The Issue The issue is whether the Amended Order of Penalty Assessment issued to Respondent, Dave's Tractor, LLC, on August 27, 2018, is correct.
Findings Of Fact Respondent is a limited liability company engaged in the construction business with offices at 434 Skinner Boulevard, Suite 105, Dunedin, Florida. It uses tractors and a grading process to prepare land prior to building construction for commercial clients. Its managing member is David Richardson. The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. To enforce this requirement, the Department conducts random inspections of job sites and investigates complaints concerning potential violations of workers' compensation rules. On May 25, 2018, Christina Brigantty, a Department investigator, conducted a routine inspection of a job site at 3691 Tampa Road, Oldsmar, Florida. She observed two men working in a ditch, one man mixing cement, the other man driving a tractor. Investigator Brigantty observed four individuals at the job site, including the two working in the ditch: Dylan Richardson; Ismael Demillon; Javier Mastica; and Jorge Duran. She was informed by the individuals that they worked for Richardson Trailers, LLC. Investigator Brigantty called Mr. Ramsey, corporate officer for Respondent, who confirmed that Respondent hired Richardson Trailers, LLC, as a subcontractor. She later confirmed through discussions with Dylan Richardson and the Coverage and Compliance Automated System that Richardson Trailers, LLC, had no workers' compensation insurance on its employees. The parties have stipulated that at the time of the inspection, Respondent had not secured workers' compensation for any of the four individuals observed on the job site. Investigator Brigantty received approval from her supervisor to issue Respondent a Stop-Work Order and Request for Business Records for Penalty Calculation (BRR). These papers were served on Respondent on June 30, 2018. The BRR requested numerous types of business records for the period May 26, 2016, through May 25, 2018, including business tax receipts (occupational licenses), trade licenses or certifications, and competency cards held by Respondent or any of its principals; payroll documents (time sheets, time cards, attendance records, earnings records, check stubs, and payroll summaries for both individual employees and aggregate payrolls, and federal income tax documents reflecting the amount of remuneration paid or payable to each employee, including cash); and account documents including all business check journals and statements, which would include cleared checks for all open and/or closed business accounts established by the employer. Respondent failed to provide any business records in response to the BRR to determine Respondent's payroll for the audit review period. Therefore, the Department proceeded to compute a penalty based on imputed payroll in accordance with section 440.107(7)(e), Florida Statutes. This formula produced a penalty assessment of $165,654.10. On August 27, 2018, the Department served Respondent with an Amended Order of Penalty Assessment totaling $165,654.10. Pursuant to Florida Administrative Code Rule 69L-6.028(4), the Department also gave Respondent 20 business days in which to provide business records that would confirm Respondent's actual payroll during the two-year review period. This meant the records were due by September 25, 2018. A final hearing was scheduled initially for January 24, 2019. By agreement of the parties, on January 4, 2019, the case was rescheduled to March 15, 2019. One ground for granting a continuance was that the parties were "waiting on outstanding discovery that is being located and is necessary for an amicable resolution," presumably referring to items listed in the BRR. The final hearing was conducted on March 15, 2019, or almost seven months after the Amended Order of Penalty Assessment was issued. A week before the final hearing, Respondent began providing business records to the Department, including bank statements and checks on March 8, 2019, and a general ledger on March 13, 2019. Given the time constraints, they were not reviewed by the auditor until the day before the final hearing. The auditor conceded at hearing that these records would result in a "significantly lower" penalty, and they were sufficient to recalculate the penalty. Even so, at this late date, the Department refuses to recalculate the assessment. Respondent's principal, Mr. Richardson, testified that he has "no way to pay" the penalty, it will force him out of business, and he will be required to terminate his employees. Mr. Richardson also testified that he requested the records from the bank on "numerous occasions," but the bank refused to provide them directly to the Department or referred him to other branch offices. However, bank records are not the only way an employer can demonstrate the amount of payroll. This also can be established by business taxes or other records described in the BRR. Mr. Richardson denied knowing that business taxes are an option if bank records are unavailable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order finding that Respondent violated the workers' compensation laws by failing to secure and maintain required workers' compensation insurance for its employees, and imposing a penalty of $165,654.10. DONE AND ENTERED this 3rd day of May, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 3rd day of May, 2019. COPIES FURNISHED: Steven R. Hart, Qualified Representative Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Kyle Christopher, Esquire Department of Financial Services Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed) Adrian Shawn Middleton, Esquire Middleton & Middleton, P.A. 1469 Market Street Tallahassee, Florida 32312-1726 (eServed)
The Issue The issue to be determined is the penalty to be assessed for the admitted violation of chapter 440, Florida Statutes, by conducting business operations in the State of Florida without obtaining workers' compensation coverage for all employees that meets the requirements of chapter 440.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and corporate officers. Respondent is an active Florida corporation whose principal office is located at 2159 St. Johns Bluff Road, Jacksonville, Florida 32246. Respondent was an active construction industry business in the State of Florida during the period of February 15, 2008, through December 22, 2010 (the audit period). On October 22, 2010, Investigator Lucio Cabrera began an investigation on Respondent's compliance with chapter 440, Florida Statutes. On that date, Respondent was the contractor of record for a construction project at 4160 Julington Creek Road, Jacksonville, Florida. During the audit period, which included October 22, 2010, Respondent had an active employee leasing agreement with SouthEast Employee Leasing, Inc. (SouthEast). On October 22, 2010, Noble Construction Group, Inc. (Noble) was a sub-contractor of Respondent. On October 22, 2010, Noble had an active employee leasing agreement with Convergence Employee Leasing, Inc. (Convergence). On October 22, 2010, Salvador Perez was one of Noble's employees. Prior to the commencement of work on October 22, 2010, Respondent did not receive a Certificate of Liability Insurance and a list of the employees leased to Noble from the professional employer organization or employee leasing company used by Noble. On October 22, 2010, Salvador Perez was not listed as an employee on the roster of leased employees between Noble and Convergence. Based upon the omission of Perez on the list from Convergence, Investigator Cabrera determined that Respondent was in violation of chapter 440 and issued a Stop-Work Order and Order of Penalty Assessment to Respondent, which was served on Respondent on October 27, 2010. On that same date, the Department served a Request for Production of Business Records for Penalty Assessment Calculation. The