03-001584PL Department Of Health, Board Of Denistry vs. Maria A. Kashlak, D.D.S.
 Status: Closed
Recommended Order on Thursday, September 11, 2003.


View Dockets  
Summary: Dentist failed to provide dental records to patient as required by Section 466.028, Florida Statutes.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF HEALTH, BOARD OF )

14DENTISTRY, )

16)

17Petitioner, )

19)

20vs. ) Case No. 03 - 1584PL

27)

28MARIA A. KASHLAK, D.D.S., )

33)

34Respondent. )

36)

37RECOMMEND ED ORDER

40Pursuant to notice, a final hearing was held in this case

51on July 25, 2003, by video teleconference in Tallahassee and

61Orlando, Florida, before Susan B. Kirkland, a designated

69Administrative Law Judge of the Division of Administrative

77Hearings.

78A PPEARANCES

80For Petitioner: Wayne Mitchell, Esquire

85Ephraim D. Livingston, Esquire

89Department of Health

924052 Bald Cypress Way, Bin C - 65

100Tallahassee, Florida 32399 - 3265

105For Respondent: Brian D. Stokes, Esquire

111Unger, Acree, Weinstein, Marcus,

115Merrill, Kast & Metz, P.L.

120701 Peachtree Street

123Orlando, Florida 32804

126STATEMENT OF THE ISSUES

130Whether Respondent violated Subsections 456.057(4) and

136466.028(1)(n), Florida Statutes, and, if so, what discipline

144should be imposed.

147PRELIMINARY STATEMENT

149On February 10, 2003, Petitioner, Department of Health,

157Board of Dentistry (Department), filed an Administrative

164Complaint against Respondent, Maria A. Kashlak, D.D.S.

171(Dr. Kashlak), charging that Dr. Kashlak had violated

179Subsections 456.057(4) and 466.028(1)(n), Florida Statutes, by

186failing to make available to a patient a copy of the patien t's

199dental records. Dr. Kashlak requested an administrative

206hearing, and the case was forwarded to the Division of

216Administrative Hearings on May 1, 2003, for assignment of an

226administrative law judge to conduct the final hearing.

234The final hearing was he ld on July 25, 2003. Petitioner

245called Thomas E. French, Dr. Kashlak, and D.B. as witnesses.

255Petitioner's Exhibits 1, 2, 3, 5, and 6 were admitted in

266evidence. Dr. Kashlak testified in her own behalf and called

276Anthony Oswick, D.D.S., as her witness. R espondent's Exhibit 1

286was admitted in evidence.

290Official recognition was taken of Subsections 456.057(4)

297and 466.028(1)(n), Florida Statutes, and Rule 64B5 - 17.009(3),

306Florida Administrative Code.

309The parties stipulated to the facts contained in paragraphs

318one through six in section E of Respondent's pre - hearing

329statement. To the extent relevant, those facts have been

338incorporated in this Recommended Order.

343At the final hearing the parties agreed to file their

353proposed recommended orders within ten days of the filing of the

364transcript. The two - volume Transcript was filed on August 12,

3752003. On August 22, 2003, Respondent filed a motion requesting

385additional time to file her proposed recommended order. The

394motion was granted, and the time for filing propos ed recommended

405orders was extended to August 25, 2003.

412Unless otherwise indicated, all citations are to Florida

420Statutes (2001).

422FINDINGS OF FACT

4251. The Department is the state agency charged with

434regulating the practice of Dentistry pursuant to Chapte rs 456

444and 466 and Section 20.43.

4492. Dr. Kashlak is and has been at all material times

460hereto a licensed dentist in the State of Florida, having been

471issued license number DN 0011469. Dr. Kashlak has been

480practicing dentistry since 1985. She and her hus band,

489Dr. Anthony Oswick, have had a small general dentistry practice

499in Orlando since at least 1990.

5053. On August 8, 2001, Dr. Kashlak first saw patient D.B.

516X - rays were taken on that date, and D.B.'s teeth were cleaned.

529D.B. next presented on Augu st 21, 2001, at which time the

541cleaning of her teeth was completed.

