The Issue The issue in this case is whether Respondent's certification as a firefighter should be revoked.
Findings Of Fact Respondent, James F. Mathis, is a certified firefighter. On April 7, 1997, Respondent pled guilty to the charge of unlawful sexual battery upon a child under the age of 16, contrary to Section 800.04(3), Florida Statutes. Respondent was sentenced to 180 days in jail, ten years' probation, no contact with the victim, no allowance for early termination of probation, admission to sex offender treatment, and payment of court costs. However, adjudication was withheld. Respondent presented evidence to show: the factual basis for the charge; his rehabilitation; the unlikelihood of a repeat offense; how his plea of guilty came to Petitioner's attention; Respondent's dedication and commitment to quality service as a firefighter; the quality of Respondent's service as a firefighter; and the desire of the Bayshore Fire Protection and Rescue Service District and the local community to have the benefit of Respondent's services as an employed firefighter. Petitioner did not contest Respondent's evidence but took the position that the evidence was irrelevant. As reflected in the Conclusions of Law, it is agreed that the evidence was irrelevant, and no additional findings are necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order revoking Respondent's certification as a firefighter. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 20th day of October, 2000. COPIES FURNISHED: Terrence F. Lenick, Esquire Post Office Box 430 Bonita Springs, Florida 34133 James F. Mathis 11260 Shirley Lane North Fort Myers, Florida 33917 Lisa S. Santucci, Esquire Department of Insurance 200 East Gaines Street 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Bill Nelson, State Treasurer and Insurance Commissioner The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
Findings Of Fact Based upon the oral and documentary evidence adduced at the Final Hearing and the entire record in this proceeding, the following findings of fact are made: On March 3, 1994 Petitioner submitted to the Department an application for licensure as a Limited Surety Agent (Bail Bondsman). In a Denial Letter dated July 20, 1994, the Department notified Petitioner that his application for licensure was denied. The basis for the Department's denial of Petitioner's application was Petitioner's past felony convictions. The evidence established that on or about December 4, 1980, Petitioner was charged in the Circuit Court for the Twelfth Judicial Circuit of Florida, Case Number 80-105 (the "First State Case"), with trafficking in illegal drugs and the use of a firearm during the commission of a felony in violation of Sections 893.135 and 790.07, Florida Statutes. On June 5, 1981, Petitioner pled no contest in the First State Case to trafficking in excess of two thousand (2,000) pounds, but less than ten thousand (10,000) pounds of cannabis. Petitioner was fined and placed on probation for ten (10) years. On or about June 14, 1981, Petitioner was charged in the United States District Court, Southern District of Florida, Case Numbers 83-6033-CR-EPS and 83-6038-CR-NCR (the "Federal Cases"), with five felony counts of possession with intent to distribute illegal drugs and conspiracy to import illegal drugs into the United States of America, in violation of Title 21, Sections 841(a)(1), 846, 952(a), 960(a), 963, and 843(b), United States Code. On or about November 5, 1981, Petitioner was charged in the Circuit Court for the Twentieth Judicial Circuit of Florida, Case Number 81-1191 CFG (the "Second State Case") with violation of the Florida Racketeer Influence and Corrupt Organization Act ("RICO"), Section 943.462, Florida Statutes. Although the exact timing is not clear, at some point after his arrest, Petitioner began cooperating with authorities which led to plea bargains and a sentence which did not include any jail time. On April 4, 1984, Petitioner pled guilty to one count in each of the Federal Cases to attempt and conspiracy to import marijuana and methaqualaudes into the United States of America. As a result of his plea in the Federal Cases, Petitioner was fined and placed on 5 years probation. On April 6, 1984, Petitioner pled guilty in the Second State Case, was fined $7,500.00 and placed on probation for fifteen (15) years. This plea was negotiated as part of the plea in the Federal Cases. Petitioner's probation from the First State Case was terminated May 20, 1988. Petitioner's probation from the Federal Cases was terminated on April 21, 1989 and September 11, 1989. Petitioner's civil rights were restored pursuant to Executive Orders of the Office of Executive Clemency dated May 19, 1989 and May 23, 1990. It is not clear from the record if the Executive Orders constitute a "full pardon" as suggested by counsel for Petitioner at the hearing in this matter. Petitioner down plays his role in the elaborate criminal scheme that led to his arrests and convictions. He suggests