records requested were for the period from October 28, 2007, through October 27, 2010, and included all documentation identifying the legal business name and business form, including the Federal Employer Identification Number (FEIN); all business tax receipts, trade licenses or certifications, and competency cards held by the employer; all documents reflecting the payroll of the employer, including but not limited to time sheets, time cards, attendance and earning records, check stubs and payroll summaries, and federal income tax documents reflecting the amount paid or payable to each employee; account documents such as business check journals and statements for all business accounts; all records of each business disbursement; all contracts for work performed by the employer; workers' compensation policies and certificates of insurance; professional employer organization records; records related to all subcontractors used; and documentation of subcontractors' workers' compensation coverage. Respondent complied with the request for records by providing profit and loss detail reports for 2008, 2009, and 2010, as well as payroll summaries from SouthEast. While the Department reviewed the records provided, it did not interview anyone connected with Respondent regarding the records received. The records were provided to Department employee Cathy Ferguson for use in calculating the penalty owed. Fred Vining was an employee of Respondent during the period of February 15, 2008, through July 27, 2009. Mr. Vining was covered through Respondent's arrangement with SouthEast for workers' compensation coverage from February 15, 2008, through July 27, 2009. During Ms. Ferguson's review of the records provided by Respondent, she discovered that Mr. Vining received several disbursements characterized as "loans" from Respondent. While Mr. Vining was covered by Respondent's employee leasing agreement with SouthEast, the agreement provides that "Client represents and warrants that all wages (including bonuses) paid to any assigned employee are to be paid through SPLI and that any such assigned employees shall receive no additional wages in any form from Client. . . ". The amounts characterized as loans were not paid through SouthEast. Further, Ms. Ferguson was unable to find any records that indicated these amounts had been repaid in full or in part. However, she did not speak to anyone from Respondent to inquire about possible repayment. Moreover, the documents requested focus on disbursements by the company, as opposed to receipts and the types thereof. In calculating the penalty to be imposed, Ms. Ferguson used the worksheet authorized by Florida Administrative Code Rule 69L-6.027. With respect to Mr. Perez, she imputed the gross payroll by multiplying the average weekly wage as determined by the Agency for Workforce Innovation, for the audit period. Respondent does not dispute the imputed payroll or the amount of penalty attributable to the lack of coverage for Mr. Perez. Ms. Ferguson also calculated a penalty based upon the amount of the loans made to Mr. Vining. Respondent does not dispute the method of calculation or the assignment of the class code for Mr. Vining. Respondent's dispute is with considering the loans to be wages paid by the company, as opposed to personal loans made by Mr. Rohn, Sr., to Mr. Vining. W.R. Rohn, Inc., is a family-owned business run primarily by William R. Rohn, Sr. Mr. Rohn has known Fred Vining for over 25 years, and many of those years, Mr. Vining has been an employee. Mr. Rohn freely admits loaning Mr. Vining money, and doing so through the corporate account for Respondent. When asked whether the loans were from the company or from him, he stated, "Well, they were from me because I figure I'm the company. I'm me and it was my money. I do what I want to with it." Mr. Rohn and Mr. Vining testified that the loan was a personal loan, and that Mr. Vining had paid back a part of it when he received his income tax refunds. No records regarding these repayments were provided to the Department because Mr. Rohn did not consider repayment of what he viewed as a personal loan to be a business record. No record of payment was produced at hearing.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Financial Services enter a final order finding that W.R. Rohn, Inc., failed to secure the payment of workers' compensation insurance coverage for its employees with respect to Salvador Perez and Fred Vining, in violation of sections 440.38(1), 440.10(1) and 440.107, Florida Statutes, and imposing a penalty of $4,034.05. DONE AND ENTERED this 12th day of September, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 12th day of September, 2011. COPIES FURNISHED: Barry A. Bobek, Esquire Barry A. Bobek, P.A. 503 East Monroe Street Jacksonville, Florida 32202 Jamila Georgette Gooden, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Julie Jones, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue The issues in this matter are whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense, and, if so, whether Respondent’s action to deny Petitioner's request for exemption from disqualification constitutes an abuse of discretion.
Findings Of Fact Petitioner seeks employment as a direct service provider for persons with developmental disabilities. Petitioner desires to work with Project Choice, LLC, a service provider the Agency regulates. The Agency is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers. See § 393.0655(1), Fla. Stat. A “direct service provider” is a person who has direct contact with and provides services to an Agency client. See § 393.063(11), Fla. Stat. The Agency's clients are a vulnerable population consisting of those persons who are eligible for services and support for developmental disabilities. See § 393.063, Fla. Stat. Agency clients often have severe deficits in their ability to complete self-care tasks and communicate their wants and needs. Agency clients are at a heightened risk of abuse, exploitation, and neglect because of their developmental disabilities and inability to self-preserve. Consequently, employment as a direct service provider is regarded as a position of special trust. The Agency relies on the Department of Children and Families, Background Screening Unit (the “Department”), to initially receive and screen requests for exemption from disqualification from individuals seeking employment as direct service providers. On June 28, 2015, Petitioner submitted a Request for Exemption, with attachments, to the Department. The Department subsequently forwarded Petitioner’s application to the Agency for review. To qualify as a direct service provider, Petitioner must comply with the employment screening requirement established in chapter 435. See § 393.0655(1), Fla. Stat. Petitioner's background screening revealed a criminal offense. In September 1978, Petitioner was arrested for felony possession of marijuana in the State of Texas. Petitioner pled guilty and was given a suspended sentence. The court deferred adjudication of guilt and placed Petitioner on two years of probation. At the final hearing, the Agency also produced evidence of several non-disqualifying criminal offenses Petitioner committed subsequent to her 1978 drug arrest. Petitioner was arrested for or convicted of the following crimes: 1) a misdemeanor conviction for Possession of Marijuana in 2005; 2) Bail Jumping and Failure to Appear in 2008; 3) Bail Jumping and Failure to Appear in 2010; and 4) Failure to Appear in 2013. In accordance with section 435.04(2), Petitioner’s criminal misconduct, as a “disqualifying offense,” disqualified her from working as a direct service provider for persons with developmental disabilities. Consequently, in order to be employed in such a capacity, Petitioner was required to seek an exemption from disqualification from the Agency. Therefore, Petitioner submitted to the Agency a Request for Exemption from her disqualifying