Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent repay Petitioner $5,053 in disallowed costs: DONE and ENTERED this 13th day of April, 1982, 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 13th day of April, 1982.
The Issue Whether Petitioner, Troy Perry, was denied service at Respondent's, Speedway SuperAmerica, LLC, d/b/a Starvin' Marvin, service station because of his race.
Findings Of Fact Petitioner is a 39-year-old, African-American male. Respondent operates and maintains an automobile service station in Palm Bay, Brevard County, Florida. On the evening of May 24, 2000, Petitioner attempted to obtain gasoline for his automobile at Respondent's service station. For the preceding two years Petitioner had frequently obtained gasoline at Respondent's service station without incident or any suggestion of racial discrimination. The gasoline pumps at Respondent's service station utilize computers in their operation. On this particular evening, the computers were not functioning properly and, as a result, Rose Locasio, a cashier at Respondent's service station, had announced over a speaker system audible at the gasoline pumps that all customers would have to pre-pay for gasoline purchases. There is no evidence that Petitioner heard this announcement. Ms. Locasio had been an employee of Respondent's service station from January 1998 until July 2000. Her employment is coincident with Petitioner's frequent patronization of the service station. Petitioner removed the gasoline nozzle from the pump and inserted it into his gas tank. He was not able to pump any gas. After waiting a few minutes for the gasoline pump to be activated, Petitioner went into the service station and presented $15 to Rose Locasio. She activated the gasoline pump. At this point, Petitioner questioned Ms. Locasio regarding the requirement that he pre-pay suggesting that he was required to pre-pay because he was black. Ms. Locasio commented that she discriminated against all minorities, blacks, Hispanics, Indians, and whites. Feeling insulted by Ms. Locasio's comment, Petitioner decided he didn't want to purchase gasoline from Respondent's service station and requested his $15 back. Ms. Locasio explained that she could not refund the $15 once the computer had been activated without the station manager's permission. The station manager was not on duty. Petitioner called the police, as did another of Respondent's employees. When the police arrived they effected the return of Petitioner's $15.
Recommendation Based of the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner has failed to present a prima facie case of discrimination based on race; therefore, his Petition For Relief should be dismissed. DONE AND ENTERED this 3rd day of February, 2003, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 3rd day of February, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan P. Norton, Esquire Allen, Norton & Blue, P.A 121 Majorca Avenue, Suite 300 Coral Gables, Florida 33134 Troy Perry 2010 Paradise Court Palm Bay, Florida 32905 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Charging Party is now, and has been at all times material herein, an employee organization within the meaning of Chapter 447.203(10), Florida Statutes. The Charging Party was certified by the Public Employees Relations Commission on February 4, 1975. At all times material herein Jack Present, was the City Manager of the Respondent, the City of South Miami, Florida and was an agent of the Respondent, acting in its behalf, and/or a managerial employee within the meaning of Chapter 447.203(4) Florida Statutes. The Respondent is now, and has been at all times material herein a public employer within the meaning of Chapter 447.203 (2) Florida Statutes and has as its principal 1ace of business located in Dade County, Florida, where it is engaged in the business of operating a municipality. The Respondent is created directly by the Florida State Constitution or legislative body so as to constitute a department or administrative arm of the government and is administered by individuals who are responsible to public officials or to the general electorate. During the course of contact between the Charging Party and the Respondent, a charge of unfair labor practices was brought by the Charging Party on October 30, 1975, and was served on the Respondent on October 29, 1975, as shown in PERC Exhibit #1A, admitted into evidence. This charge has been withdrawn by the Public Employees Relations Commission. Subsequent to October 30, 1975, an amended charge was filed by the Charging Party dated January 10, 1976, and was served on the Respondent on January 9, 1976, and this amended charge is PERC Exhibit #1B, admitted into evidence. A second amended charge was filed by the Charging Party on January 12, 1976, and was served on the Respondent on January 12, 1976, and this charge is PERC Exhibit #10, admitted into evidence. Pursuant to Chapter 447.503(3)(a), Florida Statutes, and Chapter 8H-4.03, Florida Administrative Code, the Public Employees Relations Commission issued a complaint and notice of hearing. A copy of the original complaint and notice of hearing for May 6, 1976, at 9:00 A.M., Room 358, State of Florida Office Building, 1350 Northwest 12th Avenue, Miami, Florida is PERC Exhibit #1, admitted into evidence. This exhibit shows some amendments which were offered in the course of the hearing on May 6, 1976; however, the final statement of amendment to the complaint was by an amended complaint and notice of hearing to be held on June 3, 1976, at 9:00 A. M. in Room 360, State Office Building, 1350 Northwest 12th Avenue, Miami, Florida. A copy of the amended complaint and notice of hearing is Hearing Officer's Exhibit #1, an exhibit admitted subsequent to the hearing. After the parties began to negotiate on May 14, 1975, the Charging Party submitted a set of contract proposals to the Respondent. A copy of this set of Contract proposals is PERC Exhibit #3, admitted into