10-002796PL Department Of Health, Board Of Chiropractic Medicine vs. Mia A. Higginbotham, D.C. Status: Closed Recommended Order on Wednesday, May 11, 2011.

Summary: Respondent established reasonable grounds, consistent with innocence, for pleading nolo contendere to criminal fraud charges for which she was not adjudicated guilty; thus Respondent was not convicted or found guilty of a crime.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

CHIROPRACTIC MEDICINE )

)

Petitioner, )

) Case No. 10 - 2 79 6 PL

vs. )

)

MIA A. HIGGINBOTHAM , D. C. , )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

August 4, 2010, and March 15, 2011 , at sites in Tallahassee and

Miami, Florida.

APPEARANCES

For Petitioner: Tari A nne Rossitto - Van Winkle , Esquire

Tobey Schultz, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Sean Michael Ellsworth , Esquire

Ellsworth Law Fi rm , P.A.

1501 Collins Avenue, Suite 208

Miami Beach , Florida 33139

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondent was

convicted or found guilty of a crime which directly relates to

the practice of chiropractic medicin e; and, if so, whether

Petitioner should impose discipline on Respondent's chiropractic

license within the applicable penalty guidelines or take some

other action.

PRELIMINARY STATEMENT

On May 21, 2010 , Petitioner Department of Health

("Department") fil ed with the Division of Administrative

Hearings ("DOAH") a Motion to Re - Open Case, to which it attached

a Second Amended Administrative Complaint (the "Complaint")

dated October 9, 2009. In its motion, the D epartment asserted

that DOAH had relinquished ju risdiction in Case No. 06 - 3669PL

(the "Original Action") so that the matter could be returned to

a probable cause panel of the Board of Chiropractic Medicine,

which would evaluate potential new charges against Respondent

Mia Higginbotham, D.C., based on th e disposition of a criminal

proceeding against her that had recently been concluded . In its

Complaint, the D epartment alleged that , in February 2009,

Respondent had pleaded no contest in state court to multiple

criminal charges relating to insurance fraud , thereby committing

the offense of "[b]eing convicted or found guilty, regardless of

adjudication, of any crime which directly relates to the

practice of chiropractic medicine . . . ," as defined in section

460.413(1)(c), Florida Statutes (2008). Dr. Hig ginbotham denies

the charge of having been "convicted" of a crime within the

meaning of this statute.

By way of background, and in contrast to the instant

Complaint, in the Original Action the D epartment had (a) alleged

facts relating to the scheme to def raud in which the D epartment

b elieved Respondent had engaged and (b) charged Respondent with

one count each of ( i ) m aking or filing a report which the

licensee knows to be false , as defined in section 460.413(1)(j),

Florida Statutes (2003); ( ii ) m aking mis leading, deceptive,

untrue, or fraudulent representations in the practice of

chiropractic medicine , a s defined in section 460.413(1)(k) ; and

( iii ) s ubmitting to any third - party payor a claim for a service

or treatment which was not actually provided to a p atient , as

defined in section 460.413(1)(x) . While the Original Action was

pending, Respondent was being prosecuted in a parallel criminal

proceeding based on the same or a substantially similar scheme

to defraud . It is undisputed that the criminal prose cution

ended in February 2009 when Respondent accepted a plea bargain,

which will be discussed in further detail below.

The undersigned approved the D epartment's motion and

reopened the Original Action, commencing the instant proceeding

on May 21, 2010. The final hearing was scheduled for August 3

and 4, 2010. Upon receipt of the parties' Joint Pre - Hearing

Stipulation, which stated that the hearing would not take more

than one day, the final hearing was rescheduled to take place on

August 4 , 2010 .

At h earing on August 4, 2010, t he D epartment called Frank

Figueredo, who was a medical malpractice investigator for the

D epartment; and Dr. Higginbotham. Petitioner's Exhibits 1

through 4 were received in evidence without objection.

The D epartment had subpo enaed Debora h Eugene and Romer

Ferguson, III , to give testimony at the final hearing of this

case, but n either appeared. Both previously had been deposed,

however, by Dr. Higginbotham's attorney, in the parallel

criminal proceeding. The D epartment sought to introduce the se

depositions pursuant to s ection 90.804(2)(a), Florida Statutes,

which excludes former testimony from the hearsay rule "provided

the declarant is unavailable as a witness." The undersigned was

not persuaded at hearing that either declar ant was "unavailable"

under the relevant definition of that term, which is set forth

in section 90.804(1)(e), because the D epartment had not

attempted to depose them and hence could not demonstrate

inability to procure testimony concerning the statements

c omprising the former testimony ÏÏ a prerequisite to establishing

unavailability . Consequently, the undersigned deferred ruling

on the admissibility of these depositions a nd continued the

final hearing, over Respondent's objection, to give the

D epartment an opportunity to seek judicial enforcement of the

administrative subpoenas.

The D epartment also sought to introduce the depositions of

Francisco Espinosa, Evelyn Cajuste, and Christopher Nelson, each

of whom, like Eugene and Ferguson, had been deposed in th e

criminal proceeding by Respondent's defense attorney. The

D epartment had not caused subpoenas to be served on these

declarants, however, and thus the undersigned determined that

none of these declarants was "unavailable" in accordance with

section 90.80 4(1)(e) . 1 The undersigned ruled that these

depositions were not admissible under the former - testimony

exclusion set forth in section 90.804(2)(a).

