The Issue The issue in this case is whether Respondent should grant Petitioner's request for licensure by endorsement as a physical therapist pursuant to Sections 486.031 or 486.081, Florida Statutes (1997), and Florida Administrative Code Rule 64B17- (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact It is uncontroverted that Petitioner is 48 years old and of good moral character within the meaning of Section 486.031(1) and (2). Petitioner has been a resident of Florida for 34 years. He is licensed in Florida as a chiropractor and is a graduate of a four-year degree program at Palmer College of Chiropractic ("Palmer College"). Petitioner is board certified as a chiropractor orthopedist and as a chiropractic neurologist. Both board certifications required additional training after graduation from Palmer College. In June 1995, Petitioner attended the University of Health Sciences Antigua School of Allied Health Professionals and received a Bachelor of Science in Physical Therapy from that institution in August 1996. Petitioner traveled to the University of Antigua eight times in two years for education sessions. Each session lasted approximately two weeks. In addition to the hours Petitioner spent at the University of Antigua, Petitioner spent approximately 1,200 hours during an eight-month period at a physical therapy facility associated with the hospital in Antigua. In addition, Petitioner spent approximately 650 hours interning at the Spinal Rehabilitation Institute in Titusville, Florida. The University of Antigua required Petitioner to complete the 1,200 hours at the physical therapy facility and the 650 hours as an intern as part of its educational program. After obtaining a degree in physical therapy from the University of Antigua, Petitioner applied to the State of Colorado to take an examination prepared under the auspices of Profession Examination Services ("PES"). Colorado evaluated Petitioner's education and allowed Petitioner to take the PES exam. Petitioner passed the PES exam and has been licensed as a physical therapist in Colorado since April 11, 1997. On February 9, 1999, Petitioner applied to the State of Florida for a license as a physical therapist. Petitioner received and relied upon application materials provided by Respondent. In particular, Petitioner utilized Respondent's "List of Currently Qualified Credentialing Agencies" to select the International Education Research Foundation (the "Foundation") to evaluate Petitioner's foreign education. The Foundation is the appropriate agency identified by the Board, within the meaning of Section 486.031(3)(b), to determine whether Petitioner has educational credentials equivalent to those required for the educational preparation of physical therapists in the United States. The Foundation gave Petitioner credit for 60 semester hours of physical therapy education including six clinical hours. The Foundation determined that Petitioner has the U.S. equivalent of a Bachelor of Science in Physical Therapy (non-traditional program awarded by nonaccredited colleges and universities). The Foundation prepared its evaluation: . . . in accordance with guidelines developed by several state licensing boards and was completed in close collaboration with a physical therapy consultant. Records from the institution attended showing coursework completed, hours of study and grades earned, were used as the basis for this report. Joint Exhibit 1 at 399. The Board denied Petitioner's application for the following reasons: The applicant does not meet the requirements of Sections 486.031(3)(b) or 486.081(1) . . . and Rules 64B17-3.001(3) and (4) or 64B17- 3.003 . . . in that the applicant does not possess credentials that are deemed equivalent to a bachelor's degree in physical therapy in the United States. At best the applicant's training is a six week lecture series that would constitute a continuing education course. It is not the length and content of a CAPTE approved bachelors or masters in science program in physical therapy that would be the bulk of the final year of training. Denial Order at 1. The actual basis for Respondent's denial has little to do with factual disputes concerning Petitioner's educational hours. As Respondent admits in its PRO: While there may be some factual disputes about Petitioner's educational hours, both in modules and clinical time, these are not really material facts for the [ALJ] to resolve. The real issue is the legal interpretation of . . . Sections 486.031 and 486.081. . . . Respondent's PRO at 5. The findings in paragraphs 12-15 of Respondent's PRO are not material to the real issue concerning the interpretation of Sections 486.031 and 486.081. Respondent does not approve the physical therapy program at the University of Antigua for the educational preparation of physical therapists within the meaning of Section 486.031(3)(a). The record does not show whether the United States Department of Education approves the program. Petitioner has received a diploma from a program in a foreign country within the meaning of Section 486.031(3)(b). The Foundation, as the appropriate agency identified by the Board, has determined that Petitioner possesses educational credentials required for the educational preparation of physical therapists in this country. Petitioner passed the Colorado PES exam in 1997. Petitioner passed a national examination approved by the Board to determine Petitioner's fitness to practice as a physical therapist within the meaning of Section 486.031(3)(a) and (b). Petitioner is entitled to licensure in Florida without examination, pursuant to Section 486.031(3)(c), as provided in Section 486.081. Petitioner passed the PES exam in 1997. The written examination taken by Petitioner for licensure in Colorado was an examination prepared under the auspices of the Professional Examination Services within the meaning of Rule 64B17-3.003. Respondent has long construed applicable Florida Statutes to require an applicant for licensure without examination to pass the requisite national examination and to meet those educational requirements approved by the Commission on Accreditation for Physical Therapy ("CAPTE") in accordance with the requirements of Section 486.031(3)(a). Respondent's legal interpretation of applicable statutes and rules is a legal interpretation rather than a matter within the ambit of agency expertise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request for a license in Florida as a physical therapist pursuant to Sections 486.031(3)(b), 486.031(3)(c), and 486.081. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 13th day of April, 2000. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health Division of Medical Quality Assurance Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William Large, General Counsel Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ann Cocheu, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101A Tallahassee, Florida 32312-1775
The Issue The issue in this case is whether the Department of Health, Board of Massage Therapy, should discipline the Respondent, Meihua Qiu, based on the manner in which she applied for and obtained her license.