that all of the charges were related to the same scheme. Insufficient evidence was presented to reach any conclusions regarding the underlying criminal activity and/or Petitioner's exact involvement. Petitioner has been very active in community affairs since his convictions. He has apparently been a good family man and claims to have rehabilitated himself. Subsequent to his conviction, Petitioner and three other investors started a bail bond business. Petitioner claims he did not play an active role in the business. However, when the Department learned of his involvement, it required Petitioner to terminate any affiliation with the company. Petitioner's wife currently owns a bail bond company. Petitioner operates a "court services" business out of the same building where his wife's bail bond business operates. No evidence was presented of any improper involvement by Petitioner in his wife's business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a Final Order denying Petitioner's application for licensure as a Limited Surety Agent. DONE AND RECOMMENDED this 2nd day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4893 Rulings on the proposed findings of fact submitted by the Petitioner: Subordinate to findings of fact 4 through 10. Subordinate to findings of fact 13. Rejected as unnecessary. Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in the Preliminary Statement. Rejected as vague and unnecessary. Subordinate to findings of fact 14 and 15. Subordinate to findings of fact 14 and 15. Rulings on the proposed findings of fact submitted by the Respondent: Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 2 through 10. Subordinate to findings of fact 14. Rejected as argumentative and unnecessary. COPIES FURNISHED: Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Dan Sumner Acting General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, FL 32399 Julio Gutierrez, Esq. 2225 Coral Way Miami, FL 33145 Allen R. Moayad, Esq. Florida Department of Insurance and Treasurer 612 Larson Building 200 E. Gaines Street Tallahassee, FL 32399-0300
Findings Of Fact By information dated March 30, 1979, respondent gas accused of forging a prescription for 20 tablets of Biphetamine and of "feloniously acquir[ing] or obtain[ing], or attempt[ing] to acquire or obtain possession of a controlled substance, to-wit: Amphetamine" by means of the forged prescription, on or about December 13, 1978. Respondent's exhibit No. 1. On June 20, 1979, respondent was convicted, on the basis of his guilty plea, of forgery and of obtaining a controlled substance by fraud; concurrent sentences of two years' imprisonment for each offense were imposed, but respondent was placed on probation. Department's exhibits Nos. 2 and 3.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint. DONE and ENTERED this 14th day of May, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael I. Schwartz, Esquire Raymond LaPorte, Esquire Suite 201, Ellis Building 408 Madison Street 1311 Executive Center Drive Tampa, Florida 33602 Tallahassee, Florida 32301 Nancy Kelley Wittenberg, Geraldine B. Johnson, R.N. Secretary Investigation & Licensing. Department of Professional Regulation Coordinator 2009 Apalachee Parkway Board of Nursing Tallahassee, Florida 32301 111 Coast Line Drive East Suite 504 Paul I. Perez, LPN. Jacksonville, Florida 32202 2301 W. Kirby Tampa, Florida 33804
Findings Of Fact Under the provisions of Chapter 494, Florida Statutes, the Department is charged with the responsibility and duty of administering and enforcing the provisions of said chapter, which includes the duty of granting or denying an application for a mortgage broker license, as set forth in Section 494.037, Florida Statutes. Applicant is a resident of the State of Florida and has a present address at 2400 North Ocean Boulevard, Fort Lauderdale, Florida 33305. On November 26, 1985, Applicant submitted a partially completed Application for Registration as a Mortgage Broker (hereinafter Application), under the provisions of Chapter 494, Florida Statutes. From the Application, Applicant was born March 19, 1935. He is a citizen of the United States and is a resident of the State of Florida. The files of the Department indicate that Applicant is not now and never has been granted a license as a mortgage broker by the Department. On February 28, 1986, the Department entered a Final Order Denying the Application for Registration as a Mortgage Broker and Notice of Rights against Applicant (hereinafter Denial Order). Applicant timely requested a hearing and William J. Kendrick, Hearing Officer, was assigned to preside over these proceedings. An administrative hearing was held on August 18, 1986, and on October 22, 1986, said Hearing Officer entered a Recommended Order recommending that Applicant's Application be approved. The Department has reviewed the Hearing Officer's Findings of Fact and adopts and incorporates them by reference with two minor exceptions which are discussed in the Conclusions of Law section herein.
