Findings Of Fact At all times here involved Respondent was licensed by the Florida Insurance Department as a general lines agent to represent Cotton Belt Insurance Company, Inc. and Industrial Fire and Casualty Insurance Co. (Exhibit l). In November, 1977 George Moore, Jr. contacted agent Hopkins to obtain a full coverage policy for his automobile. His previous policy had been cancelled (or would soon be cancelled). The application was filled out by Hopkins and on November 15, 1977 Moore executed the application (Exhibit 2) and gave Hopkins a check as down payment on the premium in the amount of $199.80. This check was negotiated by Hopkins on December 18, 1977. Several weeks later Moore had not received his policy and he asked Hopkins about the delay. Hopkins replied that he (Moore) should have his policy in another two or three weeks. At no time prior to Moore's January 9 automobile accident did Hopkins tell Moore that his application did not include collision coverage or that the application had never been submitted to the carrier. On January 9, 1978 Moore was involved in an automobile accident in which he was the responsible party. Upon informing Hopkins of the accident the latter advised Moore that he was covered. Hopkins later told Moore that he was not covered for collision but he came and took Moore's car to be repaired, stating that the repairs would not have to be paid for by Moore. When Moore contacted Insurance Company of North America (INA) he learned they had no policy covering him. He subsequently had to pay $300 for the repairs to his car. On February 2, 1978 INA received Moore's application from Hopkins with a check for down payment on the premium signed by Hopkins. Because rules of the Florida Joint Underwriters Association require applications be promptly submitted, INA denied Moore's application and so advised Hopkins. In the summer of 1978, Hopkins refunded to Moore the $199.80 payment Moore had made on November 15, 1977. By Order entered 18 January 1973 (Exhibit 4), Respondent was found guilty of six counts involving failure to remit collected premiums to the insurer, and failure to submit applications with premium payments received from clients. As a result thereof he was placed on probation for a period of two years and ordered to make restitution to all parties suffering loss from his unlawful acts.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by R. Bruce McKibben, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Stipulation and Agreement, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed July 5, 2012 12:18 PM Division of Administrative Hearings DONE AND ORDERED this Be) day of June, 2012, in Tallahassee, Leon County, ~ lt Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motorist Services this QA_ day of May, 2012. Tink Nalini Vinayak, Dealer Yicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jde Copies furnished: Dwight J. Davis, Esquire King & Spalding, LLP 1180 Peachtree Street Northeast Atlanta, Georgia 30309 i) Todd R. Legon, Esquire Legon Ponce & Fodiman, P.A. 1111 Brickell Avenue, Suite 2150 Miami, Florida 33131 William J. Denius, Esquire Kilgore, Pearlman, Stamp, Ornstein & Squires, P.A. Post Office Box 1913 Orlando, Florida 32801 William E. Williams, Esquire Gray Robinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32301 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue Whether or not on or about February 17, 1969, the Respondent, Everett A. Harper, caused to be issued to Florida Pallet Corporation, by the Employers' Fire Insurance Company, a policy covering the business vehicles of Florida Pallet Corporation for which Harper received premiums from the insured on a monthly basis. Further, whether or not Harper failed to deliver or transmit the premiums to the insurer, resulting in the policy being cancelled flat for non- payment of premiums. Whether or not Harper failed to inform the insured of the cancellation of the policy, but nevertheless continued to receive the insured's premium payments monthly, without causing to be issued insurance coverage for Florida Pallet Corporation with another insurer. Finally, whether or not in July, 1969, a truck of the insured, Florida Pallet Corporation, was involved in an accident in which a claim was filed and in which Harper failed to advise the insured of the policy cancellation that had occurred a few months prior to the accident, and until February, 1970, continued receiving and accepting premiums. These acts are alleged to have been accepting premiums. Section 475.25(1)(a), Florida Statutes, as being acts which show the Respondent to be guilty of fraud, misrepresentation, concealment, dishonest dealing, trick, scheme or device and/or breach of trust in the business transaction. The acts also have allegedly constituted a violation of Section 475.25(1)(c), Florida Statutes, as being acts which show the Respondent to be guilty of failing to account for or deliver moneys which have come into his hands, which were not his, and which he was not entitled to retain, under the circumstances; thereby constituting conversion of those moneys. The Petitioner has an additional contention under Section 475.25(3), Florida Statutes, to the effect that the acts as alleged constitute a course of conduct in violation of the purpose and intent of the section immediately referenced.
