The Issue The issue is whether Petitioner's application for an initial license to operate an Assisted Living Facility should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this licensure dispute, Petitioner, Fosset Home for the Elderly, seeks an initial license to operate an Assisted Living Facility (ALF) in Jacksonville, Florida. In a preliminary decision issued on June 8, 1999, Respondent, Agency for Health Care Administration (AHCA), denied the application on the grounds that on April 8, 1998, Petitioner's owner had "pled guilty to operating an unlicensed [ALF] and [was] placed on 24 months' probation," and that her probation conditions prohibited her "from operating or maintaining an [ALF]." Petitioner denied the allegations and contended that its owner had met all terms of probation; that its owner had not been adjudicated guilty of the charges; that the denial was based on "erroneous facts"; and that AHCA had abused its discretion. Petitioner's owner is Shirley I. Fosset, a certified nursing assistant. Although the record is not altogether clear, it appears that several years ago, perhaps in 1994 or 1995, she assumed ownership of a licensed ALF known as Barlow Community Home in Jacksonville, Florida. It is undisputed that while operating that facility, Fosset was not cited for failing to adhere to AHCA regulations. Because the prior owner would not keep the facility's building in good repair, however, Fosset decided to move to a new location when it came time to renew the license, and to seek a new license under her own name. While seeking a new license, she continued to "knowingly" operate an ALF after her old license had expired. Sometime during the first half of 1997, but prior to June 19, 1997, Fosset was advised by AHCA to obtain a license within ten working days or else be subject to prosecution. Fosset then filed an application for licensure on an undisclosed date, but it was deemed incomplete because it lacked a legible fire marshal's report; zoning verification; sanitation and inspection reports; and a completed assets, liabilities, and statement of operation form. There were also unpaid license fees. Although she later submitted a legible fire marshal's report and paid the fees, the application was never determined to be complete and was therefore denied. On February 26, 1998, an information was filed by the Duval County State Attorney against Fosset charging that on June 19, 1997, she was operating an unlicensed ALF in Duval County, a third degree felony. On April 9, 1998, Fosset pled guilty to the charge, and adjudication of guilt was withheld. She was placed on supervised probation for 24 months, and one condition of probation prohibited her from "operating and maintaining an adult living facility" during her probationary period. According to Petitioner, her term of supervised probation was terminated on April 30, 1999, or prior to the original two-year period, and this was not contradicted. If this is true, then the condition that she not operate an ALF during her probationary period has also expired. The state attorney's office notified AHCA of Fosset's guilty plea by letter dated April 24, 1998. After receiving the letter, AHCA issued an Amended Administrative Complaint against Fosset on June 8, 1998, charging her with operating an unlicensed ALF. The parties eventually entered into a Joint Stipulation on July 7, 1998, wherein Fosset agreed to pay a fine, and a Final Order was entered on August 21, 1998, accepting the stipulation. On an undisclosed date in 1998, Fosset filed a second application for licensure. This application was preliminarily denied on May 20, 1998, on the ground she had "pled guilty to operating an unlicensed ALF." When no request for a hearing was made, a Final Order confirming this action was entered by AHCA on July 1, 1998. A third application was filed by Petitioner with AHCA on April 28, 1999, by which she again sought an initial license authorizing the operation of a five-bed ALF at 1244 Edgewood Avenue, West, Jacksonville, Florida. On May 25, 1999, the application was denied under Section 400.414(1)(m), Florida Statutes, on the grounds Fosset had pled guilty to operating an unlicensed ALF, and the terms of her probation prohibited her from operating such a facility. On June 8, 1999, AHCA amended its earlier letter and added Section 400.414(3), Florida Statutes, as an additional statutory ground for denying the application. The latter statute authorizes AHCA to deny an application whenever an applicant has been denied an application within the preceding five-year period. This controversy followed. Petitioner concedes that she operated a facility without a license after being told to cease operations, but she did so only because she did not wish to "throw [her clients] out on the street," especially since none of them had other family or another facility in which to be placed. Despite being well- intentioned, Fosset nonetheless violated the law by continuing to operate without a license. Petitioner also points out that she has attempted in good faith on no less than three occasions to obtain a license. However, the first application was denied for technical reasons (incompleteness), and there is no record evidence that all of the missing items were ever submitted. Her last two efforts were properly rebuffed because Petitioner had continued to operate an ALF without a valid license. Finally, there is no dispute that Petitioner desires a license because she is truly committed to assisting elderly persons.
