11-000065PL Department Of Health, Bureau Of Emergency Medical Services vs. Julio R. Colon Status: Closed Recommended Order on Tuesday, August 23, 2011.

Summary: Respondent's exposure of sexual organs was not unprofessional conduct as defined by statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BUREAU OF )

EMERGENCY MEDICAL SERVICES , )

)

Petitioner , )

)

vs. ) Case No. 11 - 0065PL

)

JULIO R. COLON , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on June 29, 2011, in Orlando, Florida, before Susan Belyeu

Kirkland, f/n/a Susan B. Harrell, an Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard McNelis, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

For Respondent: ( No appearance )

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

section 401.411(1)(g ) , Florida Statutes (2009) , 1 / and, if so,

what discipline should be im posed.

PRELIMINARY STATEMENT

On November 19, 2010, Petitioner, Department of Health

(Department), filed an Administrative Complaint against

Respondent, Julio R. Colon (Mr. Colon), alleging that he

violated section 401.411(1)(g). Mr. Colon filed a Petitio n for

Formal Hearing, requesting an administrative hearing. The case

was forwarded to the Division of Administrative Hearings on

January 10, 2011, for assignment to an Administrative Law Judge.

The final hearing was scheduled for March 25, 2011. On

Febru ary 16, 2011, Mr. Colon filed Respondent's Consent Motion

to Continue Final Hearing. The final hearing was rescheduled

for May 10, 2011.

On April 27, 2011, counsel for Mr. Colon requested to

withdraw. On April 29, 2011, the Department filed Department' s

Motion to Amend Administrative Complaint Based on Newly

Discovered Evidence, attaching the Amended Administrative

Complaint. On May 12, 2011, an Order was entered granting the

motion to amend the Administrative Complaint, and the Amended

Administrative Complaint was deemed filed as of the date of the

Order. On May 6, 2011, an Order was issued granting the request

to withdraw as counsel, and an Order was entered continuing the

final hearing to June 29, 2011.

The final hearing was scheduled to commence at 9:00 a.m. on

June 29, 2011, and Mr. Colon had been provided notice of the

hearing date and time. At the appointed time, Mr. Colon did not

appear nor did any representative of Mr. Colon appear on his

behalf. The commencement of the final hearing was dela yed for

30 minutes to give Mr. Colon to an opportunity appear, but he

did not. To date, Mr. Colon has not contacted the Division of

Administrative Hearings concerning his failure to appear.

At the final hearing, the Department called George A.

Ralls, M.D. , as its witness. Petitioner's Exhibits 1 through 5

were admitted in evidence. No witnesses or evidence were

presented on behalf of Mr. Colon.

The Transcript was filed on August 11, 2011. The

Department filed its p roposed r ecommended o rder on August 15,

2011. No post - hearing submittal was filed by Mr. Colon.

FINDINGS OF FACT

1. Mr. Colon is eligible for Emergency Medical Technician

(EMT) licensure, license number EMT 50126, and is licensed as a

paramedic, license number PMD 510323.

2. On January 15, 2 011, Mr. Colon pled nolo contendere to

a charge of exposure of sexual organs in Case No. 09 - 003621 -

MMM - A in the County Court, Fifth Judicial Circuit in and for

Hernando County, Florida. Adjudication was withheld, and

Mr. Colon was placed on probation for one year and sentenced to

25 hours of community service.

3. On January 15, 2011, Mr. Colon pled nolo contendere to

a charge of exposure of sexual organs in Case No. 09 - 003622 -

MMM - A in the County Court, Fifth Judicial Circuit in and for

Hernando County, Florida. Adjudication was withheld, and

Mr. Colon was placed on probation for one year and sentenced to

25 hours of community service. The sentence in Case No. 09 -

003622 - MMM - A ran concurrently with the sentence in Case No. 09 -

003621 - MMM - A.

4. One of the cases dealt with an argument that Mr. Colon

had with a young lady. Mr. Colon had made a u - turn into the

drive way of a mobile home park, and saw a young lady walking

by. Mr. Colon and the young lady had words, and the young lady

make a remark that Mr. C olon considered derogatory. He got out

of his car sans his lower garments; showed the young lady his

anatomy, bare from the waist down; and told her to kiss his ass.

He got back into the car, knowing that he had done a very stupid

thing, and drove off. The young lady took a picture of

Mr. Colon's bareness with her telephone.

