The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
Findings Of Fact The Respondent, Ed Rich, is a registered real estate salesman, holding license number 0073256. The Petitioner, State of Florida, Department of Professional Regulation, Board of Real Estate is an agency of the State of Florida, having as its duty the regulation of matters pertaining to real estate brokers and salesmen within the state, including regulation of their licensure status. From approximately April 16, 1977, through November 17, 1977, the Respondent participated in a scheme to sell parcels of undeveloped land in Cochran County, Texas. The land was owned by Agriland, Inc. The Respondent acted as a salesman for a "sub-broker" by the name of Irwin Kane and Wintex Realty Corporation, all of Miami, Florida. That entity, with Broker Kane, was involved in the advertising, promotion and sales of these five acre parcels of unimproved west Texas land. The Respondent participated in the scheme by making long distance phone calls to prospective purchasers, attempting to induce them to buy these parcels of land. In this telephone sales campaign, the Respondent used a script prepared for him by Irwin Kane, his broker and employer. That script extolled the virtues of the subject unimproved property in an arid region of Texas, representing, for instance, that the land was possessed of an ideal climate, abundant water supply and rich soil conditions and was ideal agricultural acreage. The land was represented to be "a few miles west" of Lubbock, Texas, when in fact it was 72 miles from Lubbock, Texas, in a region characterized by sand dunes, weeds, poor soil, shifting sand and high winds. It was also represented that in addition to favorable agricultural and climatic conditions, that "the existence of oil in Cochran County should lead to a strong growth pattern and that oil companies were interested in the area surrounding the property." The charges in the Administrative Complaint concern alleged preparation of various written literature containing the subject misrepresentations and the communication by the Respondent of these misrepresentations through placement in the mail. The Respondent, by an indictment filed in the United States District Court for the Eastern District of Wisconsin, was charged with use of the United States mails in a scheme to defraud in violation of Title 18, U.S.C., Sections 1341 and 1342, as well as the use of wire communication in a scheme to defraud in violation of Title 18, U.S.C., Section 1343. There is no allegation in the Administrative Complaint herein concerning the commission of any crime involving the use of wire communication in a scheme to defraud. The Administrative Complaint only concerns fraudulent use of the mail. The charges against the Respondent concerning Title 18, U.S.C., Sections 1341 and 1342 involving the use of the mails to defraud were dropped, the Respondent ultimately pled nolo contendere on November 17, 1978, to the charge involving a wire communication scheme to defraud in violation of Title 18, U.S.C., Section 1343, was found guilty, with imposition of a sentence of imprisonment being suspended, with the Respondent placed on probation for three years. The Respondent's testimony was not contradicted and establishes that he had no part in the preparation of any written materials or script which he used in making the telephone conversations representing the above described attributes of the property he was attempting to sell on behalf of his broker. The written "script" which he read from or consulted as he was communicating with prospective purchasers was prepared by his broker or others. The Respondent established that he had no knowledge of the truthfulness or falsity of the representations concerning soil, water, the alleged advantageous location or the interest of oil companies in the adjoining parcels of property. The Respondent did not, however, inquire regarding the truthfulness or veracity of the statements in the script he was ordered to follow in making the telephone calls. The Respondent's uncontradicted testimony establishes that he had no part, however, in preparing any written materials, literature, brochures or written communications of any kind, nor in transmitting such through the mails in an attempt to defraud the prospective purchasers of the land. He made no representations by verbal communication which he knew to be false when he made them. The Respondent has never been the subject of any disciplinary proceedings by the petitioner in the past.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witness and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the Administrative Complaint filed herein against Ed Rich be DISMISSED. DONE and ENTERED this 19th day of July, 1982 at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of July, 1982. COPIES FURNISHED: Michael Colodny, Esquire 626 Northeast 124 Street North Miami, Florida 33161 Mr. Ed Rich 1950 South Ocean Drive Hallandale, Florida 33009 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. "Joe" Stafford, Executive Director Florida Real Estate Commission P.O. Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent is licensed by the State of Florida as a real estate brokers and holds license No. 0002997. On May 7, 1979, Respondent acted in the capacity of a real estate broker in the transaction of the sale of a parcel of real property located in Polk County, Florida. The purchaser in that transaction was Margaret Rhoden, and the seller was June Davis, who was represented in the transaction by a relative, Henry Goodwin. On May 7, 1979, Margaret Rhoden entered into a Contract for Sale of Rea1 Estate for the purchase of a piece of property Frostproof, Florida, from June Davis. The full purchase price of the property was $3,500, which Ms. Rhoden paid to Respondent in cash on May 7, 1979, and obtained a receipt from Respondent for that amount. At the time the contract was entered into, Ms. Rhoden was advised that a deed should be forthcoming from the seller within two to four weeks. A date of June 20, 1979, was established to close the transaction, subject to a 120-day curative period should any cloud on the title be discovered. The contract between the parties provided that should any such cloud appear of record, the seller would have a period of 120 days after receipt of written notice prior to the date set for closing in which to attempt to cure the defect. The contract further provided that if title defects were not cleared within the l20-day period, the deposit would be returned to the buyer, or, at the buyer's option, the transaction should be closed in the same manner as if no defect had been found. A warranty deed purporting to transfer the property from the seller to the buyer was executed on June 7, 1979, and a title binder was issued on that same date. The title binder indicated an outstanding mortgage on a larger piece of property of which the parcel purchased by Ms. Rhoden was only a part. When efforts to clear this cloud on the title took longer than expected, Ms. Rhoden asked, and was granted, permission by the seller's agent to commence construction on the improvements on the property notwithstanding the fact that she knew that a cloud remained on the title to the lot, and the transaction had not been closed. Construction was not completed on the improvements because Ms. Rhoden ran out of cash during the course of construction. She moved into the dwelling while it was still in a partially completed condition and, on September 8, 1979, with the permission of the seller's agent, received a loan of $3,000 from the $3,500 deposit she had placed with Respondent, Ms. Rhoden executed a promissory note dated September 8, 1979, in which she agreed to repay the $3,000 loan when clear title to the property was issued. Ms. Rhoden used the proceeds of this loan to make additional improvements on the property. On October 26, 1979, Respondent received both the warranty deed dated June 7, 1979, and the title binder issued on that date from the attorney for the seller. When approached by Ms. Rhoden, Respondent agreed to lend her the deed and title binder to attempt to obtain additional financing to complete construction on her home. The clear inference from the record in this proceeding is that there was never any understanding between Respondent and Ms. Rhoden that this deed could be recorded at this or any other juncture in this transaction. In fact, the contract entered into between the buyer and seller clearly called for the payment of the full purchase price of the property at closing, and the note subsequently executed by Ms. Rhoden conditioned the issuance of a warranty deed to her on the payment of the $3,000 face value of the note. Ms. Rhoden was unsuccessful in obtaining additional financing to complete construction on her home, probably due to the fact that when she sought that financing the outstanding mortgage on the property had still not been satisfied. When Respondent advised the seller's attorney that he had loaned the warranty deed to Ms. Rhoden for the purposes outlined above, he was advised that there was nothing to keep Ms. Rhoden from recording the deed, at which point Respondent apparently determined that it would be prudent for him to retrieve the deed from Ms. Rhoden's possession. Ms. Rhoden had her mother return the deed to Respondent in February of 1980. According to the testimony of both Ms. Rhoden and her mother, they felt the purpose for the returning of the deed was to have it recorded. Respondent denies any such understanding. In resolving this conflict in testimony, the clear inference from the circumstances involved in this transaction, including the wording of the contract of sale and the note executed by Ms. Rhoden, supports a finding that all of the parties to this transaction either knew, or should have known, that the recording of the deed at this juncture in the transaction would have been improper. Although the outstanding mortgage had been satisfied in January of 1980, Ms. Rhoden had not Performed her obligation under the contract of sale by paying the full purchase price. When Respondent had recovered the deed from Ms. Rhoden, he was advised by the attorney for the seller not to record the deed until he had received payment from Ms. Rhoden in accordance with the contract and the promissory note. As indicated above, the outstanding mortgage on the property was satisfied in January of 1980. On February 6, 1980, Respondent Prepared a closing statement reflecting the purchase price of the property as $3,500. From this amount he deducted a total of $478 for state documentary stamps, title insurance, Preparing the deed, and amount of real estate commission leaving a the apparently forwarded the note from Ms. Rhoden for $3,000, together with the $22.00 cash balance remaining from her initial $3,500 deposit to the seller along with the deed which the seller had earlier executed. Ms. Rhoden apparently never made or tendered payment of the $3,000 note, the transaction never closed, and at the time of final hearing in this cause an eviction action was apparently pending between the seller and Ms. Rhoden. Paragraph seven of the contract of sale executed between the seller and Ms. Rhoden Provides as follows: If Buyer fails to perform this contract, the deposit this day paid by Buyer as aforesaid shall be retained by or for the account of Seller as consideration for the execution of this agreement and in full settlement of any claims for damages.
The Issue Whether the Respondent was validly disciplined by a local government, which causes the Respondent to be in violation of Section 489.129(1)(i), Florida Statutes. Whether the Respondent is guilty of fraud, or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes.
