The Issue Whether Glenda Parris (Respondent), while employed as a West Palm Beach Code Enforcement Officer, violated section 112.313(6), Florida Statutes,1/ by using her position to rent property and/or gain preferential treatment at a court proceeding and, if so, the appropriate penalty. Whether Respondent, while employed as a West Palm Beach Code Enforcement Officer, violated section 112.313(7), by having a contractual relationship that conflicted with her official responsibilities and, if so, the appropriate penalty.
Findings Of Fact At the times relevant to this proceeding, Respondent was employed as a West Palm Beach Code Enforcement Officer. Respondent is subject to the requirements of part III, chapter 112, which consists of sections 112.311 - 112.326, and is known as the Code of Ethics for Public Officers and Employees. Respondent's assigned duties included inspecting, observing, reporting, and enforcing the City of West Palm Beach's code regulating zoning, housing, and the environment Respondent's was assigned a work zone in West Palm Beach that included 231 Lytton Court (the subject property). At the times relevant to this proceeding, Dr. Rhonda Nasser was the owner and/or principal of El Nasco II, a limited liability company. El Nasco II owned the house at 231 Lytton Court. In the summer of 2010, Respondent issued multiple notices of violation to Dr. Nasser relating to the subject property. In July 2010, Respondent and Dr. Nasser met at the subject property to discuss the notices of violation. At that meeting, Respondent asked Dr. Nasser if she could rent the subject property. Respondent was on duty and in her uniform when she negotiated the lease of the subject property. Dr. Nasser entered into an agreement with Respondent for Respondent to rent the subject property for $1,200.00 per month beginning in August 2010. As soon as she moved in to the subject property, Respondent began to complain to Dr. Nasser as to items that needed to be repaired or replaced. Respondent wrote a demand letter on August 31, 2010, that referenced code requirements. On November 3, 2010, wrote a second demand letter that also referenced code requirements. Dr. Nasser testified, credibly, that she believed that Respondent was threatening to use code violations to support her demand as to items that needed to be impaired or replaced. Dr. Nasser's belief was reasonable. Respondent began to withhold rent because Dr. Nasser would not make the improvements Respondent had demanded. At the end of January or the beginning of February 2011, Dr. Nasser initiated eviction proceedings against Respondent due to Respondent's failure to pay rent. John Frasca has been employed as a West Palm Beach Code Enforcement Officer for more than 11 years. Respondent asked Mr. Frasca on two separate occasions prior to May 26, 2011, to inspect the subject property. At the first inspection, Respondent deliberately withheld the fact that she lived at the subject property. At the time of the second inspection, Respondent pressured Mr. Frasca to complete the inspection and informed him that she needed the inspection report for her attorney. A rental license for a residence is the official authorization from the City of West Palm Beach that an owner may rent its residence and that the residence will be inspected. A rental license guarantees to a renter that the residence has been inspected and maintained, and is meeting all current codes. A rental license is required by the city code. Mr. Frasca discovered that the owner of the subject property had no rental license. Respondent should have known that the owner did not have a rental license, and she should have refused to rent the property until the owner obtained a rental license. The eviction proceedings initiated by Dr. Nasser progressed to a court hearing before a judge. At the eviction hearing, Respondent wore her work uniform, which consisted of dark colored pants, a code enforcement badge on her belt, and a shirt with "City of West Palm Beach, Code Enforcement" written on it. Dr. Nasser believed that Respondent wore the uniform in court to give the appearance that Respondent was an expert in code enforcement. Alleged code violations came up as an issue during the eviction hearing. Respondent argued that she withheld the payment of rent because Dr. Nasser would not correct perceived code violations. Following the eviction hearing, Dr. Nasser contacted John Alford, who was, at that time, the Director of Public Works for West Palm Beach. Mr. Alford supervised the West Palm Beach Code Enforcement Department, including the code enforcement officers. There existed an unwritten policy that code enforcement officers were not to wear their uniforms on unofficial business. Mr. Alford had admonished the code enforcement officers, including Respondent, to "take care while wearing the badge." The City of West Palm Beach investigated Respondent's actions and prepared a document titled "Timeline - 231 Lytton Ct., WPB." That document, which is in evidence as Exhibit 9, reflects Respondent's actions regarding the subject property. West Palm Beach uses a computer tracking system called Community Plus System that tracks all activities relating to a building code complaint and/or violation. A code officer puts in all information related to an inspection plus action taken for the property by its owner or a magistrate. The public can go to a website to view the status of a property in the City. The City prepared a report based on the Community Plus System for the subject property. Mr. Alford determined that Respondent had manipulated entries for the subject property in the Community Plus System by changing information relating to inspections. On June 7, 2011, Mr. Alford notified Respondent in writing that he was going to terminate her employment. On July 6, 2011, Respondents' employment was terminated for violations of the City's Employee Handbook and Code of Ethics. Mr. Alford determined that Respondent's actions of proposing and negotiating a lease agreement while on duty and in uniform violated subparagraph 6 of the City's Ethics Policy 4.4, which is as follows: "City representatives shall not engage in financial transactions using non-public information or allow the improper use of such information to further any private interest or gain." Mr. Alford also determined that Respondent violated the City's Code of Ethics provision 4.4 by wearing her City-issued uniform and badge to court for a personal matter giving the appearance that she was acting on behalf of the City.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report that finds that Respondent, Glenda Parris, violated section 112.313(6) and imposes against her a civil penalty in the amount of $500.00. It is further RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report that finds that Respondent, Glenda Parris, violated section 112.313(7) and imposes against her a civil penalty in the amount of $500.00, for a total civil penalty of $1,000.00. DONE AND ENTERED this 4th day of March, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2013.
