Findings Of Fact At all times material hereto, Respondent has been employed by the City of Clearwater in permanent civil service status as an equipment operator I. From February 25, 1985 to May 27, 1985 Respondent was paid as an equipment operator II, and was considered an "acting equipment operator II." Respondent was given this additional pay and "acting" classification since he had passed the test for equipment operator II and had a chauffeur's license. On September 16, 1985 while operating a heavy piece of equipment known as a Bob-cat, Respondent backed the vehicle over a person who was lying in a lounge chair on a public beach, killing the individual. Respondent testified he backed the vehicle up an incline on the beach approximately fifteen feet, but that he did not look behind him or over the incline to see what was there prior to backing the vehicle. At the time of this incident, Respondent was qualified to operate the Bob-cat since he had passed the equipment operator II exam, had a chauffeur's license and also had extensive experience operating this vehicle. The City of Clearwater allows an equipment operator I to operate a Bob-cat, which generally can only be operated by an operator II, if he has passed the operator II exam, has demonstrated practical experience, possesses a chauffeur's license, and an operator II is not available at the time to move the Bob-cat. On September 16, 1985, an operator II was not available and Respondent's supervisor therefore ordered him to move the vehicle. Respondent was involved in two other accidents while operating City vehicles prior to the incident on September 16, 1985. On May 18, 1983, Respondent struck a private vehicle and was issued a traffic citation for the violation of the right-of-way. He plead guilty to this charge. On March 15, 1984, Respondent struck the back of a private vehicle and was charged with careless driving. He also plead guilty to this charge and paid a traffic fine. Respondent received warnings from his supervisors following these previous incidents. On or about March 11, 1986, Respondent was served with a Demotion Notice based upon the three traffic incidents noted above. The Notice sets forth the City's intent to demote Respondent from equipment operator I to maintenance worker I due to carelessness that affects the safety of city personnel or the public, as well as endangering City property and equipment. Respondent timely requested this hearing on the Demotion Notice.
Recommendation Based upon the foregoing, it is recommended that Respondent's appeal be DISMISSED and a Final Order be issued by the City of Clearwater confirming the disciplinary action of a demotion from equipment operator I to maintenance worker I. DONE AND ENTERED this 21st day of July, 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1175 Rulings on the City of Clearwater's Proposed Findings of Fact: 1 Adopted in Finding of Fact 5. 2,3 Adopted in Finding of Fact 4. 4 Adopted in Findings of Fact 2,3. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney P.O. Box 4748 Clearwater, Florida 33518 Ray H. Brock Public Service Division City of Clearwater Clearwater, Florida 33518
Recommendation In view of my finding that the Petitioner has engaged in a pattern of careless conduct, I recommend that the Board issue a written reprimand to her for having engaged in the conduct as found herein. in all other respects I recommend that the complaint be dismissed in its entirety. DONE and ORDERED this 29th day of July, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. The Respondent has been licensed as a professional engineer in the State of Florida since 1964 (license number PE 0010812), having become licensed by examination in the field of mechanical engineering. He has practiced professional engineering since 1964 in and around Fort Walton Beach and Okaloosa County, Florida, as an individual practitioner and as an officer of the Royster Construction Company. The Respondent's formal education and professional experience are in the fields of civil, structural, and mechanical engineering. Although testimony indicates that the Respondent has had some contact with the field of electrical engineering, he lacks significant formal education or professional experience in that specialty. Findings regarding Count I In July 1984 plans for a proposed project to be known as the White Sands Bowling Center were prepared, signed, and sealed by the Respondent in his capacity as a professional engineer. The plans included sheets numbered 1 through 9, of which sheet number 6 and sheet number 9 depict electrical components of the proposed structure. Findings regarding Count II The electrical engineering plans (sheet number 6 and sheet number 9) contain errors and omissions including the following: The "symbol legend" necessary to define components depicted on the plans has been omitted. Fixture types and wattage specifications necessary to determine adequate and appropriate loading of circuits have been omitted. Electrical component and fixture circuit identification numbers necessary to identify such components and fixtures have been omitted. Specifications necessary to determine air conditioning connections have been omitted. Details of fire alarm