Findings Of Fact At all times material to these proceedings, the Respondent, Tillack Ram Netram, was licensed as a certified residential contractor and held license number CR C035238. On or about November 16, 1988, a duly noticed hearing was held before the Contractors Regulatory Board of the City of Cape Coral to determine whether Respondent Netram had violated local ordinances by falsifying three certificates of occupancy in order to close real estate transactions and receive money before the residences were actually approved for occupancy by the City of Cape Coral. The incomplete permits were removed from the property prior to actual completion, and copies of falsified permits were given to the closing agent. The falsified permits showed that certificates of occupancy had been issued by the local building department when in fact, this had not occurred. All of the witnesses at the hearing were placed under oath and were subject to cross-examination by Respondent Netram's attorney, Terry Signorella. The Respondent was present at the proceeding and was allowed to present evidence and to testify in his own behalf. At the close of the evidentiary portion of the proceeding on November 16, 1988, Respondent Netram was found guilty by the local board of making misleading, deceptive, untrue or fraudulent representations in the practice of his contracting business. He committed these violations by delivering three building permits with forged signatures under the Certificate of Occupancy approval portion of the permits to Miss Peggy Burt of Stewart Title Company in Fort Myers. This conduct constitutes three violations of Section 6.10(1) of the Municipal Code. As a result of the alleged violations, Respondent's permit pulling privileges were suspended for a period of six months. An appeal was not taken of the disciplinary action. On November 15, 1988, an Information was filed against the Respondent which charged the Respondent with five counts of grand theft and scheme to defraud in connection with five separate real estate sales. At the time of hearing, these charges were still pending. The investigator for the State Attorney's offices attended the formal administrative hearing and presented a copy of his investigatory file. All of the testimony and documents presented were uncorroborated hearsay. None of the documents, including official records, were properly verified. There was no evidence submitted in mitigation or in aggravation of the penalties provided for the alleged violations.
Recommendation Because the Respondent committed the misconduct in regards to three different building permits, he should be penalized for his action as to each permit. Accordingly, it is Recommended: That the Respondent be found not guilty of having violated Section 489.129(1)(m), Florida Statutes, as set forth in paragraphs 3 and 5 of the Administrative Complaint. That the Respondent be found not guilty of having violated Section 489.129(1)(i), Florida Statutes, for the misconduct alleged in paragraph 4 of the complaint. That the Respondent be found guilty of having violated Section 489.129(1)(i), Florida Statutes, as set forth in paragraph 6 of the complaint. That the Respondent pay a fine of $1 500.00, as set forth in Rule 21E- 17.001(8), Florida Administrative Code, for his willful violation, on three occasions, of the municipal building code. DONE and ENTERED this 23rd day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 23rd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0819 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Rejected. Irrelevant. Not charged in the Amended Administrative Complaint. Rejected. Insufficient competent evidence provided at hearing. Accepted. Accepted except for the allegation that Respondent forged the inspector's signature. Insufficient proof. See HO #4 and #5. Rejected. Insufficient competent evidence provided at hearing. Rejected. Insufficient competent evidence provided at hearing. Accepted. See preliminary matters. COPIES FURNISHED: David M. Gaspari, Esquire Post Office Box 2069 West Palm Beach, FL 33402 Tillack Ram Netram 532 Southeast 18th Place Cape Coral, FL 33904 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issues in this case are whether Petitioner committed a public entity crime as that term is defined in Section 287.133, Florida Statutes (2000), and, if so, whether it is in the public interest to place Petitioner's name on the convicted vendor list maintained by the Department of Management Services (the "Department").