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 Petitioner's application for an initial license to operate an Assisted Living Facility. DONE AND ENTERED this 10th day of September, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 10th day of September, 1999. COPIES FURNISHED: William Roberts, Jr., Esquire 816 Broad Street Jacksonville, Florida 32202-4754 Michael O. Mathis, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact Nancy Boles owns and has operated Happy Days Guest Ranch for some 14 years. This facility is licensed as an ACLF and has no record of complaints other than those contested at this proceeding. On or about March 4, 1987, DHRS received a report from an undisclosed source that a resident at the Happy Days Guest Ranch ACLF had been abused by the proprietor, Nancy Boles, and an investigator was sent to the ACLF. Apparently the allegation was that Respondent had slapped a resident. At this time there were approximately 6 residents at the ACLF. After talking to these residents and with Respondent, the investigator, Katherine Massaro, concluded that a substantiated report of abuse had occurred. The HRS Division of License and Certification was notified and a decision was made to relocate the six residents and place a moratorium on further admissions to the ACLF. Additionally, Respondent's application to renew her ACLF license was denied. No evidence was presented that the HRS Division of Adult Services, filed a notification of a confirmed report of abuse against Respondent and placed her on the abuse register. Accordingly, this is not a proceeding challenging a confirmed report of abuse of the aged but is a license revocation proceeding. It is apparent that HRS notified the State Attorney's Office of the alleged abuse and the charges disposed of in Exhibit 1 were preferred. No adjudication of guilt was made in that case. Petitioner's eye witnesses to the alleged abuse were two elderly women. The younger, Mardell Surrency, whose deposition is Exhibit 2, was 75, and the other, Alice Beasley, whose deposition is Exhibit 3, was 86. Both of these women testified that they saw Respondent slap Fowler Simmons, another resident of the ACLF who is senile or has other mental impairment that led these witnesses to conclude that mentally Simmons was "real bad" with the mind of a child who had to be told everything to do. Both witnesses gave an indication (pantomined) of how Respondent slapped Simmons. Unfortunately, a verbal description of this act is not contained in their deposition. Surrency testified that Beasley "was 86 years old so she didn't pay much attention to anything." Beasley, on the other hand, testified that she and "Modelle" were sitting alongside each other when the incident occurred and she and "Modelle" had often talked about how mean Respondent talked to Simmons. Neither ever saw any bruise on Simmons' face or body or ever saw Respondent strike Simmons other than this one time. Both testified Respondent told Simmons to not sit there "like a damn fool." Respondent's version of the incident was that she did indeed slap Simmons, but gently on the mouth, to get him to eat the meal she had prepared. She demonstrated a very light slap with the palm of her hand on the lips. This evidence is deemed more credible than the often rambling and disjointed testimony of the two female residents of the ACLF.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is a state agency charged with the duty and responsibility of regulating the practice of architecture pursuant to Chapters 20, 455, and 481, Florida Statutes. At no time material hereto has Respondent been certified or licensed as an architect pursuant to Chapter 481, Part I, Florida Statutes. On March 9, 2002, Respondent contracted with Reverend Earnest Jackson, pastor of the Church of the Apostolic Faith, to provide services specified as follows: . . . design and composing of blue prints and specifications for securing permits from permitting agencies. Such work may involve civil, architectural or sign design . . . . Mr. Lee agreed to design all necessary [sic] drwgs. and designs for securing all permits for construction of the church and drainage of surface water. The contract referenced the "projected cost for design & delivery of plans @ approx. $7,000.00." There is also reference in the contract to "seven and one half percentage of market" but the remainder of that line on the copy of the contract in evidence is illegible as to the context of that reference. Reverend Jackson understood the contract to be for a total of $7,000.00. The contract was also signed by Robert Roundtree, a deacon of the Church of the Apostolic