Findings Of Fact On and after May 29, 1978, respondent Patricia Bose Haischer has been licensed by petitioner as a licensed practical nurse. She holds license No. 0482051. On May 1, 1981, an information was filed in the Circuit Court for the Sixth Judicial Circuit in Case No. CRC 8103052 CFANO (Pinellas County) charging respondent with "knowingly. . .commit[ting] a lewd and lascivious act in the presence of Yvonne Moir, a child under the age of fourteen years, by willfully and knowingly engaging in sexual activity in the presence of. . .Yvonne Moir. . .but without intent to commit sexual battery upon. . .Yvonne Moir." Petitioner's Exhibit No. 2. On her plea of guilty, respondent was adjudicated guilty of violating Section 800.04, Florida Statutes (1981), on August 19, 1981; and, on the same date, respondent was sentenced to twelve years' imprisonment. At the time of the hearing, respondent was confined at the Florida State Prison for Women. According to respondent's uncontroverted testimony, elicited in petitioner's case, she never fondled Yvonne Moir but was present and undressed while her husband had sexual intercourse with the child; she acted under the domination of her husband (who is now himself incarcerated for sex offenses) and was not altogether well emotionally at the time. Yvonne Moir was not in respondent's care as a nurse when these events transpired. Respondent's misbehavior evinced a disregard for Yvonne Moir's emotional health and reflects adversely on respondent's ability to practice nursing, for that reason. This opinion was expressed by a nurse with eighteen years' experience who testified for petitioner without objection from respondent. As a nurse, respondent has never harmed a patient or put a patient in jeopardy. She has had good recommendations from anybody who has ever supervised her, and one supervisor called her "trustworthy and dependable." During her imprisonment, respondent has visited a psychologist on a regular basis. She feels better and more confident about herself than she did at the time of the offense.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent suspend petitioner's license for two (2) years. DONE AND ENTERED this 20th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 April, 1982. COPIES FURNISHED: Patricia B. Haischer Box 202 F.C.I. Lowell, Florida 32663 William R. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF NURSING IN RE: PATRICIA MARIE B. HAISCHER, L.P.N. CASE NO. 0017303 License No. 0482051 DOAH NO. 81-3149 /
Findings Of Fact Petitioner retired under the provisions of the Florida Teacher Retirement System (TRS) on October 1, 1988. Prior to her retirement, Petitioner had been employed as an accounting instructor by Broward Community College (BCC). BCC is a tax-supported institution of higher learning in the State of Florida which participates in the Florida Retirement System. All instructional personnel at BCC are classified as "instructors". There is no job classification of "teacher" used by BCC. On December 14, 1988, Petitioner worked three hours as a substitute instructor at BCC and was paid $61.35. On March 17, 1989, Petitioner worked five hours as a substitute instructor at BCC and was paid $102.25. petitioner worked -as a substitute instructor at the request of personnel at BCC. Prior to agreeing to substitute on these two occasions, Petitioner had read and had relied on certain information provided by Respondent to retirees from the Florida Retirement System (FRS) and from the Florida TRS. That information was contained in a pamphlet published October 1987 entitled "Florida Retirement System - After You Retire" and the 1988 Supplement to that publication. Petitioner was aware that retirees from the TRS could not receive both a salary from a participant in the FRS and retirement benefits from TRS. Petitioner was aware that the pamphlet published October 1987 discussed two exceptions that did not apply to her situation. Petitioner construed a third exception, discussed in the 1988 Supplement, as authorizing her to be1 reemployed as a substitute instructor at BCC without that reemployment interfering with her retirement benefits. The 1988 Supplement discussed the third exception as follows: A third exception to the reemployment law was provided by 1988 legislation. After being retired and "off the payroll" for one calendar month, FRS and TRS retirees may work for 780 hours of the first 12 months as an hourly teacher on a noncontractual basis. The language from the 1988 Supplement which discusses the third exception to the reemployment law provided by 1988 legislation and upon which Petitioner relied fails to advise the retiree that the exception is limited to teachers employed by district school systems. This failure lead to Petitioner's misunderstanding as to the scope of the exception. Following an audit, Respondent advised Petitioner by letter dated September 21, 1989, that she was not entitled to payments of retirement benefits for the months of December 1988, January 1989, and March 1989, because she had been reemployed by BCC during those months. Respondent demanded that Petitioner repay the sum of $3,270.41 that she had received for those three months. On November 15, 1989, Respondent advised Petitioner by letter that it had revised its determination and that only the months of December 1988 and March 1989 were in dispute. Respondent demanded reimbursement of the sum of $2,173.54, the amount of the retirement benefits paid to Petitioner for the months of December 1988 and March 1989. Petitioner timely requested a formal hearing to challenge Respondent's determinations in this matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent enter a final order which finds that Petitioner received overpayment of retirement benefits for December 14, 1988, and for March 17, 1989, due to her reemployment by Broward Community College and which requires her to repay the retirement benefits she received for December 14, 1988, and for March 17, 1989. DONE AND ENTERED this 12 day of March, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-6853 The following rulings are made on the proposed findings of fact submitted by Respondent. end The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 1 of the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 3 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraphs 5-7 are rejected as being recitation of testimony and as being subordinate to the findings made. COPIES FURNISHED: Nellie E. Dry, pro se 1501 South Ocean Drive, M804 Hollywood, Florida 33019 Stanley M. Danek, Esquire Department of Administration 2639 North Monroe Street Building C Tallahassee, Florida 32399-1560 Shirley Hoefer Broward Community College 225 East Las Olas Boulevard