Final Order No. DOH-18-0608- r j- MQA MAR 2 7 2018 FILED DATE - Department of Health Deputy STATE OF FLORIDA BOARD OF PHYSICAL THERAPY PRACTICE ncy Clerk DEPARTMENT OF HEALTH, Petitioner, vs. License No.: PTA 21601 JUSTIN LEE GOCHENAUER, P.T.A. Respondent. FINAL ORDER This matter came before the Board of Physical Therapy Practice (Board) pursuant to Sections 120.569 and 120.57(2), Florida Statutes, at a duly-noticed public meeting on February 9, 2018, in Tampa, Florida, for a hearing not involving disputed issues of material fact. Board members present were Dr. Kay Tasso, Dr. Patrick Pabian, Dr. Gina Petraglia, Mr. Steve Chenoweth, and Dr. Ellen Donald. Dr. Tasso was recused for having served on the Probable Cause Panel. The Board was represented by Lynette Norr, Assistant Attorney General. The Department of Health (hereinafter "Petitioner") was represented by John Wilson, Assistant General Counsel. Respondent was present and represented by legal counsel provided by Joseph G. Sapp, Esquire, Chapman Law Group. On August 24, 2017, Petitioner filed an Administrative Complaint against Respondent alleging violations of Section 456.072(1)(c), Florida Statutes (2008-2010; 2011-2012), by pleading guilty to one or more crimes that relate to the practice of physical therapy or the ability to practice physical therapy; and Section 456.072(1)(x), Florida Statutes (2008; 2010; 2012) by failing to report to the board, in writing within 30 days after being convicted or found guilty of, or
entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. A copy of the Administrative Complaint is attached as Exhibit "A" and is hereby adopted and incorporated into this Final Order. Respondent replied to the Administrative Complaint by returning an Election of Rights form to the Department, stating that Respondent does not dispute the allegations in the Administrative Complaint, and wishes to be accorded an "informal" hearing pursuant to Section 120.57(2), Florida Statutes. The Department offered the investigative file into evidence to prove the facts as alleged in the Administrative Complaint and for the purposes of determining the penalty. The investigative file was received into evidence, and the Board finds that the uncontested facts adequately support the allegations. After a complete review of the record in this matter, including consideration of the Administrative Complaint, any written or oral evidence and testimony, and any mitigating or aggravating circumstances, the Board makes the following findings and conclusions: FINDINGS OF FACT The allegations of fact set forth in the Administrative Complaint are approved, adopted, and incorporated herein by reference as the findings of fact by the Board. The Board also finds there is competent, substantial evidence to support its findings and conclusions. CONCLUSIONS OF LAW Petitioner's Motion for Final Order for Hearing Not Involving Disputed Issues of Material Fact is granted. The conclusions of law alleged and set forth in the Administrative Complaint are approved, adopted, and incorporated herein by reference as the conclusions of law by the Board. Based upon the Findings of Fact, the Board concludes that the Respondent violated Section 456.072(1)(c), Florida Statutes (2008-2010), by pleading guilty to one or more crimes that relate 2
to the practice of physical therapy or the ability to practice physical therapy; Respondent violated Section 456.072(1)(c), Florida Statutes (2011-2012), by pleading guilty to one or more crimes that relate to the practice of physical therapy or the ability to practice physical therapy; Respondent violated Section 456.072(1)(x), Florida Statutes (2008), for failure to timely report to the Board within 30 days that the Respondent pled guilty to a crime of retail theft; Respondent violated Section 456.072(1)(x), Florida Statutes (2010), for failure to timely report to the Board within 30 days that the Respondent pled guilty to crimes of DUI, Reckless Driving, and unregistered Motor Vehicle; Respondent violated Section 456.072(1)(x), Florida Statutes (2010), for failure to timely report to the Board within 30 days that the Respondent pled guilty to one or more crimes of Burglary and Grand Theft in Case Number 2010-CF-014310-AMB in Palm Beach County Florida, and/or attempted Purchase of Heroin and Possession of Heroin in Case Number 2010-CF-013342- AMB in Palm Beach County, Florida; and Respondent violated Section 456.072(1)(x), Florida Statutes (2012), for failing to timely report to the Board within 30 days that the Respondent was convicted of crimes in case Number 2010-CF-013342-AMB and in a separate criminal case 2012- CF-002957-AMB. The violations set forth warrant disciplinary action by the Board. Therefore, it is ORDERED and ADJUDGED: 1. Respondent shall pay a fine of $10,000.00 within eighteen (18) months of the filing of this Final Order. 2. Respondent's license PTA 21601 is REVOKED. 3
