The Issue The issue in this case is whether the Respondent’s medical license should be revoked or otherwise disciplined under section 456.072(1)(c), Florida Statutes, based on criminal convictions related to the practice of medicine or the Respondent’s ability to practice medicine—namely, convictions for obtaining a controlled substance by fraud, a third degree felony under section 893.13(7)(a)9., and for fraudulently using, or possessing with intent to fraudulently use, personal identification information, a third degree felony under section 817.568(2)(a).1/ The Respondent disputes that the convictions are related to the practice of medicine or her ability to practice medicine and asserts various defenses.
Findings Of Fact The Respondent, Christina Paylan, M.D., holds a license, ME 82839, to practice as a medical doctor in the State of Florida, as regulated by DOH and the Board of Medicine. On April 25, 2014, she was charged with obtaining or attempting to obtain a controlled substance, Pethidine/Meperidine (known by the brand name Demerol), by fraud, forgery, deception or subterfuge in violation of section 893.13(7)(a)9., Florida Statutes; and with fraudulently using the personal identification information of a patient, C.M., without first obtaining the patient’s consent, in violation of section 817.568(2)(a), Florida Statutes. The charged conduct was alleged to have occurred in July 2011. The Respondent was tried by jury in the circuit court in Hillsborough County on July 29 and 30, 2014, and was found guilty. On August 22, 2014, the Respondent was adjudicated guilty and sentenced to 364 days in the county jail. The Respondent appealed the convictions. The appeal is pending. DOH filed an Administrative Complaint based on the criminal convictions and suspended the Respondent’s license pending the resolution of the Administrative Complaint. The Respondent’s convictions related to her practice of medicine. She was convicted of fraudulently writing a prescription for Demerol for a patient, C.M., and using the patient’s personal identification information (driver license and insurance card) without the patient’s consent to present the prescription to a pharmacy to be filled on July 1, 2011. The Respondent’s status as a medical doctor gave her the ability to obtain the patient’s personal identification information and write the prescription. A medical license carries with it a high level of public trust and requires good judgment, integrity, and high morals. Licensure carries a duty to safeguard patients’ personal information and use it only for legitimate purposes. The Respondent was convicted of crimes that violate the public trust, demonstrate warped judgment and a lack of integrity, involve misuse of patient information, and undermine public confidence in the Respondent’s ability to practice medicine. The Respondent maintained her innocence and essentially sought to re-try the criminal case. Various rulings denied the Respondent’s efforts to do so, including rulings that sustained many of DOH’s objections to the Respondent’s proffered evidence. The Respondent’s convictions are on appeal. As discussed in the Conclusions of Law, if the convictions are overturned on appeal, there would be no basis for disciplining the Respondent’s medical license based on the Amended Administrative Complaint. The Respondent’s Answer to the Amended Administrative Complaint denied that she (i.e., Christina Paylan, M.D.) was convicted because a “fictitious Christina Paylan was found guilty.” By this, the Respondent meant the prosecutor in the criminal trial “fraudulently represented that Respondent is neither a doctor nor a licensed practitioner.” In her Proposed Recommended Order, the Respondent refined her argument to be that her convictions were for crimes that apply only to laypersons, not to medical doctors. These are grounds of her appeal from the criminal convictions. These defenses are invalid, as discussed in the Conclusions of Law. The Respondent asserted affirmative defenses of res judicata, collateral estoppel, laches, and unclean hands based on the actions taken by the Board of Medicine in this case and in prior investigations of her practice of medicine. One of those prior investigations, designated by DOH file 11-0006, involved an investigation of whether the Respondent met the standard of care with respect to patient L.B. This investigation had nothing to do with the Respondent’s conduct regarding the patient C.M., which was the subject of the criminal convictions giving rise to the Amended Administrative Complaint in this case. Another investigation, designated by DOH file 11-18577, was opened to investigate allegations regarding the Respondent’s drug prescriptions, specifically for Demerol, for patients J.E.A. and J.M.A. During the 11-0006 investigation, DOH obtained patient records for patient C.M., which were removed from that investigative file and added to investigation 11-18577. In May 2014, investigation 11-18577 was terminated when the Board of Medicine found no probable cause, dismissed the cases, and closed the investigation. A primary basis of this decision was DOH’s inability to obtain the patient records of J.E.A. and J.M.A. and their unwillingness to cooperate with a prosecution of the Respondent. Although C.M.’s patient records were available, and C.M. may have been willing to cooperate with a prosecution of the Respondent, the probable cause decision, dismissal of the cases, and closure of the investigation included C.M. as well as J.E.A. and J.M.A. There was no evidence to prove unclean hands on the part of DOH or the Board of Medicine. This affirmative defense was not mentioned in the Respondent’s Proposed Recommended Order. As explained in the Conclusions of Law, the Respondent’s affirmative defenses are not valid. In the Respondent’s Proposed Recommended Order, the Respondent refined her defense of laches by arguing that she was prejudiced by the action taken by the Board of Medicine in May 2014 because it “eliminated” her option to plead nolo contendere. Clearly, the action of the Board of Medicine did not eliminate the Respondent’s options or force her to go to trial on the criminal charges. Even if the Respondent’s decision to go to trial had been influenced by the action of the Board of Medicine, her new defense of laches is also not valid, as discussed in the Conclusions of Law. Regarding the appropriate penalty, the Respondent has been licensed and practicing medicine in Florida since June 2001. There was no evidence of any prior discipline being imposed against the Respondent’s medical license. The Amended Administrative Complaint is based on criminal convictions arising out of a single, isolated incident. Except for the conviction for a single misuse of a patient’s personal identification information, there was no evidence of any exposure of a patient or the public to any other injury or potential injury. The Respondent’s actions resulted in no pecuniary benefit or self- gain.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: finding the Respondent guilty as charged; fining her $5,000; suspending her medical license for two years, with credit for the time under emergency suspension; placing her on probation for one year after suspension; requiring her to take appropriate continuing medical education; and assessing costs related to the investigation and prosecution. The final order should retain jurisdiction to vacate all discipline if the Respondent’s convictions are overturned on appeal. DONE AND ENTERED this 23rd day of October, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 2015.