Ft. Lauderdale, Florida 33301 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated April 17, 1990, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulation of the parties and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating the practice of nursing in the State of Florida. At all times material to this case, the Respondent has been a licensed practical nurse, having been issued license number PN 0914071. On October 27, 1988, the Board of Nursing (Board) issued a license to practice to Respondent and placed him on probation subject to specific terms and conditions for a period of two years. One of the conditions of Respondent's first year of probation required that he be directly supervised by a registered nurse when administering a narcotic. During the period July 15-16, 1989, Respondent worked two shifts in the oncology ward at Orlando Regional Medical Center (ORMC) in Orlando, Florida. During these shifts, Respondent administered approximately seventeen narcotic doses without being directly supervised by a registered nurse. The administration of narcotics described above were performed during Respondent's first year of probation. Policies in effect at ORMC during the period July 15-16, 1989, did not require that a licensed practical nurse be directly supervised when administering narcotics. Respondent's supervising head nurse at ORMC was unaware of the probationary condition requiring that Respondent be directly supervised during the administration of narcotics. A further condition of Respondent's probation required that he notify the Board's probation supervisor of any changes in his telephone number and/or employment within ten days of such change. On or about April 26, 1989, the Respondent notified the Board that he had been employed for Health Care of Orlando since approximately January, 1989, and for St. Cloud Hospital since approximately January 9, 1989. Such notification was not made within ten days of the change in employment. In July, 1989, the Respondent notified the Board of additional changes in employment and with his telephone number. This notification also was not made within ten days of the change. On or about May 11, 1989, the Respondent filled out an employment application with Allied Health Card Consultants, Inc. One of the questions posed on that application asked: "Have any of your professional licenses ever been under investigation?" Respondent answered the foregoing question: "no". Another question posed on the application asked: "Is there any reason you would be unable to perform the duties of your position?" In response, Respondent again answered: "no". On or about August 11, 1989, Respondent gave a copy of the final order setting forth his conditions of probation to Allied Health Care. At all times material to the allegations of this case it was the policy of ORMC not to hire any agency staffed nurse who was on probation status with the Board since all such staff are required to perform all duties without restrictions.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of having violated a term of his probation set forth in the prior final order enter by the Board, contrary to Section 464.018(1)(1), Florida Statutes, imposing an administrative fine in the amount of $500.00, and suspending the Respondent's license for a period of two years. DONE and ENTERED this 24th day of June, 1991, 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 24th day of June, 1991. APPENDIX CASE NO. 90-8047 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1 and 2 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent's findings of fact begin with the paragraph numbered 9 Paragraph 9 is accepted. Paragraph 10 is accepted. The first sentence of paragraph 11 is accepted. The remainder of the paragraph is rejected as contrary to the height of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as comment, argument, or irrelevant. COPIES FURNISHED: Tracey S. Hartman Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 C. Michael Magruder The Monument Building 22 W. Monument Avenue Kissimmee, Florida 34741 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202
Findings Of Fact Respondent is the state agency responsible for the licensure of community association managers. Petitioner, Anthony G. DiCarlo, submitted to Respondent an Application for Licensure as a Community Association Manager dated August 25, 1992. Respondent issued a Notice and Order of Rejection of the application on February 2, 1993. Licensure as a community association manager is required for a person performing in the State of Florida community association management services to one or more associations containing 50 units or having an annual budget or budgets in excess of $100,000. The purpose of the community association manager licensing and regulation statute is to protect the public in general, and community association members in particular. The statute is a consumer protection measure designed to provide some assurance to associations that a licensed manager will be trustworthy and have a certain level of competence. A community association manager performs duties which require specialized knowledge, judgment, and managerial skill. The community association manager typically manages the financial affairs of a community association, including the accounts receivable and the accounts payable. The manager usually writes checks, disburses association funds, invests the reserve funds, prepares the budget, and monitors the budget. Depending on the size of the association, a community association manager may have access to substantial sums of money in the form of cash, credit cards, and checking accounts. Some community association managers manage associations with a large number of absentee owners. Because of lessened oversight, those managers often have increased authority and responsibility. Pursuant to Section 468.433(4), Florida Statutes, an applicant must possess good moral character and pass an examination to be entitled to licensure as a community association manager. Rule 7D-55.004(3), Florida Administrative Code, has been duly adopted by Respondent and provides, in pertinent part, as follows: (3) Good Moral Character. (a) When the application has been determined to be in acceptable form, the division shall evaluate the application and make approp- riate inquiry to determine the applicant's moral character. For the purpose of this rule the division shall consider the follow- ing factors as bearing upon good moral character: The affirmation of at least three char- acter references furnished by the applicant for 3 years or longer . . . The completion of a criminal history check by the Florida Department of Law En- forcement that reveals no convictions of a felony