evidence. One of the articles in these proposals was Article #5 pertaining to dues check off. This article did not make mention of the Respondent charging a fee for providing services for this check off. Later on July 29, 1975, a formal request was made of the Respondent that it deduct fees and dues for the authorized employees of the Charging Party. In that same month of July, 1975, the City of South Miami submitted its own proposals for contract, which is FREE Exhibit #7, admitted into evidence. The management proposal also contains an Article #5, containing dues check off, which does not carry with it a request for payment of a fee to the City for the implementation of such a dues check off system. On September 1, 1975, because of certain disagreements, the parties appeared before a special master in accordance with Chapter 447.403, Florida Statutes. At the special master's hearing, the question of dues check off was considered. The City of South Miami presented an addendum to the previously agreed upon Article #5, which addendum requested that the union pay for the services for any dues check off service performed by the City. This addendum was rejected by the special master and a recommendation was made that the parties may wish to consider renegotiating the Article #5 on dues check off. Statement of the Special Master's position is found in PERC Exhibit #4, admitted into evidence, which is a copy of the Special Master's Report and is specifically found on page 3 of that document. On November 13, 1975, at a negotiating session for purposes of finalizing the contract agreement, further demand was made by the Charging Party that the City implement a dues check off system. PERC Exhibit #2, admitted into evidence, which is a copy of the proposed agreement entered into by Mr. Jack Present, a negotiator for the Respondent, has within it an Article #5 pertaining to dues checkoff. That article does not contain a clause on reimbursement to the City for services rendered in the dues check off system. This agreement was the consummation of the efforts of the session of November 13, 1975, and therefore gives an accurate account of agreement on the check off question. Nonetheless, a dues check off system has not been implemented by the City of South Miami at the time of the hearing before the undersigned. While the negotiations were underway the Respondent was in the process of designing new personnel rules and the initial draft of those rules came out on July 29, 1975. The copy of those proposed rules, as they were passed on March 2, 1976, is Respondent's Exhibit #1, admitted into evidence. It is the testimony of the City of South Miami witnesses, that mention had been made in negotiations with the Charging Party about the proposed rules, prior to the draft of July 29, 1976. They further stated that these initial drafts were given to the Charging Party in August, 1975. It was the understanding of the Respondent, that the proposed rules would be the basis for any contract agreement with the Charging Party. The recollection of the witnesses of the Charging Party was to the effect that the proposed rules were afforded to them on September 11, 1975, the date of the special master's hearing. In their mind, these proposed rules were only given as a matter of background and were not indicated as effective in the negotiations. The proposed rules are in conflict with the contract proposals recommended by the Charging Party in PERC Exhibit #3 and this supports the theory that the Charging Party was not considering the utilization of the proposed personnel rules when it made its initial proposal of agreement to the Respondent. This document is followed by the agreement between the City of South Miami and the Charging Party as negotiated by the representatives of those parties with its attendant introductory correspondence of November 14, 1975. It states in its Articles 19, 20, 22, 23, and 24 that the personnel rules contemplated by the agreement are those rules currently in effect. Again, this contract refers to PERC Exhibit #2. The statement found in those articles refer to current policy and the current policies are stated in the then personnel rules. On November 14, 1975, the personnel rules in effect here as shown by PERC Exhibit #6, admitted into evidence. these rules varied in content from the set of rules finally passed by the City of South Miami, City Council, on March 2, 1976. Both of the sets of personnel rules were introduced at the special master's hearing, as Exhibit #B1 for the current personnel rules as of that date and Exhibit #B2 for the proposed personnel regulations; however, no further comment is made by the Special Master Report as to what rules would have application in any agreement entered into by tie parties. On November 4, 1975, the City Council of the City of South Miami met to consider the impasse articles which were brought before the special master, and on that date no mention was made of which personnel rules would have application The next order of events after November 4, 1975, was the meating of November 13, 1975 held by the parties to consider the finalization of the contract. On December 2, 1975, the City Council considered the passage of the agreement reached between the negotiators of the Charging Party and the Respondent. At that time, members of the council expressed the opinion that the proposed personnel rules would be the rules involved in any contract negotiation and felt that failure to include such changes as shown in the proposed personnel regulations would cause problems in their accepting the agreement between the parties. The City Manager as a negotiator for the Respondent was directed to verify the position of the Charging Party on the question of which personnel rules would be in effect. On December 17, 1975, a meeting was held between the parties and discussion was conducted about which personnel rules would apply. The Charging Party was concerned that it not enter into an