Findings Of Fact Petitioner Victor Rudolph Cobham made application for filing for examination as a Life and Health Agent on February 12, 1987, (hereafter, "application"). Question 8 of that application and Petitioner's answers thereto read as follows: Have you ever been charged with a felony? Yes If YES, give date(s): Dec. 16, 1983 What was the crime? Possession of cocaine & cannabis Where and when were you charged? Dade County, Dec. 16, 1983 Did you plead guilty or nolo contendere? Nolo Contendere on Appeal Were you convicted? Yes - Conviction reversed by 3rd District Court of Appeal Was adjudication withheld? See attachments to application Please provide a brief description of the nature of the offense charged. See attachments to application If there has been more than one felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. In response to the above question 8 Petitioner listed no other charges, convictions, or pleas, however he had, in fact, been charged on at least three other occasions. Petitioner was charged by an August 3, 1978 Information with possession of a controlled substance (cocaine), possession of cannabis in a felony amount, and possession or sale of a controlled substance implement (paraphernalia) in Case No. 78-7960 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. All of these charges were felony charges. Petitioner plead guilty to all charges. Adjudication of guilt was withheld. Petitioner was also charged by a September 18, 1978 Information with failure to redeliver a hired vehicle (rental car) in Case No. 78-10543 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, which charge constitutes a felony. Petitioner pled guilty. Adjudication was withheld. In 1967, Petitioner was also charged with passing a worthless bank check but the charges were dropped because the check was paid. Whether this was a felony or misdemeanor charge is not clear. On March 31, 1987, the Insurance Commissioner denied Petitioner's application to sit for the insurance agent's examination due to this failure to divulge in his responses to question 8 of his application the facts contained in findings of fact 4-6, supra. Petitioner's position was that he had subconsciously omitted the information on the two 1978 charges due to the lapse of time and that since these charges did not result in any "convictions" no fraud was committed by him in failing to disclose them in response to question 8 of the application. He further asserted that because the Third District Court of Appeal reversed his conviction in the 1983 case, he had a "clean record." He offered no specific explanation for failing to reveal the 1967 charges except that with respect to all charges, he also asserted that he had assumed the agency would do an extensive background check as a result of his admission concerning the 1983 charge and would therefore discover all the charges prior to 1983 as well. Having weighed the credibility of Petitioner's testimony; the undersigned finds that Petitioner committed a material misstatement, misrepresentation, and fraud upon his application and that his reasons for his misstatement, misrepresentation and fraud are neither logical nor credible as mitigation therefor. Petitioner was previously a licensed insurance agent but has allowed his licensure to lapse. He has worked in insurance in one way or another for most of his adulthood. He is now an articulate 56 year old man who has completed two years of college. By education, training, and experience, Petitioner knows the difference between a charge and a conviction. Question 8 on the application requested that he list and explain all charges, not just convictions. It asked for types of pleas entered and whether adjudication had been withheld, thereby giving Petitioner every opportunity to explain the status of his record. Petitioner is knowledgeable about the various nuances of the judicial dispositions of each of the charges brought against him, and his failure to reveal them on his application can only be construed as deliberate misstatement, misrepresentation, and fraud.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Insurance and Treasurer enter a final order denying Petitioner's application for filing for examination as a Life and Health Agent. DONE and RECOMMENDED this 10th day of September, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1987. COPIES FURNISHED: William Gunter Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Angelo A. Ali, Esquire 400 Roberts Building 26 West Flagler Street Miami, Florida 33130 Lealand L. McCharen, Esquire Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32399-0300 =================================================================
Findings Of Fact On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a final order granting the Petitioner's application for licensure as a limited surety agent (bail bondsman). DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 4th day of June, 1996. COPIES FURNISHED: Alvie Edwards, pro se 1544 Bay Street Southeast St. Petersburg, Florida 33701 Dickson E. Kesler, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent's certification as a Firefighter II Compliance should be permanently revoked for the reasons stated in the Administrative Complaint (Complaint), dated June 6, 2018.