Findings Of Fact The Respondent, Everett A. Harper, is a Registered Real Estate Broker, who presently holds a non-active certificate of registration, giving an address of P. O. Box 1238, Sanford, Florida 32771. This non-active certificate of registration is held with the Petitioner, Florida Real Estate Commission. From October 1, 1968, until April 29, 1970, which includes the time of the alleged acts of misconduct, the Respondent was the holds of a broker's certificate as a individual broker under the trade name "Harper-Gentry Real Estate," with office at 2465 South Park Avenue, Sanford, Florida 32771. In that same period the Respondent, Everett A. Harper, was the holder of a General Lines Insurance Agent's license held with the Treasurer's Office of the State of Florida. While operating the insurance business, in February, 1969, the Respondent entered into an agreement with the Florida Pallet Corporation to obtain insurance coverage for the motor vehicles which were owned by the corporation. The arrangement between Harper and the corporation was to have the corporation pay an initial installment to activate that policy and to make monthly premiums in the future. The initial payment was made and Harper contacted the Employers' Commercial Union Companies, specifically the Employers' Fire Insurance Company, for purposes of having those companies insure that Florida Pallet Corporation for its automobile liability, in addition to Workmen's Compensation and general liability. (These latter two categories were apparently at the request of the Florida Pallet Corporation, although no testimony by their former president was presented from the representative of the insurance company, who testified in the course of the hearing.) The facts further revealed that once the Orlando branch of the Employers' Commercial Union Companies had received the request for insurance, they declined coverage on the Workmen's Compensation and general liability portions of the request, but issued an automobile liability policy, subject to background checks on the prospective drivers' records and engineering reports. The automobile policy was issued to the Respondent's insurance agency. Within ten days to two weeks of the date of the issuance, the insurance company asked the Harper agency to return the automobile policy for cancellation because the background check had led the insurance company to decline the coverage. This request was honored by Everett A. Harper when he returned the policy with the indication "cancelled flat." This form of cancellation was allowed because no claim had been filed against the policy prior to the date of the cancellation. The effect of the cancellation of the automobile policy was to cancel the policy from the date of inception. It also meant that the insurance company, to wit, the Employers' Commercial Union Companies, was not entitled to collect any moneys as premium payments, nor was Everett A. Harper entitled to keep those premium payments which he had received up to that moment or future premium payments which he might have received under the policy which has been alluded to. Harper could have placed a request for coverage with other companies if he had so desired. In fact, he did not make such a placement and kept the initial payment of premiums and continued to receive premiums over a period of the year 1969. The Florida Pallet Corporation was not notified of the cancellation of the policy or of Harper's failure to place their request for policy with another company, or the fact that Harper continued to receive the premium payments, which amounted to $1,270.00 a year for the automobile coverage. In addition, Harper neglected to advise the Florida Pallet Corporation that they were not covered by any insurance plan for their automobile liability needs. Some six or eight months after the policy had been cancelled, one of the vehicles belonging to the Florida Pallet Corporation was in an accident, which necessitated protection under an insurance policy. Harper still failed to indicate the cancellation of the policy, the lack of