The Issue Whether Respondent has failed to maintain "good moral character," as alleged in the Administrative Complaint issued against her, and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: It is undisputed that, as alleged in numbered paragraph 1 of the Administrative Complaint, "Respondent was certified by the Criminal Justice Standards and Training Commission on February 12, 1998, and was issued Correctional Certificate Number 178264." At all times material to the instant case, Respondent was employed as a correctional officer at the Broward Correctional Institution (BCI), a correctional facility operated by the Florida Department of Corrections (DOC). While on "full duty" as a correctional officer at BCI, Respondent was "responsible for [the] care, custody, and control of inmates" at the facility. She was not, however, on "full duty," the entire time she was at BCI. In the fall of 2001, while recovering from an eye injury, she was placed on "light duty" and assigned to the BCI mail room, where she did not have any supervisory responsibility over inmates. This "light duty" assignment was less demanding and had a more desirable work schedule compared to her normal "full duty" assignment. At all times material to the instant case, Jennifer Bateman was the environmental health and safety sergeant at BCI "responsible for all Work[ers'] Comp cases" at the facility. On or about September 24, 2001, Respondent reported to Sergeant Bateman that, earlier that month, while working in BCI's main kitchen (carrying out her duties as the facility's "main kitchen officer"), she had suffered an injury to her right eye. After having been told about the incident, Sergeant Bateman filled out and submitted a "first report of injury" form. She also made arrangements for Respondent to see a "Worker[s'] Comp" doctor. Respondent visited the office of Eye Surgery Associates (ESA) to see Kenneth Karp, M.D., on October 1, 2001. The ESA office was "very busy" that day. After seeing Dr. Karp, Respondent went to the check out counter, where Sherry Pendlebury, an ESA employee, was stationed. Respondent asked Ms. Pendlebury for a note concerning her visit with Dr. Karp that day that Respondent could give to her supervisor at work. Ms. Pendlebury "called back and asked for [and received] permission" to give Respondent the "work note" Respondent had requested. After receiving "permission" to write such a note for Respondent, Ms. Pendlebury asked Respondent what Dr. Karp had told her about "return[ing] to work" and whether "there [were] any stipulations." Respondent replied that, "other than light duty, there was nothing and that she could return to work tomorrow." Ms. Pendlebury then wrote the following note on ESA letterhead and signed Dr. Karp's name on the note (First Note) : CERTIFICATE FOR RETURN TO SCHOOL OR WORK Teresa Harden has been under my care from 9- 22-01 to open and is able to return to work on 10-2-01. Limitations/Remarks: Lite Duty The First Note was sent by facsimile transmission by "a Ms. Cummings" to Sergeant Bateman on or about October 10, 2001. Sergeant Bateman was suspicious of the First Note's authenticity. She thought that if the note indeed were one "coming from a doctor's office, 'light' would be spelled the right way." Sergeant Bateman therefore contacted ESA to inquire "as to whether or not [Dr. Karp] truly issued that note." In response to her inquiry, Sergeant Bateman was told that Dr. Karp "had not provided [Respondent] that note and that as of 10-02-01 [Respondent] was released to full duty." On October 11, 2001, Sergeant Bateman received a second note about Respondent's condition on ESA letterhead (Second Note). This Second Note, which was undated, read as follows: CERTIFICATE FOR RETURN TO SCHOOL OR WORK Teresa Harden has been under my care from 9/22/01 to 10/9/01[2] and is able to return to work on 10/2/01. Limitations/Remarks: full duty, no limitations.[3] The Second Note, as did the First Note Sergeant Bateman had received, purported to bear the signature of Dr. Karp, but the note was actually written by Dr. Karp's assistant, Sharon Corbin. On October 12, 2001, the matter was referred to Marilyn Henderson, a Senior Prison Inspector assigned to DOC's Fort Lauderdale field office, to conduct an internal investigation. As part of her investigation, Ms. Henderson obtained from BCI the First Note and the Second Note and, in addition, took sworn statements from Sergeant Bateman and Dr. Karp. In his sworn statement, which was taken on November 30, 2001, Dr. Karp stated the following: I provided Teresa Harden a certificate to return to work at "full duty, no limitations." I did not write "Lite duty." Furthermore, the signature on the form is not in my own handwriting. Ms. Harden was examined in my office on the following dates only: 9/22/01, 9/24/01, 9/25/01, 9/28/01, 10/1/01, and 10/9/01.