or of a misdemeanor involving moral turpitude. . . . * * * Other relevant information generated in the course of the application process which bears upon the applicant's moral character. * * * (5) If upon completion of its evaluation of the moral character of an applicant, the division concludes that the applicant does not posses good moral character, the division shall proceed as provided in rule 7D-55.001 (1), Florida Administrative Code. Rule 7D-55.0011(1), Florida Administrative Code, provides as follows: The division, prior to taking final agency action which may adversely affect the substantial interests of a person, including but not limited to the denial of a license application, shall notify that person of the intended agency action and of his right to a formal hearing or an informal proceeding as provided by section 120.57, Florida Statutes, and chapter 7-4, Florida Admini- strative Code. Faye Mayberry, bureau chief of Respondent's Bureau of Condominiums, testified as to Respondent's policies. It is Respondent's policy to determine that an applicant has good moral character before permitting the applicant to sit for the licensure examination. Respondent has consistently denied licensure to applicants who have committed a theft-related felony or who have shown a pattern of disregard for the law. Respondent does not consider such facts to be a permanent bar to application, but it has adopted no policy as to the evidence of rehabilitation an applicant must establish following the conviction(s) before Respondent will determine that an applicant has been rehabilitated. Instead, Respondent makes a determination as to whether an applicant has established that he has good moral character on a case by case basis. Respondent considers all information that has been made available to it in making its determination. Item 14 on the form application for licensure requires the applicant to answer the following: "Have you ever been convicted of a crime, found guilty, or entered a plea of nolo contendre (no contest) even if adjudication was withheld?" Petitioner answered that question in the affirmative. Thereafter the form instructs an applicant who has answered the question in the affirmative to ". . . attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." In response to those instructions, Petitioner submitted the following: U.S. Federal Court - Newark, New Jersey 8/11/81 Transporting securities taken by fraud across state lines. Sentenced to five (5) years probation. Awarded early term- ination. County Court - Broward County, Florida 1/8/84 Grand Theft. Sentenced to eighteen (18) months probation. Awarded early term- ination. County Court - Broward County, Florida 3/23/89 Grand Theft. Sentenced to seven (7) years probation. Awarded early termination. On September 24, 1992, Sharon L. Guthrie, Supervisor of Education for Respondent's Bureau of Condominiums, wrote Petitioner about his application and stated, in part, as follows: As part of the application process, the Division is required to make appropriate inquiries to determine the applicant's moral character. Rule 7D-55.004(4), Florida Admini- strative Code, requires the Division to com- plete the moral character evaluation within 30 days after receiving the criminal history check. After reviewing the information on record with the Florida Department of Law Enforcement, it appears that your application was not complete with regard to your criminal history. Based on this information, we are unable to approve your application for licen- sure; however, if you notify us, in writing, that you would like to waive the requirement that the Division complete its evaluation within 30 days, we will continue our evalua- tion of your moral character. In addition, you must provide a complete, signed state- ment of the charges and facts, together with the dates, name and location of the court in which the proceedings were held, and copies of any pertinent court records. In response to the letter of September 24, 1992, Petitioner waived the 30 day requirement and enclosed a copy of the information he had submitted along with his application. He provided no additional information about his criminal history. Ms. Mayberry made the recommendation to Henry M. Solares, Director of the Division of Florida Land Sales, Condominium and Mobile Homes, that Petitioner's application be denied. Ms. Mayberry considered all the information Petitioner submitted in support of his application. There were three reasons for Ms. Mayberry's initial recommendation to deny the application. First, Petitioner had committed three felonies involving theft. Respondent considers theft to directly reflect on the ability of a community association manager to honestly fulfill his or her duties since the manager has the responsibility of managing the association's finances and has access to bank accounts and credit cards. Second, Ms. Mayberry considered that the last crime was committed relatively recently. Third, Ms. Mayberry considered that the multiple convictions indicated a pattern of disregard for the law by Petitioner. Mr. Solares accepted Ms. Mayberry's recommendation and entered on behalf of Respondent on February 2, 1993, a Notice and Order of Rejection, which notified Respondent that Respondent intended to reject his application and provided him with notices as to his rights to contest the intended action. The order found that Petitioner failed to demonstrate his eligibility for licensure as a community association manager. The order provided, in part, as follows: . . . Specifically, in violation of Rule 7D-55.004(3)(a), Florida Administrative Code, relevant information has been generated in the course of the application process which indicates that you have failed to demonstrate good moral character for the following reason: Your criminal history reveals that you have been convicted of a felony directly related to the ability to perform the duties of a community association manager, and you have failed to provide, or been unable to provide, sufficient information to establish your good moral character notwithstanding your conviction. Thereafter, Petitioner timely challenged the intended agency action and this proceeding followed. At the formal hearing, evidence was presented that was not available to Respondent when the initial decision was made to deny the application. This evidence elaborated on Petitioner's criminal history and pertained to efforts by Petitioner to rehabilitate himself. Between 1975 and 1980, Petitioner was employed in a position of trust as an administrator at a New Jersey rehabilitation hospital. During that period of employment, Petitioner embezzled money from his employer by falsifying the hospital's accounts to reflect