Findings Of Fact The Department is the state agency responsible for licensing and regulating firefighters in the State. Respondent is certified in Florida as a Firefighter II Compliance. He holds Certificate No. 139586. Until the incident underlying this controversy arose, Respondent was employed by the Sarasota County Fire Department as a firefighter/paramedic. He now is working in the emergency room of a local hospital. The parties have stipulated that on March 21, 2018, Respondent entered a plea of nolo contendere to aggravated assault with a weapon, a third-degree felony punishable by imprisonment of one year or more under Florida law. Adjudication was withheld, Respondent was placed on probation for a period of two years, and he was ordered to pay court costs, fines, and fees in the amount of $1,525.00. See also Dep't Ex. 19. In response to the Complaint, Respondent essentially argues that: (a) he should not have been charged with the underlying criminal offense because he was defending himself against an aggressor in a road rage incident, and (b) he entered a nolo contendere plea based on bad advice from his attorney. At hearing, Respondent gave his version of the events resulting in his arrest. Also, two police officers involved with his arrest testified to what they observed and reported. Their testimony conflicts in many respects with Respondent's testimony. The undersigned will not attempt to reconcile the conflicts, as this proceeding is not the appropriate forum in which to relitigate the criminal charge. During the criminal case, Respondent was represented by a criminal law attorney who presented him with two options: enter into a plea arrangement or go to trial and risk a harsher penalty if he were found guilty. Respondent says he accepted his counsel's recommendation that he enter a plea of nolo contendere on the belief that he would not have a felony arrest on his record. After the plea agreement was accepted by the court, Respondent learned that the plea required revocation of his certification and loss of his job. Respondent also testified that even though he paid counsel a $15,000.00 fee, his counsel did little or no investigation regarding what happened, as he failed to depose a single witness before making a recommendation to take a plea.1/ In hindsight, Respondent says he would have gone to trial since he now believes he had a legitimate claim to the "castle defense," and the so-called victim in the incident (the driver of the other car) has a long criminal history and is now incarcerated. At this point, however, if Respondent believes an error in the legal process occurred, his only remedy, if one exists at all, is through the court system and not in an administrative proceeding. A felony plea constitutes noncompliance with the certification statute and requires permanent revocation of a certification. According to a Department witness, however, five years after all requirements of the court's sentencing have been met, the Department has the authority "in a formal process" to make a "felony conviction review" that may result in the reissuance of a certification. Except for this incident, Respondent has no other blemishes on his record. He served in the United States Marine Corps, with combat tours of duty in Iraq and Afghanistan, he was honorably discharged, and he was honored for saving a life at a Target store while off-duty. He has apologized for his actions, taken an anger management course, and received further treatment for Post-traumatic Stress Disorder at a local Veteran's Administration facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order permanently revoking Respondent's certification. DONE AND ENTERED this 15th day of February, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 15th day of February, 2019.
Findings Of Fact Respondent Domingo Fortunato Galvan is a registered nurse in the State of Florida having been issued license number 71608-2. On or about February 28, 1981, Respondent was found guilty in the United States District Court for the Southern District of Florida of conspiracy to distribute and possess a controlled substance and of possession with intent to distribute a controlled substance. That conviction is still on appeal. No evidence was presented by Petitioner with respect to the Respondent's ability to practice as a nurse. Rather, Respondent's evidence indicates that Respondent is a good nurse.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that a final order be entered finding Respondent Domingo Fortunato Galvan guilty of violating Section 464.018(1),(g), Florida Statutes (1979), as charged in the Administrative Complaint and suspending Respondent's license number 71608-2 until the mandate is issued in the appeal of his criminal conviction. If the Respondent's conviction is reversed, his license should be reinstated automatically. If the Respondent's conviction is sustained, he should remain suspended until he appears before the Board of Nursing and demonstrates by clear and convincing evidence that he is then and there capable of practicing nursing in accordance with the laws of the State of Florida. If and when the Respondent's license is reinstated, the Board may, at its discretion, place the Respondent on probation with reasonable terms and conditions for a period of up to two years. DONE and RECOMMENDED this 1st day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 1st day of December, 1982. COPIES FURNISHED: Julia Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 W. Ted Ernst, Jr., Esquire 509 Whitehead Street Key West, Florida 33040 Samuel R. Shorstein, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Board of Nursing 111 Coastline Drive, East Suite 504 Jacksonville, Florida 32202
