The Issue Whether petitioner's grades on the May and November 1984 certified public accountancy license examination should be expunged from respondent's records, and his application for admission to subsequent examinations be denied?
Findings Of Fact At the May 1984 certified public accountancy licensure examination, (petitioner Wayne Eisen's seventh such examination in Florida), he shared a table with one other applicant, a Mr. Felsner; who sat two to four feet away. The examiners had assigned the candidates seats. Although a proctor nearby noticed nothing amiss, it later came to respondent's attention that Messrs. Eisen and Felsner had given the same answers to fiftynine of the sixty multiple choice questions comprising the business law section of the examination. "[S]omething highly irregular . . . occurred and it did not occur by chance." Respondent's Exhibit No. 1, p. 21. Both petitioner end Mr. Felsner gave identical wrong answers to thirty of the sixty questions, and they both agreed on twenty-nine correct answers. Whether either got the right answer to the remaining questions the evidence did not show. Those administering the test gave each examinee identical question booklets. The answer sheets had at least two different formats: on one, possible answers were in sequence horizontally; on the other, vertically. In format only, Mr. Felsner's answer sheet differed from petitioner's. POLYGRAPH Petitioner agreed to take a polygraph examination. His further agreement that the Board of Accountancy could use the results as a basis for decision has been deemed a waiver of objection to their admissibility at hearing. Mr. Felsner also took a polygraph examination and made such an agreement, but petitioner's objection to the admission of the results of the polygraph examination Mr. Felsner took was sustained, since petitioner was not a party to the agreement between Mr. Felsner and the Board of Accountancy. Mr. Felsner did not testify himself. In November of 1984, Alexandra Forest, licensed in Florida as a polygraph examiner since 1981, Spent an hour and 45 minutes with petitioner Eisen. Relying on her training to interpret the significance of certain physiological changes (pulse, blood pressure, breathing pattern, elect odermal changes) accompanying petitioner's responses to questions she asked, she concluded that petitioner did not tell the truth when he denied cheating on the May licensure examination. Ms. Forest conceded that polygraph examination results are "not perfect." (T. 44) OTHER EVIDENCE Anthony G. Zicarri, petitioner's employer, has worked closely with him for three years on tax and accounting problems, and has full confidence in Mr. Eisen's integrity. Mr. Zicarri has a firm conviction that petitioner would not resort to cheating. Mr. Eisen did not take his eyeglasses into the examination room when he sat in May. His uncorrected vision has been measured at 20/60 and he cannot read license plates in traffic, without corrective lenses. Petitioner's proposed recommended order filed September 17, 1985, contains proposed findings of fact which have been adopted in substance except to the extent that they are unsupported by the weight of the evidence, immaterial, cumulative or subordinate.
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0640934. The last license issued to Respondent was c/o Raizor Realty, Inc., 12007 Cypress Run Road, Orlando, Florida 32836. On July 3, 1996, Respondent applied for a license as a real estate salesperson. On the application, Respondent signed a sworn affidavit that all of his answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . Question nine on the application asked Respondent whether he had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no." Petitioner relied on the accuracy of the application and issued a license to Respondent. Respondent is active in the practice of real estate and depends on his license to earn a living. Respondent has no prior disciplinary history and has been licensed for approximately two years. On February 20, 1985, Respondent was adjudicated guilty of misdemeanor theft. The court suspended the sentence. Petitioner had changed the price stickers on a pair of shoes valued at $20 and on a jar of vitamins. The court found Respondent guilty of misdemeanor theft, fined him $100, and sentenced him to 30 days in jail. The jail sentence was suspended pending completion of six-months' probation. Respondent completed probation in a satisfactory and timely manner. Respondent did not willfully misstate a material fact. He conferred with friends. They advised Respondent that the matter was immaterial and more than seven years old. Respondent answered no to question nine on his application in the good faith belief that the crime was immaterial and not the type of offense addressed in the question. When Petitioner's investigator inquired of Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), and dismissing the charges against Respondent. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues presented here concern the matter of the Petitioner's entitlement to be licensed as a Detection of Deception Examiner, Class "P". See Part II, Chapter 493, Florida Statutes (1981).
Findings Of Fact Petitioner had been licensed beginning in August, 1978, through June 30, 1980, in the categories of Detection of Deception-Intern and Detection of Deception Examiner, Class "P". The most recent license applied to the position, Detection of Deception Examiner, Class "P", which was for the years 1979-80 with an expiration date of June 30, 1980. Elbon failed to renew that license within the grace period set forth in Sections 493.313 and 574, Florida Statutes (1981). He was subsequently informed by correspondence dated January 15, 1981, that his license had expired on December 30, 1980, and was advised that any renewal of his license must be achieved through the requirement of the submittal of a new application, a $150 fee and certificate of insurance. This task was to be performed on or before February 16, 1981. Elbon was told that his failure to so comply on or before the date in question would promote the closing of his license file and the necessity for mandatory reapplication to reobtain a license. This information was provided by the' Bureau Chief of the Regulation and Enforcement Division of Respondent. (Respondent's Exhibit No. 1, admitted into evidence, is a compilation of materials related to the facts found in this paragraph.) Notwithstanding the fact that his license had expired on December 30, 1980, discussion was entered into with one Peter Towle, the owner of a vending machine company in Lee County, Florida, on the subject of Elbon conducting polygraph examinations for the benefit of Towle related to the alleged theft of video equipment by relatives of one of Towle's employees. This video equipment was owned by Towle's company. In the preliminary discussions Elbon held himself out to be a polygraph examiner, a position which required a license pursuant to Chapter 493, Florida