Findings Of Fact The Respondent, who was born in China, came to the United States in 2001. She enrolled in Royal Irvin College in California to study massage therapy. She completed a 500-hour course of study and graduated in September 2007. The course of study included classes on HIV/AIDS and prevention of medical errors. In November 2007, she sat for and passed the examination administered by the National Certification Board for Therapeutic Massage and Bodywork (NCBTMB). The Respondent moved to Florida because she had family and friends there. One of her friends knew someone who had gone to the Florida College of Natural Health (FCNH), which is approved by the Board of Massage Therapy (Board). In December 2007, the Respondent went to FCNH’s Pompano campus to determine what was necessary for the Respondent to be licensed in Florida as a massage therapist. When the Respondent arrived at FCNH's Pompano campus on December 21, 2007, the receptionist directed her to see Glenda Johnson, who was the school's student coordinator and functioned as the registrar. The Respondent showed Johnson a copy of her Royal Irvin College diploma and transcript and her NCBTMB certificate, which Johnson reviewed. The diploma and transcript were not official, but the Department does not dispute that they are true and correct. It was not FCNH's normal practice at the time for Johnson to review transcripts to determine how much credit to accept from another school. This was normally done by the school's education department. However, Johnson was acting as the school’s registrar and appeared to have the authority to make the determination; and it was reasonable for the Respondent to believe that Johnson was authorized to do so. Johnson then had the Respondent fill out and sign an application for licensure in Florida by examination based on her 500-hour course of study at, and diploma from, Royal Irvin College and her NCBTMB certificate. Everything in the application filled out and signed by the Respondent was true and correct at that time. Johnson also had the Respondent fill out and sign an FCNH enrollment agreement. Johnson signed the agreement, acting as school registrar, to enroll the Respondent at FCNH. The enrollment agreement included a statement that FCNH would evaluate collegiate and post-secondary training, military experience, or civilian occupations, and that the Respondent would be given appropriate credit, if criteria to measure the value of such training and experience were met, as determined by FCNH. Johnson then gave the Respondent a copy of the April 2003 edition of the statutes and rules governing the practice of massage therapy in Florida and materials for FCNH’s course in Prevention of Medical Errors and brought her to a classroom. There was an instructor in the classroom who explained the materials to the Respondent and answered her questions as she read and studied the materials for about three to four hours. There were other students and staff in the classroom with the Respondent but they were not studying the same materials as the Respondent and the instructor was directing his explanations and answers to questions to the Respondent, not the other students. The Respondent was not tested or graded on what she studied. When the Respondent finished studying the materials, Johnson told her that she had completed the course requirements. The Respondent did not have any reason to doubt Johnson, who was acting as the school’s registrar. Cf. § 1005.04(1)(a) & (d), Fla. Stat. (2012)(a nonpublic, secondary institution accredited by the Commission for Independent Education must disclose to prospective students the transferability of credit to and from other institutions and accurate information regarding the relationship of its programs to state licensure requirements). Actually, even if credit for all other educational requirements for Florida licensure by examination were transferred from the Royal Irvin College, the Respondent was required to complete a ten-hour class in Florida statutes and rules. Fla. Admin. Code R. 64B7-32.003 (Apr. 25, 2007). (Notwithstanding some testimony to the contrary, other mandatory courses of study are not required by rule to be Florida- specific.) Id. Like all other educational requirements for licensure by examination, this class had to be taken in-person, with a faculty member present. Fla. Admin. Code R. 64B7-32.001 (Mar. 25, 1986). Johnson had the Respondent pay $520 for FCNH's tuition and the Board's $205 license application fee. Johnson said she would file the application for the Respondent. The Respondent did not speak to Johnson again or return to FCNH’s Pompano campus after December 21, 2007. At some point in time on or after December 21, 2007, Johnson completed section III of the Florida license application, which is a transfer of credit form, and the Respondent's FCNH transcript. The transfer of credit form indicated that FCNH was accepting: 150 credit hours from Royal Irvin College in the category Anatomy and Physiology (for a course titled Musculoskeletal); 225 credit hours in the category Basic Massage Therapy and Clinical Practicum (for a course titled Neuromuscular Massage); 15 credit hours in the category Theory and Practice of Hydrotherapy (without specifying the course taken); 95 credit hours in the category Allied Modalities (for a course titled Sports Massage); and 3 hours in the category HIV/AIDS (for a course titled HIV/AIDS). The form indicated that to qualify for examination the Respondent needed to take ten hours in the category Statutes/Rules and History of Massage and two hours in the category Allied Modalities (for medical errors prevention) at FCNH. Finally, the form showed the total credit hours for all schools: 150 credit hours in the category Anatomy and Physiology; 225 credit hours in the category Basic Massage Therapy and Clinical Practicum; ten credit hours in the category Statutes/Rules and History of Massage; 15 credit hours in the category Theory and Practice of Hydrotherapy; 97 credit hours in the category Allied Modalities; and 3 credit hours in the category HIV/AIDS. At some point in time on or after December 21, 2007, Johnson also completed a FCNH transcript for the Respondent indicating that the Respondent completed all the credit hours on the credit transfer form (a total of 500 credit hours, including 12 hours having been taken at FCNH), and assigning credits for those credit hours (a total of 25.84 credits, including 0.8 credit earned at FCNH). At some point in time on or after December 21, 2007, Johnson also completed FCNH certificates of completion for the Respondent indicating that the Respondent took and successfully completed FCNH's two-hour class titled Prevention of Medical Errors and 12 hours of FCNH's Therapeutic Massage Training Program (Transfer of License). Johnson sent the Respondent's license application (with $205 fee), Royal Irvin College diploma and transcript, and NCBTMB certificate, together with the documents Johnson completed on or after December 21, 2007. She did not provide copies to the Respondent. The Board received the submission on December 27, 2007. On December 28, 2007, the Board sent the Respondent a copy of her application, without the supporting documentation, and a letter saying the application was incomplete because her driver license number was omitted. The Respondent added the driver license number and re-submitted the application on January 7, 2008. On January 9, 2008, the Board issued the Respondent massage therapy license MA 52312. The Respondent paid Johnson by check. There was no evidence as to what happened to the balance of the money paid to Johnson. No canceled check was produced, and the evidence is not clear if the check was made payable to FCNH or to Johnson. Either way, subsequent events suggest Johnson probably pocketed the difference between the $520 paid and the $205 license application fee. The Respondent's license application included both the representation that the answers and statements in or in support of her application were true and correct and the acknowledgement that any false information on or in support of the application was cause for denial, suspension, or revocation of her license. Although true and correct when the Respondent filled it out and signed it, the Respondent's application was not true and correct as submitted to the Board on her behalf, with the false supporting documentation prepared by Johnson. In December 2011, it came to the attention of Melissa Wade, FCNH's vice-president for Compliance and Institutional Effectiveness, that a number of people were claiming to have graduated from FCNH's Pompano campus based on documentation indicating that they did not complete FCNH's 768-hour course of study that was approved by the Board. Wade investigated and was unable to find any record of the individuals having been students at FCNH. Wade investigated further and discovered discrepancies in the documentation being submitted by those individuals. Wade investigated further and discovered that Johnson never registered these individuals as enrolled students. Johnson was terminated from her employment as registrar for the school. Beginning in January or February 2012, Wade began notifying the Board about the individuals purporting to be FCNH graduates, but who never actually were registered as enrolled students and did not complete the school's Board-approved course of study. As more such individuals were identified, the Board was notified. The Respondent was one of the individuals reported to the Board. At some point in time, the Respondent became aware of the Department’s concerns about the manner in which she obtained her Florida massage therapist license. In October 2012, in an attempt to resolve the Department's issues regarding her license, the Respondent took and successfully completed a Board-approved continuing education (CE) course consisting of six hours of Ethics and Standards, two hours of Preventing Medical Errors, two hours of Laws and Rules Massage Practice, two hours of Pathology of Chronic Conditions for Massage Therapists, and Living with HIV/AIDS. In October 2012, the Department filed emergency suspension orders and administrative complaints against a number of licensees who submitted suspect FCNH documentation with their applications, including the Respondent. Between her licensure and the emergency suspension order, the Respondent practiced massage therapy in Florida. During that time, there were no complaints of any kind against the Respondent either by the Department or any consumer. It was not proven by clear and convincing evidence that the Respondent had any intent to defraud the Department or the Board. However, even assuming that Johnson had at least apparent authority to transfer credit hours from Royal Irvin College and assign FCNH credit, it is clear that the application submitted on the Respondent's behalf by Johnson was supported by documentation that falsely represented that the Respondent took 12 hours of classes at FCNH, including a ten-hour class on Florida statutes and rules and a two-hour class in Prevention of Medical Errors. At the same time, those false misrepresentations were made by FCNH, through its registrar, not by the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Massage Therapy enter a final order dismissing the Administrative Complaint against the Respondent. DONE AND ENTERED this 17th day of June, 2013, 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 17th day of June, 2013. COPIES FURNISHED: Candace Rochester, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Maggie M. Schultz, Esquire Rutledge, Ecenia and Purnell, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 Tallahassee, Florida 32302 Anthony Jusevitch, Executive Director Board of Massage Therapy Department of Health Bin C06 4052 Bald Cypress Way Tallahassee, Florida 32399-3256 Jennifer A. Tschetter, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue for determination is whether Respondent's employment with Petitioner should be terminated.
