The Issue Whether Respondent’s license as a group home should be revoked for failing to comply with the requirements of chapter 393, Florida Statutes, and Florida Administrative Code Chapter 65G-2, as alleged in the Administrative Complaint (“Complaint”).
Findings Of Fact The Parties and Principal Allegations of the Complaint APD is the state agency charged with licensing of foster care facilities, pursuant to authority provided in chapter 393 and chapter 65G-2 and ensuring facility compliance therewith. KRM, operated as Dale’s, is a licensed foster home (#5442-3-FA) in Wesley Chapel, Florida, with a capacity of three residents. Dale’s obtained its license in 2012 and APD annually renewed its license until 2018. Ms. Bogan, KRM’s president, manages the home and lives there with her husband, Celestine Oliver, and their minor daughter. Their 21-year-old daughter, Justine Oliver, comes home from college over the summer. All family members are background screened because they interact with the foster children and, except for the minor daughter, all have the required medical screenings because they also provide care to the foster children. Ms. Bogan and Mr. Oliver own the property where the home is located. At all times relevant hereto, three minor children resided in Dale’s——D.M., Z.M., and N.B.3/ D.M. was a client of APD, which contracted with Dale’s to pay for his room and board and other services provided by the home.4/ N.B. was a client of YMCA Sarasota. Z.M. was a client of Eckerd Connects Community Alternatives (“Eckerd”), though Ms. Bogan and her husband adopted her in November 2018. APD conducts monthly and annual license visits of foster homes to ensure compliance with the law. During a monthly visit, an inspector tours the home, observes staff with the clients, audits one client’s file, and audits medications to ensure they are current and clients are receiving them. During an annual visit, an inspector does a more thorough physical walk-through and an in-depth audit of the files of all of the staff and at least half of the clients. On July 25, 2018, APD issued a six-count Complaint seeking to revoke Dale’s license under section 393.0673 for the following violations of statutes and rules: Failing to timely notify APD about a foreclosure action filed against Ms. Bogan, as required by rule 65G-2.007(18)(a) and (c); Failing to have level two background screening performed for two family members from another country who stayed at the home in and around January 2017, in violation of section 393.0655(1)(d); Willfully or intentionally misstating its financial ability to operate the home in the 2017 application despite the pending foreclosure action, in violation of rule 65G-2.007(20)(a); Failing to have level two background screening for a substitute caretaker who stayed in the home with one foster child while Ms. Bogan was out of town in July 2017, as required by rules 65G-2.008(2) and 65G-2.011(3), and making willful misstatements about that issue to APD staff, in violation of rule 65G-2.007(20)(a); Failing to furnish sufficient proof of its financial ability to operate the facility for at least 60 days in the 2018 application, as required by section 393.067(6), and willfully or intentionally misstating its financial ability in that application despite the bankruptcy petition, in violation of rule 65G-2.007(20)(a); and Willfully or intentionally misstating in the 2018 application that Ms. Bogan was not a “party responsible for a licensed facility receiving an administrative fine,” when she owned a facility that received two prior fines in 2008 and 2011, in violation of rule 65G-2.007(20)(a). Foreclosure, Bankruptcy, & Financial Ability - Counts I, III, V In 2010, Ms. Bogan hired an attorney to help her modify the mortgage on the property. They were initially unsuccessful. On June 25, 2013, the lender electronically filed a notice of lis pendens to foreclose the mortgage on the property. On January 3, 2018, a final judgment of foreclosure was filed. The judgment scheduled a public sale for March 5, 2018. On January 29, 2018, Ms. Bogan notified Ms. Giordano, an APD inspector, about the foreclosure during a monthly visit. This was the first time that Ms. Bogan had notified APD about the pending foreclosure action. On March 1, 2018, Ms. Bogan filed a petition for personal bankruptcy in the U.S. Bankruptcy Court for the Middle District of Florida based on the advice of foreclosure counsel. She also filed a suggestion of bankruptcy in the pending foreclosure action. As permitted, she applied to pay the $310 filing fee in the bankruptcy case in monthly installments. Ms. Bogan filed for bankruptcy to stop the foreclosure sale, which was accomplished by filing the suggestion of bankruptcy. In November 2018, the lender modified the mortgage, Ms. Bogan dismissed the bankruptcy petition, and they have remained in the home ever since. In Count I, APD alleged that Dale’s violated rule 65G- 2.007(18)(a) by failing to “provide notification to the Regional office within two business days of receipt of a foreclosure notice.” Id. Ms. Bogan admitted that the notice of lis pendens was “electronically” filed on June 23, 2013, but testified that the notice was not served on her at the time, that she was unaware of it because her attorneys were handling the case, and that, in any event, she did not know of the requirement to notify APD. Ms. Bogan did not immediately notify APD of the foreclosure judgment because she remained unaware of that requirement. According to Ms. Leitold, APD’s residential program supervisor in the Suncoast Regional Office, Ms. Bogan violated the rule by failing to notify APD within two days of either: the date the notice of lis pendens was filed, June 25, 2013, or the date the foreclosure judgment was entered, January 2, 2018. Although there is no dispute about the dates on which the notice of lis pendens and foreclosure judgment were filed, the record is devoid of evidence as to when Ms. Bogan received those foreclosure pleadings, which is the triggering date under rule 65G-2.007(18)(a).5/ In Counts III and V, APD alleged that Ms. Bogan willfully or intentionally misrepresented her financial ability, in violation of rule 65G-2.007(20)(a), by attesting as follows: I hereby state that I have sufficient capital, income or credit to staff, equip, and operate this facility in accordance with Rule 65G-2 for sixty days without dependence on client fees or payments from the State of Florida. In Count III, APD alleged that the foreclosure action proved Ms. Bogan lied in the 2017 application. In Count V, APD alleged that the bankruptcy action proved Ms. Bogan lied in the 2018 application. Ms. Bogan testified definitively that she never willfully or intentionally lied about her financial ability in either application. She maintained that Dale’s has always had sufficient capital to operate the home. Indeed, it continued to operate throughout 2017 and 2018 while the foreclosure and bankruptcy cases were pending, apparently without receiving several monthly room and board payments or Medicaid payments for services it provided, as confirmed by Mr. Smith. APD acknowledged its burden to prove that Ms. Bogan willfully or intentionally lied in the applications. But it elicited no testimony from Ms. Bogan as to Dale’s or her financial situation in 2017 and 2018, or whether they had access to the financial sources listed in the application, i.e., capital, other income, or credit. It never asked Ms. Bogan about the underlying circumstances of the foreclosure, why she filed for bankruptcy, what she understood about the cases, or what she intended by signing the attestation. Such evidence is key to proving willful or intentional misstatements, especially given Ms. Bogan’s credible testimony to the contrary. APD chose instead to rely on the mere existence of the foreclosure and bankruptcy actions (and that Ms. Bogan asked to pay the filing fee in installments) to prove that she lied. However, the foreclosure and bankruptcy filings offer no insight into Dale’s financial ability, which is the applicant and licensed entity. Although Ms. Leitold said APD considers the financial ability of both the entity and individual owners, the application explicitly refers to proof of financial ability “of the licensee.” The attestation is also signed by the owner on behalf of the facility and notes APD’s right to request more financial documentation from the “applicant.” The statute is in accord. See § 393.067(6), Fla. Stat. (“The applicant shall furnish satisfactory proof of financial ability ”). Even as to Ms. Bogan’s financial ability, the foreclosure and bankruptcy pleadings offer little detail, much less credibly undermine her testimony that she did not lie. This is particularly so given that the bankruptcy apparently was just a strategy to modify her loan. Ms. Leitold’s testimony suffers a similar fate. She conceded this was the first foreclosure action