agreement to implement rules which had not been finally passed by the City Council and they felt the existing personnel rules would have application. On January 5, 1976, a further workshop meeting was held to consider the proposed personnel rules and the Charging Party indicated that those personnel rules were not acceptable and indicated that they would not negotiate further on those matters. The position of the City of South Miami on January 5, 1976, was that the implementation of the proposed personnel rules was a matter of strong concern for the City, to the extent that any contract agreement which failed to implement those rules would be in serious jeopardy. On January 6, 1975, the full City Council met and voted to reject the agreement entered by its representative and the Charging Party. This vote was by resolution which directed that its City Manager, as negotiator, further negotiate beyond the agreement which they rejected. This resolution is found as Respondent's Exhibit #6 admitted into evidence. Another item considered in the complaint pertains to the statements of paragraphs 5 through 10 of that complaint. The items set forth in those paragraphs were addressed as impasse subjects in the Special Master's Hearing on September 11, 1975. The recommendation of the special master on the subject of that impasse article #29, Section 9d(ii) is found on page 9 of the Special Master's report. In the November 4, 1975, public meeting to consider the impasse items, the City Council voted to accept the Special Master's recommendation on Section 9d(ii). Likewise, in considering the recommendation of the Special Master on Article #29, Section 9d(iv) at page 10 of the Special Master's report, the City Council accepted the Special Master's recommendation with the addition of the words "except for emergencies", which was added at the end of the Special Master's recommendation. Finally, in considering impasse Article #43, Section 10(c), of the Special Master's recommendation on that article, found at page 10 of the Special Master's report, the City Council voted to approve his recommendation with the modification which stated, "unless it becomes necessary to change the hours because of an emergency, it may do so." A tape was made of this meeting of November 4, 1975. After listening to Respondent's Exhibit #7, admitted into evidence after the hearing, there is evidently a great deal of confusion by the City Council about their votes on the impasse articles; however, the tape clearly demonstrates their approval of the three sections previously referred to, with the subjet modification. At the December 2, 1975, meeting of the full council of the City of South Miami, there was some question in the minds of the members of the council about their vote on the impasse items of November 4, 1975. Furthermore at the December 16, 1975, meeting of the full council there was still some question about the impasse articles. Respondent's Exhibit #4, minutes on that meeting, indicates that members of the council felt that the impasse articles of the Special Master that had been voted on, which were found in Article #29 through #31 of the proposed contract (PERC Exhibit #2), should be stricken. These comments on Article #29 through #31 were given as instructions to the City Manager for his negotiating session of December 17, 1975, which has previously been discussed. At the meeting of December 17, 1975, mention was made of the continuing distress that the City Council members had over some of these articles referred to. This mention was made, notwithstanding the City Attorney' s assurance to the Charging Party that he had advised the council that they could not overturn their agreement on impasse articles. This was followed on January 6, 1976, by the vote of the full council to reject the proposed agreement negotiated by the City Manager. On December 2, 1975, at a regular meeting, the City Council passed Resolution 134-75-3362, which appropriated the amount of $900 for the purpose of purchasing turkeys for each and every employee of the City of South Miami. Minutes on this item are found in Respondent's Exhibit 63, admitted into evidence. Payment for the turkeys was made from operating funds of the Mayor and members of the City Council, and these funds are an independent line item of the budget. They are subject to be utilized by the Mayor and other members of the City Council as deemed appropriate by those persons. This action was taken subsequent to a statement by the Respondent at the Special Master's Hearing of September 11, to the effect that wage demands by the Charging Party could not be met because the budget from October 1, 1975 to September 30, 1976, for the City of South Miami, had been passed and could not be changed to meet those demands during the negotiating period. A full explanation of this statement is found ill the Special Master's Report, PERU Exhibit #4 At present negotiations between the Respondent and Charging Party have been discontinued.
Recommendation Based upon the violations of Chapter 447.501(1)(a) and (c), Florida Statutes, it is recommended that the Public Employees Relations Commission issue an order requiring that the Respondent cease and desist from bargaining in bad faith by committing those violations which are set forth in the conclusions of law section of this recommended order, and by their order take such further steps as are necessary to achieve prompt agreement between the parties. DONE and ENTERED this 31st day of August, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Thomas W. Brooks, Esquire Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Robert A. Sugarman, Esquire Kaplan, Dorsey, Sicking & Hessen, P.A. Post Office Drawer 520337 Miami, Florida 33152 Edward N. Moore, Esquire Moore, Kessler & Sheradsky 1995 Southwest 3rd Avenue Miami, Florida 33129
The Issue The issue for determination is whether Petitioner's application for licensure as a real estate sales associate should be granted.