[4] Ms. Henderson concluded as a result of her investigation that Respondent had "provided a false document to Broward Correctional Institution in reference to her return to duty status."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order dismissing the Administrative Complaint issued against Respondent in the instant case. DONE AND ENTERED this 1st day of June, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 1st day of June, 2005.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulation of pari-mutuel wagering pursuant to Chapter 550, Florida Statutes (2003), and is responsible for licensing employees of pari-mutuel facilities. Respondent is a card dealer holding Florida occupational license number 6927724-1012 for employment as a card dealer at the Tampa Bay Downs racetrack. By application filed at the racetrack on December 3, 2003, Respondent applied for the referenced license. Persons unknown apparently conducted the application process for all employees of the facility. Employees completed the applications and submitted them at the racetrack, again to persons unknown. The application includes a section titled "Background Information." Question 1 asks in relevant part the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contender (no contest) to, even if you received a withhold of adjudication? Question 1 further provides as follows: YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Respondent answered the question in the affirmative. The question provides that if the applicant responds in the affirmative to the question, "form 0050-1" should be completed to disclose additional information about the convictions. Form 0050-1 includes space to list three criminal convictions. The application instructions related to the form state: "[i]f you have more than seven offenses to document on form 0050-1, attach additional copies . . . as necessary." Respondent completed a form 0050-1. On the form, he stated that he had been convicted of a misdemeanor in 1987. The Respondent identified the offenses as "trespassing," "suspended license," and "cashed check." Respondent stated that the penalty had been probation, which was violated, and that he was required to finish the sentence. Respondent initially identified the location of the conviction as Pasco County, but crossed through the writing and changed it to Hillsborough County. Above Respondent's signature on the application is a statement that in material part provides as follows: I hereby certify that every statement contained herein is true and correct and that I understand that any misstatement or omission in this application may result in denial or revocation of my pari-mutuel license. Other than the information on the application, there was no evidence offered at the hearing that Petitioner was convicted of a misdemeanor in 1987 in Hillsborough County. Petitioner asserts that at the time he filed the application, he completed a second form 0050-1 on which he disclosed additional information related to felony convictions. At the hearing, he testified that an unidentified person allegedly involved in the application process instructed him to make the felony disclosures on a second form. Although there is no evidence contradicting Respondent's account of the events, the application submitted through the racetrack to Petitioner did not include a second form 0050-1. In 1983, Respondent was adjudicated guilty of felony charges, including Forgery and Uttering a Forged Check in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8101927CFAWS). In 1990, Respondent was adjudicated guilty of a felony charge of Grand Theft, Third Degree in Hillsborough County, Florida (Circuit Court, Thirteenth Judicial Circuit, Case No. 90-279). In 1991, Respondent was adjudicated guilty of a felony charge of Grand Theft in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8701762CFAWS). A few days after the application was completed, Respondent met with an employee of Petitioner (identified as "Nick") to discuss the felony convictions. "Nick" did not testify at the hearing. As filed with Petitioner, Respondent's application failed to include a second form 0050-1 and did not disclose the felony convictions identified herein. There is no evidence that Respondent has had any involvement in criminal activity since 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order suspending Respondent's occupational license for a period of three months. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S 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 17th day of December, 2004. COPIES FURNISHED: Ralf E. Michels, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stefan Thomas Hoffer Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jerry M. Bonett 7801 Willowbrook Court Hudson, Florida 34667 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner’s application for an exemption from disqualification from employment in a position of trust, pursuant to sections 408.809 and 435.07, Florida Statutes,1/ should be granted.
