The Issue This is a rule challenge proceeding in which the following specific issues are presented: Whether Florida Administrative Code Rule 61G4-12.006 is an invalid delegation of legislative authority, and Whether application of the provisions of Section 112.011(1)(b), Florida Statutes, by the Construction Industry Licensing Board in its quasi-judicial capacity constitutes an agency statement of general applicability that requires rulemaking by the agency.
Findings Of Fact Petitioner, Goode “Buddy” Yeoman, is 64 years of age, and is an individual who has applied to the CILB for an individual certified general contracting license. Petitioner Yeoman has a prior felony conviction and his civil rights have not been restored. Petitioner Yeoman's felony conviction was imposed approximately 20 years ago in 1985 and was unrelated to the contracting practice or trade. Petitioner Yeoman was required to, and did, submit a completed form DBPR CILB 4359. Petitioner’s application was denied by the Construction Industry Licensing Board (“CILB” or “Board”), and on June 14, 2004, the CILB entered its “Notice of Intent to Deny” Petitioner Yeoman’s application for initial certified general contractor. Petitioner Yeoman has separately filed a petition for administrative proceedings regarding the CILB's denial of his initial certified general contractor license. As such, by operation of law no final agency action has to date been taken on Petitioner Yeoman's application. The license denial proceeding has been continued. This will allow the parties in that case to have the benefit of the final order in this rule challenge case. The sole basis for the denial of Petitioner Yeoman’s application was that his civil rights had not been restored. The CILB’s “Notice of Intent to Deny” stated: “You have not provided proof to the Board that your civil rights have been fully restored subsequent to a previous felony conviction as required by Section 112.011(1)(b), Florida Statutes.” The requirement that a restoration of civil rights be obtained which is expressed in the challenged existing rule and the challenged agency statement defined as a rule negatively affect Petitioner Yeoman’s substantial interests by denying him a certified general contracting license. As such, Petitioner Yeoman has standing to bring his challenge to Florida Administrative Code Rule 61G4-12.006(2) and the agency statement defined as a rule (Form “DBPR CILB 4359"). Intervenor Smith's felony conviction was for a drug offense in 1989 and was unrelated to the contracting business or trade. Intervenor Smith filed an application with the CILB, including form “DBPR CILB 4359.” On May 4, 2004, the CILB refused to consider his application because his civil rights have not been restored. As such, Intervenor Smith has standing to bring his challenge to Florida Administrative Code Rule 61G4-12.006(2), and the agency statement defined as a rule (Form "DBPR CILB 4359"). Florida Administrative Code Rule 61G4-12.006 was adopted pursuant to Chapter 120, Florida Statutes, on January 6, 1980, and lists and incorporates by reference DBPR/CILB/025 (Rev. 01/01) entitled “Certifications: Certification Change of Status.” This agency form is applicable to applications for certified licenses and change of status applications, and requires individuals applying for initial contracting licenses to provide proof that their civil rights have been restored if they have been convicted of a felony. The form states in the “Financial Responsibility/Background Questions” section: “NOTE: IF YOU, THE APPLICANT/LICENSEE, HAVE HAD A FELONY CONVICTION, PROOF THAT YOUR CIVIL RIGHTS HAVE BEEN RESTORED WILL BE REQUIRED PRIOR TO LICENSURE.” Form “DBPR CILB 4359" has an effective date of March 24, 2004, but has not been adopted as a rule under Chapter 120, Florida Statutes. The form is available for download on the agency’s web-page as “Initial Issuance of Licensure for Certified Contractor Application Package.” Applicants for licensure as a contractor must submit form “DBPR CILB 4359" to the DBPR. Within the “DBPR CILB 4359" package is the form “DBPR CILB 4357 - Qualified Business (QB) License Application and Qualified Business Change of Status Application,” which requires an applicant previously convicted of a felony to provide proof that his/her civil rights have been restored. This form states: “IF YOU HAVE BEEN CONVICTED OF A FELONY, YOU MUST SUBMIT PROOF OF REINSTATEMENT OF CIVIL RIGHTS,” and also: “Note: If you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure.” Both the challenged Florida Administrative Code Rule 61G4-12.006(2) and the form “DBPR CILB 4359" are generally applicable to every individual applying for a contracting license from the CILB. The CILB has previously approved applications for initial licenses, and change of status licenses, to applicants who did not have their civil rights fully restored, subject to probation until the applicant's civil rights have been restored. Neither the type of crime for which a felony conviction has been imposed, the recency of the conviction, nor the completion of any punishment, have been a factor in the CILB’s denial of applications to individuals previously convicted of a felony crime but whose civil rights have not been fully restored. The sole reason for denial is the lack of civil rights. The lack of civil rights is the standard, expressed in Florida Administrative Code Rule 61G4-12.006(2) and in “DBPR CILB 4359," by which the CILB has denied contractor license applications, including Petitioner Yeoman’s application, and Intervenor Smith's application, under the CILB’s interpretation of Section 112.011(1)(b), Florida Statutes. The CILB has not revoked any previously