As a fallback, the D epartment argued that the depositions

of Francisco Espinosa, Evelyn Cajuste, and Chris topher Nelson

were admissible under section 120.57(1)( c) , " for the purpose of

supplementing or explaining other evidence . . . ." This

argument was rejected because there was no other evidence that

the out - of - court statements of these declarants, who had been

co - defendants of Respondent in the criminal case, could possibly

have supplemented or explained , for the reasons that follow .

Petitioner's Exhibits 1 through 3, which consist of records

from the criminal proceeding, establish the charges that were

br ought against Dr. Higginbotham, her plea, and the judicial

disposition (facts th at were not disputed) ÏÏ but not the truth of

any of the allegations behind the criminal case, as none of the

charges against Dr. Higginbotham was ever proved beyond a

reasonable doubt to the satisfaction of a trier of fact .

Petitioner's Exhibit 4 is the deposition of the D epartment's

expert witness, who has no personal knowledge of the facts

underlying the criminal case. Dr. Higginbotham herself

testified almost exclusively abo ut her plea agreement, which

occurred after the depositions in question had been taken. The

co - defendants' depositions could not have supplemented any of

the evidence described above.

The extent of Dr. Higginbotham's testimony about the

factual allegati on s underlying the criminal case was to deny any

wrongdoing. She did not, in other words, testify about facts

that, if found to be true, would demonstrate her non - involvement

in any criminal activities. Dr. Higginbotham's testimony in

this regard was, in short, clear, unambiguous, and complete as

far as it went; it needed no explaining or supplementation.

Finally, it was clear that the D epartment wanted to use the

depositions at issue, not to supplement or explain Respondent's

testimony, but to prove fa cts tending to establish her guilt.

Given that the D epartment had not alleged such facts in the

Complaint, and given that there was no other evidence of such

facts in the record, this would not have been a permissible use

of hearsay under section 120.57(1 )(c). The undersigned allowed

the D epartment to proffer the depositions, and accordingly

Petitioner's Exhibits 5, 7, and 8, though not part of the

evidentiary record, will be included in the file.

In addition to being examined by the D epartment as an

adv erse witness, Dr. Higginbotham took the stand in her own

defense. Respondent also called Dr. Michael Nathanson, who

testified via telephone, as a character witness. Dr.

Higginbotham offered no exhibits in her case.

The hearing reconvened on March 15, 2 011. Ms. Eugene and

Mr. Ferguson testified as witnesses for the Department in

compliance with a judgment issued by the circuit court, which

directed them to appear on pain of contempt.

The transcript of the proceedings had on August 4, 2010,

was filed o n March 10, 2011. The last two volumes of the final

hearing transcript were filed on April 1, 201 1 . The undersigned

issued an order on April 5, 2011, reminding the parties that the

deadline for filing proposed recommended orders was April 11,

2011. Resp ondent timely filed a Proposed Recommended Order ,

which has been considered . The D epartment's Proposed

Recommended Order was filed inexcusably late, on April 15, 2011,

but was considered nonetheless. 2

Unless otherwise indicated, citations to the Florida

S tatutes refer to the 20 1 0 Florida Statutes.

FINDINGS OF FACT

The Parties

1 . At all times relevant to this case, Respondent Mia Ann

Higginbotham, D.C. , was licensed to practice chiropractic

medicine in the state of Florida.

2 . The Department has regu latory 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

3. 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 thef t 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 al l of

these (or similar) criminal charges , on October 21, 2004. The

record does not contain the original information.

4. The 38 - count Amended Information also charged five

other defendants, namely Francisco Javier Espinosa, Evelyn

Cajuste, Romer Ferguso n, Deborah Eugene, and Christopher Wesley

Nelson. 3 Two of these individuals ÏÏ Mr. Ferguson and Ms. Eugene ÏÏ

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, a fterwards, 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 provider s in her office. (Ms. Eugene

testified that her back truly h urt 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.

5. By the time the criminal case finally came to trial in

February 20 09, 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 b etween 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 consistentl y maintained her innocence

throughout the criminal proceeding and has done the same in this

proceeding as well.

6. 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 t o 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 relinq uish her chiropractic license as

consideration for the deal.

7. 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 t ake 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."

8. The adverse consequences of a guilty verdict would have

been devastating for Dr. Higginbotham. She faced the

possib ility of a lengthy prison sentence if convicted ÏÏ 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

persona l 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 opp ortunity if she spent her child bearing years behind

bars.

9. Ultimatel y, Dr. Higginbotham accepted the state's offer

because, as s he 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 under signed 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, despit e being conscious of her

own innocence.

10. 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 817.0 34(4)(b)1. (the "Uncontested

Charges"). The court accepted the plea and entered a n 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 i t 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

suf fer the penalty imposed by law , " the court ord ered that

"adjudication of guilt be . . . stayed and withheld. " The c ourt

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. Higginboth am to pay

about $2,300 in costs but reserved ruling on whether to require

her to make restitution .

11. 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 r ise 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, beside s (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

12. Dr. Higginbotham did not impli edly 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 ÏÏ consistent with

innocence ÏÏ for having entered the plea , refuting the implication

th at she acted on a guilty conscience or the substantial

likelihood of a conviction .

13. I n this connec tion, i t 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 wi th 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

ch arges 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 tha t the

prosecutor's offer was a generous one, reflecting the strength

of Dr. Higginbotham's position relative to the state's .

14. In sum, under the circumstances, the no - prison plea

bargain offered to Dr. Higginbotham was too good to refuse,

given that a n 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 evid ence including the plea of nolo contendere

and the presumption of a conviction which aris es therefrom , that

Dr. Higginbotham was not "convicted or found guilty" of crimes

relating to the practice of chiropractic medicine.