Findings Of Fact At all times material hereto, Miami-Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within Petitioner's district, pursuant to Article IX, Florida Constitution, and Section 230.03, Florida Statutes. At all times material hereto, Raynard W. Pasteur (Respondent) was employed by Petitioner as a school security monitor at Frank C. Martin Elementary School (Martin Elementary). Respondent began his employment with Petitioner on August 31, 1990, at Palmetto Middle School (Palmetto) as a school security monitor and remained at Palmetto until September 29, 1991. On January 27, 1994, Respondent began working as a school security monitor at Martin Elementary. At all times material hereto, Respondent was a member of the United Teachers of Dade (UTD). As a member of the UTD, Respondent was subject to the collective bargaining agreement (UTD Contract) between Petitioner and the UTD, as well as any Memorandum of Understanding between Petitioner and UTD. On February 2, 1998, a conference-for-the-record (CFR) was held with Respondent. In attendance at the CFR were Respondent; two of his union representatives; Isaac Rodriguez, Director of Petitioner's Office of Professional Standards (OPS); Dr. Jose Carbia, Petitioner's Director of Region V; and Pamela Siplin, Principal at Martin Elementary. The purpose of the CFR was to address Respondent's medical fitness to perform his assigned duties, to review Respondent's records, and to address Respondent's future employment status with Petitioner. Prior to the CFR, Jose Garcia, a clinical coordinator with Petitioner's Employee Assistance Program (EAP), performed an assessment of Respondent. After performing the assessment, Mr. Garcia determined that he had a duty-to-warn situation. The circumstances of a duty-to-warn situation demonstrate that serious bodily harm or injury may result or that there is a threat of serious bodily harm or injury. Having made such a determination, Mr. Garcia contacted his supervisor and discussed the duty-to-warn situation involving Respondent. Afterwards, Mr. Garcia contacted OPS. Mr. Garcia, his supervisor, and OPS subsequently contacted Dr. Carbia. Mr. Garcia informed Dr. Carbia that his (Mr. Garcia's) assessment of Respondent presented a duty-to-warn situation and that potentially bodily harm or injury could be inflicted against certain employees of Region V. Mr. Garcia did not discuss any details with OPS or with Dr. Carbia. An employee's participation in the EAP program is confidential and voluntary. Breach of the confidentiality by a clinical coordinator is permitted when a duty-to-warn situation presents itself in order to warn the affected persons of the threat of serious bodily harm or injury without discussing details of the situation. Under the circumstances, Mr. Garcia was permitted to breach the confidentiality afforded Respondent. A written statement dated February 2, 1998, explaining Petitioner's justification for requiring Respondent to submit to a medical examination, was presented to Respondent. The written statement stated, among other things, the following: This employer [Petitioner] has need to determine your fitness to carry out your assigned duties. Because of your exhibited behavior at the worksite as well as your self reported medical condition, this employer has reason to seek an immediate medical examination which will be considered relative to your future and continued employment with Miami-Dade County Public Schools. According to Ms. Siplin, the principal at Martin Elementary, Respondent's attendance was good and, in most instances, he was cooperative. She never reported any erratic or unusual behavior exhibited by Respondent. As observed by Ms. Siplin, Respondent's behavior at the worksite was acceptable and satisfactory. However, the behavior complained of referred to the Respondent's behavior at the work site as assessed by Mr. Garcia. A finding of fact is made that the written statement dated February 2, 1998, is a sufficient written statement justifying Petitioner's requirement for Respondent to submit to a medical examination regarding his fitness to carry out his assigned duties. At the CFR, a determination was made, among other things, that a medical fitness evaluation, i.e., a fitness-for- duty evaluation, was required. During the CFR, a representation was made to Respondent that Mr. Garcia had spoken to Respondent's psychiatrist because of Mr. Garcia's concern for Respondent and the staff at Martin Elementary; however, Mr. Garcia did not reveal any details of Respondent's assessment to OPS or the Director of Region V. The representation has no effect on the determination that a fitness-for-duty evaluation was required. A finding of fact is made that, regardless of the representation, a sufficient basis existed for such a determination and that it was reasonable and appropriate to require a fitness-for-duty evaluation of Respondent. A fitness-for-duty evaluation is an assessment by a psychologist or psychiatrist to determine whether an employee is psychologically competent to perform his or her job and whether that employee could potentially be a danger to himself or herself, co-workers, or students. The fitness-for-duty evaluation is designed to identify what it would take to get the employee back to work. The employee chooses the medical practitioner to perform the fitness-for-duty evaluation. According to the UTD Contract, when there has been a written statement of the need for an examination, the employee is to choose the medical practitioner from Petitioner's list of State-licensed physicians, psychologists, and psychiatrists. Respondent and his union representatives were provided a list of Petitioner approved psychiatrists and psychologists from which Dr. Larry Harmon, Ph.D., was chosen by Respondent. An appointment was made by OPS for Respondent with Dr. Harmon and was scheduled for February 6, 1998, at 9:00 a.m. At the CFR, Respondent was also placed in an alternative assignment at home during the process of the fitness-for-duty evaluation. Certain directives were given to Respondent during the CFR. The directives were as follows: Keep your scheduled appointment with Larry Harmon, Ph.D. Call Ms. Pamela Siplin at 238-3688, each work day between 7:30-7:40 a.m. and 3:50- 4:00 p.m. Be available at home during work hours for phone calls from your work site. Notify the work site of any appointments that would necessitate your absence from your alternative assignment (home) during work hours. Respondent was advised that failure to comply with the directives would necessitate a review by OPS for the imposition of disciplinary measures, including suspension, demotion or dismissal. At the CFR, Respondent was also provided a copy of Petitioner's Rule 6Gx13-4A-1.21, Employee Conduct and Rule 6Gx13-4C-1.02, Non-Instructional Personnel. Dr. Larry Harmon, Ph.D., conducted the fitness-for- duty evaluation which was administered for approximately nine hours over a three-day period, beginning on February 6, 1998. The evaluation consisted of Dr. Harmon reviewing background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; reviewing Respondent's job description; conducting a clinical interview with Respondent; performing psychological testing of Respondent; consulting with Mr. Garcia of EAP; and conferring with Respondent's parents. Dr. Harmon was unable to consult with Respondent's treating psychiatrist and psychologist. Routinely, Dr. Harmon requests that his patients sign a release and consent for the fitness-for-duty evaluation. The release and consent provides for the exchange and release of information and discussion with OPS, as well as EAP. Respondent signed Dr. Harmon's release and consent and, as a result, Dr. Harmon was able to consult with Mr. Garcia of EAP. Dr. Harmon also attempted to obtain a release from Respondent regarding the exchange of information with Respondent's treating psychologist, Dr. Eve McNanamy, Ph.D., and treating psychiatrist, Dr. Edgar Patino, M.D. In Dr. Harmon's opinion, the outside information from Respondent's