The Issue The question presented in this case is whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291.
Findings Of Fact Robert Burgess (Burgess) was the Santa Rosa County Property Appraiser from 1984 until December 31, 2000. He continues to reside in Santa Rosa County. Leon Cooper (Cooper) is a former employee of Robert Burgess, and qualified as a candidate for the Property Appraiser of Santa Rosa County on April 12, 2004, to run against the incumbent, Greg Brown (Brown), the Petitioner in this case. Brown was elected and took office on January 1, 2001, and in 2004 was running for re-election for the first time. Burgess supported Cooper's candidacy and opposed Brown's re-election bid in 2004. On April 12, 2004, the day Cooper qualified to run, Burgess signed an ethics complaint to the Florida Commission on Ethics alleging that Brown had reinstated a religious tax exemption for the Spiritual Life and Healing Waters church on November 14, 2003, and deleted taxes assessed against said church for the tax years 2000 through 2003. Burgess alleged that Brown did this corruptly in return for the political support of the owner of the church, Ms. Lovie Grimes in the 2004 election. He further alleged that Brown also did this to garner the support of Grimes to have Cooper terminated as an employee of the Florida Department of Revenue. Burgess filed his complaint in concert with that of Hilton Kelly, who is the subject of a companion case considered at the same time as this case, but the subject of a separate order, involving alleged favors regarding another property owner. Both complaints were motivated by the desire to impugn Brown's character and the performance of his elected duties, i.e., to injure Browns reputation. The Burgess complaint was fully investigated by the Commission. The investigation revealed that, prior to Burgess' leaving office, a determination to eliminate the tax exemption for the Spiritual Life and Healing Waters Church was made. The investigation revealed that notice that the exemption was eliminated was not provided to the property owner, Grimes. The lack of proper notice occurred during Burgess' tenure in office. Taxes were assessed as a result of this action by Burgess and Brown, and after Brown came into office, Grimes was notified of the pending tax sale of tax liens against her property. Grimes protested, stating that she had not received notice of the assessment of taxes. Brown caused this matter to be investigated by a member of his staff, Chief Deputy Property Appraiser Lorenzo Law Drinkard (Drinkard). Drinkard looked into the matter and determined that notice had not been given, and visited the church where he found pews, religious materials, and a piano. Although services were not being conducted at the time he was there, Drinkard concluded that it was obviously being used as a church. Drinkard determined on November 14, 2003, that the exemption should be re-instated because it was being used as a church and the taxes assessed be eliminated because notice had not been provided. Burgess, as the former Property Appraiser, was uniquely aware of the legal necessities and requirements in granting and removing exemptions. His office failed to provide the required notice to the owner of the elimination of the exemption for property used for religious purposes. During his tenure as Property Appraiser, Burgess had no direct contact with the Spiritual Life and Healing Waters Church regarding the factual basis for removal of the religious tax exemption. Burgess did not examine the public records of his former office to determine the basis for re-instating the exemption. The record reflects that Brown did not write the Department of Revenue about Cooper improperly engaging in campaign activities on state time until February 13, 2004. Burgess knew that determination to re-instate the exemption in question was made on November 14, 2003, and he knew that Brown's letter of complaint to the Department of Revenue regarding Cooper's alleged improper campaigning was on February 13, 2004. Therefore, Brown's alleged motivation in granting the exemption as it might have related to any support for Grimes' support with the Cooper complaint is sequentially impossible. Burgess did make this complaint in concert with the complaint by Kelly for which he provided copies of the records of the Property Appraiser's office. It is clear from the timing that Burgess' motivation was to impugn Brown's reputation. Burgess lacked a factual predicate to assert that Brown's re-instating the religious exemption was done corruptly, was done to improperly influence Grimes and in return for her political support, or to garner her support for Brown's complaint against Cooper. Affidavits were presented in support of attorney fees and costs, and their reasonableness. The Proposed Recommended Order restated those amounts as 94.4 hours at a rate of $175 per hour. The total provided in the Proposed Order was $17,079.50; however, 94.4 times $175 equals $16,250. If one considers that the difference is attributable to law clerks, if one subtracts $16,250 from $17,079, the balance of $559.46, which divided by 8.1 hours for clerks, equals $69.06 per hour for law clerks, which is a reasonable rate. The costs incurred by the attorneys in defending the action and presenting this case were $5,366.56, which are reasonable.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter its final order awarding the Petitioner the amount of $17,079.50 in attorneys' fees and $5,366.56 in costs. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 31st day of January, 2006. COPIES FURNISHED: Albert T. Gimbel, Esquire Mark Herron, Esquire Messer, Caparello & Self, P.A. 215 South Monroe Street, Suite 701 Tallahassee, Florida 32301 Joseph Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Kaye Starling, Agency Clerk Commission of Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission of Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact Countrywide Funding Corporation (Countrywide) is a mortgage company, with a home office in Pasadena, California, and branch offices throughout the country. It employs substantially more than fifteen persons, full-time. Wanda Faye Oliver (Faye Oliver) was hired by Countrywide as Branch Manager for its Winter Park, Florida branch on April 28, 1986. Her duties were to market loans for the company, supervise the underwriting and generally supervise the office. At the time of hire, she had a Florida mortgage broker's license and experience as an office manager and branch manager with another company, as well as experience processing loans. Ms. Oliver's starting salary was $32,000 a year. The office under Ms. Oliver performed well, and in April, 1987, she received a special base salary increase to $36,000 annually. The letter awarding the increase congratulates her for hard work and acknowledges her as the leader in the Florida operation. The salary increase was for her increase in production. (Petitioner's Exhibit #1). Several events occurred around April, 1987, to impact the Winter Garden office. Dave Erbst, the individual who hired Oliver and her immediate supervisor in California, was replaced by George Shipman. The local office began having trouble communicating with its home office. Telephone calls were returned a day or two later, and in one instance George Shipman approved a loan that had been denied by the Winter Garden female underwriter without discussing it or informing her in advance. Later, when a male underwriter was hired, George Shipman would talk with him, but not Ms. Oliver. Ms. Oliver complained about the communication problems and about not receiving timely logistical support, such as broker loan kits needed for the approval of additional brokers. In April, 1987, the company opened an office in Atlanta and form letters were sent to approved brokers, including those with whom the Winter Park Office had worked, inviting them to work with the Atlanta office. The new office began closing loans that the Winter Park office had "locked in". In May or June, 1987, Faye Oliver received a satisfactory (average) performance evaluation. She called Shipman and asked to discuss it, as she wanted to explain what she was doing, but he never contacted her about it. In the early summer of 1987, interest rates rose and the market in general decreased. Production at the Winter Park office decreased below its goal of at least $3 million. Production in other wholesale offices of Countrywide substantially decreased as well. In the middle of August, 1987, Rick Cossano was hired by Countrywide as Vice-President in charge of production. He worked out of the Pasadena office and reported to George Shipman. His responsibility was to work with the branch managers to increase production. On August 30, 1987, Countrywide ran a blind advertisement in the Orlando Sentinel newspaper seeking a Director of Broker Operations to "take over the reins of our local broker operations." (Petitioner's Exhibit #11). Faye Oliver read the ad, recognized her job and called Rick Cossano, to find out what was going on. She had never been disciplined by the company and had never been warned or reprimanded. Although there had been discussions about closings that needed to be done to meet goals, there were no complaints about production. Rick Cossano had not heard anything about the advertisement and told Oliver he did not know what was going on. Later, he found out why the company was running the advertisement and he called Faye Oliver to tell her she was being replaced. He also told her the company did not want her to leave because she was a valuable asset and was needed to help run the Winter Park Office. Joe Brick was hired as Branch Manager of the Winter Park Office on September 23, 1987, at a salary of $42,000. At the time, he did not have a Florida mortgage broker's license, but had completed the requirements. He had been self employed as a mortgage consultant and had experience as a mortgage broker manager in Wisconsin. Faye Oliver was demoted without a reduction in pay. Her new title was Branch Operations Manager. She was told by Rick Cossano that she was to train Joe Brick in Countrywide's procedures and to help him with technical matters. She was also supposed to supervise staff, she thought, because Rick Cossano had told her that nothing would change with the demotion. On September 25, 1987, Faye Oliver sent a memo to Rick Cossano requesting a job description. She had only verbally been told of her status and she wanted to know what the demotion meant, since she was still on the same salary and was supposedly given the same duties. She never received a response or any explanation. She had to move to a different office because the new manager needed the office with a telephone. Her new office was physically removed from the rest of the staff and away from the telephones. The staff, at that time, was comprised of three persons, in addition to Ms. Oliver