The Issue The issue for consideration in this case is whether the Respondent's license as a certified respiratory therapy technician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner was the state agency in Florida responsible for the licensing and regulation of the respiratory therapy profession in this state, and Respondent was licensed as a respiratory therapy technician under license number TT 0004476. On January 17, 1990, the Advisory Council on Respiratory Care of the Board of Medicine entered an Order granting Respondent licensure as a respiratory therapy technician conditioned upon his passage of the licensure examination and, as pertinent here, "contingent upon his entering into and successfully participating in the Physicians Recovery Network (PRN) program." The Order also provided, "Successful participation shall require fulfillment of any requirements set by the PRN program." A copy of this Order was furnished to the Respondent shortly thereafter and he interposed no objection to the terms thereof. Just previous to that Order, Respondent had entered into an Advocacy Contract with the Impaired Practitioner Program of Florida, administered by the PRN, by which he agreed, inter alia, to participate in random urine drug and or blood screen programs through Dr. Krone within twenty-four hours of notification, and to contact the office of the PRN by monthly letter. It must be noted that the requirement to participate in random urine testing was not limited as to the number of tests Respondent would be required to undergo, and it also must be noted that the requirement to contact the PRN by monthly letter did not specify the content of the letter. However, Dr. Goetz, the Director of the program, indicates that in a conversation he had with Respondent at the time the contract was signed, he indicated to Respondent that he should advise the Network he had abstained from drug use during the period and was experiencing no difficulties in his work because of drugs. Respondent claims not to recall such a conversation, but it is found such conversation was likely in light of the purpose of the program. Nonetheless, Respondent did not file the required monthly letters with the Network though there is some evidence he did participate in the random testing required. The file maintained on Respondent by the Network, however, reveals he was somewhat "testy and obnoxious" in his dealing with Network personnel. In that regard, however, Respondent indicates he had what appears to be a personality clash with a Network representative, Mr. Westmoreland, and his attitude toward Network personnel may well be the result of Westmoreland's approach to Respondent. This does not excuse Respondent's use of gutter language and profanity in some of the oral and written communications he had with the Network, but there was, originally, no requirement in the contract for politeness. In September, 1990, when Respondent had not submitted the required written communications, he was contacted and reminded of his obligation. At that time, he gave some vague explanation for not complying, and as a result, the Network, on October 2, 1990, entered into a new contract with Respondent which, back dated to December 1, 1989, the date of the original contract, again included the requirement for random urine testing and monthly letters - identical to the requirements in the original contract. Thereafter, Respondent still failed to file the written communications until, in June, 1991, he sent in a short, caustic letter. Thereafter, in July, August and September, 1991, Respondent filed short one or two sentence letters which merely indicated the note was full compliance with the contract terms. In the letter sent in by Respondent in October, 1991, he added the comment he had never been chemically dependent on any substance. On November 19, 1991, Ms. King, for Dr. Goetz, advised Respondent in writing of his responsibility to enter and successfully participate in the program of the PRN, and that unless he contacted the Network within seven days to present his proposal to cooperate in meeting the terms of the contract, it would be reported to the Respiratory Council that he had not successfully cooperated in their program. The letter does not tell Respondent wherein he has been delinquent, however, and only by implication asserts his lack of successful cooperation. In response to that letter, on December 4, 1991, Respondent wrote a scathing indictment of the tactics employed against him by Network personnel, specifically Mr. Westmore [sic]. After reiterating his contention that he has never taken drugs for any purpose and that his conviction on the possession charge was, at least in part, because of his race, in sometimes gross language he indicated his frustration with the program and his desire to be taken off it if it was the Council's intention to keep him on it for the rest of his life. Upon receipt of that letter, Dr. Goetz, on behalf of the Network, advised the Respiratory Council by letter that the Network had been unable to successfully monitor Respondent in its program, and offered to forward background information to support that conclusion. It would appear that upon the receipt of that information, the Council contacted the Department's legal section and, after a review of the file by that agency, was advised that Respondent had not violated his contract. Therefore, in an effort to salvage the relationship with Respondent, the Network prepared another contract for Respondent which included a reiteration of the requirement for random urinalysis and for the monthly contact, though this time, the contact was to be