treating psychologist and psychiatrist was essential to corroborate Respondent's self-report. However, Respondent refused to sign the release. Respondent did not "like" some of Dr. Harmon's methods or the way Dr. Harmon kept his office. Moreover, Respondent's psychiatrist, Dr. Patino, advised Respondent that he (Respondent) was not required to sign the release and that his (Respondent's) failure to sign could not be held against him. Having reviewed background information provided by Mr. Rodriguez of OPS and background memoranda concerning Respondent's prior criminal activity; having reviewed Respondent's job description; having conducted a clinical interview with Respondent; having performed psychological testing; having consulted with Mr. Garcia of EAP; and having conferred with Respondent's parents, Dr. Harmon formed an opinion as to Respondent's psychological condition. In his report dated March 1, 1998, (Report), Dr. Harmon made the following observations in his "Summary and Recommendations": With respect to diagnosis -- based on clinical interview, mental status examination, psychological test results, collaborative consultation, and review of related written records -- he [Respondent] presents, according to the Diagnostic and Statistical Manual, Fourth Edition (DSM IV), with a probable as follows: Axis I: Clinical Disorders and Conditions Delusional Disorder (297.1), Persecutory Type [emphasis in original] Axis II: Personality Disorders Deferred. [emphasis in original] Axis III: Physical Disorders and Conditions Deferred. [emphasis in original] Given the information with which this psychologist was able to utilize, there is no clear evidence of any severe cognitive or affective disorder which would absolutely prevent him form currently performing any kind of work at all. However, because he was highly guarded and reluctant to share his current life circumstances, history, and current treatment recommendations, it is difficult to rule out the probability of a potential direct threat, especially to coworkers. With respect to his current position as a School Security Monitor II, the job requirements include, but are not limited to, both physical and interpersonal tasks . . . He appears to be capable of performing the physical requirements of the job . . . In addition, he is probably able to perform the non-interpersonal responsibilities of his job description . . . However, individuals with Delusional Disorder may have significant difficulties effectively and objectively performing complex interpersonal job tasks . . . His current symptoms -- clearly consistent with Delusional Disorder -- are likely to cause his thinking to be suspicious and potentially impair his judgement. In fact the DSM IV states that "People with persecutory delusions are often resentful and angry, and may resort to violence against those they believe are hurting them." Based on the above information, there appears to be a potentially significant risk of substantial harm to coworkers based on the following factors: The results of this individualized Fitness for Duty assessment . . . The results of objective psychological assessment, based on current psychological knowledge and assessment tools and techniques, suggest a potential for unpredictable and highly aggressive behavior. A review of prior history [criminal history]. . . A review of current information that suggests he is a current risk based in part on this evaluation as well as upon Jose Garcia's (of the M-D.C.P.S. E.A.P.) report that Mr. Pasteur recently called him and stated, among other comments, that "I am going to stop them." And "I'm just telling you that in case I have to do something." Finally, Mr. Pasteur reports that his psychiatrist's efforts to treat him with medication are obstructed by his unwillingness to follow his psychiatrist's recommendations and so it appears that efforts to reduce or eliminate his delusional thinking are not fruitful which, therefore, maintain the current level potential of significant risk of substantial harm to others. Therefore, because he is considered a potential direct threat and, thus, a significant risk of substantial harm to others, there is insufficient supporting information based on this assessment to clear him to return to work. Therefore, he is considered as the present time not fit for duty. [emphasis in original] His Delusional Disorder appears to seriously impair major life functions such as his social judgement, an essential requirement for his job which requires significant skills to interact effectively in interpersonal interactions. In his Report, Dr. Harmon continued with the following recommendations in his "Summary and Recommendations": In order for Mr. Pasteur [Petitioner] to be eventually cleared to return to work, it is recommended that M-D.C.P.S. support Mr. Pasteur's efforts to reduce and, hopefully, eliminate the probability that he will be a potentially direct threat to others. The following accommodations are recommended in order to assist him to get appropriate and effective treatment so that he may return to work: Provide Mr. Pasteur with at least one month of medical leave, consistent with medical leave benefits and policies for all other employees in his category, so that he may receive appropriate mental health treatment. It is recommended that he follow all of his psychiatrist's recommendations which are designed to reduce the symptoms of his Delusional Disorder to a sufficient extent that he is fit for duty. Participate in psychotherapeutic treatment with Eve McNanamy, Ph.D., his treating psychologist, and follow all recommendations designed to reduce the symptoms of his Delusional Disorder and improve his social judgement and interpersonal functioning to the extent that he is no longer a potentially direct threat and is able to function adequately in the School Security Monitor II position. In order to provide assurance that he is no longer a potentially direct threat and that he is fit for duty, that Mr. Pasteur provide me with a limited Release of Information for all of his mental health professionals which restricts the release of information to those symptoms, behavioral patterns, and treatment compliance issues directly relevant to his Fitness for Duty determination. . . . Because of his likely resistance [to take prescribed antipsychotic medication], and in order to support that his continuation and increased frequency of psychotherapeutic and psychiatric treatment render him fit for duty, it is recommended that Mr. Pasteur sign a Release of Information which enables the Employee Assistance Program to communicate directly with his psychologist and psychiatrist to assist him in getting additional treatment sessions approved, etc. It is recommended that he be re- evaluated for fitness for duty after at least one month to determine the extent to which he is adhering to treatment recommendations, responding to treatment as evidenced by reduced symptoms, displaying symptomoloty which could impair his job performance, and free of symptoms which render him a potentially direct threat to others. Dr. Harmon's fitness-for-duty evaluation was forwarded to Petitioner. On March 3, 1998, a CFR was conducted to address Respondent's medical fitness for continued employment, to review the record, and to address Respondent's future employment status. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; a representative for Dr. Carbia; and Ms. Siplin. Respondent's father was allowed to attend but only as an observer. Prior to the CFR, Respondent was provided a copy of Dr. Harmon's Report and read it. After reading the Report, Respondent requested, and Mr. Rodriguez complied with the request, that no one at the CFR be allowed to review the Report. Respondent was advised that the focus of the CFR was Dr. Harmon's recommendations contained in the Report. During the CFR held on March 3, 1998, Respondent's father interrupted the CFR several times. Finally, Respondent's father was asked to leave the CFR and, unfortunately, the last interruption by Respondent's father caused the CFR to end. A Summary of the CFR dated April 30, 1998, was sent to Respondent. The Summary included, among other things, directives from Mr. Rodriguez which were that Respondent was required to comply with Dr. Harmon's recommendations and to comply within five (5) days of receipt of the Summary. The Summary also advised Respondent, among other things, that Mr. Rodriguez would verify his (Respondent's) compliance with the directives; that, as of March 16, 1998, Respondent's status on Petitioner's payroll record was on leave-without-pay authorized; that Respondent had applied for a medical leave of absence retroactive from March 17, 1998, through May 17, 1998, which complies with one of Dr. Harmon's recommendations; and that Respondent's failure to comply with the directives could lead to suspension or dismissal. By memorandum dated May 20, 1998, Respondent was notified by the executive director of OPS that clearance from OPS was required in order for his return to work. Respondent was further advised that a clearance conference was a requirement for his return to work; that he must schedule a clearance conference before May 27, 1998; and that failure to schedule and/or attend the clearance conference would result in disciplinary action. Respondent failed to comply with the directives given him in the Summary of the CFR dated April 30, 1998. As a result, a CFR was held on June 4, 1998, essentially to address his noncompliance with the directives. The attendees of the CFR on June 4, 1998, were Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and a representative for Dr. Carbia. One of the directives was for Respondent to comply with Dr. Harmon's recommendations; Respondent had complied with only one of the recommendations which was to obtain extended medical leave. At the CFR, among other things, Respondent was directed to make an appointment with Dr. Harmon by a date certain and to obtain a medical leave extension to cover his present absence and future absence to be recommended by Dr. Harmon. By memorandum dated August 4, 1998, from Mr. Rodriguez, Respondent was provided with a written Summary of the CFR held on June 4, 1998. The Summary also contained events that had occurred since the CFR. Mr. Rodriguez indicated in the Summary, among other things, that Respondent had provided notification that he (Respondent) was currently being treated by Dr. Patino; that Dr. Harmon's office had notified OPS that Respondent had scheduled an appointment and had later cancelled the appointment, but had not rescheduled the appointment; that Respondent failed to obtain approved leave and was on non- approved leave status; and that Respondent continued to be in noncompliance with the directives. Mr. Rodriguez again gave Respondent directives in the memorandum of August 4, 1998. The directives were as follows: You [Respondent] are advised of the availability of services from the District's [Petitioner's] support referral service. You must comply with Dr. Harmon's recommendations as stated in his report. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter. You must immediately obtain a Board [Petitioner] approved medical leave of absence to cover the period from 5/19/98 through the necessary recommended time by Dr. Harmon. Mr. Rodriguez further advised Respondent in the memorandum that failure to comply with the directives would compel Petitioner to take further disciplinary action including dismissal. Respondent continued to fail to comply with the directives. As a result, a CFR was held on September 21, 1998. In attendance at the CFR was Respondent and his UTD representative; Mr. Rodriguez; Ms. Siplin; and the personnel director for Petitioner's Region V, Clarence Jones. At the CFR on September 21, 1998, among other things, Respondent indicated that he had not complied with Dr. Harmon's recommendations and had not applied for and obtained an approved medical leave of absence. However, Respondent indicated that he had obtained an appointment with Dr. Harmon which was scheduled for September 25, 1998. Consequently, Respondent requested that he be allowed to keep his appointment with Dr. Harmon, obtain an approved medical leave of absence, and again attempt to resolve the matter after the appointment and a review of his medical evaluation report. Mr. Rodriguez did not agree to Respondent's request, but advised Respondent that his (Respondent's) matter would be forwarded for legal review and possible disciplinary action including suspension or dismissal. Even after the CFR of September 21, 1998, OPS attempted to give Respondent another opportunity to comply with the directives. By letter dated November 9, 1998, the senior executive director of OPS, Dr. Joyce Annunziata, notified Respondent that he was again being provided an opportunity to comply with the directives. The directives in the letter were as follows: You [Respondent] must comply with all of Dr. Harmon's initial recommendations as stated in his March 1, 1998, medical fitness for duty [sic] report. You must schedule an appointment with Dr. Harmon by contacting his office no later than 24 hours from receipt of this letter. You must immediately obtain a Board [Petitioner] approved medical leaves [sic] of absence to cover absences starting May 19, 1998 through the present. (Leave application attached.) Dr. Annunziata further directed Respondent to comply with the above directives within three (3) working days of receipt of the letter. She advised and notified Respondent that his continued failure to comply would be considered gross insubordination and would lead to disciplinary action including dismissal. Respondent failed to comply with the directives given him by Dr. Annunziata. Because Respondent failed to schedule another appointment with Dr. Harmon to provide Dr. Harmon an opportunity to re-evaluate Respondent, Dr. Harmon's initial evaluation remained valid. Respondent remained unfit to return to work. Respondent had a right not to execute a consent and release of information for Dr. Harmon to contact and exchange information with his (Respondent's) treating psychiatrist and psychologist. Such an exchange of information would have immensely assisted Dr. Harmon, and in his Report, Dr. Harmon referred to such exchange of information as essential. Respondent had no understanding that his refusal to sign a consent and release would have such serious ramifications, i.e., dismissal proceedings. Even though lack of information from Respondent's treating psychiatrist and psychologist warrant finding Respondent unfit to return to work, Respondent cannot be disciplined for exercising his right to not execute a consent and release of information. Moreover, this Administrative Law Judge is persuaded that Respondent continued to believe that, as long as he was not refusing to be seen by Dr. Harmon and as long as he was being continually treated by his psychiatrist and psychologist, he (Respondent) could and would be permitted to reschedule his appointment with Dr. Harmon. Respondent did not appreciate the serious ramifications, i.e., dismissal proceedings, of not keeping his appointments with Dr. Harmon. Even at the hearing before this Administrative Law Judge, Respondent continued with his disbelief that failure to reschedule and keep the appointment with Dr. Harmon was such a serious course of action on his part. Respondent presented no medical evidence at hearing to contradict Petitioner's medical evidence and to demonstrate that he is medically fit to return to work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Miami-Dade County School Board enter a final order sustaining the suspension of Raynard W. Pasteur without pay, but not dismissing him from employment, and reinstating Raynard W. Pasteur under the terms and conditions deemed appropriate. DONE AND ENTERED this 23rd day of July, 1999, in Tallahassee, Leon County, Florida. Hearings Hearings ERROL H. POWELL Administrative Law Judge Division of Administrative 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 this 23rd day of July, 1999.