15 . Dr. Higginbotham is not gu ilty , as a matter of fact,

of committing an offense punishable under section 460.413(1)(c),

Florida Statutes (2008) .

CONCLUSIONS OF LAW

16 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuan t to sections 120.569, a nd 120.57(1),

Florida Statutes .

1 7 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Fla . Real Estate Comm'n , 281 So. 2d 487,

491 (Fla. 1973). Accordingly, to impose discipline, the

Department must prove the charges against Dr. Higginbotham by

clear and convincing evidence. Dep't of Banking & Fin., Div. of

Sec. & Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932,

933 - 34 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292 ,

294 - 95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l Reg . , Bd. of

Medicine , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

18 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a "workable def inition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in t he mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev . denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

19 . In the Complaint, the Department charged

Dr. Higgi nbotham under section 460.413(1)(c) , which provides in

pertinent part as follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action . . . :

* * *

(c) Being convicted or found guilty,

regardless of adjudic ation, of a crime in

any jurisdiction which directly relates to

the practice of chiropractic medicine or to

the ability to practice chiropractic

medicine. Any plea of nolo contendere shall

be considered a conviction for purposes of

this chapter.

20 . Bei ng penal in nature, the foregoing statute "must be

construed strictly, in favor of the one against whom the penalty

would be imposed." Munch v. Dep't of Prof'l Reg . , Div. of Real

Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v.

Dep't of Bu s. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA

2002); McClung v. Crim. Just. Stds. & Training Comm'n , 458 So.

2d 887, 888 (Fla. 5th DCA 1984) ("[W]here a statute provides for

revocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a p enal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be constr ued in favor of the licensee.");

see also, e.g. , Griffis v. Fis h & Wildlife Conserv . Comm'n , 36

Fla. L. Weekly D 639 (Fl a. 1st DCA Mar. 28, 2011)(statues

imposing a penalty must never be extended by construction).

21 . Generally speaking, "[i]n the eyes of the law a person

is not deemed to have committed a crime unti l an adjudication of

guilt has been entered against him." Holland v. Fla. Real

Estate Comm'n , 352 So. 2d 914, 916 (Fla. 2d DCA 1977)(real

estate agent who had pleaded nolo contendere to, and been found

guilty of, the felony charge of gross fraud could not

subsequently be disciplined for having "[b] een guilty of a

crime" because the court had withheld adjudication ). Section

460.413(1)(c) attempts to override this general principle by

equating a no contest plea with a conviction.

22. In Ayala v. Dep't of P rof'l Reg. , 478 So. 2d 1116

(Fla. 1st DCA 1985), the court considered the question of

whether section 458.331(1)(c) , Florida Statutes (1983) ÏÏ to which

section 460.413(1)(c) is identical except that it refers to

chiro practic medicine ÏÏ was unconstitutional f or creating a

conclusive presumption of guilt on the predicate fact of a no

contest plea. The appellant in Ayala was a medical doctor who

had pleaded no contest to charges relating to insurance fraud

and, as a result, had been placed on five years' probat ion, with

adjudication withheld. Id. at 1116. He had main tained his

innocence throughout and considered his plea to have been a

"plea of convenience." Id. at 1117. Nevertheless, the

department filed an administrative complaint against the doctor ,

charg ing him with having been convicted of a crime relating to

the practice of medicine. Id. at 1116.

23. Following an informal hearing before the Board of

Medical Examiners (the "board"), at which the doctor testified

that he had pleaded nolo contendere "t o avoid the hassle and

risks involved in a criminal trial," the board found the doctor

guilty as a matter of law of the disciplinable offense d efined

in section 458.331(1)(c), on the ground that his plea

necessarily constituted a "conviction." Id. at 1117 . The

doctor's license was suspended for one year (with nine months

stayed) , and he was placed on administrative probation for five

years. Id.

24. On appeal, the appellant's arguments caused the court

to have "substantial concern" that section 458.331 (1)(c) would

be unconstitutional if it were construed and applied, as the

board had done, to deprive a medical doctor of the right to

dispute his criminal culpability by demonstrating the reasons,

facts, and circumstances surrounding a prior plea of nolo

c ontendere. Id. at 1118. Rather than decide the constitutional

issue, however, the court instead elected to interpret the

statute in a way that would "allow it to withstand

constitutional attack." Id. Announcing its holding, the court

wrote:

We find tha t section 458.331(1)(c) is

clearly constitutional by construing the

word "shall" in the last sentence of that

subsection as permissive rather than

mandatory in meaning. Rich v. Ryals , 212

So. 2d 641, 643 . As so construed, the Board

of Medical Examiners m ay presumptively

consider the nolo contendere plea as

evidence of a conviction for purposes of

chapter 458; however, in accordance with the

Supreme Court's opinion in The Florida Bar

v. Lancaster , 448 So. 2d 1019 , the Board

must allow appellant the opportu nity to

rebut this presumption and assert his

innocence of the underlying criminal charges

by explaining the reasons and circumstances

surrounding his plea of nolo contendere, and

thereby attempt to convince the Board that

he is not guilty of a crime in vi olation of

the provisions of section 458.331(1)(c) .

The Board must consider this evidence in

deciding appellant's guilt or innocence for

purposes of the disciplinary charges. Such

explanation may, of course, always be

considered in mitigation of punishme nt if

appellant should be adjudicated guilty by

the Board.

Id. at 1118 - 19. The order imposing discipline, having been

based on an erroneous interpretation of the statute, was

reversed and the case remanded for further proceedings. Id. at

1119.