Findings Of Fact Respondent is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner seeks employment in a position providing direct services to residents of a health care facility licensed under chapter 429 and, as such, is required to participate in Respondent’s background screening process pursuant to section 408.809. Petitioner submitted to the required background screening, which revealed that in 1999, Petitioner pleaded guilty to Felony Grand Theft/Bank Fraud in the United States District Court for the Northern District of Florida, Panama City Division, Case No. 5:99CR165PM. This conviction is akin to a felony grand theft conviction under chapter 812, Florida Statutes. The above-referenced criminal conviction makes Petitioner ineligible to provide a service in a health care facility licensed by Respondent unless Petitioner receives an exemption from Respondent, pursuant to section 435.07. Petitioner was also arrested in 2001 for Felony Aggravated Assault with a Deadly Weapon. On that charge, Petitioner pled guilty to a lesser included charge of simple assault, in Leon County Circuit Court, Case No. 01-1020AM. In addition, Petitioner was arrested in 2009 for felony charges of larceny/grand theft and exploitation of the elderly, charges which were ultimately dismissed due to the alleged victim’s death. Petitioner submitted an application for exemption to Respondent in accordance with sections 408.809 and 435.07 on or about April 30, 2014, and attended a telephonic hearing conducted by Respondent on June 17, 2014. The results of the June 17, 2014, teleconference are not at issue in this proceeding. Petitioner submitted another application for exemption to Respondent in accordance with section 435.07 on or about September 29, 2014. A telephonic hearing was conducted by Respondent on that second application for exemption on December 9, 2014, during which Respondent and Petitioner agreed to utilize the information obtained in the June 17, 2014, hearing regarding the 1999 Grand Theft/Bank Fraud and the 2001 Assault convictions, and to only discuss the circumstances surrounding the 2009 allegations of Grand Theft and Exploitation of the Elderly. A panel consisting of Respondent’s Operations and Consulting Manager for the Background Screening Unit, Sherry Ledbetter, and Respondent’s Health and Facilities Consultants, Kelley Goff and Zack Masters, also attended the telephonic hearing. Exhibit A-1, Respondent’s file for Petitioner’s exemption request, contains the exemption denial letter; internal Agency notes; panel hearing notes from both the June 17, 2014, and the December 9, 2014, teleconferences; Petitioner’s criminal history; Petitioner’s exemption application; arrest affidavits; conviction records; probation records; court records; and several letters in support of Petitioner’s requested exemption. Exhibits A-2 and A-3 are audio recordings of Petitioner’s teleconferences from her exemption hearings from June 17, 2014, and December 9, 2014. After the telephonic hearing, Respondent denied Petitioner’s request for an exemption, and Petitioner requested an administrative hearing. At the administrative hearing, Sherry Ledbetter testified that Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner, and her explanations during the teleconferences when it determined that Petitioner’s request for an exemption should be denied. Respondent is legally authorized to consider all subsequent arrests or convictions, even if those arrests or convictions are not disqualifying offenses. Respondent considered Petitioner’s subsequent arrests and convictions during the review of Petitioner’s application for exemption. Respondent also considered the circumstances surrounding Petitioner’s most recent arrest, 2009 Grand Theft and Exploitation of the Elderly, even though the charges were dismissed. Petitioner admitted during the December 9, 2014, teleconference that the alleged victim made payments toward Petitioner’s bills while Petitioner was employed as her caregiver. Petitioner did not see any ethical issues with taking payments from a patient for whom she is caring, when she was already being paid by her employer for the services she rendered. Respondent explained, and it is found, that Petitioner did not appear to be totally candid and honest in her responses to the panel’s questions during the teleconferences and did not take responsibility for any of the criminal offenses. Although Respondent allows exemption applicants to have people speak on the applicants’ behalf at the teleconferences, Petitioner did not choose to have anyone speak on her behalf. Respondent considers any training, education, or certificates that an exemption applicant submits, but Petitioner did not have any such submissions, aside from Petitioner’s statement that she attended a budget class after her 1999 conviction. Based on Petitioner’s entire file and her responses during the teleconferences, Respondent determined that Petitioner did not satisfy her burden of proof by clear and convincing evidence of demonstrating rehabilitation from her disqualifying offense. Respondent maintains that Petitioner still poses a risk to the vulnerable population she would serve if employed at another health care facility. At the final hearing, Petitioner presented the testimony of Mutaqee Akbar, her criminal defense attorney for her 2009 charges of Grand Theft and Exploitation of the Elderly, who testified that the 2009 charges against Petitioner were dismissed by the prosecutor. On cross examination, Mr. Akbar admitted that the prosecutor cited the death of the alleged victim as the reason for the case’s dismissal. Mr. Akbar also admitted that law enforcement records reflect that the alleged victim made a statement to law enforcement prior to her death that she did not give her consent for the payments made toward Petitioner’s bills. In her testimony at the final hearing, Petitioner discussed how she is a changed person and has overcome a great deal of adversity to get to where she is now. Petitioner is presently involved in her community, specifically with her church and children’s schools, and takes care of her goddaughter and four children. Petitioner has a daughter who attends community college and Petitioner has been striving to set a good example for her daughter. Petitioner’s daughter, Sierra Thomas, who is in community college, gave credible testimony that she always favored her mother and did not believe the 2009 allegations against her mother. One of Petitioner’s good friends, Sheria Hackett, testified that Petitioner is a good person and deserves to be granted the exemption. Petitioner’s Exhibit P-1 is a composite exhibit consisting of additional information relating to Petitioner’s criminal cases and a letter from her probation officer. Petitioner’s Exhibit P-2 consists of a letter from Respondent dated May 22, 2014, requesting additional information from Petitioner during the exemption application process. Petitioner’s Exhibit P-3 consists of Petitioner’s petition for formal hearing. Although Petitioner appeared remorseful for her criminal convictions, considering all of the facts, circumstances, and evidence presented to AHCA and at the final hearing, it cannot be said that she proved by clear and convincing evidence that she is rehabilitated and should not be disqualified from employment. Moreover, AHCA’s intended action of denying Petitioner’s request for exemption was not an abuse of discretion. Therefore, Petitioner failed to meet her burden of showing that she is entitled to the exemption she seeks from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2015.