Faith. Respondent prepared two sheets of preliminary study designs for the Church of the Apostolic Faith dated April 10, 2002, for which Reverend Jackson paid Respondent $1,300.00. As time passed and the church plans were not finished, Reverend Jackson became concerned. Because of his concerns and because Respondent asked him for more money beyond the $7,000.00, which he understood to be a total contract price, Reverend Jackson verbally told Respondent that his services were terminated. In September 2002, Respondent filed a lien against Reverend Jackson and the Apostolic Faith Church. The lien was for "$15,000.00 of which there remains to be paid $13,700.00" for "700 hours in consulting & travel." Respondent later released Reverend Jackson from the lien. During this transaction, Respondent did not clearly inform Reverend Jackson that an architect or engineer would have to review and approve any plans that Respondent drew. The contract made no reference to any review of Respondent's work by either architects or engineers. Reverend Jackson would not have contracted with Respondent if he had been told that Respondent was not in a position to start and finish the church project. Respondent acknowledged that he is not an architect and that the preliminary plans submitted to Reverend Jackson were not reviewed by an architect. Respondent attempts to rely on notifications he received in the late 1980's from the State of Florida indicating he was qualified for certain job classifications, including the classification as Engineering Tech IV, for job opportunities within state government. Respondent's reliance on these notifications that he was eligible for certain job classifications within state government employment is misplaced to the extent they are intended to defend his actions. After terminating his relationship with Respondent, Reverend Jackson hired a firm to complete the plans for the church. The total cost of the plans for the church was $1,000.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Business and Professional Regulation enter a final order finding that Respondent violated Subsection 481.223(1)(a), Florida Statutes, and that an administrative penalty of $1,000.00 be imposed. DONE AND ENTERED this 7th day of August, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2003.
The Issue The issues for consideration concern whether the Petitioner is qualified for licensure pursuant to Chapter 475, Florida Statutes, to act as a real estate salesman.
Findings Of Fact On March 22, 1990, Petitioner made application with Respondent to become licensed as a real estate salesman. In the course of that application he provided an affirmative answer to Question 7. Question 7 said, "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld." In particular, Petitioner acknowledged that he had been in the possession of a controlled substance in a case dating from February 8, 1976 and received a fine of $100. He further acknowledged a case dating from June 15, 1983 in which he received one day in jail for disorderly intoxication and breach of peace. Finally, he acknowledged an October 26, 1983 charge of carrying a concealed firearm in which adjudication was withheld. These offenses form the basis for Respondent's intent to deny the application for licensure. Petitioner had applied for a real estate license in Florida on or about February 14, 1987. His application was denied. This lead to an administrative hearing in which the February 1976 and October 1983 offenses previously described were considered with another offense not the subject of the denial on this occasion. Based upon the criminal offenses and the failure to demonstrate rehabilitation following the commission of those offenses, Hearing Officer Diane K. Kiesling in her recommended order of December 8, 1987, recommended the denial of the license. That recommendation was accepted and a final order was entered on January 20, 1988, denying the license application. Given the denial in the prior case, Petitioner truthfully answered Question 14 in the present application and acknowledged Respondent's action turning down his request to receive a license in the previous submission. According to the present statement of denial because Petitioner had been denied before by action of the final order of January 20, 1988, Respondent would deny Petitioner's current application for licensure. In summary, Respondent continues to hold the opinion that based upon Petitioner's moral turpitude as related to his criminal history and insufficient demonstration that he has rehabilitated himself, Respondent is unwilling to license the Petitioner. That is an erroneous