The Issue The issue is whether petitioner is entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a claim by petitioner, John E. Phillips, Jr., that he is entitled to an award of attorney's fees and costs because of an administrative action improvidently brought against him by respondent, Department of Banking and Finance (DBF). When the complaint was filed, Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc. DBF contends the claim is without merit because Phillips is not a small business party within the meaning of the law, there is substantial justification to support the agency's decision to file a complaint, and special circumstances are present which would make an award of fees and costs unjust. The action which underlies this claim involved an administrative complaint filed against Phillips on February 4, 1994, charging him with violating various provisions within Chapter 517, Florida Statutes. That complaint was assigned Case No. 94-1266. The complaint also denied an application by Phillips to register as an associated person with a new firm. In addition, the complaint named Bruce M. Walker as a co-respondent, and as to that registrant, the complaint was assigned Case No. 94-1358. Both cases were consolidated for hearing and, after an evidentiary hearing was conducted on June 27, 1994, a Recommended Order was issued on September 13, 1994, recommending that all charges against Phillips be dismissed and that his application for registration be approved. The Recommended Order was adopted by DBF without change, and Phillips is accordingly deemed to be a prevailing party in that action. Phillips has requested fees and costs in the amount of $15,000.00, the maximum allowed by law. Respondent does not contest the reasonableness of that amount. Prima Facie Requirements for an Award of Fees and Costs In order to show entitlement to an award of fees and costs, petitioner must demonstrate that he is a "prevailing small business party" within the meaning of the law. Since he has filed the petition on his own behalf, he must show he is a sole proprietor of an unincorporated business, including a professional practice, whose principal office is in this state, who is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by the state agency, not more than 25 full-time employees or a net worth of not more than $2 million. At the time the administrative complaint was filed, Phillips was domiciled in Pensacola, Florida, and had a net worth of less than $2 million. According to an uncontroverted allegation in his petition, Phillips had no "employees relating to business that formed the basis for the Agency's charges." Petitioner was also a 50 percent shareholder in a subchapter S corporation known as Phillips, Walker & Associates, Inc. (PWA), a Pensacola firm engaged in the sale of insurance products. Although Phillips was registered with DBF as an associated person with Aragon Financial Services, Inc., that firm was not the subject of the complaint nor is it otherwise relevant to this dispute. Petitioner's principal source of income was through the sale of insurance products sold through PWA although he occasionally sold a few securities during that same period of time. The administrative complaint was not filed against PWA, which held no licenses from the state, but rather was filed against the registration of Phillips as an individual. Although he was an officer, employee and shareholder of PWA, Phillips was not a sole proprietor of an unincorporated business, including a professional practice. Therefore, he does not qualify as a small business party. Was There Substantial Justification? The consumer complaint which eventually led to the filing of the charges in Case No. 94-1266 was made by Jane Hubbard, a Gulf Breeze realtor who had loaned a substantial amount of money ($50,000.00) to PWA in May 1988 and was never repaid. The loan was secured by a promissory note personally signed by Phillips and Walker, as the owners of the corporation. After PWA ceased doing business in May 1990, and both Phillips and Walker had filed for bankruptcy, Hubbard, or her attorney, contacted DBF in an effort to seek DBF's aid in collecting her money from Phillips and Walker. Since petitioner was registered with DBF as an associated person, and thus was subject to DBF's regulatory jurisdiction, Hubbard apparently assumed that Phillips may have violated the law in some respect, and the agency might be able to assist her in recovering all or a part of her money. A similar complaint filed with the Department of Insurance was not pursued by that agency. Hubbard's complaint was eventually referred to a DBF financial examiner, Robert R. Kynoch, who, among other things, interviewed Phillips, Walker, Hubbard, and three other persons who had made loans to Walker (but not Phillips). Although Kynoch did not place the persons interviewed under oath during the investigative stage, there was no requirement that he do so. Based on a representation by Hubbard that Phillips and Walker had failed to disclose to her all relevant information regarding PWA's financial status at the time the loan was made, Kynoch concluded that a reasonable basis existed to bring charges against the two if the loan was actually an investment, and thus subject to DBF's jurisdiction under Chapter 517, Florida Statutes. Accordingly, Kynoch prepared a written investigative report, received in evidence as respondent's exhibit 3, which recommended that the report "be further reviewed for appropriate disposition." The report was first reviewed by Michael D. Blaker, a DBF area financial manager, who approved the recommendation and forwarded it to his supervisor, Richard White. It was then reviewed and approved by a bureau chief, William Reilly, and finally by the division director, Don Saxon. After Saxon signed off on the report, it was sent to the general counsel's office for a legal determination as to whether the loan was an investment. Margaret S. Karniewicz, an assistant general counsel, concluded that it was, and recommended the issuance of an administrative complaint. After an evidentiary hearing was conducted, a determination was made that the loan constituted an investment. This determination in the Recommended and Final Orders was not contested by any party, including Phillips. There was, however, insufficient evidence to establish that misrepresentations were made by Phillips during the sale of the investment. For this reason, the charges against Phillips were dismissed and his application for registration with a new firm was approved. Because DBF had statements, which it assessed to be credible, from a complaining witness (Hubbard) that misrepresentations or material omissions were made by Phillips and Walker during the transaction, and DBF properly construed the transaction as an investment, it had a reasonable basis in fact and law to file the complaint. Since there was no showing that the agency's credibility assessment was unreasonable, DBF was substantially justified in bringing the charges in Case No. 94-1266. Special Circumstances There was no evidence presented by respondent to show that special circumstances exist that would make an award of attorney's fees and costs unjust.