granted licenses due solely to a subsequent felony conviction and lack of civil rights of any licensee. The CILB is a collegial body composed of 18 members, 16 of whom are professionals and two of whom are consumer members. Each member is limited to two 4-year terms, and no member may serve more than two consecutive 4-year terms. If a member is appointed to fill an unexpired vacancy, the new appointee may not serve for more than 11 years. The current members of the Board, and their terms, are as follows: Elizabeth Karcher; term 01/10/02-10/31/04 Barry Kalmanson; term 11/01/02-10/31/07 c. Lee-En Chung; term 09/01/99-10/31/06 Paul Del Vecchio; term 01-10-02-10-31-05 Michelle Kane; term 01-10-02-10/31/05 f. Joan Brown; term 03/14/00-10/31/07 Michael Blankenship; term 11/01/02-10/31/06 Carl Engelmeler; term 11/01/02-10/31/06 Jacqueline Watts; term 01/10/02-10/31/04 John Smith; term 11/01/02-10/31/06 (resigned effective 11/01/04) Raymond Holloway; term 01/10/02-10/31/05 Edward Weller; term 11/21/02-10/31/06 Thomas Thornton; term 08/16/04-10/31/07 Robert Stewart; term 08/16/04-10/31/07 o. Doris Bailey; term 08/16/04-10/31/05 A quorum (51 percent) of the appointed members of the Board is necessary for the Board to conduct official business. The CILB meets 11 times each year. On November 8, 1999, the CILB denied the application of Michael A. Helish for the certification examination on the grounds that his civil rights had not been restored. This decision was per curiam affirmed in Helish v. Department of Business and Professional Regulation, 766 So. 2d 1047 (Fla. 1st DCA 2000). The CILB has previously approved applications for initial licenses, and change of status licenses, to applicants whose civil rights had not been fully restored, at times subject to probation until the applicant’s civil rights have been restored, as follows: On June 14, 2004, the Respondent granted an initial contractor license to Robert F. Jones, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to William P. Campbell, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to Glenn Kasper, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to Danny Mitchell, subject to probation until his civil rights are fully restored. On March 3, 2004, the Respondent granted an initial contractor license to Timothy Burke, subject to probation until his civil rights are fully restored. On February 9, 2004, the Respondent granted an initial contractor license to Anthony Nicholas, Jr., subject to probation and the condition that his civil rights be fully restored within two years. On June 25, 2003, the Respondent granted an initial contractor license to Andrew Dittenber, stating: “The Board permitted licensure with conditions in this case where applicant did not have his civil rights restored, because of the number of years that have passed since the conviction and evidence that application for restoration has been made.” On June 25, 2003, the Respondent granted an initial contractor license to Robert W. Fleming, stating: “The Board permitted licensure with conditions in this case where applicant did not have his civil rights restored, because of the number of years that have passed since the conviction and evidence that application for restoration has been made.” On December 1, 2003, the Respondent granted an initial contractor license to James D. Munroe, Jr., subject to probation until his civil rights are fully restored. On October 21, 2002, the Respondent granted an initial contractor license to Daryl F. Strickland subject to probation and the condition that his civil rights be fully restored within three years. On September 4, 2001, the Respondent granted an initial contractor license to John Richard Brown, subject to probation and the condition that his civil rights be fully restored within three years. On June 24, 2004, the Respondent amended its initial order and again placed John Richard Brown’s license on probation until such time as his civil rights are restored.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, admissions made by Respondent, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, a licensed real estate broker in the State of Florida. He holds license number 0265883. In March of 1990, Ulrich Wingens, by and through his attorney, Charles Burns, entered into a written contract to purchase from Jupiter Bay Shoppes Ltd. (hereinafter referred to as "JBS") certain commercial property located in Palm Beach County. Respondent brokered the sale. The sale contract provided that JBS was responsible for payment of Respondent's broker's fee of $50,000.00 and that such compensation was to "[t]o be due and payable only if closing occur[red]." Respondent received a $20,000.00 earnest money deposit from Wingens in connection with the sale. The sale contract provided that the $20,000.00 was to be held in the Jim Towns Realty escrow account. The sale did not close. Litigation between Wingens and JBS ensued. During the pendency of the litigation, the parties instructed Respondent to continue to hold Wingens' $20,000.00 earnest money deposit in escrow until they advised him to do otherwise. Wingens and JBS settled their dispute before the case was scheduled to go to trial. On November 14, 1991, the judge assigned to the case, Palm Beach County Circuit Court Judge Edward H. Fine, entered an order directing Respondent "to immediately transfer to Fleming, Haile & Shaw, P.A. Trust Account the escrow deposit in the amount of $20,000.00 and any accrued interest thereon." Respondent did not comply with the order. He had appropriated the $20,000.00 for his own personal use and benefit and was not holding it in escrow. This was contrary to the instructions he had received from Wingens and JBS. At no time had Wingens or JBS authorized Respondent to take such action. Wingens' attorney, Burns, brought the matter to the attention of the Department. The Department assigned one of its investigators, Terry Giles, to the case. As part of her investigation, Giles interviewed Respondent. During the interview, Respondent admitted to Giles that he had closed his real estate office in October of 1991 and had not at any time prior to the interview notified the Department of the closure. At the time he closed his office, Respondent's real estate broker's license was still in active status.