Conclusions This cause has come on for final agency action after the filing of a Notice of Voluntary Dismissal With Prejudice (Notice) by Suntree Pharmacy, inc. (Suntree) at the Division Of Administrative Hearings in Case No. 13-4637 on December 27, 2013 and that Division's entry of an Order Closing File And Relinquishing Jurisdiction (Order) on January 9, 2014. Having considered the Notice and the Order and the Order of Conditional Release From Stop Work Order (Release) and the Payment Agreement Schedule For Periodic Payment of Penalty (Payment Agreement) and associated documents (Attachment A hereto), IT IS HEREBY ORDERED that the Notice Of Assignment And Order issued herein on January 30, 2014 is hereby withdrawn as improvidently issued. IT IS HEREBY FURTHER ORDERED that the Order of Conditional Release From Stop Work Order and the Payment Agreement Schedule For Periodic Payment of Penalty are affirmed and remain in full force and effect until all terms and conditions thereof are satisfied. Should any term or condition therein be defaulted on by Suntree, the Release shall be immediately lifted and a bar against further work immediately re- ss igsyerneeminyeevnerttaneimm mee imposed and the Payment Agreement shall be accelerated and the full amount due thereunder shall become immediately due and payable. March THE DONE AND ORDERED this _@rel_day of February, 2014. Robert C. Kneip, Chief of Sta
The Issue The issue in this case is whether the Respondent, Michael Crudele, should be disciplined for alleged violations of the statutes and rules governing the conduct of insurance agents.
Findings Of Fact The Respondent, Michael Crudele, is currently eligible for licensure and is licensed in Florida as a life insurance agent and as a life and health insurance agent. The Respondent was the agent-of-record on two American Life and Casualty Insurance Company (American Life) annuities purchased by Mary Clem, one in the face amount of $30,000 dated October 28, 1992, and the other in the face amount of $20,000 dated December 28, 1992. Clem was 84 years old at the time and a widow. The annuities represented more than 80 percent of her life savings. The Respondent became agent-of-record on these annuities at the request of Charles Perks, a good friend and former fellow Metropolitan Life agent. Clem had been an insurance customer of Perks since approximately 1985. When Clem complained to Perks that "the bottom fell out of interest" on her certificates of deposit, he suggested the American Life annuities as a safe alternative that paid higher interest. But Perks was not an authorized agent for American Life, so he asked the Respondent to participate in the sales and split the commissions. In 1992, the Respondent became involved in the Zuma Engineering Co., Inc., a startup tire recycling venture. After being introduced to Zuma, the Respondent became very enthusiastic about its prospects. He invested $30,000 in Zuma, received stock in return for his investment, and became a thirty percent owner. He also became involved in all aspects of the startup business, from promoting the business to the public, to raising capital from and working with private investors, to cleaning up Zuma's recycling facility. He understood that he was a corporate director, but corporate filings with the Secretary of State indicate that he was a vice-president from October 27, 1993, until March 20, 1994. The Respondent not only solicited investors himself, he participated in recruiting a sales force. As part of this effort, he recruited his friend Charles Perks. In late 1993 and early 1994, Perks and the Respondent approached Mary Clem to solicit her investment in Zuma. It is not clear from the evidence how the solicitation of Mary Clem proceeded. It is believed that Clem may have initially contacted Perks around the time of the anniversary date of the $30,000 annuity to complain that she had been notified of a drop in the interest rate paid by the annuity. Mary Clem received a guaranteed 5.75 percent interest, plus a one percent interest "bonus" for a total of 6.75 percent interest during the first year of her two American Life annuities. The "bonus" interest automatically terminated at the end of the first year. In addition, the evidence was that the standard interest guarantee decreased to five percent starting with the second year. It is not clear when Clem received notice of the decrease in the interest guarantee or whether she received notice from American Life as to the elimination of the interest "bonus," but it is found that by December 2, 1993, Clem knew the interest rate on her $30,000 annuity was being decreased to five percent for the second year of the annuity. It is possible that she also knew by then that the interest on her $20,000 annuity was being decreased to five percent as well. Perks saw Mary Clem's dissatisfaction with the American Life annuities as an opportunity to sell Zuma promissory notes to her. On or about December 2, 1993, Charles Perks approached Mary Clem and sold her a $10,000 promissory note issued by Zuma. On its face, the promissory note was dated December 3, 1993, and paid twelve percent interest, with a single balloon payment of principal and interest due on June 3, 1995. The evidence was that the Respondent did not participate in this transaction on December 2, 1993. Mary Clem does not recall, and both Perks and the Respondent testified that the Respondent was not present. The Respondent testified that he was not even aware of this $10,000 Zuma note until the Department's Order of Emergency Suspension and Administrative Complaint on or about July, 1996, but this testimony is rejected as not being credible. It is found that the Respondent knew about Clem's purchase of the $10,000 promissory note either on December 2, 1993, or soon thereafter. It is found that by December 2, 1993, or shortly thereafter, Clem complained to both Perks and the Respondent about the interest on her annuities. It is found that all three of them discussed Zuma promissory notes as an alternative investment. Contrary to the Respondent's testimony, it is found that, if he did not already know about Clem's purchase of the $10,000 Zuma promissory note by then, the Respondent would have learned of the $10,000 Zuma promissory note during these discussions. It also is found that, based on those discussions, Clem decided to surrender her $20,000 annuity and use the money to buy Zuma promissory notes. It is found that Perks and the Respondent helped Clem with the surrender of her $20,000 annuity. It also is found, contrary to the Respondent's testimony, that Perks and the Respondent assisted in arranging for Clem to be able to purchase a Zuma promissory note in the face amount of $20,000 for the net cash surrender value of the $20,000 annuity, after deduction of premium tax and surrender penalty. When American Life was notified of Clem's desire to surrender the $20,000 annuity, the company contacted the Respondent and asked him to "conserve" the annuity, i.e., dissuade Clem from surrendering it. It is found that, if he did not already know about it by then, the Respondent would have learned of Clem's intentions to buy Zuma promissory notes when he contacted her on behalf of American Life to comply with American Life's request that he attempt to conserve the annuity. It also is found that, if he did not already know about Clem's purchase of the $10,000 Zuma promissory note, he would have learned of the $10,000 Zuma promissory note at this time. By letter dated January 24, 1994, American Life responded to Clem's request to surrender her $20,000 annuity. American Life's letter advised Clem that she was entitled to principal and $69.67 in interest, less premium tax in the amount of $213.69 and surrender charges in the amount of $1,625.65, for a net of $18,230.33. A check for the net amount was enclosed. A copy of American Life's January 24, 1994, letter was sent to the Respondent as the agent-of-record. On or about February 1, 1994, Perks and the Respondent went to Clem's home to complete the purchase of a $20,000 Zuma promissory note. The Respondent testified that, since all of the arrangements had been made in advance, the Respondent's role in the transaction was solely as "corporate director and verifier" on behalf of Zuma; however, the Respondent also would receive $900 of the $2,000 commission paid by Zuma on the transaction. Meanwhile, his additional role as American Life's agent required him to attempt to "conserve" the annuity policy. At one point, the Respondent testified that, as "corporate director and verifier," he inquired into Clem's assets (presumably to ascertain if the investment was appropriate for her). But he also testified that he assumed her assets were unchanged from 1992, raising a question as to whether the Respondent undertook any inquiry into Clem's assets on February 1, 1994, at all. At another point, the Respondent testified that he understood Mary Clem to have $200,000 in assets. See Department Exhibit 6. But, if so, those assets consisted of her home, the annuities and the $10,000 Zuma promissory note. It is found that the Respondent had no reason to believe she had any other assets. The Respondent also testified that he did not determine from his alleged inquiry into Clem's assets, and did not know, that Clem already had purchased a $10,000 Zuma promissory note. As previously found, it is considered incredible that the Respondent did not already know by February 1, 1994, that Clem had purchased the $10,000 Zuma promissory note; it is all the more incredible that he would not have learned of it from a diligent inquiry into Clem's assets for purposes of determining the appropriateness of the $20,000 Zuma investment. Mary Clem testified that the Respondent and Perks touted the safety of the Zuma investment as well as the higher interest it paid. The Respondent testified that, although acting in the conflicting roles described in the preceding finding, he discussed the differences between the two investments, including the risk of the Zuma investment. The Respondent testified that he read to Mary Clem from a written disclosure statement that defined Zuma's promissory notes as being a "risk investment," but no written disclosure statement was introduced in evidence. In any event, the "verification" was a mere formality; as the Respondent knew full well, Clem already had decided to buy the promissory note. Clem wrote a personal check in the amount of $18,230, and Perks and the Respondent gave her Zuma's $20,000 promissory note bearing twelve percent interest. The note was erroneously dated February 1, 1993, and erroneously stated on its face that the single balloon payment of principal and interest was due on February 1, 1995. The note was supposed to have a 24- month term from February 1, 1994, to February 1, 1996. (This discrepancy would lead to problems later. See Findings 32-33, infra.) In view of the conflict of interest inherent in the Respondent's multiple roles in the transaction, it is found that the Respondent did not make a good faith inquiry into appropriateness of the Zuma investment for Mary Clem and did not fully disclose the risk associated with it, as compared to the American Life annuity. If the Respondent disclosed the risk, it is found that he did not do so fully and clearly, again probably due to the conflict of interest inherent in his multiple roles. Neither Mary Clem nor her late husband had ever invested in any stocks, mutual funds or even bonds. Before Mary Clem invested in the American Life annuities, she and her late husband always invested in certificates of deposit. While it is true that Clem wanted higher interest than she was getting on her annuities, she also wanted safety and security. It is found that, if the Respondent had fully and completely disclosed the risk of investing in Zuma promissory notes, Mary Clem would not have invested in them. Mary Clem also surrendered her $30,000 American Life annuity and used the money she received to buy another Zuma promissory note. The Respondent claimed not to have known anything about the third Zuma note, and the Department was not able to prove that he did. It is not clear exactly when Clem decided to surrender her $30,000 annuity and buy a third Zuma note. It was before March 3, 1994, the date of the American Life letter responding to Clem's request to surrender her $30,000 annuity. American Life's letter advised Clem that she was entitled to principal and $16.04 in interest, less premium tax in the amount of $324.71 and surrender charges in the amount of $2,474.92, for a net of $27,216.41. A check for the net amount was enclosed. As with Clem's request to surrender her $20,000 