25. The Department argues that Ayala does not apply here

because Dr. Higginbotham ÏÏ like the real estate agent in Holland ,

supra , whose license could not be suspended ÏÏ was "found guilty"

and, for that reason, has committed the offense defined in

section 460.413(1) (c), regardless of the circumstances

surrounding her plea of nolo contendere, her persistent

protestations of innocence , and the fact that adjudication was

withheld . 5 This argument is rejected, for several reasons.

26. To begin, the Department misread s t he statute's plain

language, whic h must be applied strictly in favor of the

licensee. The Department's argument ÏÏ which is premised on the

notion that a person who has neither pleaded nor been

adjudicated guilty can yet be "found guilty" by a court without

a trial ÏÏ would impermissibly expand the scope of section

460.413(1)(c). This is because, as commonly used and understood

in the context of a criminal prosecution, the term "found

guilty" denotes the factual decision (typically a verdict)

reached after a trial where the government has proved beyond a

reasonable doubt ÏÏ by evidence presented to the trier of fact

(usually a jury but sometimes the court) ÏÏ that the defendant

committed the crime(s) charged. Thus, the defendant is said to

be "found guilty" when the jury returns a guilty verdict. 6

27. When the licensee plead s nolo contendere and receiv es

a withheld adjudication, as happened in this case, no trier of

fact ever finds that person guilty beyond a reasonable doubt.

See Kinney v. Dep't of State, Div . of Licensing , 501 So. 2d 129,

133 (Fla. 5th DCA 1987)("The record of the criminal proceedings

does not reveal that appellant was 'found guilty of the

commission of a crime' [after entering a plea of nolo

contendere] because adjudication of guilt was with held.").

Unlike a guilty plea, moreover, a no contest plea is neither a

confession nor a conviction; it "simply means that the

defendant, for whatever reason, chooses not to contest the

charge." Garron v. State , 528 So. 2d 353, 360 (Fla. 1988) ; see

also , Kinney , 501 So. 2d at 132 ("A plea of nolo contendere may

be submitted by a defendant who deems the plea to be in his best

interest, while maintaining his innocence.").

28. Therefore, hewing to the unambiguous statutory text,

and conscious of the need to avoid extending section

460.413(1)(c) by construction, the undersigned concludes that a

licensee has been "convicted or found guilty" of a crime "which

directly relates to the practice of chiropractic medicine"

(hereafter, a "medical crime") only if he has: (a) pleaded

guilty to a medical crime, regardless of adjudication; (b) been

tried and found guilty of a medical crime by the trier of fact

(usually a ju ry), regardless of adjudication ; or (c) pleaded no

contest to a medical crime and received an adju dication of

guilt. Having settled upon this strict construction of the

statute in favor of the accused, the inevitable conclusion is

that a licensee who pleads no contest and is not thereafter

adjudicated guilty has not been "found guilty" as that term is

used in section 460.413(1)(c) , although he may be considered

"convicted," in accordance with Ayala , depending on the

circumstances surrounding the plea .

29. Next, although the Department's argument might be

superficially persuasive, the formal appeal o f the contention

that Dr. Higginbotham was "found guilty" for purposes of section

460.413(1)(c) simply because the trial court's Order contains

the words "finding of guilt" in its title and "found guilty" in

its text must bow to the substance of the transa ction that took

place in the circuit court. Legally speaking, once

Dr. Higginbotham's plea of nolo contendere was accepted, "'no

issue of fact exist[ed], and none [could] be made while the plea

remain[ed] of record.'" Vinson v. State , 345 So. 2d 711, 71 6

(Fla. 1977)( quoting U.S. v. Norris , 281 U.S. 619, 623 (1930)).

After the plea, therefore, the "'court was no longer concerned

with the question of guilt, but only with the character and

extent of the punishment.'" Id. The bottom line is that, in

the f ace of Dr. Higginbotham's plea, the trial court was without

authority (i.e., lacked jurisdiction) to decide, as a trier of

fact, any factual questions pertaining to her guilt or

innocence ; rather, all that was left was to render a judgment of

guilty (or wi thhold adjudication) and impose the sentence . Id.

at 716 - 17.

30. Consequently, t he trial court's statement that Dr.

Higginbotham "has been found guilty . . . upon the entry of a

nolo contendere plea" was not a true finding of fact (for the

court did not have the power to make such) but merely an

acknowledgment of the legal effect of the no contest plea , which

has been deemed " to be equivalent to a guilty plea only insofar

as it give s the court the power to punish." Id. at 715. That

is, i n reciting t hat Dr. Higginbotham had been "found guilty,"

the court did no more than declare something which, by operation

of law, is true of all defendants who se plea s of nolo contendere

are accepted, namely, that the law considers them guilty for

purposes of renderi ng a judgment of conviction and/or imposing a

sentence ; such declaration merely made explicit that which was

necessarily implicit, adding nothing of substance to the

disposition . The Department errs in concluding that Dr.

Higginbotham was determined, as a matter of fact , to be guiltier

than other defendants who similarly plead no contest and receive

a withheld adjudicat ion.