by telephone to Dr. Goetz only or, in his absence, his designee. This was to obviate the potential of Respondent getting into any dispute with other staff members. In addition, however, a requirement was added that Respondent be courteous and cooperative in all contacts with the PRN staff and representatives. Respondent refused to sign that contract even though it, too, was back dated to December 1, 1989, and his signature would not have added any time to the period of observation. Instead, on August 17, 1992, Respondent wrote to Dr. Goetz, again outlining his position that he was in full compliance with the PRN requirements and complaining of what he saw as the unfairness of the requirements placed upon him. After fully describing what he considered to be the inappropriateness of the requirements, he outlined his position on the various paragraphs of the proposed contract and indicated he would sign it only if he were guaranteed he would get full credit for time already spent in the program, and the total time of enrollment is reduced below five years. Upon receipt of that letter, Dr. Goetz telephonically contacted the Department's legal section and was advised to obtain a psychiatric evaluation of the respondent. Attempts were made to contact Respondent through September, October and November, 1992, both by telephone and by certified letter. Phone messages were not returned and the certified letter was not accepted. In this regard, Respondent claims he did not receive the letter, possibly because of a residential move. However, he did not indicate when this move took place, and as a result, it is impossible to determine if that is the reason for the nondelivery of the letter or if Respondent merely refused to accept it. Thereafter, in December, 1992, a letter was sent to the Department's legal staff by the Network, forwarding a copy of the latest contract and Respondent's response thereto. In the following February, the Department counsel was advised by Network that it was unable to establish cooperative monitoring of the Respondent and that Respondent was in violation of paragraphs 1 and 4 of the contract, relating to random urinalysis and monthly communication. It would appear that Respondent neither submitted to urinalysis nor had any monthly contact with the Network subsequent to his letter to Dr. Goetz in August, 1992. Respondent admits it is not in his best interests not to comply with the terms of the contracts he executed with the Network, and he would like to comply with as little friction as possible. However, he claims, shortly after the execution of the original contract, he received a call from Mr. Westmoreland indicating he was not complying. When he asked for an explanation, he was brusquely told, "read the contract", without further explanation. It was only when he spoke with another Network representative, Ms. Crummy, that he was told wherein he was delinquent. At that time, he also got the second contract. Notwithstanding Dr. Goetz had discussed the terms of the contract with Respondent at or shortly after the signing, Respondent contends he was not aware of the requirements for monthly letters, claiming he believed he had only to submit to the random urinalysis. In light of the Respondent's educational level, and the extreme simplicity of the contract language, it is impossible to accept that Respondent didn't know what was expected of him, and it is so found. Respondent has always contended he was not a drug user and denied he had any dependency on drugs. Therefore, he claims, he did not see any reason to send in a monthly letter nor did he know what the letter should include. For that reason, he asserts, he merely used the short form letter utilized in the early responses. When he was advised that was not sufficient, he wrote a longer letter which said much the same. He claims not to know what more he could have said. Respondent relates an ongoing disagreement with Mr. Westmoreland, and was, because thereof, transferred to the monitoring of Mr. Fontaine. In November, 1991, he was called for a urinalysis but had no money to pay for it. In light of the fact that Dr. Krone, the physician performing the urinalysis, reportedly had changed his procedure to require cash in advance, Respondent indicated he would take the test when he got paid later in the month. Mr. Fontaine agreed to this, but shortly thereafter, Mr. Westmoreland called Respondent and directed that he take the test. According to Respondent, Westmoreland said he didn't care where Respondent got the money to do so. Though the discussion between the two men became heated, the test was done. In December, 1991, Respondent received the letter stating he was no longer enrolled under the supervision of the PRN and was being reported for noncompliance. He claims that when he called the Network about this, they would not discuss it with him, merely stating he was out. When the Department started its investigation, Respondent spoke with the investigator, Mr. Hannah, and requested he be informed of what was determined. He claims he never received any notice from either the Department or PRN. He subsequently found out it had been determined he had done nothing wrong, but the Network sent him a new contract anyway. This last contract included the requirement for courtesy. Because Respondent felt he had done nothing wrong, he refused to sign it and wrote the letter setting out what he would agree to do and what he would not agree to. He has not received any response to that letter and as far as he is concerned, is still waiting. He believes he has been cancelled from the program, and without the new contract, he is not a part of the Network and has no requirement to cooperate in a program in which he is no longer enrolled. Respondent claims he does not refuse to cooperate but wants a contract which incorporates his terms as he outlined them in his August, 1992 letter to Dr. Goetz. In addition, since he feels he did nothing wrong, he wants an apology from someone. He asserts he has complied with the terms of the Board's Order in that he passed the test and has successfully cooperated with and complied with the requirements of the network as he understood them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that The Board of Medicine enter a Final Order in this case finding that Respondent, Leonard T. Campbell, violated the provision of Section 468.365.