The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 16, 2005.
Findings Of Fact Stipulated Facts Petitioner was hired by TPB as a premise sales representative for TPB's office in Gainesville, Florida on or about April 3, 2006. Petitioner and other new hires attended TBP's new hire sales training course in Jacksonville, Florida, on or about April 3, 2006. Petitioner and the other newly hired employees were required to establish employment eligibility in accordance with the Employment Eligibility Verification Form, Form I-9. For Form I-9 purposes, Petitioner produced a driver’s license and social security card. The social security card had the following notation: “For Social Security and Tax Purposes: Not for identification.” TPB informed Petitioner that it could not accept the social security card he produced for purposes of fulfilling his Form I-9 requirements. TPB asked Petitioner to provide it with any other document(s) to satisfy his Form I-9 requirements. TPB informed Petitioner that he could go to the local social security office in Jacksonville to request a new social security card and/or obtain a letter from the social security office that indicated he had applied for same. No other new hire in Petitioner’s training class provided TPB with a social security card with the same notation that appeared on Petitioner’s card. TPB requested Petitioner to provide an acceptable document from List A, B, or C found on the back of Form I-9. Petitioner provided TBP with a copy of a Birth Registration Form. The Birth Registration Form was not a document listed in List A, B, or C referenced on Form I-9. At the time Petitioner was hired by Respondent, TPB had policies that prohibited, among other things, discrimination on the basis of race and national origin. Petitioner was aware that TPB had anti-discrimination policies in place. Petitioner’s employment with TBP ended on or about April 6, 2006. TPB informed Petitioner that his employment was terminated because he was unable to provide sufficient proof of employment eligibility with regard to Form I-9. Petitioner cannot identify any similarly situated TPB employees outside of his protected class who were treated more favorably. Facts Based Upon the Evidence of Record Petitioner is a black male who was born in Jamaica. He became a citizen of the United States sometime after arriving in this country in 1978.1/ Respondent, TPB, is an employer within the meaning of the Florida Civil Rights Act. TPB is the brand name or logo for White Directory Publishers, which publishes telephone directories. At the time Petitioner was hired, Terry Strickland was a regional sales trainer for TPB. He conducted the training course in Jacksonville for the group of new hires which included Petitioner. At the time of the training session, Mr. Strickland was not aware of Petitioner’s national origin. During the training course in Jacksonville, all new hires, including Petitioner, were required to complete a human resources packet and review PowerPoint presentations regarding TPB policies, including its anti-discrimination policy. The human resources packet included Form I-9. When Mr. Strickland received Petitioner’s social security card and observed the notation on the bottom, he informed Petitioner that TPB would not be able to accept the card for Form I-9 purposes. He then informed Petitioner that he could go to the local social security office during lunch to apply for a new card. While Petitioner went to the local social security office, he was unable to obtain a new card or a letter from that office as he did not have proper documentation with him to secure a new card. Mr. Strickland handled this matter with other new hires in other training sessions in the same manner. That is, any time he was presented with a social security card with the notation “not for identification purposes,” he has informed the person that the card is not an acceptable document for Form I-9 purposes and that other acceptable documents would have to be provided. Mr. Strickland also informed Petitioner that a birth certificate would be acceptable. However, when presented with Petitioner’s Birth Registration Form, he noted that it did not have a seal. Therefore, he faxed it to Susan Ruhland at TPB’s corporate headquarters in Buffalo, New York. Susan Ruhland is the human resources manager for Respondent. Ms. Ruhland was contacted by Mr. Strickland regarding Petitioner’s social security card. Ms. Ruhland spoke to Petitioner by phone and explained to him that his social security card was not acceptable based on requirements of the Department of Homeland Security. She also informed Petitioner that there are other means of identification or documentation that can be provided to satisfy Form I-9 requirements. Ms. Ruhland was not aware of Petitioner’s national origin when she spoke to him by telephone. Ms. Ruhland contacted the Department of Homeland Security to verify her understanding that Petitioner’s social security card was unacceptable for Form I-9 purposes. She received confirmation that her understanding was correct. Other than the Birth Registration Form supplied by Petitioner, Petitioner was not able to provide any other document to satisfy the Form I-9 requirements. He had recently applied for a passport and had sent original documents with his passport application. Ms. Ruhland could not accept the Birth Registration Form provided by Petitioner because it was not issued by a state, county, municipal authority or outlying possession of the United States, and it lacked an official seal. She informed Petitioner that if he could not provide the acceptable documentation within three days, that he would have to be dismissed. Employees of TPB in previous training courses of different races and national origins who submitted social security cards with the same notation that appears on Petitioner’s were treated in the same manner as Petitioner. Specifically, during the period of 2004 to August 2007, 17 new employees of TPB were asked to submit another document that fulfilled the Form I-9 requirements or go to the social security office to apply for a new card. Of those 17 employees, 12 were Caucasian, three were African-American, one Hispanic, and one American Indian/Alaskan Native. Mr. Strickland informed Petitioner on or about April 6, 2007, that TPB had to terminate his employment because he was unable to provide sufficient proof of employment eligibility with regard to Form I-9. There was no competent evidence presented that establishes that Petitioner’s termination was based on race or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 17th day of October, 2007.
