. This cause came on to be heard by the Career Service Commission on May 11, 1977, in Tallahassee, Florida. The Commission has considered the Recommended Order by Hearing Officer Delphene C. Strickland and the record of this appeal. The Commission hereby accepts, adopts and incorporates by reference the Findings of Fact as set forth in the Recommended Order, dated April 11, 1977. The Commission must reject, however, the Conclusion of Law and Recommended Penalty and submits the following conclusions. While the Hearing Officer did not conclusively find that Collins was intoxicated, the facts presented do support the Agency's charge of conduct unbecoming a public employee. The Hearing Officer concluded that the Petitioner was guilty of this general charge, based on the evidence brought out at the hearing, and recommended altering the suspension to a written reprimand. Inasmuch as the designated Hearing Officer is vested only with such authority as the Commission possesses, the Hearing Officer's recommendation to alter the penalty is impermissible. The Agency's disciplinary action of a 30-day suspension being within its authority was supported by the evidence and as set forth in the Hearing Officer's Findings of Fact. Wherefore, it is ORDERED that the action of the Agency be, and the same is, hereby sustained. It is further ORDERED that the Motion for Reconsideration having been considered, the same is hereby denied. DONE AND ORDERED this 10th day of June, A.D., 1977. CATHERINE W. CHAPIN, Chairman Career Service Commission CERTIFICATE OF SERVICE I hereby certify that copy of the foregoing Order was furnished by certified U.S. mail, return receipt requested, to Mr. Jerry G. Traynham, Attorney at Law, 1215 Thomasville Road, Tallahassee, Florida 32303, and Mr. Raymond Gearey, General Counsel, Department of Offender Rehabilitation, 1311 Winewood Boulevard, Tallahassee, Florida 32301, and by regular U.S. mail to Mrs. Delphene C. Strickland, Hearing Officer, Room 530, Carlton Building, Tallahassee, Florida 32304, this 23rd day of June, A.D., 1977. CAREER SERVICE COMMISSION BY: Susan Turnbull
Findings Of Fact 1. On December 21, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-388-D4-OPA to DIABETES AND ENDOCRINE CENTER OF FLORIDA, P.A. for a total assessed penalty of $2,994.10. The Order of Penalty Assessment included a Notice of Rights wherein DIABETES AND ENDOCRINE CENTER OF FLORIDA, P.A. was advised. that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 2. On December 23, 2010, the Order of Penalty Assessment was served by certified mail on DIABETES AND ENDOCRINE CENTER OF FLORIDA, P.A. A copy of the Order of Penalty Assessment with Proof of Service is attached hereto as “Exhibit 1” and incorporated herein by reference. 3. On January 11,2011, DIABETES AND ENDOCRINE CENTER OF FLORIDA, P.A. filed a Petition for Administrative Review Hearing (“Petition”) with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on January 20, 2011, and the matter was assigned DOAH Case No. 11-0345. A copy of the petition is attached hereto as “Exhibit 2” and incorporated herein by reference. 4. On February 18, 2011, the Respondent filed with DOAH a Notice of Voluntary Dismissal/Satisfaction of Penalty Assessment and also sent the Department a certified check for $2,994.10. The check was received by the Department’s investigator and deposited into the Workers’ Compensation Trust Fund on Monday, February 17, 2011. A copy of the Notice of Voluntary Dismissal/Satisfaction of Penalty Assessment is attached hereto as “Exhibit 3” and incorporated herein by reference. 5. On April 29, 2011, the Department received from DOAH a copy of an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit 4” and incorporated herein by reference 6. The factual allegations contained in the Order of Penalty Assessment, issued on December 21, 2010, are fully incorporated herein by reference, and are adopted as the Department’s Findings of Fact in this matter.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Petition received from DIABETES AND ENDOCRINE CENTER OF FLORIDA, P.A., as well as the Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that:
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Nursing revoke respondent's license number 83209-2. It is further recommended that upon proof of counseling or other rehabilitative measures taken by respondent, the Board exercise its discretion to relicense respondent with examination after a period of six months has elapsed. Respectfully submitted and entered this 28th day of April, 1977, in Tallahassee Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Geraldine Johnson, R.N. Licensing and Investigative Coordinator Florida State Board of Nursing 6501 Arlington Expressway Bldg. B. Jacksonville, Florida 32211 Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 Patrick V. Clancy, Esquire 2420 Garfield Street Hollywood, Florida 33020
The Issue The central issue in this case is whether the Respondent committed the violation alleged in the corrected administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent, Charles Harry Kent, is a licensed physician in the State of Florida, license no. ME 0037235. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed physicians. In connection with a prior disciplinary case against this Respondent the Agency issued a final order placing the Respondent on two years probation and requiring Respondent to pay an administrative fine in the amount of $2,000.00. Such fine was to be paid not later than March 5, 1995. As of March 28, 1996, the Respondent had not paid the administrative fine nor had he provided any explanation for the failure to timely remit payment. Efforts to notify the Respondent regarding the unpaid fine were unanswered by the Respondent. Ultimately, the administrative complaint in this case was filed against the Respondent and notice of the non-payment provided by way of allegations set forth in paragraphs 6 through 12. On October 3, 1995, the Respondent executed an election of rights which disputed the allegations and listed his address as 3605 Juan Ortiz Circle, Fort Pierce, Florida 34947. Attempts to personally contact this Respondent by an Agency investigator proved fruitless. Respondent has not responded to mail addressed to his address of record.