The Issue Whether Petitioner's application for licensure as a real estate sales associate should be denied on the ground set forth in the Florida Real Estate Commission's August 14, 2006, Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner recently turned 36 years of age. He currently resides in Miami-Dade County, Florida, where he is employed by a real estate development company in a position of trust, performing various administrative duties, including website maintenance, data entry, and delivery of payroll. Before moving to Florida, Petitioner resided, and owned a business, in the Lake George area of New York State. In 2002, Petitioner was arrested, along with his roommates with whom he had shared a Lake George home rented in his name, and charged in the United States District Court for the Northern District of New York with having, "[i]n or around March 2002, in the State and Northern District of New York, . . . knowingly and intentionally combined, conspired, confederated and agreed with others [his roommates] to possess with intent to distribute and to distribute a quantity of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) [and] [i]n violation of Title 21, United States Code, Section 846." On June 12, 2003, after having entered a guilty plea, Petitioner was adjudicated guilty of the criminal conduct charged3 and sentenced to six months' house arrest and five years' probation. In addition, he was ordered to pay a fine of $10,000.00. Prior to his sentencing, Petitioner had cooperated with the government. Consequently, he received a more lenient sentence than he otherwise would have been given. Unlike Petitioner, Petitioner's roommates received prison time for their role in the conspiracy. Petitioner has successfully completed the house arrest portion of his sentence. He has also paid his fine in full. He is still on probation, however. His probation is scheduled to end June 1, 2008. So far, he has been compliant with the terms and conditions of his probation. His probation officer has expressed to him her support of his efforts to obtain licensure as a real estate sales associate. Petitioner moved to Florida because he wanted a "new start." He is trying to "build a reputation" as a solid citizen. He is a member of a local church and is involved in civic and charitable activities in the community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 20th day of December, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 20th day of December, 2006.
The Issue The primary issue for determination is whether the bid of Intervenor, in response to Respondent's invitation to bid, is non-responsive. Secondary issues to be resolved include Petitioner's legal standing to protest all recommended awards to Intervenor in all the bid's categories where intervenor was deemed the successful bidder; whether Intervenor is an operational division of a corporation authorized to conduct business within the State of Florida; whether Intervenor satisfied bid requirements for submission of a valid manufacturer's certificate; and whether intervenor satisfied bid requirements involving identification of a service coordinator and provision of a list of service representatives in the State of Florida for the computer equipment which is the subject of the bid.
Findings Of Fact Respondent issued an Invitation To Bid (ITB) for microcomputers, Bid No. 129-250-040-B, on February 19, 1990. The ITB was revised by a March 22, 1990 addendum which established April 9, 1990, as the date for opening bid responses with bid tabulations to be posted on May 7, 1990. The purpose of the ITB was to establish a twenty-four (24) month contract for the purchase of microcomputers and equipment by all State of Florida agencies and other eligible users. Political subdivisions of the State of Florida, as well as state universities, could exercise the option of purchasing from the contract, if they so desired. The ITB invited bids in several categories of microcomputer equipment. Petitioner's timely filed written protestaddresses 17 of those categories where Intervenor was determined by Respondent to be the successful bidder. Those categories are numbered 255, 256, 257, 258, 259, 260, 266, 267, 268, 269, 271, 272, 273, 275, 276, 277, and 278. However, the bid tabulation posted by Respondent on May 7, 1990, establishes that Petitioner was the next lowest bidder in only four of the 17 categories. Those four categories are 266, 267, 268, and 269. In accordance with Paragraph 13 of the ITB general conditions, all corporations responding to the ITB were required to be registered with the Florida Department of State and authorized to transact business in the state in accordance with requirements of Chapter 607, Florida Statutes. Further, such bidders were required to insert their corporate charter number, resulting from that registration, in the appropriate space in the bidder acknowledgement form provided by Respondent for inclusion in responses to the ITB. Intervenor provided the Department of State Corporate Charter No. 822327 in the bidder acknowledgement form submitted with its response to the ITB. That charter number is assigned by the Department of State to VGC Corporation d/b/a VGC Corporation of Delaware, a corporation organized under