Findings Of Fact On March 22, 2000, Petitioner and White Construction Company, Inc., were charged by a twelve-count criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. Petitioner's indictment arose out of certain work he performed after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages and to testify regarding those matters in depositions and, if necessary, at trial. On August 30, 2000, Petitioner entered a plea agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Petitioner entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida, an amount equaling the fees that Petitioner was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One through Six and Nine through Twelve against Petitioner, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Petitioner "admits the facts of the charge." Counts Seven and Eight of the indictment charged Petitioner with two counts of Grand Theft, in the first degree, and both counts provided in relevant part the following: WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use, or endeavor to obtain or use U.S. Currency or other property with an equivalent value, to-wit: "delinquency days," with a value of $100,000 or more, the property of another, to-wit: Florida Department of Transportation, hereinafter: FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or a benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false or fraudulent claim(s) or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. . . . Count Seven related to Project No. 36210-3439 on Interstate 75 in Marion County, Florida, and to activities which allegedly occurred between January 8, 1996, and January 30, 1998. Count Eight related to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 in Marion County, Florida, and relates to activities which allegedly occurred between April 15, 1996, and January 30, 1998. At the hearing in this matter, Petitioner testified that he prepared damage and extension of time claims, based on information that was provided to him by the attorneys for White Construction Company. Petitioner testified that he did plead guilty to Counts Seven and Eight, which involved instances of billing the Florida Department of Transportation ("FDOT") for the same equipment at different locations on the same day. It is undisputed that first degree grand theft, pursuant to Subsection 812.014(2)(a)1., Florida Statutes (2000), in the context of doing business with a state agency, constitutes a "public entity crime" as defined by Subsection 287.133(1)(g), Florida Statutes. Petitioner did not notify the Department that he had been convicted of a public entity crime within 30 days of his conviction, as required by Subsection 287.133(3)(b), Florida Statutes (2000). Petitioner testified that, at the time of the plea, he was unaware of this statutory requirement. Petitioner was represented by counsel in the criminal proceedings, and testified that his lawyer did not mention Section 287.133, Florida Statutes (2000), in their discussions. Petitioner further testified that the statewide prosecutor did not mention the public entity crimes statute during plea negotiations. Section 287.133, Florida Statutes (2000), is not mentioned in the plea agreement. Petitioner further contends that the fact that adjudication was withheld as a result of his plea agreement establishes that he was never "convicted" of a public entity crime. Subsection 287.133(1)(b), Florida Statutes (2000), defines "conviction" as "a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere." (emphasis added) Petitioner's contention that he was not "convicted" is therefore without merit. However, Petitioner's belief that he had not been convicted of a crime is credited. Even if he had been aware of the requirements of Section 287.133, Florida Statutes (2000), Petitioner in all good faith would not have believed that he was under any obligation to report his conviction. In addition to requiring a person convicted of a public entity crime to inform the Department within 30 days of his conviction, Subsection 287.133(3)(b), Florida Statutes (2000), requires any public entity which receives information that a person has been convicted of a public entity crime to transmit that information to the Department in writing within 10 days. Subsection 287.133(1)(f), Florida Statutes (2000), defines "public entity" as "the State of Florida, any of its departments or agencies, or any political subdivision." The Office of Statewide Prosecution, which was the signatory party to Petitioner's plea agreement, never informed the Department of Petitioner's conviction. In 2002, the Florida Engineers Management Corporation on behalf of the Board of Professional Engineers issued a complaint against Petitioner, seeking to discipline his license as a professional engineer because of the acts alleged in the indictment and the crimes to which Petitioner pled guilty. Petitioner contested the proposed discipline and the matter went to a full evidentiary hearing before a judge of the Division of Administrative Hearings. See Florida Engineers Management Corporation v. Cooper, Case No. 02-3167PL (DOAH January 6, 2003). Neither the Florida Engineers Management Corporation nor the Board of Professional Engineers informed the Department that Petitioner had been convicted of a public entity crime. Petitioner presented documentary evidence indicating that Michael K. Bowen, an FDOT employee, filed the complaint that led to the investigation that culminated in Case No. 02-3167PL. The complaint was filed with the Board of Professional Engineers on September 13, 2001, more than one year after Petitioner's plea agreement was entered. In the Recommended Order in Case No. 02-3167PL, the Administrative Law Judge recommended that the charges against Petitioner be dismissed, based on the conclusion that the allegations did not directly relate to the practice of engineering or the ability to practice engineering. The Agency's Final Order, dated May 15, 2003, rejected the Administrative Law Judge's conclusion and imposed a six-month license suspension and a fine of $1,000.00 on