against a foster home she had experienced and that she lacked knowledge of the foreclosure process and the rules of bankruptcy. She only reviewed the pleadings filed by APD in this case and had not researched other documents. She did not know if Ms. Bogan had in fact paid the filing fee in installments, though she based her belief that Ms. Bogan lied on that request. In Count V, APD also alleged that Dale’s failed to furnish satisfactory proof of financial ability in its 2018 application, in violation of section 393.067(6). With a renewal application, APD typically does not ask for proof beyond an annual budget. Indeed, APD renewed Dale’s license in 2017 based on the budget alone. Ms. Leitold testified that APD knew about the foreclosure and bankruptcy cases in 2018, which is why she requested more documentation. But the record is unclear as to what Ms. Leitold requested from Ms. Bogan, how she requested it, or what proof would have been deemed sufficient; there also was substantial confusion that APD’s counsel and witness had about whether this issue was even part of the Complaint.6/ The confusion about this allegation and how it was handled bear directly on the weight of the evidence and APD’s burden in this proceeding. What appears to be clear is that Ms. Bogan initially submitted a budget and attested to Dale’s financial ability on March 20, 2018. Presumably based on a request by Ms. Leitold, Ms. Bogan submitted a revised budget, a new attestation signed on June 2, 2018, and a bank statement in her daughter’s name, payable on death to Ms. Bogan, with a balance of $10,050. Ms. Bogan believed she had provided all of the information requested by APD to establish sufficient financial ability and never heard otherwise. Indeed, APD had granted the initial license in 2012 with proof of capital of only $7,000. Ms. Leitold received the statement, but she deemed it insufficient because the account was Ms. Oliver’s, who was not an officer of KRM, and it was only payable on death to Ms. Bogan. Ms. Leitold made this decision without knowing whether and to what extent Ms. Oliver may be involved in the business. She believed proof of financial ability of corporate officers was required, though she conceded the law did not so specify. Ms. Leitold never explained what document or amount would have been satisfactory or cite a statute or rule articulating those standards. Nevertheless, Ms. Leitold did not contact Ms. Bogan to inquire, obtain clarification, or request more documentation. She did not believe she was obligated to do so for a second time, even though the attestation Ms. Bogan signed on June 2, 2018——the form sent to APD with the bank statement——expressed APD’s right to request and obtain additional documentation to substantiate financial ability. Background Screenings – Counts II and IV In Count II, APD alleged that Dale’s failed to conduct level two background screenings for two of Ms. Bogan’s family members who were from another country and resided in the home, in violation of section 393.0655(1)(d). During a monthly visit on or around February 20, 2017, Ms. Bogan informed Ms. Giordano that her sister and niece were visiting from out of the country. Ms. Bogan credibly explained that they were visiting the U.S. for about three months, but would not be staying with her the entire time. She explained that they ultimately stayed with her for about a week, went to Atlanta for a few weeks, came back for two days, and then went to New York for the rest of their trip. APD presented no evidence as to when the visitors arrived or left, how old they were, or whether they were alone with the children or had access to their living areas. Ms. Giordano testified that Ms. Bogan said the visitors would be staying for four months, but confirmed that she did not know when they arrived or how long they stayed. She also was unsure as to when she saw the visitors at the home or how many times, though she did not believe it was more than once or twice. Upon learning of the visitors, Ms. Giordano was unsure if they needed to be screened, so she asked Ms. Leitold. Because Ms. Leitold had never dealt with a foreign visitor before, she e-mailed an APD lawyer to inquire. In that e-mail, Ms. Leitold confirmed that the home would accommodate the guests and noted that the foster children lived on the first floor and the guest rooms were on the second floor. On February 21, 2017, the APD lawyer advised that the visitors would need to have level two background screening performed under section 393.0655(1)(d), as they were visiting for four months and living at the home during their stay. Ms. Leitold forwarded the response to Ms. Bogan and informed her that she needed to conduct the level two screenings immediately. Ms. Bogan attempted to obtain screenings for the relatives, but could not because they were not U.S. citizens. She had name searches conducted by the Hillsborough County Sheriff’s Office, which revealed no arrests for either visitor. On March 23, 2017, Ms. Giordano conducted an annual license inspection of Dale’s and Ms. Bogan informed her that the screens could not be obtained. There is no credible evidence that the visitors were still there at that time, as Ms. Giordano could not recall and, though Ms. Leitold believed they were, her belief was not based on fact because she never visited the home and had no independent knowledge.7/ Because screens of the visitors could not be obtained, APD required Dale’s to sign a child safety plan to ensure that the foster children were never left alone with them. The evidence was undisputed that the visitors never stayed in the home after the child safety plan was issued on March 28, 2017. Despite APD’s belief that Dale’s had violated the law by failing to obtain the screenings, it did not cite Dale’s for the violation at the time. Instead, it executed the safety plan, allowed the children to stay in the home, and renewed Dale’s license in 2017 notwithstanding the purported violation. In Count IV, APD alleged that Dale’s violated rule 65G-2.008(2) by leaving a child with an unscreened person while Ms. Bogan was out of town in July 2017. In July 2017, Ms. Bogan traveled to Grenada. She planned to take the YMCA child with her and arranged for the APD child to stay with his parents. Ms. Bogan did not want to take the 11-year-old Eckerd child, who she and her husband have since adopted, because she is severely mentally disabled. Ms. Bogan did not, however, want to put the Eckerd child in a respite home. Although Ms. Bogan’s 21-year-old daughter had the medical screenings to serve as a caregiver, Ms. Bogan did not want to place that responsibility solely on her. Instead, Ms. Bogan asked her sister, Becky John, who was a foster mom in Atlanta, to stay in the home with her daughters. Before she arrived, Ms. John obtained her medication administration assistance certification from APD, effective March 2, 2017, and had sufficient background screening under Georgia law. But, she could not obtain a level two background screening for APD until she was present in Florida, so she planned to obtain that screening upon arrival. Ms. Bogan left first and took the YMCA child with her. Her husband and two daughters remained in the home, all of whom were background screened. Ms. John arrived at the home late at night on July 17, 2017. The next morning, Mr. Oliver departed for Grenada, leaving the Eckerd child with his two daughters and Ms. John. That same morning, however, an emergency required Ms. John to travel back to Atlanta immediately. Ms. John had only been in the house for about ten hours at that point. Ms. Bogan credibly testified that she called an APD respite home and asked it to keep the child for one day until Ms. John returned from Atlanta, as she wanted the child to be able to be in their home. Eckerd approved this plan. Ms. Bogan informed Ms. Giordano and Ms. Leitold that Ms. John had been screened in Georgia and had that documentation sent to APD. Ms. John dropped the child off at the respite home on her way back to Atlanta. She returned to Florida the next day and got fingerprinted, but the home would not allow her to pick up the child on instructions from APD. Several days later, on July 21, 2017, the background screening was approved and APD deemed Ms. John eligible. Ms. Bogan decided to return home from Grenada early. Upon her return, the respite home brought the Eckerd child back to Dale’s. The child had spent between 11 and 14 days there. Ms. Giordano and Ms. Leitold offered conflicting testimony, but neither of them visited or called the home. Neither had personal knowledge of the details of Ms. John’s involvement or what transpired while Ms. Bogan was away. They lacked consistent and definitive details about how they obtained the out-of-state screening documents and who arranged for the child to be moved to the respite home. They based much of their testimony on what Ms. Bogan purportedly told them, which