annuity, American Life contacted the Respondent and asked him to try to "conserve" the annuity. The Respondent also received a copy of American Life's March 3, 1994, letter as the agent-of- record. The Respondent admitted that he telephoned Clem on or about February 28, 1994, to try to conserve the annuity but that Clem was adamant. He claimed that Clem did not tell him what she intended to do with the money and that he did not ask. The meeting at which Clem bought the third Zuma promissory note took place on March 10, 1994. Mary Clem thought the Respondent was there but could not swear to it. Perks also testified that he thought the Respondent was there. The Respondent testified that he definitely was not there and did not know the transaction took place. By that time of the meeting on March 10, 1994, the Respondent had become suspicious and distrustful of Zuma's principals. They had diluted his thirty percent share of the company to a mere 0.3 percent. In addition, the Respondent did not think that the principals were following the business plan they had "sold" the Respondent, and which the Respondent in turn had "sold" to private investors, including Mary Clem. By early March 1994, the Respondent began to take steps to attempt to protect the investors in Zuma, including himself, and force Zuma to follow its business plan. Eventually, he emptied Zuma's accounts and placed the funds in the trust account of the lawyers he hired to sue Zuma and its principals to enjoin them to follow the business plan. The court ruled against the Respondent and required him to return the money to Zuma. The Respondent paid his lawyers' fees out of his own pocket. Based on the timing of events, it seems probable that the Respondent did not meet with Perks and Clem on March 10, 1994. By that time, he was becoming deeply involved in his dispute with Zuma and its principals. It is less clear that the Respondent was completely ignorant of Clem's intention to use the money from the surrender of the $30,000 American Life annuity to buy a third Zuma note, but he may well have lost track of Mary Clem and her intentions in the midst of his dispute with Zuma and its principals. It had been arranged before the March 10, 1994, meeting for Clem to be able to purchase a Zuma promissory note in the face amount of $30,000 for the net cash surrender value of the $30,000 annuity, after deduction of premium tax and surrender penalty. The Respondent denied participating in making these arrangements or having any knowledge of them. A similar arrangement already had been made for the $20,000 annuity and Zuma note, and it is conceivable that Perks did not require the Respondent's participation to arrange it for the $30,000 annuity and Zuma note. It is found that the evidence did not prove the Respondent's participation. On March 10, 1994, Clem wrote a personal check in the amount of $27,2126.41, and received Zuma's $30,000 promissory note dated March 10, 1994. On its face, the note paid twelve percent interest, with quarterly payments of $900 interest and the principal payable on March 10, 1996. The Respondent contacted Mary Clem in June or July, 1994, to inquire about her Zuma investment. Clem told him everything was fine. In December 1994, the notes were revised to show Mary Clem's daughter as a beneficiary on the notes in the event of Clem's death. The revised $20,000 note preserved the erroneous issuance and due dates. See Finding 21, supra. The $900 interest payment due on the $30,000 Zuma note on March 1995, was seriously past due. In addition, no payments were made on the $20,000 note. On April 1, 1995, the $20,000 note was renewed upon payment of $6,200 interest and penalties. Under the renewal note, monthly interest payments of $200 were due, and a balloon payment of principal and remaining interest was due on September 1, 1995. By mid-1995, Zuma was in default again, and Clem received no payments after August 8, 1995. Zuma paid Clem a total of just $23,400 on the three promissory notes. The Respondent conceded that there was a high risk of losing one's entire investment in Zuma and that someone investing in Zuma had to be prepared to lose the entire investment. He also conceded that Mary Clem should not have invested the bulk of her life savings in Zuma. He also conceded that it would have been significant to know, and he should have wanted to know, the extent of Clem's investment in Zuma before increasing her investment in Zuma.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order: (1) finding the Respondent, Michael Crudele, guilty of violating Sections 626.611(7), 626.621(3), and 626.621(6), Florida Statutes (1993); and (2) suspending his license and eligibility for licensure as a life insurance agent and as a life and health insurance agent for six months. RECOMMENDED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998.
The Issue Whether the permit held by the Respondents to operate a pharmacy in the State of Florida should be revoked.
Findings Of Fact A Complaint and Notice to Show Cause was filed against the Respondents, Ponce de Leon, Inc., doing business as Capel Drugstore, and Milagros Ferreras, Evina Valera and Julio C. Pascual, on December 27, 1978, alleging that the Respondents failed to maintain on a current basis a complete and accurate record of controlled substances controlled by Chapter 893, Florida Statutes, and that Respondents while holding a permit to operate a pharmacy in the State of Florida permitted the unlawful practice of pharmacy at Ponce de Leon, Inc., doing business as Capel Drugstore, located at 6661 SW 8th Street, Miami, Florida, by permitting a person not licensed or registered as a pharmacist or pharmacy intern in this state, to wit Milagros Ferreras, to fill and dispense a controlled substance with prescriptions and without prescriptions to various people on various dates. A hearing was requested by the Respondents on January 5, 1979. Notice of Hearing was sent to the parties on February 5, 1979. The first witness called on behalf of the Petitioner was V. K. Bell, Agent for the Florida Board of Pharmacy and a licensed pharmacist. Agent Bell testified that while at a local wholesaler in the Miami area he noticed that Ponce de Leon, Inc., doing business as Capel Drugstore, had been buying a large volume of Quaalude tablets, which is a Schedule II controlled substance that has been the subject of high abuse in the Dade County area. Thereupon, he proceeded to Capel Drugstore in order to review their records. He said that he found the prescription records did not account for proper disposition through lawful dispensing of a large volume of the Quaalude tablets that were purchased and documented by the invoices. He testified that he talked with the pharmacist, Francisco DeQueuedo, and Respondent, Milagros Ferreras, one of the owners of Ponce de Leon, Inc., doing business as Capel Drugstore, and the President of the corporation. Mr. Bell advised Ms. Ferreras and Mr. DeQueuedo of their right to remain silent and not answer questions, that anything they said could be used against them, and that they had the right to have an attorney present if they desired. He then questioned the Respondent, Ms. Ferreras, and Mr. DeQueuedo. Ms. Ferreras stated that she had bought a bad business and found that she was having financial difficulties with the business, and she started to sell Quaalude tablets for 50 cents each to some 15 or 20 different people without prescriptions. Mr. Bell testified that Ms. Ferreras then stated that she had made sales of the controlled substance without prescriptions. Agent Bell testified that the pharmacist, Mr. DeQueuedo, admitted to him that he knew that Respondent Ferreras was making these sales, and that she would from time to time bring him prescriptions which he would sign, indicating on the prescriptions that he did in fact fill them, although he had not, and then put them on file at the pharmacy in an attempt to cover up some of the shortages due to the unlawful sales of the Quaalude tablets. After this conversation Mr. Bell testified that he proceeded to do a drug accountability audit. Mr. Bell said that even with giving the pharmacy credit for those prescriptions which were signed by the pharmacist, he could not account for 27,440 Quaalude tablets. The drug accountability report was identified by Mr. Bell and was introduced into evidence as Petitioner's Exhibit number 1. Agent Bell identified a series of documents which constituted various invoices and prescriptions utilized in the drug accountability audit as well as a perpetual inventory, which the pharmacist had run. These documents were marked as Petitioner's Composite Exhibit number 2 and were introduced into evidence. Thereafter, Mr. Bell identified a document which he noted was a copy of a receipt which he gave to the pharmacist noting the various invoices contained in Composite Exhibit number 2, which were removed from the pharmacy. This receipt was marked as Petitioner's Exhibit number 3 and was introduced into evidence. Mr. Bell verified a document which was the receipt that he gave to the pharmacist, Mr. DeQueuedo, when he removed the original prescriptions from the pharmacy file, which prescriptions were also part of the Composite Exhibit number 2. This receipt was marked as Petitioner's Exhibit number 4 and was introduced into evidence. Mr. Bell then identified another document, which was marked for identification as Petitioner's Exhibit number 5, and Agent Bell testified that this was a statement made to him in his conversations with the Respondent, Ms. Ferreras, and the pharmacist, Mr. DeQueuedo, which he reduced to writing and which both the pharmacist and Respondent Ferreras signed. Exhibit number 5 substantiates the testimony which was given by Mr. Bell in respect to the unlawful dispensing of controlled substances by Ms. Ferreras, falsification of the prescription records by Mr. DeQueuedo, and the shortages found in the drug accountability audit. Robert S. Pacitti, a police officer with the Dade County Public Safety Department, was called as a witness for Petitioner. Officer Pacitti stated that he had received a telephone call from Agent Bell with reference to Ms. Ferreras and Mr. DeQueuedo. Officer Pacitti testified that he went to the Capel Drugstore and advised both the Respondent Ferreras and Mr. DeQueuedo, the pharmacist, of their Miranda rights. Officer Pacitti obtained a verbal statement from Mr. DeQueuedo that he was aware of the fact that Ms. Ferreras was dispensing Quaalude tablets. Officer Pacitti then took Respondent Ferreras down to the Dade County Public Safety Department, where she made a statement taken by a stenographer in Officer Pacitti's presence confirming the testimony of Agent Bell and Officer Pacitti. Respondent Ferreras stated that the individuals to whom she had sold Quaalude tablets promised to bring her prescriptions for them at a later date but did not do so. Officer Pacitti identified a document marked as Petitioner's Exhibit number 6 as a copy of the statement of Respondent Milagros Ferreras, and thereafter this statement was introduced into evidence as Petitioner's Exhibit number 6. Officer Pacitti testified that even though the large quantity of Quaalude tablets was being sold for 50 cents each, the street value of these tablets was between $3.00 and $5.00 per tablet. The secretary of Jack R. Blumenfeld, the attorney of record for Respondent Milagros Ferreras, presented photocopies of letters from two physicians indicating that Ms. Ferreras had been in the hospital and then had been advised to restrict her physical activity and avoid emotional strain. These letters were marked and filed by the Hearing Officer. After listening to the testimony of Agent Bell and Officer Pacitti, and after examining the exhibits introduced into evidence, it is the finding of this Hearing Officer that the Respondent, Milagros Ferreras, did permit the improper keeping of records at Ponce de Leon, Inc., doing business as Capel Drugstore, and that complete and accurate records of controlled substances were not maintained on a current basis. It is the further finding of this Hearing Officer that the Respondent, Milagros Ferreras, allowed the pharmacist, Francisco DeQueuedo, to file false information in the files of Ponce de Leon, Inc., doing business as Capel Drugstore, by placing prescriptions in the files which were not actually dispensed by the pharmacist to the individuals named thereon. The Hearing Officer finds that the Respondent, Milagros Ferreras, President of the corporation doing business as Capel Drugstore, improperly dispensed and sold Quaalude tablets to individuals with prescriptions and to individuals without prescriptions.