offenses as provided in section 435.07. On February 4, 2016, the Agency issued a letter notifying Petitioner that it denied her Request for Exemption. The Agency denied Petitioner’s application because it did not believe Petitioner submitted clear and convincing evidence of her rehabilitation. At the final hearing, Petitioner testified on her own behalf. Petitioner expressed her desire to work as a caregiver for disabled persons. Petitioner described herself as a giving, helpful, and responsible person. Petitioner further explained that she is seeking a change in her career in light of her recent health challenges. She is also the sole supporter of her family. Petitioner believes that a job as a health care assistant for persons with developmental disabilities will allow her to take care of her family, as well as accommodate her physical limitations. Regarding her disqualifying offense, Petitioner explained that her 1978 felony arrest for marijuana possession occurred when she was only 19 years old. She explained that she had little life experience after growing up in a small town, and she had just started college in Houston. Her boyfriend asked her to carry a suitcase for him in her car on a drive back to college. Unfortunately for Petitioner, a state trooper stopped her car for speeding. Even more unfortunately for Petitioner, the state trooper searched her trunk. The state trooper found her boyfriend’s suitcase. And, inside it, the state trooper found marijuana. Petitioner claimed that she had no knowledge of the contents of her boyfriend’s suitcase. Despite her lack of knowledge, Petitioner pled guilty to the charge. Regarding her four non-disqualifying offenses, Petitioner explained that her 2005 conviction for marijuana possession also involved a car trip near Houston. She disclosed that a friend asked her to carry some Christmas presents in her car. In a lamentable case of déjà vu, a state trooper stopped her car for speeding. The state trooper searched her trunk. The state trooper found her friend’s Christmas presents. And, inside a present, the state trooper found marijuana. Once again, Petitioner stated that she had no knowledge of the contents of her friend’s presents. Despite her lack of knowledge, Petitioner pled guilty to the charge. Regarding the multiple bail jumping and failure to appear convictions, Petitioner explained that she had problems knowing when her court dates were scheduled. In expressing that she has rehabilitated from her disqualifying offense, Petitioner asserts that she has moved past her criminal misconduct, and her record is now clear. She has satisfied all fees, fines, and sentences from her criminal charges. Petitioner stated that she has learned not to expose herself to these bad situations. Furthermore, her crimes did not result in harm to any victims or property. Petitioner testified that there are no present stressors in her life, and she relies on her faith for inner guidance and strength. Petitioner has had a stable work history for the past six years. Petitioner also represented that she has taken several Agency training courses in order to become better prepared to work with disabled persons. Additionally, at the final hearing, Petitioner produced evidence that she voluntarily attended a faith-based, alcohol rehabilitation program in 2006. She sought assist from the rehabilitation program based on her concerns with her alcohol consumption. Petitioner asserted that the rehabilitation program was very helpful and successful. Petitioner also provided four letters of reference attesting to her good character. The letters were written by various individuals, including some in notable positions, who have known Petitioner for several years. The letters describe Petitioner as hard-working, caring, and nurturing. At the final hearing, the Agency presented the testimony of Jeffrey Smith, regional operations manager for the Suncoast Region. Mr. Smith oversees all services to persons with developmental disabilities in his jurisdiction. Mr. Smith’s responsibilities include reviewing requests for exemption from disqualifying offenses. Mr. Smith explained that the Agency serves vulnerable individuals who are highly susceptible to abuse, exploitation, and neglect due to their developmental disabilities. Many of the tasks direct service providers offer Agency clients involve financial, personal, and/or social necessities. Therefore, the Agency must ensure that direct service providers are detail- oriented and trustworthy. When considering a request for an exemption, the Agency must weigh the benefit against the risk of endangerment to its clients. Mr. Smith described the Agency’s process when reviewing a request for exemption from disqualification. Mr. Smith relayed that the Agency considers the disqualifying offense itself, the circumstances surrounding the offense, the nature of any harm caused to a victim, the history of the employee since the incident and, finally, any other evidence indicating that the individual will present a danger if employment is allowed. Specifically regarding Petitioner’s application, Mr. Smith explained that the Agency reviewed all of the documentation Petitioner provided in her Request for Exemption, including the various records documenting Petitioner's criminal history, her work experience, and her character reference letters. In addition to her criminal records, the Agency reviewed Petitioner’s driving record. Mr. Smith advised that a direct service provider will often be tasked to transport clients. Mr. Smith noted that Petitioner's driving record included several traffic related violations. He commented that these records show a pattern of questionable judgment by Petitioner. Mr. Smith further testified that the Agency considered Petitioner’s evidence of rehabilitation, including Petitioner’s statements submitted with her Request for Exemption and the letters of recommendation supporting her application. Mr. Smith explained that, based on its review, the Agency determined that Petitioner's criminal history indicates a pattern of poor judgment and a lack of acceptance of full responsibility for her actions. Petitioner’s repeated involvement with the criminal court system reflects a lack of remorse for her misconduct. In addition, the Agency found that Petitioner failed to disclose the full and complete details of her criminal offenses in her application. Mr. Smith testified that inconsistencies in Petitioner’s Exemption Questionnaire, including her unreported attendance at the alcohol rehabilitation program, called her truthfulness into question. Finally, Mr. Smith was concerned about the nature of Petitioner’s offenses (disqualifying and non-disqualifying), as well their close proximity in time with Petitioner’s application. Upon careful consideration of the record evidence, the undersigned finds that Petitioner did not demonstrate, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense from 1978. While Petitioner has made commendable strides to change her life, her repeated criminal proceedings since 1978 raise serious concerns, and some hesitancy, in finding that she has sufficiently established that she should be employed in a position of special trust with persons with developmental disabilities. Despite the fact that Petitioner's disqualifying and non-disqualifying offenses did not result in harm to another, they do demonstrate a failure to exercise good judgment and responsibility that cannot be discounted. Therefore, based on the evidence set forth, Petitioner has not met her burden of demonstrating that she has rehabilitated from her past disqualifying offense or proven that the Agency should grant her request for exemption from disqualification under sections 393.0655 and 435.07.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order denying Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 17th day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 17th day of June, 2016.