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration, Board of Medicine, enter a final order suspending Respondent's medical license until such time as the administrative fine at issue in this cause is paid in full; imposing an additional fine in the amount of $5,000.00; and extending Respondent's period of probation by an additional two years. DONE AND ENTERED this 16th day of May, 1996, 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 16th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5535 Rulings on the proposed findings of fact submitted by Petitioner: 1. Paragraphs 1 through 10 are accepted. Rulings on the proposed findings of fact submitted by Respondent: 1. None submitted. COPIES FURNISHED: Albert Peacock Senior Attorney Agency for Health Care Administration 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Charles Harry Kent, M.D. Post Office Box 2478 Fort Pierce, Florida 34947 Dr. Marm Harris Executive Director Agency for Health Care Administration, Board of Medicine Division of Medical Quality Assurance Boards 1940 North Monroe Street Tallahassee, Florida 32399-0342
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed against the Respondent are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility for certification of Correctional Officers within the State of Florida. The Respondent is employed as a Correctional Officer at the Hendry County Correctional Institution. On December 25, 1998, the Respondent worked an 8:00 a.m. to 4:00 p.m. shift as a Correctional Officer. After leaving his shift, the Respondent went home, showered, ate dinner, gathered Christmas gifts for his brother's family, and left the house with his wife. He took his wife to the "Eagles" club and returned to his house to take his wife's children to their father's house. He then drove to his brother's house, about an hour from the Respondent's home, where he visited and exchanged gifts. At about 11:00 p.m., the Respondent departed from his brother's house and went to the "Eagles" club, where he learned his wife had gone to the "Moon Cricket" bar. The Respondent proceeded on to the bar where he met his wife and friends. While at the bar, the Respondent consumed an indeterminate quantity of beer in the two hours remaining until closing time. The bar is small, and a "party" atmosphere prevailed. Apparently beverage orders were not taken, rather the bar's owner (a friend of the Respondent's) repeatedly brought bottled beers to the table. It is not possible to quantify the Respondent's consumption in a credible manner. When the bar closed shortly after 2:00 a.m. on December 26, 1998, the Respondent collected his wife, who was admittedly intoxicated, along with additional quantities of beer, and began to drive home. At approximately 2:30 a.m. on December 26, 1998, the Respondent was observed by Collier County Sheriff Deputy Tom Amey to be driving without headlights. Deputy Amey has completed substantial training in detection of persons driving under the influence of alcohol or other substances and in conducting field sobriety evaluation. At the time of initial observation, the Respondent's truck was stopped at an intersection facing towards Deputy Amey's vehicle. Deputy Amey flashed his headlights apparently to remind the Respondent to turn on the headlights, but got no response from the Respondent. When the Respondent proceeded through the intersection without headlights, Deputy Amey turned his vehicle around, followed, and then stopped the Respondent. After approaching the Respondent's vehicle, Deputy Amey asked for the Respondent's license and registration. The Respondent responded very slowly and deliberately to the deputy's instructions, fumbling with his wallet as he removed the documents. Deputy Amey observed that the Respondent's eyes were "glassy" and "bloodshot" and that there was a "moderate odor” of alcohol present. Deputy Amey also observed "cool, fresh" beer located on the front floorboard and the rear floorboard of the Respondent's extended cab truck. Deputy Amey asked the Respondent to exit the truck and the Respondent did so slowly. While talking to the Respondent, Deputy Amey observed that the Respondent's speech was slightly slurred and "thick-tongued." Deputy Amey asked the Respondent to submit to a field sobriety exercise. The Respondent stated that his knee prevented him from completing the physical tests. Deputy Amey administered the "horizontal gaze nystagmus" (HGN) test. Nystagmus is an involuntary eye motion (described as a "jerkiness") typically exhibited by persons under the influence of alcohol or other central nervous system depressants. The HGN test is a standard part of the field sobriety evaluation. An HGN test permits the observation of the level of "jerkiness" in a person's eyes. Normally, a person's eyes appear to move smoothly. Under the influence of alcohol or other substances, a person's ability to control eye movement is diminished, and a "jerky" motion is observable. Deputy Amey has received specific training related to administration of the HGN test. Upon observing the Respondent's eye movement during the test, Deputy Amey reported that the onset of the Respondent's nystagmus was "almost immediate" and "very distinct." Based on the deputy's observation, the Respondent was placed under arrest for driving under the influence and was transported to the "stockade" in Immokalee, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a Final Order imposing a one-year probationary period and requiring such counseling as the Department deems appropriate. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2001. COPIES FURNISHED: H. R. Bishop, Jr., Esquire Florida Police Benevolent Association, Inc. 300 East Brevard Street Tallahassee, Florida 32301 Gabrielle Taylor, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32303-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
