Findings Of Fact 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on April 5, 2010, the Amended Order of Penalty Assessment issued on May 13, 2010, and the 2nd Amended Order of Penalty Assessment issued on October 6, 2010, attached as “Exhibit A”, “Exhibit C”, and “Exhibit G“, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the requests for administrative hearing received from GGR, L.L.C., the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2nd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On April 5, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-111-D4 to GGR, L.L.C. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein GGR, L.L.C. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On April 13, 2010, the Stop-Work Order and Order of Penalty Assessment was personally served on GGR, L.L.C. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3, On April 27, 2010, GGR, L.L.C. filed a Response to Stop-Work Order and Request for Hearing (“Petition”) with the Department which contested the Stop-Work Order and Order of Penalty Assessment issued by the Department. A copy of the Petition is attached hereto as “Exhibit B”. 4. On May 13, 2010, the Department issued an Amended Order of Penalty Assessment to GGR, L.L.C. The Amended Order of Penalty Assessment assessed a total penalty of $329,549.82 against GGR, L.L.C. 5. On May 24, 2010, the Amended Order of Penalty Assessment was served by certified mail on GGR, L.L.C. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On June 21, 2010, GGR, L.L.C. filed a Response to Amended Order of Penalty Assessment (“Amended Petition”) with the Department which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-4762. A copy of the Amended Petition is attached hereto as “Exhibit D”. 7. On September 17, 2010, GGR, L.L.C. filed a Notice of Voluntary Dismissal of its Amended Petition with the Division of Administrative Hearings in DOAH Case No. 10-4762. On September 23, 2010, Administrative Law Judge J. D. Parrish entered an Order Closing File in DOAH Case No, 10-4762. A copy of the Notice of Voluntary Dismissal and Order Closing File are attached hereto as “Exhibit E” and “Exhibit F”, respectively. 8. On October 6, 2010, the Department issued a 2nd Amended Order of Penalty Assessment to GGR, L.L.C. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $284,375.20 against GGR, L.L.C. The 2nd Amended Order of Penalty Assessment included a Notice of Rights wherein GGR, L.L.C. was advised that any request for an administrative proceeding to challenge or contest the 2nd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 2nd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 9. On October 18, 2010, the 2nd Amended Order of Penalty Assessment was served on GGR, L.L.C. by certified mail. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit G” and incorporated herein by reference. 10. GGR, L.L.C. failed to respond to the 2nd Amended Order of Penalty Assessment, resulting in the issuance of this Final Order.
Findings Of Fact 11. — The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 3, 2009, and the Fourth Amended Order of Penalty Assessment issued on February 5, 2010, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Fourth Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-014-D2, and being otherwise fully advised in the premises, hereby finds that: 1. On February 3, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-014-D2 to ASSOCIATED WINDOW AND DOOR, INC. (ASSOCIATED). The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein ASSOCIATED was advised that any request for an administrative proceeding to challenge or contest the Stop- Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On February 3, 2009, the Stop-Work Order and Order of Penalty Assessment was served via personal service on ASSOCIATED. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On April 10, 2009, the Department issued an Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Amended Order of Penalty Assessment assessed a total penalty of $99,761.78 against ASSOCIATED. The Amended Order of Penalty Assessment included a Notice of Rights wherein ASSOCIATED was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569.and 120.57, Florida Statutes. 4. The Amended Order of Penalty Assessment was served on ASSOCIATED by personal service on April 13, 2009. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 30, 2009, the Department issued a Second Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Second Amended Order of Penalty Assessment assessed a total penalty of $76,081.13 against ASSOCIATED. The Second Amended Order of Penalty Assessment contained a Notice of Rights wherein ASSOCIATED was advised that any request for an administrative proceeding to challenge or contest the Second Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Second Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 6. The Second Amended Order of Penalty Assessment was served on ASSOCIATED by personal service on May 1, 2009. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On May 22, 2009, ASSOCIATED filed a timely Petition for a formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 09- 3044. . 8. On February 5, 2010, the Department issued a Fourth Amended Order of Penalty Assessment to ASSOCIATED in Case No. 09-014-D2. The Fourth Amended Order of Penalty Assessment assessed a total penalty of $1,256.24 against ASSOCIATED. The Fourth Amended Order of Penalty Assessment was served on ASSOCIATED through the Division of Administrative Hearings. A copy of the Fourth Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and is incorporated herein by reference. 9. ‘On February 10, 2010, ASSOCIATED filed a Motion to Close File Due to Settlement in DOAH Case No. 09-3044. A copy of the Motion to Close File Due to Settlement filed by ASSOCIATED. is attached hereto as “Exhibit E.” 10. On February 10, 2010, Administrative Law Judge Errol H. Powell entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the February 10, 2010 Order Closing File is attached hereto as “Exhibit F.”