RULING ON MOTION TO ASSESS COSTS The Board reviewed the Petitioner's Motion to Assess Costs and imposes the costs associated with this case in the amount of $1161.35. Said costs are to be paid within eighteen (18) months of the date this Final Order is filed. Payment of the fine and costs shall be made to the Board of Physical Therapy Practice and mailed to: Department of Health, HMQAMS/Client Services, P.O. Box 6320, Tallahassee, FL 32314-6320, Attn: Physical Therapy Practice Compliance Officer. This Final Order shall become effective upon filing with the Clerk of the Department of Health. DONE AND ORDERED this a/ day of pi a rcll, 2018. BOARD OF PHYSICAL THERAPY PRACTICE 1-14Ak Allen Hall, Executive Director, for Kay Tasso, PT, PhD, PCS, Chair NOTICE OF RIGHT TO JUDICIAL REVIEW A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Health, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Florida appellate district where the party resides. The Notice of Appeal must be filed within thirty (30) days of rendition of the Order to be reviewed. 4
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail Certified Mail to Justin Gochenauer, do Joseph G. Sapp, Esq., Chapman Law Group, 6841 Energy Ct., Sarasota, Florida 34240-8523; and by electronic mail to JSapp@ChapmanLawGroup.com and to Lynette Non, Assistant Attorney General, Lynette.Norr@myfloridalegal.com and John Wilson, Assistant General Counsel, John.Wilson@flhealth.gov this A /11`4- day of )71 WA, 2018. Certified Article Number 9414 7266 9904 2104 1058 39 SENDER'S RECORD 111111111111111111111111111 111111111111111111111111111111111111111 Justin Gochenauer d/o Joseph G. Sapp, Esq., Chapman Law Group 6841 Energy Ct., Sarasota, FL 34240-8523 Deputy Agency ClerK 5
STATE OF FLORIDA BOARD OF PHYSICAL THERAPY PRACTICE DEPARTMENT OF HEALTH, Petitioner, v. CASE NO. 2016-18033 YADIRA ROBERTSON, P.T.A, Respondent. MOTION TO ASSESS COSTS IN ACCORDANCE WITH SfCTION 456.072(4) The Department of Health, by and through counsel, moves the Board of Physical Therapy Practice ("Board") for entry of a Final Order assessing costs against Respondent for the investigation and prosecution of this case in accordance with Section 456.072(4), Florida Statutes (2017). As grounds the Petitioner states the following: 1. At its next regularly scheduled meeting, the Board will take up for consideration the above-styled disciplinary action and will enter a Final Order. 2. Section 456.072(4), Florida Statutes (2017), states, in pertinent part, as follows:
In addition to any other discipline imposed through final order, or citation, entered on or after July 1, 2001, under this section or discipline imposed through final order, or citation, entered on or after July 1, 2001, for a violation of any practice act, the board, or the department when there is no board, shall assess costs related to the investigation and prosecution of the case. The costs related to the investigation and prosecution include, but are not limited to, salaries and benefits of personnel, costs related to the time spent by the attorney and other personnel working on the case, and any other expenses incurred by the department for the case. The board, or the department when there is no board, shall determine the amount of costs to be assessed after its consideration of an affidavit of itemized costs and any written objections thereto... 3. As evidenced in the attached affidavit (Exhibit A), the investigation and prosecution of this case has resulted in costs in the total amount of $757.75 based on the following itemized statement of costs: a. Total costs for Complaints $177.99 b. Total costs for Investigations $45.77 c. Total costs for Legal $501.49 d. Total costs for expenses $32.50 4. The attached affidavit reflects the Department's costs for attorney time in this case as $501.49 (Exhibit A). The cost of obtaining an affidavit from an outside attorney will exceed this amount. Therefore, the Department is not seeking costs for attorney time in this case. 2