impression as Petitioner proved at hearing. Petitioner has not been arrested or incarcerated since the October 26, 1983 incident. He has been involved in the construction business since May, 1990, associated with the hauling and cleaning of debris from job sites. Petitioner operates this business. Prior to that time he had been employed by his father in a family-owned company, a roofing business. Anthony Speight is Petitioner's pastor in the Living Way Christian Fellowship Church International in Jacksonville, Florida. He has known the Petitioner for three years and is the godfather to Petitioner's son. Petitioner and his four children attend services every Thursday and Sunday at Reverend Speight's Church. Reverend Speight converses with the Petitioner on a daily basis and has found the Petitioner to be a moral and upstanding citizen. Petitioner has participated in church activities related to building and remodeling of adjunctive services at the church site. Reverend Speight knows the Petitioner to be person who spends his time working, at home with the children and at church. The work Petitioner has done for the church has been without compensation. Reverend Speight believes the Petitioner to be a trustworthy individual. Reverend Speight does not believe that Petitioner is insincere in his attempt to live an upstanding life. The pastor also made mention of the fact that the Petitioner is desirous of helping disadvantaged persons who are without housing. Warren A. Jones is a City Councilman in Jacksonville, Florida. He has known Petitioner throughout the Petitioner's life. His main involvement with the Petitioner was when the two men were growing up. As children he found the Petitioner to be a reasonable citizen from a good family background. He believes that Petitioner may have gone astray because of the environment in which he found himself. Mr. Jones is a real estate salesman. Lee Stradtner is a broker with Reed Realty Group in Jacksonville, Florida. He also teaches as a real estate instructor at Florida Community College in Jacksonville, Florida. Petitioner took a course from Mr. Stradtner in Salesman's Principles and Practices I in January, 1990. The is a preparatory course for qualifying to take the real estate salesman's examination in Florida. The course has components that deal with ethical considerations emphasizing the fiduciary relationship between real estate persons and their clients. Stradtner found Petitioner's attendance at this course exemplary. Petitioner passed the final examination with a score of in excess of 90 per cent correct which was the highest grade in the class. Petitioner freely explained to Mr. Stradtner his prior criminal law problems. Mr. Stradtner encouraged Petitioner to reapply for licensure based upon Petitioner's attendance, performance and responses in class. He believed that Petitioner understood agency and fiduciary relationships and the fact that real estate professionals are involved with positions of trust. Outside the class Petitioner discussed with Mr. Stradtner the circumstances in an area of Jacksonville, Florida, known as Springfield. This discussion related to a project that Mr. Stradtner was working on at the time and that Petitioner showed an interest in. It pertains to renovation and restoration and the provision of affordable housing in close proximity to the down town area. This would make housing available for all segments of society. Mr. Stradtner has discussed the possibility that the Petitioner might work with Mr. Stradtner's realty group; however, Mr. Stradtner is not the broker in charge and an interview would have to be conducted with the managing broker in that firm before hiring Petitioner (assuming licensure). All comments from the witnesses testifying in behalf of the Petitioner as reported in these findings of fact are credited.
Recommendation Based upon the findings of facts and the conclusions of law, it is, recommended that a Final Order be entered which accepts the Petitioner's application for licensure as a real estate salesman. RECOMMENDED this 10th day of January, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 day of January, 1991. COPIES FURNISHED: Walter Lee Jordan 10770 Anders Boulevard Jacksonville, FL 32216 Joselyn M. Price Assistant Attorney General State of Florida, Department of Legal Affairs 400 West Robinson Street, Suite 107 South Orlando, FL 32801 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802
The Issue Whether the Petitioner qualifies for a consumer's certificate of exemption as a "Religious Institution" or "Church" or as a "Charitable Institution" as defined in Chapter 212, Florida Statutes.