Findings Of Fact Ronald B. Haendiges is a registered general contractor in the State of Florida holding license number RG 0039437. The Respondent was so licensed at all times material to the Administrative Complaint and at the time the Administrative Complaint issued. On May 29, 1981, the Respondent contracted with Mary Raney to put into operation a pool located at 479 East Main Street, Longwood, Florida, for a contract price of $4,025. Said pool had been partially floated out of the ground. The contract between Raney and the Respondent specifically provided that the Respondent would perform the following: Knock off existing tile; Reform beam; Reset new level of skimmer; Pressure-test existing plumbing and repair as needed (but not to exceed $300 of extra cost); Reform new deck area (450 square feet) Fill as needed; Place wire mesh in new deck area and pour new deck; Retile waterline, 6 by 6 bullnose; Re-(illegible) cracked area on bottom of pool; Recement pool with Pool-tight; Put cool deck topping on new deck area; Reform and pour new steps and tile step edge with matching tile; Replace pump and motor with new comparable. The Respondent commenced work in workmanlike fashion on or about May 29, 1981. As work progressed on the pool, he received various payments from Raney in accordance with their contract. The Respondent received a total of $2,750 of the $4,025 contract price. On or about July 13, 1981, the Respondent, nearing completion of his work, filled the swimming pool with water. At that time, additional cracks and leaks developed in the sides and bottom of the Raney pool. when these cracks developed, Raney refused to pay any of the balance of the contract price, or a total of $1,275. At that time, all work covered under the contract was completed, to include reinforcing the cracked areas with steel, except that the pool deck had not been poured. A square hole at one end of the pool and a larger area at the shallow end had not been finished. The cracks in the pool were created when the pool was filled with water because a void had been created beaten the bottom of the pool and the foundation of the pool when the pool floated up out of the ground. when the weight of the water was placed in the pool, it broke out the bottom of the pool. The problem with this void was not anticipated by Raney, the pool's owner, or the Respondent. Harvey's Bobcat Service provided fill dirt and labor to the Respondent for repairs on the pool, which were not paid for, and a lien of $382 was filed against the Raney property. Dove Henson performed marcite work and pool decking on the Raney pool for the Respondent. The Respondent was to pay Henson $400 for the work performed and, as of the date of the hearing, had not done so. The Respondent purchased Pool-tight on two occasions from Contractor's Supply of Orlando, Florida. On July 8, 1981, the Respondent purchased $275.60 worth of Pool-tight. On July 11, 1981, the Respondent purchased another $78 worth of Pool-tight from Contractor's Supply. On July 10, 1981, the Respondent paid $275.60 on this bill. This left a remaining balance of $78 due Contractor's Supply, which was not paid. Raney subsequently contracted with another contractor to repair the pool's bottom. This contract between Mary Raney and Reid Baker provided that Baker would perform the following work for a contract price of $2,780: Remove cracked bottom; Install or replace dead line and rock bottom and steel; Re-Gunite bottom and walls where necessary; Check all piping and repair; Marcite entire pool; Furnish and install grab rails; Recoat cool deck where necessary for a first-class job; Reinstall owner's filter, pump, valve, etc.; Clean up pool debris. The contract between Raney and the Respondent did not call for the replacement of the bottom of the pool, and the replacement of the bottom of the pool was not anticipated in said contract. The standard building code of the City of Longwood requires that a contractor obtain a building permit prior to construction or repair of a pool.
Recommendation Having found the Respondent, Ronald B. Haendiges, not guilty of violating Section 489.129(1)(h), Florida Statutes, the Hearing Officer recommends that this charge be dismissed. Having found the Respondent guilty of violating Section 489.129(1)(d), Florida Statutes, by failing to obtain a permit as required by the local building codes, the Hearing Officer recommends that the Respondent receive a letter of reprimand. DONE and RECOMMENDED this 15th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1983. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Ronald B. Haendiges Post Office Box 388 Winter Park, Florida 32790 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact The parties stipulated that Petitioner's Exhibit number 1, which is the Florida Construction Industry Licensing Board official records as they relate to Millard P. Hill, Jr., should be received into evidence. The parties noted further that there is little dispute as to facts, however, the Respondent contends that there is no diversion of funds based on the facts of this case. On June 10, Respondent advised Petitioner that he wished to qualify Master Pools, a corporation which he had applied to Petitioner to qualify as the name under which his pool contracting would be done to reflect the name H. B. Patten, Inc. as the name under which said contracting would be done. Petitioner changed its records to show this change. On July 12, Respondent entered into a contract with Manuel and Anna Bueno for a pool to be built at 6960 Northwest 4th Place, Margate, Florida, for a sum of $5,665. See Petitioner's Exhibit number 2 received into evidence and made a part hereof by reference. Anna Bueno testified that a hole was dug and tar paper and steel bars were erected in the hole and the work was abandoned thereafter. Prior to abandonment, the Bueno's paid approximately $4,100 to Patten Pools. To complete the construction, the Bueno's used Hallmark Pools to finish the pool which required an additional sum of approximately $5,000. As can be seen, this is approximately $3,300 over and above the contract price. The evidence also reveals that Patten Pools, Inc., through Millard P. Hill, applied for and obtained a permit for the construction of the pool for the Bueno's on August 5. See Petitioner's Exhibit number 3, received into evidence and made a part hereof by reference. On April 24, Mr. and Mrs. Edward Eskie entered a contract with Respondent for the erection of a swimming pool on their property located at 1525 Southeast 14th Court, Deerfield Beach, Florida for $6,786.00. See Petitioner's Exhibit number 4 received in evidence and made a part hereof by reference. Mr. Eskie testified that the excavation for the pool began on May 20, and on June 2 gunite services were complete. On July 9, he received a letter from Crockett- Bradley, Inc. a gunite subcontractor, indicating that it was filing a lien for $1,312 against the Eskie's property for services performed. The building permit for the Eskie project was obtained by Respondent on June 10. See Petitioner's Exhibit number 7 incorporated herein by reference. Edward Eskie paid Respondent approximately $4,778 and $1,312 was paid to Crockett-Bradley, Inc. to satisfy the lien which was placed against their property. The Eskie's completed their pool by payment of an amount in excess of $4,000 to another pool contracting firm. Prior to completing the pool and after the Respondent abandoned the project, Edward Eskie made numerous attempts to contract Respondent by phone to no avail. On June 27, Respondent entered a contract with Orlando Gonzalez for a pool to be built at his residence located at 353 Northwest 22nd Street, Boca Raton, Florida for $9,000.00. See Petitioner's Exhibit number 8 which was received and made a part hereof by reference. Orlando Gonzalez paid Respondent $3,600 through his bank toward the contract price. For that payment, Respondent dug a hole and the project was abandoned. After work was abandoned, Gonzalez made repeated attempts to contact Respondent to no avail. To complete the project, he paid another contractor approximately $6,000. On April 18, Respondent entered into a contract with Howard and Sheila Siclari for a pool