Findings Of Fact Petitioner was first employed by the. Florida State Hospital at Chattahoochee, Florida in 1968 and since March, 1971 has been evaluated by his supervisors as conditional or unsatisfactory in dependability. These low marks in dependability stem directly from his absenteeism rather than from his calibre of work when on duty. Petitioner is employed as a psychiatric aide. On October 31, 1972 Petitioner received his first written reprimand for excessive absenteeism. On March 22, 1973 a second written reprimand was received by Petitioner for excessive absenteeism. From August 1974 to May 1975 Petitioner was granted leave of absence to attend a vocational school. Upon his return to work at the hospital he was assigned to the 3:00 P.M. to 11:30 P.M. shift. In August 1975 Petitioner was assigned to night duty at his own request and over the objection of the night duty supervisor whose objections were based solely on Petitioner's prior record of absenteeism. Between the months of September 1975 to August 1976 Petitioner was absent a total of 64 1/2 days of the days he was required to be on duty. On July 13, 1976 Petitioner was given a third written reprimand for excessive absenteeism. On each of the occasions Petitioner was absent he would call in one or two hours prior to the time he was scheduled to report for duty to advise that he or a member of his family was sick. At this time of night it was often impossible for the hospital to get a replacement for him, and, as a result, the ward was short of attendants. Following the July 13, 1976 written reprimand Petitioner called in sick on July 25, July 31, and August 1, 1976. In approximately 95 percent of the cases Petitioner's absences occurred the day prior or subsequent to his scheduled off-duty days. During the six months period prior to his suspension from duty for three days without pay the ward to which Petitioner was assigned was a surgical ward where most patients required more intensive care than on non-surgical wards. While on duty Petitioner is an effective and capable employee and his efficiency reports so indicate. HRS Employee Handbook (Exhibit 1) provides penalties for various offenses. For the first offense of excessive absenteeism oral to written reprimand is recommended. For a second such offense penalty of written reprimand to three days suspension is recommended. For a third such offense three days suspension to dismissal is recommended. For a fourth such offense dismissal is recommended. Testifying in his own behalf Petitioner acknowledged excessive absenteeism and gave as a reason that he was subject to headaches, and, that when he didn't feel good he would stay home rather than come to work and have to listen to the complaints of his fellow workers. During the past year Petitioner has been employed by Gadsden County School Board as a bus driver. While so employed he missed only one day due to sickness.
The Issue The issue in this case is whether the Petitioner should be exempted from employment disqualification, thereby allowing him to work in a position of special trust or responsibility with the Department of Juvenile Justice (Department).
Findings Of Fact On September 23, 1994, the Petitioner was arrested by the Broward County Sheriff's Office and was charged with the crimes of aggravated assault with a firearm and carrying a concealed weapon. On November 8, 1994, on the advice of counsel, the Petitioner entered a plea of nolo contendere to the charge of aggravated assault with a firearm. On August 22, 1995, the Petitioner was sentenced to a five-year period of probation, and as a special condition of his probation was ordered to pay $250.00. The charge of carrying a concealed weapon was not processed. In April of 1999, the Petitioner applied for the position of coordinator with Atlantic Coast Marine Institute (ACMI). This position would have brought the Petitioner into direct contact with juveniles. On April 28, 1999, ACMI submitted to the Office of the Inspector General (OIG) a Request for Preliminary FCIC/NCIC and DHSMV Screening on the Petitioner. As a result of his criminal history, on May 2, 1999, the Petitioner was rated "Unfavorable/Disqualifying" on his preliminary screening. By letter dated July 22, 1999, the Petitioner was advised of the results of the preliminary screening, and was also advised of the procedure for requesting an exemption from employment disqualification. The Petitioner thereafter filed a timely request for exemption with supporting documents. By letter dated August 26, 1999, the Petitioner was advised that his request for exemption from employment disqualification pursuant to Section 435.07, Florida Statutes, was denied. Thereafter, the Petitioner filed a timely request for a hearing to challenge the denial of his request for exemption. The disqualification of the Petitioner is based solely on his entry of a plea of nolo contendere to the charge of aggravated assault with a firearm, and the court sentence based on that plea. The Petitioner's plea of nolo contendere, which was based on the advice of legal counsel, was a plea of convenience to bring about a prompt resolution of the criminal charges and to avoid the possibility of a prison sentence. The Petitioner did not enter that plea because he believed he was guilty of the offense of aggravated assault with a firearm. To the contrary, the Petitioner has at all times believed, and continues to believe, that he is innocent of the criminal offense to which he pled nolo contendere. The Petitioner's belief in this regard is well-founded, because at the time of the incident which led to the filing of criminal charges against the Petitioner, he did not have a firearm in his possession and, therefore, could not have assaulted anyone with a firearm. 