Findings Of Fact Petitioner was incorporated in the State of Florida as a nonprofit corporation on May 11, 1995. On February 21, 1995, Petitioner filed an application for a consumer's certificate of exemption as a charitable institution. The Department under its statutory powers denied the application and advised the Petitioner of his right to a hearing on his application. George B. Cooper is the incorporator president and treasurer of Petitioner. Mr. Cooper serves as the pastor of the Petitioner. Mr. Cooper is a Seventh Day Adventist and attended religious training with that denomination. He is not an ordained minister. The business office and business address of Petitioner is in Jacksonville, at the home of a friend of Mr. Cooper. Mr. Cooper resided in Jacksonville initially, and started his missionary activities there. He subsequently moved the mission to Daytona Beach, and resides in Jacksonville and overnights in Daytona Beach when engaged in mission work. Mr. Cooper leases one-third of a private residence located at 610 Winchester Street, Daytona Beach, Florida. Mr. Cooper provided receipts for $1075 for leasing this space from February, 1995, until July, 1995, and a letter from the landlord which indicates that she is aware that Mr. Cooper conducts religious services there. The leasehold includes a large meeting room with chairs for persons attending services and a podium from which Mr. Cooper leads religious services which include prayer, song and preaching. A small room is available with a cot and sleeping bag to provide a place for homeless to overnight. Mr. Cooper sleeps at the mission when in Daytona Beach. In addition the leasehold includes access to bath and kitchen facilities. Clothes and food are also stored at the mission which Petitioner provides to persons in need. These clothes and food items are gifts in kind obtained from individuals and organizations. Mr. Cooper does not maintain complete records of the items given to him or of the items which he gives away. Mr. Cooper testified that he received $4667 between May and December, 1994 which included $4000 which he received from distribution of religious tracts and pamphlets. Mr. Cooper testified that his expenditures between May and December, 1994 were $5150. This included expenses of $2100 for travel, rent and utilities, $383 for office materials, $100 for literature and gifts of food, clothes and money in the amount of $2567. None of the gifts of money were to other religious or charitable organizations. The Petitioner's mission in Daytona Beach provides clothes, food and minimal temporary shelter to homeless persons and others in need, together with preaching the gospel. To this end, Mr. Cooper conducts church services at regular times during the week and is available to provide care to those who come by his mission 24 hours a day when he is in Daytona Beach.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the application of the Petitioner as a religious institution be approved. DONE and ENTERED this 7th day of September, 1995, in Tallahassee Florida STEPHEN F. DEAN, 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 7th day of September, 1995. APPENDIX The Department filed proposed findings which were read and considered. The following states which of those findings were adopted and which were rejected and why: Respondent's Recommended Order: Findings: Paragraphs 1, 2 Paragraphs 1, 2 Paragraphs 3, 4 Subsumed by Paragraphs 3, 4 Paragraph 5 Subsumed in part in 3, 4; and rejected in part as irrelevant Paragraphs 6, 7 Subsumed in Paragraph 1 Paragraph 8 Irrelevant There is no allegation that the application was incomplete Paragraph 9 Irrelevant except that the Department automatically considers alternative basis for exemptions Paragraph 10 Subsumed in Paragraph 1 Paragraph 11 Subsumed in Paragraph 6 It is irrelevant that there are no signs or ads or telephone These are not required of a church. Paragraph 12 Deleted from Respondent's findings Paragraph 13 Statement of Case Paragraph 14 The listing of items is not necessary as a finding. Paragraph 15 Subsumed in Paragraph 6 Paragraphs 16, 17 Subsumed in Paragraph 4 Paragraph 18 Subsumed in Paragraph 5 Paragraph 19 Irrelevant and invades the province of the fact finder Paragraph 20 Conclusion of Law COPIES FURNISHED: George B. Cooper, Pastor 2172 McQuade Street Jacksonville, FL 32209 and 610 Winchester Street Daytona Beach, FL 32114 Nancy Francillon, Esquire Lisa M. Raleigh, Esquire Assistant Attorneys General Office of the Attorney General The Capital-Tax Section Tallahassee, FL 32399-1050 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry Fuchs, Executive Director Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact At all times relevant hereto, Gerald Bartlett was licensed by the Construction Industry Licensing Board as a Registered General Contractor, having been first licensed in 1973. This license has been periodically renewed through June 30, 1989 (Exhibit 1). It was not valid for Pinellas County. Melvin Jones, an unlicensed contractor, had performed several jobs in Hillsborough County, the permits for which were pulled by Lee Grimes, a Registered General Contractor, authorized to pull permits in Hillsborough County. For this service Jones paid Grimes 5% of the contract price. Grimes learned that Jones was trying to acquire contracts to build or remodel churches, Haines City and Wauchula. At