placement of the coverage with a new company, and the fact that no coverage existed, when requested to protect the interests of the Florida Pallet Corporation. This request was made by the president of that corporation, Leo Voskan. Eventually, Voskan made an inquiry of the Employers' Commercial Union Companies in February, 1970, and was told that there was no coverage, in view of the fact that the policy had been cancelled at a time prior to any authorized claim being filed. The claim arising from the automobile accident in 1969, involving the vehicle of the Florida Pallet Corporation, was paid by Harper, at a date beyond the time of the inquiry mentioned of February, 1970. Under the facts as developed, Harper should have returned the premium payments to the Florida Pallet Corporation, indicating the fact of the lack of coverage by the Employers' Commercial Union Companies, or in the alternative, placed coverage with another insurance company. The failure to return those premium payments, or arrange for a policy with another company, and the failure to advise the Florida Pallet Corporation of their lack of coverage, show the Respondent, Everett A. Harper, to be guilty of fraud, misrepresentation, concealment, dishonest dealing, trick, scheme or device and/or breach of trust in a business transaction in violation of the provisions of Section 475.25(1)(a), Florida Statutes. It also shows that the Respondent, Everett A. Harper, is guilty of failing to account for or deliver moneys which have come into his hands, which were not his and which he was not entitled to retain, under the circumstances, of which he converted, in violation of Section 475.25(1)(c), Florida Statutes. Finally, these facts establish that the Respondent, Everett A. Harper, is guilty of a course of conduct or practice which shows that he is so dishonest and untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not be safely entrusted to him; in violation of Section 475.25(3), Florida Statutes.
Recommendation Based upon a review of the facts as offered in this cause, it is, RECOMMENDED: That the non-active real estate broker's registration of the Respondent, Everett A. Harper, be REVOKED. DONE and ENTERED this 18th day of August, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Huskins, Esquire Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Everett A. Harper Post Office Box 1238 Sanford, Florida 32771
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Robert S. Cohen, Administrative Law Judge of the Division of Administrative Hearings. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Electric Cart Company, LLC, be granted a license to sell low-speed vehicles manufactured by Polaris Industries, Inc. (GEM) at 5480 US Highway 98 West, Santa Rosa Beach (Walton County), Florida 32459, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed February 29, 2012 9:00 AM Division of Administrative Hearings DONE AND ORDERED this 4 4 day of February, 2012, in Tallahassee, Leon she Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 County, Florida. Filed with the Clerk of the Division of Motorist Services this AO day of February, 2012. Nalini Vinayak, Dealer Yicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jc Copies furnished: Robert C. Byerts, Esquire Bass, Sox and Mercer 2822 Remington Green Circle Tallahassee, Florida 32308 Michael W. Malone Polaris Sales, Inc. 2100 Highway 55 Medina, Minnesota 55340-9770 Thomas B. Waldrop, Jr. Electric Cart Company, LLC 5480 US Highway 98 West Santa Rosa Beach, Florida 32459 Jonathan Brennen Butler, Esquire Akerman Senterfitt 222 Lakeview Avenue, Suite 400 West Palm Beach, Florida 33401 Robert S. Cohen Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue Whether the Respondent violated Chapter 626, Florida Statutes, by entering a plea of nolo contendere of grand theft of the third degree; whether he was placed on probation without an adjudication of guilt for grand theft of the third degree; and whether he lacks the fitness and trustworthiness to engage in the insurance business contrary to Chapter 626, Florida Statutes.