2/ Following his sentence on the criminal charge, the Petitioner made good faith efforts to timely comply with all conditions of his probation. He had occasional difficulties making the financial payments required by his sentence due to difficulties in obtaining steady employment. Ultimately, the Petitioner fulfilled all conditions of his probation and, as of September 13, 1999, the Petitioner's probation was terminated early by court order. Both before and after the incident that led to the Petitioner's arrest, he has worked in positions involving the care and supervision of young people. The Petitioner enjoys working with young people and appears to be quite good at such work. 3/ The Petitioner was raised in a military family. He also served for four years in the military. He is a self- disciplined person who takes his personal and professional responsibilities seriously. He is active in his community and does his best to be an upstanding citizen. In sum, the Petitioner is a decent and honorable person who enjoys working with youth, is good at working with youth, and should not be disqualified from employment positions working with youth.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 25th day of April, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2000.
Findings Of Fact 11. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 18, 2010, and the 2"! Amended Order of Penalty Assessment issued on August 5, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the 2" Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 10-053-D4 and being otherwise fully advised in the premises, hereby finds that: 1. On February 18, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-053-D4 to McDonnell Painting, d/b/a Painting and Wallcovering by McDonnell (McDonnell). The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein McDonnell was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On March 3, 2010, the Stop- Work Order and Order of Penalty Assessment was served via certified mail on McDonnell. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On February 19, 2010, the Department issued an Amended Order of Penalty Assessment to McDonnell in Case No. 10-053-D4. The Amended Order of Penalty Assessment assessed a total penalty of $10,058.88 against McDonnell. The Amended Order of Penalty Assessment included a Notice of Rights wherein McDonnell was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. The Amended Order of Penalty Assessment was served on McDonnell by certified mail on February 25, 2010. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On March 15, 2010, McDonnell timely filed a Petition requesting a formal administrative hearing. The Petition failed to satisfy the requirements of Rule 28-106.2015(S), Florida Administrative Code, in that it did not contain a statement requesting an administrative hearing which identified those material facts in dispute, or in the alternative a statement that there were no disputed issues of material fact. As a result, on April 23, 2010, the Department issued an Order Dismissing Petition for Section 120.57(1), Florida Statutes, Hearing Without Prejudice, giving McDonnell 21 days to file a Petition that satisfied the requirements of Rule 28- 106.2015(5), Florida Administrative Code. 6. The Order Dismissing Petition for Section 120.57(1), Florida Statutes, Hearing Without Prejudice was served on McDonnell by certified mail on April 27, 2010. 7. On May 19, 2010, McDonnell timely filed an Amended Petition requesting an administrative hearing pursuant to Section 120.57(1), Florida Statutes. A copy of the Amended Petition is attached hereto as “Exhibit C” and incorporated herein by reference. The matter was referred to the Division of Administrative Hearings, where it was assigned Case No. 10-2788. 8. On January 10, 2011, the Department and McDonnell reached a negotiated settlement in which the Department agreed to issue a 2"! Amended Order of Penalty Assessment assessing a penalty in the amount of $2,379.00, and McDonnell agreed to pay the total penalty of $2,379 and to no longer contest the Stop- Work Order and Order of Penalty Assessment and gn Amended Order of Penalty Assessment. 9. On January 10, 2011, the Department filed a Notice of Settlement with the Division of Administrative Hearings, advising the Administrative Law Judge that the parties had resolved all issues pending in Case No. 10-2788. A copy of the Notice of Settlement is attached hereto as “Exhibit D.” 10. On January 10, 2011, Administrative Law Judge R. Bruce McKibben entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the Order Closing File is attached hereto as “Exhibit E.” 11. On August 5, 2011, the Department issued a 2"™ Amended Order of Penalty Assessment to McDonnell in Case No. 10-053-D4. The 2™ Amended Order of Penalty Assessment lowered the penalty assessed against McDonnell to $2,379.00 pursuant to the negotiated settlement. The 2"? Amended Order of Penalty was served on McDonnell by email on August 11,2011. A copy of the 2"! Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference.