Findings Of Fact On or about May 31, 2005, Mr. Pruna made application (Application) to the Division of Real Estate for a real estate sales associate license, which was received on June 2, 2005. The Application contains a "Background Information" section, which poses several questions. Question 1 provides in pertinent part: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. . . . Mr. Pruna responded yes to Question 1. He disclosed that, on or about December 14, 1992, he pled guilty in federal court to seven offenses as follows: conspiracy to import a quantity of marijuana into the United States; engaging in a criminal enterprise; conspiracies to impair, impede, obstruct, and defeat the lawful governmental functions of the Internal Revenue Service; transporting United States currency in excess of $10,000 outside the United States; bribery; conspiracy to possess with intent to distribute in excess of one kilogram of cocaine; and failure to appear. As to the bribery offense, Mr. Pruna bribed customs officers. Regarding failure to appear, he was afraid, because of the charges and the potential sentence, and fled the country (United States) but later returned after a plea bargain was agreed upon. Mr. Pruna was incarcerated in federal prison for four and one-half to five years. Prior to being incarcerated in the United States, he was imprisoned four years in Argentina. When he fled the United States, he plea-bargained with the United States government and began serving his prison term in the United States after completing his prison term in Argentina. As a result, Mr. Pruna served a total of eight and one-half to nine years in prison. Mr. Pruna was released from federal prison in 1996. Mr. Pruna has completed all conditions associated with his release from prison. For approximately eight years, he has not been under any supervision and has not committed any crimes. Mr. Pruna was born in Cuba. Prior to his imprisonment in Argentina and the United States, Mr. Pruna was a political prisoner in Cuba, where he was sentenced to death, but the death sentence was commuted to 55 years in prison. In 1979, he was released from prison in Cuba after serving 17 years. In 1980, he was allowed to leave Cuba for the United States. After arriving in the United States at 45 years of age, he was unable to find employment and had difficulty adjusting to the United States. He got involved in criminal activity, which led to his arrest in 1987 for the aforementioned crimes. Mr. Pruna takes full responsibility for his crimes. Presently, Mr. Pruna is 70 years of age. He has been married for approximately six years and has three minor children. Mr. Pruna makes sure that he spends time with his family and teaches his children, among other things, to be good citizens and obey the laws. Mr. Pruna presently manages two businesses--a used automobile dealership and a business nationally distributing electric motor scooters. He has been involved in the used automobile dealership since 1999 and in the distribution business for approximately nine years. In both businesses, he is entrusted with the funds of others. Mr. Pruna has an earnest desire to be rehabilitated and has shown that he is rehabilitated. Mr. Pruna's wife is a real estate broker and has been since 1995. If his license is granted, he would be employed with his wife. The witnesses, who testified on Mr. Pruna's behalf and who are both real estate licensees, testified that he was honest, trustworthy, and of good moral character. His letters of reference indicated the same. Further, the witnesses testified that the public would not likely be endangered if Mr. Pruna was granted a real estate sales associate license. Moreover, the witnesses admitted that the public must have confidence in a real estate professional and that a real estate professional must be honest and accurate and exercise good judgment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional, Division of Real Estate enter a final order approving the application of Fernando Pruna for a licensure as a real estate sales associate. DONE AND ENTERED this 7th day of June, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 7th day of June, 2006.
The Issue The issues for determination are whether Respondent violated Section 475.25(1)(s), Florida Statutes,1 by having a registration for a state license revoked and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate. Petitioner is also responsible for regulating licensees on behalf of the state. Respondent is licensed as a real estate sales person under license number 0532841. Respondent's license is issued c/o Pan American Equities, Inc., 35725 Tanglewood Drive, Eustis, Florida, 32726. Respondent is also licensed as a mortgage broker. He earns his living as a real estate broker and as a mortgage broker. Prior to January 5, 1996, Respondent was licensed as an insurance agent by the Florida Department of Insurance (the "Department") pursuant to license number 589181909. Sometime prior to January 5, 1996, Respondent had terminated his involvement in the business of insurance and had become employed as a real estate salesman and as a mortgage broker. On December 11, 1995, the Department filed a 16 page administrative complaint against Respondent alleging violations in five separate counts. At the time, Respondent was employed full time as a real estate salesman and mortgage broker and was preoccupied with his wedding plans. On January 5, 1996, Respondent voluntarily surrendered his insurance license and signed a settlement stipulation for a consent order. On January 9, 1996, the Department entered a consent order. The settlement stipulation and consent order are analogous to a plea of convenience. Respondent did not admit to the allegations in the administrative complaint filed by the Department. In relevant part, the settlement stipulation stated: . . . The Department conducted an investigation of the Respondent in his capacity as an insurance agent. As a result thereof, the Department alleges that the Respondent made material misrepresentations in surplus lines business and engaged in illegal premium financing and sliding. (emphasis supplied) * * * . . . By execution of this Settlement Stipulation For Consent Order and by entry of the subsequent Consent Order in this case, the Department and the Respondent intend to and do resolve all issues which pertain to the matters raised in the Department's investigation. (emphasis supplied) Like the settlement stipulation, the consent order contains no admission of guilt by Respondent. The consent order states, in relevant part: . . . The Settlement Stipulation for Consent Order dated January 5, 1996, is hereby approved and fully recorded herein by reference. . . . The licenses and eligibility for licensure and appointment of the Respondent . . . as an insurance agent in this state are hereby surrendered to the Department . . . . . . . The surrender . . . shall have the same force and effect as a revocation pursuant to Section 626.641(4). Respondent surrendered his insurance license because he no longer needed it as a real estate agent and as a mortgage broker. Respondent was not represented by counsel and was not fully informed that the surrender of his insurance license would jeopardize his real estate license. When Respondent learned that the surrender of his insurance license threatened his real estate license, Respondent retained counsel. Counsel moved to vacate the Department's consent order. The Department denied Respondent's motion.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 475.25(1)(s) and reprimanding Respondent for doing so. RECOMMENDED this 21st day of February, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1997.