31. Finally, Ayala has been held to be applicable in a

situation where the licensee was "found guilty" upon the e ntry

of a nolo conte ndere plea. In Son v. Fla. Dep't of Prof'l Reg. ,

608 So. 2d 75, 75 - 76 (Fla. 3d DCA 1992), the court reversed a

final order suspending the license of a real estate agent who

was charged , under a statute nearly identical to section

460.413(1)(c), with havin g pleaded "nolo contendere and [been]

found guilty of unlawfully acting in the capacity of a

contractor without" a contractor's certificate . The court held

that the hearing officer ( whose recommended ord er the agency had

rejected ) "correctly applied the A yala court's reasoning"

because he (a) gave the licensee an opportunity to rebut the

presumption of a conviction by explaining the reasons and

circumstances surrounding the plea and (b) made "findings of

fact [regarding the licensee's lack of criminal culp ability]

that were supported by competent substantial evidence " in the

record. Id. at 76.

32. The findings of fact, which the Son court upheld,

included the following:

4. Respondent entered a plea of nolo

contendere on June 11, 1990. The court

f ound Respondent guilty of the charge

against him. Adjudication was withheld, and

Respondent was sentenced to serve 60 days in

the county jail. Court costs were assessed

against Respondent in the amount of $ 423.

Respondent was placed on probation and

all owed to serve 100 hours of community

service in lieu of 60 days in the county

jail. Respondent never served time in the

county jail.

Fla. Dep't of Prof'l Reg. v. Son , Case No. 91 - 0347, 1991 Fla.

Div. Adm. Hear. LEXIS 6551, *4 (Fla. DOAH June 29,

1991)(em phasis added)(endnote omitted). Thus, the court was

clearly aware that , as alleged, the licensee had been "found

guilty" of a crime ÏÏ but not adjudicated guilty ÏÏ after entering a

plea of no contest . Armed with th is knowledge, the court

nonetheless held th at the hearing officer had "correctly

applied" Ayala in recommending that that complaint be dismissed.

33. In general terms, Son shows that in the absence of a

judgment of conviction, the fact that the licensee was "found

guilty" of a crime based on a p lea of nolo contendere is

insufficient to establish the administrative offense of being

"convicted or found guilty." To prove such offense in that

event, the prosecuting agency must rely upon the Ayala

presumption ÏÏ provided , of course, the disciplinary st atute

specifies that a "plea of nolo contendere shall be considered a

conviction." Vis - à - vis this case, Son instructs that the

Department not only may rely upon Ayala (because the statute

allows a plea of no contest to be considered a conviction) but

must resort to the Ayala presumption (because the "finding of

guilt" in the Order is insufficient to establish the offense

charged here).

34. The lessons of Son are reinforced by Molinari v. Dep't

of Bus. & Prof'l Reg. , 688 So. 2d 388 , 389 (Fla. 4th DCA 1997) .

In that case, the court reversed a final order revoking the

license of a plumbing contractor who , having pleaded no conte st

to a crime as to which adjudication of guilt was withheld, was

determined to have been "convicted or found guilty, regardl ess

of adjudication " for purposes of imposing administrative

discipline. In his recommended order, which the agency adopted,

the hearing officer, applying Ayala , had found that the licensee

failed to rebut the presumption that the plea of nolo contendere

constit uted a conviction. Id. The court, however, determined

that the final order "was not supported by Ayala ," because the

relevant disciplinary statute did not contain a provision

specifying that a "plea of nolo contendere shall be considered a

conviction." Id.

35. The findings of fact before the court in Molinari

included the following:

3. On or about July 30, 1990, Respondent

pled nolo contendere to the misdemeanor

charge. Based upon Respondent's plea of

nolo contendere, the Dade County Judge

enter ed a judgement [sic] finding Respondent

guilty as charged , withholding adjudication

and imposing costs in the amount of $

300.00.

4. In the Dade County judicial circuit, a

judge usually makes a finding of guilt when

a defendant pleads nolo contendere e ven if

adjudication is withheld.

Dep't of Bus. & Prof'l Reg. v. Molinari , Case No. 94 - 5259, 1995

Fla. Div. Adm. Hear. LEXIS 4399 , *4 (Fla. DOAH Aug. 29,

1995) (emphasis added). The court therefore obviously knew that

the licensee had been found guilty based on his no contest plea,

even though adjudication had been withheld, and yet it still

held that the "no contest plea could not . . . be the basis of

the revocation of [the licensee's] license . " Molinari , 688 So.

2d at 389. Molinari teaches, then, th at being "found guilty"

based on a no contest plea is not a disciplinable offe nse ( if

adjudication was withheld ) under a statute which (a) authoriz es

punishment for being "convicted or found guilty" of a crime but

(b) does not allow a plea of no contest to be considered a

conviction .

36. In this case, unlike Molinari , the disciplinary

statute does allow a no contest plea to be considered a

conviction, which is why Ayala applies here, where in Molinari

it did not. Yet, although Molinari is distinguishable for this

reason , the distinction does not help the Department because in

Molinari , just as in Son , the fact that the licensee had been

"found guilty" based on a plea of nolo contendere was

insufficient, in the absence of a judgment of conviction, to

estab lish the offense of b eing "convicted or found guilty " of a

crime. In Molinari , the prosecuting agency was unable to rely

upon the Ayala presumption and thus lost. In Son , the

prosecuting agency needed , and was able , to rely upon the Ayala

presumption, bu t the licensee rebutted the presumption. In this

case, as both Molinari and Son make clear, the Department needs

the presumption to prove the offense charged because Dr.

Higginbotham was not adjudicated guilty after entering a plea of

nolo contendere, eve n though she was "found guilty" by the trial

court. As in Son , the Department is entitled to rely upon a

presumption of conviction . The determinative question ÏÏ which is

a factual one ÏÏ is whether Dr. Higginbotham rebutted the Ayala

presumption.

