The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent has violated Rule 21F-20.002, Florida Administrative Code, and Sections 477.0265(1)(c) and 477.029(1)(i), Florida Statutes (1985). At the hearing the Petitioner presented the testimony of two witnesses and offered one exhibit into evidence. Thereafter, the Respondent testified in her own behalf. At the conclusion of the evidentiary portion of the hearing, the parties advised the Hearing Officer that they did not intend to obtain a transcript of the proceedings. A deadline of 10 days from the date of the hearing was established for the submission of the parties' proposed recommended orders. The hearing concluded with the presentation of oral argument by counsel for both parties addressed primarily to the issue of the appropriate penalty. As of the date of this recommended order, neither party had filed a proposed recommended order.
Findings Of Fact The Respondent is licensed to practice cosmetology and to operate a cosmetology salon in the State of Florida, having been issued license numbers CL 0163833 and CE 0041166. At all times material hereto, the Respondent has been the owner of a cosmetology salon named All Around Hair Stylist, located at 5567 Moncrief Road, Jacksonville, Florida 32209. An inspection of the premises of All Around Hair Stylist was conducted on August 29, 1987, by one of the Petitioner's inspectors. At that time the salon was in substantial disarray. Among the conditions in existence in the salon at that time were the following: The container for soiled linens contained trash other than linens. Bags of overflowing trash were in the service area and in the back of the premises. Hair was all over the back room floor that one had to pass through to get to the shampoo bowl and restroom. Food scraps were left in the back room. The salon had an objectionable odor. The floors were filthy and littered with hair, trash, dust, and dirt. The shampoo bowls were not clean. The door leading to the restroom had no handle and a rug jammed against the door made it very difficult to open. The restroom had a very unpleasant odor. There was a hole in the wooden floor. The pipes to the sink did not work properly and water from the sink would pour onto the floor. The restroom did not have a waste receptacle, paper towels, or soap. There was no ventilation in the restroom. The service area was quite cluttered. The brushes and combs were full of hair. A reinspection was done on December 3, 1987. At that time there were still some shortcomings in the condition of the premises, but substantial improvements had been made. Shortly before the hearing, another reinspection was done. At the time of the second reinspection, the premises were "spotless." Approximately a week or ten days before the August 29, 1987, inspection, the Respondent's premises were vandalized. The vandals broke into the building and once inside they broke the sink, the pipes to the sink, the water heater, and various other things in the salon. The vandals also made quite a mess inside the premises by doing such things as taking supplies out of drawers and dumping garbage on the floor. At the time of the August 29, 1987, inspection the Respondent had not yet been able to repair all of the damage caused by the vandals or clean up all of the mess caused by the vandals. The Respondent did not receive a settlement check from her insurance company until sometime after August 29, 1987, and due to her economic circumstances she was not able to begin to repair the damage caused by the vandals until she received the insurance settlement. Since August 29, 1987, the Respondent has repaired all of the damage to the premises and has made other substantial improvements to the premises. The Respondent's premises are in a low rent neighborhood. Many of her customers are in low income brackets. Accordingly, the Respondent charges lower than usual prices for her services and does not earn a large income from the business.
Recommendation Based on all of the foregoing, it is recommended that the Board of Cosmetology enter a final order in this case finding the Respondent guilty of violating Section 477.029(1)(i), Florida Statutes, and imposing a penalty consisting of a reprimand and an administrative fine in the total amount of one hundred dollars ($100.00) DONE AND ENTERED this 18th day of March, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH 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 18th day of March, 1988. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Chief Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 R. Lee Utley, Jr., Esquire 331 East Bay Street Jacksonville, Florida 32202 Myrtle Aase, Executive Director Board of Cosmetology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times pertinent to the allegations involved herein, Respondent, Ezekiel Taylor was employed as a tree trimmer by the Department of Parks and Recreation, City of Clearwater. By Stipulation, Respondent agreed, and it is so found, that on March 7, 1988, contra to the provisions of a policy letter dated January 11, 1985, from Ream Wilson, Director of Parks and Recreation for the City of Clearwater, dealing with the use of city vehicles, Respondent, while operating a City owned vehicle with his tree trimming crew, made an unauthorized stop at the Charter Food Store located at Gulf-to-Bay