Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
The Issue Whether Petitioner may be granted an exemption from employment disqualification, pursuant to Section 435.07(3), Florida Statutes, which would allow him to work in a position of special trust (i.e. youthful offender counseling) for the Department of Juvenile Justice.
Findings Of Fact On February 16, 1999, a request for a Preliminary Florida Criminal Information Center/National Criminal Information Center (FCIC/NCIC) and Division of Highway Safety and Motor Vehicle (DHSMV) Screening Check was submitted on behalf of Petitioner by Dawn Torres of Youth Service International, Cypress Creek Academy. The screening package contained an Affidavit of Good Moral Character signed by Petitioner and notarized on January 11, 1999, in which Petitioner indicated that he did not have a disqualifying criminal history. There is every reason to believe that this affidavit was actually signed by Petitioner on January 8, 1999, at the same time he signed a consent to background screening and a job application which described a prior "misdemeanor" of assault on an ex-girlfriend. (Respondent's Composite Exhibit 1). This means the affidavit was notarized improperly. Cypress Creek Academy is a youth rehabilitation facility located in LeCanto, Florida. On February 19, 1999, Petitioner's preliminary screening was rated as "favorable" based upon an FCIC (Florida) check only. Petitioner was therefore employed by Cypress Creek Academy on April 12, 1999. (Petitioner's Exhibit 1). An FBI Identification Record dated May 9, 1999, indicated Petitioner had pled guilty to, and been found guilty of, assault on June 30, 1994, and that he had been sentenced to six months' jail time (suspended), 12 months' probation, and attendance at the Mens' Anger Program. In a letter dated May 17, 1999, Petitioner was asked by DJJ to provide, within 30 days of receipt of the letter, certified copies of arrest reports and judicial dispositions referencing the assault charge. Petitioner submitted the requested information to DJJ. It showed that Petitioner was arrested on June 3, 1994, by the Fairfax, Virginia, Police Department for abduction and assault and battery on a minor (17 years of age). On June 30, 1994, Petitioner pled guilty to assault and battery in the Fairfax County, Virginia, Juvenile and Domestic Relations District Court and was then found guilty. He was sentenced to a six months' jail sentence (suspended) and 12 months' active probation; ordered to attend the Mens' Anger Program; and instructed to have "no violation towards victim." A Show Cause Summons (Criminal) was issued by Fairfax County, Virginia, on June 23, 1995, to Petitioner concerning his failure to attend the Mens' Anger Program and his failure to contact his probation officer from September 26, 1994, to March 20, 1995. On September 21, 1995, the Fairfax County, Virginia, Juvenile and Domestic Relations District Court found Petitioner guilty of contempt based upon his plea of guilty. He was sentenced to a jail term of 60 days (with 57 days suspended), placed on probation for an additional 12 months, and again ordered to attend the Mens' Anger Program. By departmental letter of June 22, 1999, DJJ notified Petitioner of his ineligibility for continued employment and his right to request a departmental exemption hearing. Simultaneously, Cypress Creek Academy was notified that Petitioner was ineligible/disqualified from employment as a youth counselor and that he must be immediately removed from direct contact with juveniles. However, according to Petitioner's evidence presented at hearing, Petitioner only worked at Cypress Creek Academy from April 12, 1999, until June 3, 1999. (Petitioner's Exhibit 1). Also, the Academy's director was unable to assess Petitioner's performance fully, since he had worked there less than two months, but the director felt Petitioner would be an asset, and if exempted, that Petitioner would be eligible for rehire. (Petitioner's Exhibit 1). Petitioner timely requested an exemption, which was denied by DJJ. He then timely requested this disputed-fact hearing. The circumstances surrounding the June 3, 1994, incident giving rise to disqualification were described by Petitioner as follows: In 1994, Petitioner, who was barely 21 years old, was living with his 17-year-old girlfriend and her mother. He and the girlfriend got into a dispute and she kicked him in the stomach. He instinctively lashed out and hit her, even though intellectually, he knew it was wrong to hit a woman. Petitioner believed that his girlfriend also should have been criminally charged, but that did not happen. Petitioner claimed that although his girlfriend bailed him out of jail and wanted to drop the charges, his public defender made him plead guilty against his own better judgment. Petitioner maintained that his "instinctive" reaction to hit back was due to having been a battered child. His sister confirmed a dysfunctional and abusive family history. Petitioner's NCCI report does not reveal any criminal charges against Petitioner since 1994. Petitioner completed the Mens' Anger Program in Virginia as of June 26, 1996, pursuant to the Court's 1995 suspended sentence, by attending 22 out of 24 sessions. His only excuse for his delay in attending this program (see Finding of Fact 10, above) was that he was trying to straighten himself out. Petitioner testified that he has completed his probation in Virginia, but he presented no corroboration thereof, either from his probation officer or from any other Virginia authority. This defect in Petitioner's presentation is of concern because he has had nearly 10 months since the exemption process began in which to obtain these records, if they exist. Petitioner denied that he attempted to camouflage his prior criminal record from either Cypress Creek Academy or DJJ. He reasonably pointed-out that if he had been actively attempting to hide his prior criminal record when he