Recommendation Revoke the permit to operate a pharmacy in the State of Florida issued to Ponce de Leon, Inc., doing business as Capel Drugstore, and Milagros Ferreras, Evina Valera and Julio C. Pascual. DONE and ORDERED this 15th day of March, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jack R. Blumenfeld, Esquire 619 NW 12th Avenue Miami, Florida 33136 Michael Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 H. F. Bevis Executive Secretary Florida Board of Pharmacy Post Office Box 3355 Tallahassee, Florida 32302
Findings Of Fact At all times material hereto, respondent, Ahmad Enterprises, Inc., held alcoholic beverage license number 23-10516, series 2-APS, for the premises known as Lucilles Market (the "premises"), located at 9300 N.W. 17th Avenue, Miami, Dade County, Florida. Ibrahim M. Ahmad is the respondent's sole corporate officer. In January 1992, Detective Hladky of the Metro-Dade Police Department and U.S.D.A. Special Agent Carol Bennett began an undercover investigation of the premises. Such investigation was predicated on information Special Agent Bennett had received from a confidential informant (CI) which indicated that persons associated with Lucilles Market were purchasing U.S.D.A. Food Coupons for cash and at less than their face value. On January 13, 1992, Special Agent Bennett gave the CI four U.S.D.A. Food Coupon Books, having an aggregate face value of $245.00, for the purpose of attempting to sell such books to persons inside the licensed premises. The CI then entered the licensed premises, met with Ibrahim M. Ahmad, and sold him the four coupon books for the $125.00 Mr. Ahmad offered. Pertinent to Mr. Ahmad's knowledge of the impropriety of his conduct, it is observed that on this occasion Mr. Ahmad inquired of the CI as to whether or not he worked for the police department before he would consummate the transaction. On January 21, 1992, Special Agent Bennett gave the CI six U.S.D.A. Food Coupon Books, having an aggregate face value of $360.00, for the purpose of attempting to sell such books to persons inside the licensed premises. When the CI entered the licensed premises, he again met with Mr. Ahmad, and sold him the six coupon books for the $200.00 Mr. Ahmad offered. Special Agent Bennett recovered 100 percent of the food coupons, which were clearly marked "non-transferable," through the Federal Reserve Bank. Each coupon involved in the aforesaid transaction had been deposited to the account of Ahmad Enterprises, Inc., at America First Bank, Miami, Florida, which reflects that respondent was reimbursed the full face value of the coupons by U.S.D.A. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered revoking respondent's alcoholic beverage license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of December 1992. WILLIAM J. KENDRICK 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 22nd day of December 1992.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the posthearing memorandum and the entire record compiled herein, I hereby make the following relevant findings of fact: Respondent, Alfred Rifflard, Jr., during times material herein, was a licensed real estate broker-salesman and is the holder of license number 0338064. Respondent, Thomas L. Narog, during times material herein, was a licensed real estate salesman and is the holder of license number 0309097. On approximately May 24, 1982, Respondent Narog represented to John F. Wodalski that Respondent Rifflard, as an investor, was interested in purchasing certain real property owned by Wodalski. Based on discussions with seller Wodalski, Wodalski and Respondent Alfred Rifflard entered into a deposit receipt and contract for sale and purchase of the Wodalski property. The purchaser is listed on the deposit receipt contract as Alfred Rifflard and/or assigns." (Petitioner's Exhibit 3) The negotiations for the sale of the subject property were conducted at the bar of a country club where both Respondent Naroq and seller Wodalski were employed. Respondent Rifflard was aware that the subject property had been on the market for approximately eighteen months. Seller Wodalski expressed (to Respondent Narog) disenchantment that he was unable to move the property as he had planned to purchase other properties with the proceeds received from the sale of the subject property. Respondent Narog attempted to sell the Wodalski property to enable him (Wodalski) to purchase the other property. During the negotiations for the sale of the subject property, Respondent Wodalski tendered a copy of his business card to seller Wodalski. That business card reflected that Respondent Rifflard was a licensed real estate salesman. Following the execution of the deposit receipt contract by Respondent Rifflard, Respondent Rifflard showed the property to approximately three prospective purchasers in an effort to sell the property prior to the purported closing date. Federal Land Title Corporation of Ft. Lauderdale, Florida was commissioned to handle the closing of the property from seller Wodalski to Respondent Rifflard and/or his assigns. This is confirmed by a letter dated August 19, 1982 to seller Wodalski wherein loan processor Kathy Bradley advised the seller that she expected to expedite the closing of the Wodalski property. (Petitioner's Exhibit 4) Upon receiving the above-referred letter from Federal Land Title Corporation, seller Wodalski demanded a tender of the $1,000 earnest money deposit which is referred to in the deposit receipt contract executed by Respondent Rifflard. At that time, Respondent Narog was told that no monies could be disbursed to him prior to closing. Seller Wodalski called off the closing based on his claim that another broker advised him that it was illegal for an undisclosed licensed real estate salesman to purchase property in his name. Based on the testimony of Respondents Rifflard and Narog including the testimony of the Petitioner's investigator, Anthony Nicola, who investigated the subject complaint, it is specifically found herein that the Respondents disclosed the fact that Rifflard was a licensed real estate salesman at the time the deposit receipt contract was executed herein. In making this finding, consideration was given to seller Wodalski's testimony to the effect that he was busy 2/ at the time that he entered the deposit receipt contract and that it was indeed possible that Respondent Rifflard tendered a business card to him at the time he entered the subject contract. Paragraph two of the deposit receipt contract reveals that the method of payment includes a $1,000 deposit, in the form of a note, which would be returned to the buyer at closing. It is undisputed by the Respondents that no earnest money deposit note in the amount of $1,000 was given the buyer's attorney to be held in trust until the closing was completed. The Respondents acknowledged that it was an error on their part to fail to execute the earnest money deposit as Respondent Rifflard agreed in the subject deposit receipt contract. Further, Respondent Rifflard urges that his failure to execute a note was an oversight on his part.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondents, Alfred Rifflard, Jr. and Thomas L. Narog, be privately reprimanded by the Petitioner, Division of Real Estate, based on their failure to place in deposit, to be held in trust, a $1,000 earnest money deposit in connection with the transaction surrounding the deposit receipt and contract for sale and purchase entered into by Alfred Rifflard, Jr., as purchaser of certain real property owned by John Wodalski. RECOMMENDED this 31st day of January, 1984, 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 31st day of January, 1984.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the administration action and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Kamel Supermarket, Inc., held alcoholic beverage license number 23-01444, series 2 APS, for the business known as Kamel Supermarket (the "premises"), located at 3601 Grand Avenue, Miami, Dade County, Florida. Jamal E. Rahma was the sole stockholder and officer of Respondent. In May 1995, U.S.D.A. Special Agent John Karlovitch, now a Deputy U.S. Marshall, began an undercover investigation of the premises. Such investigation was predicated on information received which indicated that persons associated with Kamel Supermarket were purchasing U.S.D.A. Food Coupons for cash and at less than their face value. On May 17, 1995, Special Agent Karlovitch gave Bernadette Hargrett, an Investigative Operative operating undercover, four U.S.D.A. Food Coupon Books having an aggregate face value of $200, for the purpose of attempting to sell such books to employees of the licensed premises. Ms. Hargrett entered the licensed premises and met with an unknown male, who appeared to be an employee, and sold him the four coupon books for $150 in cash. On May 31, 1995, Special Agent Karlovitch gave Ms. Hargrett U.S.D.A. Food Coupons having an aggregate face value of $400, for the purpose of attempting to sell such coupons to employees of the licensed premises. Ms. Hargrett entered the licensed premises and met with a different male than on the first occasion, who also appeared to be an employee, and sold him the food coupons for $300 in cash. On August 9, 1995, Special Agent Karlovitch gave Ms. Hargrett U.S.D.A. Food Coupons having an aggregate face value of $800, for the purpose of attempting to sell such coupons to employees of the licensed premises. Ms. Hargrett entered the licensed premises, met with the same unidentified male as on May 31, 1995, and sold him the food coupons for $600 in cash. On September 7, 1995, Special Agent Karlovitch gave Ms. Hargrett U.S.D.A. Food Coupons having an aggregate face value of $1,000, for the purpose of attempting to sell such coupons to employees of the licensed premises. Ms. Hargrett entered the licensed premises, met with Jamal E. Rahma, and, following some discussion, sold him the food coupons for $750 in cash. Pertinent to Mr. Rahma's knowledge of the impropriety of his conduct, it is observed that before he would purchase the coupons, Mr. Rahma took Ms. Hargrett outside the store and into his car to discuss the transaction. Also, pertinent to Mr. Rahma's knowledge of the impropriety of his conduct, as well as the appropriate penalty, the proof demonstrated that while Kamel Supermarket was at one time authorized to accept food coupons, its authorization was revoked in 1993 for similar misconduct, and that Kamel has previously been the subject of two previous disciplinary actions by Petitioner for similar misconduct. Those actions, one in 1993 and one in 1994, were resolved by consent order and the payment of a civil penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered revoking Respondent's alcoholic beverage license. DONE AND ORDERED this 29th day of October, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1997. COPIES FURNISHED: James D. Martin, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Jamal Rahma c/o Kamel Supermarket 3601 Grand Avenue Miami, Florida 33129 Major Jorge Herrera Augusta Building, Suite 100 8685 Northwest 53rd Terrace Miami, Florida 33166 Richard Boyd, Director Division of Alcoholic Beverages and Tobacco Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