and Joe Brick. Those staff were aware of an attitude change in Faye Oliver but they had no difficulty working with her and they did not feel she was insubordinate or that their work was affected. They were sympathetic to her and felt she was more competent than her replacement. On October 2, 1987, a Friday, Faye Oliver was packing her books, for the fourth time, to move to an office where a telephone had been installed. It was the end of the day and the staff were standing around chatting. After the others left, Joe Brick closed the door and informed her to just keep packing and keep going, that she was being terminated by Rick Cossano's instructions. She was shocked, because, again, she had not been warned and she had relied on Rick Cossano's statements that she was to stay. She asked for a letter explaining the reason. The letter which Joe Brick typed while she packed, states: October 2, 1987 Ms. Faye Oliver C/O Countrywide Funding 2250 Lee Roda [Sic] Winter Park, Florida Dear Faye: Please let this letter serve as notice of termination of your employment by Countrywide. The termination is effective as of the close of business today. The decision to terminate is based upon business conditions and is not to be looked upon as a lay-off. The company does not intend that this be viewed as anything other than a termination. We wish you well in your future persuits [sic] and thank you for your efforts on behalf of Countrywide. Sincerely, Joseph K. Brick JKB/st cc: Rick Cossano Joe Brick was demoted some time later for failure to get along with people in the branch office. He eventually left the company voluntarily. George Shipman was terminated in December 1987. Rick Cossano was the only witness presented at hearing on behalf of the company. He claims that he and George Shipman made the decision to terminate Faye Oliver based on the recommendation of Joe Brick. On October 5, 1987, he sent a handwritten memo to the company personnel office, stating: Date: 10/5/87 To: Hedi Fm: Rick Cossano V.P. Re: Faye Oliver Termination Hedi - This memo is to clarify the termination of Faye Oliver. Faye was previously the Orlando Branch Manger. Due to lack of production, Faye was demoted to operations manager on 9/23/87. Faye's replacement (Joe Brick) was installed on 9/23/87. The new manager observed Faye's attitude deteriorate to the point of affecting other branch employees. Several verbal warnings were issued to Faye by the new manager. Faye was terminated on 10/2/87 due to her negative attitude. R. Cossano D.V.P. Rick Cossano did not personally observe Oliver's performance or attitude after the demotion. He relied on reports from the new manager, Joe Brick. His personal experience with Faye Oliver was limited, as he had only recently been hired. He stated that she complained about not getting support from the company, but he admitted that he never attempted to determine whether her complaints were justified. Rick Cossano claims that the decision to demote Faye Oliver was based on failure to increase production, and that the decision would have been made as much as four weeks prior to the action. The position to which Faye Oliver was demoted had not existed before, nor was it filled upon her termination. In 1987, the company replaced three women branch managers with men and one male manager with a female; in 1988, two male managers were replaced with females. No evidence was presented regarding the basis for the replacements or who at the company was responsible, although Cossano stated that he had terminated people for low production. Evidence regarding the company's basis for the series of personnel actions related to Wanda Faye Oliver is conflicting and confused. On the personnel form reflecting the April 1987 pay raise, the notation "restructure of division" appears under the heading, "Explanation". (Respondent's Exhibit #1) Yet the letter describing the raise relates it to Oliver's performance. Rick Cossano's explanation included different rates of increase for different employees. In August, 1987, shortly after his arrival at the company, Rick Cossano knew nothing about the proposed demotion when called by Ms. Oliver, but at the hearing, he based the demotion decision on her production. No written evidence of the reason for demotion was produced -- no personnel action form, nor notice to Ms. Oliver. The company did not explain the distinction between a "lay-off" and "termination" as those terms are used in Joe Brick's letter to Faye Oliver. Clearly, that letter conflicts with Rick Cossano's account of why she was terminated, allegedly also based on Joe Brick's recommendation. After her termination, Faye Oliver sought employment and was employed as follows: December 1, 1987 - Mortgage America - $30,000 April 30, 1988 annually April 1988 - Unemployed February 1989 February 1989 - Cataret Mortgate, commissions Only April 15, 1989 - approximately $2,500 - $3,500 April 18, 1989 - Disney World approximately present $13,900 annually When she left Countrywide, she had been making $36,000 a year.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered, finding Respondent guilty of an unlawful employment practice in its termination of Petitioner on account of her sex, and awarding back pay and reasonable attorney's fees in accordance with Section 760.10(13), Florida Statutes. DONE and ENTERED this 1st day of September, 1989, at Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2015 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1.