The Issue Petitioner challenges the validity of Rule 3SF-2.13, Florida Administrative Code. 1/
Findings Of Fact Based on the entire record compiled herein, including the parties' factual stipulation, the following relevant facts are found. MISSION Insurance Co. (MISSION) is a corporation duly authorized to issue insurance policies, including workers' compensation insurance policies in the State of Florida. MISSION conducts its adjusting operations at North Regency One, Suite 400, 985 Regency Square Boulevard, Jacksonville, Florida. In the regular course of its business, MISSION adjusted the worker's compensation claim of Katrine Graham, who was injured on April 30, 1984 in an accident arising out of and in the course of her employment with Smiley's Mobey Dick Restaurant. MISSION received notice of the accident on May 21, 1984. On September 1, 1984, MISSION filed with the DIVISION its initial Injury Progress report (LES From BCL-13), in connection with the claim. On February 11, 1985, MISSION received from the DIVISION's Bureau of Workers' Compensation Carrier practices a letter dated February 4, 1985, notifying MISSION that the Bureau had assessed against MISSION the penalty of $100.00 for filing the form 11 days after the time prescribed by Rule 38F-3.16, F.A.C. A copy of the letter is attached hereto as Joint Exhibit "A." Since at least 1979, the DEPARTMENT has had a policy of imposing a fine of $100.00 on any insurance carrier who files its initial Injury Progress Report (LES From BCL-13) more than 105 days after it receives notice of the accident. The DEPARTMENT applies this policy, through its Bureau of Workers' Compensation Carrier Practices, to all insurance carriers and self-insured employers who come within the jurisdiction of the DEPARTMENT. The DEPARTMENT imposes penalties for the untimely filing of forms other than the BCL-13 form. The penalties to be imposed for the untimely filing of the BCL-13 form, as well as other forms, are stated in a "Penalty Assessment Chart," a copy of which is attached hereto as Joint Exhibit "B." At the time the subject penalty was imposed on MISSION, this chart was used by the DEPARTMENT's workers' compensation examiners in determining whether a penalty should be imposed and, if so, the amount of the penalty. The DEPARTMENT did not implement or use Chapter 120 rulemaking procedures to adopt the Penalty Assessment Chart, or the policy it represents, as a rule. PETITIONER'S POSITION Petitioner contends that the Penalty Assessment Chart amounts to an unpublished rule which has the effect of exacting a penalty for "late" filing in excess of Respondent's legislative authority inasmuch as Respondent is only authorized to impose a penalty based on a carriers failure or refusal to file forms, reports, or notices pursuant to Section 445.185(9), Florida Statutes. Petitioner avers that in the absence of specific statutory authorization for Respondent to impose a penalty or assessment for an untimely filing, there is no basis upon which Respondent can impose the penalty involved herein, that the rule should be declared invalid and the $100.00 penalty imposed based thereon, should be rescinded. RESPONDENT'S POSITION Respondent avers that timely filings are inextricably tied to the Division's reporting requirements and that to conclude that a carrier could file reports, notices, etc. at will, without any directive, would lead to an absurd result in contravention of Respondent's long-standing reporting policy which has been effective since approximately 1979. Finally, Respondent urges that the legislature has authorized it to exact penalties for late filings based on the authority granted in Sections 440.185(5) and (9), Florida Statutes.