Findings Of Fact Santa Cruz Marketing, Inc., d/b/a SMI (hereinafter referred to as SMI), a Delaware corporation, is located at Suite 29, 1280 South Powerline Road, Pompano Beach, Florida 33069. Although SMI began operating as a business in Florida in December of 1988, it was not authorized to do business in Florida until December of 1991. At all times material hereto, Edward Winders has been the president/secretary, Jim Winders has been the vice president/treasurer, and Cecil Butler has been the general manager for SMI. Edward Winders and Jim Winders each own 50% of the stock of SMI. Cecil Butler has no ownership interest in SMI and is simply a salaried employee. Edward Winders and Jim Winders are responsible for the day-to-day operation of the business. Although Cecil Butler has some unidentified level of supervisory responsibility over some of the other employees, no evidence was offered that he in any way participates in management decisions regarding the operation of the business itself. SMI advertises by placing ads in newspapers throughout the United States. Its ad reads as follows: "Easy credit card, cash advance, $5000 credit line, no credit check! Call 1-800-347-0773." SMI's business operations consist of the following units: the origination department, the customer service department, the clerical section, and the shipping section. When a call is placed using the toll-free number, that telephone call is answered by an account representative in the origination department. A written script called a credit card presentation is utilized by the account representative. The account representatives do not deviate from that script. The account representative obtains basic information from the caller, gives a brief program description, and then causes to be sent a packet of information called the first mailer to the caller. The script utilized by the account representative, however, does not tell the account representative how to answer questions from the callers. No evidence was offered as to any procedures SMI may have in place for assuring the correctness of answers given to callers' questions. The credit card presentation script tells the caller that he or she has reached the "easy credit card division," advises the caller that "our credit card offers a $5,000 line of credit which includes cash advance availability, now our major credit cards are also available regardless of credit history!", advises the caller that there are no annual fees and that the lifetime membership is a "one time processing fee," advises the caller that he or she is participating in a "limited membership drive," and advises the caller that "all the information on our credit card will be in your package along with our customer service number." The first mailer greets the "prospective member," refers to SMI's credit card program, encloses a pre-approved application, sets forth the amount of SMI's "lifetime membership fee," encloses a "100% money-back guarantee certificate," encourages the recipient to return his or her application and membership fee within 10 days, and promises a $100 gift certificate usable on the charge balance. The lifetime membership fee is $75 if paid by money order or cashier's check and $85 if paid by personal check or C.O.D. No further information is given regarding the details of SMI's "credit card program." An enclosure in the first mailer is a one-page sheet entitled "Special Notice." It features a facsimile of a Visa card and a facsimile of a MasterCard card. The short text includes the following language: Mail today and receive all these privileges. *CASH ADVANCES *VISA CARD AVAILABLE *MASTERCARD AVAILABLE *$100.00 MERCHANDISE CERTIFICATE *ADD POSITIVE INFORMATION ON YOUR CREDIT REPORT HAPPY SHOPPING!!!! The enclosed return envelope is directed to Santa Cruz Marketing, Inc. The line underneath that states that the envelope is going to "SMI Card Distribution Center." If the recipient does not immediately comply, a second mailer is sent five days later. The enclosures are the same as in the first mailer. The "dear prospective member" letter is different and is "just a friendly reminder that we have not received your lifetime membership fee for your pre-approved $5,000 credit card." It encourages the recipient to "take advantage of this unique credit card offer!" and advises the recipient that if the recipient's deadline has already expired, then a call should be placed to SMI's customer service department at a non-toll-free number. After the recipient submits the pre-approved application and pays the membership fee, he or she then receives the membership package. That package begins with a letter greeting the "new card member" and contains the following introductory paragraph: Welcome to the wonderful world of home shopping with your SMI credit card. As a preferred card member, you are offered the opportunity to purchase merchandise from our fantastic color catalogues filled with a wide variety of items. Attached to the letter is an SMI credit card. That letter is the first advice given by SMI to its new "lifetime member" that he or she has paid $75 to join a home shopping club. The letter further advises the recipient that purchasing merchandise from SMI's catalogues will "enable you to establish that A+ credit rating you have always desired, but which may have been denied to you in the past." The letter further advises that SMI will submit monthly statements to the member and that the member can then pay 10% of the balance (with a minimum payment of $15) or the balance can be paid in full. The letter also advises that the new member will pay no interest charges on his or her purchases, "but please remember in order to help you establish your A+ credit rating, your payments must be made on time." The membership packet also contains two merchandise catalogues, an order form, and a price list. According to the price list and the terms of SMI's home shopping program, two prices are available to an SMI member. For each item, the member may pay a specified cash price and a specified shipping charge. Alternatively, the member can pay a credit price, which is higher than the cash price. If the member chooses to purchase the item on credit, the member will pay the higher price as follows: the member includes with his or her order form a specified portion of the credit price as a down payment on the item, with the balance of the credit price being charged to the member's charge account. The member paying the higher credit price will also pay the specified shipping charge. The promised $100 merchandise certificate is included in the membership packet. The certificate specifies that it can only be applied to the credit portion of an order after the down payment for that order is paid and that the certificate is void after 30 days from the date on which the membership was issued. The membership packet includes, for the first time, a description of SMI's cash advance program. The description of that cash advance program begins as follows: Once you have established a sufficient credit record with SMI, you will be extended 'cash advance privileges'. Simply prove your credit worthiness by shopping with your SMI credit card. All you have to do is, charge and pay for at least $500.00 of purchases of your unpaid balance. Once you have done that, you have qualified for a cash advance of $250.00. CASH ADVANCES OFFERS Immediate cash No interest charge Low monthly payments No processing fee Cash advances up to $2,500.00 According to the program, a cash advance of $2,500 would only be available if a member had charged and paid for $5,000 worth of purchases. The flyer also recites that the $100 merchandise certificate does not apply to cash advances. The next flyer contained in the membership packet is entitled "Qualify for a Visa or MasterCard." That flyer features facsimiles of both a MasterCard and a Visa card. The description of that portion of SMI's program begins as follows: Simply prove your credit worthiness by using your SMI Credit card. Just charge and pay for at least $750.00 of your unpaid balance. It's as simple as that! Once you have established a sufficient credit record, you will be sent a 'GOOD CREDIT REFERENCE LETTER' that you can use when applying for credit elsewhere. Plus, you will receive a 'MAJORITY APPROVED' application for a visa or mastercard with 'NO SECURITY DEPOSIT REQUIRED.' UNSECURED - NO SECURITY DEPOSIT REQUIRED (WE WILL DO IT FOR YOU) A $380.00 IMMEDIATE CREDIT LINE CASH ADVANCES COMPETITIVE INTEREST RATES ONE TIME PROCESSING CHARGE ONLY $35.00 ANNUAL CHARGE MAJORITY APPROVED WE ARE SO SURE THAT YOU WILL BE APPROVED THAT WE WILL SEND YOU A 'CASHIERS CHECK FOR $380.00' IF YOU DO NOT QUALIFY. The flyer points out that the $100 merchandise certificate does not apply to this part of the program. Another flyer contained in the membership packet explains a second way in which a member can qualify for a Visa or MasterCard as follows: New Collateralized Credit Card Program You Can Now Obtain a Major Bank Credit Card even though you may have previously been turned down! Under the 'collateralized credit card program' the member may obtain a secured major bank credit card which 'requires a security deposit equal to your initial credit limits.' If the member returns the coupon requesting details, SMI provides the name of another company, Access Credit Card Company, which company would charge an additional fee to provide the member with an application from New Era Bank. If the member followed that procedure, he or she would most likely obtain a Visa or MasterCard bank card from New Era Bank with a credit limit equal to the amount of money the member was willing to deposit in New Era Bank since that bank approves the majority of such applications. The membership packet contains three additional flyers. The first one relates to the SMI jewelry catalogue and explains that most gold items are sold by weight at current gold market prices, that prices fluctuate daily with the market, and that the member should check with SMI's ordering department by phone to receive current market prices. The second flyer gives the member information on joining the Select Coupon Club by paying a membership fee of $19.95 and receiving coupons for use at the supermarket. The third flyer describes a program whereby the member can pay $14.95 postage and handling and receive a Hotel Express Membership Directory and membership discount at participating hotels and resorts. A customer cannot obtain an SMI credit card prior to payment of the $75 membership fee. A customer cannot obtain credit for purchasing products from SMI's catalogues prior to payment of the membership fee. The SMI catalogues, received after payment of the fee, are not available to the general public. The customer is not informed prior to paying the membership fee, either during telephone conversations with SMI account representatives or from the first two mailers, that the credit card which the customer would receive can only be used to purchase goods from the two SMI catalogues. Although prospective members are advised in the first and second mailers that Visa and MasterCard cards are available, they are not told how they can obtain such cards until after they have paid their fee. Until after payment of the fee, they are not told that they can obtain a secured, i.e., a fully collateralized bank card by depositing in that bank monies equivalent to the credit limit then extended to them by the bank. Customers are not told prior to the payment of their membership fee, either by SMI account representatives during telephone conversations or in the first or second mailers, that the obtaining of a secured Visa or MasterCard card from New Era Bank will also require the payment of a processing fee and will carry a minimum $500 deposit requirement. Until after payment of the fee, they are not told that the alternative is to charge and pay for $750 worth of merchandise from SMI's two catalogues (not including the amount paid as a down payment on each item purchased) which amounts to $850 worth of charged merchandise if the customer uses the $100 gift certificate, in exchange for SMI then giving the customer a letter saying the customer is a good credit risk, which the customer can then present in applying for credit elsewhere. No evidence was offered that any other organization considers SMI's letter of recommendation meaningful. Prior to the payment of the fee, the prospective member is not advised that the cash advances which he or she would become entitled to receive are limited to an amount of one-half of the total balance the member has paid on the member's SMI charge account balance. No member has received a cash advance from SMI. No members have obtained a Visa or MasterCard card by charging and then paying for $750 worth of products from SMI's catalogues. Other than those documents previously described, no