was in stark contrast to her credible testimony to the contrary. The witnesses also waivered at times while testifying. For example, Ms. Giordano testified that Ms. Bogan called on July 12, 2017, to say that her husband and family were with her in Grenada, yet later testified that Ms. Bogan never mentioned her daughters on that call. When asked whether she recommended Dale’s license be renewed with knowledge of this issue, Ms. Giordano said she does not write a recommendation because she has no say in that process. However, Ms. Giordano signed the 2017 application checklist and attested, “I have reviewed this application licensure package and, based upon the information contained therein, recommend the issuance of a one year license.” Ms. Giordano also testified that having an unscreened adult in the home is a violation even if Mr. Oliver or his daughters were there, yet testified many times that unscreened persons can be in the house for less than ten hours per month as long as a screened caregiver is also there. Based on the weight of the credible evidence, the undersigned finds that Ms. John was in the house for less than ten hours and was never alone in the house with the child, as either Mr. Oliver or Ms. Oliver was there at all times. Prior Administrative Fines - Count VI In Count VI, APD alleged that Ms. Bogan willfully or intentionally misstated in the 2018 application that neither Dale’s nor one of its controlling entities had ever been “the party responsible for a licensed facility receiving an administrative fine,” even though Ms. Bogan served as the director of another facility that had received administrative fines. APD alleged a violation of rule 65G-2.007(20)(a). In 2005, Ms. Bogan and Mr. Oliver incorporated Welcome Home Elite Kids, Inc. (“Kidz, Inc.”), serving as its officers. That same year, Kidz, Inc., registered the fictitious name, Creative World School – New River (“Creative World”), which was a franchise business owned by Ms. Bogan. Creative World, initially licensed in 2005, was a daycare with 29 employees and 172 children. Ms. Bogan was neither trained nor licensed as a director. Instead, she hired a director, Patricia Tiller, and an assistant director, who were trained, licensed, and responsible for operations. Ms. Tiller completed the school’s license applications with the Department of Children and Families (“DCF”). In July 2017, Ms. Giordano reached out to DCF as to whether Creative World had previously been disciplined. She did this because Ms. Bogan mentioned owning a school in the past and having an unfavorable view of inspectors, so Ms. Giordano searched sunbiz.org for other entities owned by Ms. Bogan and found Kidz, Inc. DCF ultimately forwarded a set of documents, which included two administrative complaints against Creative World that resulted in the imposition of fines totaling $225. The first complaint, issued in 2008, named Ms. Tiller, Director, Creative World, as respondent. The complaint sought to impose $50 in fines for two staff training violations. Ms. Bogan was neither named in nor served with the complaint. Creative World paid the fine on a check drafted on its petty cash account, but the signature is not legible. The second complaint, issued in 2010, named Kidz, Inc., d/b/a Creative World, as respondent. The complaint alleged that Ms. Tiller was the director and sought to impose $175 in fines for three violations. DCF served the complaint on Ms. Tiller. Ms. Bogan was neither named in nor served with the complaint. Creative World paid the fine on a check drafted on its petty cash account, but the signature again is not legible. Ms. Bogan credibly explained that, if there was a prior fine, Ms. Tiller may have mentioned it to her but she did not recall anything specific. Ms. Tiller was the director, had access to the checks, and ran the business. It, thus, makes sense why DCF’s documents referred to Ms. Tiller and not Ms. Bogan. And, given that the fines were over eight years old and totaled only $225, it is not surprising that Ms. Bogan did not recall them in 2018, even if she knew of them years before. Ms. Bogan’s testimony was largely unrebutted. None of APD’s witnesses could credibly testify that Ms. Bogan knew about the fines, much less willfully or intentionally lied about them. They had no knowledge of her involvement in the business. APD never asked Ms. Bogan if she knew about the complaints or had her review them to jog her memory. It never asked any witness, including Ms. Giordano (who had testified to being familiar with Ms. Bogan’s signature as it related to the 2017 and 2018 applications), if Ms. Bogan signed the checks. These answers could have shed light on Ms. Bogan’s memory and veracity. FINDINGS OF ULTIMATE FACT It is well settled under Florida law that determining whether alleged misconduct violates a statute or rule is a question of ultimate fact to be decided by the trier-of-fact based on the weight of the evidence. Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). Determining whether the alleged misconduct violates the law is a factual, not legal, inquiry. APD has the burden to prove its allegations against Dale’s by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932, 934 (Fla. 1996); Avalon’s Assisted Living, LLC v. Ag. for Health Care Admin., 80 So. 3d 347, 348-49 (Fla. 1st DCA 2011) (citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)). As the Florida Supreme Court has stated: Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. In re Henson, 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). Count I - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated rule 65G-2.007(18), by not “provid[ing] notification to the Regional office within two business days of receipt of a foreclosure notice involving the property.” Though the notice of lis pendens was electronically filed on June 25, 2013, and the final foreclosure judgment was filed on January 3, 2018, APD presented no credible evidence as to when Ms. Bogan received the “foreclosure notice,” which is the critical date triggering the obligation to notify APD under rule 65G-2.007(18). Count II - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated section 393.0655(1)(d), by not obtaining level two background screenings for two family members. The weight of the credible evidence established that the family members visited the home for no more than two weeks and, thus, were not “residing with a direct services provider,” as required to prove a violation of section 393.0655(1)(d). Count III - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated rule 65G-2.007(20)(a). The weight of the credible evidence did not prove that Ms. Bogan lied about Dale’s or her financial ability in the 2017 application or did so willfully or intentionally, much less that such a lie concerned “the health, safety, welfare, abuse, neglect, exploitation, abandonment or location of a resident” as required by rule 65G-2.007(20)(a). Count IV - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated rule 65G-2.008(2). Apart from the fact that APD failed to cite what provision of section 393.0655 or chapter 435 was violated, the weight of the credible evidence established that Ms. John visited the home for less than ten hours and was never alone in the house with the child without a screened caregiver. Count V - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated rule 65G-2.007(20)(a). The weight of the credible evidence does not prove that Ms. Bogan lied about Dale’s or her financial ability in the 2018 application or did so willfully or intentionally, much less that such a lie concerned “the health, safety, welfare, abuse, neglect, exploitation, abandonment or location of a resident,” as required by rule 65G-2.007(20)(a). Count V - Based on the findings of fact above, APD also failed to prove by clear and convincing evidence that Dale’s violated section 393.067(6), by not furnishing satisfactory proof of financial ability in its 2018 application. APD’s confusion as to this issue and the conflicting testimony as to whether and to what extent more documents were requested from Ms. Bogan make it impossible to find the evidence clear and convincing. APD also failed to present credible evidence as to the level of proof that it would have deemed satisfactory or cite a statute or rule where such standards are articulated. Count VI - Based on the findings of fact above, APD failed to prove by clear and convincing evidence that Dale’s violated rule 65G-2.007(20)(a), by swearing that she had not been “the party responsible for a licensed facility receiving an administrative fine” in the 2018 application. The weight of the credible evidence did not prove that Ms. Bogan even knew about the prior fines or lied about them in the 2018 application, much less that such a lie concerned “the health, safety, welfare, abuse, neglect, exploitation, abandonment or location of a resident,” as required by rule 65G-2.007(20)(a).