Statutes (1981), in the specialty of Detection of Deception Examiner, Class "P", before conducting a polygraph examination. This same requirement for licensure as a Detection of Deception Examiner, Class "P", existed at all times pertinent to this case. Towle hired the Petitioner on February 13, 1981, to assist him in the investigation; however, Elbon did not conduct a polygraph examination on the suspects in view of the minority of those persons and the necessity to receive parental permission prior to such examination. Instead, Elbon interrogated the two suspects and charged a fee of $600 for his services. Towle felt that the fee was not reasonable and indicated had he known that Elbon was not a licensed examiner that he would not have hired him. On February 23, 1981, Chris Provenzano hired Elbon to conduct polygraph examinations, thinking Elbon was licensed. At the time that the employment arrangement was made, Provenzano did not suspect that Petitioner was unlicensed, having known that Petitioner was licensed in the past. Provenzano did not learn of the true circumstance related to the Petitioner's license situation until October, 1981. Provenzano would not have hired Elbon to conduct the examinations had he known that Elbon did not have a license. On February 23, 1981, Petitioner conducted, four polygraph examinations and was unsupervised in the course of these examinations. Out of the four examinations conducted, there were three complaints from the examinees, which Provenzano found to be an unusual number, even though in those instances in which there is some indication of deception it is not unusual for an examinee to protest. In this instance, there were indications that some of the examinees were deceitful. In addition, one of Provenzano's clients who had requested the conduct of an examinations), asked that Elbon not conduct further examinations for that client. The examinations in question took place in Lee County, Florida. Patricia Slader, a motel manager for the Song of the Sea Motel, which is located in Lee County, Florida, hired Petitioner to conduct polygraph examinations on two of the motel's employees and one guest. He was hired on the belief that he was in fact a Detection of Deception Examiner and upon the recommendation of third parties. Elbon never indicated that his license had expired. The employment arrangement was made in July, 1981, and the tests were conducted on July 14 and 15, 1981. The charges were found to be satisfactory and the results of the tests were acceptable to the manager. Slader stated that she would not have hired Elbon had she realized that he was unlicensed at the time he conducted the examinations. In October, 1981, Ken Stephenson, a management official with Shop-N-Go retail stores hired Elbon to conduct polygraph examinations. The examinations were performed by Petitioner in keeping with his, employment agreement and those examinations were performed in Florida in October, 1981. The purpose of the use of those examination results, in terms of the employer's position, was for background information as opposed to a determining reason for hiring or firing employees. Of the ten or fifteen examinations conducted, there were several complaints by examinees concerning intimidation. This led Stephenson to check with Respondent, at which point it was discovered that Elbon was not licensed and Elbon was dismissed from his duties as examiner for the benefit of Shop-N- Go. Stephenson stated that he would not have hired Elbon to perform the examinations had he known Elbon was unlicensed. With the exception of Provenzano, all those individuals for whom Elbon had provided services in the periods in question, indicated they would consider hiring Elbon to conduct polygraph examinations for them in the future should he be relicensed. Respondent officially notified the Petitioner of what it deemed to be violations for practicing as a Detection of Deception Examiner without the benefit of license. The violations related to the arrangements with Towle, Slader and Stephenson. The notices of violations were issued on May 22, 1981; August 12, 1981; and December 3, 1981, respectively, and dealt specifically with the procedures performed by Elbon. Copies of these notices of violations may be found in Respondent's Exhibit No. 2, admitted into evidence. Respondent also wrote to the Petitioner on the subject of the May 22, 1981, notice of violation. This letter was written June 15, 1981, by Dennis English, Chief of Bureau of Regulation and Enforcement. A copy may be found in Respondent's Exhibit No. 4, admitted into evidence. Through this correspondence, Petitioner was apprised that his Class "P" license could not be renewed beyond the six-month period of the expiration date; referred to the necessity for a new application; cautioned Respondent not to conduct further polygraph examinations, and advised of the possibility that the violation might lead to a fine of $1,000 or other administrative action. This correspondence also attached an application form for the Class "P" license, for the convenience of Elbon, and closed by reminding Elbon that a representative of the Respondent would check to see that he had ceased his operations related to polygraph examinations. Elbon was told that if he had questions about the letter that he could refer those questions to the Department. Through the investigative process related to the three notices of violation, i.e., interviews and telephone conversations with Elbon, he admitted to the facts related in the notices of violation, and as reflected in the facts found in prior paragraphs of this Recommended Order. The explanation Elbon gave for not renewing his license, both in the course of the investigation and in the course of the hearing, was that he did not have sufficient money to allow the payment for the license fee and for the necessary insurance related to renewal of his license. Following conversations with officials of the Respondent and written notification, Elbon reapplied for license in October, 1981. The license application was received October 6, 1981, by Respondent. A copy of the license application may be found as Respondent's Exhibit No. 3, admitted into evidence., (He continued to do some polygraph-type work following the filing of the application. These activities had ceased prior to the date of the final hearing.) After reviewing the request for licensure, that request was denied by action of the agency on December 21, 1981, based upon the contention that Elbon had been conducting business as a Detection of Deception Examiner without a license or with a revoked or suspended license. The facts found herein demonstrate that Petitioner was conducting business as a Detection of Deception Examiner without having a Florida license for such purpose. Petitioner disagreed with the license denial decision and requested a Subsection 120.57(1), Florida Statutes, hearing. Following transmittal of the case to the Division of Administrative Hearings, the formal hearing which is the subject of this Recommended Order, was conducted.