Findings Of Fact Robert Morse was a permanent Career Service employee, employed by the Department of Transportation as Records Manager. His performance evaluations indicated that he had received satisfactory or above satisfactory ratings from the time of his employment until December 1975, during which period he had not received any oral or written reprimands. As Records Manager, Morse's duties and responsibilities were as follows: To supervise the central files function for the Department of Transportation which maintains the depository of current Department of Transportation files which are not kept in the using office. To supervise the storage of engineering records of all types. To supervise the storage and disposal of bulk keypunch cards. To supervise the central file library. To supervise the microfilming of engineering plans and drawings. To serve as Records Liaison Officer between the Department of Transportation and the Secretary of State's Office and coordinate the inventorying, scheduling and planned retention/destruction of DOT records. In early 1974 Don Page was appointed the Director of Administrative Services for the Department of Transportation (DOT). Upon assuming this position he determined that DOT had not converted the Records Management System developed by the Secretary of state's Office. Page concluded that DOT should convert to the Records Management System developed by the Secretary of State's Office, and established this as one of several objectives of the Records Management function of DOT. As one of several objectives established for the Records Management function, conversion to the Secretary of state's Records Management System did not have particular management emphasis. However, after DOT had to move personnel from private office space into the Burns Building and experienced a critical space problem in 1975, management emphasis was placed on retiring and destroying outdated records. The retirement of theses records was seen as a major means of obtaining additional office space. The other organization objectives of Records Management were eventually accomplished, although several ran over into fiscal year. 1975. However, until 1975 little, if any, work took place on conversion to the Secretary of State's Records Management System. In order to retire and destroy records, it is necessary to prepare retention and destruction schedules for every records. These schedules must include a description of th record, its use and its useful life. The process for development of these schedules within DOT called for the office holding the record to prepare the initial schedule and transmit them to the Records Manager, Morse. Morse assumed responsibility of compiling, indexing and publishing these schedules in his capacity as Records Management Liaison Officer (RMLO) between DOT and the Secretary of State Office. In addition to his duties as RMLO, Morse remained responsible for supervising the various functions enumerated above. The evidence clearly indicates that as of the date of Morse's demotion, the retention and destruction schedules for DOT had not been completed and submitted to the Secretary of State's Office. The employee's failure to complete this objective is reflected in his Employer Evaluation dated September 24, 1974 by the comments included under quality of work and acceptance of responsibility. See referenced Employer Evaluation, Exhibit 5. The fact that the retention and destruction schedules had not been completed and that work continued on them is reflected in the employee's Employer Evaluation dated September 3, 1975 as indicated by the comments under quality of work, knowledge of job, and acceptance of responsibility. See referenced Employer Evaluation, Exhibit 5. Morse's continued failure to accomplish the objective of completing the retention and destruction schedule is reflected in his first conditional rating dated January 20, 1976. The comments in this conditional rating under quality of work, quantity of work, knowledge of job, acceptance of responsibility and attitude show that this conditional rating is primarily based upon Morse's failure to complete the retention and destruction schedules. See referenced Employer Evaluation, Exhibit 5. In his next mandatory evaluation dated March 16, 1976, the comments under quality of work, quantity of work, knowledge of job, acceptance of responsibility, and attitude also indicate that his conditional ratings is based upon his failure to complete important assignments. His supervisor's comments indicated that the assignments not completed were the preparation of a detail plan to expand the Records Management Program into the DOT district offices, and to identify in detail those tasks which should be accomplished before the Records Management survey was considered satisfactorily completed. See referenced Employer Evaluation, Exhibit 5. The conditional Employer Evaluation dated May 21, 1976 indicates some improvement on the part of the employed in completing his assignments in a timely fashion; however, the supervisor's comments indicate that Morse ha not yet completed developing the retention and destruction schedules for DOT records, an objective originally established in 1974. See referenced Employer Evaluation, Exhibit 5. The comments under quality of work, quantity of work, knowledge of job, and acceptance of responsibility on the Employer Evaluation dated July 20, 1976 indicate that Morse, while making some improvement, had failed to meet the objectives of completing the records retention and destruction schedules and publishing a records retention manual. Based upon this and the other referenced conditional ratings, Morse was demoted effective July 22, 1976. The evidence presented at the hearing indicates clearly that the objective of converting to the Secretary of State's Record Management System was established in 1974. The record further indicates that no work was accomplished in this regard until spring of 1975. Morse personally undertook to prepare the retention and destruction schedules, and the record indicates that 81 schedules were submitted by Morse to the Secretary of State's Office in 1975. His monthly report on the activities of his office indicate that only 683 cartons of records were retired in the year 1975, of which 527 were retired in December 1975. These monthly reports indicated that no records were retired during the critical summer months of 1975. Neither the records retention manual was prepared, nor was the report on which tasks were to be accomplished prior to completion of the records management survey. Morse introduced evidence that during the summer months of 1975 his normal complement of 10 employees was reduced to 8 employees through the loss of his central file room supervisor and senior file clerk. In addition, Morse was responsible for planning and supervising the relocation and movement of the central files repository within DOT which necessitated the transfer of some 2,100 cartons of documents to temporary storage in the Secretary of State's record repository. However, considering that Morse was solely responsible for the consolidation, indexing and publishing of the schedules prior to their submission to the Secretary of state's Office, there is no indication that these additional duties made accomplishment of the objective of preparing the schedules impossible, or that Morse advised his superiors of the necessity of additional personnel in order to assist him in accomplishing the various tasks assigned his unit. Although evidence was presented by both sides regarding the performance of the acting Records Manager subsequent to Morse's demotion, this evidence is irrelevant and immaterial to consideration of whether Morse's performance was satisfactory.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Career Service Commission sustain the action of the agency in demoting Robert Morse. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of August 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August 1977. COPIES FURNISHED: Reynolds Sampson, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Melvin R. Horne, Esquire 800 Barnett Bank Building Tallahassee, Florida 32304 Ms. Dorothy Roberts Appeals Coordinator Department of Administration 530 Carlton Building Tallahassee, Florida 32304