(1)(i), Florida Statutes, by failing to successfully participate in the PRN program mandated by the Board's Order of January 23, 1990, imposing a reprimand, and revoking his certification as a respiratory therapist technician, such revocation being suspended for two years conditioned upon his execution of an advocacy contract with the PRN, successful compliance with the terms and conditions of that contract, and such other conditions as the Board deems appropriate to the circumstances. RECOMMENDED this 11th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of May, 1994. COPIES FURNISHED: Alex D. Barker, Esquire Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 230 Jacksonville, Florida 32211-7466 Leonard Campbell, R.T.T. 8215 North 9th Street Tampa, Florida 33604 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner, Kendal Pierre Cobb, should be issued a license by Respondent, Department of Financial Services, as a resident customer representative insurance agent.
Findings Of Fact In May 2015, Petitioner applied to the Department for a license as a resident customer representative insurance agent. A customer representative is an individual appointed by a general lines insurance agent or agency to assist in transacting the business of insurance. In his capacity as a customer representative, Petitioner would directly interact with customers in the agency or agent’s office who have been solicited as part of the agent’s insurance business. See §§ 626.015(4) and 626.7354(2), Fla. Stat. A customer representative routinely handles customer payments and is only allowed to work in an office setting under the general agent’s supervision. The Department has jurisdiction over licensing procedures for customer representatives. See § 626.016(1), Fla. Stat. Pursuant to this statutory responsibility, after receiving Petitioner’s application for licensure, the Department issued a Notice of Denial on September 25, 2015, notifying Petitioner of its intent to deny his application. The Department denied Petitioner’s application based on its determination that he lacked the fitness or trustworthiness to engage in the business of insurance. The specific basis for the Department’s denial was information the Department received that Petitioner had allegedly committed inappropriate sexual contact with a child. In July 2012, Petitioner was arrested for lewd or lascivious conduct involving his (then) five-year-old daughter. In October 2013, Petitioner was tried for the crime in Orange County Circuit Court in Case No. 2012-CF-010041-A-O. Petitioner was charged with three crimes including Lewd or Lascivious Molestation in violation of section 800.04(5)(b) and section 775.082(3)(a)(4), Florida Statutes (2012) (Count I); Lewd Act Upon a Child in violation of section 800.04(1) (Count II); and Lewd or Lascivious Conduct in violation of section 800.04(6)(b) (Count III). A jury found Petitioner not guilty on Count I--Lewd or Lascivious Molestation. (Petitioner’s defense counsel successfully moved for judgment of acquittal on Count III during the criminal trial.) But, the jury did find Petitioner guilty of Count II--Lewd Act Upon a Child.3/ Count II, according to the Information, specifically alleged that Petitioner: Between June 1st 2012 and June 3rd 2012, . . . did, in violation of Florida Statute 800.04(1), with his penis make contact with the body of a child under the age of sixteen (16) years in a lewd, luscious or indecent manner, and in furtherance thereof [PETITIONER] did rub his erect penis on [A.C.][4/] Petitioner was sentenced to 51.15 months in prison followed by ten years’ sex offender probation. Petitioner appealed his conviction. In January 2015, the Fifth District Court of Appeal overturned the conviction in Cobb v. State, 156 So. 3d 581 (Fla. 5th DCA 2015). The court ruled that the criminal charging document contained a fundamental error in that “the information neither referenced a statute that establishes a criminal offense nor set forth the essential elements of any substantive crime.” Id. In other words, Petitioner’s conviction under section 800.04(1) was “based on a non-existent crime.” Id. Since Petitioner’s criminal conviction was overturned, Petitioner has not been found guilty of or convicted of any crime based on the alleged lewd act upon a child.5/ At the time of the final hearing, Petitioner was facing no further criminal charges in this matter. No information or testimony was provided at the final hearing identifying an alternate or more appropriate crime that Petitioner allegedly committed involving the incident with his daughter. The Department, in its Notice to Petitioner, states that the factual basis for its denial of Petitioner’s application was his “inappropriate sexual contact with a child.” To support its determination, the Department cites to Petitioner’s criminal case stating: [Y]ou were criminally charged in Orange County Circuit Court