laws of Delaware and authorized to transact business in the State of Florida since 1969. Intervenor mistakenly listed, in its bid, the federal employment identification (FEID) number of another subsidiary corporation of VGC Corporation (VGC). The FEID number submitted by intervenor was that of Graphic Arts Supply, Inc., (GAS), acquired by VGC in December of 1986. GAS became a wholly owned subsidiary of VGC at that time and remains such at the present time. At the time of its acquisition, there existed within GAS a particular segment of that business which dealt primarily with computer products. This computer segment of GAS was set up by VGC as a separate division of the parent corporation in November, 1988. The formation of the new division within VGC was announced at that time by the VGC president in an interoffice memorandum which stated in pertinent part: The Computer Products Group of Graphic Arts Supply has grown significantly in the last several years, accounting for approximately 10% of the total corporation's sales. The growth opportunities in this area are enormous and our long term goal is to become one of the major material distributors of computer products in the United States. Accordingly, I am pleased to announce that we will make this operation a separate division, reporting to Tom Mclaughlin. At the time of the issuance of the November 1988 interoffice memorandum, Tom Mclaughlin was a vice-president and subsidiary manager of VGC corporation. Another individual, Pat Mclaughlin, was a VGC vice-president and general manager of the new division, the intervenor in this cause. Another memorandum issued by the VGC president on September 14, 1989, further emphasized that VGC's Business Systems Division, which is also intervenor, was an operating division of VGC. That memorandum stated that the company comprising the Business Systems Division was known as "GA Computer Systems" and further provided in pertinent part that: The Business System Division is an operating unit and not a subsidiary. The Business Systems Division relies on VGC-Rochester for financial and administrative support, and VGC-Florida for all other support and reporting. On the date of Intervenor's response to the ITB, GAS and Intervenor continued to maintain a business relationship. Pursuant to that relationship, GAS provides certain administrative services to Intervenor in the form of certain record keeping and payment of various taxes in the state of New York. Intervenor pays a fee to GAS for these services. Other administrative functions, such as federal and state tax return preparation, are performed by VGC-Rochester and VGC-Florida, other components of VGC. Intervenor's response to the ITB was submitted and signed by John J. Piseck, an employee of VGC who serves as the eastern regional sales manager for Intervenor's computer products. Another of the ITB's general conditions requires that bids from non manufacturers to provide microcomputers must be accompanied by a certification from the manufacturer that the bidder is an authorized representative of the manufacturer. The certification submitted by Intervenor with its bid response was executed by a representative of Hewlett-Packard Corporation, the computer manufacturer, certifying that GA Computer Products is an authorized dealer/representative. On the date of Intervenor's response to the ITB, adealer/representative contract existed between Intervenor and Hewelett-Packard. The agreement was signed on Intervenor's behalf by Patrick Mclaughlin, VGC vice- president and general manager of Intervenor. Page 12 of the ITB special conditions provides in pertinent part that: The bidder shall name a service coordinator and provide a complete list of in-state representatives, and manufacturer's authorized service repair centers on page 19 as part of the bid response. In the course of fulfilling its responsibility to evaluate each vendor's response to the ITB, Respondent accepted either a list of the bidders' own in-state representatives or a list of the manufacturer's in-state representatives as meeting this service requirement of the ITB. Respondent does not, and is not required to, verify information supplied by vendors relating to service locations. Intervenor has fully complied with the ITB requirement relating to naming a service coordinator and providing a list of service representatives and repair centers. Specifically, Intervenor named one of its employees as the service coordinator, provided a toll-free telephone number for communication with the coordinator, and listed five Hewlett-Packard service locations within the State of Florida. These service locations honor the warranties of the manufacturer, Hewlett-Packard, without regard to which Hewlett-Packard dealer sold the product. Intervenor was responsive in all material respects to Respondent's ITB No. 129-250-040-B.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that upon Intervenor's submission of a corrected FEID number, a Final Order be entered denying Petitioner's claims and confirming the award of the contested 17 categories of Respondent's ITB No. 129-250-040-B to GA Computer Products, a division of VGC Corporation. DONE AND ENTERED this 23rd day of July, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Petitioner's proposed findings consisted of 32 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, Petitioner's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, Petitioner's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause. Intervenor's Proposed Findings. 