21-001363PL Department Of Health, Bureau Of Emergency Medical Services vs. Andres Perez, E.M.T.-P. Status: Closed Recommended Order on Wednesday, December 15, 2021.

Summary: Recommend license revocation for EMT-P who pled guilty to three felony counts of child abuse. Child abuse is related to the practice of EMP-T because the duties call for interaction wtih children and the crime shows diregard for vulnerable people.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B UREAU OF

E MERGENCY M EDICAL S ERVICES ,

Petitioner ,

vs. C ase No. 21 - 1363PL

A NDRES P EREZ , E.M.T. - P. ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing in this case was conducted before

Administrative Law Judge (ÑALJÒ) Mary Li Creasy by Zoom conference on

September 30 , 2021.

A PPEARANCES

For Petitioner: Kimberly Lauren Marshall, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Gary Ira Rosenberg, Esquire

Gary Rosenberg P.A.

1555 North Park Drive , Suite 103

Weston, Florida 33326

S TAT EMENT OF T HE I SSUE

Whether Respondent violated section 401.411(1)(b), Florida Statutes

(2019), by entering a plea of nolo contendere to crimes related to his practice

as an e mergency m edical t echnician (ÑEMTÒ) and p aramedic (jointly referred

to as an ÑEMT - PÒ) .

P RELIMINARY S TATEMENT

Respondent, Andres Perez, an EMT - P, licensed in Florida, entered a plea

of nolo contendere on March 5, 2020, to three counts of child abuse with no

great bodily harm, third - degree felony violations of section 827.03(2)(c),

Flori da Statutes, and adjudication was withheld. On October 27, 2020, an

Administrative Complaint was filed by Petitioner, Department of Health,

Bureau of Emergency Medical Services , alleging that C hild Abuse/No Great

Bodily Harm is a crime related to the pract ice, or ability to practice,

Respondent Ô s profession , and his nolo plea warrants a penalty in accordance

with section 401.411(1)(b).

Peti ti oner timely challenged the Administrative Complaint. The matter

was referred to the Division of Administrative Heari ngs (ÑDOAHÒ) on

April 22, 2021. Petitioner filed an Unopposed Motion to Continue Final

Hearing from June 23, 2021, which was granted . The final hearing was held

on September 30, 2021.

Petitioner presented the deposition testimony of James Tucker, EMT - P,

w ho was proffered as an expert but was accepted only as a fact witness .

Petitioner Ô s Exhibits 1 and 2 were admitted into evidence. Respondent

testified on his own behalf and offered no exhibits.

The Transcript was filed on November 4 , 2021. Both parties ti mely filed

proposed recommended orders , which were considered in the preparation of

this Recommended Order. Unless otherwise indicated, citations to the Florida

Statutes refer to the version in effect at the time of the alleged violation . 1

1 This refers to the entry of the no lo conte ndere plea, not the date of the alleged crimes.

F INDINGS OF F A CT

1. Petitioner is the state agency charged with regulating EMTs and

paramedics pursuant to section 20.43 and chapter s 401 and 456 , Florida

Statutes.

2. Section 401.411(1)(b) provides that being found guilty of, or pleading

nolo contendere to, regardless of adjudication in any jurisdiction, a crime that

relates the practice as an EMT or paramedic, or to practice in any other

occupation, constitutes grounds for discipline.

3. At all times material to this proceeding, Respondent was licensed as

an EMT in Fl orida, who was issued certificate number EMT 519105 on or

about August 27, 2007 ; and as a p aramedic, who was issued certificate

number PMD 515150 on or about July 3, 2008.

4 . On April 13, 2019, Respondent was arrested by the Miami - Dade Police

Department, S pecial Victims Unit, for lewd and lascivious molestation on a

child under 12, in violation of section 800.04(5)(b), Florida Statutes.

5. On March 5, 2020, in the Circuit Court of the Eleventh Judicial Circuit,

in and for Miami - Dade County, in case number F 19 - 007289, Respondent

entered a plea of nolo contendere to three counts of child abuse with no great

bodily harm, third - degree felony violations of section 827.03(2)(c) , and

adjudication was withheld.

6. Prior to his arrest, Respondent served in a variety of capacities as an

EMT - P. Most recently , Respondent was employed as a technician in the adult

emergency room of Jackson Memorial Hospital since 2013. Until the instant

proceeding, Respondent Ô s license was never previously disciplined.

7. Respondent admits that some, but not all, of his experiences as an

EMT - P placed him in the presence of children. However, in the positions held

by Respondent immediately prior to his arrest, he had no contact with

children as part of his job duties . In fact, Respondent dec lined an opportunity

to work i n the pediatric emergency room of Jackson M emorial Hospital

because he believes handling emergencies with children is much more

difficult and does not care for that work.