Case No. 2012-CF- 010041-A-O with committing a lewd act upon a child. You were found guilty of the charge in a jury trial. The Department is aware your criminal conviction was reversed by Cobb v. State, 156 So. 3d 581 (Fla. 5th DCA 2015), because of a technical deficiency in the criminal charging document. While the Department acknowledged that Petitioner’s conviction was reversed, the Department maintains that the circumstances surrounding the incident demonstrate that Petitioner lacks the required fitness or trustworthiness to be issued a customer representative license.6/ Consequently, the Department denied Petitioner’s application for licensure. This administrative proceeding followed. The Incident Involving Petitioner’s Daughter Certain facts regarding the incident are undisputed. The child involved is Petitioner’s daughter, A.C.7/ A.C. was five years old at the time of the encounter. Petitioner is married to, but estranged from, A.C.’s mother, H.L. Over the weekend of June 1, 2012, A.C. was visiting Petitioner at his residence. On Saturday evening, June 2, 2012, Petitioner and A.C. were watching television in the room where A.C. slept during her visits. A.C. was wearing pajamas, and Petitioner was wearing short pants. Petitioner and A.C. were sitting or lying on the bed. At some point, the two were engaged in some sort of (non- violent) physical activity, e.g., hugging or light horseplay. The activity ended when Petitioner ejaculated, and A.C. felt the “wet” on the bed, her clothes, and her thighs. A little over a week later, on June 11 or 12, 2012, A.C. told her mother, H.L., that Petitioner had “peed” on her during her visit. On June 14, 2012, H.L. contacted the Florida Department of Children and Families (“DCF”) to report A.C.’s complaints about her encounter with her father. Both DCF and the Orlando Police Department investigated the matter. This investigation eventually led to the criminal charges levied against Petitioner. The principal factual dispute in this matter is how and what caused Petitioner to ejaculate in the presence of and on A.C. A.C.’s Version of the Incident A.C. did not testify at the final hearing. Her story was conveyed through a videotaped interview with a Child Protective Team (“CPT”) interviewer, as well as a transcript of her sworn testimony at Petitioner’s criminal trial.8/ After receiving H.L.’s report of suspected abuse, on or about June 14, 2012, A.C. was interviewed by investigators for DCF and the Orlando Police Department. During these interviews, A.C. stated that Petitioner had “peed” on her and had “humped” her. A.C. also used a teddy bear to physically demonstrate what happened between her and her father. She placed the teddy bear (in place of herself) on her lap between her legs and rocking her legs up and down. On or about June 26, 2012, the Orlando police coordinated with Arnold Palmer Hospital to have A.C. participate in a forensic interview with the CPT. CPT provides assessments to DCF and the police department regarding suspected child abuse or neglect. Brandi Silvia, a senior case coordinator with CPT, interviewed A.C. A video recording of Ms. Silvia’s interview with A.C. was played at the final hearing. Ms. Silvia described her interview with A.C. at the final hearing. Ms. Silvia is experienced in conducting child interviews. Ms. Silvia was trained to act as an unbiased interviewer. To accomplish this goal, she asks open-ended questions to obtain information that the child freely provides to her. Ms. Silvia began her interview by asking A.C. a series of questions to ascertain whether A.C. could differentiate between a true statement and a lie. Ms. Silvia testified that, in her opinion, A.C. knew to tell the truth. Ms. Silvia then questioned A.C. to determine whether she could effectively identify all of her body parts. A.C called her genitals her “pee pee.” During the interview, A.C. described the incident as “my Dad just peed on my bed.” A.C. explained that her father was sitting on the bed with his legs crossed. At some point, he took hold of A.C. and placed her in his lap. He then wrapped his arms around her and rocked his pelvis up and down against her. After a brief moment, A.C. felt something wet on her thighs. A.C. believed that Petitioner had “peed” on her. A.C. expressed to Ms. Silvia that Petitioner “was humping on me. Then, he peed on me and on my bed. And, I said [for Petitioner] to go to the bathroom!” At some point during the “humping” activity, A.C. cried out for Petitioner to “stop!” A.C. further recounted that she told her father that she “didn’t want him to, to do that again, never.” A.C. reenacted for Ms. Silvia how her father had placed her on his lap and “humped” her. During the interview, A.C. commented to Ms. Sylvia that she knew that people were not supposed to touch her “pee pee.” A.C. explained that Petitioner had not touched her “pee pee.” Neither did she see or touch Petitioner’s “pee pee.” A.C. also appeared at Petitioner’s criminal trial on October 7, 2013. A.C. testified that Petitioner touched the front of her body with the front of his body. A.C. stated that Petitioner “humped” her. A.C. described that Petitioner was laying down on the bed with his legs crossed at his ankles, and he moved them up and down. She then felt the bed, and it was wet with “pee.” Petitioner’s Version of the Incident During the course of this matter, from the initial investigation in June 2012, through his criminal trial in October 2013, and ultimately to the final hearing in January 2016, Petitioner offered an evolving explanation of what happened between him and his daughter on the night of June 2, 2012. As detailed below, Petitioner