00-004728PL Department Of Health, Board Of Physical Therapy Practice vs. Tina Marie Pate Status: Closed Recommended Order on Friday, March 9, 2001.

Summary: Alleged failure to report plea of nolo contendere to felony and deceit in licensure application dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

PHYSICAL THERAPY PRACTICE, )

)

Petitioner, )

)

vs. ) Case No. 00-4728PL

)

TINA MARIE PATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge ,

Jeff B. Clark, held a formal hearing in this case on

February 12, 2001, in Viera, Florida.

APPEARANCES

For Petitioner : Mary Denise O'Brien, Esquire

Agency for Health Care Administration

Post Office Box 14229

Mail Stop 39

Tallahassee, Florida 32317-4229

For Respondent: Herbert Allen, Jr., Esquire

2000 Highway A1A, 2nd Floor

Indian Harbour Beach, Florida 32937-3525

STATEMENT OF THE ISSUES

Whether Tina Pate violated Subsection 486.125(1)(b),

Florida Statutes, by committing deceit in obtaining a license as

a physical therapist, and, if so, what penalty should be

imposed; and whether Tina Pate violated Subsection

455.624(1)(w), Florida Statutes, for failing to report to the

Board of Physical Therapy her conviction of aggravated child

abuse, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 28, 2000, the Agency for Health Care Administration

(AHCA), Board of Physical Therapy Practice, filed an

Administrative Complaint against Respondent, Tina Pate (Pate) ,

alleging that Pate violated Subsections 486.125(1)(b) and

455.624(1)(w), Florida Statutes. The Administrative Complaint

was filed with the Division of Administrative Hearings on

November 21, 2000. On December 6, 2000, an order setting final

hearing for February 2, 2001, was entered. On AHCA's motion, a

new hearing date was set for February 12, 2001.

Pate was the only witness and testifie d for herself and

AHCA.

AHCA submitted the following two exhibits into evidence:

1. Application for licensure as a Physical Therapist of

Tina Marie Pate.

2. Information dated November 7, 1978, and Order

Withholding Adjudication of Guilt and Placing Defendant on

Probation, dated August 17, 1979, in the case of State of

Florida vs. Tina Pate ; in the Circuit Court for the Sixth

Judicial Circuit of Florida, In and For Pasco County, Case

No. 7800963FAWS.

Pate submitted the following two exhibits into evidence:

1. Exemption Application package (10 pages).

2. Letter dated February 24, 1999, from Joe Baker, Florida

Department of Health, Bureau Chief, Health Care Practitioner

Regulation, to Tina M. Pate.

No transcript of the hearing was ordered. Both parties

submitted Proposed Recommended Orders, which have been

considered in rendering this Recommended Order.

FINDINGS OF FACT

Based on the testimony of Pate and the evidence submitted,

the following findings of fact are made:

1. At all times material, P ate held a license as a

Physical Therapist in the State of Florida.

2. The Department of Health, through the Board of Physical

Therapy Practice, is the state agency that licenses and has

regulatory jurisdiction of physical therapists. As authorized

by Florida Statutes, AHCA performs investigative and

prosecutorial services for the Department of Health.

3. Pate pled nolo contendere to a charge of aggravated

child abuse in 1979. Aggravated child abuse is a felony (AHCA

Exhibit 2).

4. Pate applied for a physical therapy license on

August 1, 1996.

5. The license application contained, among other things,

the following question: "12. Have you ever been convicted or

found guilty of a felony, regardless of adjudication? (A plea

of nolo contendere shall create a rebuttable presumption of

guilt to the underlying criminal charges)." Pate answered "No"

to this question.

6. Pate testified that she was advised and that she

believed that having successfully completed three years of

probation that her record would be expunged. She further

testified that because she found Question 12 and another

question on the application regarding criminal convictions

confusing, she sought legal counsel prior to answering the

questions and answered the question as counseled.

7. In this particular factual situation, based on the

nature of the felony, the text of the question, the counsel she

received, and her mistaken belief that the record of criminal

conviction had been expunged, Pate's incorrect answer to

Question 12 was not deceitful.