other documents, contracts, or statements are provided by SMI to prospective members or members. SMI purchases the products found in its catalogues at the distributorship cost, a lower price than members pay for the products when they purchase from SMI. As of July 1, 1991, SMI had 12,567 members. By the time of the final hearing in this cause, SMI had over fifteen thousand members. Eighty-four members had purchased items from the SMI catalogues. Petitioner received a consumer complaint regarding SMI in February of 1990. On June 28, 1990, Petitioner served on SMI a subpoena requesting that SMI provide to Petitioner the following information: Name of surety bonding company, location of surety bond and copy of surety bond; location and account number of Florida escrow account, proof of account; copy of information statement and consumer contract. SMI was unable to respond to the subpoena by providing that information because it did not have those items. SMI did respond to the subpoena, however, by providing copies of its advertising and the materials used in its mailers and membership packages. SMI further obtained a bond pursuant to Petitioner's direction to do so. In a series of letters from SMI's attorney to Petitioner, SMI submitted revised advertising and revised informational documents requesting Petitioner's approval of the revisions to bring SMI in compliance with the Department's requirements. The Department failed to respond to SMI's requests. Rather, on March 21, 1991, the Department served on Jim Winders and Cecil Butler an Administrative Complaint for Entry of a Cease and Desist Order and Imposing Penalties, alleging that Jim Winders and Cecil Butler were operating as a credit service organization without fully complying with Chapter 817, Florida Statutes. Jim Winders and Cecil Butler timely requested a formal hearing, and this cause was transferred to the Division of Administrative Hearings. While this administrative proceeding was pending, on July 1, 1991, the activities of loan brokers became regulated, and responsibility therefor was assigned to the Department. On August 12, 1991, the Department filed its Amended Complaint for Entry of a Cease and Desist Order and Imposing Penalties which included the allegations in the original Administrative Complaint, named SMI as a Respondent for the first time, added allegations that the three Respondents were operating as loan brokers, and further added allegations that the three Respondents were operating as retail sellers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondents SMI and Jim Winders guilty of the allegations contained in the Amended Complaint for Entry of a Cease and Desist Order and Imposing Penalties as described in this Recommended Order; Finding Respondent Cecil Butler not guilty of the allegations contained within the Amended Complaint for Entry of a Cease and Desist Order and Imposing Penalties; Ordering Respondent SMI to cease and desist from violations of the statutes regulating the operation of credit service organizations, loan brokers, and retail sellers; Ordering Respondent Jim Winders to cease and desist from violations of the statutes regulating the operation of credit services organizations and loan brokers; Imposing an administrative fine against Respondent SMI in the sum of $90,000 to be paid by a date certain; and Imposing an administrative fine against Respondent Jim Winders in the sum of $6,000 to be paid by a date certain. DONE and ENTERED this 12th day of March, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER The Department's proposed findings of fact numbered 1-30, 34-46, 56, 57, 59- 66, 71-83, 85-89, and 91 have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed findings of fact numbered 31, 32, 95, and 96 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. The Department's proposed findings of fact numbered 33 and 97 have been rejected as being contrary to the evidence in this cause. The Department's proposed findings of fact numbered 84, 90, 92-94, and 111 have been rejected as being irrelevant to the issues under consideration in this cause. The Department's proposed findings of fact numbered 47-55, 58, and 67-70 have been rejected as being unnecessary to the issues involved herein. The Department's proposed findings of fact numbered 98-106 have been rejected as being subordinate to the issues herein. The Department's proposed findings of fact numbered 107-110 have been rejected as not being supported by any competent evidence in this cause. Respondents' proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Respondents' proposed findings of fact numbered 4-11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondents' proposed findings of fact numbered 12-19 have been rejected as being subordinate to the issues herein. COPIES FURNISHED: Bridget L. Ryan, Esquire Richard Bisbee, Esquire Department of Banking and Finance Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Jan Peter Weiss, Esquire Parkway Plaza-Suite 21 1280 South Powerline Road Pompano Beach, Florida 33069 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
The Issue The issues for determination are whether Respondent violated Subsections 112.313(2), 112.313(4) and 112.313(6), Florida Statutes (2004),1/ as alleged, and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this proceeding, Danny Howell was a duly-elected commissioner for the City of Ocoee, Florida (hereinafter "City" or "City of Ocoee"). As a commissioner for the City of Ocoee, Respondent was subject to the requirements of Chapter 112, Part III, Florida Statutes, the Code of Ethics for Public Officers and Employees. At all times relevant to this proceeding, James Gleason was city manager for the City of Ocoee. Mr. Gleason was appointed city manager by the Ocoee City Commission in January 2001 and served in that position until March 2004. When Mr. Gleason was initially appointed as city manager, Respondent did not vote in favor of Mr. Gleason. During his tenure as city manager, Mr. Gleason was supervised by the Ocoee City Commission, which was comprised of five elected commissioners. As a commissioner, Respondent was one of Mr. Gleason's immediate supervisors. Several years prior to Mr. Gleason's appointment as city manager, he had been a commissioner for the City of Ocoee and a candidate for mayor. As a result of Mr. Gleason's political involvement in the City, Respondent knew Mr. Gleason before he was appointed city manager. When hired, Mr. Gleason's annual base salary was approximately $87,000.00. Mr. Gleason's annual base salary at the time of his termination from the position of Ocoee city manager was $103,000.00. As a City commissioner, Respondent was paid a monthly salary of $400.00 per month to serve on the City Commission. In addition to his $400.00 monthly salary, Respondent received a monthly stipend of $275.00 for local travel. Fine for Late-Filed Campaign Treasurer's Report At all times relevant to this proceeding, Jean Grafton served as the Ocoee city clerk and as the City's supervisor of elections. By letter dated April 12, 2001, Ms. Grafton advised Respondent that a $150.00 fine had been assessed against him due to his Campaign Treasurer's Report not being timely filed. The same or a similar letter was also sent to Vickie Prettyman, Respondent's campaign treasurer. Despite Respondent's having been notified of the $150.00 fine in April 2001, a year later the fine had not been paid. After the $150.00 fine remained outstanding for more than a year, Ms. Grafton requested Mr. Gleason's assistance in getting Respondent to pay the fine. Ms. Grafton told Mr. Gleason that if Respondent did not pay the $150.00 fine, she would have to notify the Florida Elections Commission that Respondent had failed to pay the fine. Upon learning that the $150.00 fine had not been paid, Mr. Gleason discussed the matter with Respondent. Respondent advised Mr. Gleason that Ms. Prettyman was to pay the fine. In making this statement, Respondent was reasonably relying on Ms. Prettyman's representation to him that she would pay the $150.00 fine. As Respondent's campaign treasurer in 2001, Ms. Prettyman took responsibility for late-filing Respondent's Campaign Treasurer's Report in April of that year. Thus, Ms. Prettyman assumed she should pay the fine. The $150.00 fine for the late filing of Respondent's Campaign Treasurer's Report was paid on May 17, 2002. There is no dispute that Mr. Gleason delivered $150.00 in cash to the City Clerk's Office and paid the fine that had been assessed against Respondent. However, there was conflicting testimony between Ms. Prettyman and Mr. Gleason as to who provided the funds for the payment of the $150.00 fine and under what circumstances the fine was paid. On May 17, 2002, Ms. Prettyman met with Mr. Gleason at the City's Beach Recreation Center, where Ms. Prettyman worked as interim recreation director for the City. The meeting was about an upcoming work-related project. After the meeting ended, Mr. Gleason reminded Ms. Prettyman that the $150.00 fine was still outstanding.2/ Ms. Prettyman then told Mr. Gleason she got paid that day3/ and would pay the fine after she cashed her paycheck during her lunch hour. Although it was lunch time, Ms. Prettyman told Mr. Gleason that she could not leave the recreation center until the other employee assigned to the center returned from lunch so that the center could remain open.4/ On May 17, 2002, Mr. Gleason volunteered to stay at the Beach Recreation Center, so it could remain open while Ms. Prettyman went to the bank to cash her paycheck. When Ms. Prettyman returned to the recreation center, she told Mr. Gleason that she would go to City Hall to pay the fine later that afternoon. In response, Mr. Gleason offered to take the money to City Hall and make the payment for Ms. Prettyman since he was going there after he left the recreation center. Ms. Prettyman accepted Mr. Gleason's offer to deliver the $150.00 to City Hall and pay the fine for her. Ms. Prettyman then gave Mr. Gleason $150.00 in cash to pay the outstanding fine. Mr. Gleason never gave Ms. Prettyman a receipt for the payment. However, a few days after Ms. Prettyman gave the $150.00 to Mr. Gleason, she checked with Ms. Grafton to determine if the fine had been paid. In response, Ms. Grafton acknowledged that the payment had been received. Mr. Gleason contradicts the foregoing account regarding payment of the $150.00 fine, as described and testified to by Ms. Prettyman. Specifically, Mr. Gleason denied that Ms. Prettyman gave him the $150.00 in cash to pay the fine and testified that he paid the fine out of his personal funds. According to Mr. Gleason, he paid the fine after being directed to do so by Respondent. Mr. Gleason testified that after Ms. Grafton asked him to assist her in getting Respondent to pay the fine, he discussed the matter with Respondent on two or three occasions. Mr. Gleason testified that on one of these occasions, Respondent told him (Gleason) that he made more money than Respondent so he (Gleason) should pay the fine and make it go away. Based on the foregoing comments that Respondent allegedly made, Mr. Gleason testified that he believed Respondent wanted, expected, or was directing him (Gleason) to pay Respondent's $150.00 fine. Furthermore, Mr. Gleason testified that he believed and/or feared that his job as city manager might or could be adversely affected if he did not pay the fine. Contrary to Mr. Gleason's testimony, the credible testimony of Respondent is that he never directed or in any way coerced, threatened, or pressured Mr. Gleason to pay the $150.00 fine. Ms. Prettyman's testimony regarding payment of the $150.00 fine and the circumstances surrounding the payment is found to be more credible than that of Mr. Gleason. Waiver of Fees Related to Late Payment of Water Bill During the time Mr. Gleason served as city manager, Respondent and his wife were sometimes late in paying for their residential water service. In March 2003, the City of Ocoee determined that Respondent's residential water service would be terminated due to non-payment