The Issue The issues presented are whether two separate sales of unregistered securities to elderly persons demonstrate a lack of fitness or trustworthiness to engage in the business of insurance in violation of Section 626.611(7), Florida Statutes (2001); and, if so, what penalty, if any, should Petitioner impose against Respondent's license. (All chapter and section references are to Florida Statutes (2001) unless otherwise stated.)
Findings Of Fact Respondent is currently licensed in this state as an insurance agent pursuant to license number A124652. The license authorizes Respondent to perform the duties of an agent for health and life insurance and variable annuity agent. Respondent is not licensed to sell securities. Petitioner is the state agency responsible for regulating the business of insurance in this state. Petitioner is not authorized to regulate the sale of securities. On September 18, 1998, Respondent sold eight shares of unregistered securities in Palm Beach Investment Group, Inc. (Palm Beach) to Mr. and Mrs. Anthony and Lucille Fusco (Fusco) for $40,000. On January 5, 1998, Respondent sold 18 shares of unregistered securities in Palm Beach to Mrs. Gladys Speth (Speth) for $90,000. The Department of Banking has jurisdiction over the sale of unregistered securities by unlicensed individuals. The Department of Banking disciplined Respondent for the sales of unregistered securities to Fusco and Speth. On November 10, l999, Respondent and the Department of Banking entered into a Settlement Stipulation and Final Order whereby Respondent admitted he violated Sections 517.07 and 517.12 by offering for sale or selling unregistered securities while he himself was not authorized to sell securities. Respondent did not dispute these facts at the administrative hearing of this case. The Administrative Complaint alleges that Respondent violated Sections 626.611(7)(9)(13), 626.621(2)(3) and (6), and 626.9541(1)(e)1 when he sold unregistered securities to Fusco and Speth. In Petitioner's PRO, however, Petitioner admits that Respondent could not have violated any statute other than Section 626.611(7) because Respondent did not engage in the business of insurance when he sold securities to Fusco and Speth. In relevant part, Petitioner states: Petitioner concedes that the alleged conduct does not involve insurance transactions and therefore cannot be considered transactions under Respondents [sic] insurance licenses. As a result, no violation of the other enumerated statutes has occurred. Petitioner's PRO at 11, paragraph 5. The only remaining issue that Petitioner asserts is whether Respondent violated Section 626.611(7). A licensee violates Section 626.611(7) if he or she demonstrates a lack of fitness or trustworthiness to engage in the business of insurance. Petitioner asserts that Respondent violated Section 626.611(7) by engaging in a business other than the business of insurance in a manner that demonstrates a lack of fitness or trustworthiness to engage in the business of insurance. Neither Fusco nor Speth are experienced investors. Neither buys or sells stock or securities and neither has any training or education in investing. Mr. and Mrs. Fusco are retirees, as is Speth. Fusco invested $40,000 of their life savings, and Speth invested $90,000 from a personal injury settlement. Mrs. Fusco had never purchased shares of stock before. Her father had lost a great deal of money in the l929 market crash and there was a long-standing family prejudice against stock. Fusco had business experience with Respondent prior to the time that Respondent sold Palm Beach securities to Fusco. That prior experience is relevant to the perspective and understanding that Fusco brought to the Palm Beach transaction. Sometime in l998, while Respondent worked with a previous employer, Respondent solicited Fusco to invest funds in a Certificate of Deposit (CD). Fusco did so and believed they were completing a similar transaction when they later purchased Palm Beach securities from Respondent. After Respondent sold the CD to Fusco, but still in l998, Respondent changed his employment to Evergreen National (Evergreen). Respondent telephoned Fusco and informed them that he had moved to Evergreen and that he was selling a very good security that they might be interested in purchasing. Mrs. Fusco explained to Respondent that they were not interested in securities, but they would be interested in purchasing a CD similar to the one they had previously purchased from Respondent. Fusco made an appointment to visit Respondent at his office. At Respondent's office, Mrs. Fusco stated unequivocally that Fusco desired to purchase only a CD. Fusco wanted no risk to their funds, and they made that clear to Respondent. Respondent represented to Fusco that Respondent was selling a CD that was fully guaranteed and insured against any loss. Respondent represented that Fusco would be investing in a proportionate share of a jumbo CD issued by Palm Beach, that they would enjoy a 14 percent return on their investment, and that their investment was insured by the Federal Deposit Insurance Corporation (FDIC) and the Great American Insurance Company (Great American). Respondent provided Fusco with various brochures about the investment that verified Respondent's representations that the investment was an insured, safe way to earn a high interest rate. Fusco relied on the representations contained in those brochures and those made by Respondent. Fusco was still somewhat hesitant to invest their funds. Respondent then brought into his office Darrin Carlson, the president of Evergreen (Carlson). Carlson reiterated to Fusco that the investment was insured and was completely safe and without risk. Fusco elected to invest $40,000 to purchase a CD. They gave a check to Respondent, and Respondent promptly remitted the check to Palm Beach. On September 18, 1998, Fusco signed a document entitled Subscription Agreement. The terms of the Subscription Agreement state that it is an application for Fusco to purchase shares of stock in Palm Beach. The agreement is clearly not an application to purchase a CD. In fact, no reference is made in the document to any CD or to Fusco's $40,000. Fusco