Boulevard and Duncan, at approximately 8:00 a.m. According to the terms of the policy letter, with which Respondent was familiar, "1) Operators of City Vehicles shall not stop at convenience stores, donut shops, restaurants, etc., for food or drink while in [sic] route to their sites at the beginning of their work shift." The terms of this policy letter have been made a part of Rule 14(c), Civil Service Rules and Regulation of the City of Clearwater, the violation of which subjects an offender to disciplinary action. Respondent admittedly stopped at a convenience store on the morning in question, as alleged, to get a cup of coffee to take with him. He was in the store a very short time. Nonetheless, his actions constituted a violation. Disciplinary guidelines for the City are set out in Guidelines For Disciplinary Action, for the City, (Revisions effective 05/23/86) and are broken down into four categories, Level 1 through Level 5 in ascending order of severity . The guidelines provide that: "In each level and for each infraction con- sideration will be given to the severity of the offense, the actual potential cost or damage involved, time interval between infractions, the length and quality of service records and any other pertinent matters." The infraction in question was classified as a Level 3 offense. Under the terms of the Guidelines, Level 3 offenses (here item 16) calls for a "One to Two Day Suspension" for a first offense, a "Three to Five Day Suspension" for a second offense, and "Discharge" for a third offense. The infraction was reported up to Mr. Wilson who evaluated the matter in light of Respondent's work record and prior disciplinary record, and who concluded a one day suspension without pay was appropriate. Mr. Wilson considered the fact that Respondent had worked for the city for 15 years and was a good worker. He also considered Respondent's four prior written disciplinary actions including: 12/30/87 - a written counselling for allowing a city-owned chain saw in his custody to be stolen, 7/10/87 - a written reprimand for sitting in a city truck, while not on break or lunch, 6/11/87 - a written reprimand for care- lessly damaging city property, and 8/21/86 - a written reprimand for care- lessly damaging city property. The above personnel actions were taken from the records of the Division of Parks and Recreation, not the Respondent's official personnel records with the City. Consequently, it cannot be determined if the prior actions were finalized properly and made a part of Respondent's official record. Mr. Ream did not consider the several complimentary notes of appreciation forwarded to Respondent by his supervisor indicating calls by citizens of the city who were pleased with Respondent's work. Again, there was no indication that these notes, admitted by Respondent without objection by the City Attorney, were in Respondent's files or that Mr. Wilson had notice of them. Respondent's immediate supervisor, Mr. Gill, however, indicated Respondent is one of his best employees when it comes to doing his work. He has always been honest and his decisions are usually good. He requires no more supervision than the rest of the workers. Mr. Ream's rationale for imposing the punishment he chose was that Respondent was a group leader who was expected to set the proper example for his crew, and who would have been expected to report any violations he observed. He considered Respondent's 15 years with the city and the fact he had been notified four times previously of substandard behavior. Though no suspension had ever been imposed before, if one had been imposed, this time the action would have been more severe. Respondent was not treated any more drastically than any other city employee guilty of a Level 3 offense. The city looks at this as an unauthorized additional break which, as a matter of community relations, must be curtailed. Though Respondent raised some inference of lesser action being the rule in other city departments, no evidence of such was forthcoming and in any case, so long as the action taken in this case was within the limits authorized, was justified, and was not an abuse of agency action, evidence of other actions in other departments would be irrelevant. The guidelines described above are not mandatory actions but merely suggested actions, and the city officials have consistently tried to stick with them to avoid the unfair application of punishment. That they have been successful is established by the testimony of Mr. George, who, in his many years with the city, cannot recall anyone ever receiving less punishment for the offense.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that The one day suspension without pay imposed by the City of Clearwater on Respondent Ezekiel, be sustained. RECOMMENDED in Tallahassee, Florida, this 5th day of July, 1988. ARNOLD H. POLLOCK 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 5th day of July, 1988. COPIES FURNISHED: Miles A. Lance, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Ezekiel Taylor 1466 Lemon Street Clearwater, Florida 34616
The Issue The issues for determination are whether Respondent committed the acts alleged in a denial letter issued by Petitioner, and, if so, whether Petitioner should refuse to renew Respondent's family day care license pursuant to Subsection 402.310(1)(a), Florida Statutes (2003).