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violation of Section 458.331(1)(c), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed physician in Florida having been issued license number ME 0004260. It is clear that Respondent was licensed to practice medicine in the State of Florida sometime prior to 1973. There are some indications in the record that Respondent has been licensed since approximately 1949. However, no conclusive evidence was presented on this point. There is no evidence of any prior disciplinary action against Respondent's medical license except for the charges in DOAH Case No. 93-2858 which was heard immediately after the hearing in this case. A Recommended Order in that case has been issued this same date. Although no conclusive evidence was presented in this case, the record in Case No. 93-2858 established that Respondent is certified by the American Board of Psychiatry and Neurology and that he also holds a Ph.D. in psychology and is a licensed psychologist. During 1989 and 1990, Respondent encountered a number of personal problems, including the loss of two brothers, the diagnosis of a sister with cancer, involvement in a number of bad business deals and significant tax problems with the IRS. From late 1989 until approximately February, 1990, Respondent treated a patient named Dale Bowlin for migraine headaches. During this period, Respondent saw Mr. Bowlin approximately thirty times in a professional capacity. Respondent knew that Dale Bowlin was an Assistant Director of the Metro-Dade Police Department. On or about August 23, 1990, Respondent called Dale Bowlin and asked Mr. Bowlin to come to his office to discuss an urgent matter. Pursuant to Respondent's request, Mr. Bowlin met with Respondent on or about August 24, 1990 at Respondent's office located at N.W. 31st Avenue and 7th Street, Miami, Florida. During that meeting, Respondent asked Mr. Bowlin to find someone to "plant" illegal narcotics on a local attorney, later identified as Arthur Spiegel, in order to have him arrested. Respondent indicated that Mr. Spiegel was married to the daughter of a social acquaintance of Respondent and stated that he had provided marriage counseling to Mr. Spiegel and his former wife. Respondent expressed a great deal of concern that Mr. Spiegel's alleged ability to manipulate the legal system during a difficult custody battle that occurred when the Spiegels dissolved their marriage. Respondent felt that Mr. Spiegel had been abusive during the marriage and was not a very good father. The evidence presented in this case established that Respondent was obsessed with finding some way to correct what he perceived to be the deferential or favored treatment that Mr. Spiegel received in the custody dispute. Respondent even hinted that Mr. Spiegel should be severely injured or killed. However, the evidence did not establish that Respondent ever seriously pursued those goals. Instead, he focused on having Mr. Spiegel "set up" and arrested. After returning to his office, Mr. Bowlin discussed Respondent's expressed desires with other members of the police department. A plan was devised to send another police officer, Kennedy Rosario, to meet with Respondent and pretend to cooperate with Respondent's requests. All of the subsequent meetings between Respondent and Detective Kennedy Rosario were recorded on audio tape and/or videotapes. Tapes of those meetings have been accepted into evidence. On or about August 27, 1990, Detective Kennedy Rosario of the Metro- Dade Police Department went to Respondent's office. During that meeting, Respondent offered Detective Rosario five thousand dollars ($5,000.00) to falsely arrest Mr. Spiegel for possession of drugs, specifically cocaine. Respondent wrote Mr. Spiegel's name and address on a page of Respondent's prescription pad and gave it to Detective Rosario. Respondent met for a second time with Detective Rosario at approximately 6:30 p.m. on August 27, 1990, at which time Respondent gave Detective Rosario additional information on Arthur Spiegel. Respondent's last meeting with Detective Rosario took place at approximately 4:00 p.m. on August 28, 1990, at which time Respondent told Detective Rosario that the drugs should be found on Mr. Spiegel and Mr. Spiegel should be arrested while Mr. Spiegel had his child with him. During that final meeting, Respondent gave Detective Rosario two thousand dollars ($2,000.00) as partial payment for setting up Mr. Spiegel to be arrested for possession of cocaine. At the conclusion of the August 28, 1990 meeting, Respondent was arrested and subsequently charged in the Eleventh Judicial Circuit in and for Dade County with two felony counts of bribery of a public official: one count was for allegedly offering money to Dale Bowlin to falsely arrest Arthur Spiegel, the second count was for allegedly offering money to Kennedy Rosario to falsely arrest Arthur Spiegel. Respondent's arrest and the subsequent criminal proceedings received a great deal of media coverage and notoriety. A jury trial was conducted on the criminal charges following which Respondent was acquitted of the first bribery count involving Dale Bowlin, and found guilty of the second bribery count involving Detective Rosario. The