did not understand the terms of the Subscription Agreement. Respondent did not explain the terms of the agreement to them. Fusco relied on the representations made by Respondent. Approximately three weeks later, Fusco received a stock certificate in the mail issued by Palm Beach showing that they owned eight shares of stock in Palm Beach. The certificate makes no reference to any CD or Fusco's $40,000 investment. Fusco was confused and upset. The stock certificate does not document that the Fusco's owned any CD or any share in a CD. Furthermore, Respondent offered no evidence of the use of the funds by Palm Beach. Fusco contacted Respondent. Respondent assured Fusco that this was the "way things were done," and their investment was safe. Fusco trusted Respondent and relied on the representation by Respondent. In May of l999, Fusco received a letter from Palm Beach informing Fusco that they would receive a full refund of their money plus interest as of June 7, l999. Palm Beach did not deliver on its promise. When Fusco did not receive any money from Palm Beach, Fusco contacted Respondent. Respondent assured Fusco that their investment as safe, that they were insured, and that they would soon receive their money. Fusco has never received the original $40,000 or any interest payment from Palm Beach. Palm Beach has never provided an accounting to Fusco showing the value of their investment. Fusco has suffered a loss of $40,000 plus accumulated interest at a fair market value rate. Respondent also sold unregistered securities to Speth. Sometime in January l999, Respondent visited the home of Speth. Speth had recently received $90,000 as a personal injury settlement and was looking for a secure investment. Speth wanted a risk-free investment. She told Respondent that she would purchase a CD, but had no interest in purchasing stock. Respondent suggested that Speth invest in a proportionate share of a jumbo CD to be issued by Palm Beach that would yield a 14 percent return. Respondent represented that the CD would be insured and risk free. Respondent showed Speth various brochures claiming that the investment was fully insured by the FDIC as well as other insurance companies. Respondent did not inform Speth that there was a risk she could lose her entire investment. Speth gave Respondent a check for $90,000 made out to Palm Beach to invest in a CD with a one-year maturity date. Speth subsequently received a stock certificate in the mail from Palm Beach showing that she owned 18 shares of Palm Beach stock. Speth was puzzled, telephoned Respondent, and told him that she thought she had purchased a CD. Respondent represented to Speth that her money was safe and fully insured. Speth has not received either her original investment or any interest on that investment. Palm Beach has not provided Speth with an accounting showing the value of her investment. Speth has suffered a loss of $90,000 plus accumulated interest at a fair market value rate. Respondent sold investments to Fusco and Speth that were not appropriate for their age, skill, and investment objectives. Both Fusco and Speth clearly expressed the maximum aversion to risk. Neither Fusco nor Speth would have invested in Palm Beach if they knew they were investing in stock. Both Fusco and Speth intended to purchase a CD or a proportionate share of a CD that was insured by the FDIC and Great American. At no time were their investments insured by the FDIC or any insurance company. Respondent had actual knowledge of the investment goals and skill of Fusco and Speth. Respondent believed that he was selling an investment vehicle that was appropriate to the knowledge, skill, and goals of Fusco and Speth. Prior to selling any securities in Palm Beach, Respondent undertook several independent inquiries that are fairly characterized as a form of due diligence. Some of Respondent's efforts toward due diligence are relevant to the unauthorized sale of unregistered securities. Other efforts are relevant to the nature of the investment as a secured investment. Palm Beach represented in a letter to Respondent that the securities offered for sale were exempt from registration. Carlson believed the securities were exempt and assured Respondent that Respondent did not need a license to sell the securities. Carlson went on-line to the web site of the Securities and Exchange Commission (SEC) and obtained a letter from private securities attorneys stating that the securities were exempt. Carlson believed that the securities were insured by Great American and obtained a copy of a financial institution bond with a limit of $5 million. Carlson represented to Respondent that any investment in Palm Beach securities was an insured investment. Respondent thought that he had verified the matter by telephoning the office of Great American and obtaining verbal assurances that the Palm Beach investment was insured. Respondent had a good faith belief that the securities he offered to Fusco and Speth, in part, were appropriate to the clients' investment goals because Respondent believed the securities satisfied the risk aversion expressed by Fusco and Speth. Respondent believed the securities were risk-free because he believed they were insured. Respondent knew the Palm Beach securities he offered to Fusco and Speth, in part, were not appropriate to the clients' investment goals because the securities were stock in a company and that neither Fusco nor Speth wanted to invest in securities. The first paragraph of the Securities Agreement clearly states that the investor is purchasing stock in Palm Beach. Respondent had actual knowledge that he was selling securities to Fusco and Speth and that neither wanted to purchase securities. Respondent has demonstrated in two separate transactions a willingness to sell a product to a person that the person did not desire to purchase. Even though the products sold were securities, rather than insurance, and even though Respondent believed the products represented the risk- free investment sought by Fusco and Speth, the willingness to sell securities to persons who have expressly stated that they do not want to purchase that type of product demonstrates a lack of fitness or trustworthiness to engage in the business of insurance within the meaning of Section 626.611(7). Respondent sold a product to Fusco and Speth that, in fact, was not risk-free. Respondent's due diligence prior to the sale did not include an independent attempt to ascertain whether Palm Beach in fact purchased a jumbo CD with the investments made by Fusco and Speth. Respondent did not disclose his omission to Fusco or Speth. After Respondent entered