overpayments and deposited the overpayment in his personal bank account in New Jersey. He then transported the embezzled funds across state lines to his personal bank account in New York. On August 11, 1981, Petitioner entered a plea of guilty in federal court in Newark, New Jersey, of the felony offense of the interstate transportation of securities taken by fraud. He was sentenced to 10 years imprisonment, but the sentence was suspended and he was placed on probation for a period of five years, which he successfully completed. Petitioner contends that his abuse of alcohol during these years contributed to his theft from his employer. The total sum he stole over this extended period of time was not established. On March 9, 1984, Petitioner entered a plea of guilty in Circuit Court in and for Broward County, Florida, to a felony charge of grand theft based on a shoplifting incident. He was adjudged guilty and placed on probation for a period of 18 months. Among the terms of probation was the requirement that he attend AA meetings three times per week. Petitioner successfully completed his probation which included the requirement that he attended AA meetings at Broward Alcoholic Rehabilitative Counseling. Petitioner thereafter resumed his prior abuse of alcohol and cocaine. On March 23, 1989, Petitioner entered a plea of guilty in Circuit Court in and for Broward County, Florida, to two felony counts of grand theft. These thefts occurred over a two year period while Petitioner was employed by Anesthesiology Associates between 1986 and 1988. Using tactics similar to those he used in New Jersey, Petitioner embezzled over $100,000 from his employer. Petitioner was sentenced to seven years probation. The terms of probation included a requirement for community service, payment of restitution, and treatment for drug and alcohol addiction. Petitioner made full restitution over a 21 month period to Anesthesiology Associates, performed 350 hours of community service, and successfully completed the court ordered treatment for alcohol and drug addiction. On January 8, 1991, Petitioner's probation was terminated. On September 19, 1991, the Florida Office of Executive Clemency restored Petitioner's civil rights, except for the right to possess or own a firearm, which were lost by the felony convictions. Petitioner asserts that his criminal activities were the product, in part, to his addiction to alcohol and to cocaine. These addictions resulted, according to Petitioner, because of stress associated with a congenital heart condition. Petitioner underwent open heart surgery in March 1987 to correct this defect. He nevertheless continued to abuse alcohol and cocaine after his surgery. His surgery occurred while he was employed by Anesthesiology Associates, and he continued to embezzle funds from his employer until he was caught. While Petitioner's addictions may have been a contributing factor to his criminal activity, the record in this proceeding fails to establish that his addictions caused his criminal activities. Petitioner was a long time abuser of alcohol and began abusing cocaine when he moved to Florida in 1981. Petitioner has received treatment for his addictions on at least two occasions. The first occasion was as a condition to his probation following the 1984 conviction of grand theft. The second was following the discovery of his thefts from Anesthesiology Associates. Petitioner began extensive alcohol and substance abuse counseling and treatment on an outpatient basis from Clinical Provider Organization, Inc., a private outpatient psychiatric/ psychological clinic in Broward County. He was admitted on November 11, 1988, and discharged on March 20, 1989. Dr. Christopher J. Fichera was the clinical director who supervised Petitioner's involvement in the program, supervised the staff counsellors dealing with him, and treated him on an individual basis. Carol L. Disher, a certified addictions specialist, was the staff person who led Petitioner's group therapy sessions at Clinical Provider Organization. Both Dr. Fichera and Ms. Disher were of the opinion that Petitioner had successfully completed their program. Petitioner was discharged because he had completed the program and because of the condition of probation following the 1989 conviction required that Petitioner participate in an inpatient program. Mr. Cipolla and Rabbi Gross continue to provide support for Petitioner. Although both of these witnesses see Petitioner on a periodic basis, neither has observed any indication that Petitioner has resumed abusing alcohol or cocaine. The greater weight of the evidence establishes that Petitioner is successfully recovering from his addiction to alcohol and cocaine and that he has been alcohol and cocaine free for approximately five and a half years. Petitioner asserts that the testimony of Dr. Fichera and Ms. Disher link the Petitioner's criminal conviction to his alcohol and/or substance abuse. While their testimony may be construed in generalities to support that contention, it is clear that Dr. Fichera was unaware of Petitioner's conviction in New Jersey or his 1984 conviction in Florida. Dr. Fichera learned of the first two convictions when his deposition was taken in connection with this proceeding. Dr. Fichera was of the opinion that the information was significant and may reflect underlying character problems in addition to the addictions. An applicant is required to submit with his or her application three character references on forms supplied by Respondent. Attached to Petitioner's application were completed character reference forms from Beverly Baran, Michael Cipolla, and Rabbi Milton J. Gross. Each of Petitioner's character references testified at the formal hearing and each was of the opinion that Petitioner was presently of good moral character. Beverly Baran and her husband, who is an anesthesiologist, were shareholders in Anesthesiology Associates and met Petitioner when he became employed as the business manager for that business. Ms. Baran and her husband became very friendly with Petitioner and his wife. Ms. Baran was aware of Petitioner's embezzlement from Anesthesiology Associates, but she was unaware of the first two felony convictions. She was told for the first time at the formal hearing of the two prior felony convictions. Ms. Baran testified that she considers Petitioner to presently be of good moral character, and based that opinion on his rehabilitation from alcohol and cocaine. Michael Cipolla was Petitioner's sponsor at AA. He had known Petitioner for approximately eight years as of the formal hearing, and was of the opinion that Petitioner had been alcohol and cocaine free for approximately five and a half years. Mr. Cipolla was of the