circuitry required by applicable building codes in force at the time of design have been omitted. Emergency exit fixtures and circuitry required by applicable building codes in force at the time of design have been omitted. Electrical panel details necessary to complete construction have been omitted. Details of connections necessary for installation of indicated aluminum wiring have been omitted. The specification depicted for grounding of the electrical system is not in compliance with applicable building codes in force at the time of design. The electrical riser depicted on the plans is incomplete and does not provide sufficient information to complete construction. The Respondent failed to meet a standard of due care in the preparation of the plans depicting electrical engineering for the White Sands Bowling Center and was negligent in his preparation of those plans. Findings regarding Count III The mechanical engineering plans (sheet number 7, air conditioning, and sheet number 8, plumbing) contain errors and omissions including the following: Specifications of air conditioning units and associated ducting are in conflict and do not provide details necessary to complete construction. Details showing "returns" from outside air are in conflict with known standards of design and do not provide details sufficient to complete construction. Specifications of condensation features do not provide sufficient detail to complete construction and are not in compliance with applicable building codes in force at the time of design. Toilet exhaust system details are not sufficient to complete construction and are not in compliance with applicable building codes in force at the time of design. Details of water supply system source and sanitary collection and disposal required by applicable building codes in force at the time of design have been omitted. The Respondent failed to meet a standard of due care in the preparation of the plans depicting mechanical engineering for the white Sands Bowling Center and was negligent in his preparation of those plans. Findings regarding Count IV The structural engineering plans (sheet number 3) do not contain details sufficient to complete construction, and if built as designed, there is no reasonable assurance that the structure would comply with applicable building codes in force at the time of design. The Respondent failed to meet a standard of due care in the preparation of the plans depicting structural engineering for the White Sands Bowling Center and was negligent in his preparation of those plans.
Findings Of Fact Petitioner graduated from a technical high school in Massachusetts and studied electricity at the Wentworth and Coyne Institutes. He served a three year apprenticeship and subsequently obtained the Massachusetts journeyman and master electrician licenses. He entered the electrical contracting business in 1960 and thereafter engaged in commercial, industrial, and residential electrical contracting work in Massachusetts. All projects were completed without default. Petitioner moved to Florida one year ago intending to set up an electrical contracting business here. However, Respondent denied his application for licensure by endorsement and he has deferred his business plans until the licensing issue is resolved.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Robert F. Toscano for licensure as an electrical contractor by endorsement be denied. DONE AND ENTERED this day of March, 1981 in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6 day of March, 1981. COPIES FURNISHED: Susan Tully, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Mr. Robert F. Toscano Post Office Box 1563 Belleview, Florida 32620
The Issue Whether Petitioner timely filed her Employment Complaint of Discrimination ("Complaint") with the Florida Commission on Human Relations ("FCHR"), and, if so, whether FCHR has jurisdiction to entertain Petitioner's Complaint on the merits.
Findings Of Fact Petitioner was previously employed by Respondent as an attorney in its Miami, Florida office. On November 13, 2012, Petitioner tendered her resignation via correspondence entitled a "Notice of Constructive Discharge." The correspondence provided that her resignation would be effective on November 23, 2012. Petitioner's last date of employment with Respondent was November 23, 2012, and she was paid through that date. Petitioner completed a FCHR form entitled Technical Assistance Questionnaire for Employment Complaints ("Questionnare") and signed the same on November 20, 2013. The Questionnare provides on its face the following langauge: "REMEMBER, a charge of discrimination must be filed within 365 days of the alleged act of discrimination." Additionally, the Questionnare describes the principal purpose of the document as follows: The purpose of this questionnaire is to solicit information about claims of employment discrimination, determine whether the Florida Commission on Human Relations has jurisdiction over those claims, and provide charge filing counseling, as appropriate. On December 23, 2013, Petitioner filed an Employment Complaint of Discrimination ("Complaint") against Respondent with FCHR. The Complaint was stamped as received by FCHR on December 23, 2013 at 4:47 p.m. In the Complaint, under section C——"Cause of Discrimination"——Petitioner checked the boxes for sex and retaliation. Petitioner alleged discrimination pursuant to chapter 760 of the Florida Civil Rights Act. The Complaint further alleges that November 23, 2012, was the date that the "most recent discrimination took place." On March 20, 2014, following the completion of its investigation, FCHR issued a Determination: No Jurisdiction, on the grounds that "[t]he complaint was not timely filed."