Petitioner. On June 16, 2003, Petitioner filed a notice of appeal with the First District Court of Appeal. Petitioner and the Board of Professional Engineers settled the appeal, and Petitioner voluntarily dismissed the case on October 23, 2003. See Cooper v. State of Florida, Board of Professional Engineers, Case No. 1D03-2542. Petitioner testified that he believed the dismissal of his appeal would mark the end of his legal problems, some three and one-half years after the filing of the indictment. By letter to Steve Rumph, the Department's inspector general, dated March 15, 2005, Cecil T. Bragg, Jr., FDOT's inspector general, reported the "criminal conviction of Luther White, Jr., William Thomas Cooper, Jr., and White Construction Company, Inc. of Chiefland, Florida." The letter notes that Petitioner entered his guilty plea to two counts of grand theft and agreed to repay FDOT $84,000 in addition to permanent debarment from doing business with or associating with any business doing work with FDOT. The letter correctly states that the plea agreement was entered on August 30, 2000. It is notable that Mr. Bragg concludes the letter by directing any questions to "Investigations Manager Michael K. Bowen." Michael K. Bowen was the same FDOT employee who filed the complaint against Petitioner with the Board of Professional Engineers on September 13, 2001. Thus, the documents in this case establish that FDOT knew of Petitioner's conviction no later than September 13, 2001,1 yet waited nearly four years before notifying the Department of Petitioner's conviction. At the hearing, no plausible explanation was offered for FDOT's failure to comply with the requirements of Subsection 287.133(3)(b), Florida Statutes (2000). In his questioning of Petitioner, the Department's counsel implied that it was merely standard practice for FDOT to wait until everyone involved in the case had been convicted before notifying the Department. Even if this implication is accepted, it does not bring FDOT's actions within the terms of the statute. The letter itself states that the individual Whites and White Construction Company entered into a plea agreement on July 7, 2004, and that FDOT's inspector general concluded all investigation in the matter on December 23, 2004. Both those dates are months before the March 15, 2005, letter from FDOT to the Department. As noted above, Subsection 287.133(3)(b), Florida Statutes (2000), required the agency to provide notice of the convictions to the Department within 10 days of receiving the information. At the hearing, Petitioner testified that he believed that FDOT intentionally dragged out these matters due to simple vindictiveness. Given the facts noted above, Petitioner's explanation is as plausible as any offered by the Department. By letter dated March 21, 2005, Mr. Rumph attempted to notify Petitioner that the Department had received information that he had been found guilty of a public entity crime and that the Department was commencing an investigation of the matter. Because the letter was sent to an old address and apparently not forwarded, Petitioner never received it. For reasons again unexplained, another year passed before the Department made any further effort to contact Petitioner. By certified letter dated April 6, 2006, the Department notified Petitioner of its intent to place him on the convicted vendor list. This letter was sent to the old address, but was forwarded to Petitioner's current address. Petitioner testified, both at this hearing and the hearing in DOAH Case No. 02-3167PL, that he was retained to provide cost evaluations and calculate cost damages based entirely on information provided to him by engineering firms hired by the attorneys for White Construction Company, as well as information provided by White Construction Company and FDOT. He made only brief visits to the job sites, was not allowed to question the calculations performed by the engineers, and had no knowledge that the information provided to him was untrue. Petitioner did not submit the claims that later proved fraudulent. Petitioner testified that he pled guilty "to make the trial go away and save me about $150,000 at that time." He did not concede that he had actually committed any crime. Petitioner's plea agreement provided that his total aggregate sentence would be ten years of probation, with the possibility of an early termination "upon proof by Defendant to the court's satisfaction that: (a) all restitution, fines, and costs have been paid; (b) Defendant has satisfied in full all other conditions of his probation; and (c) the interests of justice are best served by early termination of probation. The Defendant understands that the State will not agree to an early termination of probation any sooner than one-half of his probationary period." At the hearing, Petitioner testified that the order terminating his probation was entered on February 10, 2006, more than four years early. The early termination of probation leads to the reasonable inference that Petitioner complied with all the terms of his plea agreement, including the following: Defendant agrees, when directed by the State, to appear and testify truthfully and fully and to provide information truthfully and fully at all interviews, hearings, depositions, and trials involving the above- captioned case and any related investigations. Defendant agrees to provide all interview statements and testimony in all depositions, hearings and trials voluntarily. . . . Petitioner has performed no work for White Construction Company or any of its principals since March 2000. Petitioner has performed no work for any state agency since March 2000. On November 8, 2000, the Federal Highway Administration suspended Petitioner from participating in federally funded projects, based on the March 23, 2000, indictment. The suspension was imposed for the duration of the criminal proceedings. By letter dated April 11, 2005, the Federal Highway Administration notified Petitioner that his suspension had been terminated, due to the conclusion of the criminal proceedings.