Findings Of Fact Petitioner is the agency responsible for licensing and regulating day care homes in the state. Respondent is licensed to operate a day care home known as Kidz Kingdom Academy at 738 Glenwood Avenue, Sebring, Florida 33876 (the facility). Petitioner inspected the facility nine times between November 25, 2003, and July 7, 2004. The specific dates of inspection were November 25, 2003; March 30 and 31; April 21 and 28; June 2, 11, and 15; and July 7, 2004. With a few exceptions, Respondent committed 53 violations of applicable statutes and rules during the nine inspections. Approximately 13 of the 53 violations are potentially repeat violations because they involve violations of the same statute or rule. However, they may not be repeat violations because most of the violations arise from distinctly different facts, i.e., a different factual offense that violates the same statute or rule. The remaining violations are frequent violations but are not repeat violations because they do not violate the same statute or rule on more than one occasion irrespective of the factual basis of the violation. Neither party cited any statute, rule, or case law that defines a repeat violation. On July 14, 2004, Petitioner issued a denial letter proposing to deny Respondent's application for renewal of her license. The denial letter is the notice of charges against Respondent. The literal terms of the denial letter are ambiguous. For example, the denial letter, in relevant part, notifies Respondent that the nine inspections revealed "repeat violations" of applicable statutes and rules. The notice of charges further notifies Respondent that based on "these violations" Petitioner proposes to deny Respondent's application for renewal of her license. The reference in the denial letter to "these violations" arguably could be construed to mean the "repeat violations," however the term "repeat violation" may be defined. Alternatively, the reference to "these violations" arguably could be construed to mean the 13 "repeat violations" and the 40 frequent violations. The denial letter adequately resolves the apparent ambiguity by attaching and referencing a "chart setting out specific violations" that Petitioner found during the nine inspections. The reference to "these violations" includes all 53 violations listed on the "chart." The distinction between "repeat violations" and "frequent violations" is not material to the grounds stated in the denial letter for the proposed refusal to renew Respondent's license. The denial letter does not include an allegation that Respondent has failed to pay an outstanding fine that Petitioner previously imposed against Respondent. During testimony, however, Petitioner's agency representative testified that she would recommend that the agency renew the license if Respondent were to pay the fine. The testimony of the agency representative is not relevant and material to an allegation that Respondent failed to pay an outstanding fine. The denial letter does not include any such allegation, and Petitioner cannot refuse to renew Respondent's license on grounds not included in the denial letter. Nor did the agency representative provide any written evidence of the imposition of an unsatisfied fine. The testimony of the agency representative is relevant and material to Petitioner's argument during the hearing that any one violation, or all of them together, threaten children or others with serious harm within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). The agency representative is the person charged with responsibility for evaluating the severity of the alleged offenses and explicating the evidentiary grounds for the proposed agency action. It is axiomatic that the agency representative would not recommend renewal of the license upon payment of the fine if any one or all of the 53 violations represented any harm to the public, including children. One or all of the 53 violations do not threaten harm to children or other members of the public within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). Although Petitioner showed by clear and convincing evidence that Respondent committed the 53 violations, Petitioner failed to show by clear and convincing evidence that one or all of the 53 violations threatened children or others with serious harm. One "repeat violation" involved missing hand towels in the bathroom or hand towels mounted too high for children to reach. Respondent regularly replenished hand towels and placed them where children could reach them. Respondent failed to adequately supervise children during nap times. Volunteers, rather than full-time staff, sometimes supervised children. However, full-time staff members were close by in the adjacent room. Respondent repeatedly failed to comply with applicable standards of maintenance and cleanliness. On one occasion, the microwave oven needed to be cleaned and sanitized. During one inspection, some ceiling tiles in the facility were "coming down and showed evidence of water damage," and there was some evidence of "rodent or vermin infestation." Respondent corrected both violations in a timely manner. On March 30 and June 11, 2004, lighting at the facility was inadequate. Respondent adequately corrected the violation during each inspection by turning on more lights and opening the blinds during nap time. Gaps in a wood fence enclosing the play area were too large. However, a chain link fence immediately inside the wooden fence prevented a child from exiting through the gaps in the wooden fence. During two inspections, the facility placed soiled diapers in an open container. The facility corrected both violations at the time of the inspection by covering the containers or taking them outside. On November 25, 2003, the facility left some electrical plugs in the music room uncovered. The inspection was a preliminary inspection, and the facility corrected the problem before any follow inspection. No follow-up inspections cite Respondent for a similar violation. On March 30, 2004, the facility used highchairs that had been recalled. The