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the grounds set forth in Respondent's Notice of Intent to Deny.
Findings Of Fact The "Key for License Denials," attached hereto as Exhibit "A," is hereby adopted and incorporated by reference as the Key to the Commission's Findings of Fact in this case. Pursuant to the Key for License Denials, the Commission finds the following facts in this case, to wit: 2,4,5
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order announcing its intention to continue to process Petitioner's application for licensure as a real estate sales associate rather than denying the application on the grounds stated in its December 28, 2011, Notice of Intent to Deny. DONE AND ENTERED this 12th day of April, 2012, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 12th day of April, 2012.
The Issue Whether Petitioner's application for licensure as a "resident public all lines insurance adjuster" should be approved.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On or about February 27, 1989, a six-count criminal information was filed in Dade County Circuit Court Case No. 89- 4970 against Petitioner. Count I of the information alleged that Petitioner: on the 6th day of February, 1989, in the County [of Dade] and State [of Florida], did unlawfully and feloniously utter and publish as true to and upon DALLY SHUAIB and/or CAMPEAU CORPORATION, doing business as BURDINES, a certain false, forged or counterfeited and printed order or receipt for delivery or merchandise commonly known as a CREDIT CARD RECEIPT or RECORD OF CHARGE, upon which credit card receipt or record of charge the defendant or a person whose name or identity is to the State Attorney unknown, did forge the signature of MICHAEL YAMAGUCHI, thereon, with the intent thereby to injure of defraud MICHAEL YAMAGUCHI and/or DALLY SHARUIB and/or CAMPEAU CORPORATION, doing business as BURDINES or other person or persons whose name or names and identity are to the State Attorney unknown, the defendant at the said time and place well knowing that the said credit card receipt or record of charge was false and forged aforesaid, in violation of 831.02 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. Count II of the information alleged that Petitioner: on the 6th day of February, 1989, in the County [of Dade] and State [of Florida], did unlawfully and feloniously with intent to defraud CAMPEAU CORPORATION, doing business as BURDINES and/or MICHAEL YAMAGUCHI use for the purpose of obtaining goods, to wit: CLOTHING a credit card which he knows is stolen by representing without the consent of the card holder that he is the holder of the specified card, and such card has not in fact been issued, in violation of 817.61 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. Count III through VI of the information each alleged that Petitioner: on the 6th day of February, 1989, in the County [of Dade] and State [of Florida], having received a credit card, property of MICHAEL YAMAGUCHI, as owner and custodian, which he knew had been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder, did then and there unlawfully retain possession of said credit card, with intent to use it, to sell it, or to transfer it to a person other than the issuer or the cardholder, in violation of 817.60 Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. On April 17, 1989, Petitioner entered a plea of nolo contendere to all six counts of the information (1989 Plea). Adjudication of guilt was withheld, and he was placed on probation for one year. On or about March 31, 2000, a one-count criminal information was filed in Miami-Dade County Circuit Court Case No. F00-8233, alleging that Petitioner: on or about MARCH 1, 2000, in the County [of Miami-Dade] and State [of Florida], did unlawfully, willfully, and knowingly inflict physical injury upon a child, to wit: A. C. (A MINOR), without causing great bodily harm, permanent disability, or permanent disfigurement to said child, by SLAPPING C. (A MINOR) IN THE FACE, in violation of s. 827.03(1), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. On July 17, 2000, Petitioner entered a plea of nolo contendere to the charge (2000 Plea). Adjudication of guilt was withheld, and he was placed on 18 months' probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order denying Petitioner's application for licensure. DONE AND ENTERED this 25th day of April, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 25th day of April, 2006. COPIES FURNISHED: Michael Armin Toro 490 Southwest 101st Terrace Plantation, Florida 33324 Dean Andrews, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Petitioner is entitled to an exemption from her disqualification to work in positions of special trust.