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Commission enter a final order finding Respondent guilty of the violations alleged in Counts I, II, III and IV of the Administrative Complaint and revoking his real estate broker's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1993. STUART M. LERNER 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 16th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE IN CASE NO. 93-1315 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its post-hearing submittal: Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted as true and incorporated in substance; Second sentence: Accepted as true, but not incorporated because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 3-13. Accepted as true and incorporated in substance. 14-15. Accepted as true, but not incorporated because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. Accepted as true, but not incorporated because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney Department of Business and Professional Regulation, Division of Real Estate Legal Section, Suite N 308 Hurston Building, North Tower 400 West Robinson Street Orlando, Florida 32801-1772 Mr. James C. Towns 7101 Smoke Ranch Road #1007 Las Vegas, Nevada 89128 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are: (1) whether Petitioner is qualified for a pari-mutuel wagering occupational license as a greyhound owner; and, (2) whether Petitioner is entitled to waiver of the provisions in accordance to Chapter 550, Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence adduced at hearing, the following Findings of Fact are made: Petitioner, Stephen M. Morris, submitted an application for a pari-mutuel wagering occupational license as a greyhound owner on or about February 24, 2005. On his application for a pari-mutuel wagering occupational license, Petitioner accurately reported that he had been convicted of the following three felonies: (1) possession and sale of a controlled substance, (2) trafficking in controlled substance (cannabis) in excess of 100 pounds, and (3) dealing in stolen property. The foregoing felony convictions were in or about 1976, 1984, and 1993, respectively, and were the result of offenses that occurred in Florida. Due to Petitioner's felony convictions, as noted in paragraph 2 above, his application for a pari-mutuel wagering occupational license was subject to denial. Consequently, on February 24, 2005, in addition to his application for a pari-mutuel wagering occupational license, Petitioner also requested that a waiver be granted so that he could obtain the license. Petitioner's application and his request for waiver did not include any information which would establish his rehabilitation or demonstrate that he has good moral character. As part of the Division's review of Petitioner's request for waiver, on or about April 5, 2005, Mr. Toner interviewed Petitioner. During the interview with Mr. Toner, Petitioner had the opportunity to present information that established his rehabilitation and demonstrated his present good moral character, but he did not produce such information. In light of the information regarding Petitioner's felony convictions, which are undisputed and included in Petitioner's application, Petitioner does not meet the eligibility requirements for the license which he seeks. By Petitioner's own admission, he was convicted of the felony offenses noted in paragraph 2 above. The number of felony convictions and the times that the offenses were committed, show a pattern of serious criminal behavior and recidivism. Petitioner may be rehabilitated and may have present good moral character. However, Petitioner did not testify at the final hearing and presented no evidence that he has been rehabilitated and has present good moral character. Absent from the record is any testimony from Petitioner or from Petitioner's friends, relatives, business associates, employers, or church members regarding Petitioner's good conduct and reputation subsequent to the date of his last felony conviction. In absence of any evidence that Petitioner has been rehabilitated and has present good moral character, the Division has no basis to grant Petitioner a waiver.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order denying Petitioner, Stephen M. Morris', application for a pari-mutuel wagering occupational license and his request for waiver. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 30th day of December, 2005. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen M. Morris 162 Warren Avenue New Smyrna Beach, Florida 32168 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue An administrative complaint dated June 11, 1998, alleges that when Respondent, upon termination of his employment, failed to return his identification card and uniform items to his employing agency, he committed violations of Section 493.6111(5)(c), Florida Statutes, and Section 493.6118 (1)(f), Florida Statutes. The issues for disposition in this proceeding are whether Respondent committed those violations and if so, what discipline is appropriate.