The Issue Whether Petitioner meets the residency requirement prescribed by Section 458.347(7)(b)1.d., Florida Statutes, for certification as a physician assistant?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: From May, 1957, until her retirement 33 years later, Petitioner was employed as a physician by a government agency in India. Her first position was that of an Assistant Surgeon. When she retired, she was the Chief Superintendent of a 350-bed hospital. Petitioner is now, and has been since November 11, 1959, happily married to Dayaldas M. Punwani. Petitioner and her husband were married in Bombay, India. They lived together in India until March, 1981, when Dayaldas moved to the United States. Petitioner remained in India with the couple's two children. At the time of their physical separation, Petitioner and her husband enjoyed a congenial relationship, as they have throughout their marriage. Their plan was for Petitioner to eventually join Dayaldas in the United States and live with him in the same household, but only following her retirement from government service and after their children were married and settled in accordance with Indian custom and tradition. When Dayaldas arrived in the United States, he first went to Boston, Massachusetts. Sometime in late 1981 or in 1982, he settled in Broward County, Florida and has lived there since. Using a visitor's visa to enter the United States, Petitioner visited her husband on two occasions after he had settled in Florida: from May, 1983, to August, 1983, and from November, 1985, to March, 1986. During her first visit, Petitioner and Dayaldas decided that when Petitioner joined Dayaldas in the United States to once again live with him, they would make Florida their permanent home. On neither of her visits to her husband did Petitioner come with the intention of staying for an indefinite period of time. Rather, she fully intended both times to return to India to continue her employment with the government until she reached retirement age 1/ and to discharge her responsibilities to her children. On February 8, 1990, Dayaldas became a permanent resident of the United States under this country's immigration laws. By February, 1990, both of Petitioner's and Dayaldas' children were married and settled. In April, 1990, Petitioner began to dispose of household items and other personal belongings in anticipation of her retirement and her subsequent move to Florida to join her husband. On May 30, 1990, at the age of 58, Petitioner retired from government service. The retirement age for physicians in government service in India is They have the opportunity, however, to seek reappointment to their position and work two years beyond their 58th birthday. Petitioner opted not to seek reappointment and extend her employment an additional two years because she wanted to move to Florida to live with her husband. At the time of her retirement, Petitioner was living in the same government-owned apartment in Bombay that she had been living in since September, 1964. The apartment was provided to her by the Indian government as part of her compensation package. 2/ Petitioner had a maximum of eight months following her retirement to vacate the apartment. Petitioner used only approximately one half of the allotted time. She vacated the apartment in December, 1990. On December 31, 1990, Petitioner arrived in Florida and moved in with her husband, with whom she has been living since. She came only with a few clothes. She had disposed of her other possessions, including her automobile, before leaving India. During the time that Petitioner was living in India and Dayaldas was living in the United States, Petitioner had an Indian driver's license and voted in local Indian elections. In or around April, 1991, Petitioner and Dayaldas filed a joint 1990 U.S. tax return. They subsequently filed an amended return. On June 14, 1991, Petitioner became a permanent resident of the United States under this country's immigration laws. On or around June 29, 1991, Petitioner mailed to the Board her completed application for certification as a physician assistant. On her application, she "list[ed her] place of residence on July 1, 1990," as "Bombay, Maharashtra, India."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order finding that Petitioner is not qualified to be certified as a physician assistant pursuant to Section 458.347(7)(b)1., Florida Statutes, because she has not shown that she was a legal resident of Florida on July 1, 1990, or was licensed or certified in any state in the United States as a physician assistant on July 1, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June, 1992. STUART M. LERNER 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 17th day of June, 1992. 1/ During both visits, she was on leave from her government position. 2/ The Indian government provides apartments to medical staff members regardless of their citizenship or immigration status. 3/ One may establish such a new residence in Florida without being a citizen of this country. See Pawley v. Pawley, 46 So.2d 464 (Fla. 1950); Perez v. Perez, 164 So.2d 561 (Fla. 3d DCA 1964). APPENDIX TO RECOMMENDED ORDER The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact 1-3. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To the extent that it suggests that Petitioner and her husband decided, during her 1983 visit, that they would both make Florida their permanent home from that moment on, rather than at some future date, this proposed finding has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. Accepted and incorporated in substance. Rejected because it is more in the nature of a statement of the law than a finding of fact. 7-11. Accepted and incorporated in substance. The Board's Proposed Findings of Fact 1-4. Accepted and incorporated in substance. 5. First sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony; Second and third sentences: Accepted and incorporated in substance. 6-7. Accepted and incorporated in substance. First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony. Accepted and incorporated in substance. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony. COPIES FURNISHED: Julian Gonzalez, Esquire 150 Southeast 12th Street, Suite 401 Fort Lauderdale, Florida 33316 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McCray, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Florida Administrative Code Rule 64I-1.001(1)(c) is an invalid exercise of delegated legislative authority.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Stipulated facts Mr. Rodriguez suffered a brain injury as a result of an automobile accident. Mr. Rodriguez is currently residing in Florida and presently intends to remain in Florida as his permanent home. Mr. Rodriguez is currently an undocumented immigrant with no federally-recognized immigration status. On or about May 2004, Mr. Rodriguez's legal representative applied for BSCI program services for Mr. Rodriguez, who was then denied on the basis that he was not a legal Florida resident. The Department shared all notices regarding rulemaking for the rule with Mr. Rodriguez's legal representatives throughout the original rulemaking process. There were no requests for workshops or hearings on the rule. The BSCI Manual instructs the case manager to determine legal residency to initiate the eligibility process. The BSCI program is wholly funded by the State of Florida from state revenue sources, including appropriations, a percentage of civil penalties received by county courts, recovery of third-party payments for medical services, and gifts. See § 381.79, Fla. Stat. Facts established at hearing The BSCI program provides rehabilitation services, such as in-patient rehabilitation services, out-patient rehabilitation services, day treatment programs, medical equipment, and home modifications, for eligible persons who have sustained traumatic brain or spinal cord injuries. The BSCI program provides funding as a last resort for services an injured person needs to integrate into the community. Every person who has suffered a moderate-to-severe brain or spinal cord injury in Florida is referred to the BSCI program's central registry. The BSCI program manual requires the case manager to determine legal residency in this state as the first step in determining eligibility for BSCI program services. When there is a question regarding Florida residency, the manual instructs the case manager to request proof of legal Florida residency, which, when there is a question regarding legal immigration status, must consist of a permanent resident alien card or a letter or document from the United States Immigration Department granting parolee or other status that would allow the person to remain indefinitely or permanently in the United States. The BSCI program has limited financial resources, but the Department has not established an order of selection for eligible persons in order to deal with a funding shortage, as permitted by Section 381.76(2), Florida Statutes. Rule, statutory authority, and statue implemented The BSCI program, found in Sections 381.739 through 381.79, Florida Statutes, was created by the Legislature expressly to ensure the referral of individuals who have moderate-to-severe brain or spinal cord injuries to the brain and spinal cord injury program, a coordinated rehabilitation program administered by the department. The program shall provide eligible persons, as defined in s. 381.76, the opportunity to obtain the necessary rehabilitative services enabling them to be referred to a vocational rehabilitation program or to return to an appropriate level of functioning in their community. Further, it is intended that permanent disability be avoided, whenever possible, through prevention, early identification, emergency medical services and transport, and proper medical and rehabilitative treatment. § 381.7395, Fla. Stat. The Department is the state agency responsible for implementing and administering the BSCI program. § 381.75, Fla. Stat. The eligibility criteria for the BSCI program are set forth in Section 381.76, Florida Statutes, as follows: An individual shall be accepted as eligible for the brain and spinal cord injury program following certification by the department that the individual: Has been referred to the central registry pursuant to s. 381.74; Is a legal resident of this state at the time of application for services; Has sustained a brain or spinal cord injury; Is medically stable; and Is reasonably expected to achieve reintegration into the community through services provided by the brain and spinal cord injury program. Section 381.76(2), Florida Statutes, further provides that, "[i]f the department is unable to provide services to all eligible individuals, the department may establish an order of selection." Pursuant to Section 381.011(13), Florida Statutes, the Department has the authority to "[a]dopt rules pursuant to ss. 120.56(1) and 120.54 to implement the provisions of law conferring duties upon it. This subsection does not authorize the department to require a permit or license unless such requirement is specifically provided by law." In 2005, the Department adopted Florida Administrative Code Rule 64I-1.001(1)(c). Rule 64I-1.001(1)(c) added a definition of "legal resident" to a list of definitions of terms used in Sections 381.739-.79, Florida Statutes, consistent with the definitions included in Section 381.745, Florida Statutes. Rule 64I-1.001(1)(c) defines "legal resident" as follows: "A person who currently lives in Florida, has the present intent to remain in Florida indefinitely, and has lawful permanent presence in the United States of America." As part of the rulemaking procedure, the Department published in the Florida Administrative Weekly a notice of its intent to adopt Rule 64I-1.001(1)(c) containing the information required by Section 120.54(3)(a)(1), Florida Statutes. In the notice, the Department identified Section 381.011, Florida Statutes, as the specific authority for the rule and Section 381.76, Florida Statutes, as the law implemented. The Department also sent the notice to the Administrative Procedures committee, together with a document that provided as follows:
The Issue Whether Petitioner’s application for licensure as a foster home should be granted.