37. To r eview briefly, Ayala says that the Department is

entitled to rely on a presumption, which arises from the no

contest plea, th at the respondent was convicted of a medical

crime. The presumption is rebuttable, however, and thus the

respondent must be allowe d to "assert his innocence" of the

crime ÏÏ not, significantly, by proving his innocence (although

the option of proving that his conduct did not violate the

criminal law should be open to the respondent), but rather by

proving the circumstances surrounding his plea and the reasons

for entering such a plea, which evidence then must be considered

in determining whether the respondent is guilty of the

disciplinable offense .

38. The court did not elaborate on the operation of this

presumption. Legally, howev er, a

presumption is an assumption of fact which

the law makes from the existence of another

fact or group of facts. § 90.301(1), Fla.

Stat. (1987). A presumption is typically an

evidentiary tool which compels a trier of

fact to find the truth of an ulti mate fact

which is only supported circumstantially by

evidence of predicate facts and which is not

satisfactorily rebutted by the opposing

party's evidence. See C. Ehrhardt, Florida

Evidence , § 301.1 (2d ed. 1984); McCormick

on Evidence , § 342 (2d ed. 197 2). Similar

to an inference, in terms of logical

analysis, if the predicate fact of a

presumption is true, then the ultimate fact

is also presumed to be true; if A, then B.

Because of the regularity of our mail

service, for example, a judge may find that

the predicate fact A (a letter was mailed)

compels a finding that the ultimate fact B

(the letter was received) is also true.

See Brown v. Giffen Indus., Inc. , 281 So.2d

897 (Fla. 1973) . Nevertheless, the mailing

of a letter is merely circumstantial

ev idence that the letter was actually

received.

Tomlinson v. Dep't of Health & Rehab. Serv. , 558 So. 2d 62, 66

(Fla. 2d DCA 1990).

39. Where the Ayala presumption is in play, a t least one

of the predicate facts is, obviously, the no contest plea. The

pres umed (or ultimate) fact, i.e. , the fact which the law

assumes is true based on the existence of a certain predicate

fact or facts, is the respondent's conviction of the underlying

criminal charge. 7 The Ayala court instructed that the respondent

could defe at the presumption of a conviction , not by disproving

t he obvious predicate fact of the plea or by proving that he did

not actually commit a crime ( al though doing either sh ould defeat

the presumption), but by establishing facts relating to the plea

itself ( as opposed to the criminal conduct with which the

respondent had been charged ) .

40. In this regard, the court implicitly recognized

another predicate fact; namely , that most people who plead no

contest to (and thereby accept punishment for) a crime are

a ctually guilty of such crime , the plea being tantamount to an

"implied confession" of guilt, albeit a limited one which "does

not admit the allegations of the charge in a technical sense"

and is made solely for the purposes of the pending prosecution.

Vin son , 345 So. 2d at 714 - 15. I t is this implied predicate fact

which, when paired with the predicate fact of the respondent's

plea of no contest, creates the rational connection between the

plea and the respondent's presumed conviction . 8 ( If we were to

ass ume, contrarily , that most people who plead no contest are

actually innocent , then it would be illogical to presume a

conviction from the fact of a no contest plea. ) 9

41. The implied predicate fact is one that , as a practical

matter, can not be disproved. See Tomlinson 558 So. 2d at 67 n.2

( " Some presumptions probably involve predicate facts which

cannot be disproven either as a practical matter or as a matter

of policy. For example, the presumption of sanity is based on

the predicate fact that most peopl e are sa n e . "). Yet, the

decision in Ayala clearly authorizes a respondent to circumvent

the implied predicate fact by showing that he is not like "most

people" who plead no contest . Unfortunately, the court did not

clearly state what sort of reasons for, and circumstances

surrounding, a plea of no contest will suffice to rebut the

presumption of a conviction which aris es from such plea . Ayala

thus leav es the fact - find er with little guidance as to the fact s

which bear on the determination of whether the r espondent has

refuted the implied predicate for the presumption of a

conviction .

42. Because, the undersigned reasons, focusing exclusively

on subjective facts surrounding the plea of nolo contendere,

such as the respondent's state of mind and motive s, wo uld tend

to diminish the utility of the Ayala presumption as a

prosecutorial tool , it is conclude d that the respondent's

explanation must provide objectively reasonable grounds for

enter ing the plea , which are consistent with innocence . Such

grounds must be more than a mere protestation of innocence, and

be sufficiently persuasive to outweigh the presumptive

determination, to which the fact - finder otherwise defaults, that

the respondent entered the plea because of a guilty conscience

or in surrender to ove rwhelming odds of conviction. The

respondent might do this by showing , e.g . , that he pleaded no

contest while being conscious of innocence be cause , under the

circumstances , the net advantages of accepting the plea bargain

(after accounting for the burdens thereof) were such that the

other or additional benefits which would have flow ed from an

acquittal were not so valuable as to justify taking the risk,

however small, of being found guilty (which is always at least

some possibility , even for the falsely ac cused ) and sentenced

accordingly .

43. Ano ther relevant facto r to consider in this regard is

the extent to which one side or the other, the state or the

defendant, seems to have gotten the better of the plea bargain.

Because each party to the transaction presumably sought to

obtain the best outcome consistent with its interests, the state

would have tried to secure the harshest punishment for as many

charges as possible, while the defendant would have sought the

opposite, i.e., the lightest punishment for the fewest charges.

Thus, the relative severity or lenience of the sentence imposed;

the number of charges which the defendant elected not to contest

versus the number of charges, if any, the state was willing to

dismiss; the seriousness of the charges to which the plea was

entered as compared to the charges dismissed, if any ÏÏ these and

similar co nsiderations provide a rough reflection of the

relative strengths and weaknesses of the state's and the

defendant's respective bargaining positions at the time of the

plea. The better the deal for the defendant, the weaker the

presumption of a conviction, and vice versa.