into a stipulation and final order with the Department of Banking, Respondent continued to represent to Fusco and Speth that their money was safe and that they would receive their money. Respondent has no prior discipline against his insurance license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 626.611(7) and suspending Respondent's license for nine months. DONE AND ENTERED this 25th day of October, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2002. COPIES FURNISHED: Elihu H. Berman, Esquire 509 South Greenwood Avenue Post Office Box 6801 Clearwater, Florida 33758 James A. Bossart, Esquire Division of Legal Services Department of Insurance 200 East Gaines Street, Room 612 Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Hurley was 53 years of age when hired by Advance in 1998. He was born on June 19, 1944. His employment relationship with Advance was "at will." His work schedule was determined by Advance and was based entirely on the determination by Advance of its requirement to adequately serve its customers. When Mr. Hurley started working there, he worked Monday, Tuesday, and Wednesday from 7:30 a.m. until 5:00 p.m., although sometimes he worked until 6:00 p.m. Advance is a large retail auto parts retailer. It has many stores. Mr. Hurley was employed as a driver in the Advance store located at 52 North Young Street, Ormond Beach, Florida, during all times pertinent. William G. Nulf was the store manager of the Ormond Beach Store during 2006. The assistant store manager was Jose Rivera. Jim Ashcraft was the "commercial parts pro." All of these men were authorized to supervise Mr. Hurley. On October 30, 2006, Mr. Hurley returned in his assigned vehicle after completing deliveries for the store. Mr. Rivera asked Mr. Hurley about receipts for the parts he had delivered. Mr. Hurley believed the receipts should be accounted for in one way and Mr. Rivera another way. These divergent views resulted in a disagreement that devolved into loud speech. Mr. Rivera told Mr. Hurley to leave the store and go home, but Mr. Hurley refused on the ground that he believed Mr. Rivera was without authority to send him home. During the disagreement Mr. Hurley was on one side of a counter, and Mr. Rivera was on the other side. As the argument progressed, Mr. Rivera stated that Mr. Hurley was a dirty, old, perverted man who should have been discharged a long time ago. Mr. Hurley also made inappropriate comments. Mr. Rivera dared Mr. Hurley to come from behind the counter and fight him. He put his fist in front of Mr. Hurley's face. Ultimately, the "commercial parts pro," Mr. Ashcraft, intervened, and his intervention ended the threat of actual physical violence. Neal Potter, the division manager for Advance having responsibility for the Ormond Beach store, investigated the incident. He used the employee handbook as a guide. The employee handbook of Advance states, "Any threats, incidents of violence, or intimidation of any nature whatsoever (including indirect threats or acts of intimidation) directed against a Team Member or other party by another Team Member will result in immediate termination." Mr. Potter took written statements from the participants and witnesses. He determined that the incident did not rise to the level of workplace violence as described in the handbook. He determined that both parties were at fault, and the incident was no more than a heated argument. Mr. Potter transferred Mr. Rivera to the Daytona Store with an effective date of November 8, 2006, because as a manager Mr. Rivera was held to a higher standard, and he had allowed the incident with Mr. Hurley to get out of control. Mr. Rivera was informed that if any similar issues occurred in the future, he would be terminated. This was memorialized in an Employee Action Report. Mr. Hurley told Mr. Potter that he was very afraid of Mr. Rivera. Subsequent to this incident, Mr. Hurley performed his job satisfactorily and rarely was in the presence of Mr. Rivera, although he did on occasion make deliveries to the Daytona Store where Mr. Rivera was then working. Mr. Hurley did not complain of discrimination as a result of this incident. The Employee Handbook has detailed guidance on how to complain of discrimination or a hostile work environment. Mr. Hurley was familiar with the process. He had complained to Mr. Potter on numerous occasions about a variety of issues, including payroll matters, vacation time, new policies and procedures, and other matters. Mr. Potter regarded him as someone who was quick to complain about almost any matter. Prior to March 4, 2007, Tom Estes was the store manager at the Daytona Store. During his tenure at the Daytona Store, Mr. Rivera was transferred to his store and served as Mr. Estes' assistant. Although Mr. Estes was aware that Mr. Rivera had been transferred from the Ormond Beach store because of an altercation with a fellow employee, he did not know that the employee involved was Mr. Hurley. Mr. Estes had prior experience with Mr. Rivera, thought him to be an excellent employee, and was happy that he had been transferred to his store. On March 4, 2007, Mr. Estes was transferred by Advance and became the manager of the Ormond Beach store. He had required drivers at the Daytona store to maintain delivery logs. He instituted this practice when he took over the Ormond Beach Store. This conformed to company policy. Mr. Hurley did not like this policy. From January 6, 2007, until March 10, 2007, Mr. Hurley's hours generally were Monday and Tuesday from 7:30 a.m. until 5:00-5:30 p.m., and Wednesday from 8:00 a.m. until noon. A short period after becoming manager of the Ormond Beach Store, Mr. Estes determined that more coverage was needed in the late afternoon hours. He made the specific determination that the commercial business required coverage until 6:00 p.m. For the week ending March 31, 2007, he changed Mr. Hurley's hours to Monday and Tuesday from 9:00 a.m. until 6:00 p.m. and Wednesday from 8:00 a.m. until noon. This change was based solely on Mr. Estes' estimate of the business needs of the store. When Mr. Hurley learned of this on March 21, 2007, he displayed anger. He told Mr. Estes that he could not work until 6:00 p.m. because he had to feed his pet birds. On March 26, 2007, the first day he was to work the new schedule, Mr. Hurley was excused from work based on a doctor's note. As events transpired, he never worked the new schedule and, as of the hearing date, he had not returned to work. He did not assert at the time he departed that the proposed change in hours was discriminatory, harassing, or retaliatory. The only person involved in requiring Mr. Hurley to maintain trip logs, and the only person involved in the decision to change Mr. Hurley's hours was Mr. Estes. Mr. Estes was unaware of Mr. Hurley's statement to Mr. Potter. Mr. Estes could not have made changes in Mr. Hurley's work requirements based on retaliation because he was unaware of a complaint.