facility immediately corrected the problem by taking the recalled highchairs out of service and replacing them with new high chairs not subject to a recall. On March 30, 2004, a wooden climber for a slide in the playground was wobbly. A "slat was not secured to the railing." In addition, a latch on a toddler swing did not function properly. Respondent corrected both violations at the time of the inspection. On June 11, a swing and a rope ladder were broken. A fence was beginning to sag. Respondent corrected both violations before a follow-up inspection. On March 30 and 31, 2004, Respondent failed to maintain signed parental authorizations for the facility to administer prescription medications to children at the facility. Respondent corrected the deficiencies immediately by requiring the parents to remove the medications from the facility because the parents failed to comply with the facility's request for a signed authorization form. Petitioner alleged, but did not show by clear and convincing evidence, that Respondent failed to give medications to children as prescribed. Petitioner submitted no evidence that Respondent ever administered the specific medication at issue contrary to the prescribed dosage or without a signed authorization. On November 11, 2003, and June 11, 2004, Respondent failed to properly dispose of a bottle after use by leaving the bottle in an infant room after use. Respondent corrected the violation at the time of inspection by moving the bottle to the kitchen where Respondent properly stored the other bottles for subsequent cleaning. In addition, Respondent failed to properly refrigerate baby formula supplied to the facility for one of the infants in Respondent's care. Petitioner failed to show how long the formula had not been refrigerated. Respondent corrected these deficiencies at the time of inspection. On November 25, 2003, and June 2, 2004, Respondent failed to maintain immunization records for some of the children at the facility. Immunization records for other children had expired. The parents had not returned the completed immunization records to the facility by the deadline of December 5, 2003. Respondent failed to maintain health examination records for 14 students. Petitioner did not show that this was an ongoing or uncorrected violation. From November 25, 2003, through June 2, 2004, Respondent failed to maintain forms required to be signed by employees that the employees understood the requirements for reporting child abuse and neglect. On June 2, 2004, Respondent failed to maintain on file a signed affidavit of good moral character for an employee. The insufficiencies could have been corrected by obtaining the signature of the respective facility employees. From November 25, 2003, through June 11, 2004, Respondent failed to maintain required records showing that background screening for facility employees had been completed. On June 11, 2004, Respondent had a fingerprint card on file for an employee, but had not submitted the card to the Department of Law Enforcement within five working days of the first day of employment. Respondent failed to maintain documentation that volunteers at the facility were in fact volunteers. Petitioner submitted no evidence of which volunteers or employees were involved, the beginning date for employment or volunteer service, or whether the individuals continued to be volunteer or be employed at the time of the alleged deficiency. Petitioner alleges that Respondent failed to maintain required attendance records on June 2, 2004, for a field trip. The inspector did not reconcile attendance lists from the staff managing the field trip with those maintained by staff at the facility. The two lists, together, may or may not have accounted for all of the children either at the facility or on the field trip. Respondent corrected the alleged deficiency at the time of the inspection. However, Respondent failed to obtain required parent permission slips for some of the students and failed to inform some parents that their children would be on a field trip. Respondent failed to maintain required attendance records from April 21 through June 11, 2004. On June 11, 2004, Respondent failed to maintain proper attendance records. Approximately 16 children attended the facility on that date, but the parents of only 12 children actually signed the attendance sheet. On November 25, 2003, Respondent failed to maintain a written discipline policy and failed to maintain properly signed student discipline forms. On March 30, 2004, Respondent failed to maintain proper ratios of staff to children. On July 7, 2004, Respondent left toxic or hazardous cleaning materials exposed to children. On June 2, 2004, Respondent failed to maintain staff with adequate first aid and CPR training. On June 2, 2004, Respondent failed to post the menu and failed to adequately implement single service items. Petitioner conducted re-inspections on March 31, April 28, and June 11 and 15, 2004. Of the 53 alleged violations, Petitioner cited only 13 on re-inspection. However, only four of the 13 were uncorrected deficiencies. The remaining nine were deficiencies cited for the first time on re- inspection. The four deficiencies cited as uncorrected on re- inspection were the failure to maintain attendance and background screening record reports and the failure to maintain a clean facility in good repair. As previously stated, none of the violations were severe within the meaning of Subsection 402.310(1)(b), Florida Statutes (2003). The violations did not result in death or serious harm to a child. There was no evidence that the violations created a probability, rather than a possibility, of death or serious harm to a child. The agency representative would have approved the application for renewal but for an unpaid fine by Respondent. It is axiomatic that an agency representative would not ignore severe deficiencies in exchange for the payment of a fine. The licensee corrected all of the alleged violations except those pertaining to attendance records, a clean facility, and background screening