-4. Adopted in paragraph 2. 5. Adopted in paragraph 3. 6.-8. Adopted in paragraph 7. 9.-10. Adopted in paragraph 4. 11.-12. Adopted in paragraph 9. 13. Adopted in paragraph 8. 14.-17. Adopted in paragraph 9. Adopted in paragraph 10. Rejected as unnecessary. 20.-21. Adopted in paragraph 16. Adopted in paragraph 13. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 17. Adopted in paragraph 14. Adopted in paragraph 13. 29.-30. Adopted in paragraph 10. 31.-32. Adopted in paragraph 14. 33. Adopted in paragraph 15. 34.-35. Adopted in paragraph 20. 36. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraphs 2 and 14. Adopted in substance in paragraphs 5 and 6. Adopted in substance in paragraphs 4 and 6. Adopted in paragraph 9. Adopted in paragraphs 9 and 11. Rejected as unsupported by competent evidence. The claims by Rick Cossano are contradictory. The first sentence is adopted in paragraph 13. The remainder is rejected as immaterial. Rejected as immaterial. Adopted in part in paragraph 18; otherwise rejected as unsupported by evidence. Rejected as contrary to the weight of evidence. COPIES FURNISHED: N. James Turner, Esquire Suite 104 17 South Lake Avenue Orlando, FL 32801 Thomas R. Peppler, Esquire P.O. Box 2807 250 North Orange Avenue Orlando, FL 32802 M'Liss Jones Kane, Esquire P.O. Box 7137 Pasadena, CA 91109-7137 Donald A. Griffin Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1925 Dana Baird, General Counsel 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Florida Commission on Human Relations Bldg. F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue The issues presented in this consolidated proceeding are whether Respondent committed the acts and violations alleged in the two administrative complaints, and, if so, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating restaurants in the state. Respondent is licensed as a restaurant, pursuant to license number 5802478, and operates as 459 Chinese Restaurant at 657 North Primrose Drive, Orlando, Florida 32803 (the restaurant). A sanitation and safety specialist (Specialist) for Petitioner inspected the restaurant on October 28 and 29, November 5, and December 1, 2004. The Specialist inspected the restaurant again on April 26 and 27, 2005. On December 1, 2004, Respondent committed three violations of applicable statutes and rules. On April 27, 2005, Respondent committed another violation. Each violation was an uncorrected violation that first occurred in previous inspections. On December 1, 2004, Respondent did not document that an employee at the restaurant had received training in professional hygiene and food-borne disease prevention in violation of Florida Administrative Code Rule 61C-4.023(4)(a). This violation is a critical violation. Petitioner's witness identified a critical violation as a violation that is an immediate danger to the public safety. On December 1, 2004, a grease buildup existed on the kitchen wall near the fryer. Food-debris buildup was also present on the floors in the corner of the kitchen. Neither of these violations is a critical violation. On April 27, 2005, Respondent maintained eggs at a temperature of 64 degrees Fahrenheit, rather than 45 degrees, in violation of Rule 3-5.01.16(B) of the Food Code. This is a critical violation. Several mitigating factors are evidenced in the record. The violations did not result in actual harm. Respondent has no prior discipline. The violations are not continuing or ongoing violations. The only aggravating factor is that two of the violations are critical violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged in each Administrative Complaint, requiring Respondent's representative to attend the educational program prescribed in Petitioner's PRO, and imposing an administrative fine of $1,300, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date that the agency serves Respondent with a copy of the final order. DONE AND ENTERED this 21st day of December, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 21st day of December, 2005. COPIES FURNISHED: Mary Quinn 459 Chinese Super Buffet 657 North Primrose Drive Orlando, Florida 32803 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent, Juan C. Chavarriaga, committed the violations alleged in a four-count Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Real Estate, on January 17, 2008, and, if so, what disciplinary action should be taken against his Florida real estate broker associate license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165, Florida Statutes, and charged with the responsibility for the regulation of the real estate industry in Florida pursuant to Chapter 475, Florida Statutes. Respondent, Juan C. Chavarriaga, is, and was at the times material to this matter, the holder of a Florida real estate broker associate license, license number 3130017, issued by the Division. At all times relevant, Mr. Chavarriaga was employed as a real estate associate with Ocampo & Alvarez Realty LLC. On or about March 30, 2006, Mr. Chavarriaga rented real property (hereinafter referred to as the “Subject Property”) to Carlos Alvarez for an annual lease amount of $18,000.00 or $1,500.00 per month (Pre-hearing Stipulation). The Subject Property was rented pursuant to a Residential Lease for Single Family Home and Duplex agreement (hereinafter referred to as the “Lease”) which was entered into on or about March 30, 2006 (Petitioner’s Exhibit 5). Mr. Chavarriaga, according to an admission he made to Veronica