Findings Of Fact The Respondent Clifford Rocha was, at all times material to this proceeding, employed as a security officer by Dade Federal Security. He was hired on October 16, 1989, and worked for Dade Federal Security on a part-time basis until sometime after the incident from which this proceeding arises. As a general rule, all employees of Dade Federal Security, as part of the company's policy and procedures, are required to sign a copy of the written rules applicable to the security officer job in the presence of their supervisor to acknowledge they have read them. As part of that procedure each employee receives a copy of the rules. Usually this happens at time of hire. The written work rules include the following statement: "Any employee who abandons his or her assignment location without advising his or her supervisor and the company will be determined to be terminated on the spot." Aleli Puig, the owner and manager of Dade Federal Security, did not remember ever discussing the work rules with Mr. Rocha and could not remember ever telling Mr. Rocha that he was never to leave his post. As a general rule, security officers employed by Dade Federal Security are instructed that when they see a crime committed in their presence to first call 911 and then to call Dade Federal Security and ask for a supervisor. The owner and manager of Dade Federal Security in her thirteen years in the security industry has never told her security officer employees that they were to leave their posts to chase down a suspected criminal. The written rules described above were first placed in effect at some time after the Respondent was hired. There is no persuasive evidence in this case that the Respondent was ever provided a copy of the written rules. Similarly, there is no persuasive evidence that the Respondent was otherwise advised about any of the work rules mentioned above. 6/ On December 16, 1992, the Respondent was assigned to work as a security officer at a shopping center located near the intersection of Bird Road (which is also Southwest 42nd Street) and 128th Avenue. While on duty in that capacity in the early morning hours, the Respondent observed two suspects who appeared to have stolen a six-pack of beer from a convenience store located in the shopping mall where the Respondent was working. The two suspects left the shopping mall in an automobile. The Respondent followed the two suspects in his own automobile, on which he had placed a flashing yellow light. Approximately 20 blocks from the shopping mall there was an automobile accident involving the Respondent's automobile and the automobile containing the two suspects. 7/ Shortly thereafter, the police were called and the two suspects were arrested. The office of Dade Federal Security was also called and Gangerico Cruz, who was the Respondent's supervisor, went to the scene of the accident. At the scene of the accident Supervisor Cruz spoke with the Respondent about what had happened. Among other things, the Respondent told his supervisor that he was pleased that he had been able to detain the suspects. Later when the Respondent spoke to the owner of Dade Federal Security he told the owner she should be proud of him for detaining the suspects. The Respondent suffered a broken leg in the automobile accident and was unable to work for an unspecified period of time. After his leg healed the Respondent continued to work for Dade Federal Security for an unspecified period of time. His employment was eventually terminated as a result of a later incident during which he was accused of sleeping while on duty.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 14th day of March 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March 1995.
The Issue Whether Petitioner, as a prevailing small business party in an adjudicatory proceeding initiated by a state agency, should be awarded attorney's fees and costs pursuant to the Florida Equal Access to Justice Act, Subsection 57.111(4)(a), Florida Statutes, in these two cases.