Findings Of Fact The Department is the state agency responsible for licensure of foster homes. In carrying out its licensure duties, the Department contracts some license processing functions to FamiliesFirst Network. In turn, FamiliesFirst subcontracts with Children’s Home Society to perform a variety of license processing functions. In this case, Children’s Home Society was the organization that initially reviewed Petitioner’s 2007 licensure application. In 1984, prior to her employment with the Department, Petitioner married a man in the military. Petitioner testified that the marriage was one of convenience for both parties and, while legal, was not a true marriage since the marriage was never consummated. Petitioner’s explanation regarding the benefit each got from the marriage was vague. In essence, Petitioner characterized her marriage as a way for her to get out of financial difficulty. She testified that a soldier approached her and offered to pay her bills if she would marry him so that he could live off base. However, Petitioner legally divorced her husband in 1988 when she learned that he had contracted AIDS. Since at least 1997, Petitioner was employed by the Department. At some point, she was employed as an Economic Self-Sufficiency Specialist I (ESSI). As an ESSI, Petitioner generally handled applications for food stamps and interviewed clients to determine eligibility for food stamps, Medicaid and cash assistance benefits. In 1999, while employed with the Department, Petitioner applied for licensure as a foster home. On the initial licensing application in 1999, Petitioner wrote in the marital history section, “I am single and have never been married.” On the foster family self-study, Petitioner left her marital history blank. Furthermore, Petitioner marked “n/a” for ‘not applicable’ in the section regarding her divorce. That information was incorporated in the initial licensing study compiled by Children’s Home Society on April 28, 1999. Clearly, the statements made by Petitioner in her 1999 application and the information she provided to the Department during the application process were false since she had been married and divorced. Petitioner also completed a licensure self-study form in April 2001. In the sections regarding her marital history, Petitioner marked “n/a” for ‘not applicable,’ incorrectly indicating that she had never been married or, in some manner, the section on marriage did not apply to her. Again, the information was false. In another licensure self-study in September 2001, Petitioner left her marital history blank. Similarly, Petitioner left the marital history section blank on a personal profile form completed by her in 2001. That document was updated in 2003 and the marital history section was again left blank. In March 2003, Petitioner again marked “n/a” in the marital history section of a licensure self-study form. At about the same time, Petitioner also completed a questionnaire as part of the home-study process performed by FamiliesFirst Network. One of the questions called for a box to be checked as to how a previous marriage ended. Petitioner did not check any of the answers or indicate that she had been divorced. The lack of response is particularly troubling since Petitioner had indicated at least once that she had not been married, at least twice that the marital history sections on various forms did not apply to her based on her rationalization that the marriage had never been consummated, and at least once that the divorce history section did not apply to her. However, Petitioner knew that she had been legally married and legally divorced. Indeed, the fact of her divorce was not affected by the lack of consummation of the marriage; her ostensible rationale for not recognizing her marriage was from a religious point of view. These misrepresentations were material to the review of her fitness for licensure. Finally, in her 2005 application, Petitioner did indicate to the person who was processing her application that she was married. The provision of the correct information by Petitioner in 2005 occurred after the processor inquired and pursued questions about Petitioner’s marital history and does not mitigate Petitioner’s past multiple misrepresentations regarding her marital and divorce history. At hearing, Petitioner acknowledged that she provided inconsistent information about her prior marriage. She was concerned that her marriage was coming back to haunt her. She stated, “I didn’t know that it was going to come back and bite me.” However, such concern does not mitigate the fact that Petitioner failed, on multiple occasions, to disclose her divorce and marriage to the Department. As indicated above, Petitioner was also employed by the Department during the time she was seeking licensure as a foster home. Unfortunately, throughout the time that Petitioner was employed, she developed a very troubled relationship with the Department and, in particular, with Katie George, the Department’s General Counsel. Petitioner’s difficulty with the Department resulted in several legal cases against the Department in which Ms. George represented the Department. These cases extended over a five-year period. The cases involved two small claims cases requesting reimbursement for sodas and copying costs that arose out of five other litigations before the Public Employees Relations Commission. The two small-claims lawsuits seeking reimbursement for out-of-pocket expenses, including sodas and photocopies, were dismissed by the Court. The evidence demonstrated that Petitioner was terminated twice by the Department. Petitioner contested her first dismissal before the Public Employees Relations Commission. Petitioner’s first dismissal was overturned by the Public Employees Relations Commission on a legal technicality. The Commission specifically noted that they neither condoned nor agreed with malfeasance in office but had to grant a double- jeopardy type exception since the Department had originally suspended Petitioner for malfeasance in office and then attempted to increase the discipline it had imposed to dismissal of Petitioner. Petitioner was reinstated to her position by the Commission and back pay was ordered. As part of the back-pay case with the Public Employees Relations Commission, the Petitioner was denied reimbursement for private cash advances and private auto insurance expenses that she claimed the Department owed to her as part of her wages. Petitioner’s second termination was for conduct unbecoming a public employee and involved outrageous and bizarre behavior towards a client of the Department who had applied for Medicaid and food stamps. During the incident Petitioner berated, belittled and treated the client so poorly that he was reduced to tears and would not return for food stamps when it was time to renew the same. The client prayed with Petitioner inside her office. The client described Petitioner as chanting and acting so strangely that he abruptly ended the prayer by saying “amen.” Additionally, Petitioner told the client that she understood how he felt and that the Department was out to terminate her because some of her co-workers thought she was crazy. She also told the client the Department had tried, but failed, to terminate her before. The client eventually filed a complaint with the Department regarding Petitioner and her behavior during the interview with the client. Later, Petitioner called the client at his unlisted phone number that she could only have obtained through Departmental records and tried to intimidate the client into changing his complaint or not testifying. Based on this incident and some other incidents regarding Petitioner’s work, the Department dismissed Petitioner a second time. Petitioner, again, contested her dismissal before the Public Employees Relations Commission. The