Findings Of Fact Respondent Leroy Luther Bass, Jr., applied for a secondary substitute teacher's certificate by application filed August 4, 1965, with the Florida Department of Education. Petitioner's Exhibit No. 1. This application was granted, and teacher's certificate No. 167548 was issued to respondent on August 13, 1965, effective through June 30, 1975. Petitioner's Exhibit No. 1. On June 29, 1967, respondent filed an application for a full-time teacher's certificate as a secondary social studies teacher. Petitioner's Exhibit No. 1. This application was also granted, and another teacher's certificate numbered 167548 was issued to respondent on August 15, 1967, effective through June 30, 1968. On December 15, 1980, the Department of Education received a third application from respondent. Petitioner's Exhibit No. 1. By this application, respondent sought certification as a substitute teacher for grades one through twelve. In response to the question "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?", respondent checked "No" on the application, which he signed on November 18, 1980, certifying the truth and correctness of all information supplied. Petitioner's Exhibit No. 1. Petitioner granted this application; and teacher's certificate No. 167548 was issued to respondent, with an expiration date of June 30, 1985. Petitioner's late-filed composite exhibit. Respondent Bass was arrested on May 22, 1976, on charges of driving while intoxicated and failure to stay within a single lane. On June 29, 1976, he was convicted, on a plea of nolo contendere, of violating Section 316.028, Florida Statutes (1975), by driving while intoxicated, a misdemeanor. He was fined one hundred fifty dollars ($150) and ordered to attend "DWI School." Case No. 76-22651 (Duval Cty Ct). Petitioner's Exhibit No. 1. Respondent was arrested on February 4, 1977, on charges of driving under the influence and running a red light. On April 8, 1977, he was convicted, on a plea of guilty, of violating Section 316.028, Florida Statutes (1975), by driving under the influence, a misdemeanor. He was sentenced to ten days in jail, and his driver's license was revoked for six months. Case No. 77- 7635MM (Duval Cty Ct). Petitioner's Exhibit No. 1. Respondent was arrested on August 30, 1978, on charges of driving under the influence of alcohol and of "Violation of Right-of-Way." Petitioner's Exhibit No. 1. On January 9, 1979, he was convicted, on a plea of guilty, of violating Section 316.193, Florida Statutes (1977), by driving while intoxicated, a misdemeanor. He was sentenced to six months in jail, but the sentence was suspended, except for ten days, and he was placed on unsupervised probation for six months. Case No. 78-39501 (Duval Cty Ct). Respondent worked on weekends rather than serving this sentence at one stretch in a jail cell. Respondent applied on January 22, 1981, for employment with the Duval County School Board. On an application form he submitted, he indicated he had not been arrested for any offense other than minor traffic violations. About a month later, Paul Roberts, employed by the Duval County School Board as Director of Personnel Systems and Records, was furnished a list of respondent's arrests about a page-and-a-half long. Driving while intoxicated and disorderly conduct were among other charges listed. Petitioner filed its proposed order on August 2, 1982. Where relevant, proposed findings of fact have been adopted, in substance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's teacher's certificate. DONE AND ENTERED this 25th day of August, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 25th day of August, 1982. COPIES FURNISHED: Thomas F. Woods, Esquire Suite 112 1030 East Lafayette Street Tallahassee, Florida 32301 Leroy L. Bass, Jr. 1308 West Seventh Street Jacksonville, Florida 32209 Donald Griesheimer, Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
The Issue Whether or not the Respondent, State of Florida, Department of Administration, Division of Retirement, was in error in refusing to allow the Petitioner, John S. Forster, Jr., a/k/a John S. Forster to repay his contributions to the Florida Retirement Systems after he had requested and been granted a refund of his contributions made to the Florida Retirement Systems.