The Issue The issue to be determined is whether Respondent has committed the acts alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact At all times material to the Amended Administrative Complaint, Respondent was a certified general contractor, holding license numbers CGC 1505096 (d/b/a Redland Company, Inc.), and CGC 1507772 (d/b/a Welling Construction, Inc.). Respondent was also licensed as a certified utility and excavation contractor, holding license numbers 1223883 (d/b/a Redland Company, Inc.), CUC 1224007 (d/b/a Welling Construction, Inc.). At all times material to the Amended Administrative Complaint, Respondent was a primary qualifying agent for Redland Company, Inc., which held a certificate of authority license number QB 0009978. Respondent was also a primary qualifying agent for Welling Construction Company, which held certificate of authority license number QB 34340. On or around June 21, 2007, Respondent executed a plea agreement in Case No. 07-20415-CR-MARTINEZ, in the United States District Court for the Southern District of Florida. In the plea agreement, Respondent pled guilty to an Information which charged him with one count of mail fraud in violation of 18 U.S.C. § 1341. On that same day, the plea agreement was considered and accepted by the Honorable Jose Martinez. Before acceptance of the plea agreement, the following colloquy occurred: COURT: Mr. Nowell, before you signed this document, did you have the opportunity to discuss it with your lawyer? I did. Q. Did you, in fact discuss it with your lawyer? A. I did. Q. Did you review it with him and do you feel that you fully understood it at the time you executed it? A. Yes, sir. THE COURT: Counsel, do you believe your client fully understood this document before he executed it? MR. ZIMMERMAN: Yes, Your Honor. * * * BY THE COURT: But let me ask you, Mr. Nowell: Is there anything other than what is contained in this eight pages that has been promised to you or made known to you? Do you have any additional promises or assurances of any kind in an effort to induce you to enter into a plea of guilty other than what is contained in those eight pages? A. No, sir. Q. Has anyone attempted in any way to force you to plead guilty, threatened or coerced you? A. No, sir. Q. Do you understand that if I don't accept the sentence recommendation in your plea agreement, you will still be bound by your plea and have no right to withdraw it? A. Yes, sir. Q. Do you understand that if the sentence is more severe than you expected it, you will still be bound by your plea and have no right to withdraw it? A. Yes, sir. Q. How do you now plead to the information pending against you? A. Guilty. THE COURT: It is the finding of the Court in the case of U.S.A. vs. Frederick Bradley Nowell, Sr. that the defendant is fully competent and capable of entering an informed plea, that his plea of guilty is a knowing and voluntary plea supported by an independent basis in fact, containing each of the essential elements of the offense. His plea is therefore accepted. He is now adjudged guilty of that offense. Attached to the plea agreement signed by Respondent was an Agreed Statement of Facts. Those facts supporting the plea provide in pertinent part: The Redland Company, Inc., (hereinafter referred to as "Redland Company"), a Florida corporation, was an engineering construction company [in] Homestead, Florida. The Redland Company provided a broad range of services in the South Florida area, including road, bridge and sewage work, and excavation. Defendant Frederick Bradley Nowell, Sr. was hired by the Redland Company . . . with various duties including the preparation of work estimates, the negotiation of contracts and subcontracts, and the approval of invoices and payments. . . . The Redland Company maintained its operating account at Community Bank of Florida, in Homestead, Florida. [Nowell] had signatory authority over the Redland Company operating account. In or around October 1992, [Nowell] established Nowell Group, Inc., a Florida corporation of which he was president. * * * 6. In or around November 1997 through in or around October 2006, . . . [Nowell] did knowingly and with intent to defraud devise and intend to devise a scheme and artifice to defraud and to obtain money and property from the Redland Company by means of materially false and fraudulent pretenses, representations, and promises, knowing that they were false and fraudulent when made, and knowingly caused to be delivered certain mail matter by United States Mail and by a private and commercial interstate carrier, for the purpose of executing the scheme. * * * [Nowell], having control of the payment of vendor invoices at the Redland Company and signatory authority over the company's operating bank account, issued and signed numerous unauthorized Redland Company checks payable to NGI Marine. In one instance, Nowell made the unauthorized Redland Company check payable to Welling Construction, a construction company owned by his wife. [Nowell] would deposit the unauthorized Redland Company checks made payable to "NGI Marine" and "Welling Construction" into his Nowell Group, Inc. bank account. Through this scheme, Nowell was able to defraud the Redland Company of approximately $11,441,100 dollars, which monies Nowell used for travel, gambling, and his general personal benefit. [Nowell] concealed the issuance of the unauthorized checks by writing "NGI Marine" or "Welling Construction" only on the negotiable copy of the check, while falsifying the corresponding duplicates of the check to make it appear that the original check had been made payable to an established Redland Company vendor. Nowell would then [sic] attach old, legitimate vendor's invoices to the false duplicates as purported support for the checks, and place and cause to be placed the fraudulent documents in company files. To further conceal the fraud, [Nowell] would review the monthly Community Bank of Florida bank account statements for the Redland Company and remove evidence of his wrongdoing. Where the bank statements reflected checks issued to NGI Marine, Nowell would alter the documents to make it falsely appear that the checks had been issued to legitimate vendors. On or about January 16, 2003, [Nowell], for the purpose of executing and in furtherance of the aforesaid scheme and artifice to defraud and to obtain money and property from others by means of materially and false and fraudulent pretenses, representations, and promises, and attempting to do so, did knowingly cause to be delivered by United States Mail or a commercial interstate carrier, a 2003 Uniform Business Report on behalf of Nowell Group, Inc., sent from the Southern District of Florida to the Florida Secretary of State in Tallahassee, Florida. The transfer of funds and the receipt and issuance of checks arec essential to the practice of contracting. Financial responsibility is inextricably intertwined in the practice of contracting. In this case, the acts to which Respondent stipulated involved defrauding the company for which Respondent was a primary qualifying agent. Respondent was adjudicated guilty of a crime directly related to the practice of or the ability to practice contracting. Respondent has challenged the propriety of his guilty plea in the federal courts. To date, his challenges have been unsuccessful. The total investigative costs of this case incurred by the Department, excluding costs associated with any attorney's time, was $223.21.