dismissal was upheld by all the Courts who heard the case and eventual appeals. The nature of the litigation and the eventual outcome are illustrated in the Public Employees Relations Commission Hearing Officer’s Recommended Order dated February 10, 2003; the Public Employees Relations Commission Final Order dated March 17, 2003; the per curiam affirmed opinion of the First District Court of Appeal dated February 18, 2004; the Order of the First District Court of Appeal denying rehearing dated April 5, 2004, and the Order of the Supreme Court of Florida dismissing review dated May 19, 2004. In addition, Petitioner filed a federal employment discrimination lawsuit against the Department. The suit was based, in part, on her earlier termination. During the course of the federal litigation, depositions were taken. During those depositions, Ms. George learned that Petitioner had falsified her application with the Department because she had previous jobs from which she had been fired that were not listed on the application. However, the Department was represented by outside risk counsel, who negotiated a $5,000.00 settlement payment to Petitioner. The settlement was accepted by the Department based on the nuisance value of continued litigation of the case. The Department did not admit any discriminatory action towards Petitioner in its termination of her. At some point after her second termination, Petitioner visited Ms. George’s legal office at the Department. Petitioner visited the office to either pick up or deliver some papers. However, testimony was not clear on the exact nature of the visit and what occurred during Petitioner’s visit. Testimony did establish that Petitioner became disruptive in the office towards Ms. George’s legal staff. Petitioner was asked to leave and initially refused. Eventually, Petitioner left the office after Ms. George instructed her staff to call law enforcement. Petitioner also filed a complaint with the Florida Bar regarding Ms. George’s representation of her client. The Bar complaint against Ms. George was dismissed by the Florida Bar. Finally, during this proceeding, Petitioner accused Ms. George of sending law enforcement to Petitioner’s house. Ms. George did not take such action against Petitioner. Given all of these incidents, Petitioner’s troubled employment history and litigation with the Department, the evidence demonstrated that, in the past, Petitioner has not worked cooperatively with the Department and seems to have developed a difficult and suspicious relationship with it. Based on this history, the evidence did not demonstrate that Petitioner could, presently or in the future, work cooperatively with the Department as a foster parent. The 2007 application was reviewed by Nicola Spear. Ms. Spear works in the licensing section of FamiliesFirst Network. She compiled the November 2007 foster parent licensing home-study on Petitioner. After reviewing the application and completing the home-study, Ms. Spear recommended that Petitioner’s license application be granted by the Department. Ms. Spear was unaware of the Petitioner’s history regarding the Department or her prior statements regarding her marriage and divorce. She subsequently learned the reasons why Petitioner was terminated from her employment with the Department, including inappropriate client interactions. Once the Department learned of Petitioner’s application and the initial recommendation of Ms. Spear, either Ms. George or administrative staff called a meeting with its contractors and Ms. Spear to review the recommendation and provide information regarding Petitioner’s history with the Department. After receiving the information, Ms. Spear changed her recommendation and recommended that Petitioner not be licensed as a foster parent. Ms. Spear testified that while Petitioner was very cooperative during the licensure process, she was concerned that Petitioner might not be able to work cooperatively with the Department or its contracted partners. Mary Martin, a licensing specialist with the Department, received Petitioner’s licensing packet from Ms. Spear. Ms. Martin was made aware that Petitioner had been dismissed from the Department, had a history of difficulties with the Department and of Petitioner’s lack of candor regarding her marriage and divorce. Ms. Martin also learned from Ms. Oakes, a contractor for the Department, that in 2002, Ms. Oakes had instructed her staff to call law enforcement to a visitation between foster children and their parent because Petitioner wanted to participate in the court-ordered closed visit and would not leave the visitation site at Children’s Home Society. However, the contractor who supplied this information did not witness the incident. The person who was present during the alleged incident did not testify at the hearing and all the testimony regarding the incident was based on hearsay. Additionally, Petitioner was not aware that law enforcement had been called since Petitioner voluntarily left the visitation before the police arrived. Given the hearsay nature of the facts surrounding the visitation incident, the incident cannot provide a basis for denial of Petitioner’s application. On the other hand, Ms. Martin found Ms. Peagler hostile to work with during the interview process with her. Ms. Martin did not feel that Petitioner could work cooperatively with the Department and could not be trusted to provide accurate information to the Department. She recommended denial of Petitioner’s 2007 application. Ultimately, Petitioner’s foster home application was denied on February 18, 2008. The basis for denial was her false statements, her history with the Department, and her intolerance and inflexibility with the Department. Currently, Petitioner is self-employed as a provider of services to persons with developmental disabilities. She is licensed through the Agency for Persons with Disabilities (APD). There was no evidence that Petitioner had difficulty working with APD. The evidence also did not show that Petitioner had a long and troubled relationship with APD or that APD was aware of Petitioner’s misrepresentations regarding her marriage and divorce. Robin Woods Reshard testified generally about her friendship with Petitioner. Although she works with school-age children, she never worked with or for the Department. Ms. Reshard primarily knows Petitioner through their Church. She speaks highly of Petitioner, although finds her to be stubborn, at times. She thinks Petitioner would make an excellent foster parent. However, given the facts of this case regarding Petitioner’s multiple litigations with the Department, her general suspiciousness regarding the Department and its personnel, her misrepresentations regarding her marriage and divorce, and her mistreatment of a client of the Department, her good work with APD and Ms. Reshard’s recommendation do not demonstrate that Petitioner can now work cooperatively with the Department or can be trusted by the Department to be honest with it in fostering children. Both of these qualities are necessary for successful licensure as a foster home. Therefore, Petitioner’s application for licensure as a foster home should be denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order denying the application of Robin Peagler for foster home licensure. DONE AND ENTERED this 4th day of December, 2008, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 December, 2008. COPIES FURNISHED: Eric D. Schurger, Esquire Department of Children and Family Services 160 Governmental Center, Suite 601 Pensacola, Florida 32501-5734 Robin Peagler 1011 West Chase Street Pensacola, Florida 32501 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 George Sheldon, Interim Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented is whether Respondents' foster home license should be revoked.