Findings Of Fact Respondent, Paul Alan Sangster, holds a class "D" Security Officer License No. D92-16595, effective November 3, 1996. While so licensed, on or about January 8, 1997, Respondent was hired as a security officer by Southland Security and Investigations, Inc. (Southland). Jill Murphy, the human resources director for Southland, hired Respondent and issued him items required for his employment. On January 8, 1997, she issued him a uniform shirt and trousers, a shirt badge and collar brass; on January 17, 1997, she issued him another shirt and an identification card; and on January 24, 1997, she issued him another shirt badge. Each time he was issued uniform items, Respondent signed and dated a uniform inventory sheet with this statement: By affixing my signature below, I am accepting receipt of uniforms and/or equipment for my official use. I understand that I am fully responsible for uniform clothing and/or equipment and will pay the full replacement cost on each item that is not returned when requested. I also understand that this uniform and/or equipment is the sole property of Southland Security and Investigations, Inc. I further agree that within five (5) days of termination of my employment, I shall return the uniforms cleaned and pressed, as I received it, or shall pay the cost of such cleaning and pressing. In the event I fail to return any part of my uniform or any equipment, I agree to pay the company the full replacement cost as indicated above plus all attorney's and collectors fee incurred in the recovering said cost. (Petitioner's Exhibit A) Mrs. Murphy terminated Respondent's employment on or about March 8, 1998. He had told her that he got another job. When Ms. Murphy later tried to reach Respondent, she was told that his phone was disconnected and she was never able to reach him. Respondent never returned the uniform items and identification card to Southland.
Recommendation Based on the foregoing, it is RECOMMENDED: that the agency issue its final order finding that Respondent violated Sections 493.6111(5)(c) and 493.6118(1)(f), Florida Statutes, when he failed to return his uniform and identification card to his former employer, and assessing an administrative fine of $500. DONE AND ORDERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida. MARY 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 25th day of March, 1999. COPIES FURNISHED: Douglas D. Sunshine, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Paul Alan Sangster 352 Buttonwood Drive Kissimmee, Florida 34743 Debbie Kearney, General Counsel Department of State The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0250 Michele Guy, Assistant General Counsel Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250
Findings Of Fact At all times material hereto Respondent was a licensed dentist in Florida holding license number DN 0001025. Respondent graduated from Emory University Dental School in 1945, thereafter served two years apprenticeship with a practicing orthodontist before opening his own office in Coral Gables, Florida, where he practiced orthodontics for some 25 years before selling his practice and moving to the Tampa Bay area. Respondent is eligible for board certification. In November 1981 Respondent was working as an orthodontist at the Sheppard Dental Clinic in Seminole, Florida. On November 23, 1981, Valarie Rosenfeld went to Respondent to discuss orthodontic treatment to correct a deep overbite and severe overjet. At the time of this visit Miss Rosenfeld was 17 years old and had a severe Class II skeletal discrepancy with a 9.5 degree discrepancy between upper and lower jaws and an overjet of 12 mm. Respondent took some seven photographs of Miss Rosenfeld (Exhibit 2) showing generally the condition of her teeth and her facial profile. Be also took a cephalometric x-ray (Exhibit 3) and a panoramic x-ray (Exhibit 4) of Miss Rosenfeld. Respondent advised Miss Rosenfeld that it would be necessary to extract one tooth in her upper jaw and maybe a second tooth in order to improve her appearance. The purpose of this extraction was to make room in which to move the upper teeth to reduce the overjet. Respondent did not discuss surgery with Rosenfeld or fully explain to her the options available and the probable consequences of each of the options she may elect. Miss Rosenfeld has a thin maxillary bone which does not show up very well on the cephalometric x-ray taken due to a burnout in this x-ray at the location this fact could be determined. Absent adequate bone in which to move teeth it becomes very difficult to obtain much movement. In accordance with orders issued by Respondent Miss Rosenfeld's tooth number 12 was extracted by another dentist at a subsequent visit to the clinic. Respondent next saw Rosenfeld on December 16, 1981, when he put separators between her teeth to make room for bonds. Respondent intended first to install light wire braces to better level the teeth before this was replaced by heavier wire which would be tightened from time to time to move the upper teeth back and the lower teeth forward. Although he testified he planned to reduce the malocclusion using intrusion mechanics Respondent did not discuss with Miss Rosenfeld the headgear which she would have to wear at night during this process or fully explain the procedure to her. Following her December 16 visit, Rosenfeld was seen by a Dr. Bryant, an orthodontist who was replacing Respondent at the Sheppard Dental Clinic. Bryant saw Rosenfeld on December 22, 1981, when he fitted and cemented bonds on the teeth