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety due to lack of jurisdiction. DONE AND ENTERED this 24th day of July, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 24th day of July, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Dietrich Renee Jenkins, Esquire Unit 1503 1861 Northwest South River Drive Miami, Florida 33125 Laurie Michele Chess, Esquire Jones Walker, LLP Suite 2600 201 South Biscayne Boulevard Miami, Florida 33131 Kenneth E. Walton, II, Esquire The Walton Law Firm 1999 Southwest 27th Avenue Miami, Florida 33145 Elizabeth M. Rodriguez, Esquire FordHarrison LLP 100 Southeast 2nd Street Miami, Florida 33131 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto, respondent, Arthritis Medical Center, Inc. (AMC), operated a facility at 901 Southeast 17th Street, Fort Lauderdale, Florida. According to its business card, AMC provides a "Hormone Balance Treatment" to patients suffering from arthritis and uses a "medication" that "combines three separate hormones - glucocorticoid and the male and female sex hormones." The card represents that AMC collaborates with a "medical staff" and that its registered nurse administrator was one Donna Pinorsky. 2/ The card reflects also that AMC has a facility at 2025 Broadway, #19D, New York City. The parties have stipulated that respondent holds no licenses or permits from any state regulatory agency. Further, it has no pending application for any permit. Petitioner, Department of Health and Rehabilitative Services (HRS), is charged with the responsibility of protecting the public health regarding commerce of drugs, devices and cosmetics. Through its pharmacy services program, HRS issues permits to those persons or establishments, other than pharmacies, who provide or sell legend drugs, devices or cosmetics to the public. Also, the agency inspects both permitted and unpermitted facilities that hold drugs, devices or cosmetics to ensure that adulterated, misbranded or unsanitary drugs are not dispensed to the public. To this end, HRS employs licensed pharmacists who make random, unannounced inspections of such facilities. This case arises out of two unsuccessful efforts by HRS inspectors to inspect respondent's facility. The inspections were prompted by HRS' receipt of a letter from the Department of Professional Regulation. The contents of the letter were not disclosed. On the afternoon of January 16, 1987, HRS inspectors Jones, Loudis and White, all licensed pharmacists, visited AMC's facility in Fort Lauderdale for the purpose of inspecting any legend drugs, devices or cosmetics that might be on the premises. They were met by Pinorsky, the facility's administrator. After identifying themselves, Pinorsky picked up a hand-held tape recorder and began taping the conversation. Pinorsky first acknowledged that a "Doctor Kline," whose sign was on the outside of the building, had offices at the facility but was not present. She also gave the inspectors an AMC business card which contained the information set forth in finding of fact 1. When the inspectors asked if any hormones were kept on the premises, Pinorsky responded by asking if the inspectors had a subpoena. After being told there was none, she read the inspectors the following statement: On advice of counsel, under the United States Supreme (Court) decision See's vs City of Seattle, Washington, I must decline to allow a search without a search warrant signed by a Judicial officer. And, if such warrant has been issued on advice of counsel I decline to consent to a search until a Court has ruled on a motion to quash under the Fourth & Fourteenth Amendments to the United States Constitution. My local attorney is Larry Altman Post Office Box 402404 Miami Beach, FL 33140 My general counsel is John Burgess 2000 Powell Street Suite 1680 Emoryville, CA 94608 The inspection ended at that point. Around 4:15 p.m. on March 13, 1987 Jones and Loudis returned to AMC's place of business for the purpose of conducting an inspection. They were met by one Kathy Bentley, a secretary, who was told the purpose of the visit. Bentley would not allow the inspection to be made because the "nurse" was not present. Pinorsky then entered the room carrying a "toddler." After putting the child down, Pinorsky immediately set up a tape recorder and began recording the conversation. After identifying themselves, the inspectors requested they be permitted to inspect the facility to ensure compliance with Chapter 499, Florida Statutes. Pinorsky denied their request saying there was ongoing "litigation" over their right to inspect the facility. The inspection ended at that point. Based upon the two unsuccessful efforts to inspect AMC's facility, an administrative complaint was