one time, Grimes spoke to Respondent about forming a company to construct those projects for which Jones could get contracts, but this was not pursued. On June 12, 1987, Jones, acting as Christian Builders, negotiated a contract with St. John's Missionary Baptist Church of Clearwater to construct an addition to the church for a contract price of $200,000 (Exhibit 2). He approached Grimes to get the permits pulled. Grimes contacted Respondent who was then working as a superintendent for EER Corporation, a construction firm. Respondent spoke to Thomas Hebert, Vice-President of EER, who had a statewide general contractor's license, about pulling the permit for the Clearwater church. Both Hebert and Respondent claim they understood Jones was the church representative, and they thought the church intended to perform a lot of the work using members of the church and only wanted someone to inspect the work as it progressed. Hebert agreed that his license be used to pull the permit to help the church, but Respondent would conduct periodic inspection to insure the work was properly performed. Respondent had agreed to inspect the construction for $100 per inspection. Jones paid Respondent $500 for this service. Unbeknownst to Hebert, Grimes acquired Hebert's permit card and prepared an authorization form to pull the permit for the church. Hebert's signature authorizing the pulling of the permit was forged, and Respondent notarized the document. Respondent contends that Grimes "plopped" the documents relating to the church permit down in front of him, and without requiring any signature in his presence or even looking over the documents carefully Respondent put his notary stamp and signature on the document. Thus armed, Jones and Grimes went to the Clearwater City Hall and obtained the building permit for the church addition. Grimes testified he intended to pull permits for the church jobs in Wauchula and Haines City the same day, but Jones didn't have enough money for the other two jobs. When the permit was issued, Jones gave Grimes $9000, mostly in $100 bills purportedly as 5% of the contract price which Grimes thought was $180,000. Grimes further testified that he gave $4500 to a then restaurant employee of Respondent, John McCartney, to give to Respondent. McCartney denies ever receiving any cash from Grimes, and Respondent denies receiving anything from Grimes or Jones except the $500 he received to cover the inspections he had agreed to do. McCartney has known Grimes for many years, and had Grimes given him any money at the restaurant he would have put it in the safe and not in his pocket as Grimes testified, and to McCartney's knowledge, Grimes would never give money to anybody. Grimes further testified that he had loaned some $12,000 to Jones to meet his payroll after Jones had given him the money. It is found that Respondent never received any money from Grimes as the latter claims. After visiting the construction site a few times, Respondent found the work was not being done in accordance with the plans. He discussed these problems with Jones, but when they were not corrected, he advised the church deacons that Jones was incompetent to complete the contract. The church board didn't want to remove Jones at this time, but a few weeks later when the architect and/or city inspectors threatened to stop the project, the church fired Jones and asked EER to supervise construction to completion with the church paying all labor and material costs. EER and Respondent agreed that Respondent would supervise the construction, and the church agreed to pay him $100 per day he was on the job site. Thereafter, the project was completed with no further problems. When Jones was called as a witness, he stated criminal charges were pending against him and invoked his Fifth Amendment privilege against self- incrimination. At the time Hebert agreed to use his license to pull the church permit, he required the church and Jones to submit a letter (Exhibit 4) stating EER had agreed to pull the permit without fee to the church and to act as consulting and inspection agent.
Recommendation It is recommended that a Final Order be entered finding Gerald Bartlett not guilty of violating Section 489.129(1)(e), Florida Statutes (1987), and dismissing the Administrative Complaint. ENTERED this 20th day of February, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1990. APPENDIX TO RECOMMENDED ORDER Treatment Accorded Petitioner's Proposed Findings 1,2,3 Included in H.O. 1, 2 and 4. 4,5,6 Accepted. Included in H.O. 5 and 6. Included in H.O. 4. 9,10 Included in H.O. 10. 11,12 Rejected as not supported by credible evidence. Accepted insofar as included in H.O. 3. First part accepted. Not aware of Grime's thoughts. 15,16 Accepted insofar as included in H.O. 5. 17,18 Accepted. Accepted insofar as the initial inspections are concerned. Rejected as unsupported by evidence in this record. Rejected as unsupported by credible evidence. See H.O. 6. Rejected. Accepted. Accepted. Accepted. Accepted. Rejected. Accept that Respondent was so told by Grimes. Rejected. Accepted only insofar as included in H.O. 7 and 9. Accepted as Grimes' unrebutted testimony. Rejected. Same as 30. COPIES FURNISHED: Jack M. Larkin, Esquire 806 Jackson Street Tampa, FL 33602 Christy L. Hessler, Esquire 5265 Village Market Wesley Chapel, FL 33543 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