Findings Of Fact Respondents have been licensed by Petitioner to operate a foster home since August 1994. At all times material hereto, Mercedes and Topacio Hernandez were foster children who resided in Respondents' home. Mercedes was born on October 3, 1986, and Topacio was born on August 31, 1988. On March 1, 1996, Darlise Baron, a protective investigator for Petitioner, picked up Mercedes and Topacio from school and took them home. When she picked them up, they and their clothes were dirty. When they arrived at Respondents' home, Baron allowed the girls to play outside in the dirt while she waited for a Spanish-speaking police officer to arrive to assist her with her investigation. After Baron and the police officer entered Respondents' home, Baron inspected the kitchen area. The refrigerator contained "hardly any food", and the cabinets contained only a "couple of cans of vegetables." Respondent Ana Diaz explained to Baron that the girls received their breakfasts and lunches at school and the family had their evening meals catered. Baron noted that Mercedes was "average weight" and Topacio was "small for her weight". It is assumed from Baron's description that Topacio was overweight. Baron noticed a slide lock on the outside of the girls' bedroom door. The lock was the type where one merely raises the knob and slides the lock over. The lock was not a "dead bolt" lock. What Baron did not notice was that there were such slide locks on the outside of all the bedroom doors in Respondents' home. The purpose of the locks was to prevent Respondents' granddaughter from entering any of the bedrooms unattended. That toddler was the child of Respondents' daughter who also resided with Respondents. Baron determined that Mercedes and Topacio were not in immediate danger. She determined that the children did not need to be removed from Respondents' home. On March 4, 1996, Brenda Boston, a foster care unit supervisor for Petitioner, visited Respondents' home. She checked the sheets on the girls' bed: the top sheet was clean but the bottom sheet was soiled. In her view, the girls' bedroom was untidy because there were some packed boxes in the room. Boston checked the refrigerator and found it empty but there was a box of food in the freezer. The cupboards were also empty. Respondent Ana Diaz explained that their food was catered and showed Boston containers of warm food on the kitchen counter. There were no snacks available for the girls at that time. While Boston was there, she observed the interaction among Mercedes, Topacio, and Respondents and found it to be good. She determined that the foster children were not in any immediate danger and left them in Respondents' home. Lee C. Hickey is a social worker who has been the case manager for Mercedes and Topacio since December 1995. She sees the girls on a weekly basis, at home, at school, or in therapy. She has observed the interaction among them and the other students and the interaction among them and Respondent Ana Diaz and has found those interactions to be positive. Although she testified that there were no books in the Diaz foster home for the girls to read, she did not testify as to when that situation occurred and for how long that situation continued to exist. She did testify, however, that Topacio was in the second grade at the time and could not read. On March 26, 1996, Carol Rodriguez, a counselor employed by Petitioner, visited the Diaz foster home. She observed the children's room to be neat. Although she noticed the slide lock on the bedroom door, she did not question its presence. During that visit, Respondent Ana Diaz indicated that she was not happy with the Department and wanted Mercedes and Topacio removed from the home. On March 29, 1996, Rodriguez spoke with Respondent Ana Diaz who told her that Petitioner needed to remove the children from the Diaz home that day because Respondent Alejandro Diaz needed surgery on an emergency basis and they were leaving for Columbia the next day. Respondents did not lock Mercedes or Topacio in their bedroom for punishment, did not require them to clean the house in order to eat, did not keep them from eating meals as a family, and did not hit or threaten them. The children missed several therapy appointments when Respondent Ana Diaz was unable to transport them to therapy. They did receive therapy, however, on February 14, 1996, two days after their father died following a terminal illness.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents not guilty and dismissing the charges filed against them. DONE AND ENTERED this 9th day of January, 1997, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1997. COPIES FURNISHED: Colleen Farnsworth, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Miami, Florida 33128 Arthur Spiegel, Esquire 1800 Northwest Seventh Street Miami, Florida 33125 Richard Doran General Counsel 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk 1317 Winewood Boulevard Building Two, Room 204-X Tallahassee, Florida 32399-0700
The Issue The issue in this proceeding is whether the Department of Children and Family Services properly revoked the foster home license of Carl and Ruby Atwater.
Findings Of Fact At all times material to this proceeding, the home of Carl and Ruby Atwater (the Atwaters) was licensed by the Department as a foster home. The initial license was issued on February 9, 2004. In 2005, the Department's program for licensing and background screening was outsourced to Family Matters of Nassau County (Family Matters). The most recent certificate of licensure, No. 0205-46-2, was issued by the Department on February 9, 2005. Prior to licensure, the Atwaters were background screened and were cleared. Mrs. Atwater remembers turning in a fingerprint card for her mother, Martha Nelson, at the time of the Atwaters' initial training sessions prior to the first license being issued. The Atwaters believed that Mrs. Nelson had been cleared through background screening from the beginning. In reliance upon this belief, Mrs. Nelson provided day care from time to time for foster children placed in the Atwaters' care. At some point, a close family friend and neighbor, Alice Jones, submitted fingerprints for background screening. Her fingerprints were sent back to the Department from law enforcement in December 2004 because they were not legible. The Atwaters were unaware of this and assumed that Ms. Jones had been cleared. In reliance upon this belief, Ms. Jones provided day care from time to time for foster children placed in the Atwaters' care. The Department mistakenly believed that Ms. Jones was Mrs. Atwaters' mother. It was clear to the undersigned that the Department learned at the hearing that Ms. Nelson is Mrs. Atwaters' mother. Rachel Steele is the program coordinator of Family Matters for licensure of foster homes. She conducted the re- licensing study of the Atwaters' home. She initially went to their home on January 5, 2005, but no one was home. She rescheduled the home study for January 14, 2005. Both Mr. and Mrs. Atwater were there. During the home study, Ms. Steele gathered information from the Atwaters as to who was watching the foster children. Because Ms. Jones had not been cleared through a fingerprint background check, she explained that a newer, faster fingerprint processing procedure was available for Ms. Jones. In any event, she explained to the Atwaters that Ms. Jones could no longer provide child care services for foster children until she was background cleared. At the time of the home study, there were no foster children placed in the home. According to Ms. Steele, Family Matters would not place any foster children in the Atwaters' home until this matter was cleared up. Despite this assertion, children were placed in the Atwaters' home on January 16, 2005, just two days after the home study visit. According to Ms. Steele, Boys' Home placed the children with the Atwaters without the knowledge of Family Matters. She called the Atwaters on January 18, 2005, and again on January 20, 2005. On the later call, she left a message that she still needed more information regarding Ms. Jones. On January 25, 2005, Ms. Steele wrote a letter to the Atwaters informing them that their foster home license would be placed on inactive status, "due to your failure to comply with Family Matters policy and procedure relating to caregivers for foster children." The letter further explained that it is Family Matters' policy that caretakers are allowed to come into the foster home setting to care for children as long as they have had a background check through Family Matters. In response to that letter, Ms. Steele received a phone call on January 26, 2005, from either Mr. or Mrs. Atwater during which Ms. Jones' provision of care for the foster children was discussed. Subsequent to the January 26, 2005, telephone conversation, Shirley Leggio, Ms. Steele's program assistant, sent out a letter and check for Jones to be "livescanned," the newer fingerprinting procedure. Ms. Steele only found out on July 18, 2005, that the check was returned. Family Matters has no record that Ms. Jones ever received background clearance. Shirley Leggio went to the Atwaters' home on March 28, 2005, for a monthly home visit. When she went to the door, no one was home. She went to Ms. Jones' home, which is located very near the Atwaters' home, and found the foster children there in Ms. Jones' care. Ms. Leggio then took the children to Fernandina Beach and returned the children to the Atwaters around 8:00 pm. Mr. Atwater was home at that time. She reported all of this to Ms. Steele. There is no dispute that Ms. Jones provided care for the foster children in the Atwaters' care during the time the home was licensed. When asked if she had been fingerprinted, she replied that she had, "at the county building and the jail, too." Mr. Atwater believes that the circumstances that gave rise to this dispute is a misunderstanding. The undersigned agrees. Both Mr. And Mrs. Atwater insist that they believed that Ms. Jones had been cleared. Their testimony in this regard is credible and accepted. Ms. Jones had been fingerprinted, on more than one occasion. The check to cover the newer fingerprinting process was returned to the Department, indicating that Ms. Jones did not receive the necessary information let alone did the Atwaters become aware of it. Further, Ms. Atwater remembers turning in her mother's fingerprints during her initial training. She believed that her mother, Ms. Nelson, had been cleared from the beginning. Her testimony regarding this is credible and accepted. Ms. Steele recommended revocation of the Atwaters' license to the Department. On April 4, 2005, the Department issued a revocation letter to the Atwaters which gave rise to this proceeding. The Bilateral Service Agreement, referenced in the April 4, 2005, revocation letter and signed by Family Matters and the Atwaters, states that foster children may not remain in an unlicensed setting without the explicit approval of the Department.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Children and Family Services enter a final order rescinding its April 4, 2005, letter of revocation, return the Atwaters' foster home to inactive status until such time that the caregivers have received the appropriate background screening and clearance, at which time the foster home license should be reinstated. DONE AND ENTERED this 15th day of August, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 15th day of August, 2005.