record reports. Petitioner failed to show by clear and convincing evidence that the missing or incomplete background screening record reports pertained to specific employees who were currently on staff at the facility. The evidence was vague and lacked the specificity required in a license discipline proceeding. Petitioner intends the denial letter to be an administrative complaint. The Administrative Complaint does not allege that the licensee has any previous violations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Respondent guilty of committing those acts found to be violations in this Recommended Order and imposing an administrative fine of $2,900. DONE AND ENTERED this 23rd day of November, 2004, 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 23rd day of November, 2004. COPIES FURNISHED: Jack Emory Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030 Keith Peterson, Esquire 170 North Florida Avenue Bartow, Florida 33830 Paul F. Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether Respondent committed the violations alleged in Administrative Complaint, as amended? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since April 30, 1982, certified by the Commission as a law enforcement officer. He holds certificate number 08-82-002- 01. Respondent is now, and has been since early 1982, employed by the Florida Highway Patrol (hereinafter referred to as the "FHP"). He currently holds the rank of sergeant, a rank he has held since 1986, with the exception of a brief period of time in 1990 when he served as a lieutenant. As a sergeant, Respondent is responsible, on a regular basis, for the direct supervision of eight troopers. There are occasions, however, when as many as 40 troopers are under his supervision. During the time that he has been with the FHP, Respondent has received numerous commendations and his overall work performance has been rated as either satisfactory or above. Only twice during the period of his employment has he been disciplined- - in 1983, for the negligent operation of his FHP vehicle, for which he received a written reprimand, and, more recently, for the incidents which gave rise to the issuance of the instant Amended Administrative Complaint. These incidents all occurred during the time Respondent held the rank of lieutenant. Respondent was promoted to the rank of lieutenant and assigned to the investigative section of the FHP's Troop "E" in Miami on or about February 1, 1990. His duties included working out of uniform (in civilian clothes) investigating driver's license fraud. Among the other investigative lieutenants assigned to Troop "E" with whom Respondent worked were Lieutenants Jimmy Hobbie, Paul Sharpe and Kenneth Glass. Respondent shared an office with Lieutenant Hobbie. They each had their own desk. Lieutenants Sharpe and Glass occupied other nearby offices. Respondent enjoyed a congenial, professional relationship with his fellow investigative lieutenants. At no time did he ever have an exchange of angry or threatening words with them. On at least three separate occasions between February 19, 1990 and April 15, 1990, while in his office and in the presence of Lieutenants Hobbie and Sharpe, with whom, at the time, he was engaged in casual, light conversation injected with attempts at humor, Respondent removed his .38 caliber FHP-issued service revolver from his holster, placed it near the side of his head, pulled the hammer partially back, and, without firing any shots, returned the revolver to his holster. On none of these occasions did Respondent intend to harm or threaten anyone. He was simply trying to be funny. Neither Hobbie nor Sharpe, however, were amused by Respondent's careless and potentially dangerous display of his firearm. 1/ To the contrary, they were troubled by Respondent's actions, but they did not express their concerns to Respondent. On March 30, 1990, Respondent displayed a firearm in arresting an individual named Mark Barken for driver's license fraud. Prior to locating and arresting Barken, Respondent had been told by Barken's brother that Barken was a heroin addict and that Barken had recently threatened the brother with a shotgun and told the brother that he was going to kill him and his wife. Based upon the information he had been provided by the brother, Respondent considered Barken to be an unstable, dangerous and violent individual. Therefore, when he received a tip that Barken was at a drug treatment and rehabilitation facility in Perrine, he asked Lieutenant Hobbie to accompany him to the facility to assist in arresting Barken. Hobbie agreed to provide such backup support. Respondent and Lieutenant Hobbie drove to Perrine and waited together outside the facility for Barken to leave. After a while, Respondent left the surveillance area for brief moment. When he returned, Hobbie advised him that Barken, or at least someone who looked like Barken, had just left the facility. Respondent thereupon got into his FHP vehicle and drove off in the direction Hobbie had told him Barken was headed. Hobbie remained behind in the surveillance area. Shortly thereafter Respondent spotted Barken, who was with a companion. As Respondent approached the two, they ran across the street into a parking lot. Respondent followed them. As he pulled into the lot, he identified himself as a law enforcement officer 2/ and ordered Barken and his companion to stop, turn around and face him with their hands up. The pair stopped, but they did not comply with Respondent's other directives, even after these directives had been given several times. Believing that it would be prudent to do so, Respondent took a shotgun with him as he exited the vehicle and initially held it in a port-arms position in an effort to gain control of the situation. Ultimately, Respondent did gain control of the situation. When Lieutenant Hobbie arrived on the scene, Barken and his companion were laying face down on the pavement and Respondent was pointing a shotgun in their direction. 