opinion that Petitioner was presently of good moral character. Mr. Cipolla sees Petitioner on an irregular basis. He testified that he sees him sometimes once a month, sometimes three or four times a month, and sometimes every other month. Rabbi Milton Gross had known Petitioner for approximately 10 years at the time of the formal hearing. Rabbi Gross has provided spiritual counseling to Petitioner at different times. Rabbi Gross was aware of Petitioner's alcohol and cocaine addiction and his past criminal behavior. Rabbi Gross knew of Petitioner's rehabilitation efforts and considered Petitioner to presently be of good moral character. Rabbi Gross sees Petitioner approximately once every three weeks. There was minimal evidence as to Petitioner's employment since his discharge from Anesthesiology Associates.1 Petitioner's generalized testimony as to his employment does not establish the extent of his responsibilities or the extent to which he had access to his employer's financial records, bank accounts, and credit cards. Consequently, the testimony that there have been no allegations of embezzlement since 1988 is insufficient to establish that there has been a change in Petitioner's character. The character witnesses who testified on Petitioner's behalf established that Petitioner has made commendable efforts to rehabilitate himself from alcohol and cocaine addiction. While the sincerity of these witnesses cannot be doubted, their opinion testimony assumed that all of Petitioner's criminal activity was caused by his addiction to alcohol and/or his addiction to cocaine. There was no competent, persuasive evidence to support that assumption, and this testimony does not establish that Petitioner has the moral character to honestly perform the duties and responsibilities of a community association manager. Ms. Mayberry, who attended the formal hearing on behalf of Respondent, was still of the opinion that the application should be denied following the presentation of Petitioner's evidence at the formal hearing. Her initial reasons for rejecting the application had not changed. Ms. Mayberry gave as an additional reason for rejecting the application what she considered evidence of Petitioner's lack of candor during his application process. Respondent asserts that Petitioner was not candid about his cocaine addiction in response to questions posed by Respondent's counsel at his deposition, and that he did not submit evidence of his rehabilitation with his application because it would reveal his prior addiction to cocaine. While he was not as forthcoming as one might expect, Petitioner did not lie in response to questions about his addiction and rehabilitation. He indicated in several responses that there was an alcohol and substance abuse problem, but he was not directly asked during the deposition about the nature and extent of his addiction. The argument that Petitioner attempted to hide his cocaine addiction is weakened when one considers that the deposition of Dr. Fichera, during which Petitioner's addiction to cocaine was fully discussed, was taken at the instance of the Petitioner. While Petitioner's application made no reference to his addictions or to his rehabilitation therefrom the application form did not solicit that information. It is concluded that Petitioner did not demonstrate a lack of candor by his application or during his deposition that establishes a lack of good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which denies Petitioner's application as a community association manager. DONE AND ORDERED this 10th day of August, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of August, 1993.
Conclusions BRUCE ELLIOT ESQUINALDO, JR., ("Respondent"), and the DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION ("Department"), stipulate and agree to the following Stipulation and to the entry of a Final Order of the Florida Construction Industry Licensing Board ("Board"), incorporating this Stipulation and the agreement in this matter. STIPULATED FACTS 1. At all times material hereto, Respondent was a Certified Pool Contractor in the State of Florida, having been issued license number CP C050527. 2. Respondent was charged by Administrative Complaints filed by the Department and properly served upon Respondent with 21 violations of Chapters 455 and 489, Florida Statutes, and the rules enacted pursuant thereto. True and correct copies of the Administrative Complaints are attached hereto and incorporated by reference as composite Exhibit "A." 3. Respondent neither admits nor denies the allegations of fact contained in the Administrative Complaints attached hereto as composite Exhibit "A." STIPULATED CONCLUSIONS OF LAW 1. Respondent, in his capacity as a licensed Contractor, admits that in such capacity he is subject to the provisions of Chapters 455 and 489, Florida Statutes, and the jurisdiction of the Department and the Board. 2. Respondent admits that the facts set forth in the Administrative Complaints, if proven, constitute violations of Chapter 489, Florida Statutes, as alleged in the Administrative Complaints attached hereto as composite Exhibit "A." STIPULATED DISPOSITION 1. In order to facilitate this settlement, with regard to DBPR case number 97-14575/DOAH case number 9$8-3713/Jovellar, and DBPR case number 98-02110/DOAH case number 99-2655/Quadri, the Department agrees to withdraw its recommendation that a penalty be assessed against the Respondent consistent with the Administrative Law Judge’s Recommended Order, and the Respondent agrees to withdraw his Exceptions to the Recommended Order. 22 2. The following charges contained in the Administrative Complaints, attached hereto as composite Exhibit “A” shall be dismissed: DBPR case number 98-21934/Lopez Count III, and DBPR case number 99-05645/Rodriguez Count I and Count IT. 3. Respondent shall abide by Chapters 455 and 489 Florida Statutes, and the rules promulgated pursuant thereto. 4, Respondent shall pay Fifteen Thousand, Five dollars and Twenty Four cents ($15,005.24) to the Construction Industry Licensing Board. Of said payment, Six Thousand, Four Hundred Fifty dollars ($6,450.00) shall be allocated to the payment of a fine and Eight Thousand, Five Hundred Fifty Five dollars and Twenty Four cents ($8,555.24) shall be allocated to the payment of the Department's costs. Said payment shall be in the form of a cashier's or certified check and shall be made payable to the Florida Construction Industry Licensing Board. Said payment shall be returned to the Department along with this Stipulation for presentation to the Board. The monies paid pending approval of this Stipulation by the Board shall be refunded to Respondent 4£ the Board rejects this Stipulation. 