readily admitted the undisputed facts listed above. Petitioner also expressed that his understanding of how he ejaculated on his daughter develops as he continues to reflect upon the event. On June 19, 2012, Petitioner voluntarily provided a videotaped statement, under oath, to Detective Rick Salcedo of the Orlando Police Department as part of its investigation. During the interview, Petitioner refuted much of his daughter’s statement. Petitioner explicitly denied “humping” A.C. He also specifically denied ejaculating or “peeing” on his daughter. Petitioner confided to Detective Salcedo that he believed that his daughter had developed a fascination with peeing. He also intimated that A.C. had a habit of humping objects and even people. Petitioner further disclosed that during A.C.’s last visit to Petitioner’s house, the two “had a whole conversation about pee.” Petitioner, however, had no explanation for why A.C. would accuse him of “humping” her that night. On July 16, 2012, in reaction to A.C.’s interview with Ms. Silvia, Petitioner provided a sworn, written statement to the Orlando Police Department. Petitioner admitted that he was not “trueful [sic] about the situation” during his first interview. In reference to the situation, Petitioner wrote that, “I’ve had no sexual intent toward her, but her sexual actions in this case did cause me to ejaculate. I tried my best to stop her movements and action but I lost control of my ejaculation. After pushing her off my leg repeatedly, she jumped on my legs and her knee or leg caused me to ejaculate.” After providing his written statement, Petitioner sat for a second audio-taped, sworn interview with Detective Salcedo. During this interview, Petitioner presented an expanded, and revised, description of what occurred between A.C. and him while they were lying on the bed. Petitioner revealed that A.C. started straddling him and trying to hump his leg. Petitioner was wearing short pants. However, her skin rubbed his skin around his crotch. During this physical contact, A.C. “hit him the wrong way,” and he became aroused. He “lost control” of the situation and ejaculated. Petitioner surmised that A.C. “was straddling my leg so she probably felt something.” Petitioner told his story for a fourth time at his criminal trial in October 2013. During his testimony, Petitioner denied any lewd contact with his daughter. Instead, Petitioner expressed to the court that he was lying down on the bed, and A.C. was being playful and jumping around. He dozed off and woke up with an erection. Without warning, A.C. jumped on him. Petitioner testified that then he “sat her to the side, and she had calmed down, I believe, at that moment. And, right after that - that’s when I believe she had jumped on me again. And, I was sleeping, and ejaculated.” During cross-examination, Petitioner explained that he was asleep experiencing a wet dream. A.C. jumped on top of him, and he ejaculated when he woke up. At the final hearing, Petitioner admitted to ejaculating in the presence of and on his daughter. Petitioner repeated that he was asleep on the bed. He remembers that he was experiencing a wet dream. He awoke to find his daughter “humping” him. Petitioner described the incident as an “accident” and that he had no criminal or sexual intent. Petitioner denied that he physically touched A.C. in a sexual manner. Petitioner’s position is aptly summarized in his Petition for an Administrative Hearing in which he states that: As I was trying to put her to sleep, I accidentally fell asleep a couple of times without realizing . . . I believe I had a wet dream and was awoken by my daughter jumping on me and saying that I peed on her leg. I am not sure exactly how or when the wet dream or reaction occurred because I was disoriented from waking up. Petitioner conceded that he did not give the whole truth to Detective Salcedo during his first interview on June 19, 2012. Petitioner explained that, at the time of his initial interviews, he did not have a clear understanding of what had happened that night. At the final hearing, Petitioner conceded that he still remains confused by the exact turn of events. Petitioner expounded that: When I looked back and I tried to say well what happened . . . it wasn’t conclusive for me . . . I didn’t really find out to give a clear understanding for myself or anybody else at the time. I just have remembered some things happened. I remembered I was awake at this point. I don’t remember when I went to sleep . . . it was very, very foggy when I remember her actually saying that I had peed on her and I had – I remembered pushing her to remove her. I remember turning over. All of these things that I’ve mentioned. Those are the things I remembered. I think the real issue is the timeframe, and when these things happened is where I was really not sure myself. I was not sure. So, I just explained what I could. At both his criminal trial and the final hearing, Petitioner explained that the incident was exacerbated by several medical conditions from which he suffers. Petitioner represented that nerve pain from a 2010 surgery for a herniated disk causes him to experience increased sensitivity in his groin area. He also has increased sensitivity in his genital region due to a skin condition called folliculitis.9/ Petitioner stated that he has suffered from folliculitis outbreaks since December 2011. As a result, Petitioner experiences increased sensitivity in his groin, more frequent wet dreams, and an inability to control erections. Petitioner further testified that he was just getting over a folliculitis outbreak during the weekend of June 1, 2012. At the