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered: Finding that Respondent violated Section 489.129(1)(c), Florida Statutes, as charged in Count I of the Amended Administrative Complaint; Finding that Respondent violated Section 489.129(1)(c), by violation of Section 455.227(1)(c), Florida Statutes, as charged in Count II of the Amended Administrative Complaint; Revoking Respondent's certifications and certificates of authority, and imposing a fine of $10,000 for the violation of Count I of the Amended Administrative Complaint; imposing an additional fine of $5,000 for Count II of the Amended Administrative Complaint; and imposing costs in the amount of $223.21. DONE AND ENTERED this 27th day of January 2009, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2009.
The Issue The issues in the case are whether the Respondent violated Subsections 455.227(1)(h) and 489.129(1)(a), Florida Statutes (2003), as alleged in the Petitioner's Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of building contractors pursuant to Chapters 455 and 489, Florida Statutes (2004). Joshua Woodruff is a Florida Specialty Structure Contractor who holds license number SC C131149603. He owns a business called Simply Aluminum. His last known residence is in Winter Springs, Florida. On June 19, 2003, Mr. Woodruff submitted an application for the Specialty Structure Contractor license he now holds. On page 6 of the application form, question 1 under "BACKGROUND INFORMATION" asked the applicant whether he or she has ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere to a criminal charge. At the end of the question, in larger print, is the following statement: THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Mr. Woodruff checked the "Yes" box for this question. The application form directed any person answering, "Yes," to complete form 0050-1. Form 0050-1 is included as page 14 of the license application. In the space on the form with the heading, "Offense," Mr. Woodruff wrote "Sale and Delivery." In the space with the heading, "Penalty/Disposition," Mr. Woodruff wrote, "2 months county jail, 6 months @ Bridge Program." On page 13 of the license application, question number 3 under "FINANCIAL RESPONSIBILITY/BACKGROUND QUESTIONS," asks the applicant whether he or she has ever: Undertaken construction contracts or work which resulted in liens, suits or judgments being filed? (If yes, you must attach a copy of the Notice of Lien and any payment agreement, satisfaction, Release of Lien or other proof of payment.) Mr. Woodruff answered this question, "No." The Department contends that Mr. Woodruff's responses on the license application form constituted misrepresentations because Mr. Woodruff failed to disclose that he had been adjudicated guilty in Orange County for possession of drug paraphernalia, and failed to disclose that he had filed a claim of lien on a construction project. Criminal History There is no dispute with regard to Mr. Woodruff's disclosure of the felony of "sale and delivery" (of a controlled substance) that he noted in his license application. Mr. Woodruff entered a plea of guilty to this offense on January 13, 2000, but adjudication of guilt was withheld. The official records of the Ninth Judicial Circuit Court for Orange County indicate that Mr. Woodruff was adjudicated guilty on July 25, 2002, of possession of paraphernalia, a first degree misdemeanor under Subsection 893.147(1), Florida Statutes (2002). The Respondent argues that his sentence on the conviction for possession of paraphernalia (two days in jail, fines and court costs of $371, 180 days probation) was not rendered until July 23, 2004, more than a year after he submitted his license application to the Department. However, the application form clearly requested Mr. Woodruff to describe whether he had ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere to a criminal charge. With regard to Mr. Woodruff's misdemeanor, all of these events occurred approximately one year before he submitted the license application. Claim of Lien On or about June 11, 2003, Mr. Woodruff filed a Claim of Lien against Itzhak and Ayala Stark for $5,600 for work commenced in March 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: finding that Joshua Woodruff violated Subsection 455.227(1)(h), Florida Statutes (2003), by failing to disclose a misdemeanor conviction and a claim of lien on his license application, and imposing a fine against Mr. Woodruff of $4000, and suspending his license for 60 days. DONE AND ENTERED this 8th day of September, 2005, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 2005. COPIES FURNISHED: Charles J. Pellegrini, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jeffery T. Kipi, Esquire 100 West Citrus Street Altamonte Springs, Florida 32714 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent's license as a mental health counselor should be revoked, suspended or otherwise disciplined based on the allegation contained in the Second Amended Administrative Complaint.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was licensed as a mental health counselor in the State of Florida, having been issued license number MH 0001282. The Respondent was awarded the degree Doctor of Philosophy with an area of specialization in Counseling Psychology from The Union Graduate School, The Union For Experimenting Colleges and Universities. Subsequently, the Respondent completed course work and training in, among others, the areas of psychological testing and neuropsychological examinations. The Respondent has never been licensed as a psychologist in the State of Florida under Chapter 490, Florida Statutes. However, the Respondent was allowed to practice what was commonly referred to as psychology without a license as long as the Respondent did not use the word "psychologist" or related terms in his advertising or professional activities. At all times material to this proceeding the Respondent was a member of the Florida Psychological Practitioners Association (FPPA), a private nonprofit association of psychologists, and the American Psychological Practitioners Association (APPA), a private nonprofit association of psychologists. In a promotional or advertisement letter dated October 8, 1990, the Respondent advises attorneys who specialize in personal injury cases of his services for a "regimen of rehabilitation, on an OUTPATIENT basis, for individuals with various cognitive deficits such as attention and concentration memory disorders". In the course of advising these attorneys of his services, the Respondent indicates that he has provided "neuropsychological examinations" for clients of certain attorneys and would provide "neuropsychological examinations" in performing this "regimen of rehabilitation" if one had not already been administered. On this letter appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" at the top of the letter; and (c) the words "Board Certified, Clinical Psychology, APPA" in the signature block of the letter below the signature of the Respondent. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. In a letter dated November 19, 1990, to the Department's employee, Denise Love, Complaint Analyst, the Respondent responds to an earlier letter from Love concerning a complaint. On this letter appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" at the top of the letter; and (c) the words "Board Certified, Clinical Psychology, APPA" appear in the signature block below the Respondent's signature. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. On a promotional or advertisement letter dated January 10, 1991, containing basically the same message as the October 8, 1990, letter referred to in Finding of Fact 5 above, appear: (a) the seal of the FPPA and the seal of the APPA; (b) the words "Board Certified Psychological Services" on the top of the letter; and (c) the words "Fl. Lic. #XA0001479; #MH0001282" and "Division of Workers Compensation Rehabilitation Services Provider" in the signature block below the Respondent's signature. There was no evidence as to what Florida License #XA0001479 refers to, but Florida License #MH001282 refers to Respondent's license as a mental health counselor. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on this letter. There is sufficient evidence to show that at all times material to this proceeding, the Respondent was: (a) qualified to perform psychological services, including neuropsychological examinations and psychological testing; (b) not prohibited by statute or rule from offering or performing psychological services, including neuropsychological examinations and psychological testing; Board Certified in Clinical Psychology by the APPA; (d) a member of the FPPA or APPA; and (e) authorized by the FPPA or the APPA to display the seal of each of these respective organizations on his stationery. The letters "LMHC" or the words "licensed mental health counselor" do not appear on the Respondent's business card obtained by Michelle Hampton from Respondent's office while serving papers on the Respondent around February 8, 1991. However, the words "Florida License: #MH0001282" do appear on the card. The letters "LMHC" or the words "licensed mental health counselor" do not appear on either the Respondent's letter of April 8, 1991, to Denise Love, or on the Respondent's business card enclosed with the letter. However, the words "Florida License: #MH 0001282 do appear on both the Respondent's letter and business card. Neither the letters "LMHC" nor the words "licensed mental health counselor" appear on the Respondent's letter of October 21, 1991, to Michelle Hampton. However, the words "Psychotherapist & Examiner" and "Florida License: #MH0001282" do appear on the Respondent's letter in the signature block below the Respondent's signature. There was sufficient evidence to show that Respondent was qualified, by training and experience, to hold himself out as a psychotherapist. Section 491.0149(3), Florida Statutes, which requires a licensed mental health counselor to include the use of the words "licensed mental health counselor" or the letters "LMHC" on all promotional material, including cards, brochures, stationery, advertisements, and signs naming the licensee went into effect on October 1, 1990. Respondent did not become aware of Section 491.0149(3), Florida Statutes, until sometime around January, 1991, and, at that time, it was the Respondent's understanding that the requirement of that section would be met by placing his mental health counseling license's number on all promotional materials. Thereafter, Respondent placed his mental health counseling license's number on all promotional material. By letter addressed to the Respondent, referencing the Department's Case #9014778, dated October 10, 1991, Michelle Hampton advised the Respondent that the Department's attorney had requested that Hampton obtain additional information concerning Respondent's credentials, such as the continuing education courses and the college courses completed by Respondent, that would enable the Respondent to administer, and to score, psychological tests. The letter did not cite any statutory authority for requiring this information or the penalty for failure of the Respondent to furnish this information. There was insufficient evidence to show that the Department had made an earlier request of the Respondent on September 10, 1991, to furnish information concerning the Respondent's credentials, such as the continuing education courses and college courses completed, that would enable the Respondent to administer, and to score, psychological tests, notwithstanding the testimony of Michelle Hampton to the contrary which lacks credibility. By letter dated October 21, 1991, the Respondent responded within 30 days to Hampton's letter of October 10, 1991. As explained in the Respondent's letter, the Respondent considered the request in Hampton's October 10, 1991, letter as being: (a) not relevant to Case #9014778 which involved an allegation that Respondent had utilized a title reserved for those licensed under Chapter 490, Florida Statutes; (b) inappropriate; and (c) harassment. Although, the Respondent did not furnish the requested information at that time, the Respondent did not refuse to furnish the information in his reply to Hampton's letter. The Department's Case #9014778 was opened as result of a complaint filed by Susan B. Filskov, apparently involving an alleged violation of Chapter 490, Florida Statutes, and was subsequently closed along with several other cases involving complaints filed by other individuals against the Respondent. The Department made no further attempt to: (a) obtain this information from the Respondent; (b) explain to the Respondent how the information was relevant to the investigation; (c) explain the Department's need for obtaining the information; or (d) point out that the Respondent was statutorily required to furnish relevant information upon request of the Department. There is sufficient evidence to show that Respondent's conduct in regards to the Department's request for information concerning his credentials did not violate Section 491. 