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations dismiss Mr. Hurley's Petition for Relief DONE AND ENTERED this 9th day of September, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 David Glasser, Esquire Glasser and Handel Suite 100, Box N 150 South Palmetto Avenue Daytona Beach, Florida 32114 Steven David Brown, Esquire LeClair Ryan 951 East Byrd Street Richmond, Virginia 23219 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Respondent. The Respondent, Charles Polk, served as the President of Daytona Beach Community College from 1974 to 1990. [Stipulated Fact.] Mr. Polk resigned as President of Daytona Beach Community College in 1990. Mr. Polk's Purchase of Real Estate from Anargyros N. Xepapas. In November, 1985, Mr. Polk and his wife purchased a life estate and one-half interest in a condominium unit from Anargyros N. Xepapas. Mr. Xepapas owned the other one-half interest in the condominium unit. [Stipulated Fact.] The purchase price of the life estate and one-half interest in the condominium unit was $150,000.00. [Stipulated Fact.] The weight of the evidence failed to prove that this price was not the fair market value or that the transaction was not an arms-length transaction. Under the terms of the agreement, Mr. Polk and his wife were required to pay $30,000.00 immediately. They subsequently executed and delivered to Mr. Xepapas a note and mortgage for the remaining $120,000.00. [Stipulated Fact.] Mr. Polk was a mortgagor and Mr. Xepapas was a mortgagee. Under the terms of the agreement, Mr. Polk was required to pay maintenance fees of approximately $5,000.00 per year, taxes, insurance and all other expenses of the unit, which totaled approximately $14,000.00 per year. [Stipulated Fact.] Mr. Xepapas agreed to maintain the payments on the first mortgage. [Stipulated Fact.] Following the closing, Mr. Polk paid Mr. Xepapas an additional $60,000.00 on the mortgage, reducing the principal balance to $60,000.00. [Stipulated Fact.] A warranty deed was provided to Mr. Polk for the purchase of the property. [Stipulated Fact.] Neither the deed nor the mortgage were recorded. [Stipulated Fact.] Mr. Polk and his wife used the condominium as their residence. [Stipulated Fact.] Mr. Xepapas action in selling the condominium to Mr. Polk and his wife was a business transaction. Mr. Xepapas. Mr. Xepapas is an architect and developer who designs, builds, and sells property in the Daytona Beach area. [Stipulated Fact.] At the time Mr. Polk purchased the one-half interest in the condominium unit from Mr. Xepapas, Mr. Xepapas was the owner of the condominium building in which the unit was located. [Stipulated Fact.] In addition to being the owner of the condominium building at issue, Mr. Xepapas was the architect, developer and contractor for the condominium and for other condominium buildings in the areas. Mr. Xepapas was trying to sell the condominium units as part of his business because of cash-flow problems. [Stipulated Fact.] The condominium sales market was "soft" and Mr. Xepapas was trying to eliminate the carrying costs for unsold units. Mr. Xepapas sold a total of four condominium units pursuant to an arrangement similar to the arrangement by which he sold the condominium unit to Mr. Polk. Mr. Xepapas had made offers to sell one-half interests in condominium units to various other persons besides Mr. Polk. [Stipulated Fact.] Mr. Xepapas was a sole proprietor. He entered into his relationship with Mr. Polk in his capacity as a sole proprietor. Mr. Xepapas has known Mr. Polk for ten to fifteen years and considers himself a friend of Mr. Polk. [Stipulated Fact.] Mr. Xepapas' Business with Daytona Beach Community College. In 1987, the Board of Trustees of the Daytona Beach Community College decided to expand the College's educational facilities by obtaining a new center in the Deltona area. [Stipulated Fact.] In September, 1987, the Board of Trustees instructed staff to develop a request for proposal for the design and construction of the facility which would be leased to the College. [Stipulated Fact.] Mr. Polk was involved to some extent in the decision as to whether the new center should be purchased or constructed, and whether it should be acquired through a long-term lease/purchase agreement. In response to the advertisement of the request for proposal in September, 1988, Mr. Xepapas submitted a proposal. [Stipulated Fact.] There were a total of nine persons or businesses that responded to the request for proposal for the Deltona facility. Mr. Polk knew that Mr. Xepapas had picked up a bid proposal package and, therefore, believed that Mr. Xepapas would submit a proposal. Mr. Polk appointed the committee which reviewed the proposals. This committee ultimately narrowed the acceptable proposals to two, including Mr. Xepapas, and directed that those two proposers submit final proposals. In January, 1989, Mr. Xepapas, in his capacity as a sole proprietor, was the successful bidder on the contract; however, there is no evidence to indicate that Mr. Polk abused his position in order to ensure this result. [Stipulated Fact.] Mr. Xepapas and Mr. and Mrs. Polk were co-owners of the condominium prior to and at the time that Mr. Xepapas was awarded the Daytona Beach Community College contract. Ultimately, Mr. Xepapas was not able to fulfill his obligations under the contract with Daytona Beach Community College. Although the evidence failed to prove that Mr. Polk asserted any influence over the decision to award the contract to Mr. Xepapas, Mr. Polk was involved to some small degree in the award of the contract to Mr. Xepapas. The evidence failed to prove that Mr. Polk disclosed his co-ownership of the condominium with Mr. Xepapas to the Board of Trustees of the Daytona Beach Community College, that he refused to participate in any way in the bidding process or that he attempted to take the more drastic step of severing his relationship with Mr. Xepapas while the bidding process was going on. In May, 1989, Mr. and Mrs. Polk ultimately quit claim deeded the property to Mr. Xepapas. The evidence failed to prove why. They, therefore, lost their investment in the property. Mr. Polk also resigned as President of Daytona Beach Community College as a result of the allegations concerning his relationship with Mr. Xepapas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Charles Polk, violated Section 112.313(7), Florida Statutes, as alleged in Complaint No. 89-80. It is further RECOMMENDED that Mr. Polk be subjected to public censure and reprimand. DONE and ENTERED this 13th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 13th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-11. 