Findings Of Fact The Respondent, Ronald David Lewis, holds various licenses to sell insurance contracts issued by the Petitioner, which is charged by statutes to regulate licensees. The Respondent misappropriated over $10,000 from Audrey M. Walker, who was a client of the Respondent. The State's Attorney for the Seventh Judicial Circuit filed an information against the Respondent charging him with grand theft of the third degree. The Circuit Court Judge Shawn L. Briese entered an order of probation which reflects that the Respondent entered a plea of nolo contendere, and was placed on 60 months' probation by order withholding adjudication of guilt. The deposition of Audrey M. Walker establishes that the Respondent misappropriated funds from Ms. Walker, whose trust he had gained by virtue of his licensed status.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its final order revoking all the licenses Respondent holds to sell insurance contracts. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2001. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Ronald David Lewis 3800 South Atlantic Avenue Apartment 304 Daytona Beach, Florida 32127 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
The Issue The issues in this case are: a) whether White Construction Company, Inc. timely filed its requests for hearing with the Department of Transportation in response to notices of intent to suspend White's certificate of qualification because of alleged delinquencies on State Project Nos. 97770-3305 and 97770-3306 and; (b) if not, whether the doctrine of equitable tolling, waiver, estoppel or other legal or equitable principles apply under the facts of this case such that White is entitled to a formal hearing on the merits of the department's determination of delinquency.
Findings Of Fact White Construction Company, Inc. (White) is a contractor prequalified to bid on Department of Transportation (Department) construction projects in excess of $250,000. It was incorporated in 1951 and maintains a home office in Chiefland, Florida. White was the successful bidder on three projects that are included within the Department's Seminole Expressway Project in Seminole County which is being funded and supervised by the Department's Turnpike Office. The projects are three contiguous segments and are identified as State Project Nos. 97770-3304, 97770-3305 and 97770-3306. The Seminole Expressway Project consists of twelve separate projects. HNTB Corporation is the Department's Resident Engineer for Project Nos. 97770-3304 and 97770-3306 and maintains an office at 2927 US 17-92 in Sanford. ICF Kaiser Engineers is the Resident Engineer for Project No. 97770-3305 and maintains an office in a trailer at the job site. The Resident Engineers are the main liaison between White and the Department on the Project. The Department's Turnpike Office maintains a local office at 112 Beider Avenue in Casselberry. The Resident Engineers are supervised from that location by Mr. Gary Geddes, the Department's Program Manager, in conjunction with Mr. Ray Daniel, an Area Engineer who is employed by Post, Buckley, Schuh and Jernigan, which is under contract with the Department. The Resident Engineers, though employed by private consultants, serve as the Department's representatives and are delegated the title of Engineer of the Project for the Department. On July 30, 1993, the Department issued notices of intent to suspend White's certificate of qualification because of alleged delinquencies in White's performance on State Project Nos. 97770-3305 and 97770-3306. The Department's notices of intent to suspend were received by White at its Chiefland offices on August 3, 1993. Each notice contained the following language: Pursuant to Florida Administrative Code Rule 14-23 and in accordance with this determination, we intend to suspend your Certificate of Qualification and those of your affiliates. This suspension will become conclusive final agency action unless you request an Administrative Hearing within ten (10) days of receipt of this notice. Your request for a hearing shall be in writing and shall be filed with the Clerk of Agency Proceedings, Mail Station 58, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450 within ten days of receipt of this notice. A copy of the request for hearing shall also be provided to the State Construction Engineer, Mail Station 31, Haydon Burns Building, 605 Suwanee Street, Tallahassee, Florida 32399-0450. The request for hearing shall include: The name and address of the party making the request; A statement that the party is requesting a formal or informal proceeding; and All specific facts and circumstances which the Contractor believes legally excuses the unsatisfactory progress on the project. A request for hearing