and put in the flexwire to level the teeth. She was next seen at the clinic on January 23 when Bryant religated the flexwire. The next visit on February 15, 1981, Bryant again religated the braces. Rosenfeld was last seen by Respondent on March 20, 1982, when he religated upper arch and observed lower arch. Rosenfeld was seen on April 24, 1982, by Bryant who advised her that three additional extractions would be required to correct the malocclusion. Rosenfeld then decided to obtain a second opinion before losing anymore teeth and went to see another orthodontist, John Harrison. When Dr. Harrison examined Rosenfeld he explained the three options available to her to wit: (1) do nothing, (2) attempt some movement of the teeth to reduce the overjet and overbite and (3) surgery. Dr. Harrison took additional x-rays and attempted to obtain the dental records from Sheppard's Dental Clinic but without much success. By this time Respondent no longer worked at Sheppard's and Harrison became quite frustrated by the lack of cooperation he got in attempting to obtain Rosenfeld's records. He received only the panoramic x-ray. Harrison made models of Rosenfeld's mouth, took cephalometric x-rays, made intra and extra-oral photographs and did quite a number of tracings from the cephalometric x-rays to better ascertain the misalignment of the upper and lower jaws. He discussed the various options with Rosenfeld and, at her request, commenced the mechanical intrusion needed to move the upper teeth back and the lower teeth forward. Harrison would not have extracted tooth number 12 because there is insufficient maxillary bone to allow much movement of the upper teeth or to fill the void created by the extraction. Harrison further opined that the orthodontic problem faced by Rosenfeld is wholly in the lower jaw and this can be fully corrected only by risky and expensive surgery. Attempting to correct the problem by retracting the upper teeth is, in his opinion, the wrong approach. He considers the entire problem is in the lower arch and retracting the upper teeth, which are satisfactory, to obtain a better alignment between the upper and lower teeth, simply creates another problem, viz. changing the existing good profile of the upper lip. Furthermore the thin maxillary bone in which the upper teeth are being moved is not adequate to accomplish much movement of the teeth and when the bonds are removed the upper teeth will likely return to their original position or close thereto. The cephalometric x-ray taken by Respondent on November 23, 1981, was overexposed in the part of the x-ray which would best show Rosenfeld's maxillary bone and thereby alert Respondent to the problem of moving the upper teeth. Dr. Harrison formed his opinion that Respondent's diagnosis and treatment of Rosenfeld was below minimum acceptable standards on his initial assumption (from the records he obtained from Sheppard's Dental Clinic) that the diagnosis and course of treatment were made with panoramic x-rays only. When he learned the day before the hearing that Respondent also had the benefit of the cephalometric x-ray, Harrison hedged his opinion and ultimately concluded that Respondent's diagnosis and course of treatment did reach minimal acceptable standards. Petitioner also called Dr. DeDominico, an orthodontist, who, at the request of Petitioner, examined Rosenfeld and her dental records. DeDominico concurred with Harrison that extraction of tooth number 12 was not indicated and it is unlikely the space vacated by the removal of that tooth can be closed by the movement of the other teeth on the upper jaw. DeDominico further opined that and adequate diagnosis could not be made from the x-rays taken by Respondent due to the "burnout" in this critical area of the cephalometric x-ray which concealed the thinness of Rosenfeld's maxillary bone. Failure to retake this x-ray before embarking on a plan of treatment that required an adequate maxillary bone for success, and that included an unnecessary extraction was, in his opinion, below the minimal acceptable standards for the dental profession. Respondent testified that his more than 20 years experience in orthodontics qualified him to properly diagnose Rosenfeld's problem without doing tracings from the cephalometric x-ray, and that he considered the cephalometric x-ray adequate for the diagnosis that was made. Further, extraction of tooth number 12 was necessary to provide space into which the upper could be moved to accomplish the retraction of the upper teeth desired. He did not explain the available options to Rosenfeld and never considered surgery as a viable option for the orthodontic problem presented by Rosenfeld. He also failed to apprise her of the full implications of the treatment he planned, such as headgear, for the mechanical intrusion or of the limited success to be expected from this procedure. Respondent's expert witnesses, whose depositions were received into evidence as Exhibits 9 and 10, both opined that the diagnosis and treatment of Rosenfeld by Respondent met minimum acceptable standards of the dental profession. One of these witness' credibility is somewhat tarnished by his testimony that the mandible can be induced to grow in an adult. Not only was this testimony deemed incredible by other expert witnesses but also even a layman generally understands that the skeletal structure does not continue to grow after maturity.
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.
The Issue Whether Petitioner's license to practice clinical social work was lawfully annulled.