44. As found above, Dr. Higginbotham gave objectively

reasonable grounds, consistent with innocence, for the plea that

she entered. She thus demonstrated that she was not like "most

people" who enter a plea of nolo contendere because they know

they are guilty and/or recognize that a conviction is likely .

She successfully rebutt ed the Ayala presumption.

45. The Department argues in the alterna tive that if Ayala

were applicable in this case (which it is), the presumption of a

conviction arising from the plea of nolo contendere shifts the

burden of proof to Dr. Higginbotham to establish that she did

not actually commit the crime for which she was sentenced ÏÏ that,

in other words, her conduct was in fact innocent.

Dr. Higginbotham, in contrast, contends that the Ayala

presumption is a vanishing presumption which disappears in the

face of credible evidence concerning the reasons for and

circumstanc es surrounding the plea of nolo contendere . Dr.

Higginbotham maintains that once the presumption vanishes, which

she argues happened here, the Department must prove by clear and

convincing evidence that s he actually committed the underlying

criminal offen ses. Common to both parties' positions is the

idea that, under Ayala , it is necessary for the fact - finder to

ascertain whether Dr. Higginbotham's historical conduct was

criminal in nature or not.

46. As is apparent from the preceding discussion, the

und ersigned concludes that both parties have misread Ayala ,

which does not hold, either explicitly or by necessary

implication, that the parties must relitigate the underlying

criminal case where, as here, the agency has elected to rely

entirely on the effect of the plea. Rather, the Ayala court

chose its words carefully, explaining that the licensee must be

allowed to assert his innocence "by explaining the reasons and

circumstances surrounding his plea of nolo contendere" and by

that means (as opposed to as serting his innocence by explaining

the reasons for, and circumstances surrounding, his allegedly

criminal conduct, which is a different kettle of fish) "attempt

to convince the [agency] that he is not guilty of a [medical]

crime in violation of " the disci plinary statute. Ayala , 478 So.

2d at 1118 - 19. Under Ayala , the question of whether the

licensee actually com mitted the crime is irr elevant unless (a)

proof of such underlying conduct is necessary to esta blish other

disciplinary offenses with which the a gency has charged the

licensee , in which case the agency will necessarily have alleged

the conduct to be proved in the administrative complaint 10 ; or

(b) the licensee chooses to rebut the Ayala presumption by

proving his innocence of the underlying crime(s) , which Ayala

n either require s nor prohibit s . 11

47. This reading of Ayala conforms to the disciplinary

statute at issue ÏÏ section 460.413(1)(c) ÏÏ which does not require

proof of criminal conduct to establish the offense. 12 This

section merely proscribes bei ng "convicted or found guilty" of a

medical crime, not committing a medical crime. Because a plea

of nolo contendere, according to Ayala , is not necessarily a

conviction, entering such a plea is not necessarily a

disciplinable offense , as long as adjudica tion of guilt was

withheld . The ultimate issue of fact under Ayala is whether the

no contest plea constituted a conviction, not whether the

licensee actually committed a crime. The agency is entitled to

a rebuttable presumption that the plea is equivalen t to a

conviction for purposes of section 460.413(1)(c) ; it is not

entitled to a presumption that the licensee engaged in conduct

which violated the criminal law .

48. Dr. Higgin b otham rebutted the Ayala presumption; the

evidence fails to show clearly a nd convincingly that she was in

fact "convicted or found guilty" of a medical crime.

Alternatively, as set forth in the findings above, the evidence

as a whole, including the no contest plea, fails to establish,

clearly and convincingly, that Dr. Higginbo tham actually

committed any crime; this finding is the same whether the Ayala

presumption shifts the burden of proof or vanishes in the face

of persuasive evidence to the contrary .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

L aw, 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 1 1 th day of May , 20 1 1 , 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.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

This 1 1 th day of May , 20 1 1 .

ENDNOTES

1 / See, e.g., Wilson v. State , 45 So. 3d 514 , 516 (Fla. 4th DCA

2010)("The party seeking the admission of a witness's for mer

testimony carries the burden of demonstrating the witness's

unavailability for trial, and that the party exercised due

diligence in its attempt to procure the witness's attendance or

testimony.").

2 / Dr. Higginbotham's motion to strike the Department 's late

Proposed Recommended Order is denied, albeit with regret that an

appropriate remedy is unavailable in this instance. Striking an

overdue proposed recommended order disadvantages the

administrative law judge, who is then deprived of one party's

pos t - hearing views of the relevant facts and applicable law.

The undersigned considered giving Dr. Higginbotham the

opportunity to file a reply to the Department's Proposed

Recommended Order but ultimately decided against that to spare

her the additional exp ense.

3 / Three of Dr. Higginbotham's co - defendants had been her

employees at the time the alleged crimes were committed. These

were Ms. Cajuste, who was Dr. Higginbotham's secretary and

receptionist; Ms. Eugene, who cleaned the doctor's office and

subs tituted for Ms. Cajuste on occasion; and Mr. Espinosa, a

massage therapist.