Conclusions For Petitioner: Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 For Respondent: Marcia A. Taylor, Qualified Representative Taylor Solutions Group, LLC 1221 Southwest 34th Terrace Cape Coral, Florida 33914
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities issue a final order dismissing the Administrative Complaint against Dale’s Foster Home. DONE AND ENTERED this 30th day of August, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 30th day of August, 2019.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, admissions made by Respondent, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, a licensed real estate broker in the State of Florida. He holds license number 0265883. In March of 1990, Ulrich Wingens, by and through his attorney, Charles Burns, entered into a written contract to purchase from Jupiter Bay Shoppes Ltd. (hereinafter referred to as "JBS") certain commercial property located in Palm Beach County. Respondent brokered the sale. The sale contract provided that JBS was responsible for payment of Respondent's broker's fee of $50,000.00 and that such compensation was to "[t]o be due and payable only if closing occur[red]." Respondent received a $20,000.00 earnest money deposit from Wingens in connection with the sale. The sale contract provided that the $20,000.00 was to be held in the Jim Towns Realty escrow account. The sale did not close. Litigation between Wingens and JBS ensued. During the pendency of the litigation, the parties instructed Respondent to continue to hold Wingens' $20,000.00 earnest money deposit in escrow until they advised him to do otherwise. Wingens and JBS settled their dispute before the case was scheduled to go to trial. On November 14, 1991, the judge assigned to the case, Palm Beach County Circuit Court Judge Edward H. Fine, entered an order directing Respondent "to immediately transfer to Fleming, Haile & Shaw, P.A. Trust Account the escrow deposit in the amount of $20,000.00 and any accrued interest thereon." Respondent did not comply with the order. He had appropriated the $20,000.00 for his own personal use and benefit and was not holding it in escrow. This was contrary to the instructions he had received from Wingens and JBS. At no time had Wingens or JBS authorized Respondent to take such action. Wingens' attorney, Burns, brought the matter to the attention of the Department. The Department assigned one of its investigators, Terry Giles, to the case. As part of her investigation, Giles interviewed Respondent. During the interview, Respondent admitted to Giles that he had closed his real estate office in October of 1991 and had not at any time prior to the interview notified the Department of the closure. At the time he closed his office, Respondent's real estate broker's license was still in active status.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Commission enter a final order finding Respondent guilty of the violations alleged in Counts I, II, III and IV of the Administrative Complaint and revoking his real estate broker's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE IN CASE NO. 93-1315 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its post-hearing submittal: Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted as true and incorporated in substance; Second sentence: Accepted as true, but not incorporated because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 3-13. Accepted as true and incorporated in substance. 14-15. Accepted as true, but not incorporated because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. Accepted as true, but not incorporated because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney Department of Business and Professional Regulation, Division of Real Estate Legal Section, Suite N 308 Hurston Building, North Tower 400 West Robinson Street Orlando, Florida 32801-1772 Mr. James C. Towns 7101 Smoke Ranch Road #1007 Las Vegas, Nevada 89128 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Fact Issues Did Petitioner, Flo-Ronke, Inc. (Flo-Ronke), fail to timely pay a fine imposed by Final Order of the Respondent, Agency for Health Care Administration (Agency)? Did the Agency reject attempts by Flo-Ronke to timely pay the fine in full by a single payment without conditions? Did Flo-Ronke attempt to pay the fine untimely in full by a single payment without conditions? If so, did the Agency reject the proffered payment? Did Flo-Ronke employ an individual in a position that required background screening who had a disqualifying criminal conviction? Law Issues Which party bears the burden of proof? What is the standard of proof? Do the facts support denying re-licensure of Flo-Ronke? Are untimely efforts to pay the fine in full with a single payment mitigating factors? If so, how should the factors be weighed?