5474. D.B. was scheduled for a one - hour appointment at 1 p.m.

560on September 19, 2001. D.B. called Dr. Kashlak's office at

57010 a.m. on the morning of her appointment and advised that she

582had a conflict with her 1 p.m. appointment. She was advised

593that she would be charged a $50 cancellation fee if she did not

606make her appointment. D.B. advised that she would be coming,

616but that she would be late.

6225. D.B. arrived at 1:25 p.m. for her appoin tment. She was

634advised by the receptionist that she was too late for her

645appointment and that she would be charged the $50 cancellation

655fee. D.B. was unhappy with the situation. The receptionist

664told D.B. that she would have the dentist call her.

6746. It is the policy of Dr. Kashlak's office that she will

686deal with Dr. Oswick's patients on fee matters and that he will

698deal with her patients on fee matters. On the evening of

709September 19, 2001, Dr. Oswick called D.B. to discuss her

719concerns about the canc ellation fee. D.B. and Dr. Oswick argued

730about the cancellation fee. D.B. advised him that she was not

741happy with the way that she had been treated and that she would

754be going to another dentist. D.B. told Dr. Oswick that she

765wanted her dental records, and he advised her to put her request

777in writing and send a check for $35 to cover the costs of

790copying the records.

7937. In a letter dated September 25, 2001, D.B. sent a

804letter to Dr. Kashlak stating the following:

811As per your instructions, I have enclose d a

820check for $35 to cover the cost of

828duplicating my dental records -- x - rays,

836treatment plan, and notes. Please call me

843at the number noted below as soon as they

852are available and I will come by to pick

861them up.

8638. On October 8, 2001, D.B. received a co py of her dental

876x - rays and a letter enclosing a check for $99, which represented

889a refund of an insurance claim payment for D.B. No mention was

901made in the letter why all D.B.'s dental records had not been

913sent, and no mention was made that Dr. Kashlak o r Dr. Oswick

926would contact D.B. concerning the remaining dental records.

9349. D.B. called Dr. Kashlak's office on October 8, 2001,

944and spoke to Dr. Oswick. Dr. Kashlak was with Dr. Oswick during

956the telephone conversation with D.B. D.B. asked why she had not

967received all of her dental records. He told her that the

978diagrams of her teeth would not copy well and that there was

990nothing else that she needed in her records. D.B. did not

1001indicate to Dr. Oswick that she was withdrawing her request for

1012the record s.

101510. D.B. went to another dentist on October 17, 2001. She

1026gave the x - rays to the dentist and told the dentist that she was

1041unable to get the remaining records from Dr. Kashlak. Upon

1051being advised by the new dentist that Dr. Kashlak was required

1062to pr ovide her with a copy of the records, D.B. went by Dr.

1076Kashlak's office after her dental appointment in an attempt to

1086get her dental records. The receptionist at Dr. Kashlak's

1095office would not give D.B. her records. After her October 17

1106visit to Dr. Kash lak's office, D.B. never attempted to contact

1117Dr. Kashlak again concerning her dental records.

112411. On October 17, 2001, Dr. Kashlak and Dr. Oswick were

1135on vacation and were not in the office. They were not advised

1147that D.B. had stopped by the office requ esting her records.

115812. In April 2002, D.B. filed a complaint with the

1168Department concerning Dr. Kashlak's treatment and the failure to

1177provide the requested dental records. The Department

1184investigated the complaint and contacted Dr. Kashlak by letter

1193da ted June 24, 2002, advising her of the complaint. By a

1205Verification of Completeness of Records form dated July 15,

12142002, Dr. Kashlak sent D.B.'s records, consisting of 14 pages,

1224to the Department.

122713. One page of D.B.'s dental records, which the

1236Departme nt received, contained the following in the upper right -

1247hand corner:

1249Personal Notes :

12529 - 19 - 01 Pt. showed up @ 125 pm -- caused

1265disruptive scene in reception

1269area/slanderous stmts. demanding refund. mk

12749 - 19 - 01 called pt per request, became

1284argumentative R e: broken appt. fee !!