8. Both Petitioner Ô s witness, James Tucker, and Respond ent agreed that

EMT - Ps who work in a firehouse or on an ambulance crew are often called to

emergencies involving children or where children m a y briefly be supervised

by EMT - Ps if their parents are taken to the hospital.

9. However, Respondent provided a de scription of several EMT - P roles

that can be performed other than working on a rescue truck that would

preclude contact with children. These include working in a long - term

geriatric care facility, adult emergency room, or medical imaging center.

10. Respon dent Ô s terms of probation include a prohibition fr o m having

unsupervised contact with minors without the court Ô s permission . The plea

agreement specifies that supervised contact Ñdoes not include situations

where an adult is present but is unaware that the Defendant is prohibited by

law from unsupervised contact with minors, or who is unaware that the

Defendant has been convicted of child abuse.Ò The plea agreement further

specifies that Ñsupervised contact does not include situations where the

purported su pervisor cannot or does not see the Defendant the entire time

that the minor child is in the presence of the Defendant. Ò

11. Under the terms of the plea agreement, Respondent is prohibited from

Ñentering into any profession, taking any job, volunteering, o r becoming

involved in any activity or hobby which involves the teaching of, supervision

of, baby - sitting of, care of, custody of, control over, contact with, or tends to

place him in contact with minor children.Ò The terms of Respondent Ô s plea

agreement a lso prohibit Respondent from Ñworking or volunteering at any

place where children regularly congregate, including, but not limited to,

schools, child care facilities, parks, playgrounds, pet stores, libraries, zoos,

theme parks, and malls.Ò

12. Respondent acknowledged EMTs and paramedics frequently visit

schools and daycares to pick up patients or put on educational events . Young

children frequently visit EMTs Ô and paramedics Ô place of employment to see

fire trucks and ambulances.

1 3 . Respondent is aware of the adverse consequences of violating

probation and has no intention of doing so in the future by working with

children.

1 4 . Respondent Ô s plea agreement prohibits him from wearing a uniform

Ñat any time for any purpose.Ò Mr. Tucker and Respondent both tes tified that

wearing a uniform is a standard component of an EMT Ôs and paramedic Ô s job.

1 5 . No details were provided regarding the nature of allegations against

Respondent and the underlying criminal charges. Respondent asserted that

the arrest and plea wer e the result of an angry family member and had no

basis in fact . Respondent claims he accepted a plea to avoid the risks of a

trial.

C ONCLUSIONS OF L AW

16 . DOAH has jurisdiction over the parties to, and subject matter of, this

proceeding pursuant to secti ons 120.569 and 120.57(1) , Florida Statutes

(2021) .

17. This is a disciplinary proceeding against Respondent Ô s license . As

such, Petitioner bears the burden, by clear and convincing evidence, to

establish the grounds for discipline against Respondent Ô s lic ense. Dep Ô t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987); Coke v. Dep Ô t of Child. & Fam. Servs .,

704 So. 2d 726 (Fla. 5th DCA 1998).

18. In Evans Packing Company v. Department of Agr iculture and

Consumer Services , 550 So. 2d 112 (Fla. 1st DCA 1989), the court defined

clear and convincing evidence as follows:

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 evidence 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 the mind

of the trier of fact the firm belief of conv iction,

without hesitancy, as to the truth of the allegations

sought to be established.

Id. at 116 n.5 (citing Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983)).

19. Disciplinary statutes and rules Ñmust be construed strictly, in favor of

the one against whom the penalty would be imposed.Ò Munch v. Dep Ô t of Pro.

Regul., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992) .

20. The grounds proving Petitioner Ô s assertion that Respondent Ô s license

should be disciplined must be those spe cifically alleged in the Administrative

Complaint. See e.g., Trevisani v. Dep Ô t of Health , 908 So. 2d 1108 (Fla. 1st

DCA 2005); Kinney v. Dep Ô t of State , 501 So. 2d 129 (Fla. 5th DCA 1987); and

Hunter v. Dep Ô t of Pro. Regul. , 458 So. 2d 842 (Fla. 2d DCA 19 84) .

21. Section 401.411(1)(b) authorizes Petitioner to impose discipline

against a licensee for Ñ being found guilty of, or pleading nolo contendere to,

regardless of adjudication in any jurisdiction, a crime that relates to practice

as an EMT or paramedic , or to practice in any other occupation, when

operating under this part . Ò

22. Respondent admits that he is licensed as an EMT - P and that he

entered a plea of nolo contendere to three felony counts of child abuse .