Findings Of Fact Petitioner applied to Respondent for a license to operate a child care center out of her home. Section 402.305(2), Florida Statutes, provides, in pertinent part, as follows: Personnel.--Minimum standards for child care personnel shall include minimum requirements as to: Good moral character based upon screening. This screening shall be conducted as provided in chapter 435, using the level 2 standards for screening set forth in that chapter. The department may grant exemptions from disqualification from working with children or the developmentally disabled as provided in s. 435.07. Section 435.04, Florida Statutes, sets the Level 2 screening standards referred to in Section 402.305(2), Florida Statutes, as follows: All employees in positions designated by law as positions of trust or responsibility shall be required to undergo security background investigations as a condition of employment and continued employment. For the purposes of this subsection, security background investigations shall include, but not be limited to, employment history checks, fingerprinting for all purposes and checks in this subsection, statewide criminal and juvenile records checks through the Florida Department of Law Enforcement, and federal criminal records checks through the Federal Bureau of Investigation, and may include local criminal records checks through local law enforcement agencies. The security background investigations under this section must ensure that no persons subject to the provisions of this section have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (w) Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony. The required background screening revealed that on August 3, 1993, Petitioner was found guilty by a jury of 15 counts of grand theft. Each of these counts was a third degree felony in violation of Section 812.014(1), Florida Statutes. 2/ For these felony offenses, Petitioner was incarcerated for a period of one year and placed on probation for a period of five years. Respondent notified Petitioner by letter dated May 28, 1999, that she ". . . may be [sic] ineligible for continued employment in a position of special trust working with children . . ." based on her conviction of 15 counts of grand theft. Section 435.07(1)(a), Florida Statutes, provides for the following exemption from the disqualification from employment in positions of special trust: The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Felonies committed more than 3 years prior to the date of disqualification. . . . Section 435.07(3), Florida Statutes, places the following burden on the person seeking the exemption from the disqualification: (3) In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. During the course of a lengthy investigation of a burglary ring spanning approximately four years, Petitioner was found to have in her possession at her home 3/ large quantities of stolen property from burglaries dating from 1987 to 1993. Petitioner was alleged to have purchased this stolen property, as opposed to having committed the actual burglaries. Respondent's letter dated May 28, 1999, advised Petitioner of her right to seek an exemption from her disqualification from employment in positions of special trust. Petitioner thereafter timely applied for such an exemption. Respondent appointed a three-person committee who investigated the Petitioner's criminal background and conducted an informal hearing on June 15, 1999, at which Petitioner appeared with witnesses. The three members of the screening committee were Susan K. Barton (Respondent's District Screening Coordinator), Laura Williams (a foster parent liaison employed by Respondent), and Laura Cohn (Respondent's District Legal Counsel). The members of the committee did not find Petitioner to be remorseful or forthcoming about her involvement in the criminal conduct that led to her felony convictions. Petitioner has a college degree in early childhood education. At the time of her arrest she was employed by the School Board of Palm Beach County. Because of her felony convictions, she lost that employment and has not been able to find comparable employment. At the formal hearing, Petitioner's only evidence as to her entitlement to an exemption was her own testimony. She presented no other witnesses and no exhibits. Petitioner testified that she was remorseful and that she had responded truthfully to the questions asked at the informal hearing by the members of the committee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for an exemption from her disqualification from employment in positions of special trust. DONE AND ENTERED this 28th day of December, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 December, 1999.
Findings Of Fact Hearing was delayed for thirty minutes in order to allow Ronald Scarlata additional time to appear. Because Scarlata failed to appear no further evidence was presented regarding why he should be entitled to a mortgage broker's license beyond the statements contained in his original application. The Department of Banking and Finance was then directed to present its evidence as to why Ronald Scarlata should not be licensed as a mortgage broker. The Department of Banking and Finance called two witnesses, Ehrlich and Spradley, and offered Exhibits 1-4 for identification. Exhibits 1, 3, and 4 were received and Exhibit 2 was rejected because it lacked relevance to the charges. Ronald Scarlata, the applicant for licensure, filed his application (Exhibit 1) together with a fingerprint card (Exhibit 3) with the Department of Banking and Finance as required by statute. The Department of Banking and Finance as a part of its normal procedure in reviewing such application, forwarded the fingerprint card of Ronald Scarlata to the Florida Department of Criminal Law Enforcement for a check of its files to determine if the applicant had ever been arrested in Florida. This check of the Florida Department of Criminal Law Enforcement files revealed no history of arrest of the applicant. The fingerprint card (Exhibit 3) was forwarded to the Federal Bureau of Investigation by the Florida Department of Criminal Law Enforcement for a check of its files. The check of its fingerprint cards by the Federal Bureau of Investigation revealed that the person by the name of Ronald A. Scarlata whose fingerprints matched those of the applicant had been arrested in Rochester, New York, for third degree burglary and attempted first degree grand larceny and was convicted of attempted second degree grand larceny. The Department of Banking and Finance caused the Florida Department for Criminal Law Enforcement to inquire directly to the Rochester, New York authorities to determine whether their records coincided with those of the Federal Bureau of Investigation. This inquiry resulted in the receipt of a TELEX message (Exhibit 4) received by 0. Allen Spradley, the addressee of the message, from the Rochester Police Department. This message confirms the information received by the Florida Department of Criminal Law Enforcement from the Federal Bureau of Investigation. Spradley, former employee of the Federal Bureau of Investigation fingerprint identification branch, stated that entry on the Federal Bureau of Investigation report indicated a conviction and sentencing as opposed to probation without adjudication of guilt or conviction. The crime of attempted grand larceny in the second degree involves moral turpitude. The application of Ronald Scarlata (Exhibit 1) indicates that the applicant answered question 5 on page 2, regarding prior arrests or indictments, in the negative, and subscribed the application on February 5, 1975.