5. Respondent shall submit to the Executive Director of the Florida Construction Industry Licensing Board, proof of having satisfied the Final Judgments obtained by (1) Robert R. Bollard, in the amount of One Thousand, One Hundred Five dollars ($1,105.00), in DBPR case number 99-09009, and (2) Dennis Ryan in the amount of 23 Four Hundred Four dollars and Fifty Two cents ($404.52), in DBPR case number 99-00117. Respondent shall also submit proof to the Executive Director of the Florida Construction Industry Licensing Board, of having also made restitution to Karen and Joseph De Leonardo in the amount of One Hundred Sixty Nine dollars and Sixty cents ($169.60), in DBPR case number 99-08509. Such proof shall be provided within ninety (90) days of the filing of the Final Order in this matter. To assure payment of the Final Judgments and restitution, it is further ordered that all of Respondent's licensure to practice contracting shall be suspended with the imposition of the suspension being stayed for ninety (90) days following the filing of the Final Order in this matter. If the ordered payments and proof of having made said payments are in compliance with the terms set forth above, the suspension imposed shall not take effect. However, should payment, or proof of payment not be timely made, the stay shall be lifted and Respondent's license shall be immediately suspended. Upon payment of the Final Judgments and restitution in full, and proper submittal of proof of making such payments, the suspension imposed shall be lifted. 6. Respondent shall be on probation for three (3) years from the date of filing of the Board's Final Order in this matter. Respondent shall appear before the Probation Committee of the Board at such times as directed by the Executive Director, or as specified in the Final Order entered in this action. In connection with each probation appearance, Respondent shall answer questions under oath 4 24 and shall provide copies of all construction related monthly bank statements, financial statements reflecting a minimum net worth requirement as reflected in Rule 61 G4-15.005(3) (a), F.A.C., permit applications, contracts, and operations questionnaires since the entry of the Final Order in this matter if it is the first probation appearance or since the last probation appearance if it is other than the first probation appearance. In addition, the Respondent shall provide such other information and documentation as is requested by the Department, the Board or the Probation Committee. The Respondent shall forward said documentation to the Board in advance of the probation appearance. As a special condition of probation, the Respondent will, during the probation period, take corrective action and = obtain acknowledgements of satisfaction and/or proof from the applicable building departments, that the following projects and/or permits have been satisfactorily completed: DBPR case number 99-08509/DeLeonardo, DBPR case number 99~-08265/Pacheco, DBPR case number 99-10077/Toro, DBPR case number 99-00117/Ryan, and DBPR case number 99- 05645/Rodriguez. However, the Respondent shall not be required to meet any additional requirements for pool barriers imposed effective October 1, 2000, by Chapter 2000-143, Laws of Florida. Respondent shall initiate such corrective action prior to his first probation appearance. Further, the Respondent shall provide proof to the Board or the Probation Committee that documents the status of the corrective action taken in each of the projects identified above. 5 25 The Respondent shall forward such proof to the Board in advance of the probation appearance and such proof shall be in a form acceptable to the Probation Committee. The burden shall be solely upon Respondent to remember the requirement for said appearance, and to take the necessary steps in advance of said appearance to contact the Board office and ascertain the specific time, date, and place of said appearance. The Respondent shall not rely on getting notice of said appearance from the Board or Department. Should Respondent violate any condition of this probation, it shall be considered a violation of Section 489.129(i), Florida Statutes, and shall result in further disciplinary action by the Board. Should Respondent's license to practice contracting be suspended or otherwise placed on inactive status, or if Respondent leaves the practice of contracting for thirty (30) days or more, the probation period shall be tolled, and shall resume running at the time Respondent reactivates the license and/or returns to the active practice of contracting, and Respondent shall serve the time remaining in the term of probation. To ensure successful completion of probation, the Respondent's licensure to practice contracting shall be suspended for the three (3) year period of probation, with the suspension stayed for the three (3) year period of probation. The time of the suspension and the stay shall run concurrently with the period of probation, except as provided otherwise in the Final Order. If the Respondent 6 26 successfully completes probation, the suspension shall terminate. If the Respondent fails to comply with the requirements set forth in the Final Order imposed in this case, or fails to make satisfactory appearances as determined by the Board, the stay shall be lifted. Once the stay is lifted, the Respondent shall. remain in suspended status unless and until a further stay is granted by the Board. 7. It is expressly understood that this Stipulation is subject to the approval of the Board and the Department. In this regard, the foregoing paragraphs (and only the foregoing paragraphs of the Stipulated Facts, Stipulated Conclusions of Law and Stipulated Disposition) shall have no force and effect unless a Final Order incorporating the terms of this Stipulation, is entered by the Board. 8. Should this Stipulation be rejected, no statement made in furtherance of this Stipulation by the Respondent may be used as direct evidence against the Respondent in any proceeding. 9. Respondent and the Department fully understand that this Stipulation and subsequent Final Order incorporating same will in no way preclude additional proceedings by the Board and/or the Department against the Respondent for acts or omissions not specifically set forth in the Administrative Complaints attached as composite Exhibit "A" herein. 10. Upon the Board's adoption of this Stipulation, Respondent expressly waives all further procedural steps, and expressly waives all rights to seek judicial review of or to otherwise challenge or 7 27 contest the validity of the Stipulation of Facts, Conclusions of Law, the Stipulated Disposition, and the Final Order of the Board incorporating said Stipulation, or any part thereoz. 