Findings Of Fact Petitioner, Patricia Katz, was licensed as a clinical social worker in Florida, license number SW 0002228, on March 31, 1989. Thereafter, Petitioner intended to remain fully licensed. The Respondent is the state agency charged with the responsibility of regulating and licensing clinical social workers within the State of Florida. Based upon the testimony of Petitioner and documentary evidence received in this cause, it is undisputed that Petitioner remained actively licensed until January 31, 1995. Prior to the expiration of her license in January 1995, the Respondent was required to send Petitioner a license renewal notice. Renewal notices are typically computer generated and the Respondent does not maintain copies of the notices to verify that they are sent to, or received by, its licensees. In this case, there is no direct evidence to establish Petitioner received the renewal notice; however, the computer records maintained by the Respondent reflect that the renewal notice was sent to Petitioner's Miami address on or about September 20, 1994. The address the Respondent maintained for Petitioner for the 1995 renewal time frame was accurate: 9720 Southwest 159th Street, Miami, Florida. In June 1995, Petitioner acquired a new residence in Broward County, Florida. She has remained at the Broward residence, 762 Heritage Drive, Weston, Fort Lauderdale, Florida, continuously since that time. In August 1995, Petitioner sold her old residence in Miami. Between this sale and the acquisition of the Broward residence, Petitioner maintains she notified the Respondent, in writing, of the address change. For some unexplained reason, the Respondent did not change its records regarding Petitioner's address. It continued to carry Petitioner's address as the Miami residence. For some unexplained reason, Petitioner did not contact the Respondent, in writing, to question why she did not receive a renewal notice for the 1995-97 period. Petitioner knew or should have known that her license renewals were due every two years. In addition to renewal forms, license fees are due and payable to the Respondent at renewal time. Had Petitioner renewed her license for the 1995-97 period, it would have expired at the end of January 1997. In October 1996, Respondent, again by way of the computer-generated form, sent Petitioner a notice of license nullification. According to the computer records, this notice was also sent to the Petitioner's old Miami address. Respondent does not have a copy of the notice or verification that Petitioner received it. In February 1997, the Respondent declared Petitioner's license null and void. Petitioner chose not to renew her license in January 1995, but believed it had automatically gone into an "inactive" status which would continue indefinitely. During this time Petitioner encountered several personal challenges which rightfully preempted her interest in her license status. Among these crises were two close relatives with cancer who required her assistance. Nevertheless, because she desired to maintain her license for the 1995-1997 time frame, Petitioner took the required continuing education courses. Such course work, completed during calendar year 1996, is fully documented in Petitioner's Exhibit 3. Petitioner did not pay any fees associated with her license status for the period 1995-1997. Sometime in 1997, Petitioner became concerned regarding her license status and contacted the Respondent by telephone. She spoke with Lucy Gee, the former executive director for Respondent, and sought clarification as to her license. When Ms. Gee advised Petitioner that her license had been annulled as a matter of law, Petitioner immediately sought to challenge such decision. In August 1997, the Respondent advised Petitioner that she would have to re-apply for licensure as a new licensee. Other options were not suggested. Petitioner did not receive notice that her license would be annulled prior to the agency action in February 1997. Petitioner was not afforded a point of entry to challenge the agency decision until March 1998. Thereafter, the Petitioner's challenge was forwarded to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's request for reinstatement to an inactive license status with leave to reactivate her license upon the payment of fees and demonstrated compliance with continuing education be denied. DONE AND ENTERED this 13th day of January, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1999. COPIES FURNISHED: Susan Foster, Executive Director Department of Health Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pete Peterson, General Counsel Department of Health BIN A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health BIN A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 E. Renee Alsobrook, Esquire Alsobrook & Dove, P.A. Post Office Box 10426 Tallahassee, Florida 32302-2426 Edward Tellechea, Esquire Department of Legal Affairs Attorney General's Office The Capitol, Plaza 01 Tallahassee, Florida 32399-1050
The Issue The issue in this case is whether discipline should be imposed against Respondent for operating on an expired public lodging establishment license, an offense which is deemed by rule to constitute operation without a license.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Lakeside is an apartment building with 19 units located at 1048 Northeast 18 Avenue, Fort Lauderdale, Florida 33304- 2408. The Division issued Lakeside a license, numbered 16- 10553-H, to operate as a public lodging establishment. According to information in the Division's official database, as reproduced in Petitioner's Exhibit 1, 1/ the "current license expiration date [for Lakeside's license] is December 1, 2000." On July 20, 2000, Division employee Robert Shaw conducted a routine inspection of Lakeside and found the apartment complex to be open and operating. On a Lodging Inspection Report that he prepared on that date, 2/ Mr. Shaw noted two minor violations, neither of which is at issue here. On the same form, Mr. Shaw inscribed the date that Lakeside's license would expire, as shown below, in the blank spaces provided for that purpose in a line that read: REMINDER: Your license expires 12 /01 /00 Petitioner's Exhibit 2. Mr. Shaw testified, however, that at the time of this inspection, he did not know whether or not Lakeside was licensed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order dismissing the Administrative Complaint against Lakeside Apartments. DONE AND ENTERED this 24th day of January, 2001, 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.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2001.
The Issue Whether Rule 7A-2.017(6), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority? Whether Section 301 or Section 302 or both sections of DABT's policy manual for field offices amount to rules never validly promulgated? Whether DABT forms DBR 700L and DBR 710L, or either of them, is an invalid rule for DABT's failure to file forms with the Secretary of State? Whether petitioners or either of them has standing to raise any of the foregoing questions?