1291Also requested copy of x - rays afo

129910 - 8 - 01 spoke to pt Re. Tx notes

1310argumentative Re: BA Fee of $50

1316Pt's next dentist to contact us mk

132314. After receiving notice from the Department of D.B.'s

1332complaint, Dr. Kashlak also sent D .B. a copy of D.B.'s dental

1344records, which D.B. received on July 20, 2002. D.B.'s copy did

1355not contain the personal notes set forth above.

136315. Dr. Kashlak has never had her license to practice

1373dentistry disciplined.

1375CONCLUSIONS OF LAW

137816. The Division o f Administrative Hearings has

1386jurisdiction over the parties to and the subject matter of this

1397proceeding. Sections 120.569 and 120.57.

140217. The Department has the burden to establish the

1411allegations in the Administrative Complaint by clear and

1419convincing evidence. Department of Banking and Finance v.

1427Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

143718. The Department has alleged that Dr. Kashlak has

1446violated Subsections 456.057(4) and 466.028(1)(n), and Rule

145364B5 - 17.009(3), Florida Administrative Code. Subsection

1460456.057(4) provides:

1462Any health care practitioner licensed by

1468the department or a board within the

1475department who makes a physical or mental

1482examination of, or administers treatment or

1488dispenses legend drugs to any person shall,

1495upon reques t of such person or person's

1503legal representative, furnish, in a timely

1509manner, without delays for legal review,

1515copies of all reports and records relating

1522to such examination or treatment, including

1528X rays and insurance information.

153319. Subsection 466.0 28(1)(n) provides that a dentist may

1542be disciplined for the following:

1547Failing to make available to a patient or

1555client, or to her or his legal

1562representative or to the department if

1568authorized in writing by the patient, copies

1575of documents in the posse ssion or under the

1584control of the licensee which relate to the

1592patient or client.

159520. Rule 64B5 - 17.009(3), Florida Administrative Code,

1603provides:

1604A dentist shall comply with a patient's

1611written request for copies of records and

1618reports in a timely man ner, with due regard

1627for the patient's health needs. In the

1634absence of circumstances beyond the control

1640of the licensee, timely shall mean less than

164830 days.

165021. Dr. Kashlak violated Subsections 456.057(4) and

1657466.028(1)(n), by failing to provide D.B.'s dental records to

1666D.B. as required by those statutes.

167222. Rule 64B5 - 13.005, Florida Administrative Code,

1680provides a range of penalties for violations of Chapter 466 and

1691sets forth factors which may be considered in mitigation of the

1702penalty. Such mitiga ting factors include danger to the public,

1712previous disciplinary actions, length of time licensee has

1720practiced, and the actual damage caused by the violation.

1729Dr. Kashlak has been in practice since 1985 without any

1739disciplinary action being taken against her license, she does

1748not pose a danger to the public, and there was no actual damage

1761to D.B.

1763RECOMMENDATION

1764Based on the foregoing Findings of Fact and Conclusions of

1774Law, it is

1777RECOMMENDED that a final order be entered finding that

1786Dr. Kashlak violate d Subsections 456.057(4) and 466.028(1)(n),

1794imposing an administrative fine of $750, issuing a reprimand,

1803and requiring Dr. Kashlak to complete 30 hours of continuing

1813dental education in record keeping or risk management.

1821DONE AND ENTERED this 11th day of September, 2003, in

1831Tallahassee, Leon County, Florida.

1835S

1836SUSAN B. KIRKLAND

1839Administrative Law Judge

1842Division of Administrative Hearings

1846The DeSoto Building

18491230 Apalachee Parkway

1852Tallahassee, Florida 32399 - 3060

1857(850) 488 - 9675 SUNCOM 278 - 9675

1865Fax Filing (850) 921 - 6847

1871www.doah.state.fl.us

1872Filed with the Clerk of the

1878Division of Administrative Hearings

1882this 11th day of September, 2003.

1888COPIES FURNISHED :

1891Wayne Mitchell, Esquire

1894Ephraim D. Livingston, Esquire

1898Departmen t of Health

19024052 Bald Cypress Way, Bin C - 65

1910Tallahassee, Florida 32399 - 3265

1915Brian D. Stokes, Esquire

1919Unger, Acree, Weinstein, Marcus,

1923Merrill, Kast & Metz, P.L.