The Issue Did Respondent, James Sotrop, M.D. (Dr. Sotrop), violate section 458.331(1)(t), Florida Statutes (2007),1/ by committing medical malpractice by failing to adequately assess patient P.A.'s complaints and symptoms? Did Dr. Sotrop violate section 458.331(1)(t), Florida Statutes, by committing medical malpractice by failing to order diagnostic imaging studies and laboratory tests for P.A.? Did Dr. Sotrop violate section 458.331(1)(t), Florida Statutes, by committing medical malpractice by failing to document a complete patient history and physical examination? Did Dr. Sotrop violate section 458.331(1)(t), Florida Statutes, by committing medical malpractice by failing to immediately refer P.A. to the emergency department of a hospital on January 14, 2007? Did Dr. Sotrop violate section 458.331(1)(t), Florida Statutes by committing medical malpractice by failing to refer P.A. for specialized consultations? Did Dr. Sotrop violate section 458.331(1)(t), Florida Statutes by committing medical malpractice by making an inappropriate diagnosis of P.A.'s condition? Did the Petitioner, Department of Health (Department), fail to properly notify Dr. Sotrop of its investigation and provide an opportunity to respond to the allegations before determining probable cause? If so, do sections 456.073(1) and 458.331(9), Florida Statutes, require dismissal of the complaint?2/
Findings Of Fact The Department is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.43, and chapters 456 and 458, Florida Statutes. At all times material to the allegations in the Administrative Complaint, Dr. Sotrop was a licensed medical doctor within the State of Florida, having been issued license number ME 41092. Dr. Sotrop's address of record with the Department of Health is Post Office Box 1628, Lutz, Florida, 33548. He has used this address for mailing purposes for 10 to 15 years. The Department mailed a copy of the complaint against Dr. Sotrop and its investigation in this matter to Post Office Box 1628, Lutz, Florida, 33548. Dr. Sotrop says the he "believes" that he did not receive it. This testimony is not sufficiently persuasive to establish that he did not receive the notice. Dr. Sotrop completed medical school at the Medical School of Wisconsin and started working with his father’s family medical practice in Lutz, Florida. Florida licensed Dr. Sotrop to practice medicine in Florida in 1982. Although Dr. Sotrop intended to attend a residency program after practicing medicine with his father for a short time, he never left his father’s practice and thus never attended a residency program. Dr. Sotrop is not board eligible in family medicine because he never attended a residency program. Dr. Sotrop assumed his father’s practice and operated as a solo practitioner until he sold the practice to a large group. After working for the group practice for several years, Dr. Sotrop left the group in 2006 and started to rebuild his solo practice. While he was rebuilding his practice, Dr. Sotrop worked part-time for a colleague at the New Tampa Urgent Care walk-in clinic. He started working at the walk-in clinic in early January of 2007. Dr. Sotrop eventually rebuilt his medical practice and stopped working at the walk-in clinic. He currently maintains a solo medical practice. New Tampa Urgent Care utilized an electronic medical record keeping system known as Amazing Charts. This was Dr. Sotrop’s first exposure to an electronic medical record keeping system. Dr. Sotrop is a “hunt and peck” or “two-finger” typist. He had previously maintained only hand-written medical records. The Amazing Charts system requires physicians to enter some of the information regarding patient visits into the system by manually typing. Because of his lack of familiarity with the Amazing Charts system and his poor typing skills, Dr. Sotrop limited the information he included in patient records using the Amazing Charts. January 13th Patient Visit Patient P.A. first presented to the walk-in clinic on January 13, 2007, with a chief complaint of right-sided facial pain and weakness of the face. Dr. Sotrop saw her. P.A. reported a history of right-sided facial pain for two to three days, and right-sided facial droop that started that morning. Her right eyelid was swollen. P.A.’s vital signs were: temperature of 101 degrees; blood pressure of 114 over 70 (which was normal); pulse rate of 138; and respiratory rate of 18. Dr. Sotrop examined P.A., following his routine physical-examination process. The process, as Dr. Sotrop generally described during his testimony, consists of observing the patient’s gait as they walk to look for any abnormalities. He then examines both ears and both nostrils. He examines the patient’s mouth in the traditional method, checks the neck for movement, and palpates the neck and upper body for swollen lymph glands. He listens to the patient’s heart and lungs and, if appropriate for the presentation, asks the patient to lie down so he can perform an abdominal examination. While performing the physical examination, he talks to the patient and asks questions so he can verify whether the patient’s mental status is normal. Dr. Sotrop observed P.A.'s gait, examined her eyes (including a fluorescein and fundus examination of the eyes), and examined her face and mouth which included her ability to swallow and move her jaw normally. Dr. Sotrop documented his physical examination findings for P.A. during the January 13th visit as follows: Rt lower facial droop not involving forehead. HEENT neg. ex sl grn d/c nares and eryhema rtconj, fluoro neg. no rash (yet) neck supple Dr. Sotrop interpreted this entry in the patient’s record during his testimony as follows: The patient had a right-lower facial droop not involving her forehead. The head, eyes, ears, nose and throat examination were negative except for a slight green discharge from the right nares (or nasal passage) and there was redness of the right conjunctiva (the white part of the eye) . . . I did a fluorescein examination of the eye which involves putting a drop in the eye and using a special light and looked at the eye and it was normal, negative. There was no rash on the face, and I put in parentheses, “yet” because I expected one… And the neck was supple. Dr. Sotrop explained that he documented “no rash (yet)” because he believed the patient most likely had shingles and would soon develop a rash consistent with this diagnosis. Dr. Sotrop's records document that the patient’s neck was supple to document that her neck was not stiff or painful. Dr. Sotrop found the patient’s mental status normal. As he noted, she was well enough to drive herself to the office. Dr. Sotrop determined that the patient was suffering from either Bell’s palsy or Shingles. In the medical record under A/P (or assessment and plan), he documented “Bell’s Palsy (351.0), Herpes Zoster of Eyelid (053.20).” Dr. Sotrop selected these possible alternative diagnoses from a drop-down menu from the Amazing Charts program. “Herpes Zoster” is another name for shingles. He selected Herpes Zoster of the Eyelid because that was the only Herpes Zoster diagnosis he could find in the Amazing Charts drop down menu at the time. Dr. Sotrop discussed his impressions with the patient. He told her that he was not sure whether she had Bell’s palsy or shingles. Dr. Sotrop told