Findings Of Fact On January 17, 1984, DABT received John Harry Michaels' preliminary application for a new quota alcoholic beverage license in Martin County. Joint Exhibit No. 1. By letter dated September 18, 1984, DABT advised Mr. Michaels that he was "one of the preliminary applicants selected in the drawing for an available liquor license in Martin County"; that he "must file a full and complete application within 45 days of the date of this letter pursuant to Rule 7A-2.17, Florida Administrative Rule"; and that "[f]ailure to file your complete application within such 45 day period will be deemed as a waiver of your right to file for the new quota license." Joint Exhibit No. 2. On the 45th day, November 2, 1984, DABT received a letter from Sandra Elizabeth Allen, an attorney representing "John Michaels of Martin County Liquors, Inc." which reported that Mr. Michaels was out of the country and "request[ed] a forty-five day extension for Mr. Michaels to obtain a zoned location." Joint Exhibit No. 3. Along with the letter, DABT received forms DBR 700L and DBR 710L, as revised in July 1984, which named Martin County Liquors, Inc. as the applicant, and designated a $10,000 commercial loan from Florida Home Equity as the source of all the corporation's capital, but failed to specify a location for the store. On November 7, 1984, DABT personnel reviewed the submissions received five days earlier, and noted on a transmittal form, DBR 709L, "applicant failed to submit financial documentation; applicant filed incomplete application - no location listed." Joint Exhibit No. 4. Form DBR 700L requires that "documentation to support the financial arrangements must be submitted with this application," and asks several questions concerning the premises in which an applicant proposes to locate. Under the heading "RIGHT OF OCCUPANCY," the form asks for details concerning leases and inquires whether the applicant has "a legal right of occupancy to the premises." By letter dated February 5, 1985, DABT advised petitioners' counsel, Ms. Allen, that "John H. Michaels, has been granted a 45 day extension to submit his application ... up to and including March 22, 1985." Joint Exhibit No. 6. On March 22, 1985, DABT received a second letter from Ms. Allen requesting a second 45 day extension. Joint Exhibit No. 7. By letter dated April 3, 1985, DABT's L.B. Schoenfeld indicated that DABT would not be "granting any further extensions ... [and] that in the very near future a letter of denial for Mr. Michaels application will be forthcoming." Joint Exhibit No. 10. DABT received, nevertheless, on April 23, 1985, an amended application, again naming Martin County Liquors, Inc. as the applicant, which gave "11230 Fed. Hwy (Hobe Sound)" as the address proposed for the store, and included both a sketch of the premises and a county zoning administrator's signature attesting that the location complied with zoning requirements for the sale of alcoholic beverages. Joint Exhibit No. 11. On April 25, 1985, DABT received a COP of a lease executed by a Mr. Jack Biederwolf on behalf of the lessors and by Ocie Allen as attorney-in-fact for John Harry Michaels for "space located at ... Hobe Sound ... [to] commence upon issuance to lessee ... of .... an alcoholic beverage license ... and upon vacation of the present tenant ... [provided, however] that, beginning from the date of issuance of liquor license to the Lessee, this Lease Agreement may be cancelled and rendered null and void upon a twenty-four (24) hour written notice by either party." Joint Exhibit No. 12. The April submissions notwithstanding, DABT sent a formal letter of denial, as promised. Addressed to Martin County Liquors, Inc., and dated May 31, 1985, the letter cited Section 561.18, Florida Statutes, as authority for disapproving the application, and stated: Application incomplete in that applicant has failed to file a right of occupancy for a specific location within the extended time period as granted by the Agency. Also, applicant has failed to provide complete verification of his financial interest. In response, John Harry Michaels (by Ocie Clyde Allen) requested an administrative hearing, a request which DABT eventually transmitted to the Division of Administrative Hearings. Proceedings in the substantial interest case at the Division of Administrative Hearings, Martin County Liquors vs. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, No. 88-1185, eventuated in a recommended order (Donnelly, H.O.) which DABT adopted "in toto" [by final order entered October 4, 1988. The recommended order concluded that When the Petitioner did not provide a business location to the Respondent, the right to file for a quota license was waived under Rule 7A-2.17(6) ..... Respondent has acted according to law in its denial of the license for failure to file a right of occupancy for a specific location within the expended time period. Recommended Order entered September 22, 1988, at pages 7 and 9. Both the recommended order and DABT's denial letter cited the corporate petitioner's failure "to file a right of occupancy for a specific location within the extended time period." The denial letter, but not the recommended order, cited a failure "to provide complete verification of his financial interest," as an additional basis for denial. Neither DABT nor Hearing Officer Donnelly made explicit reference to the forms, DBR 700L or DBR 710L, or to Sections 301 or 302 of the policy manual. The Challenged Provisions Rule 7A-2.017(6), Florida Administrative Code, formerly numbered 7A- 2.17(6), provides: All applicants in the drawing whose number corresponds with the available number of quota liquor licenses shall file a full and complete application for an alcoholic beverage license, following their selection in the drawing. Such applications are available from the District Field Office having jurisdiction over such county and must be filed within 45 days of the date of their selection. Failure to file an application within such 45-day period shall be deemed a waiver of the applicant's right to file for a quota liquor license. The Division shall then notify the next person in order of priority from the