issued by HRS in January, 1988. The complaint is the second administrative action taken against respondent. The first culminated in a Final Order issued on October 22, 1986 imposing a $500 fine on respondent for refusing to allow inspectors to inspect its facility on April 30, 1986. The inspectors had no search warrants to inspect AMC's facility nor had there been any finding of probable cause by a judge or magistrate that a statutory violation may have taken place on AMC's premises. Also, the inspectors did not know the precise nature of respondent's business or whether any drugs were actually kept on the premises. Indeed, Pinorsky never admitted that any were kept at the facility. The inspectors estimated that approximately forty percent of all inspections are on nonpermitted facilities. The inspections are made on a random basis or after the receipt of information from other agencies suggesting that one be made. In 1986-87, HRS inspected more than 350 health maintenance organizations, doctor's offices and medical centers as well as other establishments that hold drugs, devices and cosmetics. The basis for and criteria used in such inspections are set forth in a written HRS "operational guide." This document is not of record. Based upon (a) the representations in AMC's business card that it "treats" arthritis patients and that a "medication" is given to them, (b) the use of the term "medical center" in respondent's business name, and (c) the fact that a physician has offices at AMC's facility, it may be logically inferred that AMC is an establishment that holds or maintains drugs on its premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 499.005(6), Florida Statutes (1987), and Rule 10D-45.0545, Florida Administrative Code (1987), on two occasions and that it pay $5,000 for each violation, or a total of $10,000, said fine to be paid within 30 days from date of the Final Order rendered in this matter. DONE AND ORDERED this 30th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1988.
Findings Of Fact Respondent, Russell Corporation, has a plant located in Marianna, Florida. The work done at the Marianna plant consists of sewing pre-cut cloth into a finished garment. Shirley Melton is a middle-aged black woman who had been employed at Russell Corporation's, Marianna, Florida plant for 4 years as a sewing machine operator. She was one of the plant's best workers and until this incident, her supervisors had never had any trouble with her. On September 30, 1985, Ms. Melton filed a discrimination complaint against Russell Corporation, alleging that Respondent had discriminated against her on the basis of her race. The charge was based on the fact that Ms. Melton did not receive a sewing job she was interested in. The sewing position she sought was a temporary job. Ms. Melton did not know the job was temporary. While the job was originally discussed with Ms. Melton, the decision was made to place Clarice Moats, a white woman in the temporary job. Ms. Moats was chosen because (1) her original job had been eliminated; (2) she had more seniority; (3) little training was required because her prior job was similar; and (4) Ms. Melton was currently in a permanent job. The Human Relations Commission found no probable cause in Ms. Melton's complaint and took no further action regarding the complaint. After that date, but before July 16, 1986, Ms. Melton had gotten in a personal dispute with Carolina Myrick. The dispute was outside of work and did not relate in any way to work. Carolina Myrick was a quality control inspector for Russell Corporation and was related to Ms. Melton. On July 16, 1986, Ms. Melton and Ms. Myrick had worked most of the day without incident. However, beginning about 3:55 p.m., Ms. Melton learned that Ms. Myrick had "red tagged" a bundle of items she had sewn. A red tagged bundle is a bundle of sewn items which have not passed the quality control inspection Ms. Myrick performs on the bundle. Ms. Myrick then returns the rejected bundle to the appropriate employee's supervisor. A red tagged bundle can subject an employee to disciplinary action if the employee receives too many red tags. In this instance, Carol Hall was the floor supervisor over Ms. Melton. Ms. Melton went to see Carol Hall about the bundle "all the women on the line were talking about." While walking to Ms. Hall's desk, she passed Ms. Myrick and stated that she was going to whip Ms. Myrick's tail if she got another red tagged bundle. Upon arriving at Ms. Hall's desk, Ms. Hall informed Ms. Melton that it was her bundle that had been tagged. Ms. Melton left Ms. Hall's desk and began to walk out of the building since the quitting bell had rung. Ms. Melton was quite upset about the red tagged bundle. She believed Ms. Myrick was picking on her because of their earlier personal disagreement. Ms. Melton was in front of Ms. Myrick on the way out when she turned and said that she was an old witch and that "the Lord took the wrong one, it should have been you," referring to Ms. Myrick's sister Christine McGriff, who had suddenly and unexpectedly died of encephalitis a few weeks earlier. Ms. Myrick became upset over Ms. Melton's words and complained to the supervisor, Carol Hall. Carol Hall then