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Decision

Decision DPH v. John McDonough, PHET-07-636 (DALA, 2009)

Date: 08/11/2009
Organization: Division of Administrative Law Appeals
Docket Number: PHET-07-636
  • Petitioner: Department of Public Health
  • Respondent: John McDonough
  • Appearance for Petitioner: Sondra M. Korman, Esq.
  • Appearance for Respondent: Robert Payton, Esq.
  • Administrative Magistrate: Joan Freiman Fink, Esq.

Pursuant to G.L. c. 111C §§2 (1) and (16) and 105 CMR 170.750, the Petitioner, the Department of Public Health (DPH), on August 9, 2007, notified the Respondent, John McDonough, of the immediate suspension of his certification as an Emergency Medical Technician-Paramedic (EMPT-P) pending the disposition of a criminal case filed in Brockton District Court for Possession of Child Pornography. On August 29, 2007, the Respondent requested an adjudicatory hearing on the suspension of his EMT certification.
A Notice of Pre-hearing Conference dated October 23, 2007 was sent to the parties informing them that a Pre-hearing Conference in this matter was scheduled for October 25, 2007. At the request of the then counsel for the Respondent, Robert Payton, the Pre-hearing Conference was continued for a period of two months. On November 13, 2007, a Second Notice of Pre-hearing Conference was sent to the parties informing them that a Pre-hearing Conference would be held on December 20, 2007.

At the request of the Respondent's counsel, a Pre-hearing Conference was held by telephone on December 20, 2007. At that time, I ordered the parties to submit a Status Report by March 30, 2008 as to whether the Respondent intended to pursue his request for a hearing. On or about March 31, 2008, Attorney Payton notified the DPH by telephone that he was no longer representing the Respondent, stating that Attorney Raffi Yessayna was the Respondent's new legal counsel. DPH immediately notified DALA as to the change of counsel.
On April 1, 2008, a Second Order to File Status Report was issued ordering the Respondent to respond by May 21, 2008 as to whether he intended to pursue his claim for an adjudicatory hearing. This Order was sent to DPH as well as Attorney Raffi Yessayan. No response was ever received by this office to the Second Order to File Status Report.

On July 23, 2007, an Order to Show Cause was sent to the Respondent indicating that he had until August 13, 2008 to provide sufficient evidence of good cause for his failure to prosecute his appeal.

The Respondent did not respond to the Order to Show Cause. The Respondent's failure to respond to the Order to File Status Report and his subsequent failure to respond to the Order to Show Cause indicates his intention not to defend against the action taken by the Department of Public Health.
In light of the foregoing, I recommend that the Petitioner find the allegations
contained in the August 9, 2007 Notice of Agency Action - Immediate Suspension of EMT Certification to be true. I further recommend that the Petitioner take appropriate action in accordance with the provisions of G.L. c. 111C §§2(1) and (16) and 105 CMR 170.750.


SO ORDERED.


DIVISION OF ADMINISTRATIVE LAW APPEALS
\s\

Joan Freiman Fink, Esq.
Administrative Magistrate
Dated: 8/11/09

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