Findings Of Fact As to Both Cases Petitioner, Larry D. Thomas, M.D., is a licensed physician in the State of Florida, having been issued license number ME 036360. Respondent, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine, pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. This matter was filed pursuant to Section 57.111, Florida Statutes. The actions in AHCA Case Nos. 1994-12341 and 1999-57795 were initiated by the Agency, an agent for the Department of Health, a state agency, and neither the Agency nor the Department of Health was a nominal party to the underlying actions. The attorney's fees sought by Petitioner are reasonable in the amount up to $15,000 for each case, and the statutory cap of $15,000 applies to each case separately. Petitioner prevailed in the underlying action, and there are no special circumstances that exist that would make an award of attorney's fees and costs unjust in these cases. Petitioner is a small business party within the meaning of Section 57.111, Florida Statutes, because he is a sole proprietor of an unincorporated professional practice, whose principal office is in this state, who is domiciled in this state, whose professional practice is in this state, and whose professional practice had, at the time the action was initiated by the state agency, not more than 25 full-time employees or did not have a net worth of more than $2 million, including both personal and business investments. As to Case No. 02-4843F In 1994, pursuant to Section 455.225, Florida Statutes (currently renumbered as Section 456.073, Florida Statutes), Petitioner was notified of the investigation by the Agency and invited to submit a response to the allegations. Petitioner, through his attorney, submitted a detailed response to the allegations, which included an expert opinion by William Yahr, M.D., and medical literature that discussed the risks of the procedure at issue in the case. The expert opinion of Dr. Yahr stated that Petitioner did not fall below the standard of care in this case and that the patient died of a predictable complication of the procedure at issue in the case. The Administrative Complaint in the underlying case, DOAH Case No. 01-4406PL (AHCA Case No. 1994-12341), was filed on May 10, 1999, against Petitioner. The complaint alleged that Petitioner had violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; by failing to treat Patient D.J.P.'s preoperative coagulopathy; and by failing to use an alternate vein that would have allowed visualization of the shunt placement, thereby reducing the risk of causing hemorrhage given the patient's preoperative history. As required by statute, the probable cause panel that considered this matter was composed of two physicians, who were or are Board of Medicine members, and a consumer member of the Board of Medicine. Present at the May 5, 1999, meeting of the South Probable Cause Panel of the Board of Medicine (Panel) were Panel members Margaret Skinner, M.D., Chairperson of the Panel; John Glasgoe, M.D.; and Becky Tierney. Also present at the meeting were Allen R. Grossman, Acting Board Counsel; Randy Collette, Senior Attorney for the Agency; Jim Cooksey of Agency Investigations; Larry McPherson, Senior Attorney for the Agency; and Susan Drake, M.D., Medical Consultant for the Agency. Prior to the May 5, 1999, meeting, the members of the Panel received and reviewed the Agency's entire investigative file, including Petitioner's response and Dr. Yahr's opinion, and the expert opinions of Henry Black, M.D., and John Kilkenny, III, M.D. The expert opinions available to the Panel were those completed in 1997 and 1999, respectively. Dr. Black opined that Petitioner met the standard of care in the case, but admitted that he did not perform the procedure at issue in the case; Dr. Kilkenny, who did perform the procedure at issue in the case, opined that Petitioner failed to meet the standard of care in the case; and Dr. Yahr opined in 1994 that there was no evidence that Petitioner failed to meet the standard of care in the case, but did not state whether he performed the procedure at issue in the case. In addition, the Panel had access to the written response to the investigation prepared by counsel on behalf of Petitioner, which was submitted on October 13, 1994. Prior to consideration of the case, Mr. Grossman advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to him. Mr. Grossman also advised the Panel that any questions they had regarding the materials that they received, the recommendations that had been made, or the investigation that had been conducted should be directed to Mr. Collette, as the attorney for the Agency. Mr. Collette then gave a summary of the complaint to the Panel members and recommended that an Administrative Complaint be filed in the case. The Panel discussed the complaint very briefly, asked no questions, and voted for a finding of probable cause for alleged violations of Subsection 458.331(1)(t), Florida Statutes. The record in the underlying case does not demonstrate why there was an inordinate delay between the completion of the Agency's investigation in October 1994 and the Agency's retention of Dr. Black in 1997; why Dr. Kilkenny was retained in 1999 after Dr. Black had given his opinion on August 4, 1997, that there was no deviation from the standard of care by Petitioner; nor why Dr. Yahr's opinion was not given any consideration. While Dr. Black may not have had the appropriate qualifications to render an expert opinion in the case, both Dr. Kilkenny and Dr. Yahr did have sufficient qualifications to render an expert opinion in this matter. Further, there was no assertion by the prosecuting authority that any of the fact witnesses needed to prove this case were even available after five years of delay. Nor did