The Issue The issue is whether Petitioners, Judith C. Cleary and Charles B. Houck (Petitioners or Ms. Cleary and Mr. Houck), are entitled to an award of attorney's fees against Respondent, Department of Financial Services (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).1/
Findings Of Fact The underlying proceedings were initiated by Respondent on February 22, 2010, by the issuance of substantively identical Administrative Complaints against Petitioners. Petitioners timely requested administrative hearings to contest the charges against them, and the cases were forwarded to the Division of Administrative Hearings where they were consolidated for hearing. Count 1 of each Administrative Complaint charged Petitioners with willfully misrepresenting and or omitting material information in order to induce Mr. and Mrs. Nagle to cash in another annuity they held in order to purchase an annuity sold by Petitioners. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when in fact there would be a 15 percent surrender charge; falsely representing that the annuity would earn the Nagles ten to 20 percent returns; and (3) misrepresenting the suitability of the Nagles to purchase the annuity by misrepresenting the Nagles' net worth and by misrepresenting the Nagles' investment objective as long-term, in a form Petitioners submitted to the insurance company issuing the annuity. Count 2 of each Administrative Complaint charged Petitioners with similar conduct in order to induce the Nagles' son, Robert, to purchase an annuity. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when, in fact, there would be a 15 percent surrender charge; and falsely representing that the annuity would earn Robert Nagle ten to 20 percent annual returns. Petitioners do not dispute that if the allegations charged in the Administrative Complaint had been proven by clear and convincing evidence, then Respondent would have established the statutory violations alleged as the predicate for taking disciplinary action against Petitioners' insurance agent licenses. Petitioners also acknowledge that Respondent initiated the disciplinary actions against them on the basis of two complaint letters received by Mrs. Phyllis Nagle, the attestation of Mrs. Nagle to the material allegations in an affidavit, and a corroborating complaint letter by Mrs. Nagle's son, Robert Nagle. After a full evidentiary hearing, a Recommended Order issued in the underlying disciplinary actions determined that the more credible evidence failed to establish the allegations in the Administrative Complaints. In particular, the undersigned weighed the credibility of testimony by Robert Nagle and by Petitioners at the final hearing, as well as deposition testimony by both Mr. and Mrs. Nagle. The question posed in this case, however, is not whether credibility judgments caused the Department to ultimately not prevail in its charges against Petitioners. Instead, the question here is whether Respondent had a reasonable basis, in law and in fact, at the time it initiated the underlying disciplinary actions. In this regard, Petitioners contend that the Department's investigation file contained documents from the insurance company issuing the annuities that contradict the allegations in the Administrative Complaints. Petitioners point to three documents in particular. The first document was a customer survey response submitted by Mrs. Nagle to the insurance company after she purchased the annuity from Petitioners. Her completion of the survey form indicated that she knew that "[s]urrender charges are imposed on premature full withdrawal"; that she considered the "annuity to be a long-term investment"; that she did "not intend to use these funds to meet current expenses"; and that Petitioners reviewed her "financial status . . . and other pertinent information to determine whether this annuity purchase" was suitable to her. The other document claimed to contradict the allegations in the Administrative Complaints was the Nagles' annual statement showing a yield of 5.66 percent, which was different than the 2.6 percent yield claimed by Mrs. Nagle in her complaint letters or affidavit. Finally, Petitioners point to statements of understanding signed by the Nagles, showing the surrender charges that would be imposed for early withdrawals. None of these documents conclusively refute the charges in the Administrative Complaint. For example, with respect to surrender charges, the Nagles' complaints assert that Petitioners represented that there would be no surrender charges for a withdrawal after one year. Mrs. Nagle's survey form only acknowledged that there would be surrender charges for "premature" withdrawal. It certainly would have been possible to reconcile these two concepts in that Mrs. Nagle may have been thinking that "premature" withdrawal, as used in the survey form, was a withdrawal in less than one year. The response in the survey form to the "surrender charge" question does not conclusively contradict Mrs. Nagle's complaint and affidavit, nor does it conclusively contradict the allegations in the Administrative Complaint. Similarly, the responses in the survey form about suitability do not conclusively contradict the allegations in the Administrative Complaint. The annual statement likewise does not conclusively contradict the allegations in the Administrative Complaint, even though the yield shown is somewhat different from the yield Mrs. Nagle referred to in her complaint. Whether the yield was actually 2.6 percent or 5.66 percent, the material allegations in the Administrative Complaint were that Petitioners misrepresented that the yield would be 10 to 20 percent per year. These allegations and the complaints on which they were based, were not so plainly lacking in credibility that no reasonable agency would have proceeded with charges. Finally, the signed statements of understanding showing that surrender charges would be imposed for early withdrawals do not contradict the Nagles' complaints or the allegations in the Administrative Complaint. Although the undersigned ultimately found against the credibility of the Nagles' complaints, those complaints were that Petitioners made oral representations assuring the Nagles that there would be no surrender charges after one year, even though the policy forms themselves said otherwise. The ultimate lack of credibility of the complaining witnesses' testimony was not so clear that no reasonable agency would have prosecuted the claims. In short, Respondent had a reasonable basis in law and in fact, following a reasonable investigation, to make the allegations and to charge the statutory violations it did in the Administrative Complaints. The documentation gathered in the investigation did not conclusively contradict the factual allegations, and the credibility of the complainants was not so obviously lacking that no reasonable agency would have made the allegations in the Administrative Complaints. And it is beyond dispute that if those factual allegations had been proven, the charged statutory violations would have been established. Thus, it cannot be said that Respondent's action in initiating the disciplinary proceedings against Petitioners was unreasonable governmental action.