Findings Of Fact Flo-Ronke is an Assisted Living Facility (ALF). An ALF is a building, part of a building, or a residential facility that provides “housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.” § 429.02(5), Fla. Stat. (2015).1/ The Agency licenses and regulates ALFs. §§ 429.04 and 429.07, Fla. Stat. Flo-Ronke is subject to the Agency’s licensure requirements and is licensed by it. By Notice of Intent to Deny Renewal Application dated December 2, 2014, the Agency denied Flo-Ronke’s application to renew its license on the grounds that Flo-Ronke “failed to comply with the criminal background screening requirements by employing a caretaker who was not eligible to work in the facility.” On January 8, 2015, the Agency amended the Notice of Intent to Deny. On January 21, 2015, the Agency issued a Second Amended Notice of Intent to Intent to Deny for Renewal. This notice is the subject of this proceeding. The second amended notice asserts two bases for denial. One is the originally asserted background screening violation. The other is Flo-Ronke’s failure to pay an outstanding fine in AHCA Cases 2014002513 and 2014002514. Payment of the Fine In AHCA Cases 2014002513 and 2014002514, the Agency’s Administrative Complaint charged Flo-Ronke with four deficiencies involving insects, cleanliness, medication administration, and inadequate staffing. Originally, Flo-Ronke requested an evidentiary hearing before DOAH (DOAH Case No. 14-1939). Later, Flo-Ronke, through its owner Ms. Akintola, agreed there were no disputed issues of facts and stipulated to returning the matter to the Agency for an informal hearing. The Agency provided Flo-Ronke an opportunity for a hearing. No representative of Flo-Ronke appeared at the hearing. The Agency issued a Final Order on November 5, 2014, upholding the Administrative Complaint and imposing a $13,500 fine. The Agency’s Final Order included instructions on how to make the payment, advised that the payment was due within 30 days of the Final Order, and cautioned that interest would be imposed on overdue amounts. The Final Order included a Notice of Right to Judicial Review. On behalf of Flo-Ronke, Ms. Akintola appealed the Final Order pro se. The Florida Rules of Appellate Procedure do not provide for an automatic stay of a decision if it is appealed. Flo-Ronke did not seek a stay of the Final Order. Consequently, the obligation to pay the fine was effective as of the date of the Final Order. The First District Court of Appeal rendered an Order requiring Flo-Ronke to obtain counsel for the appeal because a corporation cannot be represented by an employee or officer. Flo-Ronke did not obtain counsel or respond to the court’s Order. On January 16, 2015, the court dismissed Flo-Ronke’s appeal. On April 9, 2015, Flo-Ronke, represented by the same counsel as in this proceeding, moved to re-open the appellate case. On April 17, 2015, the court denied the motion. It also denied Flo-Ronke’s subsequent motion seeking reconsideration, clarification, a written opinion, and a stay. From the date that the Agency entered the Final Order imposing the fine in DOAH Case No. 14-1939 (AHCA Cases 2014002513 and 2014002514) to the date of the final hearing, Flo-Ronke did not pay the fine. Starting around February 2015, attorney Scott Flint tried, on Flo-Ronke’s behalf, to arrange a payment plan for the fine. He discussed the proposal with Agency Attorney Edwin Selby. Mr. Flint linked the discussions to resolving a separate investigation of Flo-Ronke that the Agency was conducting. Mr. Flint never offered unconditional payment of the fine on behalf of Flo-Ronke. Mr. Flint testified that at some point during conversations about the two cases, Mr. Selby said the Agency would not accept full payment if it was offered. Mr. Selby testified that he did not make this statement. Mr. Selby’s testimony is more credible in this instance, as it is in other instances when Mr. Selby’s testimony differed from Mr. Flint’s. One reason Mr. Selby’s testimony is more credible is that on February 11, 2015, after the time Mr. Flint says Mr. Selby made the statement, Mr. Flint wrote Mr. Selby a letter proposing an installment plan for paying the fine. The letter did not mention the alleged statement that the Agency would not accept payment. The proposal and the failure to mention the alleged refusal are inconsistent with the assertion that Mr. Selby said payment would not be accepted. Also, Mr. Flint hedged his testimony about the alleged refusals, noting that lawyers say many things during negotiations. Mr. Selby’s testimony about conversations after the February 11 letter is also more credible. Mr. Selby never said that the Agency would not accept full payment if it were tendered. The clear and convincing evidence proves that from the date the Agency entered the Final Order to the date of the final hearing, Flo-Ronke never tendered full and complete payment of the fine to the Agency. Flo-Ronke, despite its assertions during pre-hearing motion practice, did not offer any evidence that could be reasonably be interpreted as proving that Flo-Ronke tendered full payment of the fine or that the Agency refused the payment. Even Mr. Flint’s testimony, if fully credited, is not evidence that Flo-Ronke tendered full payment or that the Agency refused full payment. Background Screening At all relevant times, Florida law required level two background screening of any person seeking employment with a provider whose responsibilities may require him to provide personal care or other services directly to clients or who will have access to the client living area. § 408.809(1)(e), Fla. Stat. (2014). Individuals who have disqualifying offenses may not hold positions where they provide services to clients or will have access to client living areas. Florida law also requires re-screening every five years after employment. § 408.809(2), Fla. Stat. (2014). Agency surveyor, Laura Manville, surveyed Flo-Ronke and its records on September 2, 2014. At that time, F.M. was employed there. Flo-Ronke employed F.M. since at least 2009. F.M.’s duties included caring for residents. In addition, even when performing non-caretaking duties, such as grounds-keeping and maintenance, F.M. had unsupervised access to the residents and their living area. F.M. was adjudicated guilty of a disqualifying sex offense on October 28, 1999. Flo-Ronke’s records did not document the required level 2 background screening of F.M. when reviewed on September 2, 2014. At that time, Ms. Manville told Ms. Akintola of the deficiency and that F.M. was not eligible to work at the ALF. This was not the first time the Agency advised Ms. Akintola of the deficiency. By letter dated October 2, 2009, the Agency advised that background screening of F.M. had revealed he had a disqualifying criminal offense. It advised Flo-Ronke that it must either terminate the employment of F.M. or obtain an exemption from disqualification. Flo-Ronke did neither. Ms. Manville conducted a follow-up survey on September 10, 2014. Despite the notice given on September 2, 2014, F.M. was still present at the facility performing grounds work and had access to client living areas. Ms. Akintola presented testimony and a single document attempting to prove that F.M. passed background screening in 2010. The document appears to show a determination of no background screening violation in 2010. Why it differs from other documents from 2009 and after 2010 is not explained. The circumstances surrounding the document are somewhat mysterious. It does not appear in the Agency files. On September 2, 2014, Ms. Akintola did not mention it. On that day, she said she thought F.M. did not need to satisfy screening requirements because he had worked for so long at Flo-Ronke. More importantly, the issue is whether F.M. was employed in 2014 in violation of the background screening requirements. The clear and convincing evidence, including evidence of the conviction in the background screening database, the continued employment of F.M. after September 2, 2014, and the letter of October 2, 2009, proves that in 2014 F.M. had a disqualifying offense and did not have an exemption from the disqualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the application of Flo-Ronke, Inc., for renewal of its ALF license. Jurisdiction over the Motion for Fees and Costs is retained for further appropriate proceedings once the prevailing party has been determined. DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 30th day of October, 2015.
