The Issue The issue to be determined is whether Respondent violated section 489.129(1)(b), Florida Statutes (2010), by being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime directly related to the practice or the ability to practice contracting. If so, it must also be determined what penalty should be imposed for the violation.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of contractors pursuant to section 20.165 and chapters 455 and 489, Florida Statutes. Respondent holds an active license as a certified general contractor, having been issued license number CGC 1515398 on April 30, 2008. He is also the qualifier for Pro Group Construction, Inc. Respondent's license expires August 31, 2014. On or about October 15, 2009, Respondent was charged by the United States Government in a one-count Information with conspiracy to commit wire and mail fraud in violation of 18 U.S.C. § 371. On April 5, 2011, Respondent pled guilty to Count I of the Information, and was adjudicated guilty. On March 20, 2012, Respondent was sentenced to incarceration for one year and one day, supervised release for a period of three years upon completion of his prison sentence, and payment of restitution in the amount of $182,294.83 to Wells Fargo Bank. Included in the terms of supervision, are the following: The Defendant shall provide the probation officer access to any requested financial information. The defendant shall be prohibited from incurring new credit charges, opening additional lines of credit, acquisitions or obligating himself for any major purchases without approval of the probation officer. The defendant shall be prohibited from engaging in any employment related to the buying and selling of real estate. The scheme to which Respondent pled guilty involved fraudulent statements to a lending institution, i.e., Wells Fargo Bank, to induce the lender to believe that buyers had the funds to make down payments on foreclosed properties in order to qualify for loans when in fact the buyers did not have those funds. The conduct from which the criminal charges arose occurred prior to Respondent's licensure as a certified general contractor. The guilty plea and the judgment and sentencing all occurred while Respondent held his contractor's license. Respondent admitted at hearing that his actions, which resulted in the criminal proceedings, were wrong, and he takes responsibility for his wrongdoing. He asserts, however, that because he was not licensed at the time of the conduct, it has nothing to do with his license as a certified general contractor. He was, instead, licensed as a mortgage broker. However, contractors routinely interact with customers, deal with contracts for the building of or improvement of buildings, handle money and checks, and have direct involvement with lending institutions. Respondent admitted that, if he had an employee with a conviction for a crime such as the crime for which he pleaded guilty, that employee would not be permitted to handle money on behalf of his company.
Findings Of Fact Vickie Ann Hay is, and at all times material to this case was, a licensed real estate broker in the State of Florida, license #1483791. The most recent license was issued as a broker-salesman to AAIM Realty Group, Inc., 38 Homestead Road, Lehigh Acres, Florida 33936-6646. In or about March of 1990, Respondent Hay, while licensed and operating as a real estate salesman in the employ of C. Bagins First, Inc., was contacted by Vicki Wright, daughter of Respondent Regas. Ms. Wright told Respondent Hay that Ms. Wright had referred buyers interested in purchasing numerous vacant lots. During March and April of 1990, Respondent Hay used her father's name as a "straw buyer" and prepared approximately 173 contractual offers to purchase vacant lots from various owners at various prices. The offers recited that the "straw buyer' had placed in escrow a $100 deposit with Fleetwood Title Corporation with each offer to purchase. There were no such deposits made. Some of the offers were accepted verbally and others were accepted in writing by the sellers. With 173 offers being made, there should have been a total escrow deposit of $17,300 made in connection with the offers to purchase. There were no deposits made. Respondent Hay knew or should have known that no deposits were made. Respondent Hay failed to properly advise the sellers and other real estate licensees, at the time the offers to purchase were presented, that the deposits had not been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: that the Department of Professional Regulation, Division of Real Estate, enter a Final Order reprimanding Respondent Vickie Ann Hay, placing the licensee on probation for a period of one year, imposing a fine of $1,000, and requiring Respondent Hay to complete a 45 hour salesman's postlicensing course. DONE and ENTERED this 2nd day of December, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 2nd day of December, 1991. APPENDIX TO RECOMMENDED ORDER Respondent Vickie Ann Hay did not file a proposed recommended order. The following constitute rulings on proposed findings of facts submitted by the Petitioner. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order, except as follows: 3. At hearing, the Petitioner amended the allegation to state that Ms. Wright "referred" buyers interested in purchasing the lots. 6-7. Rejected, irrelevant. The allegations related to Respondent Regas were severed and are not relevant to this Recommended Order. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate Department of Professional Regulation Hurston North Tower 400 W. Robinson Street P.O. Box 1900 Orlando, Florida 32802 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Steven W. Johnson, Esquire P. O. Box 1900 Orlando, Florida 32802-1900 (407) 423-6134 Ms. Vickie Ann Hay 811 Fireside Court Lehigh Acres, Florida 33936 (813) 368-6444 Robert L. Ratliff, III, Esq. 2359 Periwinkle Way Sanibel Island, Florida 33957
The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a convenience store and sells alcoholic beverages on the premises under a license issued by Petitioner, permitted a sale of drug paraphernalia to occur in the store, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Moti's, Inc., d/b/a Continental Market ("Continental"), has held a license to sell alcoholic beverages at retail. Consequently, Continental is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). On December 12, 2006, two undercover agents of the Division, together with a detective from the Broward County Sheriff's Office, conducted a "sting" operation at the convenience store that Continental owns. The sting was arranged in response to complaints that the Sheriff's Office had received regarding sales of drug paraphernalia (specifically "crack pipes" used for smoking crack cocaine), which were allegedly taking place at this store. The purpose of the sting was to purchase a "crack pipe" and arrest anyone involved in the sale. Pursuant to the plan, Special Agent Ralius Thompson entered the store in an undercover capacity. He was wearing a "wire" (concealed microphone) and a hidden camera. These devices, which were monitored by the other agent and the detective (both of whom remained outside the store), allowed the ensuing transaction to be recorded on a videotape. Once inside, Thompson headed first to the cooler, where he took a six-pack of beer from the shelf. He then proceeded to the counter, to purchase the beer. As the clerk, Aziar Baig, was ringing up the sale, Thompson whispered, "Got any pipes? Got any pipes?"i Baig reached down behind the counter and pulled up a "love rose." (A love rose is a trinket, a tiny fake flower encased in a thin glass tube, which latter is about 4 inches long. Though the tube containing a love rose can be used as a pipe, love roses are not necessarily drug paraphernalia; they can be legally sold, purchased, and possessed.) "You're talking about here?" Baig asked, displaying a love rose. "Yeah, smoke my crack in, man, smoke my crack in," replied Thompson. "A pipe——got a stem?" "Huh?" said Baig. "A stem," repeated Thompson. (According to the evidence, the term "stem" is street talk for filter. Filter material is inserted in one end of the pipe to prevent the user from inhaling the burning cocaine "rock.") "This one?" Baig inquired, holding up a Chore Boy® copper scrubber. (Chore Boy® scrubbers are clearly legal merchandise having an obvious, non-nefarious purpose. According to the evidence, however, the metal in these pot scrubbers can be used illicitly as a crack pipe filter.) "Yeah," said Thompson, who then paid $6.75 for the items. Shortly after making this sale, Baig was arrested on the charge of delivering drug paraphernalia, which is a third- degree felony under Section 893.147(2), Florida Statutes. The evidence presented in this case is sufficient, for present purposes, to support the inference——which the undersigned draws——that Baig either knew or reasonably should have known that his customer (Thompson) intended to use the love rose and copper scrubber to fashion a makeshift crack pipe.ii Thus, it is determined, as a matter of ultimate fact, that Baig committed the crime of delivering drug paraphernalia. There is, on the other hand, no persuasive evidence (or any evidence of any quality, for that matter) establishing that the corporate licensee (as opposed to its employee Baig) committed any misconduct, e.g. negligent failure to train or supervise employees; failure to exercise due diligence in attempting to prevent unlawful sales; or fostering or condoning such sales, for which the Division could impose discipline against Continental pursuant to Section 561.29(1), Florida Statutes. It is determined, therefore, as a matter of ultimate fact, that Continental is not guilty of the pending charge, namely permitting the sale of drug paraphernalia on the licensed premises.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Continental not guilty of the instant charge. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2007.