jury did not find that Respondent was insane at the time of the alleged offense. The conviction on the second count was subsequently reversed by an appellate court because the trial judge had incorrectly failed to dismiss a juror for cause. The Dade County State Attorney's Office sought to retry Respondent on the second bribery count. Respondent claimed that any such retrial was precluded because, among other things, it would constitute double jeopardy. Ultimately, the prosecutor's office and Respondent's counsel agreed to a plea bargain pursuant to which the felony bribery count was nolle prossed and Respondent agreed to pled nolo contendere to a misdemeanor charge of solicitation which was set forth in an Amended Information. Respondent claims that he only agreed to the plea bargain because the felony charges were dropped and he did not want to subject himself or his family to another trial. In respect to Respondent's motivation for entering the plea, the evidence presented in this case, including the audio and video tapes, conclusively established the facts set forth herein. Respondent formally entered the plea on or about February 23, 1993 in Case No. 90-34903-05 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County. Specifically, Respondent pled nolo contendere to one count of violating Section 777.04(4)(d), Florida Statutes, for requesting Kennedy Rosario to "falsify an official record or official document of the Metro-Dade Police Department with corrupt intent to ... cause unlawful harm to another". Section 777.04(4)(d), Florida Statutes, provides as follows: Whoever commits the offense of criminal attempt, criminal solicitation, or criminal conspiracy shall be punished as follows: * * * (d) If the offense attempted, solicited, or conspired to is a felony of the third degree, the person convicted is guilty of a misdemeanor of the first degree, punishable as provided in s.775.082 or s.775.083. The basis for the plea agreement was Respondent's alleged solicitation of Kennedy Rosario of the Metro-Dade Police Department to violate Section 839.25, Florida Statutes. Section 839.25, Florida Statutes, provides as follows: "Official misconduct" means the commission of the following act by a public servant, with corrupt intent to obtain a benefit for himself or another or to cause unlawful harm to another: (b) knowingly falsifying or causing another to falsify any official record or official document. * * * "Corrupt" means done with knowledge that act is wrongful and with proper motives. Official misconduct under this section is a felony of the third degree, punishable as provided in s. 775.082, s.775.083 or s.775.084. The "official document" referred to in the solicitation count was the arrest warrant for Arthur Spiegel. The "unlawful harm to another" described in the solicitation count referred to the harm Respondent intended to cause to Arthur Spiegel by having him falsely arrested. Respondent points out that the Court accepted the plea agreement without any inquiry and without making any specific findings as to the factual or legal basis for the plea. Respondent was not present at the time the plea agreement was accepted by the Court and Respondent did not give any oral allocution as to the factual basis for the plea. The plea agreement was presented to and accepted by the same judge who presided over Respondent's criminal jury trial. After the entry of the plea, the remaining felony count of bribery against Respondent was dismissed and Respondent was released without further conditions as he had already served over a year on house arrest. During the course of the hearing in this case, there were suggestions by the attorneys that at some point in January 1991, Petitioner initiated proceedings against Respondent to determine his sanity as a result of some of the matters that came to light in the criminal case. Respondent was apparently examined by a psychiatrist appointed by Petitioner. The results of that examination are not part of the record of this proceeding. However, it appears that Respondent has been permitted to continue practicing medicine. As a result of the jury verdict in the initial criminal proceeding, Petitioner filed an Administrative Complaint against Respondent on August 27, 1991, seeking to impose disciplinary action against Respondent on the grounds that Respondent had violated Section 458.331(1)(c), Florida Statutes. After Respondent's conviction was reversed, Petitioner issued a Closing Order on May 23, 1992, dismissing the original Administrative Complaint. This present case was initiated on July 23, 1993 when Petitioner filed a new Administrative Complaint against Respondent following the entry of the nolo contendere plea to the misdemeanor charge.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Section 458.331(1)(c), Florida Statutes, as alleged in the Administrative Complaint. As a penalty for the violation, Respondent's license to practice medicine should be suspended for one (1) year followed by a three- year term of probation. The suspension should be stayed if and when Respondent can demonstrate to the Board that he is currently of good moral character and emotionally stable enough to safely practice medicine. In addition, an administrative fine in the amount of two thousand dollars ($2,000) should be imposed. DONE AND RECOMMENDED this 24th day of May, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON 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 24th day of May, 1995.