1.-32. Adopted in substance. Respondent's Proposed Findings. 1.-2. Adopted in substance. 3.-4. Rejected, unnecessary. 5.-24. Adopted in substance. 25.-27. Rejected, unnecessary. 28. Adopted in substance. COPIES FURNISHED: Thomas F. Morante, Esq. One Biscayne Tower Suite 3750 Two S. Biscayne Boulevard Miami, FL 33131 Susan Kirkland, Esq. Jim Bennett, Esq. Office of General Counsel Department of General Services Suite 309 Knight Building 2737 Centerview Drive Koger Executive Center Tallahassee, FL 32399-0950 Lowell L. Garrett, Esq. 5300 Southeast Financial Center 200 S. Biscayne Boulevard Miami, FL 33131 Ronald W. Thomas Executive Director Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue The issues to be determined are whether Respondent, Fred Joseph Turner, M.D., violated section 456.072(1)(c) and (x), Florida Statutes (2017), as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact The Department of Health is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is a medical doctor licensed by DOH since April 29, 1991. He holds license number ME59799. On or about July 21, 2015, the Grand Jury for the United States District Court, Middle District of Florida, issued an indictment against Respondent and Rosetta Valerie Cannata in case number 8:15-cr-264-T-23AAS, charging violations of Title 8, United States Code sections 1324(a)(1)(A)(v)(l) and 1324(a)(1)(B)(i), and Title 21 United States Code sections 841(a)(1), 841(b)(1)(C), and 846. The indictment also sought forfeiture of various items of value should Respondent be convicted. At some point, there was a superseding indictment, but that indictment is not of record in this proceeding. The case was tried by jury, and although it is unclear when the jury trial took place, an Order of Forfeiture entered October 13, 2017, states that a jury found Respondent guilty of six counts in the superseding indictment, and that the United States had established that Respondent had obtained $232,020.02 from the offenses for which he was convicted. The Judgment in Case Number 8:15-cr-264-T-23AAS was entered December 6, 2017. The Judgment indicates that a jury found Respondent guilty of counts one through six of the superseding indictment, as follows: Count I for conspiracy to distribute and dispense and cause the distribution and dispensing of oxycodone, hydromorphone, morphine, and hydrocodone, in violation of 21 U.S.C. sections 846 and 841(b)(1)(C); Counts II through V for distributing and dispensing and causing the distribution of hydrocodone (Count II), oxycodone (Count III), morphine (Count IV), and oxycodone and hydromorphone (Count V), in violation of 21 U.S.C. sections 841(a)(1) and 841(b)(1)(C); and Count VI for conspiracy to smuggle an alien into the United States, in violation of Title 8 U.S.C. section 1324(a). Count VI is irrelevant to the charges in this case. The Judgment sentenced Respondent to 151 months in federal prison, followed by 36 months of supervised release. It also provided that Respondent forfeited the items named in the preliminary Orders of Forfeiture, i.e., property up to $232,020.02. Respondent did not notify DOH or the Board of Medicine of his conviction. Controlled substances can only be prescribed by specified licensed health care providers, such as medical doctors, who hold a current drug enforcement agency (DEA) registration. Without a medical license and a DEA registration, a person cannot dispense or prescribe controlled substances, and therefore, could not commit the crimes for which Respondent was found guilty. Respondent responded at length to the charges in the Administrative Complaint. He vigorously disputes the basis for the conviction, but not the conviction itself. Respondent claims that the evidence against him is based upon alteration of records and test results by a DEA informant who worked in his office. However, from his statements, it is clear that the conviction was based upon activity occurring in his practice. The convictions for which Respondent has been convicted relate to the practice of medicine or the ability to practice medicine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a final order finding that Respondent violated section 456.072(1)(c) and (x), and revoking his license to practice medicine. DONE AND ENTERED this 28th day of August, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 2019. COPIES FURNISHED: Fred Joseph Turner, Jr. M.D. #62779-018 Federal Prison Camp 110 Raby Avenue Pensacola, Florida 32509 William Edward Walker, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Major Ryan Thompson, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Claudia Kemp, JD, Executive Director Board of Medicine Department of Health Bin C-03 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Louise Wilhite-St Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent was an “employer” under the Florida Civil Rights Act of 1992 and related laws (collectively, the Act) during the time of its alleged age discrimination against Petitioner.