5. Should Respondent file written objections to the assessment of costs for the complaints, investigations and expenses within ten (10) days of the date of this motion, specifying the grounds for the objections and the specific elements of the costs to which objections are made, Petitioner requests that the Board determine the amount of costs to be assessed based upon its consideration of the affidavit attached as Exhibit A and any timely-filed written objections. 6. Petitioner requests that the Board grant this motion and assess costs in the amount of $256.26 as supported by competent, substantial evidence. This assessment of costs is in addition to any other discipline imposed by the Board and is in accordance with Section 456.072(4), Florida Statutes (2017). WHEREFORE, the Department of Health requests that the Board enter a Final Order assessing costs against Respondent in the amount of $256.26. 3
DATED this c, day of A, f ( ;1,, N."( 2017. Respectfully submitted, Christina Arzillo Shideler Assistant General Counsel Florida Bar #90869 Florida Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 850-558-9844 850-245-4684 fax CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Motion to Assess Costs has been provided to Yadira Robertson at FCI Coleman Medium, Register No. 13608-104, Federal Correctional Institution, Satellite Camp, P.O. Box 1027, Coleman, Florida 33521 and 4931 SW 161 Avenue, Miramar, Florida 33027 by U.S. Mail this V: 1411 day of 2017. CAS/cg C istina Arzillo S i ideler Assistant General Counsel
STATE OF FLORIDA BOARD OF PHYSICAL THERAPY PRACTICE DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO. 2017-02854 3USTIN GOCHENAUER, P.T.A., RESPONDENT. ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through undersigned counsel, files this Administrative Complaint before the Board of Physical Therapy Practice ("Board") against Respondent, Justin Gochenauer, P.T.A., and in support thereof alleges: 1. Petitioner Is the state agency charged with regulating the practice of physical therapy pursuant to section 20.43, Florida Statutes; chapter 456, Florida Statutes; and chapter 486, Florida Statutes.
2. At all times material to this Complaint, Respondent was a licensed physical therapist assistant or an applicant for licensure as a physical therapist assistant within the state of Florida, having been issued license number PTA 21601 on or about February 24, 2009. 3. Respondent's address of record is 451 Greensward Lane, B101, Delray Beach, Florida 33445. 4. On or about March 26, 2009, Respondent pled guilty to Retail Theft in Case Number 09-MM-004248-ASB, in the County Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida. Adjudication was withheld, 5. Physical therapists and physical therapist assistants regularly treat patients that are vulnerable. Therefore, the patienttherapist relationship requires that a therapist be honest and trustworthy. 6, Crimes related to theft are crimes of dishonesty and therefore relate to the practice of physical therapy or one's ability to practice physical therapy. 7. Respondent did not report this plea to the Board, in writing, within 30 days. DOH v. Justin Gocheneuer, P.T.A. Page 2 of 13
8. On or about June 13, 2011, in Case Number 2010-cr- 029968-ASB, in the County Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, Respondent plied guilty to and was adjudicated guilty of: 1) Driving Under the Influence, causing injury to property or person (DUI); 2) Reckless Driving, causing injury to property or person (Reckless Driving); and 3) Unregistered Motor Vehicle. 9. Respondent did not report these pleas to the Board, in writing, within 30 days. 10. On or about February 9, 2011, in Case Number 2010-CF- 014310-AMB, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, Respondent pled guilty to Burglary of a Conveyance (Burglary) and Grand Theft, both third degree felonies. Adjudication was withheld. 11. The underlying facts of the Burglary and Grand Theft offenses involved Respondent stealing money from a patient. Specifically, while at work, Respondent went into the patient's unlocked car and removed cash from the patient's wallet DOH v. Justin Gochenauer, P.T.A. Page 3 of 13