3 13. 4 14-16. 5 16 and 18. 6 4, 12 and 19-20. 7 Hereby accepted. 8 3, 21, 27-28 and 30. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 13. 3 3, 11 and 14. 4 20. 5 16. 6 4 and 17-18. 7 5 and 8-9. 8 6-7. 9 21. 10 22. 11 24. 12 26 and hereby accepted. See 23, 27 and 30. 13 27 and 30. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 David A. Monaco, Esquire Post Office Box 15200 Daytona Beach, Florida 32015 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner's facility was established in the 1950's as a nursing home for welfare clients in Riviera Beach. In 1979, the facility was changed to an ACLF. At that time, a physician and a nurse from the County Health Department examined all residents and transferred those out who needed continuing nursing care. One resident from the nursing home continues as an ACLF resident. Mrs. Davis, the current administrator, has been employed at the facility since 1960 and lives on the premises. The current staff of the ACLF includes several family members: Mrs. Sutton's daughter, Sabrina; Mrs. Davis' daughter, Christie; the son of a former long-time employee, "Jr."; Amon Shaw and Patricia Roach, another long-time employee. The neighborhood where the ACLF is situated is a high crime area and the ACLF has been burglarized on several occasions. When the facility is burglarized, the typical burglary involves broken windows, food items are stolen, files are ransacked, and petty cash is taken. The ACLF is licensed for a census of 35 residents. Based on surveys conducted by respondent on August 3, 12, and September 9, 1987, several deficiencies were noted, including the unavailability of records to reflect that the facility was being administered on a sound financial basis; no assurances that the facility maintained an admission/discharge roster of residents containing all information required including records for residents receiving self-administered medications; no records of personnel policies for employees employed by the facility including work assignments for each employee; no work schedule of staff and for relief staff; no time sheets; no disaster preparedness plan available for review; no assurance that staff were free from communicable disease or; that there was present at all times, at least one staff member certified in an approved first-aid course, missing diet orders for residents, missing physical assessments for patients. The diet menu reviewed showed deficiencies in Vitamin A and did not have adequate servings from the meat, milk, vegetable and fruit groups. The facility was not providing a variety of foods, nor did it have standardized recipes for all items on the menu. The menus were not dated and planned one week in advance, or readily accessible for review by the residents. Menus and corrections were not kept on file for six months, mice and other rodent droppings were observed in the kitchen, the kitchen was not clean and there was no effective pest control program instituted. No management employee had completed a food service management course. One freezer did not contain a thermometer, and the meat was not properly stored in the freezers (ribs stored in a garbage bag). The fan in the kitchen was dusty and greasy, the ovens were dirty and contained food spills, the can opener was not clean and had dried food residue, the silverware holder was not clean and contained dirty silverware which was stored together with money, keys and other items. Drip pans were grease laden. The facility did not provide sanitary housing in that the showers were laden with mildew, areas occupied by residents were not climatically controlled in a manner conducive to the comfort of residents in that there were no cooling devices. Residents were not provided adequate space for hanging clothes, the beds were not in good repair with mattresses free from odor, stains or lumpy stuffings, showers did not have non-slip safety devices on the floor, and the building was not kept in good repair in that the front doors of the men's dormitory were rotting. There were torn and loose screen windows and doors, and torn and loose linoleum throughout the facility. The outside walls contained peeling paint. Clothing and mops were hung on fences and the inside walls and doors needed painting. Furniture in the dormitories was not kept in good repair in that cushions on the sofas in the living rooms were torn, the arms and backs of the sofas were torn, and the drawers in chests were broken or missing. The facility was not free of accumulations of possessions in that clothing bags were being kept on the residents' beds, old baskets, bottles, tin and other junk and debris was strewn over the back yard, the fire alarm test did not include testing of the smoke detectors. There was no documentation of the quarterly automatic sprinkler tests, and waste containers were not constructed of noncombustible material. The generator for the emergency lighting was not load-tested on a monthly basis, and the door between the boiler room and the exit access door was not self- closing. Exit signs were not illuminated. The rear yard contained debris, including a refrigerator which was not being used with doors attached which presented a safety hazard and an unsealed septic tank which was not being maintained. Follow up visits by respondent's staff revealed that while there have been correction of some deficiencies, numerous deficiencies continue at the facility and petitioner's staff has been counseled repeatedly with suggestions about curing problems and/or deficiencies which were documented on six times by Nan McDermitt, to wit: May 31, August 2, August 5, August 18, September 8, and September 19, 1988. A moratorium on placements was issued by Respondent on June 30, 1988, based on repeated deficiencies which were not corrected during follow-up visits, inspections and surveys of the facility by respondent's staff. Cecie M. Davis admits that there are ongoing deficiencies which were reflected in respondent's surveys provided by staff. Davis has placed thermometers in the refrigerator, although they are at times removed by employees who store meat in the refrigerator. The screen doors are cut by burglars during break-ins. Missing lights have now been installed, and they are all operating properly. Vinyl flooring has been repaired, and