Hardy, a Division investigator, received rent paid for the rental of the Subject Property pursuant to the Lease. According to an admission of Mr. Chavarriaga, the Subject Property was owned by Claudia Mejia. Mr. Chavarriaga’s real estate broker employer was unaware of the Lease or Mr. Chavarriaga’s involvement therein. The Lease was entered into without written permission from Ms. Mejia, according to another admission of Mr. Chavarriaga. The evidence failed to prove, however, that Ms. Mejia was unaware of the Lease or that she had not verbally authorized Mr. Chavarriaga to rent the Subject Property on her behalf. Mr. Chavarriaga also admitted to Ms. Hardy that he received rents pursuant to the Lease which were deposited with a company named Maux Management. What Maux Management is was not proved. Nor was it proved that Mr. Chavarriagag owned Maux Management. As to what was done with moneys received pursuant to the Lease, the only competent substantial evidence again consists of an admission by Mr. Chavarriaga: he told Ms. Hardy that the rents were deposited with Maux Management, which then paid part of the proceeds for reasonable expenses related to the Lease and deposited the remainder in the account of Ms. Mejia.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Real Estate: Dismissing Counts I and II of the Administrative Complaint; Finding that Mr. Chavarriaga is guilty of the violation alleged in Counts III and IV of the Administrative Complaint; and Suspending Mr. Chavarriaga’s real estate associate license for a period of one year and requiring that he pay an administrative fine of $1,000.00. DONE AND ENTERED this day of 8th day of September, 2008, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 8th day of September, 2008. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Alan A. Glenn, Esquire 14629 Southwest 104 Street, No. 432 Miami, Florida 33186 Thomas W. O’Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N802 Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether, under the facts and circumstances of this case, Respondent should deny Petitioner's application for licensure as a Class R Repossessor in the state of Florida.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Around April 1, 1989, Petitioner made application for licensure as a Class E Repossessor which was received by the Respondent on April 7, 1989. Although Respondent's file of Petitioner's application (Joint exhibit 1) does not show any request by Respondent for additional information from Petitioner as allowed by Section 120.60(2), Florida Statutes, it appears that Petitioner filed an additional section A, I and J of the application which was received by Respondent on May 5, 1989. By letter dated August 4, 1989, 118 days from receipt of the first application and 91 days from receipt of the submission of the second section A, I and J, Respondent denied Petitioner's application for licensure as a Class E Repossessor in the state of Florida. The basis for the denial was an alleged violation of Section 493.319(1)(a) and (c), Florida Statues. No other reasons were given for the denial, and there is no evidence that Petitioner was given any other notice, written or verbal, by the Respondent that his application was denied before August 4, 1989. Petitioner was working as manager of Armand's Jewelry, d/b/a Hock It To Me Pawn (Armand's), Winter Garden, Florida from sometime in 1986 until November 1988. On several occasions between August 1987 and February 1988, while managing Armand's, Petitioner allowed a black female confidential informer (CI) working for the Orange County Sheriff's Department (OCSD) and posing as a customer to pawn several items of personal property, including several VCR's, with Armand's. Although Petitioner testified that he was told later that the property came from the OCSD evidence room, there was insufficient evidence to show from whom or how the CI obtained this property. On each occasion that Petitioner allowed the CI to pawn property with Armand's, a police report, as required by law, was completed and, among other information, the serial number of the property was written on the police report. Although not required by law, the Petitioner required the CI, as he did with others pawning property, to place her thumbprint on the police report. The requirement of placing the thumbprint on the police report had been suggested by the Winter Garden Police Department (WGPD) as an additional means of identification (ID) in case the person pawning the property used a false ID. The WGPD had advised the Petitioner that even if he suspected the property being pawned to be stolen it would be helpful to law enforcement if he allowed the person to pawn the property, provided he prepared and filed the police report with the thumbprint because this would allow law enforcement to check the police reports against their lists of stolen property. Two copies of each police report prepared by Armand's, including those prepared on the property pawned by the CI, were filed with the OCSD so that the property pawned could be checked against the OCSD's lists of stolen property. Likewise, the WGPD was permitted to review the police reports at Armand's on a regular basis to determine if any of the property pawned was on its lists of stolen property. While Petitioner may have had some suspicions about the CI, there is insufficient evidence to show that the CI told him the property was stolen or that he had knowledge of the property