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated August 14, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of the administrative complaint, Respondent was registered or eligible for registration as a service warranty sales representative in this state. The Respondent is currently registered or is eligible to be registered in this state as a service warranty sales representative. Prior to November 22, 1988, Respondent was employed by Comfort Air Conditioning, Inc. (Comfort). Respondent was not an officer of that company and did not have an ownership interest in that company. Respondent was employed as the sales representative for Comfort. The Department authorized Comfort to transact business as a service warranty association on October 25, 1985. Comfort had renewed its qualification for the period June 2, 1988 through June 1, 1989. The application for state registration was executed by Respondent on June 29, 1988. On or about November 22, 1988, Comfort surrendered its license to sell service warranties in the State of Florida. The letter executed by Comfort's president, Herbert Bell, was received by the Department on November 28, 1988, which became the effective date of surrender. Subsequent to that date, Comfort was not authorized to sell service warranties. Sometime prior to November 22, 1988, Respondent had authorized the use of his signature on printed forms which were mailed by Comfort to its service warranty customers or to its potential customers. The purpose of the form, a contract, was to secure the renewal of existing service agreements or to obtain new customers. The term of the service contract was for a period of one year. On or about November 22, 1988, Respondent knew that Comfort was not authorized to sell service warranties. Respondent believed that Comfort was entitled to service the contracts that it had issued or renewed prior to that date. Comfort mailed several thousand contracts to customers prior to November 22, 1988. Respondent did not have a list of the persons to whom the contracts were mailed. Respondent did not attempt to contact the persons who received the Comfort contracts to advise them that Comfort had surrendered its license. On November 23, 1988, Irving Weintraub executed the Comfort contract for warranty service and remitted a check in the amount of $127.20 payable to Comfort for the services requested. This check was deposited to Comfort's account on November 30, 1988. Mr. Weintraub was not aware that Comfort had surrendered its license. The contract executed by Mr. Weintraub bore Respondent's signature and was to run for the period January 1 through December 31, 1989. Mr. Weintraub did not receive service from Comfort for that period. On December 1, 1988, Reva Cole remitted a check in the amount of $127.20 payable to Comfort in connection with her service warranty agreement. Her agreement was to run from December 1, 1988 through November 30, 1989. The contract bore Respondent's name. Mrs. Cole did not receive service from Comfort for the period of her service warranty. On December 1, 1988, Ruth Schwartz remitted a check in the amount of $127.20 payable to Comfort in connection with her service warranty agreement. Mrs. Schwartz' agreement was to run from December 2, 1988 through December 1, 1989. This agreement also bore Respondent's name. Mrs. Schwartz did not receive service from Comfort for that period. Each of the customers named in paragraphs 8, 9, and 10 resided in a development known as Quadomain IV. This condominium complex is located in Hollywood, Florida, and was one of Respondent's marketing areas. On or about November 8, 1988, Respondent sent letters to unit owners at Quadomain. This letter solicited their service warranty business on behalf of Comfort and included an application form together with a price listing. In December, 1988, Respondent became licensed as a sales representative for Florida Appliance Service Technicians, Inc. (FAST), a service warranty company. In February, 1989, FAST wrote to unit owners at Quadomain to solicit their service warranty business. That correspondence represented that Respondent had become associated with FAST on December 21, 1988, and that FAST had purchased Comfort's records and computer equipment. The letter provided: As an introductory and transition special, we are offering, that if you renew your annual contract with us NOW, (to take effect after your present COMFORT contract expires) we will provide you service AT NO CHARGE for the unexpired portion of your present COMFORT contract for the same price and conditions you presently enjoy, with no interruption of service to you. A GREAT SAVING. Subsequent to the letter from FAST, Mrs. Cole and Mrs. Schwartz purchased service warranties from FAST. Respondent's primary efforts were to assure that FAST obtained as many of Comfort's customers as possible.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Office of the Treasurer, Department of Insurance enter a final order imposing an administrative fine against Respondent in the amount of $600.00. DONE and ENTERED this 16 day of March, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of March, 1990. APPENDIX TO CASE NO. 89-5704 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 5 are accepted. Paragraphs 6 and 7 are rejected as contrary to the weight of the evidence. Respondent allowed the use of his signature on the printed forms; however, Respondent did not Personally solicit the contract or sell the contract as Suggested in the proposed findings. Paragraphs 8 through 10 are accepted. Paragraphs 11 and 12 are rejected as contrary to the weight of the evidence. See the comment 2. above. Paragraphs 13 through 16 are accepted. Paragraphs 17 and 18 are rejected as contrary to the weight of the evidence. See comment 2. above. Paragraphs 19 through 25 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Clyde W. Galloway, Jr. Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Jules Dwight Poiret 4163 Coral Springs Drive Fort Lauderdale, Florida 33065 Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue is whether Petitioners' applications for reimbursement from the Securities Guaranty Fund should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: These cases involve claims by Petitioners, Clyde and Patti Gallo (Case No. 98-3765) and Richard and Belinda Morin (Case No. 98-3766), for payment from the Securities Guaranty Fund (Fund) for monetary damages suffered as a result of violations of the Florida Securities and Investor Protection Act by William Anthony McClure (McClure). When the violations occurred, McClure was a registered associated person employed by Schneider Securities, Inc. (Schneider), a Colorado corporation registered as a securities dealer in the State of Florida. The Fund is administered by Respondent, Department of Banking and Finance (Department), which must approve all applications for payment from the fund. Undisputed Facts Regarding the Gallo's Claim McClure served as manager for Schneider's branch office in Gainesville, Florida. On February 26, 1993, the Gallos deposited the sum of $213,978.10 with Schneider to open an account for investment purposes. McClure executed a Letter of Authorization dated March 18, 1993, for the transfer of $30,000.00 from the Gallo's brokerage account without the Gallo's authority. This money was then transferred to Buddy Miller, who paid McClure $5,000.00 for the delivery of the money. McClure subsequently obtained ratification of the transfer of monies from the Gallo's account by representing to Mr. Gallo that the transaction was a "factoring arrangement" and that the investment of monies would be "secure." McClure made the foregoing representations at a time when he knew that Miller was insolvent, that he was paying him a kickback, and that the money had already been transferred from the Gallo's account. McClure did not disclose this information to the Gallos. The Gallos lost the entire $30,000.00 appropriated by McClure from their account with Schneider. In February 1995, the Gallos filed a five-count complaint with the Circuit Court of the Eighth Judicial Circuit against McClure and Schneider. They also served a treble damage notice to McClure under Section 772.11, Florida Statutes. McClure did not make restitution within 30 days from receipt of notice in order to avoid liability for treble damages. In April 1996, the Gallos received the sum of $40,000.00 from Schneider in a mediated settlement. This amount covered their loss of principal. On August 19, 1996, an Amended Final Judgment awarded the Gallos the sum of $30,000.00 in compensatory damages. This amount was then trebled to $90,000.00 pursuant to Section 772.11, Florida Statutes. The Amended Final Judgment subtracted the sum of $40,000.00 received from Schneider from the $90,000.00 in trebled damages for a total of $50,000.00 plus statutory interest of $9,999.00, or a total of $59,999.00 against McClure. On December 4, 1996, a Final Judgment awarded the Gallos the sum of $20,878.50 in attorney's fees and the sum of $1,312.06 in court costs against McClure. The parties agree that these amounts are not recoverable from the Fund. On July 11, 1998, the Gallos submitted a claim to the Department seeking to recover $10,000.00 of the treble damages they were awarded pursuant to Section 772.11, Florida Statutes. This claim was denied by the Department on July 28, 1998, on the ground that a claimant cannot recover treble damages from the Fund. Undisputed Facts Regarding the Morin Claim In January 1993, Richard and Belinda Morin deposited the sum of $231,862.59 with Schneider to open an account for investment purposes. McClure was the account executive for Schneider who handled the Morin's brokerage account. In mid-March 1993, McClure contacted Mr. Morin to suggest an investment that he represented as being "secure" and "short-term." McClure described the investment to Morin as a "factoring security" of an account receivable of a major manufacturing concern that was secured by the guaranteed payment of the invoice. The investment suggested by McClure to Morin was really an unsecured loan to a small outdoor furniture manufacturer in Central Florida known as Cypress Originals (Cypress). Cypress was then in severe financial distress which fact was not disclosed to Morin by McClure. On March 5, 1993, or prior to the above discussion, McClure had forged Morin's signature on a Letter of Authorization for the transfer of $25,000.00 from the Morin's brokerage account with Schneider and forwarded the money to Cypress. In June 1993, McClure appropriated an additional $20,000.00 from the Morin's brokerage account into his own personal account or to an account owned and controlled by him. The Morins lost the entire $45,000.00 appropriated from their account. In February 1995, the Morins filed a five-count complaint in the Circuit Court of the Eighth Judicial Circuit against McClure and Schneider. They also served a treble damage notice to McClure under Section 772.11, Florida Statutes. McClure did not make any restitution within thirty days after receipt of the notice in order to avoid liability for treble damages. In February 1997, the Morins received $45,000.00 from Schneider in a mediated settlement. This amount covered their loss of principal. On July 2, 1997, the Morins were awarded the sum of $45,000.00 in compensatory damages. This amount was trebled to $135,000.00 pursuant to Section 772.11, Florida Statutes. The Final Judgment awarded the Morins the sum of $90,000 ($135,000.00 in trebled damages less $45,000.00 received from Schneider), prejudgment interest of $48,397.20, court costs of $9,001.67, and attorney's fees of $32,410.00 against McClure. The parties agree that the court costs and attorney's fees are not recoverable from the Fund. On June 11, 1998, the Morins submitted a claim with the Department seeking to recover $10,000.00 of the prejudgment interest award. On July 28, 1998, the Department issued its proposed agency action denying the claim on the ground that prejudgment interest cannot be recovered from the Fund. The Department's Interpretation and Practice The Department interprets the term "actual or compensatory damages," as used in Section 517.141(1), Florida Statutes, to mean only the principal amount of the loss by the investor. The Department has never approved a claim against the Fund for any damages other than the actual loss of principal. Under the Department's interpretation of "actual or compensatory damages," prejudgment interest and trebled damages would be excluded from being recovered from the Fund.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order denying the applications of Clyde and Patti Gallo and Richard and Belinda Morin for reimbursement from the Securities Guaranty Fund. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of February, 1999. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Steven D. Spivy, Esquire 230 Northeast 25th Avenue Suite 200 Ocala, Florida 34470-7075 Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 526, Fletcher Building Tallahassee, Florida 32399-0350 Harry L. Hooper, III, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
The Issue The issue is whether Petitioners, Judith C. Cleary and Charles B. Houck (Petitioners or Ms. Cleary and Mr. Houck), are entitled to an award of attorney's fees against Respondent, Department of Financial Services (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).1/
Findings Of Fact The underlying proceedings were initiated by Respondent on February 22, 2010, by the issuance of substantively identical Administrative Complaints against Petitioners. Petitioners timely requested administrative hearings to contest the charges against them, and the cases were forwarded to the Division of Administrative Hearings where they were consolidated for hearing. Count 1 of each Administrative Complaint charged Petitioners with willfully misrepresenting and or omitting material information in order to induce Mr. and Mrs. Nagle to cash in another annuity they held in order to purchase an annuity sold by Petitioners. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when in fact there would be a 15 percent surrender charge; falsely representing that the annuity would earn the Nagles ten to 20 percent returns; and (3) misrepresenting the suitability of the Nagles to purchase the annuity by misrepresenting the Nagles' net worth and by misrepresenting the Nagles' investment objective as long-term, in a form Petitioners submitted to the insurance company issuing the annuity. Count 2 of each Administrative Complaint charged Petitioners with similar conduct in order to induce the Nagles' son, Robert, to purchase an annuity. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when, in fact, there would be a 15 percent surrender charge; and falsely representing that the annuity would earn Robert Nagle ten to 20 percent annual returns. Petitioners do not dispute that if the allegations charged in the Administrative Complaint had been proven by clear and convincing evidence, then Respondent would have established the statutory violations alleged as the predicate for taking disciplinary action against Petitioners' insurance agent licenses. Petitioners also acknowledge that Respondent initiated the disciplinary actions against them on the basis of two complaint letters received by Mrs. Phyllis Nagle, the attestation of Mrs. Nagle to the material allegations in an affidavit, and a corroborating complaint letter by Mrs. Nagle's son, Robert Nagle. After a full evidentiary hearing, a Recommended Order issued in the underlying disciplinary actions determined that the more credible evidence failed to establish the allegations in the Administrative Complaints. In particular, the undersigned weighed the credibility of testimony by Robert Nagle and by Petitioners at the final hearing, as well as deposition testimony by both Mr. and Mrs. Nagle. The question posed in this case, however, is not whether credibility judgments caused the Department to ultimately not prevail in its charges against Petitioners. Instead, the question here is whether Respondent had a reasonable basis, in law and in fact, at the time it initiated the underlying disciplinary actions. In this regard, Petitioners contend that the Department's investigation file contained documents from the insurance company issuing the annuities that contradict the allegations in the Administrative Complaints. Petitioners point to three documents in particular. The first document was a customer survey response submitted by Mrs. Nagle to the insurance company after she purchased the annuity from Petitioners. Her completion of the survey form indicated that she knew that "[s]urrender charges are imposed on premature full withdrawal"; that she considered the "annuity to be a long-term investment"; that she did "not intend to use these funds to meet current expenses"; and that Petitioners reviewed her "financial status . . . and other pertinent information to determine whether this annuity purchase" was suitable to her. The other document claimed to contradict the allegations in the Administrative Complaints was the Nagles' annual statement showing a yield of 5.66 percent, which was different than the 2.6 percent yield claimed by Mrs. Nagle in her complaint letters or affidavit. Finally, Petitioners point to statements of understanding signed by the Nagles, showing the surrender charges that would be imposed for early withdrawals. None of these documents conclusively refute the charges in the Administrative Complaint. For example, with respect to surrender charges, the Nagles' complaints assert that Petitioners represented that there would be no surrender charges for a withdrawal after one year. Mrs. Nagle's survey form only acknowledged that there would be surrender charges for "premature" withdrawal. It certainly would have been possible to reconcile these two concepts in that Mrs. Nagle may have been thinking that "premature" withdrawal, as used in the survey form, was a withdrawal in less than one year. The response in the survey form to the "surrender charge" question does not conclusively contradict Mrs. Nagle's complaint and affidavit, nor does it conclusively contradict the allegations in the Administrative Complaint. Similarly, the responses in the survey form about suitability do not conclusively contradict the allegations in the Administrative Complaint. The annual statement likewise does not conclusively contradict the allegations in the Administrative Complaint, even though the yield shown is somewhat different from the yield Mrs. Nagle referred to in her complaint. Whether the yield was actually 2.6 percent or 5.66 percent, the material allegations in the Administrative Complaint were that Petitioners misrepresented that the yield would be 10 to 20 percent per year. These allegations and the complaints on which they were based, were not so plainly lacking in credibility that no reasonable agency would have proceeded with charges. Finally, the signed statements of understanding showing that surrender charges would be imposed for early withdrawals do not contradict the Nagles' complaints or the allegations in the Administrative Complaint. Although the undersigned ultimately found against the credibility of the Nagles' complaints, those complaints were that Petitioners made oral representations assuring the Nagles that there would be no surrender charges after one year, even though the policy forms themselves said otherwise. The ultimate lack of credibility of the complaining witnesses' testimony was not so clear that no reasonable agency would have prosecuted the claims. In short, Respondent had a reasonable basis in law and in fact, following a reasonable investigation, to make the allegations and to charge the statutory violations it did in the Administrative Complaints. The documentation gathered in the investigation did not conclusively contradict the factual allegations, and the credibility of the complainants was not so obviously lacking that no reasonable agency would have made the allegations in the Administrative Complaints. And it is beyond dispute that if those factual allegations had been proven, the charged statutory violations would have been established. Thus, it cannot be said that Respondent's action in initiating the disciplinary proceedings against Petitioners was unreasonable governmental action.