8. Late in 1998, Pate discovered, as a result of an

investigation by a prospective employer, that the 1979 nolo

contendere plea was still a matter of public record.

9. On February 15, 1999, Pate applied to AHCA for an

exemption hearing. Subsection 400.215(4)(b), Florida Statutes,

states:

(b ) As provided in s. 435.07 the

appropriate regulatory board within the

Department of Health, or that department

itself when there is no board, may grant an

exemption from disqualification to an

employee or prospective employee who is

subject to this section and who has received

a professional license or certification from

the Department of Health or a regulatory

board within that department.

10. Subsection 435.07(1), Florida Statutes, states:

(1 ) The appropriate licensing agency may

grant to any employee otherwise disqualified

from employment an exemption from

disqualification for:

(a ) Felonies committed more than 3 years

prior to the date of disqualification;

11. In response to Pate's request for exemption hearing,

Mr. Joe Baker, Acting Bureau Chief, Heath Care Practitioner

Regulation, by letter dated February 24, 1999, granted her

request stating, "an exemption from disqualification for the

above disqualifying offense(s) is granted."

12. Subsection 456.072(1)(w), Florida Statutes, states:

(1 ) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(w ) Failing to report to the board, or

the department if there is no board, in

writing within 30 days after the licensee

has been convicted or found guilty of, or

entered a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction. Convictions, findings,

adjudications, and pleas entered into prior

to the enactment of this paragraph must be

reported in writing to the board, or

department if there is no board, on or

before October 1, 1999.

13. While she was preparing her request for exemption

hearing, Pate had telephone conversations at the Board of Health

with an individual she identified as Kay Howerton, who Pate

believed had reviewed her request for exemption hearing.

14. Pate's request for exemption hearing contains specific

reference to her plea of nolo contendere to the November 3,

1978, Pasco County, Florida, charge of aggravated child abuse.

15. It is not unreasonable for a lay person, having made

an application to AHCA for an exemption from licensure

disqualification for having pled nolo contendere to aggravated

child abuse, and having received a letter from the Board of

Health granting her the exemption, to believe that she had

reported her plea of nolo contendere to the Board in writing as

required by Subsection 456.072(1)(w), Florida Statutes.

CONCLUSIONS OF LAW

16. The D ivision of Administrative Hearings has

jurisdiction over the parties and the subject matter. Section

120.57(1), Florida Statutes.

17. AHCA has the burden of proving by clear and convincing

evidence that Pate violated Subsections 486.125(1)(b) and

455.624(1)(w), Florida Statutes, as alleged in the

Administrative Complaint dated June 28, 2000. Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1st DCA 1987).

18. AHCA alleges that Pate violated

Subsection 486.125(1)(b), Florida Statutes, by "Having

committed . . . deceit in obtaining a license as a physical

therapist . . . ." Pate's testimony regarding her motive for

answering "No" to the question of criminal conviction does not

reflect "deceit." AHCA has failed to prove by clear and

convincing evidence that Pate violated Subsection 486.125(1)(b),

Florida Statutes.

19. By providing ACHA and the Board of Health written

information regarding her plea of nolo contendere to the charge

of aggravated child abuse, which resulted in an exemption from

licensure disqualification, Pate effectively complied with

Subsection 455.624(1)(w), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Health, Board of

Physical Therapy Practice, find Tina Pate not guilty of having

violated Subsections 486.12(1)(b) and 455.624(1)(w), Florida

Statutes, and dismiss the Administrative Complaint filed against

her.

DONE AND ENTERED this 9th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of March, 2001.

COPIES FURNISHED :

Herbert Allen, Jr., Esquire

2000 Highway A1A, 2nd Floor

Indian Harbour Beach, Florida 32937-3525

Mary Denise O'Brien, Esquire

Agency for Health Care Administration

Post Office Box 14229

Mail Stop 39

Tallahassee, Florida 32317-4229

Dr. Kaye Howerton, Executive Director

Board of Physical Therapy Practice

Department of Health

4052 Bald Cypress Way, Bin

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.