there are new rugs on the living room floors. The unsealed septic tank has been repaired and cots have been purchased for the storage of linen. The refrigerator which was not stored in the back yard has been moved and exterminators have been employed to eradicate the rodent problems. The ladies shower has been painted and new mattresses were bought to replace those which were lumpy or stained. Despite all these corrections, there are numerous deficiencies that remain uncorrected at the ACLF. In trying to correct all of the deficiencies, Administrator Davis points out that the building is old, located in a high crime area and is subject to repeated burglaries. She admits that a gas odor which emanates from the kitchen is not corrected. A large segment of the patient census is old and disoriented, and male patients, at times, urinate on the floors. Administrator Davis is making efforts to cope with the problems with the limited resources available, however numerous deficiencies remain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Health and Rehabilitative Services enter a final order sustaining the denial of the license renewal of petitioner's adult congregate living facility, Sutton Home For The Aged, based on repeated and multiple violations of the minimum standards. DONE and ORDERED this 16th day of February, 1989, in Tallahassee, Florida. JAMES E. BRADWELL 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 16th day of February, 1989.
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Respondent, Larry A. Moore, was certified as a law enforcement officer and corrections officer in Florida. The Petitioner, Criminal Justice Standards and Training Commission, (Commission), is the state agency responsible for the certification of law enforcement and corrections officer in Florida. During the months of November and December, 1987, Respondent was employed as a police officer by the City of Riviera Beach, Florida. In December, 1987, Officer Chris Hamori was a traffic officer with the same department. He had been issued certain equipment for his personal use on duty in which he had placed his personal identification mark. The equipment, primarily a windbreaker, a raincoat, a flashlight and other items necessary for traffic accident investigation, was kept in the trunk of the patrol car signed out to him. He was the only operator of that vehicle, though numerous department cars, all of the same make and model, were identically keyed. Therefor, any key for any of the vehicles would open and operate any of the other identical vehicles. On December 8, 1987, Officer Hamori was assigned to teach a class at a junior college in the next county to the south. When he got there, it was raining and he went to the trunk to get his raincoat but found it missing. He had to get to class and so did not search the trunk at that time. During the mid-class break, however, he again went to the car to make a more thorough search and discovered that his trunk had been rifled and not only his raincoat but his windbreaker as well were missing. There was no evidence of breaking into the trunk. Officer Hamori reported the theft the next morning and went to the Department's property custodian to let them know as well. At that time he was issued another raincoat and windbreaker which, according to the property custodian, Ms. Bell, had just been turned in by the Respondent who was leaving employment with the Department. Officer Hamori noted, from the lack of patches on the windbreaker, that it was much like his and upon further checking, noted that his name appeared on the underside of the right sleeve where he had placed it when the garment was initially issued to him. He also noted that the raincoat had his name written on the inside of the placket where he had placed it when the coat was initially issued to him. From this, he determined that these two garments were the ones taken from his car, without his knowledge or permission, the previous day. Ms. Bell was quite certain that the items in issue here had been turned in to her that same day by the Respondent. When he brought them in, she cleared his property account and placed the items off to the side. She had not had time to place them back into stock. Notwithstanding Respondent's urging that other individuals than Ms. Bell had access to the property storage area, she indicated that no one else turned in any items of that nature that day. Respondent was the only one to turn in equipment that day and, as was stated, she had not put it back into stock when Hamori came in to ask for a reissue. It is found, therefore, that the property turned in by Respondent was the property issued to Officer Hamori and was the same property which had been taken from him without permission. Respondent urges that numerous people could have gotten into Respondent's patrol car and taken his property because of the large number of keys out that would fit it. This is true, but the evidence is uncontrovertible that the property turned in by the Respondent was the property taken from Officer Hamori's car the day before and there is some evidence in fact, that Respondent indicated to Sergeant Lobeck, his immediate supervisor, that he needed some equipment, including a raincoat, to turn in when he left the Department's employ. It is found, therefore, that Respondent is the individual who took the property in question from Officer Hamori's car. Had this not been discovered, the Department would have been out the cost of the equipment since, because it had been stolen from Hamori, Hamori would have been released from liability for it. Only the property initially issued to Respondent was not returned, and though he ultimately paid for it, at the time in issue, he took it from Hamori without authority. Toward the end of 1988, Assistant Chief of the West Palm Beach Department, attempted to locate the Respondent, then a patrolman with that agency, due to a schedule change. At that time, Respondent was not where he was supposed to be and had not advised the Department of his whereabouts. He was finally located at the Mt. Vernon Motor Lodge in West Palm Beach. Discussions with the manager of that facility indicated that the Respondent had moved out without paying the full amount of the room rent owed and had left his room in a messy and unclean condition. Abel Menendez was the manager of the Mount Vernon Motor Lodge during the period September through November, 1988. During that time, Respondent, who represented himself incorrectly as an employee of the Sheriff's office, rented a room at the motel, paying a rate therefor of $135.00 per week. Respondent was to pay his rent