Findings Of Fact Petitioner is a male over 40 years old. According to Petitioner?s Discrimination Complaint, he was 69 years old in January, 2013, when Respondent allegedly discriminated against him by failing to hire him because of Petitioner?s age. Although Respondent?s CEO, Glen Royce Brooks, did not appear to testify at the final hearing, the parties stipulated to the introduction of his affidavit (Exhibit R-1) in lieu of his live testimony. In fact, Mr. Brooks? affidavit and Respondent?s quarterly tax returns and unemployment reports were all received into evidence without objection and with Petitioner?s further stipulation that they could be received into evidence as non- hearsay. Respondent?s exhibits indicate that at no time relevant to Petitioner?s claim did Respondent have more than 13 employees, even when two professional service providers, consisting of an accountant and an employee-leasing company, are counted as two additional employees. Petitioner has no independent knowledge of the number of employees that Respondent has or had at the time of the alleged discrimination. Nevertheless, Petitioner relies on paragraph 12 of Mr. Brooks? affidavit to support Petitioner?s theory that Respondent had the requisite number of employees to be an “employer” within the meaning of the Act. Paragraph 12 of Mr. Brooks? affidavit states: Brooks Logging retains an accountant and employee leasing service to provide accounting and employee management services. According to Petitioner, because the employee-leasing service was an agent of Respondent, all of the employees of the employee-leasing service should be considered employees of Brooks Logging Company and, therefore, Respondent was an “employer” within the meaning of the Act. Respondent?s counsel stipulated at the final hearing that the employee-leasing service utilized by Respondent is a nationwide company which employs more than 15 employees. There was no evidence presented, however, indicating any ownership or control by the employee-leasing company over Respondent?s relationships with Respondent?s employees or vice versa. Petitioner otherwise failed to demonstrate that Respondent had 15 or more employees during the time relevant to Petitioner?s Discrimination Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner?s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 11th day of February, 2014, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2014.
The Issue Whether Petitioner's "change of status" application should be denied for the reasons set forth in the Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner has an undergraduate and master's degree in civil engineering from the Georgia Institute of Technology (received in 1962 and 1964, respectively) and a law degree from Emory University (received in 1980). In 1968, Petitioner went into the consulting business, and he has had his own business ever since. Since 1968, Petitioner has been licensed as a professional engineer, at one time or another, in approximately 20 different states, including Florida. He has held his Florida license since 1970. The other states in which he is currently licensed are Georgia, Alabama, New York, and Maryland. Petitioner is licensed to practice law in Georgia, but is on inactive status. Petitioner has been licensed as a real estate broker in Florida since 2001 or 2002. Petitioner has been certified as a general contractor in Florida since 1980. He was the qualifier for McKinney Drilling Company from 1980 until 1994. Since 1994, he has been the qualifier for Pressure Concrete, Inc. (Pressure), which approximately a year ago was purchased by Proshot Concrete, Inc. (Proshot). Petitioner has never received any discipline in connection with any of the professional licenses he has held over the years, including the certification allowing him to engage in general contracting in Florida; nor does he have any criminal record. Petitioner has not undertaken any construction or consulting project that has resulted in a lawsuit, judgment, or lien being filed. Petitioner has not been involved in any project where there has been a default triggering a claim against a payment or performance bond. All of the vendors and suppliers he has used on construction projects have been paid. Petitioner has never filed for bankruptcy. There are no lawsuits now pending against Petitioner. In or around September 2006, Petitioner completed and submitted an application to the Board seeking a "change of status" in his certification to enable him (as a general contractor) to qualify Proshot instead of Pressure. Petitioner used a Board-generated form, DBPR CILB 4363-Change of Status Application From One Business Entity to Another (Form), to apply for such a "change of status." The "Financial Responsibility" section of the Form contained the following questions and accompanying instructions: NOTE: If you answer "Yes" to any of the questions below, you must provide an explanation on DBPR 0060-General Explanatory Description form and attach legal documentation, i.e., satisfaction of lien, judgment, payment schedule, etc. If you have been convicted of a felony, you must submit proof of reinstatement of civil rights. The following persons must answer the financial responsibility questionnaire: Qualifying Agent All Owners/Partners Have you, or a partnership in which you were a partner, or an authorized representative, or a corporation in which you were an officer or an authorized representative ever: Undertaken construction contracts or work that a third party, such as a bonding or surety company, completed or made financial settlements? Had claims or lawsuits filed for unpaid past-due bills by your creditors as a result of construction operations? Undertaken construction contracts or