009(2)(o), Florida Statutes. Prior to October 1, 1992, no statutory limits on the practice of psychology or the allied fields (Chapter 491, Florida Statutes, specifically mental health counseling) existed in the State of Florida, apart from the limits on the use of the term "psychologist" and related terms described in Section 490.012, Florida Statutes, and Section 491.012, Florida Statutes, unless a person was a licensed psychologist or licensed in one of the allied fields under Chapter 491, Florida Statutes. The restriction on the use the terms referred to in Finding of Fact 20 by those persons not licensed under Chapters 490 and 491, Florida Statutes, was challenged in federal court. On January 3, 1992, in the case of Abramson v Gonzalez, 949 F.2d 1567 (11th Cir. 1992), the court issued an opinion finding that the Psychological Services Act [Chapter 490, Florida Statutes (1991)], and Chapter 491, Florida Statutes (1991), placed an unconstitutional burden on commercial speech and remanded for proceedings not inconsistent with the opinion. Included as plaintiffs/appellants in this case were several practicing psychologists, clinical social workers, therapists, and the FPPA, of which Respondent was a member. The defendant/appellees were The Florida Department of Professional Regulation, the members of the Florida Board of Psychological Examiners, and the members of the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling. On August 26, 1992, after remand on January 3, 1992, by the United States Circuit Court of Appeals, the United States District Court, Middle District of Florida, Orlando Division, in the Case styled as Abramson et al. and Florida Psychological Practitioners Association vs. Larry Gonzalez, et al., Case No. 81-735-Civ-Orl-19, entered a Stipulated Order of Permanent Injunction enjoining the defendants from enforcing against any plaintiff, or any member of plaintiff Florida Psychological Practitioners Association, the provisions of Section 490.012, Florida Statutes, and from otherwise attempting to require any plaintiff, or member of plaintiff Florida Psychological Practitioners Association, to refrain from holding themselves out by any title or description incorporating the words, or permutations of the words, "psychologist", "psychology", "psychological", psychodiagnostic", "school psychologist, or "psychotherapy", or from describing any test or report as "psychological" so long as that person was permitted under the laws of the State of Florida to practice as a psychologist. The injunction also enjoined the defendants from enforcing the provisions of Section 490.012(3), or the provisions of Section 491.012(4) or (5), Florida Statutes, with regard to Section 491.012(3), Florida Statutes, and from attempting to require any plaintiff,or any member of plaintiff Florida Psychological Practitioners Association, to refrain from holding themselves out by any title or description incorporating the words, or permutations of the words, "mental health counselor", "psychotherapist", psychotherapy", "mental health therapist", or "mental health consultant", so long as that person was permitted under the laws of the State of Florida to practice as a mental health counselor. There are like provisions enjoining the defendants as to "clinical social workers" and "marriage and family therapist" which are not pertinent here. Likewise, any plaintiff or plaintiff member of the Florida Psychological Practitioners Association were enjoined from the use of any term or title which implies or connotes that such individual holds a license issued under the provisions of Chapter 490 or 491, Florida Statutes, unless that individual is the holder of a valid license issued pursuant to either Chapter 490 or 491, Florida Statutes. There is insufficient evidence to show that the Respondent's use of the words "Board Certified Psychological Services", "Board Certified, Clinical Psychology ", "neuropsychological examinations", "psychotherapist" or the use of the "FPPA" and "APPA" seals on stationery that Respondent used for promotional, advertisement or other business purposes: (a) was false, deceptive or misleading advertisement; or (b) that Respondent was making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, notwithstanding the testimony of Ellen Bolves to the contrary, which lacks credibility. There is insufficient evidence to show that Respondent's failure to include the letters "LMHC" or the words "licensed mental health counselor" on all promotional material was to create false, deceptive, or misleading advertising, or for the purpose of making misleading, deceptive, untrue, or fraudulent representations in the practice of mental health counseling, notwithstanding the testimony of Ellen Bolves to the contrary, which lacks credibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Count I, Count II and Count IV. It is further recommended, after consideration of Rule 61F4-5.001, Florida Administrative Code, Disciplinary Guidelines, and the primary purpose of regulating any profession being to protect the health, safety and welfare of the public and not the generation of revenue, that the Board issue a letter of reprimand to the Respondent for the violation set forth in Count III of the Second Amended Administrative Complaint. DONE AND ENTERED this 10th day of June, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 10th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6917 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,3); 2(5); 3(6); 4(7); 5(9); 6(10); 7(11); 10(16); and 12(11,12). Proposed findings of fact 11, 13, 14 and 16 are unnecessary in that they present matters previously presented in other proposed findings of fact which have been adopted. However, should there be any matter that was not previously adopted then such matters are hereby adopted. Proposed findings of fact 8, 9, 15, 17, 18, 19, 20 and 21 are not supported by competent substantial evidence in the record. Additionally, proposed findings of fact 17 - 20 also present argument which should be presented in the Conclusions of Law. Respondent, Harris' Proposed Findings of Fact: 1. The Respondent's proposed findings of fact are so intermingled with argument and other matters not considered findings of fact that I do not intend to respond to each one. However, those matters that are clearly findings of fact are adopted in Findings of Fact 1 through 24. The balance are rejected as being argument, conclusions of law, matters that should be covered in the preliminary statement, or not material or relevant. COPIES FURNISHED: Charles Faircloth, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Ste. 60 Tallahassee, Florida 32399-0792 Robert Watrous, Esquire 27 S. Orange Avenue Sarasota, Florida 34236 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry Dover Executive Director Board of Clinical Social Work, Marriage & Family Therapy & Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Petitioner committed a public entity crime as that term is defined in Section 287.133, Florida Statutes (2000), and, if so, whether it is in the public interest to place Petitioner's name on the convicted vendor list maintained by the Department of Management Services (the "Department").