1928701 Peachtree Road

1931Orlando, Florida 32804

1934William W. Large, General Counsel

1939Department of Health

19424052 Bald Cypress Way, Bin A02

1948Tallahassee, Florida 32399 - 1701

1953William H. Buckhalt, Executive Director

1958Board of Dentistry

1961Department of Health

19644052 Bald Cypress Way, Bin C06

1970Tallahassee, Florida 32399 - 1701

1975R. S. Power, Agency Clerk

1980Department o f Health

19844052 Bald Cypress Way, Bin A02

1990Tallahassee, Florida 32399 - 1701

1995NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2001All parties have the right to submit written exceptions within

201115 days from the date of this Recommended Order. Any exceptions

2022to this Recomme nded Order should be filed with the agency that

2034will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/19/2004
Proceedings: Appellant`s Unopposed Motion to Abate Appeal and for Relinquish of Jurisdiction filed.
PDF:
Date: 05/19/2004
Proceedings: Notice of Filing of Meeting Transcript filed.
PDF:
Date: 05/19/2004
Proceedings: Supplemental Directions to the Clerk filed.
PDF:
Date: 05/19/2004
Proceedings: Amended Directions to the Clerk of the Division of Administrative Hearings filed.
PDF:
Date: 02/16/2004
Proceedings: Final Order filed.
PDF:
Date: 02/12/2004
Proceedings: Agency Final Order
PDF:
Date: 11/10/2003
Proceedings: Respondent`s Notice of Objection to Hearing of November 7, 2003 on Recommended Order filed.
PDF:
Date: 11/10/2003
Proceedings: Respondent`s Motion to Decrease Penalty filed.
PDF:
Date: 09/11/2003
Proceedings: Recommended Order
PDF:
Date: 09/11/2003
Proceedings: Recommended Order (hearing held July 25, 2003). CASE CLOSED.
PDF:
Date: 09/11/2003
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 09/08/2003
Proceedings: Order Striking Deposition. (ordered the the deposition of D.B. is stricken)
PDF:
Date: 08/25/2003
Proceedings: Order Granting Extension. (the proposed recommended orders will be filed on or before August 25, 2003)
PDF:
Date: 08/25/2003
Proceedings: Respondent`s Notice that Motion for Extension of Time in Which to Serve and File Proposed Recommended Order, Conclusions of Law and Findings of Fact and Memorandum in Support Thereof is Moot (filed via facsimile).
PDF:
Date: 08/25/2003
Proceedings: Respondent`s Proposed Conclusions of Law, Findings of Fact and Recommended Final Order (filed via facsimile).
PDF:
Date: 08/22/2003
Proceedings: Response Opposing Motion for Extension of Time (filed by Petitioner via facsimile).
PDF:
Date: 08/22/2003
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 08/22/2003
Proceedings: Respondent`s Motion for Extension of Time in Which to Serve and File Proposed Recommended Order, Conclusions of Law and Findings of Fact and Memorandum in Support Thereof (filed via facsimile).
Date: 08/12/2003
Proceedings: Transcript (Volumes I and II) filed.
PDF:
Date: 08/11/2003
Proceedings: Notice of Filing, Hearing Transcript filed by Respondent.
PDF:
Date: 08/08/2003
Proceedings: Notice of Filing, affidavit of service of subpoena duces tecum for deposition directed to J. Hosner and subpoena duces tecum for deposition filed.
PDF:
Date: 08/04/2003
Proceedings: Response Opposing Unauthorized Notice of Filing (filed by Petitioner via facsimile).
PDF:
Date: 08/01/2003
Proceedings: Deposition (of Doreen Barker) filed.
PDF:
Date: 08/01/2003
Proceedings: Notice of Filing, deposition of Doreen Barker filed.
Date: 07/25/2003
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 07/24/2003
Proceedings: Order. (Respondent`s motion is denied)
PDF:
Date: 07/23/2003
Proceedings: Notice of Refiling Affidavit and Renewed Response Opposing Petitioner Sanction Request (filed by Petitioner via facsimile).
PDF:
Date: 07/23/2003