Findings Of Fact 9. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on March 18, 2009, and the Amended Order of Penalty Assessment issued on April 7, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
The Issue The matters to be determined in this case concern an administrative complaint which has been filed against Monroe Monford a/k/a Monroe Monford, Jr. seeking to take disciplinary action based upon the allegation that the Respondent, by the entry of a plea of guilty to a violation of Section 893.13(1)(e) Florida Statutes, possession of cocaine, has thereby violated Sections 455.227(1)(c) and 465.016(1)(f), Florida Statutes.
Findings Of Fact Respondent, Monroe Monford also known as Monroe Monford, Jr. is a pharmacist licensed under the laws of the State of Florida, License No. 0009494 whose address is 3822 Elbert Avenue, Jacksonville, Florida 32208. In June of 1982 an investigation was conducted by the Duval County Sheriff's office, Duval County, Florida leading to the arrest of the Respondent. The arrest occurred at 5929 Ramona Boulevard in the Days Inn Motel. A monitor had been placed in the room where a suspected drug transaction was to occur and it was determined that the Respondent was involved in that transaction to the extent of conducting a test to ascertain if the substance being purchased was actually cocaine. It was later determined to be cocaine. Another individual who was in the room with Monroe Monford, one Eddie Lee Tuff, went to a car to obtain money that was being paid for cocaine. Subsequent to that time law enforcement officials entered the room which was under surveillance and found Monroe Monford on the bed counting the money in question. Monford was arrested for a violation of Section 893.135, Florida Statutes, trafficking in a controlled substance, namely cocaine. In response to charges which were brought against Respondent in the Circuit Court of Duval County, Florida, Case No. 82- 5383CFS, Respondent entered a plea of guilty to the sale of cocaine and received a period of probation of five years, assessment of court costs in the amount of $12,153 and as a special condition of probation, was prohibited from practicing pharmacy in Florida or any other state while serving the probationary term. The offense to which he plead guilty was a violation of Section 893.13, Florida Statutes. Respondent was not adjudged guilty of the violation of law to which he plead, imposition of the sentence having been withheld pending the satisfactory completion of the probationary period. The date of the court disposition of the case was October 15, 1982.
Findings Of Fact The Respondent Michael Rush is a Doctor of Podiatry having been issued license number PO 0000529. The Respondent Rush was charged with and convicted of conspiracy to possess and import marijuana, Title 21 USC 841(a)(1), in the United States District Court, Connecticut. On March 30, 1981, the Respondent's conviction was affirmed, United States v. Rush, 666 F.2d 10 (2nd Cir. 1981). The Respondent Rush was incarcerated for a period of fourteen months, paid a fine of $15,000 and forfeited $33,000 from his savings account to the federal government pursuant to 21 USC 881(a)(6)(1976). The Respondent Rush is a resident of Broward County, Florida and maintains a professional office at 4700 Sheridan Street, Hollywood, Florida. Prior to the instant conviction, the Respondent Rush had never been charged with or convicted of any crime. The Respondent Rush has been active in community affairs, having participated in Little League, Boy Scouts, the Broward County Fair, and has received character references from a variety of local community leaders. The Respondent Rush is currently practicing his profession, has obtained professional liability insurance through the Podiatry Trust and is on the staff of Community Hospital of North Broward and Hollywood Pavillion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Michael Rush by the Board of Podiatry be dismissed. DONE and ORDERED this 30th day of December, 1982, in Tallahassee, Florida. SHARYN L. SMITH, 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 30th day of December, 1982.