the counsel for the Panel bring any special attention to the Panel members in regard to the possible proof problems with this case caused by the inordinate delay in bringing the case before the Panel. Finally, no explanation has been given for the delay in forwarding the Administrative Complaint, issued on May 10, 1999, to the Division of Administrative Hearings until October 15, 2001. As to Case No. 02-4844F The Administrative Complaint in the underlying case, DOAH Case No. 01-4407PL (AHCA Case No. 1999-57795) was filed on June 13, 2001, against Petitioner. The complaint alleged that Petitioner had violated Subsection 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances; by failing to adequately monitor Patient H.H. post-operatively given Patient H.H.'s high risk for distal emboli and/or due to evidence of tissue ischemia; by failing to clamp the arteries distally prior to manipulation of the aneurysm; and/or by failing to take adequate steps to prevent emboli, such as ensuring periodic monitoring of the patient's condition post-operatively for evidence of ischemia or other problems. Pursuant to Section 455.225, Florida Statutes (now at 456.073, Florida Statutes), Petitioner was notified of the investigation by Respondent by letter dated November 12, 1999, and invited to submit a response to the allegations. Petitioner, through his attorney, submitted a detailed response to the allegations, denying that he violated the standard of care. The Investigative Report was issued on February 11, 2000. The probable cause panel that considered this matter met on June 8, 2001, and was composed of two physicians, who were or are Board of Medicine members, and a consumer member of the Board of Medicine, as required by statute. However, the consumer member of the Panel was unavailable to attend the Panel meeting that day. Present at the June 8, 2001, meeting of the Panel were Panel members Fued Ashkar, M.D., Chairperson of the Panel, and Gustavo Leon, M.D. Also present at the meeting were Lee Ann Gustafson, Acting Board Counsel, and Randy Collette, Senior Attorney for the Agency. Prior to the probable cause meeting, the members of the Panel received and reviewed what was purported to be the Agency's complete investigative file, including Petitioner's response, and the expert opinion of James Dennis, M.D. The expert opinion available to the Panel was that of James Dennis, M.D., a board-certified vascular surgeon, who performed the procedure at issue in the case. Dr. Dennis opined that Petitioner failed to meet the standard of care in the case. Prior to consideration of the case, Ms. Gustafson advised the Panel that any questions concerning interpretation of the law or rules, or what the Panel's duties were, should be directed to her. Ms. Gustafson also advised the Panel that any questions they had regarding the materials that they received, the recommendations that have been made, or the investigation that has been conducted should be direct to Mr. Collette, as the attorney for the Agency. Mr. Collette then gave a summary of the complaint to the Panel members and recommended that an Administrative Complaint be filed in the case. The Panel voted for a finding of probable cause for alleged violations of Subsection 458.331(1)(t), Florida Statutes. Following the filing of the Administrative Complaint, Petitioner timely filed a request for a formal hearing. After probable cause was found in the underlying case, the matter was referred to the Division of Administrative Hearings, and shortly before the date of the scheduled formal hearing, the attorneys for Petitioner and Respondent discovered that Respondent's expert, Dr. Dennis had been retained by Petitioner's former attorneys, after probable cause had been found, to give an opinion on behalf of Petitioner in the underlying case. This resulted in the disqualification of Dr. Dennis' opinion. The formal hearing was continued, and Respondent retained another expert, Kenneth Begelman, M.D. He opined that Petitioner fell below the standard of care in the case, and his testimony was used at the formal hearing. No reference to the opinion of Dr. Dennis was made or used at the formal hearing. Dr. Begelman's opinion was also not available to the Panel at the time that probable cause was found against Petitioner, nor did Respondent seek to return jurisdiction to the Panel for their reconsideration. Any objection to this procedure was waived by the parties. At the formal hearing, a CT Scan of the patient in question and missing nurses' notes relating to Petitioner's postoperative monitoring were introduced into evidence. Upon review of this new evidence and under cross- examination, Respondent's expert, Dr. Begelman, could not conclusively determine whether Petitioner's surgical and post- surgical treatment of Patient H.H. fell below the standard of care. However, it is clear from the record in the underlying case that the evidence regarding Petitioner's performance of the procedure at issue in the case, as well as his postoperative care of the patient, was in dispute. The expert opinion of Dr. Dennis and Petitioner's response highlight this fact. The events involving Dr. Dennis, which occurred after the finding of probable cause by the Panel, and Respondent's subsequent use of Dr. Begelman at the formal hearing are not relevant to the determination of whether Respondent was substantially justified in finding probable cause against Petitioner in the underlying case. And, while the underlying case was ultimately resolved in Petitioner's favor, there were disputes of fact in this case and the Agency and Respondent clearly were substantially justified to go forward with the underlying action. Therefore, Petitioner is not entitled to an award of attorney's fees and costs, as to DOAH Case No. 02-4844F.