11. Upon the Board's adoption of this Stipulation, Respondent waives the right to seek any attorney's fees or costs from the Department in connection with this disciplinary proceeding, and the Department waives the right to seek any additional fees or costs from the Respondent in connection with this disciplinary proceeding. 12. Upon the Board's adoption of this Stipulation, Respondent understands and agrees that this Stipulation constitutes disciplinary action within the meaning of Section 455.227(1)(f) and 489.129, Florida Statutes. 13. This Stipulation is executed by the Respondent for the purpose of avoiding further administrative action with respect to this cause. In this regard, Respondent authorizes the Board to review and examine all investigative file materials concerning Respondent prior to or in conjunction with consideration of the Stipulation. Should this Stipulation not be accepted by the Board, it is agreed that presentation to and consideration of this Stipulation and other documents and matters by the Board shall not unfairly or illegally prejudice the Board or any of its members from further participation, consideration or resolution of these proceedings. Further, if necessary, and in order to facilitate 28 consideration of this Stipulation, the Respondent waives the requirement that the cases referenced above be heard at Final Action by a quorum of the Florida Construction Industry Licensing Board. ASKaay of WA 2000. SIGNED this QUINALDC, JR. STATE OF FLORIDA COUNTY OF Leéors The Forsgoing instrument was acknowledged before me this ag day of te "4 2000, by BRUCE ELLIOT ESQUINALDO, JR. who is ho did take an oath. eae. 67-4Skh- O ; . hit, Shiney B Walker My Commission Expires: * Bak My Commission CC873206 “yma” Expires September 22, 2003 , 2000. DSP/ms ESQUINALDO 9/20/00 s-const.stp 29
The Issue Whether Petitioner suffered retaliation and reverse discrimination committed by the Department of Corrections in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a white male who was a probation officer at the Department. He worked in the Fourteenth Judicial Circuit for the first ten years of his career and then transferred to the Seventh Judicial Circuit, based in Daytona Beach, Florida, where he had been employed for about eight and one-half years at the time of the hearing. The Department, in accordance with Section 20.315, Florida Statutes, is the state agency charged with protecting the public through the incarceration and supervision of offenders and the rehabilitation of offenders through the application of work, programs, and services. In early July 1999, Petitioner was working in the Department's probation office on Palmetto Avenue, in Daytona Beach, Florida. He was living with a woman named Tanya Folsom who worked for the Department in its probation program, but not in the same office. He was also romantically involved with a woman named Frances Fredericks, who he later married. At this time, Ms. Fredericks was married to one Mr. Anderson, and was known as Frances Anderson. This triangular relationship became known in the office in which Petitioner worked. Someone in Petitioner's office, who has never been identified, wrote a letter to Ms. Folsom, revealing to Ms. Folsom Petitioner's ongoing relationship with Ms. Frances Fredericks. The letter was written on stationery that was the Department's property, placed in an envelope that was the Department's property, and transmitted to Ms. Folsom via the Department's internal mailing system. Using Department resources for personal business, is contrary to Department policy. When Ms. Folsom received the letter a number of ugly consequences ensued. Ms. Folsom reacted with extreme hostility to the information she received, even though Petitioner claimed that their relationship had devolved into a mere friendship. She evicted Petitioner from the quarters they had been sharing. At a subsequent time, one Mr. Anderson, then Ms. Frederick's husband, confronted Petitioner in the parking lot adjacent to the office in which Petitioner worked, and in the presence of Petitioner's office supervisor, Mr. Seltzer, socked Petitioner in the jaw. The probation officer community, in which Ms. Folsom and Petitioner worked, suffered disruption. Morale amongst the workers was impaired. Petitioner blamed the occurrence of these unpleasant events, not on himself, but on Officer Michael Gallon, a probation officer who worked directly in the court system, and Ms. Velma Brown, his immediate supervisor. He attributed blame to them because he believed that they had rifled his desk and found gifts destined to be given to Frances Fredericks, and believed that one or both of them were responsible for the letter to Ms. Folsom. Both Officer Gallon and Ms. Brown are black. Petitioner filed a complaint with the Department demanding an investigation into the use of the Department's stationery that was of a value of about a "half cent," according to Petitioner. He also complained that court officers, both black and white, were underemployed, and suggested that black court officers were afforded advantages not given to white officers. He asked his superiors to investigate the complaint regarding both the letter and the court officer matter. He prevailed upon the office manager to take action and when the office manager declined to open an investigation, he brought the matter to the attention of the circuit administrator, Robert Gordon, and ultimately to the attention of those in the chain- of-command all the way to the Department's Inspector General. Mr. Gordon, in response to the turmoil precipitated by the letter, reassigned Petitioner to DeLand, Florida, a distance of about 30 miles, for 60 days. Petitioner, who referred to his new post in the pejorative, "Dead Land," believed that officers who were moved there, "never came back." Mr. Gordon told Petitioner that he moved him because Petitioner needed a "change of venue." This reassignment occurred the end of July, 1999. Article 9, Section 3, of the Agreement between the State of Florida and Florida Police Benevolent Association (Agreement) states that a transfer should be affected only when dictated by the needs of the agency and only after taking into consideration the needs of the employee, prior to any transfer. Mr. Gordon complied with that requirement, and in any event, did not transfer Petitioner. The Agreement states at Article 9, Section 1 (C), that a move is not a "transfer" unless an employee is moved, " . . . in excess of fifty (50) miles." Petitioner was "reassigned" as that term is defined in Article 9, Section 1 (C), of the Agreement. In any event, Mr. Gordon did not move Petitioner because he was white. He moved him to a different post because Petitioner had created turmoil