is filed when it is delivered to and received by the Clerk of Agency Proceedings. If a hearing is timely requested after the receipt of the notice of the intent, the hearing shall be held within 30 days after receipt by the Hearing Officer of the request for hearing in accordance with 337.16 of the Florida Statutes. In addition to a request for an Administrative Hearing and in accordance with Article 8-8.2 of the Special Provisions of this project, you are hereby given opportunity to request an extension of allowable contract time in an amount of cause progress on this contract to be acceptable or to submit other information to show that progress of work is not delinquent. (Petitioner's Exhibit #7, emphasis added) White forwarded the two Notices of Intent to its attorneys, Cummings, Lawrence and Vezina, P.A. On August 11, White's attorneys sent to Mr. Burney Keen of White Construction, via Federal Express Priority Morning Delivery, a package containing originals and copies of requests for formal hearing and for contract time extensions for both projects, with written instructions to have the requests executed and delivered to the Clerk of Agency Proceedings and James Lairscey, via Federal Express, and to hand deliver copies to the Project Engineers no later than August 13. The package from White's attorneys did not arrive at White's offices until late in the afternoon on August 12, when Mr. Keen was no longer in the office. Mr. Keen did not receive the package from White's counsel until the morning of August 13. Notwithstanding the Priority Delivery designation, Federal Express delivery to White's Chiefland office occurred between 3:00 p.m. and 5:00 p.m. Mr. Keen instructed his secretary, Patti Cook, to have the documents executed by an officer of White, and to have them hand-delivered to the Department's Resident Engineers and delivered to the Department's Tallahassee offices by Federal Express, in accordance with counsel's instructions. On Friday afternoon, August 13, 1993, White hand-delivered its request for hearing, along with its requests for contract time extension, to the Department's two Resident Engineers. On that same day, White sent out a package containing copies of these documents by Federal Express addressed to Mr. J. Lairscey, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. Mr. Keen and Ms. Cook both believed that J. Lairscey was the Clerk of Agency Proceedings. This is not surprising since at his deposition, J. Lairscey, who is the State Construction Engineer for the Department, did not know who the Clerk of Agency Proceedings was either. Standard operating procedure for the Project established by the Department at the preconstruction conference required that all correspondence from White be sent to the Department's Resident Engineers. Mr. Keen believed it to be of utmost importance to timely hand-deliver the requests for formal hearing to the Department's Resident Engineers. Although White had filed notices or requests with the Department Clerk in the past, this was Mr. Keen's first experience with the delinquency filing procedures. The package arrived at the Department's offices in Tallahassee on Saturday, August 14, 1993, and was delivered to Mr. Lairscey's office, MS 31, and not MS 58 (which is the Clerk of Agency Proceedings' Mail Station and office) on the morning of August 16, 1994. The package delivered to ICF Kaiser contained an original letter from White addressed to Michael Landry, which requested an extension of time on Project No. 97770-3305 and referred to an enclosed request for hearing. The package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed. Upon its receipt on August 13, 1993, a secretary and the office engineer at ICF Kaiser's office recognized that they received misdirected originals of important legal documents. The office engineer and secretary telephoned Ray Daniel, the Department's Area Engineer, at the Department's office in Casselberry and told him that they had received from White what looked like an original legal document, which they did not think they were supposed to have. They questioned whether the documents should be redirected to the Department. Mr. Daniel instructed them not to send the documents to him. Mr. Daniel knew that requests for hearing should be sent to the Clerk of Agency Proceedings in Tallahassee, but was not sure that a mistake was made and took no action regarding the request for hearing. The documents were filed away at ICF Kaiser until August 27, 1993, when Michael Landry followed up an inquiry from Ray Daniel and had the originals forwarded to the Turnpike's Casselberry office. The package delivered to HNTB Corporation also on August 13 contained an original letter from White addressed to Ralph Burrington which requested an extension