The Issue The issue in this case concerns whether Petitioner has met the residency requirement for issuance of a restricted license to practice medicine under Section 458.3124, Florida Statutes.
Findings Of Fact In June of 1998, Petitioner, Gilberto Cabrera-Diaz, M.D., submitted an application for a restricted license to practice medicine in the State of Florida. His application sought licensure pursuant to the provisions of Section 458.3124, Florida Statutes. One of the requirements for licensure under that statutory provision is a showing that the applicant "has been a resident of this state since July 1, 1996." Petitioner first came to the United States in December of 1990, at which time he and a number of his relatives were seeking refuge from the civil war in his homeland, El Salvador. Petitioner's first stop in the United States was in Florida, but he stayed in Florida for only a few weeks. By March of 1991, Petitioner had obtained employment at a clinic in Houston, Texas, and had moved to Houston with his wife and two children. From March of 1991 through May of 1995, Petitioner and his wife and children lived in Houston, Texas. During this period of time Petitioner continued to be employed by a family practice clinic in Houston. Sometime in May or June of 1995, Petitioner and his wife and children moved to El Paso, Texas. On July 1, 1995, Petitioner began a training program at a hospital in El Paso, Texas, that lasted through February of 1996. When Petitioner finished the training program in February of 1996, his prospects for the future appeared to be rather bleak. He had no immediate prospects for employment anywhere and he had very little in the way of savings. One of his hopes was to find employment in Florida. Another of his hopes was to be accepted into a residency program just about anywhere in the United States of America.3 In March of 1996, Petitioner's wife and children returned to El Salvador, where they lived with her parents. That same month Petitioner sold his automobile and went to Miami, Florida, where he moved in temporarily with one of his cousins. Petitioner had another cousin who lived in Boca Raton, Florida. For the next several months, until about September or October of 1996, Petitioner spent most of his time trying to find employment in Florida and preparing and sending approximately 150 applications to residency programs. During these several months Petitioner lived part of the time with his Miami cousin and part of the time with his Boca Raton cousin. Due to his limited financial resources at the time, Petitioner was living with his cousins to minimize expenses until he either found a job in Florida, or was accepted into a residency program. During 1996, Petitioner never had his own dwelling place in Florida. There is no evidence that during 1996 Petitioner ever intended to permanently reside with either of his Florida cousins. During 1996, Petitioner was unsuccessful in his efforts to be accepted to a residency program. However, he was successful in obtaining employment as a Urologist Assistant in Houston, Texas. Petitioner began his new employment in Houston in September or October of 1996. As of the date of the final hearing in this case, Petitioner was still employed in the same position in Houston, Texas. For the first year and a half or so after starting his current employment in Houston, Petitioner rented a series of apartments in Houston, where he lived alone or with a roommate. By the middle of 1998, his financial circumstances had improved sufficiently for him to bring his wife and children back from El Salvador. In August of 1998, Petitioner moved into a larger apartment in Houston, Texas, and his wife and two children returned from El Salvador and moved into the apartment in Houston with Petitioner. Both of the children attend school in Houston. As of the date of the final hearing, Petitioner and his wife and children continue to live together in an apartment in Houston, Texas; Petitioner continues to work in Houston; and Petitioner's children continue to go to school in Houston. Petitioner has several relatives who live in Florida. During the years Petitioner has been living in the United States, he has made numerous trips from Texas to Florida to visit his Florida relatives.4 Petitioner has a desire to live in Florida so that he can be closer to his relatives, as well as to facilitate the possibility of his son becoming a student at the University of Miami. Since 1991, Petitioner has had a Texas driver's license. He still has a current Texas driver's license. Petitioner obtained his first Florida driver's license in May of 1998. The Florida driver's license lists Petitioner's address as 9439 Fontaineblue Boulevard, No. 211, Miami, Florida, which is the address of Petitioner's Miami cousin. On at least several occasions since 1991, Petitioner has obtained automobile insurance policies in Texas showing Texas addresses for the automobiles. Petitioner has never obtained an automobile insurance policy in Florida for an automobile registered in Florida. Since leaving Florida in early 1991, Petitioner has lived with his wife and children in several locations in Texas. He is presently living with his wife and children in Houston, Texas. Since leaving Florida in early 1991, Petitioner has never lived with his wife and children anywhere in the State of Florida. Since leaving Florida in early 1991, Petitioner ha worked for many years in Texas, and is presently employed in Texas. Petitioner has never worked in Florida.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's application for a restricted license pursuant to Section 458.3124, Florida Statutes. DONE AND ENTERED this 2nd day of September, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 2nd day of September, 1999.