in the probation officer community in Daytona Beach. In any event, as will be discussed below, whether or not Mr. Gordon complied with the Agreement is immaterial to this case. Notwithstanding Petitioner's beliefs with regard to the outcome of his move to DeLand, he was reassigned back to the Daytona Beach area at the end of 60 days and resumed his regular duties. This occurred around early October, 1999. Petitioner continued to press for an investigation into his allegations. He brought the matter to the attention to Harry Ivey, the regional administrator for the Department and above Mr. Gordon in the chain-of-command. He discussed the matter with a Mr. Jefferson, Mr. Ivey's deputy and believed subsequent to that conversation, that an investigation would occur. In fact, no one in the Department displayed any interest in Petitioner's allegations about the de minimis use of the Department's time and property in the preparation and transfer of the letter, or in his beliefs about the workload problems of the court officers, or his claims of favorable treatment in the case of Officer Gallon and Ms. Brown. In December 2000, Petitioner was assigned to the Ormond Beach Office, which was about six miles from the Palmetto Avenue Office. The Ormond Beach Office had lost a supervisor position due to reorganization and it was determined that Petitioner possessed the skill and experience to replace that senior leadership. The decision to relocate Petitioner was made by Mr. Gordon. In February 2001, Petitioner was transferred back to his old office. A few months later he was promoted to Correctional Probation Senior Officer and moved to another office. Between February 2000 and February 2001, the operative period, over 30 Correctional Probation Officers, Correctional Probation Supervisor Officers, and Correctional Probation Supervisors in the Seventh Circuit, were reassigned. Of these, six were black, four were Hispanic, and 20 were white. Although the four reassignments experienced by Petitioner may have inconvenienced him, Petitioner presented no evidence of any damages. The facts reveal that Petitioner's misfortunes were precipitated by his unwise amorous activities within his workplace. They were not the result of any effort by the Department to retaliate against him or to discriminate against him because he was white.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed because it was not timely filed. Dismissal on its merits if the June 25, 2001, Charge of Discrimination is determined to have been timely filed. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 11th day of December, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gayle S. Graziano, Esquire 244 North Ridgewood Avenue Daytona Beach, Florida 32114 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether or not Petitioner may be presumed, pursuant to Rules 22A- 7.0l0(2)(a) and 22A-8.002(5)(a)3 F.A.C. to have abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact Petitioner started working for Florida State Hospital, a residential facility owned and operated by HRS, on August 8, 1986. On June 22, 1987, Petitioner was assigned to Unit 14, at Florida State Hospital, a unit which treated geriatric mentally ill patients. In that assignment, Petitioner's immediate supervisor was Senior Registered Nurse Supervisor Shirley Greggly. It is an established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. During her employment, Petitioner had been a less-than-exemplary employee with regard to absenteeism, tardiness and timely notification and had been counselled prior to April 1989 that she should make contact with the Hospital within seven minutes of the time she was due on shift if an absence was necessary. Only after review of such contact initiated by an employee can a superior determine to approve or disapprove the requested leave. If no contact were initiated by the employee, it was Ms. Greggly's standard procedure to attempt to initiate contact herself with the missing employee. Failure of an employee to notify Ms. Greggly or delayed notification of Ms. Greggly by an employee creates great hardship for the patients who may receive delayed care as a result, and also it creates considerable administrative turmoil for Ms. Greggly in rounding up a substitute employee. Petitioner had been disciplined with a ten-day suspension in September 1988 for failure to notify. She had received a prior written reprimand for absence without authorized leave in June 1988 and an oral reprimand for excessive absenteeism in December 1987. Petitioner had been frequently counselled in regard to these shortcomings. During the first few months of 1989, Petitioner was absent from work due to a work-related injury and, if not already filed, a workers' compensation claim pursuant to Chapter 440 F.S. was at least imminent. Petitioner's primary treating physician was Daniel Bontrager, D.C. By April 1989, Dr. Bontrager had determined that Petitioner could return to light duty work. On April 7, 1989 and again on April 13, 1989, Dr. Bontrager orally informed Petitioner that she could return to light duty work as of April 17, 1989. On April 13, 1989, Ms. Hobbs stated that she would not return to work. Dr. Bontrager communicated his advice to the Hospital. The best diagnostic evidence obtainable by Dr. Bontrager indicated that there was no valid medical reason why Petitioner could not return to work. Ms. Greggly expected Petitioner back at work on April 17, 1989. From that date until April 28, 1989, when Petitioner was deemed to have abandoned her position, Petitioner initiated no contact with her employer or Ms. Greggly, and therefore no leave was authorized for her. On the dates between April 17, 1989 and April 28, 1989, inclusive, Petitioner neither appeared at work nor informed the hospital that she was going to be absent. This period constitutes in excess of three consecutive workdays of absence without approved leave.
Recommendation Upon the foregoing Findings and Fact and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order ratifying its previous presumption that Petitioner has abandoned her position and resigned from the Career Service. DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: None filed. Respondent' PFOF: 1-3, 8, 10, 12-14 Accepted. 4-5 Immaterial. 6-7, 9 Accepted as modified; unnecessary argument and detail is rejected as such. 11 Modified to reflect the record; rejected where it is not true to the record. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Ms. Clara Hobbs Route l, Box 186B Sneads, Florida 32460 John R. Perry, Esquire Department of Health and Rehabilitative Services Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303-4082 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