Findings Of Fact On March 22, 2000, Petitioner and White Construction Company, Inc., were charged by a twelve-count criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. Petitioner's indictment arose out of certain work he performed after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages and to testify regarding those matters in depositions and, if necessary, at trial. On August 30, 2000, Petitioner entered a plea agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Petitioner entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida, an amount equaling the fees that Petitioner was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One through Six and Nine through Twelve against Petitioner, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Petitioner "admits the facts of the charge." Counts Seven and Eight of the indictment charged Petitioner with two counts of Grand Theft, in the first degree, and both counts provided in relevant part the following: WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use, or endeavor to obtain or use U.S. Currency or other property with an equivalent value, to-wit: "delinquency days," with a value of $100,000 or more, the property of another, to-wit: Florida Department of Transportation, hereinafter: FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or a benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false or fraudulent claim(s) or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. . . . Count Seven related to Project No. 36210-3439 on Interstate 75 in Marion County, Florida, and to activities which allegedly occurred between January 8, 1996, and January 30, 1998. Count Eight related to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 in Marion County, Florida, and relates to activities which allegedly occurred between April 15, 1996, and January 30, 1998. At the hearing in this matter, Petitioner testified that he prepared damage and extension of time claims, based on information that was provided to him by the attorneys for White Construction Company. Petitioner testified that he did plead guilty to Counts Seven and Eight, which involved instances of billing the Florida Department of Transportation ("FDOT") for the same equipment at different locations on the same day. It is undisputed that first degree grand theft, pursuant to Subsection 812.014(2)(a)1., Florida Statutes (2000), in the context of doing business with a state agency, constitutes a "public entity crime" as defined by Subsection 287.133(1)(g), Florida Statutes. Petitioner did not notify the Department that he had been convicted of a public entity crime within 30 days of his conviction, as required by Subsection 287.133(3)(b), Florida Statutes (2000). Petitioner testified that, at the time of the plea, he was unaware of this statutory requirement. Petitioner was represented by counsel in the criminal proceedings, and testified that his lawyer did not mention Section 287.133, Florida Statutes (2000), in their discussions. Petitioner further testified that the statewide prosecutor did not mention the public entity crimes statute during plea negotiations. Section 287.133, Florida Statutes (2000), is not mentioned in the plea agreement. Petitioner further contends that the fact that adjudication was withheld as a result of his plea agreement establishes that he was never "convicted" of a public entity crime. Subsection 287.133(1)(b), Florida Statutes (2000), defines "conviction" as "a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere." (emphasis added) Petitioner's contention that he was not "convicted" is therefore without merit. However, Petitioner's belief that he had not been convicted of a crime is credited. Even if he had been aware of the requirements of Section 287.133, Florida Statutes (2000), Petitioner in all good faith would not have believed that he was under any obligation to report his conviction. In addition to requiring a person convicted of a public entity crime to inform the Department within 30 days of his conviction, Subsection 287.133(3)(b), Florida Statutes (2000), requires any public entity which receives information that a person has been convicted of a public entity crime to transmit that information to the Department in writing within 10 days. Subsection 287.133(1)(f), Florida Statutes (2000), defines "public entity" as "the State of Florida, any of its departments or agencies, or any political subdivision." The Office of Statewide Prosecution, which was the signatory party to Petitioner's plea agreement, never informed the Department of Petitioner's conviction. In 2002, the Florida Engineers Management Corporation on behalf of the Board of Professional Engineers issued a complaint against Petitioner, seeking to discipline his license as a professional engineer because of the acts alleged in the indictment and the crimes to which Petitioner pled guilty. Petitioner contested the proposed discipline and the matter went to a full evidentiary hearing before a judge of the Division of Administrative Hearings. See Florida Engineers Management Corporation v. Cooper, Case No. 02-3167PL (DOAH January 6, 2003). Neither the Florida Engineers Management Corporation nor the Board of Professional Engineers informed the Department that Petitioner had been convicted of a public entity crime. Petitioner presented documentary evidence indicating that Michael K. Bowen, an FDOT employee, filed the complaint that led to the investigation that culminated in Case No. 02-3167PL. The complaint was filed with the Board of Professional Engineers on September 13, 2001, more than one year after Petitioner's plea agreement was entered. In the Recommended Order in Case No. 02-3167PL, the Administrative Law Judge recommended that the charges against Petitioner be dismissed, based on the conclusion that the allegations did not directly relate to the practice of engineering or the ability to practice engineering. The Agency's Final Order, dated May 15, 2003, rejected the Administrative Law Judge's conclusion and imposed a six-month license suspension and a fine of $1,000.00 on Petitioner. On June 16, 2003, Petitioner filed a notice of appeal with the First District Court of Appeal. Petitioner and the Board of Professional Engineers settled the appeal, and Petitioner voluntarily dismissed the case on October 23, 2003. See Cooper v. State of Florida, Board of Professional Engineers, Case No. 1D03-2542. Petitioner testified that he believed the dismissal of his appeal would mark the end of his legal problems, some three and one-half years after the filing of the indictment. By letter to Steve Rumph, the Department's inspector general, dated March 15, 2005, Cecil T. Bragg, Jr., FDOT's inspector general, reported the "criminal conviction of Luther White, Jr., William Thomas Cooper, Jr., and White Construction Company, Inc. of Chiefland, Florida." The letter notes that Petitioner entered his guilty plea to two counts of grand theft and agreed to repay FDOT $84,000 in addition to permanent debarment from doing business with or associating with any business doing work with FDOT. The letter correctly states that the plea agreement was entered on August 30, 