The Issue Respondents' alleged violation of Section 477.02(6), Florida Statutes.
Findings Of Fact Respondents received a copy of the Administrative Complaint and Notice of Hearing as evidenced by receipt for certified mail. (Exhibit 1) Respondents Arvle and Malvey Sue Kiser operate Golden Touch Coiffeurs, 901 Fillmore Avenue, Lehigh Acres, Florida under Certificate of Registration to operate a cosmetology salon No. 20014 issued by Petitioner on May 27, 1974. On June 13, 1975, Petitioner's inspector visited Respondents' establishment and observed Pearl Raulerson Curry washing the hair of a patron. When asked if she had a Florida license to practice cosmetology, Curry responded that she did not have one. At that time Malvey Kiser informed the inspector that Curry was going to take the test for a license. Kiser knew that Curry didn't have one at that time. (Testimony of Rubin) Respondent Malvey Sue Kiser submitted a written statement in which she claims that the law requiring a licensed person to perform specialist duties in a beauty salon is discriminatory because the same requirement is not imposed on persons performing the same services in barber shops. In her statement she acknowledged that she was aware that the employee Curry did not possess a current license when she was permitted to work in the salon, and that she hired Curry only after having made unavailing complaints of discrimination to various state officials and an attorney. The result was that she decided to challenge the law in question. She further states that she did not receive a quick and speedy hearing which, in turn, weakened her defense inasmuch as witnesses were no longer available. She also claims that the Notice of Violation given to her on June 13th was misleading in that it stated that failure to cure the alleged violation might result in additional disciplinary proceedings or other legal penalties. She therefore believed that if she complied by insuring that the employee became licensed there would be no further proceedings. (Statement of Malvey Kiser)
Recommendation That Respondents' Arvle and Malvey Sue Kiser be issued a written reprimand for violation of Section 477.02(6), Florida Statutes. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Arvle and Malvey Sue Kiser P.O. Box 1752 c/o Golden Touch Coiffeurs Tallahassee, Florida 901 Fillmore Avenue Lehigh Acres, Florida
Findings Of Fact At all times relevant to this case, Rajenor Bajrangi held a valid Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (hereinafter Division), license for the premises known as the Quick Stop Center (hereinafter licensed premises), license number 6k9-305, series 2-APS, located at 1201 Airport Boulevard, Sanford, Seminole County, Florida. Underage operative Robert Scott assists the Sanford Police Department in determining whether or not licensed premises will sell alcoholic beverages to persons under the age of 21 years of age. Mr. Scott was born on April 17, 1969, and on Monday, May 23, 1988, he was nineteen years old. On May 23, 1988, Robert Scott entered the licensed premise, walked to the back of the store, removed a 12 oz. can of Miller beer from the cooler, and proceeded to the check-out counter. He presented the beer to a man that he identified at the hearing as being Rajenor Bajrangi. Mr. Bajrangi, without requesting any identification, rang up the beer on the cash register and received from Mr. Scott the requested price for the beer. Mr. Scott departed the premise with the beer and met Officer Collison outside where Mr. Scott gave Officer Collison the Miller beer. At no time during this transaction did Mr. Bajrangi inquire as to Mr. Scott's age. Officer Chris A. Collison of the Sanford, Florida, Police Department has been a police officer for over eight years. On May 23, 1988, about 10:00 p.m., he went in an unmarked car with another officer and Robert Scott to the licensed premises. He was able to observe Mr. Scott enter the licensed premises purchase the aforementioned beer and then depart the premises. The funds that Mr. Scott used to purchase the beer were provided by Mr. Collison. Mr. Collison received the Miller beer purchased by Mr. Scott from the hands of Mr. Scott. He identified the beer that was offered as Petitioner's Exhibit 2 as being the beer that was given to him by Robert Scott. David E. Ramey is a law enforcement investigator for the Division of Alcoholic Beverages and Tobacco and he has been so employed for over eleven years. He inspected the can of Miller beer that was entered into evidence as Petitioner's Exhibit 2 and knows that the evidence was labeled as beer, that it was contained in an unopened can, that it had lithographed on the lid of the can the word "Florida," and that it bore the manufacturer's trademark. Investigator Ramey had the opinion that the substance in