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner is the agency of the State of Florida authorized to regulate the licensure and discipline of physicians practicing within this state. Respondent, Charles C. Vassar, M.D., is a licensed physician in this state, license no. ME 0021039. In October, 1984, while investigating a complaint which had been filed with the Department, Hugh Fitzpatrick interviewed the Respondent with regard to activities conducted by the Fountain of Life Medical Clinic located in Miami, Florida. During the course of the interview, Respondent admitted he was employed at the clinic but his specific duties and role there were not disclosed. Also unknown is the period of time the Respondent was employed by the clinic. The record in this matter does not indicate what medical services were rendered by the Respondent or the clinic. Apparently, other doctors were also employed at the clinic but their responsibilities are also unknown. Burden of proof for the revocation of a license is that the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Petitioner alleged that Respondent violated the provisions of Section 458.331(1), Florida Statutes, which have, in some instances, been renumbered since the filing of the administrative complaint. All subsections have, however, remained substantially in effect at all times material to the allegations. Count one claimed Respondent had violated section 458.331(1)(g), Florida Statutes. This subsection provides, in part: The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: (g) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. The Department has not proved by clear and convincing evidence that the Respondent prescribed, mixed or dispensed a legend drug. Assuming that a procaine compound was mixed at the clinic, there is no evidence which clarifies that such substance is or was at the time a "legend drug." Further, the only evidence which links Respondent to the mixing of a procaine drug is an admission allegedly made, to investigator Fitzpatrick. Assuming further that the procaine mixed at the clinic by Respondent was a legend drug, there is no evidence which would suggest the substance was prepared and administered other than in the course of the physician's practice. Consequently, Count one must fail. Count two claimed Respondent had violated Section 458.33l(1)(g), Florida Statutes. This subsection, now numbered 458.331(1)(f) , provides: Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board. The Department has not proved by clear and convincing evidence the allegations contained in count two. The Department presented no evidence regarding unlicensed persons at the clinic. The only reference to other employees related to other physicians at the clinic. In this case it is impossible to determine whether or not unlicensed individuals practiced medicine at the clinic and whether such individuals were somehow aided by Respondent. Consequently, Respondent cannot be found guilty of Count two. Count three maintained Respondent had violated Section 458.331(1)(1), Florida Statutes. That subsection, now numbered 458.331(1)(k), provides: (k) Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. The Department Presented no evidence of Respondent having made deceptive or untrue statements in the practice of medicine. The Department did not offer a single witness who had allegedly been treated by Respondent. Further, there was no documentary evidence which indicated Respondent had made false or fraudulent representations to anyone. Accordingly, Count three must fail. Count four alleged Respondent had violated Section 458.331(1)(n), Florida Statutes. This subsection, 458.331(1)(m), provides: (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results. In this case, the Department did not establish what records, if any, were kept by the Fountain of Life Clinic. The investigator in this case did not request copies of the relevant medical records at the time the complaint was made. Respondent may have kept adequate records or may not have. By the time the Department sought the records from the clinic, the owners or others in control of the records had disappeared and Respondent was no longer employed there. Further, there was no evidence linking Respondent to the ownership or control of the clinic. As a result, there is no clear and convincing evidence that Respondent failed to keep medical records justifying the course of treatment given to patients. The Department's delay of several months before it attempted to subpoena information and the fact that records were not found does not establish that the proper records were never kept by Respondent. Count five of the administrative complaint claimed Respondent had violated Section 458.331(1)(t), Florida Statutes. This subsection provides, in part: (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The record in this case is totally void of any evidence which would support Count five. The testimony of Mark Montgomery, the toxicologist, did not suggest that the allegations against Respondent, if true, constituted gross or repeated malpractice. The Department offered no other expert to establish a reasonably prudent similar physician would have found Respondent had failed to practice medicine with the requisite skill under similar conditions and circumstances. Consequently, Count five has not been proved by clear and convincing evidence. Count six alleged Respondent had violated Section 458.331(1)(h), Florida Statutes. This subsection, now 458-.331(1)(g), provides: Failing to perform any statutory or legal obligation placed upon a licenced physician. The Department has not shown what statutory or legal obligation Respondent failed to perform. Since the Department has not, by clear and convincing evidence, established a specific violation, Respondent cannot be found to have violated any statutory obligation. Similarly, the Department has not shown a violation or legal obligation. Therefore, based upon the allegation of Count six, Respondent must be found not guilty. Count seven based its allegations on