of the balance owed on the account. On or about March 20, 2003, Cathy Sills, who worked in the City's Utilities Service Department (hereinafter referred to as "Utilities Department"), contacted Mr. Gleason and informed him that Respondent was on the City's water service cut-off list. Mr. Gleason then contacted Respondent and informed him that his water service was going to be turned off that day if his bill was not paid. After being notified that his water service was scheduled to be cut-off, Respondent told Mr. Gleason that either he (Respondent) or his wife would go to the Utilities Department that day to pay the past due balance. Respondent also told Mr. Gleason that he would not be able to pay the late charges and any other related fees. On March 20, 2003, after Mr. Gleason telephoned Respondent about his (Respondent's) delinquent water bill, Respondent went to the Utilities Department and paid his water bill. Some time after Respondent spoke to Mr. Gleason, but before he arrived at City Hall to pay his water bill, the water service had been turned off. Due to Respondent's existing financial difficulties, Respondent needed more time to pay the late charges or other fees related to the water bill. Nevertheless, Respondent never asked or directed Mr. Gleason to waive the late charges or other fees associated with his delinquent water bill. Furthermore, Respondent never asked or directed Mr. Gleason to make sure that Respondent's water service was not cut off to restore water services after it was cut off. Mr. Gleason testified that after he talked to Respondent about his (Respondent's) delinquent water bill, he called Ms. Sills at the Utilities Department and asked her what the policy was regarding waiver of late charges. Mr. Gleason then told Ms. Sills that if the policy allowed for such a waiver, she should remove Respondent's late charges and the disconnect/service interruption fee from his account.5/ At all times relevant to this proceeding, the City of Ocoee had an informal "forgiveness" policy in which late charges and other penalties related to delinquent water bills were waived. The purpose of the policy was to provide assistance to individuals, who like Respondent, were having financial difficulties. Consistent with the City's "forgiveness" policy, Mr. Gleason had routinely directed the Utilities Department employees to waive late fees and other fees related to delinquent water bills of eligible citizens and to work out payment plans for them. Ms. Sills waived Respondent's late charges and the service interruption fee associated with Respondent's water bill after being directed to do so by Mr. Gleason. As a result of this waiver, on March 20, 2003, two late fee charges totaling $50.00 and one service restoration fee of $50.00 were "reversed" or removed from Respondent's account. Ms. Sills confirmed the waiver in an e-mail to Mr. Gleason in which she wrote, "Pursuant to our conversation and you [sic] direction, I have reversed from [Respondent's] account" two late fees at $25.00 each and one service restoration fee of $50.00. Respondent received a call from Ms. Sills advising him that the late fees and other fees related to his water bill had been waived. However, she did not mention why they were waived or at whose direction. At the time Mr. Gleason directed Ms. Sills to waive Respondent's late fees, Mr. Gleason knew that Respondent was currently experiencing financial difficulties and had been experiencing such difficulties for some time. Based on Respondent's financial circumstances, he was eligible for the waiver of late fees and service interruption fees under the City's "forgiveness" policy. The City's "forgiveness" policy, which was applied in Respondent's case and effectively waived his late charges and service interruption fees, was also routinely used in other financial hardship cases. Respondent had been delinquent in paying his water bill on other occasions because of the financial difficulties he was experiencing. However, the waiver of late fees and service interruption fees given to Respondent in March 2003, at the direction of Mr. Gleason, was the only waiver that Respondent ever received. Not long before March 20, 2003, the City Commission adopted a policy which increased the late charges for delinquent water bills from $5.00 to $25.00. When the Commission was considering the fee increase, Respondent opposed the increase. Notwithstanding Respondent's opposition to the increase in late charges for delinquent water bills, he believes that once a policy is adopted by the Commission, it should be applied equally to everyone. In accordance with this belief, Respondent did not ask or direct Mr. Gleason to violate City policy with regard to Respondent's water service, water bill, or fees/charges related thereto. Payment of City-Issued Credit Card on Balance At all times relevant to this proceeding, City commissioners received a monthly stipend of $275.00 to cover travel costs and expenditures in the local area. The City of Ocoee is located in Orange County, Florida. However, the resolution that established the monthly stipend for City commissioners defined the "local area" as Orange, Seminole, Lake, and Osceola counties.6/ In addition to receiving the monthly stipend of $275.00 for local travel, the City issued credit cards to the City commissioners. Each month, the charges incurred by City commissioners were reviewed by the City's Finance Department to reconcile and ensure the legitimacy of the charges. On May 9, 2002, Gequitha Cowan, executive assistant to the mayor and commissioners of the City of Ocoee, sent an e-mail to Respondent. In the e-mail, Ms. Cowan reminded Respondent that he had not yet paid the City the $354.18 to cover non-reimbursable charges that he charged on the City-issued credit card. Ms. Cowan sent Mr. Gleason a courtesy copy of the e-mail. Of the $354.18 outstanding balance on the credit card, $157.83 was for expenses Respondent incurred that were related to his attending the League of Cities conference held in Atlanta, Georgia. The remaining credit card balance of $196.35 was for local charges, primarily to restaurants made during a seven-month period, September 1, 2001, through April 2002. Respondent admitted that included in the $196.35 credit card balance is a $28.80 charge for which he should not be reimbursed. This charge resulted from Respondent's inadvertently using his City-issued (Visa) credit card, instead of his personal Visa credit card when he purchased medicine at a local store. Except for the $28.80 charge, Respondent believed that the other charges at issue were expenses for which the City should have reimbursed him. After Mr. Gleason received a copy of Ms. Cowan's May 9, 2002, e-mail, he met with Respondent to see if any of the charges identified in the e-mail were expenditures that could be properly reimbursed by the City. With respect to the $157.83 expenditure, Respondent presented no documentation to support reimbursement. As to the remaining balance (except the $28.80 Eckerd's charge), the credit card charges were for expenditures made at establishments in the local area and were not reimbursable by the City. There is no allegation that the expenditures made by Respondent were not legitimate expenses. However, based on the City's policy, expenditures for official City business in the local area should have been paid out of Respondent's monthly stipend. Such expenditures were not reimbursed by the City, even if the expenses were put on the City-issued credit card. Pursuant to the City's policy, generally, the City reimbursed City commissioners only for expenditures involving official business outside the local area. Respondent sometimes mistakenly made improper charges when using his City-issued credit card because he did not understand the City's policy related thereto.7/ In fact, as of the date of this proceeding, Respondent acknowledged that he still does not understand the policy. Due to Respondent's frustration with not understanding the City's policy and resulting problems associated therewith, Respondent voluntarily returned his City-issued credit card to the City's Finance Department in 2002. Although Respondent believed, albeit mistakenly, that he should have been reimbursed for the subject charges on the City-issued credit card, he never brought the issue regarding the disputed charges before the City Commission, the final arbiter of such disputes. Having failed to do so, Respondent does not dispute that he was obligated to pay the City $354.18, as determined by the City's Finance Department. After Respondent received Ms. Cowan's e-mail and talked to Mr. Gleason about the charges, he did not immediately pay the charges. The reason Respondent did not pay the charges in May or early June 2002, was that he was not working. As a result of being unemployed, Respondent was experiencing financial difficulties and did not have the money to pay the $354.18 to the City.8/ On June 3, 2002, Mr. Gleason paid the City of Ocoee $354.18 from his personal funds to cover Respondent's outstanding City-issued credit card debt. Mr. Gleason paid the outstanding charges using a personal check which had the imprinted name of Mr. Gleason and Mr. Gleason's wife. The memo section of the check indicated that the check was for "miscellaneous expenses" for the same time period as Respondent's outstanding charges. There is no dispute that on June 3, 2002, Mr. Gleason paid the $354.18 to cover Respondent's outstanding credit card charges. However, the circumstances surrounding the credit card payment, the reason Mr. Gleason made the payment, and whether Respondent repaid Mr. Gleason for the payment are disputed. Although, due to his financial situation, Respondent was unable to timely pay his outstanding $354.18 credit card charges, he never asked or directed Mr. Gleason to pay those charges. Furthermore, Respondent never coerced, threatened, or pressured Mr. Gleason to pay the credit card charges. Respondent was out-of-town on June 3, 2002, the day Mr. Gleason paid his $354.18 credit card bill, but returned to the City of Ocoee a day or a few days later. Respondent first learned that Mr. Gleason had paid the $354.18 outstanding credit card balance in or about early June 2002, after returning from his out-of-town trip. Mr. Gleason approached Respondent at City Hall and told him that he (Gleason) had taken care of the credit card bill. Mr. Gleason then gave Respondent the receipt which showed that Mr. Gleason had paid Respondent's outstanding $354.18 credit card bill. Mr. Gleason told Respondent that he paid the credit card bill because he was trying to help him (Respondent) out with "Martha" and did not want Respondent to look bad. Respondent was surprised to learn that Mr. Gleason had paid the $354.18. In response to Mr. Gleason's statements to Respondent described in paragraph 60, Respondent told Mr. Gleason that he had no right to pay the outstanding credit card bill and that he did not want him to pay the bill. Respondent also told Mr. Gleason that his paying the bill would "create a bad problem" for both of them. The "Martha" referred to by Mr. Gleason during his conversation with Respondent, discussed in paragraph 60, was Martha Lopez Anderson, a citizen of the City of Ocoee. At the time in question (May or early June 2002) Ms. Anderson, a very active citizen in the community and a familiar face at City Hall, was making public record requests regarding the travel expenses of City commissioners. The travel records requested and being reviewed by Ms. Anderson were located in the Finance Department in City Hall. Consequently, it was common knowledge among many City employees at City Hall that Ms. Anderson was reviewing the City commissioners' travel records. After Mr. Gleason paid Respondent's credit card balance, but prior to October 1, 2002, Richard Waldrop, a friend of Respondent and long-time City employee, became aware that Ms. Anderson was reviewing the City Commissioners' travel records. In fact, Ms. Anderson spoke to Mr. Waldrop about the matter and told him that Mr. Gleason had paid