Findings Of Fact During all times material to the Complaint Respondent Genaro O. DiDiego was licensed as a real estate broker under Chapter 475, Florida Statutes. From May 1, 1976 until February 7, 1977, Mr. DiDiego did business under the trade name "Lauderdale Realty" in the Miami Beach Area. In the spring of 1976 Ms. Arlene Channing through a salesman, Anita Kandel, employed by Lauderdale Realty met the Respondent. Ms. Channing was naive about the real estate business and any related transactions. After their initial meeting the Respondent attempted to interest Ms. Channing in a variety of business ventures. Eventually she became involved in two. One was the Choice Chemical Company loan and the other was the Qualk Building purchase. On May 10, 1976, Ms. Channing loaned Mr. DiDiego $30,000.00 for his purchase of stock in the Choice Chemical Company. This loan was to be secured by a note and mortgage from Mr. DiDiego to Ms. Channing in the principal sum of $30,000.00 with interest at 10 percent until the principal was paid. The note and mortgage were due and payable within 18 months. Specifically, the security was 50 percent of the outstanding stock of Choice Chemical Corporation and also Lauderdale Realty's lots and telephone land operation. The security was to be held in escrow by Gerald S. Berkell, who at that time was counsel to Mr. DiDiego. In fact no such security was ever delivered into escrow. From the facts and circumstances of the transactions between Ms. Channing and Mr. DiDiego, it is found that Mr. DiDiego never intended to secure the $30,000.00 loan. That security was a material inducement to Ms. Channing for the loan. The principal sum of the loan, $30,000.00, was deposited into the account of Lauderdale Realty, account number 60-943-7 at County National Bank of North Miami Beach. Subsequently on April 18, 1978, Ms. Channing filed an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, against Mr. DiDiego for the unlawful conversion of her $30,000.00. On June 19, 1978, a final judgement by default was entered against Mr. DiDiego in the amount of $30,000.00 plus legal interest. The Qualk Building purchase concerned a building represented to Ms. Channing to cost $700,000.00. Mr. DiDiego induced her to invest $150,000.00 in the purchase of the Qualk Building. To effect the purchase, Mr. DiDiego and Ms. Channing entered into a limited partnership agreement in which Mr. DiDiego would be the general partner, investing $1,000.00 and Ms. Channing would be a limited partner, investing $150,000.00. Subsequently Ms. Channing deposited $150,000.00 into the Lauderdale Realty escrow account. Her check dated June 18, 1976, in the amount of $150,000.00 was deposited in Account number 60-944-8 for Lauderdale Realty. In fact, the total purchase price for the Qualk building was $585,000.00. The building was however encumbered by first and second mortgages totaling $535,855.90. The total amount therefore required to close was less than $33,000.00. These facts were known to Respondent but were not disclosed to Ms. Channing. From the facts and circumstances of this transaction, it is found that the facts were misrepresented to Ms. Channing for the purpose of inducing her to part with her $150,000.00. Ms. Channing never received any accounting for her investment and she subsequently brought an action in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. On July 8, 1977, final judgment was entered against Respondent, Genaro O. DiDiego in the amount of $150,000.00 less $32,662.84, which were actually applied to the purchase price of the Qualk building, and less $9,780.00 which represents a portion of the income of the Qualk Building paid by Respondent to Ms. Channing. In entering its final judgment, the Court found that Respondent breached His fiduciary duty to Ms. Channing. This judgment has never been satisfied.
Recommendation In light of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the license of Genaro O. DiDiego as a real estate broker be revoked by the Board of Real Estate, Department of Professional Regulation. DONE and RECOMMENDED this 3rd day of November, 1980, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1980. COPIES FURNISHED: Tina Hipple, Esquire Staff Attorney Department of Professional Regulation 2009 Apalachee parkway Tallahassee, Florida 32301 C. B. Stafford Board Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Genaro O. DiDiego 3745 N.E. 171st Street North Miami Beach, Florida 33160
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Samuel J. Marshall, was born on November 19, 1936. In March 1986 he began employment as a truck driver hauling sand for Taylor Concrete and Supply, Inc. (Taylor) at its Palatka, Florida plant. When he began his employment with Taylor, Marshall advised his supervisor that because of his religious beliefs, he could not work on Saturdays. The name of the religion is not of record. Marshall says that after giving such notification to his employer, he was never required to work on Saturdays during his tenure with Taylor. This was not contradicted. In 1989, Taylor sold the plant to respondent, Tarmac Florida, Inc. (Tarmac). As an employer with more than fifteen full-time employees, Tarmac is subject to the regulatory jurisdiction of the Florida Commission on Human Relations (Commission). Shortly after the sale, petitioner was advised that his position as a sand truck driver was being eliminated but he could transfer to a position as a ready-mix driver in the ready-mix division at the same plant. Petitioner accepted this offer effective November 28, 1989. Because the new position required the driver to work every other Saturday, petitioner advised the new plant manager, Byron White, that he could not work on Saturdays because of his religious beliefs. After Marshall produced evidence to verify his claim, White excused Marshall from working on Saturdays. Tarmac employee timecards confirm that Marshall was never required to work on a Saturday. Petitioner was required to undergo a brief period of training by riding for several weeks