signed the January 11, 1999, affidavit stating that he had no prior criminal record, he would not also have signed a consent to background screening on January 8, 1999 and on the same date disclosed the details of the assault on his ex-girlfriend to his potential employer, describing it as a misdemeanor. (Respondent's Composite Exhibit 1). I have weighed the fact that Petitioner is a high school graduate who has completed one year of college (Respondent's Exhibit 1) against his representation that he just did not read the good moral character affidavit he signed, and I have compared the lengthy and complex single-spaced disclosure forms involved, including the affidavit, which lists a variety of felonies by their Florida Statute numbers. I have also considered the detail of Petitioner's disclosure of the facts of the assault but mischaracterization of it as a "misdemeanor" rather than a felony. I accept that Petitioner's failure to disclose that his prior criminal history in Virginia was a disqualifying felony was careless and irresponsible rather than a deliberate attempt to conceal his criminal record from the employer and DJJ. On the other hand, his carelessness and lack of responsibility with regard to the affidavit/oath do not speak favorably for his current good character when it applies to a position of counseling young offenders. Since 1995, Petitioner has married and fathered a child. Since leaving Virginia, Petitioner has worked as a security guard in Reno, Nevada, dealing with cash, personal safety of casino patrons, and safety of patrons' vehicles. Currently, Petitioner is a regular church-goer and is working 52 hours a week to support his family. Petitioner's wife testified that he is non-violent toward her, even if she hits him; that he "scares me because he's so religious"; that she gets mad because he does so much for others; and that he is a "real caring person" and a "good father." Petitioner's sister testified to Petitioner's being entirely non-violent since he became a church-goer.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Petitioner an exemption at this time and clearly stating therein upon what date it will consider a new application for exemption. DONE AND ENTERED this 30 day of May, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 May, 2000.
The Issue The issues in this case are whether Respondent was convicted or found guilty of a crime which directly relates to the practice of chiropractic medicine; and, if so, whether Petitioner should impose discipline on Respondent's chiropractic license within the applicable penalty guidelines or take some other action.
Findings Of Fact The Parties At all times relevant to this case, Respondent Mia Ann Higginbotham, D.C., was licensed to practice chiropractic medicine in the state of Florida. The Department has regulatory jurisdiction over licensed chiropractors such as Dr. Higginbotham. In particular, the Department is authorized to file and prosecute an administrative complaint against a chiropractic physician, as it has done in this instance, when a panel of the Board of Chiropractic Medicine has found that probable cause exists to suspect that the licensee has committed a disciplinable offense. The Material Historical Facts In April 2006, the State Attorney of the Eleventh Judicial Circuit filed an Amended Information in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, which charged Dr. Higginbotham with six counts of insurance fraud as defined in section 817.234(1), Florida Statutes (2004); four counts of grand theft in the third degree, as defined in section 812.014; 24 counts of communications fraud as defined in section 817.034(4)(b)1.; and one count of organized fraud as defined in section 817.034(4)(a)1. Dr. Higginbotham had been arrested earlier on some or all of these (or similar) criminal charges, on October 21, 2004. The record does not contain the original information. The 38-count Amended Information also charged five other defendants, namely Francisco Javier Espinosa, Evelyn Cajuste, Romer Ferguson, Deborah Eugene, and Christopher Wesley Nelson.3 Two of these individuals——Mr. Ferguson and Ms. Eugene—— testified at the final hearing in this case. Each admitted having participated in a staged (i.e. fake) automobile accident on March 18, 2004, and, afterwards, having seen Dr. Higginbotham for treatment of "injuries" purportedly sustained in the "accident." Each claimed to have received real treatment from Dr. Higginbotham and other providers in her office. (Ms. Eugene testified that her back truly hurt at the time, not as a result of the fake accident of course, but due to a previous injury.) Each disclaimed any personal knowledge that Dr. Higginbotham had been aware that the March 18, 2004, "accident" was staged to defraud insurance companies.4 To the extent and as described in this paragraph, the undersigned credits the testimony of Mr. Ferguson and the testimony of Ms. Eugene and finds these facts, as stated, to be true. By the time the criminal case finally came to trial in February 2009, Dr. Higginbotham was the last defendant remaining, the others having previously made deals with the state pursuant to which they, or some of them, had agreed to testify against Dr. Higginbotham. During the nearly four and one-half years that elapsed between Dr. Higginbotham's arrest and the trial, the state had offered her numerous deals. Dr. Higginbotham had rejected all of the proposed deals because they would have required her to plead guilty, which she refused to do. Dr. Higginbotham consistently maintained her innocence throughout the criminal proceeding and has done the same in this proceeding as well. At the outset of the criminal trial on February 3, 2009, the state offered Dr. Higginbotham a no-prison deal under which, if she agreed to plead nolo contendere to eight of the 35 charges pending against her, the state would recommend that adjudication of guilt be withheld and that she be sentenced to