took Ms. Myrick in to speak with Doris Durden, the floor supervisor. Ms. Durden then went to talk to Claude Nall, the plant manager. All three people believed that Ms. Melton's action was unusually cruel and it was their policy not to allow such behavior in the plant, particularly where a quality control person was involved. All three individuals testified that they had never had such extreme language used in the plant. The next day, Ms. Melton was suspended, pending an investigation. After a full investigation, during which Ms. Melton admitted making the above statements, it was decided to terminate Ms. Melton for gross insubordination towards a fellow employee and willful verbal abuse by making degrading remarks about the employee's job performance and about her family. It was the willful aspect of this misconduct which formed the basis for the discharge. At the time the termination was decided, Mr. Nall, the plant manager, did not even know about Ms. Melton's earlier complaint, because he had been transferred to the Marianna plant sometime after the earlier complaint had occurred. The decision to terminate was reviewed and approved by the personnel office in Alexander City, Alabama. Ms. Melton was formally terminated on July 21, 1986. Ms. Melton instituted the review proceedings the plant had established for employee disciplinary actions taken by plant supervisors. She appeared before a review board consisting of four (4) people from various other corporate offices and plants. The hearing was held on July 29, 1986. At the hearing, Ms. Melton again admitted making the alleged statements. However, even in the face of these admissions, Ms. Melton, at the hearing, maintained she never said she "would whip Ms. Myrick's tail." Respondent presented sufficient evidence to show that Ms. Melton's denial is incorrect. Ms. Melton asserted at the hearing that there were other incidents of a similar nature at the plant for which termination was not the end result. However, she presented no evidence, other than uncorroborated hearsay, that such incidents had in fact occurred. The witnesses called by Respondent flatly denied that any similar incidents had ever occurred which would be comparable to the extreme nature of Ms. Melton's conduct. Other than these hearsay statements by Ms. Melton, there was absolutely no evidence presented that Respondent discriminated against Ms. Melton in retaliation for her earlier filed discrimination action. Ms. Melton had the right to subpoena the persons involved in the allegedly similar conduct to testify to those matters. However, she did not exercise her right to do so.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition against respondent, Russell Corporation, be dismissed. DONE AND ORDERED this 6th day of May, 1988, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4132 Petitioner did not number her paragraphs in her recommended order. I, therefore, have numbered the paragraphs in her recommended order sequentially and utilize those numbers in this appendix. Petitioner's proposed finding of fact contained in paragraph 1, have been adopted, in so far as material, except the finding regarding Ms. Melton having more experience and the finding regarding retaliation. The evidence did not show these two (2) facts. Petitioner's proposed finding of fact in paragraph 2, have been adopted, in so far as material, except the evidence did demonstrate Ms. Melton said that she would whip Ms. Myrick's tail... and had admitted saying such at least two (2) times prior to the hearing. Because of the prior admissions the evidence demonstrated more than just a swearing match between Ms. Myrick and Ms. Melton. Petitioner's proposed finding of fact contained in paragraph 3 have been adopted as to the admissions. The rest of paragraph 3 is immaterial and uncorroborated hearsay Petitioner's proposed finding of fact contained in paragraph 4 are immaterial and evidence demonstrated admissions by Petitioner. Respondent's proposed finding of fact numbers 1, 4, 6, 9, 10, 11, 13, 22, 24, 25, 26 and 27 have been adopted, in substance, in so far as material. Respondent's proposed finding of fact number 2 was not shown by the evidence. Respondent's proposed finding of fact number 3 have been adopted, in substance, except the last sentence in paragraph 3, which was not shown by the evidence. Respondent's proposed finding of fact number 5 have been adopted, in substance, except evidence showed Ms. Melton's initial statement to Ms. Myrick was on her way back to supervisor's desk and not outside work area. Respondent's proposed finding of fact numbers 7, 8, 16 and 28 are immaterial. Respondent's proposed finding of fact number 12 have been adopted, in substance, except for leaving work area. Respondent's proposed finding of fact number 14 is immaterial, except as facts relate to one of Ms. Melton's admissions. Respondent's proposed finding of fact number 15 is immaterial, except as facts relate to one of Ms. Melton's admissions. Respondent's proposed finding of fact numbers 17, 18, 19, 20, 21 and 23 are subordinate. COPIES FURNISHED: Shirley Melton Star Route Box 98 Gordon, Alabama 36343 Carol Sue Nelson, Esquire CONSTANGY, BROOKS & SMITH 1015 First National Southern Natural Building Birmingham, Alabama 35203 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