with a senior driver, James Bolt. During petitioner's training period, Bolt was engaged in the illicit practice of selling any concrete left in his truck at the end of the day to third parties and then pocketing the money. This was obviously contrary to company policy. Petitioner was aware of this activity but said nothing. On occasion, Bolt would give petitioner some of the illicit proceeds, which he accepted. In the first week of February 1990, or after he had completed his training with Bolt, petitioner went to White and told him that there was "illicit" activity being conducted at the plant, but he refused to disclose the nature of the activity or the name of the individual engaged in that enterprise. He also failed to tell White that Bolt had given him money. White communicated this conversation to the regional manager, Jack Stegall, but because they had no specific information on which to proceed, they were unable to investigate the allegations. Tarmac has a number of plants within each division. It is not uncommon for drivers to be transferred from one location to another, based on the varying demands of the different plants. In June 1990 Stegall decided to transfer two drivers from the Palatka plant to the Green Cove Springs plant due to increased business at the latter facility. Petitioner and another driver, Dennis Folmer, then approximately thirty years of age, were selected for transfer since they had the least seniority in the Palatka ready-mix division. After learning of Stegall's decision, petitioner contacted Stegall and advised him that he believed the company policy required that transfer decisions be made based on seniority with the company, rather than seniority in a particular position. Stegall then checked with the human resources department and learned petitioner was correct. Petitioner's name was thereafter removed from the transfer list and James Bolt, who had less seniority than petitioner, was placed on the list. During his meeting with Stegall, petitioner informed him about the illegal concrete sales that had occurred during his training period. After petitioner was told to inform White about this matter, he took White to the locations where he was with Bolt when the concrete was illegally sold. He also turned over to White the $30 he had received from Bolt. Based on Marshall's revelation, on June 25, 1990, Bolt was terminated as an employee for the unauthorized sale of concrete. Because he had come forward and disclosed the illegal activity, petitioner was only given a one-week suspension without pay. Petitioner did not question nor challenge the suspension and admitted to White that he was involved in the sales. Also, on July 11, 1990, he was given a warning notice prepared by White and which read in part as follows: Sam confessed to selling unauthorized concrete on three separate occasions. Sam also reported others involved. For this reason only Sam was given one week off. If for any reason this happens again or attempt (sic) to, Sam will be terminated. Although petitioner was handed a copy of the notice, he refused to sign it, threw it back at White and walked away. At the same time petitioner notified Stegall of the illegal concrete sales, he also asked Stegall about the possibility of transferring to Tarmac's Deland facility, which was closer to his home. Stegall indicated he would try to assist petitioner with a transfer, if possible. The next day, petitioner drive to the Deland facility and spoke with the Deland plant manager who indicated there was a ready-mix driving position available. The plant manager also agreed to contact White on petitioner's behalf. Even so, because the Palatka facility was short two drivers due to the transfer of Bolt and Folmer to Green Cove Springs, White could not afford to allow petitioner to transfer to Deland. He did promise petitioner that he would arrange for a transfer as soon as an opportunity arose which would not adversely impact the Palatka facility. After petitioner's suspension for his participation in the illegal sale of concrete, Tarmac received complaints from other Tarmac employees regarding petitioner. Believing this conduct to be detrimental to the integrity of the company and a disruption of the harmony of the work unit, Minor Turrentine, then the Tarmac area production manager, advised petitioner that if he continued to talk about the illegal sale of concrete with other drivers and customers, he would be terminated for breaching company policy, that is, disclosing confidential information that was contrary to the company's best interests. He was also given a written warning on July 16, 1990, which read as follows: You were recently suspended for your admitted involvement in certain activities that are against company policy. It has been reported that you have openly discussed these matters with employees at various locations. Be advised that any further discussion concerning your suspension and the circum- stances surrounding it will be considered breach of confidentiality, which is a violation of company policy. Any further violation of company policy will subject you to severe disciplinary action, up to and including discharge. After White received further complaints regarding petitioner, Tarmac terminated petitioner's employment effective August 21, 1990, for breaching company policy. The separation notice, which was dated the same date, gave the following reason for his termination: Employee was formally warned on July 16 to discuss no further his recent suspension. Discharged for further discussion on or about 8/20/90. There is no evidence as to whether petitioner was replaced by another driver, and if so, the age of that driver. When terminating petitioner, Tarmac did not do so because of petitioner's age or religious beliefs. Indeed, Marshall conceded at hearing that he had no direct proof of discrimination but merely believed he was improperly terminated for those reasons. As evidence of age discrimination, petitioner speculated that Tarmac may have been attempting to lower its insurance rates