to be built at their home located at 7812 Northwest 67th Avenue, Tamarac, Florida, for the sum of $4,280. To commence the construction, Respondent obtained a building permit on June 18, 1975. See Petitioner's Exhibits number 9 and number 10 received in evidence and made a part hereof by reference. The Siclari's paid Respondent $3,456.75. Thereafter they completed the work which cost them an additional $2,500 and they did most of the work themselves. James T. Anglen, a pool salesman for Patten Pools testified that he was initially employed by Master Pools until June, 1975. A reference to Petitioner's Exhibit number 1 indicates that Master Pools registered as Brian Sales Corporation as the first entity that Respondent registered with Petitioner on January 1, 1974. He was a superintendent of Patten Pools in June, 1975 when he commenced employment with Patten. He acknowledged that he received money from the Bueno's which was transmitted to Patten Pools. He also acknowledged that the Bueno's were probably hurt most of all the complaining parties in this case. Respondent discovered that its cash flow was short approximately $40,000 to $50,000 and that that amount in checks were floating with insufficient funds to cover them. He commenced efforts to try to straighten out the firms cash flow and that for a while the bank worked along with him. Anglen also acknowledged the abandonment of the Gonzalez project. He further acknowledged that monies received from projects were used to cover deficiencies on other projects to continue Respondent's operations.
Findings Of Fact Roland H. Gaines has been registrar for Florida A&M University since 1990. Mr. Gaines has worked at Florida A&M University in the registrar's office continuously since 1968, serving as supervisor of records and registration, assistant deputy registrar, assistant registrar and, currently, registrar. Mr. Gaines is the sole incorporator, director and officer of International Evaluation Consultants, Inc., which is the Petitioner in this case. Florida A&M University has a physical therapy program approved by the American Physical Therapy Association. Mr. Gaines is familiar with the licensing requirements established by the Board of Physical Therapy, and has evaluated numerous transcripts of foreign students applying to Florida A&M University in order to determine their eligibility to take the physical therapy examination. Mr. Gaines has evaluated over 100 foreign transcripts in order to determine if the applicants met the requisite criteria to take the licensing examination of the Florida Board of Physical Therapy. A portion of the evaluations mentioned in Paragraph 4, above, were submitted by Mr. Gaines in his individual capacity as distinguished from evaluations Mr. Gaines performed for Florida A&M students as registrar of the university. Because of the differences in the manner of their submission, the Board was aware that Mr. Gaines had evaluated such transcripts in his individual capacity. None of the evaluations submitted by Mr. Gaines were returned as being incomplete or incorrect. Subsequent to Marvin Harris becoming executive director of the Board of Physical Therapy, the question of Mr. Gaines submitting evaluations of non- students was brought to the attention of the University, and Mr. Gaines was requested to stop this practice in his individual capacity because of Harris' complaint. Mr. Gaines incorporated as International Evaluation Consultants, Inc., and requested the Board for designation as a recognized evaluator of the educational credentials of foreign students. The Board denied the Petitioner's request for certification as an evaluator stating that the Petitioner did not meet the standards of Rule 21MM- 3.001(3), Florida Administrative Code. The Board's denial does not specifically indicate which of the standards the applicant fails to meet. The Board did not explicate the standards used by the Board in assessing the three (3) agencies named in Rule 21MM-3.001(3), Florida Administrative Code.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: that the Board designate the Petitioner as an evaluator of the credentials of foreign graduates to determine if they have education and training equivalent to a bachelor's degree in physical therapy. DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Florida. STEPHEN F. DEAN, 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 2nd day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-464 The proposed findings of the parties were read and considered. The following states which of these findings were adopted, and which were rejected and why: Petitioner's Findings: 1 through 3. Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Subsumed in paragraphs 3 and 5. Adopted in paragraph 6. 10.-13. Subsumed in paragraph 5. Rejected as hearsay. Adopted as paragraph 7. Respondent's Findings: Adopted as paragraph 8. Adopted as paragraph 9. 4.-10 Preliminary Statement. Adopted as paragraph 11. Adopted as paragraph 1. Conclusion of Law.- COPIES FURNISHED: Cecil E. Howard, Esquire 320 Williams Street Tallahassee, Florida 32303 Michael A. Mone', Esquire Assistant Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris, Executive Director Board of Physical Therapy Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0789
The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
The Issue Whether Respondent's license as a pool contractor should be disciplined and, if so, what penalty to recommend.
Findings Of Fact At all times relevant hereto John A. Bennett, Respondent, was licensed by the Florida Construction Industry Licensing Board as a residential pool contractor, having been issued license number RP 0033592. He is the qualifying contractor for Quality Pools and Products, Inc., 2912 Forest Wood Drive, Seffner, Florida 33584 (Exhibit 2). On or about January 25, 1988, Evelyn L. Dittmer and James W. Dittmer entered into a contract with Quality Aquatech Pools & Spas (Quality Pools), 1500 N. Parsons Avenue, Brandon, Florida, to replace the liner and repair the bottom of the pool (Exhibit 5). This contract was signed by the Dittmers and Andy Priess, presumably the foreman of Quality Pools. The Dittmers never met Respondent, but they "understood" he owned the pool company. Printed on the bottom of Exhibit 1 is Respondent's state registration number. Employees of Quality Pools arrived on the site and removed the old liner. At this time, the bottom of the pool was in bad shape, but the workers attempted to replace the liner without repairing the bottom of the pool. They were stopped from replacing the liner and departed as they had brought no equipment with which to repair the bottom. Workers returned for the next several days to attempt to repair the bottom of the pool. Due to excessive ground water entering the pool, this task was onerous. The initial contract provided that if it became necessary to establish well points to keep excess water out of the pool, an additional fee of $200 would be required. The Dittmers paid this fee, but well points were not established. An addendum to the contract was prepared for additional work needed to get the bottom of the pool back in shape (Exhibit 1) and was signed by John A. Bennett. This provided for an additional payment of $600, but was not accepted or signed by the Dittmers. The new liner was ultimately installed, but was torn in the process and the unnatural hole in the bottom of the pool was not repaired. Although the Dittmers had paid Quality Pools the full contract price of $2700, which included a $200 charge for installing well points, the work was never satisfactorily completed, and Quality Pools failed to perform the work for which they had contracted. The project was finally abandoned by Quality Pools, and two of the pumps used to dewater the pool were left on the site. At no time did anyone from Quality Pools obtain a permit from Sarasota County where this work was done, and Quality Pools was not licensed to work in Sarasota County (Exhibit 3). After it became evident Quality Pools would not complete the repairs for which they had contracted, the Dittmers hired another contractor to whom they paid an additional $2945 to restore the pool to an operating condition (Exhibit 7).