The Issue Whether Respondent committed the violation alleged in the Amended Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-licensed real estate sales associate, holding license number SL-691286. At no time during the almost ten years he has held this license has any disciplinary action been taken against him.2 From August 31, 2000, to March 31, 2002, and from April 16, 2002, to June 26, 2008, Respondent worked as a real estate sales associate for Tenzer Realty, Inc., and Associates (Tenzer Realty). Jack Tenzer is a Florida-licensed real estate broker. He has owned and operated Tenzer Realty since January 30, 1990. On or about December 13, 2007, Wiltamar Mendes executed a written agreement giving Tenzer Realty the "exclusive right to sell" residential property, located at 14081 Southwest 166th Street in Miami Florida, he and his wife owned (Subject Property). Under the terms of the agreement, "Tenzer Realty [was] to receive only [a] 3% commission" on the sale of the Subject Property, plus a "transaction coordination fee [of] $395.00 at closing." At no time has Mr. Tenzer ever had an interest in the Subject Property. Respondent was the listing agent for the Subject Property, and he represented the Mendeses throughout the sale process. In January 2008, Sulena Hernandez and her husband were looking to purchase a home in the Miami area. Roger Shapiro, a Florida-licensed real estate associate then working for Coldwell Banker, was helping them in their search and acting as their representative. Mr. Shapiro telephoned Respondent to make arrangements for the Subject Property to be shown to Ms. Hernandez. Ms. Hernandez, accompanied by Mr. Shapiro, was subsequently shown the Subject Property by the Mendeses.3 After the showing, the Hernandezes decided to make an offer on the Subject Property of $338,640.00 (money they hoped to obtain through a 100% financed Veteran's Administration loan4), with the "additional [monetary] term" that the Mendeses would "contribute 2% of the sale price toward [the Hernandezes'] closing cost[s]." The offer was written up for the Hernandezes by Mr. Shapiro on a Florida Association of Realtors (FAR)-developed Residential and Sale Purchase Contract form that Coldwell Banker used, on behalf of its clients, for such purposes (FAR Form). This FAR Form had eight pages, not including the "attached addenda." On the bottom of each page were spaces for the buyers and sellers to put their initials to "acknowledge receipt of a copy of th[e] page." Page 7 of the FAR Form contained the "Addenda" and "Additional Terms" provisions of the contract. The "Addenda" provision began as follows: 20. ADDENDA. The following additional terms are included in the attached addenda and incorporated into this Contract (check if applicable): This introductory language was followed by a lettered checklist of various possible "addenda" items, including "F. VA Financing," "H. As is w/Right to Inspect," "I. Inspections," "P. Back-up Contract," "Q. Broker - Pers. Int. in Prop.," "V. Prop. Disclosure Stmt.," and "Other." Next to (immediately to the left of) each listed item was a box (to be "check[ed] if applicable"). On the written offer he prepared for the Hernandezes (Contract Offer), Mr. Shapiro checked the "F. VA Financing," the "H. As is w/Right to Inspect," the "V. Prop. Disclosure Stmt.," and the "Other" boxes,5 and he attached an appropriately initialed addendum corresponding to each of these checked items.6 No other boxes were checked. Page 8 of the FAR Form was the signature page. Numbered lines 412 through 416 on page 8, as filled in by Mr. Shapiro (for the Hernandezes), read as follows: OFFER AND ACCEPTANCE (Check if applicable: ? Buyer received a written real property disclosure statement from Seller before making this Offer.) Buyer offers to purchase the Property on the above terms and conditions. Unless this Contract is signed by Seller and a copy delivered to Buyer no later than 5 ? a.m. ? p.m. on January 21, 2008, this offer will be revoked and Buyer's deposit refunded[7] subject to clearance of funds.[8] On numbered lines 417 through 420 on page 8, directly beneath this "Offer and Acceptance" provision, was the following "Counter Offer/Rejection" provision, which contained a box for the Mendeses to check if they wanted to counter the Contract Offer, as well as a box for the Mendeses to check if, alternatively, they wanted to reject the Contract Offer outright: COUNTER OFFER/REJECTION Seller counters Buyer's offer (to accept the counter offer, Buyer must sign or initial the counter offered terms and deliver a copy of the acceptance to Seller. Unless otherwise stated, the time for acceptance of any counteroffer shall be 2 days from the date the counter is delivered. Seller rejects Buyer's offer. On the next numbered line (421) on page 8, in the spaces provided, Ms. Hernandez signed her name and wrote in the date, "1/18/08." Acting under a power of attorney, she also signed (on numbered line 423) for her husband, who was on military deployment in Afghanistan at the time. The penultimate numbered line (433) on page 8 provided that the "[e]ffective date" of the contract would be "[t]he date on which the last party signed or initialed and delivered the final offer or counteroffer." Ms. Hernandez put her and her husband's initials in the spaces provided on the bottom of page 8, as well as in the spaces provided on the bottom of the preceding seven pages, to "acknowledge receipt of a copy of th[ese] page[s]." Mr. Shapiro sent the Hernandezes' signed, dated and initialed Contract Offer to Respondent (by facsimile transmission) for presentation to the Mendeses for their consideration. Respondent guided the Mendeses through their review of the Contract Offer and provided them with advice. On January 23, 2008, after they had finished going over the Contract Offer with Respondent, the Mendeses (on numbered lines 427 and 428) signed and dated the document. They also initialed the bottom of each of the offer's first eight pages, as well as the bottom of each addendum that had been attached thereto, in the appropriate spaces. This was all done in Respondent's physical presence. On behalf of the Mendeses, Respondent provided (by facsimile transmission) a copy of the signed, dated, and initialed document (Genuine Hernandez Contract9) to Mr. Shapiro. By their actions (which Respondent helped orchestrate), the Mendeses signified their intent to accept the Contract Offer, without revision. They checked neither of the boxes in the "Counter Offer/Rejection" provision (on numbered lines 417 through 420 on page 8), nor did they make any written entries elsewhere on the document, or attach any appropriately initialed additional addenda, reflecting a desire to accept an offer from the Hernandezes only on terms different than those set forth in the Contract Offer. Most significantly, for purposes of the instant case, the Mendeses made no changes to the "Addenda" provision. They checked no additional boxes (including the "P. Back-up Contract" box), nor attached any appropriately initialed addendum corresponding to an unchecked item. After receiving the Genuine Hernandez Contract from Respondent, Mr. Shapiro showed it to Ms. Hernandez. Ms. Hernandez, with the help of Mr. Shapiro, proceeded to take those steps necessary for her and her husband to close on the Subject Property on February 29, 2008, the agreed-upon closing date.10 These steps included having the Subject Property inspected and securing a mortgage loan commitment.11 Respondent and Mr. Shapiro had occasion to speak with one another over the telephone regarding these post- contract/pre-closing matters. (There was no direct communication at any time between Respondent and the Hernandezes.) At no time either before or after the effective date of the Genuine Hernandez Contract did Respondent advise Mr. Shapiro that the Mendeses intended to treat their contract with the Hernandezes as a "back-up contract," that is, a contract