3/ Following Hobbie's arrival, Respondent placed the shotgun back in his vehicle and Barken and his companion were taken into custody. On or sometime between April 16, 1990, and April 20, 1990, while seated at his desk in the office he shared with Lieutenant Hobbie, Respondent jokingly pointed his revolver out the open doorway of the office and in the direction of a reception area. As he did so, he commented to Hobbie, who was in the office with him, "Wonder what he would do if he would, you know, look up and see me pointing this gun at him." From where he was situated, Hobbie was unable to see the person to whom Respondent was referring. After making this comment, Respondent put the gun back in his holster. At around lunchtime, on or sometime between April 16, 1990, and April 20, 1990, Respondent walked into Lieutenant Sharpe's office and the two began to engage in a friendly conversation. Their discussion centered upon their plans for lunch. During the conversation, Respondent was standing immediately in front of the desk at which Sharpe was seated. At some point in their discussion, Respondent decided that he needed to tuck his shirt in his pants. Before loosening his pants, he unholstered his service revolver and laid the revolver on Sharpe's desk. As Respondent placed the revolver on the desk, he carelessly pointed the barrel of the gun in Sharpe's direction and pulled the hammer partially back. Sharpe reacted by quickly changing his position to avoid being in the line of fire in the event the revolver discharged. Respondent saw Sharpe's reaction. He immediately removed the revolver from the desk and placed it back in his holster without bothering to tuck in his shirt. Although concerned about this incident, Lieutenant Sharpe did not discuss his concerns with Respondent; 4/ however, he did report the incident shortly after it had occurred to Randy Snow, who was his, as well as Respondent's, immediate supervisor. 5/ On April 25, 1990, Respondent and Lieutenants Hobbie, Sharpe and Glass were standing in close proximity to one another in the secretarial area of Troop "E" headquarters and engaged in informal and friendly conversation when Respondent, in response to a remark make by Hobbie and in an effort to be humorous, removed his service revolver from his holster, pointed it at Hobbie's head and pulled the hammer partially back. Hobbie turned his head to the side and ducked. Glass threw his hands up and exclaimed, "That's loaded," in response to which Respondent stated, "I know it is." Respondent then put the revolver back in his holster. At the time of this April 25, 1990, incident, an internal investigation of Respondent's conduct was already underway. During the course of the investigation, Respondent, who had not yet completed his probationary period as a lieutenant, was returned to the rank of sergeant and placed on "administrative duty." Following the conclusion of the investigation, Respondent was dismissed by the FHP on the ground that he was unfit for duty. The FHP subsequently determined that it did not have just cause to dismiss Respondent for fitness deficiencies. Accordingly, pursuant to a settlement agreement with Respondent, it rescinded Respondent's dismissal and instead suspended Respondent for ten days without pay for the improper display of a weapon. In accordance with the terms of the settlement agreement, Respondent successfully participated in the FHP's Employee Assistance Program. He also took a firearms retraining course, which he also successfully completed. Since Respondent's return to work, his overall work performance has been rated as exceeding performance standards and he has received a letter of commendation from his supervisor. There have not been any reoccurrences of the improper conduct for which he was suspended. Apparently, he has mended his ways. He is today considered to be an effective, hard working and honest law enforcement officer who is an asset to the FHP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, by virtue of his having engaged in the conduct described in Findings of Fact 10, 18, 19 and 21 of this Recommended Order, and (2) issuing him a written reprimand and placing him on probation for a period of two years, during which time he shall be required to undergo firearms training and meet any other terms and conditions deemed appropriate by the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of April, 1993. 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 27th day of April, 1993.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order holding the Respondent guilty as charged, impose a fine in the amount of $2000 and suspend the Respondent's license for one year. DONE AND ORDERED this 17th day of March, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 17th day of March, 1988.
The Issue Should Petitioner impose discipline on Respondent's correctional certificate for alleged violations set forth in the Administrative Complaint, Case No. 17450?
Findings Of Fact Based upon the election of rights and proof identifying Respondent's employment with the Florida Department of Corrections, it is inferred that Respondent is certified as a corrections officer by Petitioner. It is perceived that Respondent, in his contest of material facts, disagrees with the allegations in paragraph two to the Administrative Complaint, as those facts might reveal a violation of statutes and rules referred to in the Administrative Complaint in its latter provisions. Respondent rented an acoustic guitar and an item referred to as a "gig-bag" from Guitar Renters in its Gainesville, Florida store. The amount of rental was $30.74 for the period November 16, 1999, through December 11, 1999. The overdue rate for the rental was $2.97 per day. The retail value of the instrument and bag was identified in the rental agreement as $345.00. The rental contract was executed by Respondent agreeing to those terms. The contract made clear that the arrangement was for rental only and not for sale. There was a specific reminder that any rental over 10 days past due would be reported to the police department as a stolen item. Respondent did not timely return the guitar and bag consistent