a term of probation. Significantly, the state did not demand that Dr. Higginbotham relinquish her chiropractic license as consideration for the deal. Dr. Higginbotham had very little time to think about whether to accept the state's offer. Her defense attorney was adamant that she accept the deal because juries are unpredictable and the proposed plea bargain would eliminate the risk of incarceration. As Dr. Higginbotham recalled the scene, in testimony the undersigned accepts as credible and persuasive, "[My attorney] was screaming at me at the top of his lungs that he felt I needed to take this deal and all he was concerned about was that . . . I wouldn't be going to jail and he said you never know what could happen." The adverse consequences of a guilty verdict would have been devastating for Dr. Higginbotham. She faced the possibility of a lengthy prison sentence if convicted——in the worst case scenario, about 160 years, the prosecutor had stated. Were she to be incarcerated for even a fraction of that period, Dr. Higginbotham's professional life would be finished and her personal life shattered. In regard to the latter, Dr. Higginbotham wanted to start a family but felt she could not do so while the criminal case was pending. She likely would lose that opportunity if she spent her childbearing years behind bars. Ultimately, Dr. Higginbotham accepted the state's offer because, as she put it, "at the time I was scared, I was nervous, I was under a lot of stress. My attorney was putting an enormous amount of pressure on me and I felt I really had no other choice." The undersigned accepts this testimony as truthful and finds that Dr. Higginbotham agreed to plead nolo contendere, not because she had a guilty conscience, but to avoid the catastrophic downside of a guilty verdict, which she needed to reckon a possibility, despite being conscious of her own innocence. Consequently, Dr. Higginbotham pleaded no contest to four counts of insurance fraud as defined in section 817.234(1), Florida Statutes (2004), and four counts of communications fraud as defined in section 817.034(4)(b)1. (the "Uncontested Charges"). The court accepted the plea and entered an order disposing of the case, which is captioned "Finding of Guilt and Order Withholding Adjudication/Special Conditions" (the "Order"). In the Order, after reciting that it appeared Dr. Higginbotham "ha[d] been found guilty" of the Uncontested Charges "upon the entry of a nolo contendere plea," and that it appeared Dr. Higginbotham should not "presently [be required] to suffer the penalty imposed by law," the court ordered that "adjudication of guilt be . . . stayed and withheld." The court placed Dr. Higginbotham on probation for a period of four years, subject to early termination after the successful completion of two years. The court further ordered Dr. Higginbotham to pay about $2,300 in costs but reserved ruling on whether to require her to make restitution. Due to the insufficiency of the evidence, the undersigned is unable to make any findings of fact regarding the conduct of Dr. Higginbotham which gave rise to the Uncontested Charges. Simply put, given the minimal persuasive evidence regarding Dr. Higginbotham's conduct, the undersigned cannot determine what she actually did as a result of, or in connection with, the fake accident described above, besides (a) provide some chiropractic treatment to persons who falsely told her they had been hurt, as found above, and (b) plead no contest to the Uncontested Charges. In short, other than the undisputed fact of the plea, there is no persuasive evidence in the record to support a finding that Dr. Higginbotham committed any crime. Ultimate Factual Determinations Dr. Higginbotham did not impliedly admit guilt when she pleaded nolo contendere to the Uncontested Charges. Her explanation of the reasons for accepting the state's offer provides objectively reasonable grounds——consistent with innocence——for having entered the plea, refuting the implication that she acted on a guilty conscience or the substantial likelihood of a conviction. In this connection, it is further determined that Dr. Higginbotham, while being conscious of her innocence and never admitting guilt, entered the plea to avoid the possibility of being found guilty and sent to prison, potentially for many years; to be able to get on with her personal life; and to retain the ability to resume her professional career as a chiropractic physician. In addition, given that the state was willing to give up more than three-quarters of the criminal charges against Dr. Higginbotham; and that the sentence imposed (four years' probation subject to early termination) was lenient as compared to the range of potential sentences, including many years of imprisonment, which could have been imposed were she tried and convicted; the undersigned infers that the prosecutor's offer was a generous one, reflecting the strength of Dr. Higginbotham's position relative to the state's. In sum, under the circumstances, the no-prison plea bargain offered to Dr. Higginbotham was too good to refuse, given that an acquittal would have been only marginally more beneficial than a sentence of probation with a withhold of adjudication, whereas a guilty verdict would have been ruinous. Accordingly, it is determined as a matter of fact, based on the totality of the evidence including the plea of nolo contendere and the presumption of a conviction which arises therefrom, that Dr. Higginbotham was not "convicted or found guilty" of crimes relating to the practice of chiropractic medicine. Dr. Higginbotham is not guilty, as a matter of fact, of committing an offense punishable under section 460.413(1)(c), Florida Statutes (2008).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order finding Dr. Higginbotham not guilty of the charge set forth in the Complaint. DONE AND ENTERED this 11th day of May, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of May, 2011.