12. Respondent did not report these pleas to the Board, in writing, within 30 days. 13. On or about February 9, 2011, in Case Number 2010-CF- 013342-AMB, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, Respondent pled guilty to Attempted Purchase of Heroin and Possession of Heroin, in violation of sections 893.13(2)(A)(2) and 893.13(6)(A), Florida Statutes, respectively, both third degree felonies. Adjudication was withheld. 14. Respondent did not report these pleas to the Board, in writing, within 30 days. 15. Respondent subsequently violated his probation in Case Number 2010-CF-013342-AMB and was adjudicated guilty of both offenses on or about July 12, 2012. 16. Respondent failed to report these convictions to the Board, in writing, within 30 days. 17. On or about July 12, 2012, in a separate criminal case, in Case Number 2012-CF-002957-AM8, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, Respondent pled guilty to and was adjudicated guilty of Possession of DOH v. Justin Gochenauer, P.T.A. Page 4 of 13
Cocaine and Possession of Heroin, both third degree felonies in violation of section 893.13(6)(A), Florida Statutes. 18. Respondent failed to report these pleas and convictions to the Board, in writing, within 30 days. 19. Section 456.0635(3)(a), Florida Statutes, states, in relevant part, that the department shall refuse to renew a license of any applicant if the applicant has been convicted of, or entered a plea of guilty or nolo contendere to, regardless of adjudication, a felony under chapter 893, Florida Statutes. 20. By enacting section 456.0635(3)(a), Florida Statutes, the Florida Legislature made crimes contained within chapter 893, Florida Statutes, pertinent to the practice of health care professions, including physical therapy. COQ NT ik.c111me(s) RELATED TO THE PRACTICE 21. Petitioner realleges and Incorporates paragraphs one (1) through six (6), ten (10), and eleven (11) as if fully set forth herein. 22. Section 456.072(1)(c), Florida Statutes (20082010), provides that being convicted or found guilty of, or entering a plea of nolo contendere WI regardless of adjudication, a crime in any DOH v. Justin Gochenauer, P.T.A. Page $ of 13
jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession constitutes grounds for discipline. 23. On or about March 26, 2009, Respondent pled guilty to Retail Theft. 24. On or about February 9, 2011, Respondent pled guilty to Burglary and Grand Theft where the underlying facts involved Respondent stealing money from a patient. 25. Respondent entered these pleas while he held a license to practice physical therapy in the state of Florida. 26. Based on the foregoing, Respondent has violated section 456.072(1)(c), Florida Statutes (2008-2010), by pleading guilty to one or more crimes that relate to the practice of physical therapy or the ability to practice physical therapy. COUNT II: CRIMEO) RELATED TO THE PRACTICE 27. Petitioner realleges and incorporates paragraphs one (1) through three (3), thirteen (13), fifteen (15), seventeen (17), nineteen (19), and twenty (20) as if fully set forth herein. DOH v. Justin Gochenauer, P.T.A. Page 6 of 13
28. Section 456.072(1)(c), Florida Statutes (2011-2012)1 provides that being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession constitutes grounds for discipline. 29. Respondent pled guilty to and was convicted of Attempted Purchase of Heroin, Possession of Heroin, and Possession of Cocaine, all of which are third degree felonies under chapter 893, Florida Statutes. 30. The legislature has deemed felony crimes under chapter 893 to be related to the practice of physical therapy or the ability to practice physical therapy. 31. Respondent pled guilty to felony crimes under chapter 893, Florida Statutes, while he held a license to practice physical therapy within the state of Florida. 32. Based on the foregoing, Respondent has violated section 456.072(1)(c), Florida Statutes (2011-2012), by pleading guilty to one or more crimes that relate to the practice of physical therapy or the ability to practice physical therapy. DOH V. Justin Gochenauer, P.T.A. Page 7 of 13