Recommendation It is recommended that the charges against John A. Bennett arising out of the contract between the Dittmers and Quality Aquatech Pools & Spas be dismissed. RECOMMENDED this 5th day of January, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4839 Proposed findings submitted by Petitioner are accepted with the exception of findings 3, 4, 5, 6, 7, 8, 11, 13, 14, 15, 16 and 17 which are rejected for the reason that the evidence submitted does not show Respondent to be the owner or qualifying contractor of Quality Aquatech Pools and Spas with whom the Dittmers contracted. Findings of fact cannot be founded in uncorroborated hearsay evidence not admissible over objection in civil proceedings. COPIES FURNISHED: Andrea Bateman, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Michael S. Edenfield, Esquire 206 E. Mason Street Brandon, FL 33511 John A. Bennett 1500 Parsons Avenue Brandon, FL 33511 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 N. Monroe Street Suite 60 Tallahassee, FL 32399-0792 =================================================================
The Issue The issue in this case is whether Petitioner should be assessed sales and use tax as set forth in the Notice of Reconsideration dated April 13, 2007.
Findings Of Fact On April 13, 2007, the Department issued a Notice of Reconsideration to Total Health and summarized the relevant facts of the case, which it stated was based on information from the audit file, correspondence from Total Health and other available information. In its Petition for Formal Protest under Administrative Procedures Act, Chapter 120, Florida Statutes, Total Health stated that the facts are not in dispute and agreed to the facts as summarized by the Department in the Notice of Reconsideration. Those facts are set forth in paragraphs 2 and 3 below. Total Health is a private health and fitness club in Tampa, Florida. Total Health charges its members $30 per month for unlimited use of the club. Members of the club are only allowed to meet approved personal trainers at the club. Personal trainers are not allowed on the club’s premises without the club’s express approval. Approved personal trainers contract with Total Health and are provided the following rights. The trainers have the right to use the club’s facility to perform training services. Total Health designates the trainers as approved personal trainers. Total Health controls all aspects of the trainers’ access to members. Trainers have access to the club’s membership list; however, the trainers must be introduced to prospective clients by Total Health. Total Health is required to promote the trainers’ services to the members. The trainers are given an exclusive license (or franchise) to use the club’s tradename, logos and business systems (membership list). Total Health entered into oral contracts with individual personal trainers, who acted as independent contractors. In these contracts, Total Health splits the fees that are billed to club members for the services of the personal trainers. Total Health also entered into a written contract with a corporation, Body Design, which provides the personal trainers. Body Design pays a fixed fee per month to Total Health. The contract with Body Design was referenced in the Notice of Reconsideration, but the contract was not entered into evidence. The personal trainers have access to the workout areas with the exception of the aerobics area and child care areas. Personal trainers may train members at Total Health, but may also train members at the members’ homes. In the case of the individual independent contractors, the trainers are on the “honor system” about splitting fees that they receive from the members trained in the members’ homes. The Department assessed a tax of $20,952.46 for the period of October 10, 2001, through September 30, 2004, plus interest. As of April 13, 2007, the tax and interest amounted to $28,460.90.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered assessing a tax against $30 per month per trainer for the period of the audit and assessing interest based on the recalculated amount. DONE AND ENTERED this 30th day of November, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of November, 2007.
Findings Of Fact Atlas Pools, Inc., contracted with Mr. and Mrs. Jerry Thompson in May, 1978, to construct a swimming pool on the Thompson property for a completed price of $5,940. Work ceased in mid-July, 1978, by which time the Thompsons had paid Atlas Pools $5,643. The Thompsons hired another pool contractor to complete the project at additional cost in excess of $2,000. Atlas Pools contracted with Mr. and Mrs. Dennis Perry in June, 1978, to construct a swimming pool on the Perry property for a completed cost of $5,770. Work ceased in late July, 1978, after the Perrys had paid Atlas Pools $5,474.50. The Perrys completed the project through self-help and use of another pool contractor at a further cost of $1,566. Atlas Pools contracted with Mr. and Mrs. Thomas Wolters in June, 1978, to construct a swimming pool on the Wolters' property for a completed cost of $6,980. Work ceased in mid-July, 1978, after the Wolters had paid Atlas Pools $6,631. The Wolters completed the pool through self help at an additional cost in excess of $1,300. Atlas Pools contracted with Mr. and Mrs. Albert Sentman in June, 1978, to construct a spa on the Sentman property for a completed cost of $5,500. The Sentmans paid Atlas Pools a $550 deposit after which the spa was delivered but not installed. The Sentmans completed the project by other means at an additional cost of $6,137. Respondent abandoned each of the above projects without notice to the customer, who ultimately learned of the company's bankruptcy from a third party source. Each of the four projects described above was completed at a final cost to the purchaser in excess of $900 over the contract price. The company filed a Voluntary Petition of Bankruptcy with the U.S. District Court, Middle District of Florida, on August 1, 1978. Thereafter, on March 7, 1979, the Brevard County Contractors Licensing Board revoked the certificate held by Atlas Pools for a minimum period of one year, with the requirement that financial rehabilitation be demonstrated as a condition of reinstatement. At the time of bankruptcy, Respondent was president of Atlas Pools, Inc., and owned one-third of the stock. He was, at all times relevant to this proceeding, the company's only licensed pool contractor. He is currently employed in pool construction work by a licensed contractor. Proposed findings of fact were submitted by the parties. To the extent these proposed findings have not been adopted herein or are inconsistent with the above findings, they have been specifically rejected as irrelevant or not supported by the evidence.
Recommendation Based on the foregoing, it is RECOMMENDED: That Pool Contractor's License No. RP 0018040 issued to Crawford L. Grove, be suspended until Respondent demonstrates compliance with the financial responsibility standards established by Section 489.115, Florida Statutes (1979). DONE AND ENTERED this 29th day of October, 1980, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of October, 1980.