Proceedings: Respondent`s Motion for Rehearing or Reconsideration of Motion for Imposition of Sanctions Against Petitioner; Alternative Renewed and Amended and Verified Motion for Imposition of Sanctions Against Petitioner (filed via facsimile).
PDF:
Date: 07/23/2003
Proceedings: Notice of Co-Counsel (filed by E. Livingston via facsimile).
PDF:
Date: 07/23/2003
Proceedings: Amended Notice of Video Teleconference (hearing scheduled for July 25, 2003; 9:00 a.m.; Orlando and Tallahassee, FL, amended as to Tallahassee hearing room location).
PDF:
Date: 07/18/2003
Proceedings: Order Denying Motion for Imposition of Sanctions.
PDF:
Date: 07/18/2003
Proceedings: Order Denying Amended Request for Expedited Production of Documents and Motion for Sanctions.
PDF:
Date: 07/18/2003
Proceedings: Order Denying Motion for Expedited Production of Documents.
PDF:
Date: 07/17/2003
Proceedings: Amended Agency Prehearing Statement (filed via facsimile).
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Date: 07/17/2003
Proceedings: Petitioner`s Amended Second Request for (Expedited) Production of Documents and Motion for Order Imposing Discovery Violation Sanctions (filed via facsimile).
PDF:
Date: 07/17/2003
Proceedings: Order Granting Continuance and Re-scheduling Video Teleconference (video hearing set for July 25, 2003; 9:00 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 07/16/2003
Proceedings: Petitioner`s Second Request for (Expedited) Production of Documents and Motion for Order Expediting Production of Documents/Information (filed via facsimile).
PDF:
Date: 07/16/2003
Proceedings: Notice of Filing Affidavit and Response Opposing Petitioner Sanction Request (filed by Petitioner via facsimile).
PDF:
Date: 07/16/2003
Proceedings: Notice of Taking Deposition Duces Tecum, J. Hosner, D.D.S. filed.
PDF:
Date: 07/16/2003
Proceedings: Respondent`s Motion for Imposition of Sanctions Against Petitioner filed.
PDF:
Date: 07/16/2003
Proceedings: Respondent`s Reply to Petitioner`s Notice of Filing Amendment to Agency Prehearing Statement filed.
PDF:
Date: 07/16/2003
Proceedings: Respondent`s Supplemental Reply to Petitioner`s Response Opposing Motion to Continue Final Hearing and Response to Petitioners Notice of Filing Documents filed.
PDF:
Date: 07/16/2003
Proceedings: Subpoena Duces Tecum for Deposition, J. Hosner, D.D.S. filed.
PDF:
Date: 07/16/2003
Proceedings: Amended Notice of Taking Deposition Duces Tecum, J. Hosner filed.
PDF:
Date: 07/14/2003
Proceedings: Notice of Filing Amendment: Agency Prehearing Statement (filed via facsimile).
PDF:
Date: 07/14/2003
Proceedings: Notice of Taking Deposition Duces Tecum, A. Oswick (filed via facsimile).
PDF:
Date: 07/14/2003
Proceedings: Amended Notice of Taking Deposition Duces Tecum, J. Hosner (filed via facsimile).
PDF:
Date: 07/14/2003
Proceedings: Second Notice of Filing Documents in Response to Request for Continuances, Renewing Opposition to Continuance (filed by Petitioner via facsimile).
PDF:
Date: 07/14/2003
Proceedings: Respondent`s Motion for Imposition of Sanctions Against Petitioner (filed via facsimile).
PDF:
Date: 07/14/2003
Proceedings: Subpoena Duces Tecum for Deposition, J. Hosner (filed via facsimile).
PDF:
Date: 07/14/2003
Proceedings: Notice of Taking Deposition Duces Tecum, J. Hosner (filed via facsimile).
PDF:
Date: 07/14/2003
Proceedings: Respondent`s Motion to Continue Final Hearing filed.
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Date: 07/14/2003
Proceedings: Respondent`s Unilateral Prehearing Statement filed.
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Date: 07/14/2003
Proceedings: Notice of Taking Deposition, D. Barker filed.
PDF:
Date: 07/14/2003
Proceedings: Respondent`s Reply to Petitioner`s Notice of Filing Amendment to Agency Prehearing Statement (filed via facsimile).