in advance and at first did so, but after a while, he began to get behind in his payments and Mr. Menendez had trouble finding him. When it became clear that Respondent could not bring his arrears current, Mr. Menendez agreed that he could make partial payments to catch up, but he never did so. Finally, in November, along with Mr. Fishbein, the motel owner, Mr. Menendez told Respondent he would have to pay up or move out. When Respondent first began to fall behind in his rent, Mr. Menendez contacted representatives of the West Palm Beach Police Department and gave them a summary of the charges owed by Respondent. The last payment made by Respondent was $135.00 on November 11, 1988, which left a balance due of $500.00 which was never paid. Respondent is alleged to have left the motel during the night of November 11, 1988. According to Mr. Menendez, Respondent "destroyed" the room before his departure. Some of his clothes and things were left in the room. The room was examined the following day by Sgt. Chappell, also of the Department, who had gone there to look for the Respondent at the direction of Captain Griffin. This officer observed holes punched in the walls, and trash and dirty diapers in the room. He never located Respondent. Chief Bradshaw subsequently spoke with the Respondent about this situation and based on the facts as he determined them, terminated Respondent's probationary status with the Department and discharged him. In their discussion, Respondent indicated he had an arrangement with the motel manager, but this was only partially true. The arrangement was to pay in installments but Respondent abandoned the room without doing so. He was locked out by the management the following day. Even though Respondent agreed with Chief Bradshaw to make payments of the amounts owed, he may not have done so. As a result, criminal charges were filed against him. The criminal charges were subsequently disposed of by a Deferred Prosecution Agreement entered into by the Respondent and the State in June, 1989. By the terms of that agreement, Respondent agreed to pay off the obligation at a rate no less than $100.00 per month. However, Mr. Moore never paid any money to the motel because, due to a total mixup in the motel's paperwork, they were never able to establish to whom the money was to be paid. As a result, the matter was ultimately disposed of by the State entering a nolle prosequi in the case. Respondent's public defender, Ms. Kretchmer, remembers Respondent's repeatedly indicating he wanted to pay off the obligation, however. Respondent's wife, with whom he was living in the motel prior to their marriage, recalls having offered Mr. Menendez $300.00 the day before the Moores moved out. Mr. Menendez would not take it, however, indicating he wanted to receive it from Respondent. When Respondent came by, she gave him the money and they went to Menendez to pay him but he would accept only $150.00 and told Moore to keep the rest and not worry about it because, due to the fact he was a policeman, they "needed him around there." Shortly thereafter, however, Mrs. Moore heard Mr. Menendez complaining to the police about the amount owed. She claims Moore tried to make payments several times and whenever he would do so, Menendez would get upset. It was her understanding that Menendez was getting pressure from his boss to collect what was due and get the records straight. He mentioned to her that the motel cash account was short and he was being accused of taking the money. There is some evidence that Moore was not the only one having trouble with rent payments at the motel at that time. When he found that out, he decided to move but Mr. Menendez begged him not to go because his presence as a policeman helped in curbing drugs, gambling and prostitution there. Mrs. Moore absolutely denies that she and Respondent ever hid from Mr. Menendez nor did they sneak out during the night. They checked out in broad daylight at 11:45 in the morning with Mr. Menendez standing by. At that time, Menendez threatened to call the police but, according to Respondent, he, Moore did so instead, but could get no one in authority to listen or help him. Even after they left, Moore called and spoke with Menendez several times but was still subsequently arrested on the defraud charge. According to Mrs. Moore, they at no time damaged the room. At the time they left, the motel was fixing the air conditioner which caused some damage, but that's the only damage in the room when they left. Before they left, she cleaned the room so that it was in the same condition when they left as it was when they moved in. Respondent claims that when he began work with the West Palm Beach Police Department he discussed his rent problems with police officials and told them he had an arrangement with the motel to pay off the arrears. He admits he then got behind and when he tried to pay, the figures kept changing because of the absence of rental records. When he left, his disagreement with the motel was over the amount owed. He called the police to get a witness to his request for a firm bill, but by that time, he had already been terminated and the police would not come out. He had already had his discussion with Chief Bradshaw who, he claims, had told him to take care of the bill whatever the amount. He felt this was unfair, however, because he was told to pay whatever was asked regardless of whether he owed it or not. Respondent was ordained and licensed as a minister by the Church of God, 629 5th Street, West Palm Beach, on January 3, 1992. His minister the Reverend Preston Williams has found him to be a nice person and a well mannered person dedicated to his work, who has served with him in the local ministry since 1985.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore; RECOMMENDED that a Final Order be entered in this case, dismissing the allegation of defrauding an innkeeper as alleged in the original Administrative Complaint, finding Respondent guilty of unlawfully taking the property issued to officer Hamori as alleged in the Amended Administrative Complaint, and revoking his certification as a correctional officer and as a law enforcement officer. RECOMMENDED in Tallahassee, Florida this 24th day of April, 1992. ARNOLD H. POLLOCK 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 24th day of April, 1992. COPIES FURNISHED: Gina Cassidy, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Larry A. Moore 5100 45th Street, Apt. 1-A West Palm Beach, Florida 33401 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Criminal Justice Standards Training Commission P. O. Box 1489 Tallahassee, Florida 32302