final hearing, Petitioner did not present any medical records or a medical professional diagnosis or opinion supporting his claim that his medical conditions cause him to experience increased sensitivity to wet dreams or uncontrollable erections or ejaculation. Following his victory in the Fifth District Court of Appeal, Petitioner was released from prison in November 2014. Shortly thereafter, he began working at an Allstate insurance agency as a telemarketer. He has worked at the agency without incident or consumer complaint. Based on the evidence and testimony presented at the final hearing, Petitioner has not met his ultimate burden of proving, by a preponderance of the evidence, that he is entitled to a license as a resident customer representative. Based primarily on Petitioner’s misrepresentations to law enforcement officials, Petitioner’s actions show that he is untrustworthy. Accordingly, Petitioner lacks the requisite fitness and trustworthiness to engage in business of insurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Financial Services, enter a final order denying Petitioner’s application for licensure as a customer representative in Florida. DONE AND ENTERED this 29th day of April, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2016.
Conclusions Having reviewed the Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Petitioner pursuant to Chapter 408, Part IT, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Notice of Intent to Deny and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4, The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Petitioner’s application for licensure is DENIED. 6. In accordance with Florida law, the Petitioner is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Petitioner is advised of Section 408.810, Florida Statutes. 7. In accordance with Florida law, the Petitioner is responsible for any refunds that may have to be made to the clients. 8. The Petitioner is given notice of Florida law regarding unlicensed activity. The Petitioner is advised of Section 408.804 and Section 408.812, Florida Statutes. The Petitioner should also consult the applicable authorizing statutes and administrative code provisions. The Petitioner is notified that the 1 Filed September 17, 2012 9:38 AM Division of Administrative Hearings cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this /~ day / , 2012. Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_capy of this Final Order was served on the below-named persons by the method designated on this / iy of fy 2012. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Shaddrick Haston, Unit Manager Assisted Living Unit Agency for Health Care Administration (Electronic Mail Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II, Senior Attorney Office of the General Counsel William A. Sweat, Esq. 2018 South Florida Avenue Agency for Health Care Administration Lakeland, Florida 33803 (Electronic Mail) (U.S. Mail) Richard J. Saliba R. Bruce McKibben Informal Hearing Officer Administrative Law Judge Agency for Health Care Administration (Electronic Mail) Division of Administrative Hearings (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity. -- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent for Case No. 2012007833. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. The Respondent waived the right to receive an Administrative Complaint and Election of Rights form for Case No. 2012010596. (Ex. 2) 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 4. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 5. The Respondent’s assisted living facility licenses for Northwest Care Center ] (License No. 7365) and Northwest Care Center III (License No. 8425) are relinquished and cancelled. 6. The Respondent and Ethelene B. Moore, individually, shall not seek licensure nor operate any facility licensed by the Agency for a period of 5 years from the date of execution of this Agreement. 7. Administrative fines and survey fees of $20,500.00 are imposed against the Respondent, but STAYED for purposes of collection as long the Respondent and Ms. Moore not seek any licensure from the Agency. In the event that the Respondent or Ms. Moore seeks licensure from the Agency after the period set forth above, the applicant shall pay $20,500.00 before any application for license can be considered. 1 Filed April 17, 2013 1:30 PM Division of Administrative Hearings 8. The Respondent is responsible for any refunds that may be due to any clients. 9. The Respondent shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Respondent is advised of Section 408.810, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 10. The Respondent is given notice of Florida law regarding unlicensed activity and is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this. 7D day of Mr . 2013. Elizabeth Duddk, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and tne oo ee of wis Final Order was re on the below-named persons by the method designated on this / potas “pe , 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Facilities Intake Unit (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Agency for Health Care Administration (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Thomas J. Walsh II Office of the General Counsel Agency for Health Care Administration (Electronic Mail) George F. Indest UI, Esq. The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 (U.S. Mail) Lynne A. Quimby-Pennock Administrative Law Judge Division of Administrative Hearing (Electronic Mail) NOTICE OF FLORIDA LAW 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until 3 compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