the patient to call him back or go to the emergency room if her symptoms got worse. He documented this advice in the records using the drop-down menu of the Amazing Charts system: “re check 2-3 days sooner, if worse, discussed natural and expected course of this diagnosis, and need to alert me if symptoms do not follow expected course, or if any worse. Re-check or go to ER if symptoms get worse.” Dr. Sotrop prescribed Prednisone, a steroid for treatment of suspected Bell’s palsy, Vicodin for pain, and Acyclovir, an antiviral drug to treat the patient for suspected shingles. The Department did not question Dr. Sotrop’s prescription of these medications. Dr. Sotrop’s records do not indicate that, on January 13, he considered the possibility that the patient had meningitis. During the January 13 visit, P.A. did not present the typical complete constellation of symptoms for meningitis. A stiff or painful neck and confused mental status are two common signs of meningitis. Dr. Sotrop's records do not indicate that he advised P.A. on January 13 to go to an emergency room for additional testing, such as a CT scan or spinal tap, to rule out or confirm more serious conditions like a tumor, meningitis, or other infection. Dr. Sotrop's demeanor during his testimony and inconsistencies in testimony make his claim that he advised P.A. to go to an emergency room or obtain further testing not credible. The testimony is not logically consistent with the fact that Dr. Sotrop entered in the records the much less significant information that he advised the patient to return or visit an emergency room if her symptoms did not improve. And it is not consistent with his stated beliefs about the uses and importance of records for patient care, insurance, and legal concerns. January 14th Patient Visit P.A. called the walk-in clinic the following day, Sunday, January 14th, and told the nurse that she was still having headaches and that the pain medication was not helping. Dr. Sotrop told the nurse that he wanted the patient to return to the office for further evaluation. P.A. drove herself to the walk-in clinic for the return visit. During this visit, she complained of nausea and vomiting and headache. The patient’s vital signs had improved. Her temperature was now normal, 97.8, and her blood pressure was 124/84. P.A.'s pulse rate had come down to 126, and her respiratory rate was slightly higher, at 20. Dr. Sotrop repeated the physical examination he conducted on January 13th. P.A.'s neck was still supple. And her mental status was normal. The patient’s facial symptoms had significantly improved from the January 13th visit. Dr. Sotrop documented “facial symptoms much better” and “exam shows near full return of facial movement and full closure of eye.” Dr. Sotrop also documented that P.A. still had no rash. Dr. Sotrop tapered the prescription for Prednisone and asked P.A. to hold Acyclovir for 12 hours because headaches are a known side effect of these medications. He also gave her an injection of Phenergan during the visit for nausea. Dr. Sotrop’s records do not indicate that on January 14th he considered the possibility that the patient had meningitis. They indicated, as on the 13th he told the patient to return or got to an emergency room if her condition worsen. A stiff or painful neck and confused mental status are two common signs of meningitis. During the January 14th visit, P.A. did not present the typical complete constellation of symptoms for meningitis. Dr. Sotrop's records do not indicate that he advised P.A. on January 14th to go to an emergency room for additional testing such as a CT scan or spinal tap to rule out or confirm more serious conditions like a tumor, meningitis, or other infection. Dr. Sotrop's demeanor during his testimony and inconsistencies with his other testimony make his claim that he advised P.A. to go to an emergency room or obtain further testing is not credible. The testimony is not logically consistent with the fact that Dr. Sotrop entered in the records the much less significant information that he advised the patient to return or visit an emergency room if her symptoms did not improve. And it is not consistent with his stated beliefs about the uses and importance of records for patient care, insurance, and legal concerns. January 15th Hospital Admission On January 15th, P.A.'s daughter found her unresponsive. P.A. was taken to the University Community Hospital by ambulance and placed in the Intensive Care Unit. Dr. Sotrop was not consulted on this hospital admission. But he did visit the patient after he learned of her admission. P.A. was unresponsive when she was admitted to the hospital. Her condition did not improve. A lumbar puncture showed possible bacterial meningitis. P.A. died about 48 hours after her admission to University Community Hospital. The patient’s final diagnoses included acute bacterial meningitis and “possibly shingles.”
Recommendation Upon consideration of the facts found and conclusions of laws reached, it is RECOMMENDED that the Florida Board of Medicine deny the Motion to Dismiss and enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 2nd day of July, 2012, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 2nd day of July, 2012.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medical Examiners, enter a Final Order dismissing the charge of violation of Section 458.331(1)(aa), finding Manuel M. Fajardo, M.D., guilty of violating Section 458.331(1)(g), (n), (t), and (w), Florida Statutes, and Section 893.07, Florida Statutes, and suspending Manuel M. Fajardo's license to practice medicine for a period of six (6) months to be followed by a probationary period of two (2) years during which Fajardo shall be permitted to practice medicine and dispense drugs only under the supervision of another licensed physician, who shall supervise Fajardo's record keeping and drug prescription and dispensing practices. DONE and ORDERED this 13th day of June, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Division of Administrative Hearings Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1986. COPIES FURNISHED: David Bryant, Esquire 1107 East Jackson Street Suite 104 Tampa, Florida 33602 Michael I. Schwartz; Esquire 119 North Monroe Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Department of Professional Regulation, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Proposed Finding of Fact 1 is adopted in substance as modified in Finding of Fact 1. Proposed Finding of Fact 4 is adopted in substance as modified in Finding of Fact 13. Proposed Finding of Fact 5 is adopted in substance as modified in Findings of Fact 3-12. Proposed Findings of Fact 2, 3, 6-10, and 12-14 are rejected as being argumentative and conclusory. Proposed Finding of Fact 11 is rejected as unnecessary. Rulings on Proposed Findings of Fact of Respondent. Proposed Finding of Fact 1 is adopted in substance as modified in Finding of Fact 1. Proposed Finding of Fact 6 is adopted in substance as modified in Finding of Fact 14, except that the last sentence is rejected as being argumentative and not supported by the competent; substantial and credible evidence. Proposed Findings of Fact 2 and 11 are rejected as unnecessary. Proposed Findings of Fact 3, 4, 5, 7-10 and 12-15 are rejected as not supported by the competent, substantial and credible evidence and as being subordinate to the facts found in the Recommended Order. Additionally, large portions of the proposed Findings of Fact are merely summaries of testimony and are not properly proposed findings.
The Issue The Petitioner has applied for exemption from disqualification for licensure as a foster parent. The Respondent has denied the application. The issue in the case is whether the Petitioner’s request for exemption from disqualification should be approved.