subordinate to another contract for the sale and purchase of the Subject Property. This was not information that could be gleaned from a review of the Genuine Hernandez Contract. Indeed, the Genuine Hernandez Contract affirmatively indicated that it was not a "back-up contract," inasmuch as the "P. Back-up Contract" box in the "Addenda" provision on page 7 was not checked, nor was there any corresponding "Back-up Contract" addendum attached to the document. Unbeknownst to Mr. Shapiro and the Hernandezes, by the time the Genuine Hernandez Contract became effective (which, according to numbered line 433, was January 23, 2008, "[t]he date on which the last party [the Mendeses] signed or initialed and delivered the final offer"), the Mendeses had already entered into a contract (using the FAR Form) to sell the Subject Property to another couple, Carlos and Aida Garcia, for $330,000.00 (95% of which would be financed), with no seller contribution toward closing costs (Garcia Contract). In the "Addenda" provision (on page 7) of the Garcia Contract (as in that provision of the Genuine Hernandez Contract), neither the "I. Inspections" box, the "P. Back-up Contract" box, nor the "Q. Broker - Pers. Int. in Prop." box was checked. Respondent was aware at the time that the Mendeses executed the Contract Offer and entered into the Genuine Hernandez Contract that it was the Mendeses' intention to proceed with the Garcia Contract as the primary contract12 and to treat the Genuine Hernandez Contract as merely a "back-up"13 (providing a ready alternative for the Mendeses, as insurance, in the event their deal with the Garcias fell through).14 This was information that any reasonably prudent buyer in the Hernandezes' situation would have wanted and expected to have, as Respondent surely must have known. As a Florida- licensed real estate sales associate representing the Mendeses, Respondent had a duty, in the interest of honest and fair dealing, to disclose this information to the Hernandezes (notwithstanding that he was not their agent15). Nonetheless, Respondent knowingly and dishonestly participated in a scheme to conceal from the Hernandezes the subordinate status of their contract to purchase the Subject Property.16 As it turned out, the Mendeses did not need to have a "back-up" buyer, as the Garcias closed on the Subject Property on February 11, 2008, as scheduled. Respondent "attend[ed] the closing with the Garcias." Respondent told neither Mr. Shapiro, nor the Hernandezes, that the Garcias had closed on the Subject Property. Mr. Shapiro found out about the Garcias and their having closed on the Subject Property, not from Respondent, but from a representative of Sunbelt Title (the title company). He obtained this information just a few days before the Hernandezes' scheduled February 29, 2008, closing. Mr. Shapiro, in turn, told Ms. Hernandez about the Garcias' purchase of the Subject Property. Ms. Hernandez was "shocked" to learn that the Mendeses no longer had title to the Subject Property and that therefore she and her husband would not be able to purchase the property from them. She had made all the necessary preparations to move from the rental property she was living in with her husband to the Subject Property. She even had family members who were going to be "flying into town" to help her with the move. Had the Hernandezes known that their contract was only a "back-up" to the Garcias', they would not have done the things they did in anticipation of their scheduled February 29, 2008, closing on the Subject Property. Ms. Hernandez hired an attorney, who contacted Mr. Tenzer to inquire, on the Hernandezes' behalf, about the situation. Mr. Tenzer had no "idea what [the attorney] was talking about." Respondent was unavailable at the time inasmuch as he was out of the country on vacation. Mr. Tenzer therefore went directly to the filing cabinets where all of Tenzer Realty's files (both active and closed) were supposed to be kept and proceeded to look for the file on the Subject Property. Pursuant to established Tenzer Realty office policy (with which Respondent should have been familiar), all contracts dealing with the Subject Property should have been in one file in these filing cabinets. Mr. Tenzer found only the Garcia Contract in the file on the Subject Property. The Genuine Hernandez Contract (to which the Hernandezes' attorney had referred in his conversation with Mr. Tenzer) was not in the file. Unable to locate a contract for the sale of the Subject Property to the Hernandezes, Mr. Tenzer left a note on Respondent's desk asking Respondent to see him about the matter as soon as he returned to the office from vacation. In his note, Mr. Tenzer emphasized that "it was urgent" that Respondent discuss the matter with him "immediately" upon Respondent's return. When Respondent returned to the office, he produced for Mr. Tenzer a document (Purported Hernandez Contract17) identical in all respects to the Genuine Hernandez Contract, except that three additional boxes in the "Addenda" provision on page 7 were checked: the "I. Inspections" box; the "P. Back- up Contract" box; and the "Q. Broker - Pers. Int. in Prop." box.18 (No additional addendum corresponding to any of these items was attached to the document, however; just the boxes were checked.19) There were no signatures or initials next to these three checked boxes.20 Respondent told Mr. Tenzer that this was a "back-up contract" and that the Hernandezes had been so informed. What Respondent had done was alter the "Addenda" provision of the Genuine Hernandez Contract in a weak and transparent attempt to make it appear as if the "back-up" nature of the contract was apparent from its face. Mr. Tenzer asked Respondent where the Purported Hernandez Contract had been "all this time." Respondent responded that he had kept it in his desk drawer. This response drew a rebuke from Mr. Tenzer, who chastised Respondent for not keeping the Purported Hernandez Contract in the file together with the Garcia Contract. Mr. Tenzer then inquired, "Why do we have another contract when one's already closed?" Respondent answered, unresponsively (as well as untruthfully), that he had notified Mr. Shapiro that the Garcias had closed on the Subject Property and that therefore the Hernandezes would not be purchasing the property. Upon reviewing the Purported Hernandez Contract, Mr. Tenzer noticed that the "Q. Broker - Pers. Int. in Prop." box was checked. When he questioned Respondent about this, Respondent told Mr. Tenzer that "that was done in error."21 The Hernandezes ultimately purchased another home in the Miami area. The purchase price of the home was more than the amount that they had agreed to pay to buy the Subject Property from the Mendeses. A complaint concerning Respondent's dealings in connection with the Subject Property was filed with Petitioner. The complaint was investigated by Felix Mizioznikov, an investigator with Petitioner. As part of his investigation, Mr. Mizioznikov interviewed Respondent, both over the telephone and "in person." During the "in person" interview, Respondent gave Mr. Mizioznikov his file on the Subject Property. The file contained the Garcia Contract, the Genuine Hernandez Contract,22 and the Purported Hernandez Contract. Mr. Mizioznikov's investigation led to Petitioner's filing the instant charge against Respondent alleging a violation of Section 475.25(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a Final Order finding Respondent guilty of "concealment" in violation of Section 475.25(1)(b), Florida Statutes, as alleged in the Amended Administrative Complaint and disciplining him for having committed this violation by suspending his license for four years, fining him $1,000.00, and requiring that he reimburse Petitioner for its reasonable investigative costs in this case. DONE AND ENTERED this 3rd day of March, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 3rd day of March, 2010.