being stolen. Likewise, there is insufficient evidence to show that Petitioner was aware that the CI was using more than one ID during the time she was pawning property at Armand's. Cynthia Miller, daughter of Judi Kay Savoie who owned Armand's, clerked in Armand's between August 1987 and January 1988 and was aware that the CI was using more than one ID card. However, there is insufficient evidence to show that Cynthia Miller made Petitioner aware of the CI using more than one ID card. As a result of the CI pawning this property to Armand's, Petitioner was arrested and charged with 8 felony counts of dealing in stolen property. However, the 8 felony counts were dismissed and Petitioner pled nolo contendere to one count of petit theft on November 1, 1988. The court imposed a $400 fine, plus $90 court cost and withheld adjudication of guilt. In addition, it was understood that Petitioner's file in this case would be expunged and sealed in accordance with Section 943.058, Florida Statutes and Rule 3.692, Florida Rules of Criminal Procedure. Due to a misunderstanding, Petitioner's file in the criminal case was not expunged and sealed until November 17, 1989. It was not until Petitioner was advised of his denial by Respondent that he became aware that his criminal record had not been expunged and sealed as was his understanding at the time he entered the plea of nolo contendere to petit theft. While Respondent had denied Petitioner's application for a Class E Repossessor license before the Petitioner's criminal records were expunged and sealed by court order on November 17, 1989, Respondent's exhibit 2 obtained on January 10, 1990 from the OCSD and Respondent's exhibit 3 obtained on January 3, 1990 from the Orange County Clerk of the Circuit Court, respectively, were furnished by these agencies to Respondent notwithstanding the Order To Seal Records Pursuant To Florida Statutes 943.058 and FRCP 3.692, Case No. CR 88- 1236, In The Circuit Court of the Ninth Judicial Circuit In And For Orange County, Florida, dated November 17, 1989, requiring these records to be expunged and sealed. Petitioner's plea of nolo contendere to petit theft was a plea of convenience which was a consequence of the lack of funds necessary to continue paying his attorney for his defense of this case. Under the facts and circumstances of this case, there is insufficient evidence to show the necessary intent required under Section 812.014(1), Florida Statutes, to prove the Petitioner committed petit theft. There is insufficient evidence to show that Petitioner's failure to advise Respondent at the time of his application or any time before he became aware that the files were not expunged or sealed of his plea of nolo contendere to petit theft was fraudulent or willful misrepresentation of the facts concerning his application.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the circumstances surrounding this case, it is, therefore, RECOMMENDED that the Department of State enter a Final Order granting Petitioner, Dennis B. Parker a Class E Repossessor license. DONE AND ENTERED this 16th day of March, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 87-0893 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner Petitioner presented his proposed findings of fact in four different headings with separate numbered paragraphs under each heading. For purposes of clarity I have renumbered the paragraphs consecutively and will respond accordingly. 1-2. Rejected as not being material or relevant since this was not the basis for denying the application. 3-4. Adopted in Findings of Fact 12 and 14 as modified. 5-6. Adopted in Findings of Fact 6 through 8 as modified. Rejected as not being material or relevant. Rejected as not being material or relevant, except that portion identifying Cindy Miller as the daughter of Judi Savoie which is adopted in Finding of Fact 10. 9-10. Adopted in Finding of Fact 6 through 8 as modified. 11-12. Rejected as not being material or relevant since this was not the basis for denial of the application. Specific Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2 as modified. Covered in the Preliminary Statement. Adopted in Finding of Fact 12. 4-5. Not material or relevant to this case since this was not the basis for denial of the application. Adopted in Finding of Fact 4 as modified. Adopted in Finding of Fact 4 as modified, except for the portion that the CI told Petitioner the merchandise was stolen which is rejected as not being supported by suubstantial competent evidence in the record. Rejected as not being material or relevant. 9-10. Rejected as not being supported by substantial competent evidence in the record. 11. Adopted in Finding of Fact 11. COPIES FURNISHED: Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250 Dennis B. Parker, Pro se 1655 5th Street Clermont, Florida 34711 Henri C. Cawthon, Esquire Assistant General Counsel Department of State The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 =================================================================