Findings Of Fact John S. Forster, Jr. applied for a job with the University of North Florida, Jacksonville, Florida. That application was under the name John S. Forster. He was given employment by the University and commenced the job. His position was as Store Keeper II. That job involved the receiving and distribution of incoming materials which the University was purchasing. Sometime in the middle to late part of February, 1976 the Petitioner suffered an injury in his employment and was required to be away from his work. During the course of the treatment of the Petitioner and subsequent contact by the employer, it was discovered that the Petitioner had on several occasions given false answers on his employment applications and medical questionnaires. Specifically, in answering questions propounded to him about former serious illness or operations, he had answered in the negative when in fact he had had a back condition which required surgery. This finding is borne out by the Respondent's Exhibits 2, 3 and 4, admitted into evidence, which are employment questionnaires and medical questionnaires completed by the petitioner. After the discovery of the false answers and subsequent to the Petitioner having been away from his employment for an extended period of time, a decision was made to terminate the Petitioner from his employment with the University of North Florida. Upon receiving the notice of termination the Petitioner had no further contact with the University of North Florida and did not attend any form of exit interview, as is the policy of the University. However, prior to his employment, the University had given an orientation session in which he was made familiar with the right that he had under the Florida Retirement Systems, to include the distribution of certain brochures of information. It is not clear how the Petitioner obtained the form, but he did obtain a form which is a form utilized for requesting refund of contributions to the Florida Retirement Systems. This form may be found as Respondent's Exhibit 1, admitted into evidence. The form was completed in its entirety by the Petitioner, with the exception of the portions which are to be completed by the last Florida employer. The portions to be completed by the Florida employer were not completed. effectively what the form did was to instruct the, Petitioner that his application for refund would waive, for him, his heirs and assignees all rights, title and interest in the Florida Retirement Systems. This waiver constitutes a waiver in law on the question of any rights the Petitioner, his heirs and assignees would have under the Florida Retirement Systems. The waiver becomes significant because the Petitioner went to a social security office and discovered that he would possibly be entitled to certain benefits due to the injury he suffered on the job with the University of North Florida, and those benefits would accrue to the Petitioner as a member of the Florida Retirement Systems. Notwithstanding that possible right to recovery, the Petitioner may not recover any compensation from the Florida Retirement Systems, due to his voluntary withdrawal from the Florida Retirement Systems by his refund request dated May 7, 1976. This withdrawal was made without coercion and without the knowledge of the University of North Florida and without the responsibility on the Dart of the University of North Florida or the Florida Division of Retirement to give any instructions on the implications of such a refund being granted. The Petitioner now has received his contributions from the Florida Retirement Systems and is not entitled to further relief as petitioned for.