23. The central issue in this matter is wh ether, under these

circumstances, the crime of child abuse is related to the practice of an EMT

and paramedic. It is well founded that a crime need not be related to the

technical practice of a profession to serve as the basis for discipline.

Greenwald v. Dep Ô t of Pro. Regul . , 501 So. 2d 740 (Fla. 3d DCA 1987).

Additionally, the potential danger that the particular crime poses to the

public is to be considered. See Dep Ô t of Health v. Gustavo B. Borges, D.D.S. ,

Case No. 12 - 0005PL ( Fla. DOAH Mar. 1 2 , 2013 ; Fl a. DOH June 17 , 2015 ).

24. The conviction of, or plea of nolo contendere to, a crime which

contemplates the use of force or violence against a person may, depending on

the surrounding facts and circumstances, evidence a Ñwarped judgment and a

disregard for human lifeÒ obligating the revocation of the healthcare

practitioner Ô s license. Dep Ô t of Health v. Joseph Forlizzo, D.C. , Case No. 98 -

4865PL ( Fla. DOAH Oct. 27 , 2000 ; Fla. DOH J an . 29, 2021 ).

25. On numerous occasions, ALJs have found that the crime of p ossession

of child pornography relates to the practice of healthcare professions . 2 If

possession of child pornography is related to the practice of a healthcare

profession, it stands to reason that child abuse, involving direct harm to an

actual child, is also related, and indeed may be even more serious. This is

particularly true when, as in the present matter, that abuse was sexual in

nature and perpetrated against a young child.

26. The practice of an EMT and paramedic often places a practitioner in

cont act with children or in places where children congregate. This practice

also includes extended, unsupervised contact with children. Additionally,

many EMT and paramedic positions, including the position to which

Respondent purportedly aspires to return, re quire the wearing of a uniform ,

another condition that is prohibited by Respondent Ô s probation.

27. The terms of Respondent Ô s probation are irreconcilable with the

environments, situations, and way EMTs and paramedics practice their

professions.

28. The a ppropriate penalty in this case is revocation and is supported by

consideration of the following factors:

a. Respondent Ô s crime demonstrates disregard for the safety of vulnerable

individuals;

2 See, e.g., DepÔt of Health v. Christopher S. Carter, M.D. , Case No. 12 - 1575PL ( Fla. DOAH

Nov. 26, 2012; Fla. DOH Feb. 1 2 , 2013); DepÔt of Health v. David Allen Bressette, L.D.O.,

Case No. 20 - 3419PL ( Fla. DOAH Oct. 27, 2020 ; Fla. DOH Jan. 29, 2021 ); DepÔt of Health v.

Isaac A. Levinsky, Ph.D. , Case No. 20 - 0447PL ( Fla. DOAH Oct. 23, 2020 ; Fla. DOH Feb. 2 2,

2021 ).

b. A buse of children presents a grave danger to the public;

c . Respondent has shown no remorse and has not taken any responsibility

for his criminal conduct; and

d. Because unsupervised contact with minors is a frequent and often

unavoidable part of the practice of EMTs and paramedics, there is no way to

prevent Res pondent from further endangering the public .

29. Neither Respondent Ô s length of time practicing without a complaint

nor the effect of the penalty on his livelihood outweigh the circumstances

warranting revocation of his EMT and p aramedic licenses.

R ECOMM ENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Health enter a final order finding

Respondent guilty of violating section 401.411(1)(b) as charged in the

Administrative Complaint; revoking R espondent Ô s licenses to practice as an

EMT and p aramedic; and imposing costs of the investigation and prosecution

of this case .

D ONE A ND E NTERED this 15th day of December , 2021 , in Tallahassee,

Leon County, Florida.

S

M ARY L I C REASY

Administrative Law J udge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of December , 2021 .

C OPIES F URNISHED :

Kimberly Lauren Marshall, Esquire Gary Ira Rosenberg, Esquire

Depart ment of Health Gary Rosenberg P.A.

4052 Bald Cypress Way , Bin C - 65 1555 North Park Drive , Suite 103

Tallahassee, Florida 32399 - 3265 Weston, Florida 33326

Louise St. Laurent, Gen eral Counsel Joseph A. Ladapo, M.D. , Ph.D. ,

Department of Health State Surgeon General

4052 Bald Cypress Way, Bin C - 65 Department of Health

Tallahassee, Florida 32399 - 3265 4052 Bald Cypre ss Way, Bin A - 00

Tallahassee, Florida 32399 - 1701

Wanda Range, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1703

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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 file d with the agency that will issue the Final Order in this

case.