4 / Ms. Eugene testified, based on "hearsay" (her word), that

"everyone said [Dr. Higginbotham] knew [the accident was

staged]. Everyone knew she knew." The undersigned rejects this

obvious hearsay, for which no exception was established, not

only because it neither supplements nor explains other

admissible evidence, but also because it lacks sufficient

persuasive force to support a finding of fact based on any

standard of proof , much less the stringent clear and convincing

standard applicable here. In this regard, the undersigned

observes that, in conducting his affairs, he would not rely upon

the hearsay statement of a person who, in practically the same

breath that such hears ay is uttered, admits to having

participated in a scheme to perpetrate insurance fraud,

particularly when, as here, (a) the statement is based solely

upon what "everyone" in the person's circle of acquaintances (or

accomplices) supposedly "knew," (b) no at tempt is made to

identify all individuals comprising the set of "everyone," and

(c) there is no way to ascertain how "everyone" came to "know"

what "everyone" is reported to have "known." The undersigned

concludes that no reasonably prudent person would r ely upon such

rank and unreliable hearsay as the basis for taking any action

of importance. See § 120.569(2)(g), Fla. Stat.

5 / Although the Department argues that Ayala is not applicable,

its position is more accurately viewed as an assertion that the

Department does not need to rely upon the Ayala presumption to

make its case. This is because the Ayala presumption exists to

assist the prosecuting agency, not the accused.

6 / A person who pleads guilty might also be regarded as "found

guilty" for purp oses of section 460.413(1)(c), even though his

plea obviates the need for a trial and verdict. See Romano v.

Dep't of Bus. & Prof'l Reg. , 948 So. 2d 938, 941 (Fla. 5th DCA

2007)("[I]t is undisputed that [the licensee] was found guilty

on all charges" to w hich he had pleaded guilty). Such a

construction would not extend the statute, however, because "the

courts of this state have long equated a guilty plea with a

conviction." Id. at 941 ; see also Garron v. State , 528 So. 2d

353, 360 (Fla. 1988)(The "guilt y plea is more than a confession;

it is a conviction").

7 / Although the Ayala court did not explicate this point, the

term "conviction" ÏÏ as in, "the nolo contendere plea [may

presumptively be considered] as evidence of a conviction for

purposes of" § 46 0.413(1)(c) ÏÏ clearly refers to an externally

imposed legal status rather than the prosecutor's factual

allegations regarding the licensee's conduct. In other words,

the court was saying that, for purposes of imposing

administrative discipline under a stat ute such as §

460.413(1)(c), the agency may presume that the licensee was

determined via the judicial process to be guilty of a crime ÏÏ

"guilt" here being a legal condition. The court did not say

that the nolo contendere plea gives rise to a presumption th at

the licensee committed the alleged conduct underlying the

criminal charge. Such a presumption is unnecessary in the

context of § 460.413(1)(c), which is principally concerned with

what was done to the licensee in consequence of his conduct, not

with wh at the licensee did (except to the extent necessary to

establish that the crime of which he was convicted or found

guilty directly related to the practice of, or ability to

practice, chiropractic medicine). The difficulty is that a

licensee such as Dr. Hi gginbotham who pleads no contest and is

not thereafter adjudicated guilty has not actually been found

guilty in fact or in law; hence the "conviction" which Ayala

permits the agency to presume is a kind of a legal fiction: the

licensee may be disciplined as if he had been convicted or found

guilty.

8 / The syllogism is as follows: Most people who plead no

contest are guilty. The respondent pleaded no contest. Thus,

we can reasonably infer that the respondent, like most people

who enter such a plea, is probably guilty and therefore may be

considered to have been convicted.

9 / All of this presupposes that guilt is not to be presumed

based merely on the respondent's arrest and prosecution. To be

clear, the undersigned does not read Ayala to suggest tha t it

should be assumed, as an implied predicate fact, that most

people who have been charged with a crime are guilty of the

crime. Nothing in Ayala overturns the proposition that persons

are presumed innocent of crimes charged unless and until proven

guil ty thereof.

10 / Due process prohibits an agency from taking penal action

against a licensee based on matters (either factual or legal)

not specifically alleged in the charging instrument. See

Trevisani v. Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st

DCA 2005)("A physician may not be disciplined for an offense not

charged in the complaint."); Marcelin v. Dep't of Bus. & Prof'l

Reg. , 753 So. 2d 745, 746 - 747 (Fla. 3d DCA 2000); Delk v. Dep't

of Prof'l Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he

conduct proved must legally fall within the statute or rule

claimed [in the administrative complaint] to have been

violated.").

11 / The Ayala court's statement that "[t]he Board must consider

[evidence of the facts and circumstances surrounding the plea]

in deciding [the licensee's] guilt or innocence for purposes of

the disciplinary charges," id. at 1119, plainly refers to the

licensee's guilt or innocence of the disciplinable offense, not

the underlying crime. This is clear not only from the text of

th e sentence itself, but also from the context, as the court

immediately thereafter authorizes consideration of the

licensee's evidence in mitigation of punishment should the

licensee "be adjudicated guilty by the Board." Id. Obviously

the administrative a gency cannot adjudicate the licensee guilty

of a crime.

12 / There might be a need for such proof if the question is

whether the crime of which the respondent was convicted or found

guilty was a medical crime. That is not an issue in this case.

COPIES FURNISHED :

Tari Anne Rossitto - Van Winkle, Esquire

Tobey Schultz, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahass ee, Florida 32399 - 3265

Sean Michael Ellsworth , Esquire

Ellsworth Law Firm, P.A.

1501 Collins Avenue, Suite 208

Miami Beach, Florida 33139

Bruce Deterding, Executive Director

Board of Chiropractic Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 07

Tallahassee, Florida 32399 - 3265

E. Renee Alsobrook, Acting General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

T allahassee, 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 agenc y that

will issue the Final Order in this case.