COUNT In: FAILURE TQ REPORT TO BOARD 33. Petitioner realleges and incorporates. paragraphs one (1) through four (4) and seven (7) as if fully set forth herein. 34. Section 456.072(1)(x), Florida Statutes (2008), subjects a physical therapist assistant to discipline for failing to report to the board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. 35, Respondent pled guilty to Retail Theft on or about March 26, 2009, and failed to timely report It to the Board, in writing, within 30 days. 36. Based on the foregoing, Respondent has violated section 456,072(1)(x), Florida Statutes (2008). COUNT IV; FAILURE TO REPORT TO BOARD 37. Petitioner realleges and incorporates paragraphs one (1) through three (3), eight (8), and nine (9) as if fully set forth herein. 38. Section 456.072(1)(x), Florida Statutes (2010), subjects a physical therapist assistant to discipline for failing to report to the board, in writing within 30 days after the licensee has been convicted DOH v, Justin Gochenauer, P.T.A. Page $ of 13
or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. 39. On or about June 13, 2011, Respondent pled guilty to DUI, Reckless Driving, and Unregistered Motor Vehicle, and failed to report it to the Board, in writing, within 30 days. 40. Based on the foregoing, Respondent has violated section 456.072(1)(x), Florida Statutes (2010). COUNT V; FAILURk TO REPORT TO 1(10/kRD 41. Petitioner realleges and incorporates paragraphs one (1) through three (3), ten (10), and twelve (12) through fourteen (14) as if fully set forth herein. 42. Section 456.072(1)(x), Florida Statutes (2010), subjects a physical therapist assistant to discipline for failing to report to the board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. 43. Respondent failed to report to the Board, in writing, within 30 days of entering one or more of the following guilty pleas entered on or about February 9, 2011: DOH v. Justin Gochenauer, P.T.A. Page 9 of 13
a. Burglary and Grand Theft in Case Number 2010-CF- 014310-AMB, in Palm Beach County, Florida; andfor b. Attempted Purchase of Heroin and Possession of Heroin in Case Number 2010-CF-013342-AMB, in Palm Beach County, Florida. 44. Based on the foregoing, Respondent has violated section 456.072(1)(x), Florida Statutes (2010). COUNT VI: FAILURE TO REPORT TO BOARD 45. Petitioner realieges and incorporates paragraphs one (1) through three (3), thirteen (13), and fifteen (15) through eighteen (18) as if fully set forth herein. 46. Section 456.072(1)(x), Florida Statutes (2012), subjects a physical therapist assistant to discipline for failing to report to the board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. 47, On or about July 12, 2012, due to a violation of his probation In Case Number 2010-CF-013342-AMB, Respondent was convicted of the Attempted Purchase of Heroin and Possession of DOH v. Justin Gochenauer, Page 10 of 13
Heroin offenses, and failed to report these convictions to the Board, in writing, within 30 days. 48. On or about July 12, 2012, in a separate criminal case, in Case Number 2012-CF-002957-AMB, Respondent pled guilty to and was adjudicated guilty of Possession of Cocaine and Possession of Heroin, and failed to report these pleas and convictions to the Board, in writing, within 30 days. 49. Based on the foregoing, Respondent has violated section 456.072(1)(x), Florida Statutes (2012). WHEREFORE, Petitioner respectfully requests that the Board of Physical Therapy Practice enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. DOH V. Justin Gochenauer, P.T.A. Page 11 0 13
SIGNED this ;411A day of 2017. Celeste Philip, MD, MPH Surgeon v'ierai and Secretary /// CLERK: FILED DEPARTMENT OF HEALTH DEPUTY CLERK DAT E AUG 2 4 2017 Oa] Gilan Assist3n,6eneral Counsel Florida 'ar #0099413 Florida Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (850) 558-9844 (850) 245-4684 (fax) Oaj.Gilani@flhealth.gov PCP: 8/22/17 PCP Members: Dr. Tasso, Mr. Bumgarner, and Ms. Pettie DON v. Justin Gochenauer, P.T.A. Page 12 of 13
NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in the Administrative Complaint must conform to Rule 28-106.2015(5), Florida Administrative Code. Mediation under Section 120.573, Florida Statutes, is not available to resolve this Administrative Complaint NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline imposed. DOH v. Justin Gochenauer, P.T.A. Page 13 of 13