work which resulted in liens, suits, or judgments being filed? (If yes, you must attach a copy of Notice of Lien and any payment agreement, satisfaction, Release of Lien or other proof of payment.) Had a lien filed against you by the U.S. Internal Revenue Service or Florida Corporate Tax Division? Made an assignment of assets in settlement of construction obligations for less than the debts outstanding? Been charged with or convicted of acting as a contractor without a license, or, if licensed as a contractor in this or any other state, been subject to any disciplinary action by a state, county, or municipality? (If yes, you must attach a copy of any state, county, municipal or out- of-state disciplinary order or judgment.) Filed for or been discharged in bankruptcy within the past five years? (If "yes," you must attach a copy of the Discharge Order, Order Confirming Plan, or if a Corporate Chapter 7 case, a copy of the Notice of Commencement.) Been convicted or found guilty of or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction? Note: If you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure. Petitioner answered "No" to all of these questions, believing, in good faith, that such information was accurate. The final page of the Form contained the following "Attest Statement," which Respondent signed: I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought. I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. As part of the application process, Petitioner made the necessary arrangements with Advantage Information Services, LLC (Advantage) to directly provide the Board with a credit report. On or about October 26, 2006, Advantage sent the Board a two-page Transunion credit report (Transunion Report) containing Petitioner's "credit profile," along with a one-page report of the results of a "check[]" of public records at the "local, statewide, and national level" (Records Check Report). The Transunion Report revealed a federal tax lien in the amount of $35,100.00 that had been filed against Petitioner in 1997 for unpaid personal income taxes. Petitioner was aware of this lien at the time he filled out the Form, but did not report it in response to Question 4 of the "Financial Responsibility" section because he did not understand the question to ask about liens such as this one which were unrelated to his business activities. The Internal Revenue Service is withholding 15% of Petitioner's monthly Social Security benefit and applying it to reduce the amount Petitioner owes for his unpaid personal federal income taxes. The Records Check Report read as follows: Public records have been checked on a local, statewide, and national level and are incorporated within the report. Additional records are as follows: Cheatham Register of Deeds, TN - Federal Tax Lien Release, 01/11/2005, Case #74147 - Book/Page 131/552 - $30,908.00 - Not Paid. Plaintiff: IRS Walton County Superior Court GA - County Tax Lien, 03/12/1998, $387.00 - Not Paid. Case Number - B3P253C, Book/Page - 3/253 Plaintiff: County Tax Assessor Dekalb County State Court, GA - Civil Judgment, 05/01/1991, $49,283.00 - Not Paid. Case Number - 814497 Plaintiff: Bank South The 1998 Walton County Tax lien noted in the Records Check Report concerned an assessment made on tangible personal property in the form of an airplane owned, not by Petitioner, but by a corporation of which he was the president. The lien did not arise out of any activities in which Petitioner was engaged as a general contractor. The 1991 Dekalb County civil judgment noted in the Records Check Report required Petitioner to repay a bank loan Petitioner had co-signed for a friend. It too had nothing to do with his activities as a general contractor. It was only after the Board had provided Petitioner with a copy of the Records Check Report that Petitioner first became aware of the existence of the 1998 Walton County Tax lien and the 1991 Dekalb County civil judgment.2 As noted above, on April 18, 2007, the Board issued its Notice of Intent to Deny Petitioner's "change of status" application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board find Petitioner qualified for the "change of status" for which he has applied. DONE AND ENTERED this 1st day of November, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 1st day of November, 2007.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulations of fact entered on the record, the following relevant facts are found: At all times pertinent to this proceeding, respondent Philip L. Patenaude was a licensed real estate broker in the State of Florida. Pursuant to an Agreement entered into on October 1, 1974, a limited partnership known as Ambassador Apartments, Ltd., was formed with respondent as a general partner. The agreement provided that liquidation and termination of the partnership would occur on September 30, 1979, or within ninety (90) days after the closing of the last unit, whichever first occurred. At the time of termination, the general partner was to submit a full and final accounting of all funds received from the sale of apartment units. It was provided that the liquidation and termination dates could be amended by majority vote of all limited partners. Prior to and after September 30, 1979, attempts were made and are still being made to sell the real property which is the subject of the limited partnership. The partnership was not dissolved on September 30, 1979, a final accounting was not made, and no amendment of the liquidation and termination date by majority vote of all limited partners was obtained until March of 1981. Each limited partner was furnished with yearly federal income tax information (K-1 forms) regarding the limited partnership and had access to the partnership accounts.