Findings Of Fact On April 26, 1991, Joan Goldhammer (Petitioner) entered a plea of nolo contendere to the offense of grand theft in Case Number 91-1131, Circuit Court, Thirteenth Judicial Circuit, Hillsborough County, Florida. As a result of her plea, the Petitioner was placed on probation for 15 years, was ordered to complete 250 hours of community service, and was ordered to continue with counseling. The court withheld an adjudication of guilt. The Petitioner was also ordered to make restitution in the amount of $24,408 to the victim of the theft. The Petitioner continues to make restitution and has approximately five more years of scheduled payments before restitution will be completed. The Petitioner’s probationary period is continuing. She has performed the required community service requirement and has completed the counseling. There is no evidence that the Petitioner’s compliance with the terms of her probation has been other than appropriate. Early in 1999, the Petitioner began the process of becoming licensed by the State of Florida as a foster parent. The impetus for her application to become licensed as a foster parent was the suggestion by her pastor that she foster a child with whom the pastor was familiar. She completed the application process. Both she and her husband completed a state-mandated training course (MAPP-Model Approach to Partnership in Parenting). As part of the application process, the Petitioner was fingerprinted and a criminal background check was conducted. The Petitioner’s uncontradicted testimony was that she disclosed the 1991 incident to investigators at the time of the application process. The Respondent asserts that the information was revealed as a part of the criminal background check. There is no evidence that the Petitioner ever attempted to conceal the 1991 incident. Licensure as a foster parent is a "position of special trust" as defined by Florida statute. Based on the 1991 incident, the Respondent notified the Petitioner that she was disqualified from holding a "position of special trust" and therefore was ineligible for licensure as a foster parent. The Petitioner filed a request for exemption from the disqualification. By letter dated March 23, 1999, the Respondent denied the request for exemption from disqualification. The March 23 letter cites the statute that governs the granting of exemption from disqualification. As grounds for the denial of her request for exemption, the letter states as follows: It is the District’s policy that individuals currently serving a probation sentence, recently released for less than one year (misdemeanor offense), or for less than three years (felony offense), cannot demonstrate that they meet this standard. Consequently, your request for exemption from disqualification has been denied. There is no credible evidence supporting the policy stated in the March 23 letter. The Respondent’s sole witness acknowledged that the District Administrator established the District Five policy, and that each of the Department’s 15 District Administrators may have established different policies. The statute governing exemptions from disqualification provides that the applicant must provide "sufficient evidence of rehabilitation" and includes specific factors that should be considered. At the time of the 1991 offense, the Petitioner was a single mother, was newly divorced, was raising three children, and was financially needy. For various reasons, she was unable to take advantage of public assistance programs. Her employment provided access to the financial records and accounts of her employer. She took advantage of the situation and embezzled money from her employer, to whom she continues to make restitution. Other than the 1991 incident, the Petitioner has had no criminal involvement. Although the embezzlement was clearly illegal and inappropriate under any circumstances, the sole harm to the victim of her crime was financial loss. She has consistently met her obligation to make restitution of the money she embezzled. There is no evidence of any kind that the Petitioner currently poses, or has ever posed, a danger to any child.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services grant the request of Joan Goldhammer for exemption from disqualification. DONE AND ORDERED this 25th day of August, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1999. COPIES FURNISHED: David L. Partlow, Esquire David L. Partlow, P.A. Transworld Center, Suite 210 4100 West Kennedy Boulevard Tampa, Florida 33609-2244 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues to be determined in this proceeding are whether Respondent's actions are exempt from the provisions of chapter 474, Florida Statutes, pursuant to section 474.203(5), and if not, whether Respondent violated section 474.214(1)(ee), Florida Statutes (2008). If Respondent's actions are not exempt and violate section 474.214(1)(ee), then what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of veterinary medicine pursuant to section 20.165 and chapters 455 and 474, Florida Statutes. Respondent is and has been, at all times material to this Administrative Complaint, licensed to practice veterinary medicine in the State of Florida, having been issued license number VM 8029. Respondent's company, Equitransfer, LLC, is a limited liability company in the state of Florida. Equitransfer is involved with performing embryo transfers in recipient mares. Dr. Davila owned horses #331, #645, and T14. These horses died. Horse #645 had a foal out on September 16, 2009, and horses #331 and T14 had embryo placements which had not been birthed at the time of the horses' deaths. There are records of some sort that were requested from and turned over to the Department by Dr. Davila. Included is a document entitled "Verification of Completeness of Records" (Verification of Completeness form), which is a form on Department letterhead with blanks to be completed with the relevant information. This document as completed and received with the documents states the following: I, Jose R. Davila, DVM am the official custodian of patient records from recipient mares under Frances Ramirez. My title is Owner/President Equitransfer LLC. My employer's address is: PO Box 770, Summerfield FL 34492 (352)307-0944. I hereby verify that the I have searched the patient records maintained at Equitransfer, LLC and have determined that the attached records consisting of 1203 pages are true and correct copies of the patient records as requested pursuant to subpoena No. (left blank). The Verification of Completeness does not indicate that the records are for horses #645, #331 or T14, and does not state that the records were made at or near the time of the occurrence of the matters set forth, or from information kept in the course of regularly conducted activity. The Verification of Completeness form also does not state that the records were made as a regular practice in regularly conducted activity. The Verification of Completeness indicates that there are 1203 pages of records. The records submitted at hearing consist of approximately 955 pages. Moreover, the documents have Bates stamps on the bottom right hand corner, but no one could state who put the Bates-stamped numbers on the documents or why the documents were not in Bate-stamp order. Finally, while Erin Cameron testified that she was present when the records were received, she could not testify that the records presented at hearing consisted of all of the records provided by Dr. Davila. Dr. Davila stipulated that the documents in Petitioner's Exhibit 3 did not contain the items enumerated as required medical records in the Administrative Complaint. In other words, the documents did not constitute medical records under chapter 474.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Board of Veterinary Medicine enter a final order dismissing the charges in the Amended Administrative Complaint. DONE AND ENTERED this 16th day of June, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 16th day of June, 2011.