with the contract terms. As a consequence, the proprietors at Guitar Renters sent letters in the ordinary mail to remind Respondent that he was late in returning the items. No response was made to those letters. A certified letter was sent to Respondent reminding him of his obligation to return the equipment. Again Respondent failed to respond. Scott Tennyson, who managed the Gainesville store, telephoned Respondent about the overdue items. Respondent replied that he could not return the instrument. When asked why, Respondent indicated that he had pawned the instrument. Mr. Tennyson told Respondent that if the matter were not resolved in some fashion, namely for Respondent to go back and get the guitar from the pawnshop and bring it to the owner, then criminal charges would be filed. Consistent with that statement, a complaint was made and criminal charges were filed in the Circuit Court in and for Alachua County, Florida, Court No. 01-2000-01573-CFA, C.R. No. 007601, Division One. This case was pursuant to a sworn complaint from the Gainesville Police Department charging Respondent with grand theft. The case was subsequently nolle prosequi/no information, based upon what is referred to in that dismissal, as an appropriate administrative action deemed sufficient in lieu of prosecution. On June 25, 2001, the matter was resolved to the satisfaction of Guitar Renters when Respondent made payment in full on the items that he had rented. In effect, the items were sold by way of restitution at their stated value when the rental contract was made.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking Respondent's correctional certificate. DONE AND ENTERED this 20th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 20th day of August, 2003. COPIES FURNISHED: Kevin Dannunzio 1718 Spring Street Lake City, Florida 32025 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times material to this case, the Respondent, Joseph Lawton, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0052537. At all times material to this case, the Respondent was the qualifying agent for All Florida Systems located in Fort Lauderdale, Florida. The Notice of Hearing was mailed to Respondent at his last known address. Ronald Klein lives at 8245 Northwest Ninety-fifth Avenue, Tamarac, Florida. A portion of the roof on Mr. Klein's residence is flat and a portion is pitched. In the middle of August, 1987, Respondent met with Mr. Klein at the Klein residence to discuss Mr. Klein's roofing needs. Respondent told Mr. Klein during their meeting that the flat portion of his roof needed to be re-roofed and quoted a price for the work that Mr. Klein found acceptable. This was the only meeting between Mr. Klein and Respondent and was the only time Mr. Klein has seen Respondent. There was no written contract between Respondent and Mr. Klein because Respondent did not mail to Mr. Klein a written contract as he had agreed to do. On Sunday, August 30, 1987, Earl Batten, one of All Florida System's workers, re-roofed the flat portion of Mr. Klein's roof. Mr. Klein paid Mr. Batten $1,575.00 for the work pursuant to the verbal agreement between Respondent and Mr. Klein. Mr. Klein made his check payable to Earl Batten because Respondent had told Mr. Klein to pay his worker when the work was completed. Mr. Klein noted on the check that the check was in payment of work done by All Florida Systems. Respondent did not obtain the permits required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the permits required by local law. Respondent did not obtain the inspections required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the inspections required by local law. Mr. Klein's roof began leaking after Mr. Batten completed his work on August 30, 1987. In response to three weeks of repeated telephone calls from Mr. Klein, Respondent sent one of his supervisors to inspect Mr. Klein's roof. The supervisor told Mr. Klein that the work had to be redone because the work on the flat roof had not been properly tied into the remainder of the roofing system. Mr. Klein was further advised by the supervisor that Respondent would be in contact with Mr. Klein. After Respondent failed to respond further, Mr. Klein hired a second roofing contractor who corrected the deficient work in October of 1987 at a price of $1,377.00. Between the time Mr. Batten worked on his roof and the time the second contractor corrected the deficiencies, Mr. Klein sustained damages to his residence which required expenditures of over $1,500.00 to repair. Respondent was previously disciplined by the Construction Industry Licensing Board in Case No. 90265.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(d) and (m), Florida Statutes, and which imposes an administrative fine against Respondent in the amount of $5,000.00 and places Respondent on probation for a period of one year. DONE and ENTERED this 19th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON 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 19th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 22 are adopted in substance; insofar as material. The findings of fact contained in paragraphs 16, 17, 21 of Petitioner's proposed findings of fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Lawton 1000 South Ocean Boulevard Apartment 6C Pompano Beach, Florida 33062 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: On August 31, 1988, Respondent was authorized by the Board Of Medicine (Board) to provide respiratory care services in this state under license number TU C000050, a license she still holds. Respondent did not take a licensure examination. She was granted her license based upon her pre-October 1, 1987, respiratory therapy work experience pursuant to Section 468.357(3)(a), Florida Statutes, as amended by Chapter 87- 553, Laws of Florida. In December, 1990, Respondent sought to renew her license. As part of the renewal process, she submitted to the Board a signed Affirmation of Eligibility for License Renewal, which read as follows: I HEREBY AFFIRM THAT I HAVE MET ALL OF THE REQUIREMENTS FOR LICENSE