by removing an older person from its payroll, a belief based solely on a conversation he had with an insurance agent a few weeks prior to hearing. However, at least three other ready mix drivers at the Palatka plant are older than Marshall. He also speculated that because he was not required to work on Saturdays, this caused ill-will among his co-workers, and Tarmac terminated him for his religious beliefs. Again, there was no proof, either circumstantial or direct, to support this assertion. Regarding the claim that Tarmac's decision to transfer petitioner to Green Cove Springs in June 1990 was in retaliation for him telling White that working Saturdays was against his religion, the evidence shows that petitioner was removed from the transfer list once his seniority was brought to the company's attention. Petitioner also suggests that he was denied a transfer to the Deland facility in June 1990 as retaliation for his religious beliefs. However, the evidence shows that it was not feasible for Tarmac to transfer him at that time due to a shortage of drivers but Tarmac promised that an effort would be made to comply with his request when it was feasible. Petitioner did not state whether he desires reinstatement to his former position. In his petition for relief, petitioner did request "70 percent of (his) average yearly base pay since August 20 on". However, petitioner's salary at the time of discharge is not of record. Further, there was no evidence presented to establish his salary nor the monetary losses, if any, petitioner has suffered by virtue of his termination. He is currently employed with another company.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying the petition for relief. DONE AND ORDERED this 29th day of April, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 29th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5927 Respondent: Partially accepted in findings of fact 1 and 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 2. 6. Partially accepted in finding of fact 4. 7-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 6. 10-11. Partially accepted in finding of fact 7. 12-13. Partially accepted in finding of fact 8. 14-15. Partially accepted in finding of fact 9. 16-17. Partially accepted in finding of fact 10. 18. Partially accepted in finding of fact 11. 19. Partially accepted in finding of fact 2. 20-23. Partially accepted in finding of fact 11. 24. Rejected as being unnecessary. Note - Where a finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, a conclusion of law, or not supported by the evidence. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Samuel J. Marshall S. R. Box 1075 Georgetown, Florida 32139 Grant D. Petersen, Esquire Donna M. Griffin, Esquire 1408 North Westshore Boulevard Suite 1000 Tampa, Florida 33607
Findings Of Fact At all times relevant hereto, respondent, Landmark Real Estate and Investment Exchange, Inc. (Landmark), was a corporation licensed as a broker. It holds license number 0170938 issued by petitioner, Department of Professional Regulation, Division of Real Estate (Division). Respondent, Stephen P. McCrady, was a licensed real estate broker having been issued license number 0227524 by petitioner. McCrady was also the qualifying broker and officer of Landmark. License renewal fees have apparently not been paid by respondents since 1984 and their licenses are accordingly considered to be inactive. However, such licenses can be reactivated by respondents paying the required fees and completing any necessary continuing education requirements. At the present time, McCrady's license has a status of "pending litigation" because of the instant proceeding. On October 28, 1983, the Division (then the Florida Real Estate Commission) entered a Final Order against respondents in which respondents were reprimanded and ordered to pay a $500 fine within thirty days from the date of order. This fine was never paid. On April 3, 1984, respondent McCrady filed a chapter 7 petition in the United States Bankruptcy Court for the Southern District of Florida. On September 17, 1984, that Court entered a Discharge of Debtor order which released the debtor (McCrady) "from all dischargeable debts" and declared null and void certain other debts. The order further provided that "all creditors who [sic] debts are discharged ... (or) whose judgments are declared null and void ... are hereby enjoined from commencing, continuing or employing any action, process or act to collect, recover or offset any such debt as a personal liability of the debtor." Respondent Landmark did not file a petition nor was it a party to McCrady's bankruptcy proceeding. When the agency Final Order was entered, McCrady could not afford to pay the $500 fine. However, he telephoned a Division attorney and asked if he could pay the fine by installments. He was told he could not do this. Shortly afterwards he filed for personal bankruptcy. It was his impression that the bankruptcy proceeding discharged all debts, including the $500 administrative fine. McCrady did not advise the Division that he had filed for bankruptcy until after the complaint in this proceeding had been filed. McCrady intends to again use his real estate license in the future. Because of serious personal and financial problems, he has not used the license for several years.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Rule 21V-10.31, Florida Administrative Code, and Subsection 475.25(1)(e), Florida Statutes (1985), and that they each be required to pay $250 within thirty days from date of the final order in this proceeding to satisfy the terms of the Final Order previously entered on October 23, 1983. Otherwise, their licenses should be revoked. DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1145 Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 3. COPIES FURNISHED: Susan J. Hartman, Esquire Post Office Box 1900 Orlando, Florida 32802 Ronald R. Rogowski, Esquire 628 S.E. 5th Avenue Ft. Lauderdale, Florida 33301 Mr. Harold R. Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