of time on Project No. 97770-3306 and referred to an enclosed request for hearing. Like its counterpart, this package also contained an original letter addressed to: Clerk of Agency Proceedings, 605 Suwanee Street, MS 58, Tallahassee, Florida 32399. The letter to the Clerk requested a formal hearing in response to the Department's July 30th Notice of Intent and referred to three large appendices which were enclosed. The Resident Engineer at HNTB, Mr. Ralph Burrington, did not note that the documents were originals and filed them away. Mr. Burrington's normal procedure is to forward such documentation by facsimile to the Department's Casselberry office, but in this instance he feels he made a mistake. The package delivered to the Department's Tallahassee offices on Saturday, August 14, 1993, contained one signed photocopy of the requests for formal hearing for Project No. 97770-3305 addressed to the Clerk of Agency Proceedings, unsigned copies of the requests for formal hearing in Project Nos. 97770-3305 and 97770-3306 addressed to the Clerk of Agency Proceedings, as well as copies of the request for time extension for Project Nos. 97770-3305 and 97770-3306 and appendices. The documents were received by J. Lairscey on Monday, August 16, 1993, and were filed away until they were inspected on August 27, 1993, as a result of an inquiry by Ava Parker, a Department attorney. Sometime before August 27, 1993, Ava Parker, as a result of an inquiry from Gary Geddes, the Department's Program Manager, began to investigate whether White had filed its requests for hearing. Ms. Parker first checked with the Clerk of Agency Proceedings and was informed that nothing had been filed at that location. Ms. Parker then contacted Charles Peterson, the Department's Area Construction Engineer, to discern whether White had filed a request for hearing. Mr. Peterson searched his files and the Department's central files; he questioned various people in the Department's Tallahassee office and telephoned Ray Daniel in the Department's Casselberry office. Ray Daniel told Mr. Peterson that he had no knowledge concerning White's requests for hearing and no idea where they were. Mr. Daniel in fact knew at that time that White had delivered its requests for hearings to both Resident Engineers on August 13, based upon previous conversations with the Department's Resident Engineers and office staff. Mr. Peterson later discovered from Jimmy Lairscey that Mr. Lairscey had received the requests for hearing but they had been filed away. On Friday, August 27, 1993, Joe Lawrence, counsel for White, telephoned Ava Parker to discuss consolidation of the hearings and discovery. Ms. Parker advised White's counsel that no requests for hearing had been filed with the Clerk in response to the two Notices of Intent. Ms. Parker knew prior to her conversation with counsel for White that the requests had not been filed with the Clerk of Agency Proceedings, yet made no attempt to contact White or its counsel to notify them that the Clerk had not received the request. On Monday, August 30, 1993, copies of the requests for hearing were delivered to the Department's Tallahassee offices from counsel for White, via Federal Express addressed to Ava Parker and Clerk of Agency Proceedings, Florida Department of Transportation, 605 Suwanee Street, MS 58, Haydon Burns Building, Tallahassee, FL 32399-0450. The documents were received by Ms. Parker who delivered the requests for hearing to the Clerk and they were stamped in by the Clerk of Agency Proceedings on that same date. The Clerk of Agency Proceedings' function is to docket and maintain a record of documents and to send a copy of any requests for hearing in contractor suspension cases to the legal section and to Jimmy Lairscey. The Department's standard procedure after receipt of requests for hearing and contract time extension is to have the documents reviewed by Jimmy Lairscey and the Project Resident Engineer to determine whether the time extension should be granted. The legal section then determines whether to send the matter to the Division of Administrative Hearings. The Department's purpose in soliciting a request for contract time extension in conjunction with its Notice of Intent to Suspend is to afford the contractor the opportunity to cure the delinquency. The Department, prior to taking action on the request for hearing, reviews the time extension request to determine whether it may obviate the need for further delinquency proceedings. The Department's Resident Engineers are primarily responsible for evaluating and making recommendations concerning time extension requests. It is generally after the Department makes a determination concerning the appropriateness of the request for contract time that it proceeds to