Findings Of Fact Floyd M. Cardin holds a license as a building contractor, having been issued license No. CB C033326. On December 17, 1986, Cardin used this license to become the qualifying agent (QA) for American Screen and Awning. On December 29, 1986, Liz Peters and Robert Turbert entered into a contract with American Construction Company for extensive renovation on their existing home. This contract was slightly amended by an addendum dated January 15, 1987. Both of these contract documents bear the license number of Cardin. It appears that the parties all treated American Construction Company and American Screen and Awning as the same entity. However Cardin testified that he was never the QA for American Construction Company. The contract was signed by Jerry Fries, a salesman for American Construction Company who did all of the negotiating and contracting with Peters and Turbert. Cardin never saw a copy of the final contract between American Construction Company and Peters and Turbert. He was given an incomplete draft of the contract on an American Construction Company form with no price or cost stated by Fries. Based only on what Fries told him, on January 6, 1987, Cardin applied for a building permit for the job. On the application Cardin listed the cost as $6,000, when in actuality the contract called for a cost of $22,765 plus $290.00 in the addendum. Cardin used his license number on the permit application and listed the company as American Screen. The permit was issued on January 6, 1987. Cardin understood that he was to oversee the work and ensure that it was done correctly. However, Fries and American Construction were to hire the subcontractors and order and purchase materials. Cardin began this job and two others at the same time. He acted as the QA for American Construction on all of these jobs. Problems began almost at the start of the Peters/Turbert job. Fries made promises to the homeowners which Cardin knew nothing of and which Cardin could not keep. Fries hired and fired the subcontractors with no supervision by Cardin. Cardin assumed the subcontractors would pull the necessary permits for the plumbing, electric and fireplace and would then call for the necessary inspections. This was never done. As a result, the fireplace does not meet code requirements and is hazardous and cannot be used. As the work slowly progressed, the homeowners complained more and more about construction deficiencies. Among the problems that were never corrected were the failure to level the house, the failure to have the rooms be plumb and square, the failure to correct leaks which existed from the second week of construction, poor workmanship in the dry wall and plaster, and poor planning which resulted in a room that could not be used because the door could only open partially and the window edge was flush with the wall and couldn't be trimmed. Peters paid a deposit when the contract was signed. She paid the next draw on January 12, 1987, when Fries told her the job was roughed in. American Construction Company never completed enough work to get the next draw. In mid-March, 1987, Cardin discovered that American Screen and Awning was not paying the subcontractors as needed and was not purchasing the materials as needed to do this job. He also realized that he was being kept in the dark about the contract terms and that he had no control over the job. Cardin wrote the homeowners, assured them that he would see the job through to completion, and requested that all future payments be made payable to both him and American Screen Company. From mid-March until April 14, 1987, very little work was done on the Peters/Turbert job. Materials were not available because American Construction Company did not pay for them. Subcontractors complained to the homeowners that they had not been paid. Peters finally paid for the kitchen cabinets herself after American Construction's check bounced. Peters spent $6,000 of her own money to buy materials which were to have been covered by the contract. She also ended up paying $2,000 to have the house leveled, which should have been done by Cardin pursuant to the contract, and $1,375 to Winter's Plumbing, one of the subcontractors, to have the plumbing work completed and hooked up. This was also included in the original contract, but was never done by Cardin and American Construction Company. Cardin never finished the Peters/Turbert job because on April 17, 1987, he was ordered off the premises by the owner of American Construction Company. Peters was present and acquiesced in having Cardin removed since American Construction Company had another contractor, Bill Davis, who said he would repermit the job and complete it for American Construction Company. Cardin left the job on April 14, 1987, and cancelled the permits he had pulled for American Screen and Awning that same day. American Construction Company and Bill Davis never completed the job. Cardin did not actually file the necessary forms to cancel his license as the QA for American Screen and Awning until August, 1987. Cardin acknowledged at hearing that this was the first time he had been a QA for a company he did not own. He acknowledged that he should have known whether the subcontractors pulled the necessary permits and got the necessary inspections. He further acknowledged that as the QA, he was responsible for the job.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Construction Industry Licensing Board, enter a Final Order and therein: Dismiss the allegations involving Section 489.129(1)(j). Find Floyd M. Cardin guilty of violating Sections 489.129(1)(d), (k), and (m). Place Cardin's license on probation under such appropriate terms and conditions as to ensure that Cardin will not violate the statutes in the future as they relate to the responsibilities of qualifying agents. Impose a fine of $250 for the violation of Section 489.129(1)(d). Impose a fine of $250 for the violation of Section 489.129(1)(k). Impose a fine of $500 for the violation of Section 489.129(1)(m). Require that all fines be paid prior to future contracting activities pursuant to Cardin's license. DONE and ENTERED this 29th day of June, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 29th day of June, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0556 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the Respondent in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Floyd M. Cardin Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2 + 3); 4(12); 5(15); 7(12)and 20(15). Proposed findings of fact 2, 6, 12-14, 18, 22-24, and 40 are rejected as being unsupported by the competent, substantial evidence. 3. Proposed findings of fact 3, 8-11, 15, 19, 29, 30, 34, 35, and 37-39 are subordinate to the facts actually found in this Recommended Order. 4. Proposed findings of fact 16, 17, 21, 25-28, 31-33, and 36 are irrelevant. COPIES FURNISHED: Joseph P. Mawhinney Attorney at Law 119 East Park Avenue Tallahassee, Florida 32302 Floyd M. Cardin, Pro Se 5052 Lourcy Road Jacksonville, Florida 32223 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