RENEWAL SET FORTH BY THE DEPARTMENT OF REGULATION AND/OR THE PROFESSIONAL REGULATORY BOARD INDICATED ON THE REVERSE SIDE OF THIS NOTICE. I UNDERSTAND THAT WITHIN THE UPCOMING RENEWAL PERIOD, IF MY LICENSE NUMBER IS SELECTED FOR AUDIT BY THE DEPARTMENT OF PROFESSIONAL REGULATION AND/OR PROFESSIONAL REGULATORY BOARD, I MAY BE REQUIRED TO SUBMIT PROOF THAT I HAVE MET ALL APPLICABLE LICENSE RENEWAL REQUIREMENTS. I UNDERSTAND THAT PROOF MAY BE REQUIRED BY THE DEPARTMENT OF PROFESSIONAL REGULATION AND/OR PROFESSIONAL REGULATORY BOARD AT ANY TIME AND THAT IT IS MY RESPONSIBILITY TO MAINTAIN ALL DOCUMENTATION SUPPORTING MY AFFIRMATION OF ELIGIBILITY FOR LICENSE RENEWAL. I FURTHER UNDERSTAND THAT FAILURE TO COMPLY WITH SUCH REQUIREMENTS IS IN VIOLATION OF THE RULES AND STATUTES GOVERNING MY PROFESSION AND SUBJECTS ME TO POSSIBLE DISCIPLINARY ACTION AND FURTHER, THAT ANY FALSE STATEMENT IS IN VIOLATION OF SECTION 455.227, FLORIDA STATUTES, SUBJECTING ME TO DISCIPLINARY ACTION AS WELL AS THOSE PENALTIES PROVIDED BELOW. I AFFIRM THAT THESE STATEMENTS ARE TRUE AND CORRECT AND RECOGNIZE THAT PROVIDING FALSE INFORMATION MAY RESULT IN DISCIPLINARY ACTION ON MY LICENSE AND/OR CRIMINAL PROSECUTION AS PROVIDED IN SECTION 455.2275, FLORIDA STATUTES. At the time she made the foregoing affirmation, Respondent believed that she had met all of the requirements for the renewal of her license, including those relating to continuing education. She did not intend to deceive or mislead the Board regarding her eligibility for license renewal. Based upon her review of the copies of the statutory and rule provisions with which the Board of Medicine had previously provided her, Respondent was under the impression that she needed to have earned only 24 hours of continuing education credit biennially in order to be eligible for license renewal. She had earned 31 hours of such credit, 15 in 1989 and 16 in 1990, and therefore thought that she had met the continuing education requirement for eligibility for license renewal. She was unaware that Chapter 468, Part V, Florida Statutes (1987), had been amended by Chapter 87-553, Laws of Florida, to require licensed respiratory care practitioners in her situation to complete 20 contact hours of approved continuing education courses each year. Notwithstanding that she had completed less than 20 contact hours of approved continuing education courses in both 1989 and 1990, Respondent's license was renewed based, in part, upon the representations made in her Affirmation of Eligibility for License Renewal. The Board subsequently selected Respondent for audit and asked her to submit documentation establishing her compliance with the continuing education requirements referenced in her Affirmation of Eligibility for License Renewal. Due to illness and other extenuating circumstances, Respondent was initially unable to provide any documentation in response to this request, however, she ultimately provided certificates of completion for each of the continuing education courses she had taken in 1989 and 1990.
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 (1) finding that Respondent did not violate Section 468.365(1)(a), Florida Statutes, as alleged in the Amended Administrative Complaint; (2) dismissing said charge; (3) finding that Respondent violated Section 468.365(1)(j), Florida Statutes, as alleged in the Amended Administrative Complaint; and (4) disciplining Respondent for having violated Section 468.365(1)(j), Florida Statutes, by placing her on probation for a period of one year during which she must, in addition to meeting the 20 contact hour per year continuing education requirement prescribed by Section 468.357(3)(a), Florida Statutes, as amended by Chapter 87-553, Laws of Florida, complete 9 extra contact hours of approved continuing education course offerings and provide the Board with documentation, in the form of receipts, vouchers, certificates or other like papers, verifying her completion of these additional 9 contact hours. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of April, 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 20th day of April, 1992. 1/ See Chino Electric, Inc. v. United States Fidelity & Guaranty Co., 578 So.2d 320, 323 (Fla. 3d DCA 1991); Nagashima v. Buck, 541 So.2d 783, 784 (Fla. 4th DCA 1989). 2/ That Respondent was not aware of the 20 contact hour per year continuing education requirement prescribed by Section 468.357(3)(a), Florida Statutes, as amended by Chapter 87-553, Laws of Florida, does not excuse her failure to have complied with this requirement. See Moncrief v. State Commissioner of Insurance, 415 So.2d 785, 788 (Fla. 1st DCA 1982)(licensed bail bondsman could be found guilty of employing an unlicensed runner, notwithstanding his belief that "he was not required to have [the runner] licensed;" "the courts universally recognize that ignorance or mistake of law will not excuse an act in violation of the laws so long as the laws clearly and unambiguously proscribe the conduct alleged"). COPIES FURNISHED: Arthur B. Skafidas, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Pamela Sue Morgan 7324 S.W. 25th Court Fort Lauderdale, Florida 33317-7005 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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).
Recommendation Based upon the foregoing it is recommended that Petitioner issue a Final Order imposing a $100 fine for each of the class III violations which have been established, for a total fine of $1200, but that no additional fine be assessed for the unclassified violations. DONE and ENTERED this 27th day of November, 1985, at 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 27th day of November, 1985. COPIES FURNISHED: Harold L. Braynon, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Dorothy K. Emrick Oakland Park Retuirement Annex Ageing and Adult Service, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 John Marfilius Oakland Park Retirement Annex Ageing and Adult Services, Inc. 5605 N.W. 27th Court Lauderhill, FL 33313 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301