act upon the request for hearing. The Department did not deny White's request for contract time extension until August 30, 1993, the same date that White's requests for hearing were docketed in by the Clerk. The Department's review, analysis and decision can take up to five months. The delay in docketing the requests for hearing did not, therefore, delay the process. There was no prejudice to the Department by White's delivery of its requests for hearing to the Department's Resident Engineers on August 13, 1993, rather than to the Clerk of Agency Proceedings. There was no harm to the Department by Jimmy Lairscey's receipt of White's requests for hearing on Monday August 16, 1993, rather than the Clerk receiving it on Friday, August 13, 1993. The Department was aware, prior to and on August 13, 1993, that White disputed the Department's determination of delinquency on State Project Nos. 97770-3305 and 97770-3306. The Department expected White to file requests for formal hearing challenging the Department's determination of delinquency on State Project No. 97770-3305 and 97770-3306. White had verbally notified the Department prior to August 13 that it was challenging the delinquency notices. No evidence established any prejudice or harm to the Department from the Clerk's receipt of White's requests for hearing on August 30, 1993 rather than August 13, 1993. White will be severely prejudiced if not afforded a hearing, and therefore automatically declared delinquent, because it will be precluded from bidding and acquiring much needed additional work. White's work is primarily for the Department, in all phases of highway construction. At the time of hearing White had Department contracts of approximately $100 million, which contracts carry over a several year period, and it employed approximately 500 people. No culpability or blame can be ascribed to either party in the series of gaffes surrounding the filing of White's requests for hearing. Mr. Keen, a novice to the process, thought he was doing the right thing by assuring timely filing with the Resident Engineers, who had always received other correspondence related to the Project. Mr. Daniel, who was immediately informed that the original documents were filed in the wrong place, did nothing to correct the error, but neither did he deliberately frustrate the process (as argued by White) since the message he received about some original legal documents was ambiguous. Mr. Lairscey had no idea that his packet was intended for the Agency Clerk; moreover, he had no idea who the agency clerk was. Under these circumstances, and in the absence of any more than mere inconvenience to the Department, it is patently unfair to deny White its hearing on the merits.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED that the Department enter its final order granting a formal hearing to White Construction Co., Inc. on the substantive issue of whether it should lose its qualification to bid. DONE AND ENTERED this 29th day of August, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 29th day of August, 1994. APPENDIX The following constitutes specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 1. - 4. Adopted in substance in paragraph 2; otherwise rejected as unnecessary and immaterial. Adopted in part in paragraph 10; otherwise rejected as unnecessary. Adopted in substance in paragraph 4. Adopted in paragraph 30. Adopted in paragraph 4. Except as to the conclusion that the notice was not filed with the clerk on August 13, rejected as contrary to the greater weight of evidence, considering the testimony of Keen in its entirety. Adopted in substance in paragraphs 5, 8, 9, 10 and 12. Rejected as argument and conjective unsupported by the weight of evidence. Adopted in substance in paragraph 5. Adopted in part in paragraphs 6-9, otherwise rejected as immaterial. Adopted in part in paragraph 9; otherwise rejected as statement of testimony or unnecessary. Adopted in substance in paragraph 13. 16.-18. Adopted in paragraphs 14 and 19; otherwise rejected as unnecessary. Adopted in paragraph 21. Adopted in substance in paragraph 22. Adopted in substance in paragraph 16; otherwise rejected as unnecessary. Adopted in substance in paragraph 18. Adopted in substance in paragraph 20. Adopted in part in paragraphs 23-26; otherwise rejected as unnecessary. Adopted in substance in paragraphs 27 and 29. Rejected as contrary to the weight of evidence. 27.-28. Adopted in part in paragraph 36; otherwise rejected as argument or unnecessary. White clearly proved it will be severely prejudiced, even if it is not "put out of business". 29. Rejected as contrary to the weight of evidence (as to prejudice to the agency). 30.-31. Rejected as unnecessary. 