a bill for Respondent and that Respondent had not repaid Mr. Gleason. Mr. Waldrop does not recall the actual date that he learned that Respondent owed Mr. Gleason money for the bill that Mr. Gleason had paid. However, Mr. Waldrop's credible testimony was that he is sure that it was prior to October 1, 2002. After June 3, 2002, but prior to October 2002, Respondent was approached by Mr. Waldrop, who asked him if Mr. Gleason had paid a bill owed by Respondent. In response to his friend's inquiry, Respondent told Mr. Waldrop that Mr. Gleason had paid the bill, but without Respondent's prior knowledge. Respondent also acknowledged that he had not repaid Mr. Gleason, because he did not have the money. Upon learning that Respondent had not repaid Mr. Gleason, Mr. Waldrop was concerned that this was something that Mr. Gleason might want to "hold over" Respondent's head. Mr. Waldrop told Respondent that this situation "didn't look good" and then offered to lend Respondent $420.00 so that he could reimburse Mr. Gleason. Respondent accepted Mr. Waldrop's offer to lend him $420.00 so that he could repay Mr. Gleason. In order to repay the loan to Mr. Waldrop, Respondent and Mr. Waldrop agreed that Respondent, through his (Respondent's) and his wife's cleaning service, would provide house cleaning services to Mr. Waldrop and his wife two hours every other week until the debt was repaid. These services were provided at no charge for about a year, until the $420.00 debt was repaid. After Respondent received the $420.00 loan from Mr. Waldrop, he reimbursed Mr. Gleason for the outstanding credit card balance that Mr. Gleason had paid on June 3, 2002. Although the amount Respondent owed Mr. Gleason was $354.18, when Respondent repaid Mr. Gleason, he gave Mr. Gleason $355.00 in cash. Due to the passage of time, Respondent does not recall the exact date that he reimbursed Mr. Gleason for paying Respondent's $354.18 outstanding credit card debt. Nonetheless, Respondent testified credibly that he repaid Mr. Gleason weeks, rather than months, after he learned that Mr. Gleason had paid Respondent's credit card bill. Furthermore, Respondent testified credibly that he is certain that he reimbursed Mr. Gleason prior to October 1, 2002. Mr. Gleason denied that Respondent repaid him the $354.18. Also, Mr. Gleason's testimony regarding the circumstances which resulted in his paying Respondent's outstanding credit card debt contradicts Respondent's testimony. According to Mr. Gleason, he met with Respondent in or about May 2002, after receiving Ms. Cowan's e-mail, about his credit card balance. Mr. Gleason testified that during that discussion, Respondent told Mr. Gleason that he (Gleason) made the "big bucks" and "could afford it [the credit card balance]." In May 2002, when Respondent's outstanding credit card balance was at issue, Mr. Gleason knew that Respondent was having financial difficulties, as well as other problems. Mr. Gleason testified that, in light of those difficulties, when Respondent made the comments noted in paragraph 73, Mr. Gleason believed that Respondent either did not have the money to pay the credit card bill or did not intend to pay it. Mr. Gleason did not interpret the alleged comments (that Mr. Gleason made "big bucks" and could afford to pay the outstanding credit card balance) as an attempt by Respondent to coerce, threaten, or pressure him to pay the $354.18 or to extort the money from him. Rather, Mr. Gleason testified that he implied from those comments that Respondent was asking Mr. Gleason for a loan. Contrary to Mr. Gleason's interpretation of the foregoing comments made by Respondent, Respondent did not ask Mr. Gleason for a loan, imply that Mr. Gleason should lend him money to pay the $354.18 outstanding credit card balance, or direct Mr. Gleason to pay Respondent's outstanding credit card balance. At this proceeding, Mr. Gleason testified that Respondent never repaid him for the $354.18 payment that he made to the City for Respondent. This testimony contradicts an earlier statement Mr. Gleason made at a City Commission meeting. During the October 1, 2002, City Commission meeting, Mr. Gleason stated that the commissioner, for whom he had paid an outstanding credit card balance, had repaid him in full and that he (Gleason) owed the commissioner some change. Mr. Gleason did not name the commissioner to whom he was referring, but he was referring to Respondent.9/ Mr. Gleason made the statement that the commissioner had paid him in full, in response to comments of Ms. Anderson, in the context of a broader discussion about commissioners' travel expenses. Almost as an aside to the specific "travel expenses" topic being discussed, Ms. Anderson mentioned that inappropriate charges made by "commissioners" were being reimbursed by Mr. Gleason.10/ During the course of making the foregoing comments, Ms. Anderson never specifically named the commissioners whose expenses were being reimbursed by Mr. Gleason. The statement Mr. Gleason made at the October 1, 2002, City Commission meeting, is consistent with the credible testimony of Respondent on two points. First, Mr. Gleason's statement that he was paid in full supports Respondent's testimony that he reimbursed Mr. Gleason for paying the $354.18 credit card balance to the City prior to October 1, 2002. Second, Mr. Gleason's statement that he owed the commissioner change is consistent with Respondent's testimony that, when he reimbursed Mr. Gleason, he gave Mr. Gleason $355.00 in cash. This was $.82 cents more than the outstanding credit card bill that Mr. Gleason paid. In this proceeding, Mr. Gleason testified that when the issue of his paying Respondent's $354.18 credit card charges came up at the City Commission meeting, he did not tell the truth when he said that Respondent had paid him. Mr. Gleason testified that on October 1, 2002, but prior to the City Commission meeting that day, Respondent approached Mr. Gleason and advised him that Respondent's $354.18 credit card bill issue might be raised at the meeting. Mr. Gleason also testified that Respondent told him that if the issue were raised at the meeting, Mr. Gleason should say that Respondent had paid/reimbursed him.11/ Mr. Gleason testified that he lied at the City Commission meeting at the behest of Respondent, because he "wanted to keep [Respondent's] favoritism in terms of [Gleason's] job." As to matters related to the payment of Respondent's outstanding $354.18 credit card debt and the circumstances related thereto, Respondent's testimony is found to be more credible than that of Mr. Gleason. Purchase of Surplus Computer While serving on the City Commission, Respondent's wife, Mrs. Howell, and their son, frequently visited City Hall. During these visits, it was customary for Respondent's son, who was about ten-years-old, to visit Mr. Gleason, whose office was next door to Respondent's office. When Respondent's son went to Mr. Gleason's office, Mr. Gleason would give him candy and sodas. Mr. Gleason and Respondent's son enjoyed a cordial relationship. The City of Ocoee periodically disposes of surplus equipment, including computers, by use of a closed bid system which was open to employees and elected officials. In or about September 2003, during one of Mrs. Howell's and her son's visits to Mr. Gleason's office, a discussion ensued about computers and the City's upcoming sale of its surplus computers. Mrs. Howell's son stated that he wanted one. That day, Mrs. Howell's son had gone to Mr. Gleason's office first, and she joined him there later. In response to Respondent's and Mrs. Howell's son saying he wanted a computer, Mr. Gleason volunteered to get him one as a gift. Mrs. Howell responded by telling Mr. Gleason, "No. He [referring to her son] can wait." Mrs. Howell rejected Mr. Gleason's offer initially because she felt that the family could not afford one, and she did not feel comfortable allowing her son to accept a gift from Mr. Gleason. However, she did not feel comfortable telling Mr. Gleason, especially in her son's presence, that she could not afford the computer her son wanted. Mrs. Howell was adamant and repeatedly told Mr. Gleason that she did not want him to purchase a computer for her son. Nonetheless, Mr. Gleason insisted that he was going to get the computer for her son anyway. After Mrs. Howell made it clear that she did not want Mr. Gleason to purchase a computer for her son, Mr. Gleason said to her, "Listen, I'm going to get it and you can do whatever you want, if you want to pay me back or whatever." Mrs. Howell's final answer to Mr. Gleason was the same one that she initially shared with Mr. Gleason--she did not want him to purchase a computer for her son. Mrs. Howell never asked or agreed to Mr. Gleason buying a computer for her son, and she never agreed to pay Mr. Gleason for purchasing a computer. Respondent was not present in Mr. Gleason's office with his wife and son when Mr. Gleason and Mrs. Howell were discussing the surplus computer, but Mrs. Howell told Respondent about the conversation later. After learning of his wife's conversation with Mr. Gleason, Respondent told Mr. Gleason that he did not want his son to have a computer. Based on this discussion, Respondent believed the matter was settled. There was a computer in Respondent's home, and Respondent believed that for his ten-year-old son to have his own computer would be a detrimental distraction. Mr. Gleason's offer to buy a surplus computer as a gift for Respondent's son was subject to Mr. Gleason being a successful bidder. In order to purchase one of the City's surplus computers, a potential purchaser had to submit a bid. Consistent with this policy, Mr. Gleason submitted a bid for a surplus computer. On September 19, 2003, Mr. Gleason was notified that his bid of $130.10 was one of the successful bids and that he had won one of the City's surplus computers. A few days later, Mr. Gleason purchased the surplus computer to give to Respondent's son. On Monday, September 22, 2003, Mr. Gleason sent an e-mail to Respondent indicating that he had successfully bid on one of the surplus computers. In the e-mail, Mr. Gleason stated that he was going to pay for the computer on Tuesday and then "turn the PC [computer] over to [Respondent's son] for his room." Mr. Gleason then wrote, "We can work out the details later!" Both Respondent and his son read this e-mail. The September 22, 2003, e-mail gave the false and/or misleading impression that Respondent had asked Mr. Gleason to purchase the computer for Respondent's son, knew that Mr. Gleason had submitted a bid on the computer, and had agreed to repay Mr. Gleason for the computer. In fact, none of those impressions were accurate. Respondent never asked Mr. Gleason to bid on a computer for Respondent's son or to purchase such computer. Neither did Respondent ever promise to pay Mr. Gleason for a computer. Although the implication in the September 22, 2003, e-mail was false, there is no indication that Respondent replied to the e-mail. Furthermore, Respondent provided no explanation or reason as to why he failed to respond to the misleading e-mail. On or about September 22, 2003, after Mr. Gleason paid for and received the surplus computer, and he took the computer to Respondent's home, unannounced. When Mr. Gleason brought the computer to Respondent's home, Respondent and his wife were placed in an awkward position. Their son was home when Mr. Gleason brought the computer and was very happy and excited about getting a computer. Seeing the expression on her son's face, Mrs. Howell did not have the heart to tell Mr. Gleason to take the computer back. Rather than disappoint their son, Respondent and his wife allowed Mr. Gleason to install the computer. Not long after Mr. Gleason brought the computer to Respondent's home, Respondent called Mr. Gleason several times and told him to come and pick up the computer. Despite Respondent's repeated directives, Mr. Gleason never came to get the computer. At some point, Mr. Gleason left a voice mail message on Respondent's home telephone indicating that the surplus computer