The Issue Whether Petitioner's challenge to the failing grade he received on the Limited Energy Examination of the Electrical Contractors Licensing Board, taken on November 9, 2004, should be sustained.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner sat for the November 2004 Limited Energy Examination. Upon receiving notice that he had not passed the examination, Petitioner challenged several examination questions. This hearing is a distillation of the challenge process and one question has been brought before this tribunal. The particular question, No. 55, is, as follows: "[T]he best choice of conductor in an electrically noisy environment is: a. coaxial, b. fiber optics, c. twisted pair, d. shielded twisted pair." Petitioner offered evidence, by way of his opinion, that the terms "fiber optic" and "conductor" are not synonymous, therefore the question is poorly-worded, and that "shielded twisted pair" should be the correct answer. Petitioner also presented technical documents that distinguished between the terms "fiber optic" and "conductor." The Department's expert witness in electrical contacting has 40 years' experience in electrical contracting and has been licensed in Florida since 1985. He opined that the terms "fiber optic" and "conductor" are synonymous, as used in the industry. The test is not only of reference knowledge, but also of trade knowledge. He stated that all four possible answers are "conductors." He stated that the only correct answer was b, "fiber optics." The Department's expert witness, the psychometrician, testified that test questions are pre-screened by industry experts to assure that the questions are "viable, reliable, and valid" and that there is only one correct answer. Then a post- test assessment is conducted to determine the difficulty of the questions and to determine how many of the test-takers, who passed the test, got the correct answers. In this instance, question No. 55 was answered correctly by 93 percent of the individuals who passed the test and 92 percent of the 28 test-takers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Electrical Contractors Licensing Board enter a final order which denies Petitioner's application for an electrical contractor's license based upon the failing score that he received on the Limited Energy Examination of the November 2004 licensure examination. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 12th day of January, 2006. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 David Nathan Warren Post Office Box 1131 Palm City, Florida 34991 Anthony B. Spivey, Executive Director Electrical Contractors Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner was a member of the United State Army stationed in Korea from the Fall, 1983 until early 1984, having achieved the rank of E-5. In December, 1983 Petitioner overpurchased certain rationed items. Specifically, he purchased three months of rationed items, having accumulated allocations from prior months, although he was only authorized to utilize the ration allocation for the current month. Petitioner testified he did not know, and was not told, that unused allocations for rationed items could not be accumulated and utilized later. Petitioner plead guilty to the misdemeanor charge resulting from this overpurchase. He spent two months in confinement, was reduced in grade from E-5 to E-1, and forfeited $150 in pay for four months. As a result of his loss in grade, Petitioner understood that his pay would be reduced to that of E-1. However, upon receipt of his pay following his reduction in grade, he realized his pay had only been reduced the $150 per month he was to forfeit for four months, but had not been reduced to that of E-1. He allowed another month to go by, and when the adjustment still was not made he reported this to his commanding officer. Shortly thereafter, Petitioner was reassigned to duty within the United States, and he testified he reported the continued overpayment to his new commanding officer. A total of eight months elapsed after he was reduced in grade when he continued to receive E-5 pay. Thereafter, Petitioner was charged in December, 1984 with the misappropriation of government funds, a felony, and on February 26, 1985 he plead guilty to this charge. He was confined for six months, without pay, and given a misconduct discharge. On or about May 29, 1986 Petitioner applied for licensure as a real estate salesman in the State of Florida, and in response to Question 6 he fully disclosed his guilty pleas to the two offenses described above, the sentences imposed, and the fact that he had received a misconduct discharge. On or about September 11, 1986 Petitioner was notified on behalf of Respondent that his application for licensure would be denied based upon his answer to Question 6 and the offenses noted therein. Petitioner timely requested a hearing. Petitioner honestly disclosed his prior offenses occurring in 1983 and 1984 on his application for licensure. He offered the testimony of Andrew Carl Atkison, a friend and former business associate, in mitigation and to establish his honesty since his misconduct discharge.