Recommendation Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on January 5, 1982, in the Broward County Courthouse, Ft. Lauderdale, Florida. The issue for determination at the hearing was whether respondent's license as a real estate broker should be disciplined for the reasons set forth in the Administrative Complaint filed on September 18, 1981.
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 By its Administrative Complaint filed herein on approximately June 13, 1979, the Board of Real Estate (Board) seeks to discipline the Defendant/Licensee, John Edward I - Grim, Jr., based on conduct, set forth hereinafter In detail, which, according to the Board, is conduct involving fraudulent or dishonest dealing in violation of Subsection 475.25(1)(e) and Subsection 475.25(1)(b), Florida Statutes. 1/
Findings Of Fact Based upon my observation of the Respondent/Defendant and his demeanor while testifying, the documentary evidence received, the argument of counsel for the Board and the entire record compiled herein, the following relevant facts are found. During times material, the Defendant/Licensee, John Edward Grim, Jr., was a licensed/registered real estate salesman who held License No. 0034277. On December 7, 1976, the Respondent/Defendant was indicted in the Middle District of Florida, Orlando Division, for having violated Title XVIII of the United States Code, Sections 2, 371 and 472. On or about March 25, 1977, Respondent/Defendant Grim was found guilty by a jury of having violated Title XVIII of the United States Code, Sections 371 and 472 as charged in Counts 1,2 and 5 of the above referenced indictment. On or about May 5, 1977, the Middle District Court of Florida found Respondent/Defendant John Edward Grim, Jr., guilty of Counts 1, 2 and 5 of the indictment, to wit, that he knowingly, willfully and unlawfully conspired with other persons to bring counterfeit obligations of the United States into the United States from a foreign country, with the intent to defraud, and possessed, concealed, passed and uttered said counterfeit obligations, in violation of Title XVIII United States Code, Sections 371 and 472, as charged in Counts 1, 2 and 5 of the indictment. On May 5, 1977, Respondent/Defendant John Edward Grim, Jr., was sentenced to serve two (2) years of imprisonment for each count, with the sentence of imprisonment to run concurrently. On May 12, 1977, a Notice of Appeal was filed with the United States Court of Appeal for the Fifth Circuit for the Final Judgment of Conviction and sentence entered on May 5, .1977. On December 22, 1978, the United States Court of Appeal for the Fifth Circuit affirmed the Judgment of Conviction entered against Respondent/Defendant John Edward Grim, Jr. (Petitioner's Exhibits 1 and 2.) RESPONDENT'S DEFENSE The Respondent appeared and testified in his own behalf. Essentially, his defense is that he volunteered the information to the law enforcement officials and that he fully cooperated with the investigation of the above referenced charges; that he is presently the operator of a pawn shop where he is involved in the jewelry business and that he has been inactive in the selling of real estate since approximately 1975.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, John Edward Grim, Jr.'s real estate salesman's license be REVOKED. RECOMMENDED this 9th day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, 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 9th day of July, 1980.