he purchased and gave to Respondent's son was a gift. Rather than picking up the computer as Respondent had requested, on October 1, 2003, Mr. Gleason sent Respondent another e-mail message which stated, "The computer is a gift from [sic] to [Respondent's son], tell [Mrs. Howell] to not worry about any cost-he is a good kid and I hope it helps him with his school work." The October 1, 2003, e-mail implies that Mrs. Howell had agreed to pay for the computer, that Mr. Gleason had now decided that the computer was a gift, and that he no longer expected Mrs. Howell to repay him for purchasing the computer. However, that implication is not only misleading, but unfounded. Nevertheless, Mrs. Howell never agreed to repay Mr. Gleason for the computer. Instead, she, like her husband, had repeatedly refused Mr. Gleason's offer to purchase a computer as a gift for their son. Even though Respondent did not want Mr. Gleason to purchase a computer for his son, there is no indication that Respondent or his wife replied to the October 1, 2003, e-mail. Respondent never directed, requested, threatened, coerced, or pressured Mr. Gleason to purchase a computer for their son. However, when Mr. Gleason brought the computer to Respondent's home, he accepted it. After realizing he had exercised poor judgment in accepting the computer, Respondent did not return the computer to Mr. Gleason. Instead, Respondent kept demanding that Mr. Gleason pick up the computer from Respondent's home. Even when it became apparent that Mr. Gleason was not going to pick up the computer, Respondent never returned the computer to Mr. Gleason. The computer never worked properly so eventually, Respondent and/or his wife threw it in the trash. Mr. Gleason disputes and contradicts the foregoing account of events related to his purchasing the computer for Respondent's son. Mr. Gleason testified that Respondent initially approached him and expressed an interest in the City's surplus computers. According to Mr. Gleason, Respondent asked if such computers could be purchased on a payment plan. Mr. Gleason testified that after checking with the appropriate office, he advised Respondent that the City did not accept payment plans for the purchase of surplus computers and equipment. Mr. Gleason testified that Respondent then told Mr. Gleason that he (Respondent) wanted Mr. Gleason to get him a computer and that he expected Mr. Gleason to be successful on the bid. Mr. Gleason testified that in October 2003, he decided to give the computer to Respondent's son because his relationship with Respondent by this time had become adversarial, and he decided that it would be in his best interest not to make an issue of purchasing the computer. With regard to the purchase of the computer for Respondent's son and issues related thereto, the testimony of Respondent and Mrs. Howell is found to be more credible than that of Mr. Gleason. Gleason's Termination as City Manager In February 2004, about four months after Mr. Gleason gave the computer to Respondent's son, Respondent and two other City Commission members voted to terminate Mr. Gleason's employment with the City. As a result of this majority vote, Mr. Gleason was terminated as city manager. Respondent voted to terminate Mr. Gleason because he believed that Mr. Gleason was not doing the job. Respondent also was concerned that Mr. Gleason had taken inappropriate and unsolicited actions (i.e., purchasing the computer in September 2003 and paying the $354.18 credit card debt in June 2002), presumably to help Respondent. All the actions taken by Mr. Gleason were unsolicited and done gratuitously because Mr. Gleason thought that he was losing Respondent's support, and Mr. Gleason was trying to gain or regain Respondent's support. Instead of gaining Respondent's support, Mr. Gleason's inappropriate and unsolicited actions had the opposite effect. Respondent, displeased with Mr. Gleason's inappropriate and unsolicited actions, was offended by those actions and voted to terminate Mr. Gleason as city manager. The month after he was terminated, Mr. Gleason filed a Complaint with the Commission on Ethics (hereinafter the "Commission on Ethics" or "Commission") making the allegations, which are the subject of this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a final order and public report be entered finding that Respondent violated Subsection 112.313(4), Florida Statutes, in one of the four instances alleged; Respondent did not violate Subsection 112.313(4), Florida Statutes, in three of the four instances alleged; Respondent did not violate Subsection 112.313(6), Florida Statutes, in any of the four instances alleged; and Respondent did not violate Subsection 112.313(2), Florida Statutes, in any of the four instances alleged; and imposing a civil penalty of $500.00 for the single violation. DONE AND ENTERED this 7th day of September, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th of September, 2007.
The Issue Whether disciplinary action should be taken against the license of Respondent to practice pharmacy.
Findings Of Fact A Complaint and Notice to Show Cause was filed against the Respondent, Francisco DeQueuedo, a registered pharmacist, on December 27, 1978, alleging that the Respondent failed to maintain on a current basis a complete and accurate record of controlled substances, and that he placed false or fraudulent information in the files of Ponce de Leon, Inc., doing business as Capel Drugstore, located at 6661 SW 8th Street, Miami, Florida. A hearing was requested by the Respondent on January 5, 1979. Notice of Hearing was sent to the parties on February 5, 1979. The first witness called on behalf of the Petitioner was V. K. Bell, Agent for the Florida Board of Pharmacy and a licensed pharmacist. Agent Bell testified that while at a local wholesaler in the Miami area he noticed that Ponce de Leon, Inc., doing business as Capel Drugstore, had been buying a large volume of Quaalude tablets, which is a Schedule II controlled substance that has been the subject of high abuse in the Dade County area. Thereupon, he proceeded to Capel Drugstore in order to review their records. He said he found that the prescription records did not account for proper disposition through lawful dispensing of a large volume of the Quaalude tablets that were purchased and documented by the invoices. He testified that he talked with the Respondent, Francisco DeQueuedo, and Milagros Ferreras, one of the owners of Ponce de Leon, Inc., doing business as Capel Drugstore. Mr. Bell advised the Respondent and the owner of the drugstore of their right to remain silent and not answer any questions, that anything they said could be used against them, and that they had the right to have an attorney present if they desired. He then questioned the Respondent and Ms. Ferreras. Ms. Ferreras stated that she had bought a bad business and found she was having financial difficulties with the business, and she started to sell Quaalude tablets for 50 cents each to some 15 or 20 different people without prescriptions. Mr. Bell testified that Ms. Ferreras then stated that she had made the various sales without prescriptions and that the pharmacist, Respondent DeQueuedo, did not dispense any of the controlled substances. Agent Bell testified that the Respondent admitted to him that he knew that Ms. Ferreras was making these sales, and that she would from time to time bring him several prescriptions which he would sign, indicating that he did in fact fill them, although he had not, and then put them on file at the pharmacy in an attempt to cover up some of the shortages due to the unlawful sales of Quaalude tablets. After this conversation Mr. Bell testified that he proceeded to do a drug accountability audit for the period of time the Respondent worked at the pharmacy. Mr. Bell said that even with giving the pharmacy credit for those prescriptions which were signed by the Respondent, he could not account for 27,440 Quaalude tablets. The drug accountability report was identified by Mr. Bell and was introduced into evidence as Petitioner's Exhibit number 1. Agent Bell identified a series of documents which constituted various invoices and prescriptions utilized in the drug accountability audit as well as a perpetual inventory which the Respondent had run. These documents were marked as Petitioner's Composite Exhibit number 2 and were introduced into evidence. Thereafter, Mr. Bell identified a document, which he noted was a receipt which he gave to the pharmacist noting the various invoices contained in Composite Exhibit number 2, which were removed from the pharmacy. This receipt was marked as Petitioner's Exhibit number 3 and was introduced into evidence. Mr. Bell verified a document which was a copy of the receipt that he gave to the Respondent when he removed the original prescriptions from their file, which prescriptions were also part of the Composite Exhibit number 2. This receipt was marked as Petitioner's Exhibit number 4 and was introduced into evidence. Mr. Bell then identified another document, which was marked for identification as Petitioner's Exhibit number 5, and testified that this was a statement made to him in his conversations with the Respondent and owner, which he reduced to writing and which both the Respondent and the owner, Ms. Ferreras, signed. Exhibit number 5 substantiates the testimony which was given by Mr. Bell in respect to the unlawful dispensing of controlled substances by Ms. Ferreras, one of the owners, falsification of the prescription records by the Respondent, and the shortages found in the drug accountability audit. Robert S. Pacitti, a police officer with the Dade County Public Safety Department, was called as a witness for the Petitioner. Officer Pacitti stated that he had received a telephone call from Agent Bell with reference to the Respondent and to Ms. Ferreras. Officer Pacitti testified that he went to the Capel Drugstore and advised both the Respondent and Ms. Ferreras, the owner, of their Miranda rights. Officer Pacitti obtained a verbal statement from the Respondent, Francisco DeQueuedo, that he was aware of the fact that the owner was dispensing the Quaalude tablets. Officer Pacitti then took Ms. Ferreras down to the Dade County Public Safety Department, where she made a statement taken by a stenographer in Officer Pacitti's presence confirming the testimony of Agent Bell and Officer Pacitti. Officer Pacitti identified a document marked as Petitioner's Exhibit number 6 as a copy of the statement of Milagros Ferreras, and thereafter this statement was introduced into evidence as Petitioner's Exhibit number 6. Officer Pacitti testified that even though the large quantity of Quaalude tablets was being sold for 50 cents each, the street value of these tablets was somewhere between $3.00 and $5.00 per tablet. After listening to the testimony of Agent Bell and Officer Pacitti, and after examining the exhibits introduced into evidence, it is the finding of this Hearing Officer that the Respondent did permit the improper keeping of records at Ponce de Leon, Inc., doing business as Capel Drugstore, and that complete and accurate records of controlled substances were not maintained on a current basis. It is the further finding of this Hearing Officer that the Respondent filed false information in the files of Ponce de Leon, Inc., doing business as Capel Drugstore, by placing prescriptions in the files which were not actually dispensed by the Respondent to the individuals named thereon. The Hearing Officer finds that the Respondent knew the owner of the business was improperly dispensing and selling the Quaalude tablets.
Recommendation Revoke the license to practice pharmacy in the State of Florida issued to Francisco DeQueuedo, the Respondent. DONE and ORDERED this 15th day of March, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jack R. Blumenfeld, Esquire 619 NW 12th Avenue Miami, Florida 33136 Michael Schwartz, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 H. F. Bevis Florida Board of Pharmacy Post Office Box 3355 Tallahassee, Florida 32302