5. The other case dealt with Mr. Colon again lowering his

pants at a school. Mr. Colon admitted to an officer of the

Hillsborough County Sheriff's office that the incidents were

id entical as far as the amount of clothing that he was not

wearing. Again, Mr. Colon's nakedness was caught by a camera.

Mr. Colon thinks that the reason that he showed himself on this

occasion was a result of a bet that he lost.

6. Mr. Colon admitted to the officer of the Hillsborough

County Sheriff's Office that on at least three to four other

occasions that he has disrobed while outdoors. He contends that

these occasions happened late at night when he was drunk and

stupid.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 & 120.57, Fla. Stat. (2010).

8. The Department has the burden to establish the

allegations in the Administrative Compla int by clear and

convincing evidence. Dep't of Banking & Fin. v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996).

9. The Department has alleged that Mr. Colon violated

section 401.411(1)(g), which provides:

(1) The department may deny, suspend, or

revok e a license, certificate, or permit or

may reprimand or fine any licensee,

certificateholder, or other person operating

under this part for any of the following

grounds:

* * *

(g) Unprofessional conduct, including, but

not limited to, any depart ure from or

failure to conform to the minimal prevailing

standards of acceptable practice as an

emergency medical technician or paramedic,

including undertaking activities that the

emergency medical technician or paramedic is

not qualified by training or e xperience to

perform.

10. The Department contends that crimes to which Mr. Colon

pled nolo contendere were acts of unprofessional conduct.

Section 401.411(1)(g) lists certain conduct which is considered

to be unprofessional. The conduct that is listed pertains to

the actual practice of a paramedic or an emergency medical

technician . In determining whether the plea of nolo contendere

to crimes of exposure of sexual organs in situations in which

the practice of a paramedic or an emergency medical technician

is not involved constitutes unprofessional, the doctrine of

ejusdem generis is applicable. "This doctrine means that 'where

an en umeration of specific things is followed by some more

general word or phrase, such general work or phrase will usually

be construed to refer to things of the same kind of species as

those specifically enumerated.'" Arnold v. Shumpert , 217 So. 2d

116, 119 (Fla. 1968), citing Children's Bootery v. Sutker , 107

So. 345 (Fla. 1926).

11. In the instant case, the general term, "including, but

not limited to," is referring to conduct that deals with conduct

involving the practice of a paramedic or an emergency me dical

technician. While Mr. Colon's conduct may have been immoral,

section 401.411 does not provide for discipline for immoral acts

not committed in the practice of a paramedic or an emergency

medical technician.

12. The Department has failed to establis h that Mr. Colon

violated section 401.411(1)(g).

13. In its p roposed r ecommended o rder, the Department

contends that Mr. Colon lied to the officer of the Sheriff's

Department who interviewed Mr. Colon. No allegations in the

Amended Administrative Complia nt refer to Mr. Colon lying to law

enforcement officials.

14. In its p roposed r ecommended o rder, the Department

contends that Mr. Colon is impaired and is unfit to perform his

duties as a paramedic or an emergency medical technician. No

such allegation s were alleged in the Amended Administrative

Complaint.

15. Violations not alleged in the Amended Administrative

Complaint cannot form a basis for disciplining Mr. Colon. To

find a respondent guilty of a violation for which he was not

charged is a violat ion of due process. Wray v. Dep't of Prof'l

Reg. , 435 So. 2d 312, 315 (Fla. 1st DCA 1983).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered dismissing

the Amended Administrative Complaint against Mr. Colon.

DONE AND ENTERED this 23rd day of August , 2011 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of August , 2011 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

COPIES FURNISHED :

Richard McNelis, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399

Julio Colon

1070 Providence Lane

Oviedo, Florida 32765

Vicki R. Grant, Executive Director

Council on Medical Physicists

Department of Health

Certification Unit

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399 - 3257

Nicholas Romanello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Wayne Mitchell, General Counsel

Council on Medical Physicists

Department of Health

Fort Knox Building Three

2727 Mahan Drive

Tallahassee, Florida 32308 - 5403

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypres s Way, Bin A02

Tallahassee, FL 32399 - 1701

H. Frank Farmer, M.D., Ph.D., Secretary

State Surgeon General

Department of Health

4052 Bald Cypress Way, Bin A00

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.