The Issue Respondent's motion to dismiss is based on the argument that DPR has no authority to refile a case it previously dismissed, absent a new finding of "probable cause" by the Board of Medicine.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a final order be entered dismissing the complaint in case #92-2202. DONE and ENTERED this 16th day of September, 1992, at Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1992. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue Winter Park, FL 32789 Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue for determination in this proceeding is whether the denial of an application for employment constitutes unlawful discrimination against Petitioner.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is 1800 Forest Hill Boulevard, West Palm Beach, Florida, 33406. Respondent employs approximately 167 employees. A substantial number of Respondent's employees are certified nursing assistants ("CNA"). Petitioner was denied employment as a CNA by Respondent on July 18, 1991. Petitioner was not denied employment due to his disability of alcohol addiction. Petitioner received an average rating on 11 of 12 interview categories. Petitioner received a below average rating on his personality evaluation. He displayed loud and inappropriate behavior during the interview. He gave his "business card" to two female employees and asked them to call him. A background investigation indicated that Petitioner had been arrested for driving while intoxicated and had a bad credit history. Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's application for employment. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's application for employment was based upon Petitioner's failure to satisfy Respondent of Petitioner's competence to satisfy his job requirements.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021 Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted in finding 1. 2. Accepted in finding 2. 3. Accepted in finding 10 4. Rejected as conclusion of law. 5. Accepted in finding 4. 6. Accepted in finding 5. 7. Accepted in finding 7. 8. Accepted in finding 9. 9.-10. Accepted in finding 10. 11. Rejected as irrelevant and immaterial. 12. Accepted in finding 11 13. Rejected as irrelevant and immaterial. COPIES FURNISHED: Douglas L. Phipps, Esquire McKeown, Gamot & Phipps, P.A. One Clearlake Centre, Suite 1603 250 Australian Avenue South West Palm Beach, Florida 33401 Margaret A. Jones, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Richard Denton 729 N. Ridge Road, Apt. 6 Lantana, Florida 33461
The Issue Should Petitioner's request for exemption from disqualification pursuant to Section 435.07, Florida Statutes, be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Prior to August 9, 1996, Petitioner was employed by Avon Park Cluster Home in a position that required background screening. At the request of Petitioner's employer, Avon Park Cluster Home, the Department conducted a background check on Petitioner. As a result of this background check, it was determined that there were potentially disqualifying criminal offenses pending against Petitioner in the State of New York and the State of Florida. Because of the lack of information as to the disposition of these potentially disqualifying offenses the Department was unable to complete the background screening on Petitioner. In accordance with Section 435.05(1)(d), Florida Statutes, the Department, by letter dated August 9, 1996, advised Petitioner that it was his responsibility to provide the Department with the necessary documentation to show the disposition of those offenses so that it could complete its background check of Petitioner. By letter dated September 11, 1996, the Department advised Petitioner that since he had not been able to provide the Department with the necessary information as to the disposition of the potentially disqualifying offenses, the Department could make no screening determination and therefore, Petitioner was not eligible for a position requiring background screening. Subsequent to the Department's letter of September 11, 1996, Petitioner furnished certain information concerning the potentially disqualifying offenses. By letter dated October 9, 1996, the Department again advised Petitioner that it was unable to conduct a proper background screening with the information furnished by Petitioner. Therefore, Petitioner was not eligible for a position that required background screening and further advised Petitioner that he could request a hearing to be exempted from this disqualification. Petitioner timely requested a hearing which was afforded to him by the Department. At this hearing, Petitioner was allowed to present evidence to show that he was entitled to be exempted from this disqualification. After hearing Petitioner's evidence, the Department determined that Petitioner had failed to present sufficient evidence to prove that he was entitled to an exemption from disqualification. Petitioner timely requested a hearing under Chapter 120, Florida Statutes. Although Petitioner was given ample time and opportunity to present evidence of the disposition of the potentially disqualifying offenses, he failed to present any evidence of the disposition of those offenses. Likewise, Petitioner failed to present any evidence of rehabilitation or circumstances or evidence indicating that Petitioner would not present a danger if continued employment was allowed as required by Section 435.07(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request for exemption from disqualification. DONE AND ENTERED this 29th day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran General Counsel Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32299-0700 William Brown, pro se 504 West Halmcrae Boulevard Avon Park, Florida 33825 Jack Emory Farley Chief Legal Counsel, District 14 Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030