The Issue The issue presented for decision herein is whether or not Petitioner, by failing to disclose an arrest conviction and sentencing on a license application (as the applicant administrator), constitutes grounds for revocation of an ACLF license granted pursuant to that application as provided in Section 400.414(1), (2), (b), Florida Statutes.
Findings Of Fact Petitioner applied for an initial ACLF license on or about April 10, 1985 and a license was issued pursuant thereto on July 17, 1985. In Section 4 of the initial license application, the question is asked "have you ever been arrested or convicted of a crime involving injury or harm to persons, or financial or business management (e.g., assault, battery, robbery, embezzlement or fraud)". Applicant Lorraine Cooney, answered "no" and marked the section seeking further information about such arrest or conviction: "N/A". In fact, applicant Cooney's 1986 renewal application filed June 7, 1986, indicates that she was convicted in March 5, 1985, in Federal Court of Income Tax Fraud. Specifically, a review of a letter from Ms. Cooney's U.S. Probation Officer, Terry M. Levix, indicates that Ms. Cooney pled guilty on January 4, 1985 to two counts of a two count indictment charging that she filed a fraudulent claim to the United States Treasury and was placed on two years probation effective February 5, 1985. Ms. Cooney did not contest the conviction of the fact that she was placed on probation. At hearing, applicant Cooney admitted the facts of the arrest and conviction but contested the revocation of her license based on her contention that she has operated the facility in accordance with all applicable standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's appeal of the Department's revocation of her ACLF license be DENIED. RECOMMENDED this 20th day of June, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 20th day of June, 1988. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of HRS 5190 Northwest 167th Street Miami, Florida 33014 Joaquin J. Iglesias, Esquire 2001 Northwest 7th Street Suite 303 Miami, Florida 33125 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The question presented in this case is whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291.
Findings Of Fact Robert Burgess (Burgess) was the Santa Rosa County Property Appraiser from 1984 until December 31, 2000. He continues to reside in Santa Rosa County. Leon Cooper (Cooper) is a former employee of Robert Burgess, and qualified as a candidate for the Property Appraiser of Santa Rosa County on April 12, 2004, to run against the incumbent, Greg Brown (Brown), the Petitioner in this case. Brown was elected and took office on January 1, 2001, and in 2004 was running for re-election for the first time. Burgess supported Cooper's candidacy and opposed Brown's re-election bid in 2004. On April 12, 2004, the day Cooper qualified to run, Burgess signed an ethics complaint to the Florida Commission on Ethics alleging that Brown had reinstated a religious tax exemption for the Spiritual Life and Healing Waters church on November 14, 2003, and deleted taxes assessed against said church for the tax years 2000 through 2003. Burgess alleged that Brown did this corruptly in return for the political support of the owner of the church, Ms. Lovie Grimes in the 2004 election. He further alleged that Brown also did this to garner the support of Grimes to have Cooper terminated as an employee of the Florida Department of Revenue. Burgess filed his complaint in concert with that of Hilton Kelly, who is the subject of a companion case considered at the same time as this case, but the subject of a separate order, involving alleged favors regarding another property owner. Both complaints were motivated by the desire to impugn Brown's character and the performance of his elected duties, i.e., to injure Browns reputation. The Burgess complaint was fully investigated by the Commission. The investigation revealed that, prior to Burgess' leaving office, a determination to eliminate the tax exemption for the Spiritual Life and Healing Waters Church was made. The investigation revealed that notice that the exemption was eliminated was not provided to the property owner, Grimes. The lack of proper notice occurred during Burgess' tenure in office. Taxes were assessed as a result of this action by Burgess and Brown, and after Brown came into office, Grimes was notified of the pending tax sale of tax liens against her property. Grimes protested, stating that she had not received notice of the assessment of taxes. Brown caused this matter to be investigated by a member of his staff, Chief Deputy Property Appraiser Lorenzo Law Drinkard (Drinkard). Drinkard looked into the matter and determined that notice had not been given, and visited the church where he found pews, religious materials, and a piano. Although services were not being conducted at the time he was there, Drinkard concluded that it was obviously being used as a church. Drinkard determined on November 14, 2003, that the exemption should be re-instated because it was being used as a church and the taxes assessed be eliminated because notice had not been provided. Burgess, as the former Property Appraiser, was uniquely aware of the legal necessities and requirements in granting and removing exemptions. His office failed to provide the required notice to the owner of the elimination of the exemption for property used for religious purposes. During his tenure as Property Appraiser, Burgess had no direct contact with the Spiritual Life and Healing Waters Church regarding the factual basis for removal of the religious tax exemption. Burgess did not examine the public records of his former office to determine the basis for re-instating the exemption. The record reflects that Brown did not write the Department of Revenue about Cooper improperly engaging in campaign activities on state time until February 13, 2004. Burgess knew that determination to re-instate the exemption in question was made on November 14, 2003, and he knew that Brown's letter of complaint to the Department of Revenue regarding Cooper's alleged improper campaigning was on February 13, 2004. Therefore, Brown's alleged motivation in granting the exemption as it might have related to any support for Grimes' support with the Cooper complaint is sequentially impossible. Burgess did make this complaint in concert with the complaint by Kelly for which he provided copies of the records of the Property Appraiser's office. It is clear from the timing that Burgess' motivation was to impugn Brown's reputation. Burgess lacked a factual predicate to assert that Brown's re-instating the religious exemption was done corruptly, was done to improperly influence Grimes and in return for her political support, or to garner her support for Brown's complaint against Cooper. Affidavits were presented in support of attorney fees and costs, and their reasonableness. The Proposed Recommended Order restated those amounts as 94.4 hours at a rate of $175 per hour. The total provided in the Proposed Order was $17,079.50; however, 94.4 times $175 equals $16,250. If one considers that the difference is attributable to law clerks, if one subtracts $16,250 from $17,079, the balance of $559.46, which divided by 8.1 hours for clerks, equals $69.06 per hour for law clerks, which is a reasonable rate. The costs incurred by the attorneys in defending the action and presenting this case were $5,366.56, which are reasonable.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter its final order awarding the Petitioner the amount of $17,079.50 in attorneys' fees and $5,366.56 in costs. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 31st day of January, 2006. COPIES FURNISHED: Albert T. Gimbel, Esquire Mark Herron, Esquire Messer, Caparello & Self, P.A. 215 South Monroe Street, Suite 701 Tallahassee, Florida 32301 Joseph Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Kaye Starling, Agency Clerk Commission of Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission of Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