The Issue At issue in this proceeding is whether the Respondent, Brian Pitts, treasurer for Justice-2-Jesus, a political committee, willfully violated Section 106.07(1), Florida Statutes, by failing to file a Campaign Treasurer's Report for the first quarter of 2008 (referred to herein as the 2008 Q1 CTR).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is the treasurer for Justice-2-Jesus, a political committee that registered with the Division of Elections (Division) on December 12, 2007. Justice-2-Jesus registered by filing an "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations" form, or Form DS-DE-6. Justice-2-Jesus designated Respondent, Brian Pitts, as its treasurer. Respondent signed the document, giving as his address 1119 Newton Avenue South, St. Petersburg, Florida. Also on December 12, 2007, Justice-2-Jesus filed a "Registered Agent Statement of Appointment," Form DS-DE 41, naming Calvester Benjamin-Anderson as its registered agent. Respondent signed the document and gave 1119 Newton Avenue South, St. Petersburg, Florida as the address of the registered agent. The Division sent a letter, dated December 14, 2007, to Respondent acknowledging receipt of the Form DS-DE-6 and providing information about the Division's electronic filing system for CTRs. The letter informed Respondent that all political committees that file reports with the Division are required to do so by means of the electronic filing system. The Division's letter concluded with the following paragraph, set out in bold type: All of the Division's publications and reporting forms are available on the Division of Elections' web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapter 106, Florida Statutes, 2006 Committee and Campaign Treasurer Handbook, 2007-2008 Calendar of Reporting Dates, and Rule 1S- 2.017, Florida Administrative Code. The Division's letter also enclosed a sealed envelope containing PIN numbers to allow Respondent secure access to the Division's electronic filing system in order to submit CTRs for Justice-2-Jesus. A CTR lists all contributions received and expenditures made during a given reporting period. The 2008 Q1 CTR is the report that a campaign treasurer should have filed on behalf of his committee at the close of the first quarter of 2008. Respondent's 2008 Q1 CTR was due to be filed on or before April 10, 2008. Candidates and political committees have been required to file their CTRs electronically since 2004. § 106.0705(2), Fla. Stat. The CTR data may be uploaded using any of several proprietary programs that have been approved by the Division. These programs carry a fee for their use. As an alternative, the treasurer may enter the CTR information directly into the Division's electronic filing system at no cost. The Division has published an online "Electronic Filing System (EFS) User's Guide" (the Guide) to explain the use of the electronic filing system. The Guide contains help menus to assist the user in completing the data entry for a CTR. The Guide is available in a PDF format that can be read online or downloaded to the user's computer at no cost. A user may also make a public records request to the Division for a hard copy of the Guide. The Division will provide the hard copy at a cost of $0.20 per double-sided page, or approximately $4.80 for the 47-page Guide. On or about April 11, 2008, the Division sent Respondent a letter informing him that it had not received the 2008 Q1 CTR for Justice-2-Jesus, which had been due on April 10, 2008. On or about April 25, 2008, the Division sent Respondent a second letter informing him that it had not received the 2008 Q1 CTR for Justice-2-Jesus. Both letters were sent to 1119 Newton Avenue South, St. Petersburg, Florida, the address provided by Respondent on the Form DS-DE-6 for Justice-2-Jesus. Neither letter was returned to the Division as undeliverable or unclaimed. At the hearing, Respondent did not deny receiving these letters in April 2008. On or about July 10, 2008, the Division sent to Calvester Benjamin-Anderson, the registered agent for Justice-2- Jesus, a final notice that Respondent had failed to file the 2008 Q1 CTR for Justice-2-Jesus. The letter was sent certified mail, return receipt requested. Ms. Benjamin-Anderson signed for the letter on or about July 14, 2008. Respondent testified that he attempted to hand-deliver a paper copy of the 2008 Q1 CTR to the Division, but that a Division employee told him that he was required to file all reports for his committee electronically. The Division's records indicate that Respondent had filed Justice-2-Jesus' 2007 Q4 CTR and its 2007 SR2 report2/ electronically, prior to the due date for the 2008 Q1 CTR. Erin NeSmith, a supervisor in the Bureau of Election Records, testified that Respondent came into the Division's offices on November 20, 2008. Respondent asked Ms. NeSmith questions about the 2008 Q1 CTR. She told him that the matter had already been referred to the Commission because Respondent had not filed the report despite repeated notices, but that Respondent still needed to file the 2008 Q1 CTR. Respondent explained to Ms. NeSmith that he had not filed the report because he had been busy and had a lot of items to pull together for the report. As of August 10, 2009, Respondent had yet to file the 2008 Q1 CTR for Justice-2-Jesus. At the hearing, Respondent testified that he had at least 50 contributions and 80 to 100 expenditures to report for the first quarter of 2008. Respondent testified that the due date for the 2008 Q1 CTR fell during the legislative session, when Respondent was extremely busy at the Florida Capitol. The Division's offices are open only during normal business hours, when Respondent was unavailable, and thus Respondent was unable to phone the Division for assistance in preparing the reports. Respondent defended his subsequent failure to file the report as something in the nature of a protest against the Division's electronic filing requirement and its alleged refusal to provide him with a paper copy of the Guide to facilitate his preparation of the report. Respondent complained that the vendors who provide Division-approved data uploading programs charge prohibitively expensive fees. He further complained that the alternative means of filing, direct entry of the data onto the Division's electronic filing system, is difficult and confusing without a paper copy of the Guide for assistance. Respondent acknowledged the availability of the Guide in printable PDF format, but asserted that purchasing printer cartridges and paper sufficient to print the Guide and other necessary Division handbooks would cost between $80.00 and $120.00. Respondent did not acknowledge the Division's willingness to print the Guide for $0.20 per double-sided page pursuant to a public records request. Respondent testified that he has assisted several other persons in preparing and filing their electronic reports to the Division. On behalf of Justice-2-Jesus, Respondent has electronically filed several reports to the Division subsequent to the due date for 2008 Q1 CTR. Willfulness is a question of fact. § 106.25(3), Fla. Stat. See Beardslee v. Fla. Elections Comm'n, 962 So. 2d 390, 393 (Fla. 5th DCA 2007); McGann v. Fla. Elections Comm'n, 803 So. 2d 763, 764 (Fla. 1st DCA 2001). Florida Administrative Code Rule 2B-1.002 provides: For purposes of imposing a civil penalty for violating Chapter 104 or 106, F.S, the following definitions shall apply: A person acts "willful" or "willfully" when he or she knew that, or showed reckless disregard for whether his or her conduct was prohibited or required by Chapter 104 or 106, F.S. "Knew" means that the person was aware of a provision of Chapter 104 or 106, F.S., understood the meaning of the provision, and then performed an act prohibited by the provision or failed to perform an act required by the provision. "Reckless disregard" means that the person disregarded the requirements of Chapter 104 or 106, F.S., or was plainly indifferent to its requirements, by failing to make any reasonable effort to determine whether his or her acts were prohibited by Chapter 104 or 106, F.S., or whether he or she failed to perform an act required by Chapter 104 or 106, F.S. The evidence established that Respondent was well aware of the requirement to file the 2008 Q1 CTR on behalf of Justice-2-Jesus. Shortly after Respondent filed the committee's initial paperwork, the Division sent him an acknowledgement letter directing him to the Division's website for information about the electronic filing of campaign treasurer's reports. Respondent could have downloaded the Guide or any other Division publication. At the hearing, Respondent claimed no lack of knowledge of the filing requirements. After he failed to file the 2008 Q1 CTR, Respondent received two letters from the Division notifying him of the failure. Despite these notices, Respondent never filed the report. The evidence established that Respondent electronically filed two reports with the Division prior to the due date of the 2008 Q1 CTR, and filed several electronic reports after the due date of the 2008 Q1 CTR. These facts demonstrate Respondent's knowledge of the filing requirements and ability to prepare an electronic report. Respondent has acted willfully in his failure to file the 2008 Q1 CTR for Justice-2-Jesus. At the hearing, Respondent asserted that Justice-2- Jesus was indigent, but offered no financial data to support the assertion.