the previous counts and concluded that Respondent had Violated Section 458.33l(1)(x), Florida Statutes. This subsection Provides: Violating any provision of this chapters - a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department. Based upon the conclusions reached above as to each count of the administrative complaint, Count seven must also fail. Since there is insufficient proof that Respondent violated a provision of the chapter, and since the Department did not argue a rule or order violation, Respondent must also be found not guilty of Count seven. In reaching the conclusions found herein, consideration has been given to the admissions Respondent allegedly made to Mr. Fitzpatrick. However, the weight given to the investigator's testimony in this matter was insufficient to meet the clear and convincing burden. Mr. Fitzpatrick used an investigative report to refresh his recollection. This report was apparently prepared many weeks after his interview with the doctor. While there is certainly nothing improper in the use of the document to refresh recollection, the inconsistencies between his refreshed recollection and his recollection without the report suggest that Mr. Fitzpatrick had no independent recollection of the pertinent specifics of the interview. In several instances Mr. Fitzpatrick recited information directly gleaned from the report for which he admitted no recollection. Further, it is clear that the report contained information beyond the scope of the interview with Respondent which Mr. Fitzpatrick may have relied upon in reaching the facts adduced in his testimony. For these reasons the investigator's testimony was given little weight in adjudging the record in this cause.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine enter a final order finding the Respondent not guilty of all counts of the administrative complaint and dismissing the cause. DONE and RECOMMENDED this 16th day of November, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1988. APPENDIX RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT: Paragraphs A. 1-3 are accepted. Paragraphs B.1-7 are accepted. With regard to paragraphs B.8-l6, the weight of Mr. Fitzpatricks testimony and the admissions Dr. Vassar allegedly made during one interview (the notes of the interview were not transcribed timely) is insufficient to make findings of fact as specified. Mr. Fitzpatrick did not appear to have independent knowledge (aside from the report) of the facts which he testified to and did not indicate whether the source of the information offered as fact was a direct result of the conversation with Dr. Vassar or other information gathered in this investigation. See findings made in paragraphs 3-6. Paragraphs B. 17-18 are accepted but are unnecessary, irrelevant, or immaterial to the findings in this cause. Paragraphs B. 19-32 are accepted as a recitation of Montgomery's testimony but do not constitute findings of fact that the Respondent utilized the procaine compound described by Montgomery or falsely represented its value to treat old age. In other words, the Petitioner failed to establish the underlying facts to justify Montgomerys conclusion. Further, Montgomery did not testify that such conduct, if true, violated a standard of failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Were there clear and convincing evidence Respondent used the substance described by Montgomery and Misrepresented its value, the testimony would support the misrepresentation claim but that is not the record in this cause. Paragraph B. 23 is accepted. Paragraphs B. 34-35 are rejected since they are not findings of fact but constitute argument, comment, or conclusions. RULINGS ON RESPONDENT'S PROPOSED FINDINGS OF FACT: Paragraphs 1-2 are accepted. Paragraphs 2-4 -are rejected since they represent a recitation of rulings made in this case and do constitute a finding of fact. Paragraphs 5-6 are rejected as argument, comment or conclusions which are not findings of fact. Paragraphs 7-8 are accepted only to the extent that they find it is unclear from this record whether or not procaine is a legend drug. No findings of fact are made in Paragraphs 9-20, accordingly they are rejected as argument, conclusions of law, or comment. COPIES FURNISHED: Peter S. Fleitman Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael I. Schwartz 119 North Monroe Street Tallahassee, Florida 22301 Bruce D. Lamb, Esquire Department of Professional Regulation 130 forth Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether the Petitioner should be placed on the convicted vendor list.
Findings Of Fact On May 31, 1990, Borden pled guilty to commission of a public entity crime, as defined by Section 287.133(1)(g), Fla. Stat. (Supp. 1996), for: a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within Peninsular Florida, lasting from the early 1970's through July, 1988; a conspiracy to rig bids for the award and performance of contracts to supply milk to school boards within the Florida Panhandle, lasting from the early 1970's through July, 1988; and a conspiracy to rig bids for the award and performance of contracts to supply dairy products for use at federal military installations within Peninsular Florida and the Commonwealth of Puerto Rico, and at the Kings Bay Naval Submarine Base in Georgia, lasting from the early 1970's through July, 1988. As a corporate entity, Borden was culpable of the crimes committed by its employees or agents. However, as set out in more detail in the Joint Stipulation, when the crimes came to the attention of Borden's corporate management, Borden cooperated with state and federal investigations and prosecutions of the crimes, promptly terminated the employees and disassociated itself from individuals implicated in the crimes, and promptly paid the damages and penalties resulting from Borden's conviction. As set out in more detail in the Joint Stipulation, Borden notified the Department of Management Services within 30 days of its conviction. As set out in more detail in the Joint Stipulation, in addition to terminating the employees implicated in the crimes, Borden has instituted self- policing to prevent public entity crimes. As set out in more detail in the Joint Stipulation, after a period of suspension by the Defense Logistics Agency of the federal government in relation to Borden's public entity crime, the suspension was terminated, and Borden's Dairy Division has been reinstated as a qualified government contractor. As set out in more detail in the Joint Stipulation, Borden has demonstrated its good citizenship with the exception of the public entity crime of which it was convicted. As set out in more detail in the Joint Stipulation, other than the public entity crime conviction itself, there was no evidence that it is in the best interest of the public to place Borden on the convicted vendor list.