random drawing by certified mail of their entitlement to apply for a quota license in accordance with the procedures for notifying the originally selected parties. The Division shall follow such procedure until all available licenses have been applied for and awarded. Petitioner's Exhibit No. 2. The only provisions of Section 301 of DABT's "standardized policy and procedure" which petitioners assail are the following: Background Information 1. The Division of Alcoholic Beverages and Tobacco will inform applicants for licenses of requirements for licensure in writing pursuant to this policy and procedure. General Information 3. Once the field office has determined what requirements are necessary and has completed the DBR761L by checking the appropriate blocks, the original DRB761L is given to the applicant along with the appropriate application forms and a copy of the Instructions for Completing Application for Alcoholic Beverage License. Petitioners challenge Section 302 which was revised February 2, 1987, as it existed until that date and after August 15, 1984, as follows: SUBJECT: DEFINITION OF COMPLETED APPLICATION SECTION: 302 PAGES: 3 CLASS: New Policy and Procedure PURPOSE: This section establishes a standardized policy and procedure to be followed by all field offices in connection with the definition of a completed application. Any deviation from this policy and procedure must be with the approval of the Bureau of Licensing and Records. EFFECTIVE DATE: August 15, 1984 Background Information: The Division of Alcoholic Beverages and Tobacco will only accept for filing applications which are complete. The Division of Alcoholic Beverages and Tobacco does not accept applications for filing on "piece at a time basis." General Information: A completed application is defined as follows: The DBR 700L must be complete and requirements furnished in accordance with the list of license application requirements (DBR 761L) given to the applicant. Also, any agreements or financial documentation which are required as attachments as a result of the completion of Section III of the DBR 700L application for alcoholic beverage license must also be furnished. Completed (DBR 710L) personal questionnaire(s) for all applicants and persons connected directly with the business. A set of fingerprints on regular United States Department of Justice forms for each applicant person(s) connected directly with the business or anyone designated by the Division of Alcoholic Beverages and Tobacco. * * * The following information may be required during the application background investigation: Additional documentation of financial interest. Criminal history information. Right of occupancy documentation. Additional documentation of qualifications. Application Requirements Any application which is submitted in accordance with this policy and procedure must be accepted for filing by the field office. This includes situations where the applicant in good faith attempts to file the application and a review shows a need for additional financial documentation. If no financial documentation is included and is necessary based on the application, it should not be accepted and the applicant instructed accordingly. Acceptance of the application will make the applicant eligible for a temporary license if authorized by law based on the type of application filed. Form DBR 761L was not offered in evidence. Forms DBR 700L and DB 710L (1984 revisions) are in evidence. Neither they nor their predecessor versions were ever filed with the Secretary of State.
Findings Of Fact Some time before May 15, 1992, the Petitioner, Executive I & II, Inc., applied for licensure to operate as an adult congregate living facility (ACLF). (It had been, and is still, operating as a licensed boarding home.) The exact date of the application, or how long before May 15, 1992, the application was made, is not clear from the evidence. The facility operated by the Petitioner is the same facility that was the subject of Division of Administrative Hearings (DOAH) Case Nos. 90-3356 and 90-3791. Before and during the pendency of those proceedings, the facility was owned and operated by Kriscour, Inc., d/b/a Executive I & II. Kriscour, Inc., is a separate legal entity from the Petitioner. The sole owner and operator of the Petitioner was the sole owner and operator of Kriscour, Inc., until October 10, 1989, when he became a 49% owner of Kriscour and ceased all involvement in the operation of the facility. Throughout, however, he owned the real property operated by Kriscour and by the Petitioner. In DOAH Case No. 90-3356, HRS sought to revoke Kriscour's conditional ACLF license. While it was pending, Kriscour applied for renewal of the license, and HRS denied renewal. Kriscour initiated formal administrative proceedings, which became DOAH Case No. 90-3791. The two cases were consolidated at DOAH. Ultimately, they resulted in an HRS Final Order denying the renewal application and "cancelling" the conditional license. Kriscour appealed the Final Order to the District Court of Appeal, Second District of Florida, where it was given Case No. 91-00751. Kriscour obtained a stay of the Final Order and continued to operate the facility as an ACLF during the appellate proceedings. Meanwhile, on or about November 26, 1991, the Petitioner, Executive I & II, Inc., was formed and became licensed to operate the facility as a boarding home. The Petitioner made extensive renovations and improvements to the physical plant. At the same time, Kriscour continued to operate the facility as an ACLF. Ultimately, the appellate court upheld the Final Order. The court's Mandate, which operated to dissolve the stay, was entered on January 2, 1992. On or about that date, Kriscour ceased to operate the facility as an ACLF and began operating the facility as a boarding home. To date, the Petitioner has operated the facility exclusively as a boarding home.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying the application of the Petitioner, Executive I & II, Inc., for licensure to operate as an ACLF. RECOMMENDED this 21st day of October, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 21st day of October, 1992.