PDF:
Date: 07/14/2003
Proceedings: Respondent`s Supplemental Reply to Petitioner`s Response Opposing Motion to Continue Final Hearing and Response to Petitioners Notice of Filing Documents (filed via facsimile).
PDF:
Date: 07/14/2003
Proceedings: Respondent`s Unilateral Prehearing Statement (filed via facsimile).
PDF:
Date: 07/14/2003
Proceedings: Agency Prehearing Statement (filed via facsimile).
PDF:
Date: 07/11/2003
Proceedings: Notice of Filing Documents in Response to Request for Continuances, Renewing Opposition to Continuance, and of Submitting Unilateral Prehearing Statement (filed via facsimile).
PDF:
Date: 07/11/2003
Proceedings: Respondent`s Reply to Petitioner`s Response Opposing Motion to Continue Final Hearing (filed via facsimile).
PDF:
Date: 07/11/2003
Proceedings: Response Opposing Motion for Continuance (filed by Petitioner via facsimile).
PDF:
Date: 07/11/2003
Proceedings: Notice of Taking Deposition Duces Tecum, M. Kashiak, D.D.S. (filed via facsimile).
PDF:
Date: 07/11/2003
Proceedings: Notice of Serving Answers to Respondent`s First Set of Interrogatories, and Request for Production of Documents (filed by Petitioner via facsimile).
PDF:
Date: 07/10/2003
Proceedings: Respondent`s Motion to Continue Final Hearing (filed via facsimile).
PDF:
Date: 07/10/2003
Proceedings: Order Dening Motion. (the Respondent`s motion for final summary judgment or alternative motion for involuntary dismissal is denied)
PDF:
Date: 07/01/2003
Proceedings: Response to Motion for Summary Judgment or for Involuntary Dismissal (filed by Petitioner via facsimile).
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Date: 06/30/2003
Proceedings: Respondent`s Motion for Final Summary Judgment or Alternative Motion for Involuntary Dismissal filed.
PDF:
Date: 06/02/2003
Proceedings: Respondent`s Notice of Serving Answers to Petitioner`s First Set of Interrogatories filed.
PDF:
Date: 06/02/2003
Proceedings: Respondent`s Response to Petitioner`s First Request for Production of Documents filed.
PDF:
Date: 05/27/2003
Proceedings: Notice of Service of Interrogatories to Petitioner, Department of Health filed by Respondent.
PDF:
Date: 05/27/2003
Proceedings: Request to Produce to Petitioner, Department of Health filed by Respondent.
PDF:
Date: 05/15/2003
Proceedings: Notice of Hearing by Video Teleconference issued (video hearing set for July 21, 2003; 9:00 a.m.; Orlando and Tallahassee, FL).
PDF:
Date: 05/15/2003
Proceedings: Order of Pre-hearing Instructions issued.
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Date: 05/14/2003
Proceedings: Respondent`s Unilateral Response to Initial Order filed.
PDF:
Date: 05/14/2003
Proceedings: Respondent`s Response to Petitioner`s First Set of Request for Admissions filed.
PDF:
Date: 05/09/2003
Proceedings: Unilateral Response to Initial Order (filed by Petitioner via facsimile).
PDF:
Date: 05/01/2003
Proceedings: Notice of Serving Petitioner`s First Set of Request for Admissions, Interrogatories, and Request for Production of Documents (filed via facsimile).
PDF:
Date: 05/01/2003
Proceedings: Administrative Complaint (filed via facsimile).
PDF:
Date: 05/01/2003
Proceedings: Election of Rights (filed via facsimile).
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Date: 05/01/2003
Proceedings: Notice of Appearance (filed by W. Mitchell via facsimile).
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Date: 05/01/2003
Proceedings: Agency Referral (filed via facsimile).
PDF:
Date: 05/01/2003
Proceedings: Initial Order issued.

Case Information

Judge:
SUSAN BELYEU KIRKLAND
Date Filed:
05/01/2003
Date Assignment:
05/01/2003
Last Docket Entry:
07/19/2004
Location:
Orlando, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related Florida Statute(s) (5):