32. Rejected as contrary to the weight of evidence; more commonly, the agency rules on the extension request first. Respondent's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. Adopted in paragraph 10. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 14. Adopted in paragraph 15. Adopted in paragraph 16. Adopted in substance in paragraph 17. Rejected as unnecessary. 19. Adopted in paragraph 18. 20. Adopted in paragraph 19. 21.-22. Adopted in substance in paragraph 20. 23. Adopted in paragraph 21. 24. Adopted in paragraph 22. 25. Adopted in paragraph 23. 26. Adopted in paragraph 24. 27. Adopted in substance in paragraph 25. 28. Adopted in paragraph 26. 29. Adopted in paragraph 27. 30. Adopted in paragraph 28. Rejected as unnecessary. Adopted in paragraph 29. Adopted in part in paragraph 30; otherwise rejected as contrary to the weight of evidence (as to being a "paper shuffler"). 34.-38. Adopted in paragraph 31. 39.-40. Adopted in paragraph 32. 41.-42. Adopted in paragraph 33. Adopted in paragraph 34. Adopted in paragraph 35. Adopted in paragraph 36, except that the implication that the company will absolutely go out of business is rejected as unsupported by the evidence. Rejected as unnecessary. COPIES FURNISHED: Paul Sexton, Esquire Department of Transportation Haydon Burns Building, MS 58 605 Suwanee Street Tallahassee, Florida 32399-0458 Joseph W. Lawrence, II, Esquire Cummings, Lawrence and Vezina, P.A. 1600 S.E. 17th Street, Suite 304 Fort Lauderdale, Florida 33316 Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0450
Conclusions This matter came before the Department upon the Order Closing File and Relinquishing Jurisdiction entered by E. Gary Early, an Administrative Law Judge of the Division of Administrative Hearings and the Parties’ Settlement Stipulation. Having reviewed the Order and Stipulation, and being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED: L. That the Settlement Stipulation (copy attached) is hereby and adopted and incorporated into this final order. 2. That Respondent’s motor vehicle dealer license VI-1008040 was revoked effective April 17, 2012. Filed April 23, 2012 7:38 AM Division of Administrative Hearings 4 DONE AND ORDERED this go day of April, 2012, in Tallahassee, Leon County, Florida. a M4 4 we Birrayiee Julie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services this a »_ day of April, 2012. Nalini Vinayak, Dealer Hcense Administrator Copies Furnished: Jonathon Glugover, Esquire Glugover Law and Mediation Post Office Box 2613 Daytona Beach, florida 32115 James K. Fisher, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles 2900 Apalachee Parkway Neil Kirkman Building, Room A-430 Tallahassee, Florida 32399 E. Gary Early Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399
Conclusions This matter came before the Department for entry of a Final Order upon submission of a Stipulation to Dismiss with Prejudice along with an Order Closing File and Relinquishing Jurisdiction by Linzie F. Bogan an Administrative Law Judge of the Division of Administrative Hearings, copies of which are attached and incorporated by reference in this order. Accordingly, it is hereby ORDERED that this case is DISMISSED. DONE AND ORDERED this aia day of November, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this Be ay of November, 2013. Nalini Vinayak, Dealer Kicense Administrator Filed November 26, 2013 3:54 PM Division of Administrative Hearings NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Richard N. Sox, Esquire Bass Sox Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 Randall L. Oyler, Esqurie Barack Ferrazzano Kirschbaum & Nagelberg, LLP 200 West Madison Street, Suite 3900 Chicago, Illinois 60606 Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator acy. ae
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by R. Bruce McKibben, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s Notice of Voluntary Dismissal With Prejudice, filed May 04, 2010. Accordingly, it is hereby ORDERED that the Dealership Franchise Agreement between Jaguar Land Rover North America LLC and Collier Auto Sales, Inc. is terminated. Filed May 12, 2010 2:17 PM Division of Administrative Hearings. DONE AND ORDERED this £2 4. of May, 2010, in Tallahassee, Leon County, Florida. arl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this (I+) day of May, 2010. abies Viregale aa NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF: vlg Copies furnished: Dana C. Boehm, Esquire Hogan & Hartson, LLP 555 Thirteenth Street Northwest Columbia Square Washington, DC 20004 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Mark L. Ornstein, Esquire Killgore, Pearlman, Stamp, Ornstein & Squires, P.A. Post Office Box 1913 Orlando, Florida 32802 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 Nalini Vinayak Dealer License Section