Petitioner's Exhibit 2 is beer. The usual penalty for a licensee selling to an underage person is a $1,000.00 civil penalty accompanied by a 20-day license suspension. Mr. Rajenor Bajrangi testified that, on May 23, 1988, when Mr. Scott purchased the beer, there was a large group of rowdy people loitering in the vicinity of the licensed premise and that the police officers should have arrested these rowdy persons instead of trying to make an underage case against him. Neither the testimony of Officer Collison or that of Mr. Scott served to bolster Mr. Bajrangi's claim that he was diverted by the so-called rowdy persons and Officer Collison specifically stated that there were no distractions occurring in the vicinity of the licensed premise at the time the beverage was purchased. Considering the evidence as a whole, there was no credible evidence that Respondent was distracted at the time the beverage was purchased.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding the licensee guilty of a violation of Section 561.29(1)(a), Florida Statutes, and Section 562.11(1)(a), Florida Statutes, and imposing a civil penalty of $1,000.00 and a three (3) day license suspension. DONE AND ENTERED this 12th day of July, 1989, in Tallahassee, Leon County, Florida. DANIEL M. MANRY 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 12th day of July, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Recommended Order Paragraph 1-6. Accepted Respondent's letter dated July 4, 1989. Did not dispute Petitioner's finding of fact but was in the nature of mitigation. COPIES FURNISHED: Harry Hooper, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Rajenor Bajrangi c/o Quick Stop Center 1201 Airport Boulevard Sanford, Florida 32771 Leonard Ivey Director Division of Alcoholic Beverages and Tobacco The Johns Building 725 S. Bronough Street Tallahassee, Florida 32399-1000 Stephen R. McNamara Secretary Department of Business Regulation The Johns Building 725 S. Bronough Street Tallahassee, Florida 32399-1000 Joseph A. Sole General Counsel Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000
The Issue The issues presented in this consolidated proceeding are whether Respondent committed the acts and violations alleged in the two administrative complaints, and, if so, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating restaurants in the state. Respondent is licensed as a restaurant, pursuant to license number 5802478, and operates as 459 Chinese Restaurant at 657 North Primrose Drive, Orlando, Florida 32803 (the restaurant). A sanitation and safety specialist (Specialist) for Petitioner inspected the restaurant on October 28 and 29, November 5, and December 1, 2004. The Specialist inspected the restaurant again on April 26 and 27, 2005. On December 1, 2004, Respondent committed three violations of applicable statutes and rules. On April 27, 2005, Respondent committed another violation. Each violation was an uncorrected violation that first occurred in previous inspections. On December 1, 2004, Respondent did not document that an employee at the restaurant had received training in professional hygiene and food-borne disease prevention in violation of Florida Administrative Code Rule 61C-4.023(4)(a). This violation is a critical violation. Petitioner's witness identified a critical violation as a violation that is an immediate danger to the public safety. On December 1, 2004, a grease buildup existed on the kitchen wall near the fryer. Food-debris buildup was also present on the floors in the corner of the kitchen. Neither of these violations is a critical violation. On April 27, 2005, Respondent maintained eggs at a temperature of 64 degrees Fahrenheit, rather than 45 degrees, in violation of Rule 3-5.01.16(B) of the Food Code. This is a critical violation. Several mitigating factors are evidenced in the record. The violations did not result in actual harm. Respondent has no prior discipline. The violations are not continuing or ongoing violations. The only aggravating factor is that two of the violations are critical violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the acts and violations alleged in each Administrative Complaint, requiring Respondent's representative to attend the educational program prescribed in Petitioner's PRO, and imposing an administrative fine of $1,300, due and payable to the Division of Hotels and Restaurants, 1940 North Monroe Street, Tallahassee, Florida 32399-1011, within 30 calendar days of the date that the agency serves Respondent with a copy of the final order. DONE AND ENTERED this 21st day of December, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 2005. COPIES FURNISHED: Mary Quinn 459 Chinese Super Buffet 657 North Primrose Drive Orlando, Florida 32803 Jessica Leigh, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