2000. It is notable that Mr. Bragg concludes the letter by directing any questions to "Investigations Manager Michael K. Bowen." Michael K. Bowen was the same FDOT employee who filed the complaint against Petitioner with the Board of Professional Engineers on September 13, 2001. Thus, the documents in this case establish that FDOT knew of Petitioner's conviction no later than September 13, 2001,1 yet waited nearly four years before notifying the Department of Petitioner's conviction. At the hearing, no plausible explanation was offered for FDOT's failure to comply with the requirements of Subsection 287.133(3)(b), Florida Statutes (2000). In his questioning of Petitioner, the Department's counsel implied that it was merely standard practice for FDOT to wait until everyone involved in the case had been convicted before notifying the Department. Even if this implication is accepted, it does not bring FDOT's actions within the terms of the statute. The letter itself states that the individual Whites and White Construction Company entered into a plea agreement on July 7, 2004, and that FDOT's inspector general concluded all investigation in the matter on December 23, 2004. Both those dates are months before the March 15, 2005, letter from FDOT to the Department. As noted above, Subsection 287.133(3)(b), Florida Statutes (2000), required the agency to provide notice of the convictions to the Department within 10 days of receiving the information. At the hearing, Petitioner testified that he believed that FDOT intentionally dragged out these matters due to simple vindictiveness. Given the facts noted above, Petitioner's explanation is as plausible as any offered by the Department. By letter dated March 21, 2005, Mr. Rumph attempted to notify Petitioner that the Department had received information that he had been found guilty of a public entity crime and that the Department was commencing an investigation of the matter. Because the letter was sent to an old address and apparently not forwarded, Petitioner never received it. For reasons again unexplained, another year passed before the Department made any further effort to contact Petitioner. By certified letter dated April 6, 2006, the Department notified Petitioner of its intent to place him on the convicted vendor list. This letter was sent to the old address, but was forwarded to Petitioner's current address. Petitioner testified, both at this hearing and the hearing in DOAH Case No. 02-3167PL, that he was retained to provide cost evaluations and calculate cost damages based entirely on information provided to him by engineering firms hired by the attorneys for White Construction Company, as well as information provided by White Construction Company and FDOT. He made only brief visits to the job sites, was not allowed to question the calculations performed by the engineers, and had no knowledge that the information provided to him was untrue. Petitioner did not submit the claims that later proved fraudulent. Petitioner testified that he pled guilty "to make the trial go away and save me about $150,000 at that time." He did not concede that he had actually committed any crime. Petitioner's plea agreement provided that his total aggregate sentence would be ten years of probation, with the possibility of an early termination "upon proof by Defendant to the court's satisfaction that: (a) all restitution, fines, and costs have been paid; (b) Defendant has satisfied in full all other conditions of his probation; and (c) the interests of justice are best served by early termination of probation. The Defendant understands that the State will not agree to an early termination of probation any sooner than one-half of his probationary period." At the hearing, Petitioner testified that the order terminating his probation was entered on February 10, 2006, more than four years early. The early termination of probation leads to the reasonable inference that Petitioner complied with all the terms of his plea agreement, including the following: Defendant agrees, when directed by the State, to appear and testify truthfully and fully and to provide information truthfully and fully at all interviews, hearings, depositions, and trials involving the above- captioned case and any related investigations. Defendant agrees to provide all interview statements and testimony in all depositions, hearings and trials voluntarily. . . . Petitioner has performed no work for White Construction Company or any of its principals since March 2000. Petitioner has performed no work for any state agency since March 2000. On November 8, 2000, the Federal Highway Administration suspended Petitioner from participating in federally funded projects, based on the March 23, 2000, indictment. The suspension was imposed for the duration of the criminal proceedings. By letter dated April 11, 2005, the Federal Highway Administration notified Petitioner that his suspension had been terminated, due to the conclusion of the criminal proceedings.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto, Respondent has been a real estate salesperson in the State of Florida, having been issued license number 0611282. At all times material hereto, Respondent was employed by Steven J. David at Century 21 Tri City Realty, Inc., in Fort Lauderdale as a licensed real estate salesperson. Her duties were selling and leasing real estate and managing properties owned by her employer. She was paid a commission on transactions she handled. In November 1996, Mike Nickas began receiving late notices from various mortgage companies which held mortgages on properties owned by him and David. He and David began investigating how that could be. They discovered that Respondent had written seventeen checks totaling in excess of $8,000 during 1996 from the business accounts payable to "cash" or to herself and had forged Nickas' signature to those checks. Those payable to "cash" were endorsed and cashed by her. Respondent was not a signatory on those accounts. In order to hide her theft, Respondent wrote in the checkbook that each check was "void" or wrote false entries as to the amount of the check and the payee. Further, when the bank statements arrived at the business each month, Respondent removed the unauthorized checks from the envelope. Respondent was not authorized to sign Nickas' name to any of those checks. Further, Respondent was not authorized to write those checks payable to herself or to write them payable to "cash" and then cash them herself. When David and Nickas confronted Respondent with their discovery, she admitted that she had written the checks without authorization. Respondent's employment was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her license as a real estate salesperson. DONE AND ENTERED this 13th day of October, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, No. N 308 Orlando, Florida 32801 Stephen Post, Esquire 600 South Andrews Avenue Fort Lauderdale, Florida 33301 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