Recommendation It is recommended that the Petitioner, John S. Forster, Jr. also known as John S. Forster, be denied any right to repay his contributions into the Florida Retirement Systems as a means to receiving compensation on the injury received while employed by the University of North Florida. DONE AND ENTERED this 17th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John S. Forster, Jr. 11615 Jonathan Road Jacksonville, Florida 32225 Stephen S. Mathues, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207-C - Box 81 Tallahassee, Florida 32303
The Issue Whether or not the Petitioner, Barbara A. Story, is eligible to sit for the Florida Real Estate Commission's licensure examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, post-hearing memoranda and exhibits, and the entire record compiled herein, the following relevant facts are found. On or about July 26, 1981, Petitioner, Barbara A. Story, filed an application for licensure as a real estate salesperson with the Respondent, Department of Professional Regulation, Board of Real Estate. By letter dated September 28, 1981, Randy Schwartz, Respondent's counsel, advised Petitioner that the Respondent, at its duly noticed meeting of September 23, 1981, denied Petitioner's application for licensure. That letter recited that the specific reason for the Respondent's actions was baked on Petitioner's answer to question six (6) on the licensing application and her criminal record. In this regard, evidence reveals and Petitioner's application reflects that Petitioner was convicted in the Southern District of Florida (West Palm Beach), on September 8, 1978, of embezzlement of monies from a bank, in violation of Title XVIII, United States Code, 656. Petitioner was sentenced by the Honorable C. Clyde Atkins on that date, pursuant to the split-sentence provision of Title XVIII, United States Code, 3651, in that she was to be confined in a jail-type institution for a period of one (1) month, and thereafter, the remainder of the sentence of confinement [one (1) year] was suspended. Upon discharge from incarceration, Petitioner was to be placed on probation for a period of five (5) years under the special condition that she make restitution for the monies embezzled. Jurisdiction of that case was transferred to the Middle District of Florida, and on March 29, 1982, Petitioner was terminated from probation supervision. Robert E. Lee, a chief U.S. probation officer, who supervised petitioner while she was under the supervision of the subject office as a probationer, indicates that Petitioner reflected a favorable attitude toward her probation officer, remained gainfully employed and abided by all the rules of probation. Petitioner has never been arrested since her conviction in 1978, and has received only one (1) traffic citation during December of 1981. Petitioner has been continuously employed since her conviction and is presently a secretary/receptionist where she is in charge of and controls office business for Mobile Craft Wood Products in Ocala, Florida. Petitioner has been in charge of processing cash sales for the past four (4) years. Petitioner is presently making restitution to the savings and loan association that she embezzled. Charles Demenzes, a realtor/broker who owns Demenzes Realty Inc., has known Petitioner approximately one (1) year. Mr. Demenzes spoke highly of Petitioner and was favorably impressed with her desire to become licensed as a real estate salesperson. Mr. Demenzes is hopeful that Petitioner will be afforded an opportunity to sit for the licensure examination such that she can join his sales force, if she successfully passes the examination. Respondent takes the position that Petitioner, having been convicted of the crime of embezzlement, which involves moral turpitude and therefore is ineligible to sit for the Respondent's licensure examination. In this regard, counsel for Respondent admits that the Board, when acting upon Petitioner's application for licensure, did not consider the fact that Petitioner has been released from probation supervision inasmuch as that factor did not exist at the time Petitioner made application for licensure. Character letters offered by Petitioner were highly complimentary of Petitioner's reputation and abilities as an employee. (Petitioner's Composite Exhibit No. 1.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent enter a final order granting Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 13th day of October, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 13th day of October, 1982.
The Issue Whether the Respondent was in violation of Subsection 464.21(1)(b), Florida Statutes.
Findings Of Fact The effect of the stipulation was to reduce the charges against Miss Calhoun to the withdrawal of Demerol without a doctor's order, and failing to chart same. The Board presented no evidence regarding any intent to use said drugs, resting its case. There was no evidence that Miss Calhoun intended to use said drugs or whether the drugs were administered to the patients. Therefore, the Respondent admitted withdrawing drugs without a doctor's order and two counts of failing to properly chart. There was no evidence that this resulted in any harm-to the patients. The Petitioner is a white female, 26 years of age, who received her education in nursing at Abraham Baldwin Junior College, Tifton, Georgia; passed her Georgia boards in June 1969; worked for Putnam Memorial Hospital from 1969 until November 1971; passed her Florida nursing examination in October 1971; and worked at University Hospital of Jacksonville, Florida, from November 19/1 until October 1975 when the incident, upon which these charge are based, occurred. The Petitioner then took the stand and Exhibit 1 to 5 were introduced into the record in mitigation of the offenses. These were letters of various nurses and doctors who knew the Petitioner professionally. These letters generally indicate that Miss Calhoun was a very well trained, very competent emergency room nurse who got along well with staff, patients, and their families. In explanation of her behavior the Petitioner testified that she had had a "close personal relationship" with a member of the staff who prior to the incident had transferred from the hospital at which both were employed to another state. Their separation caused Miss Calhoun to go into a deep depression which required her hospitalization for psychiatric treatment for eight (8) days ending the third week of August 1975. Shortly thereafter Miss Calhoun visited the former friend during which time their relationship was permanently severed. She again went into a depression which continued from the period of this final meeting until the date of, the incident. The Petitioner stated that she had not received any further medical assistance for her personal problems after her hospitalization but that she was longer depressed although she was anxious over the outcome of these proceedings. It would appear from the evidence that Miss Calhoun is technically killed and has the ability to relate well with staff, patients, and their families. However, the failure to chart medications is a serious breach of professional conduct. There is uncontroverted testimony that Miss Calhoun suffered a severe emotional depression as the result of the termination of a close personal relationship., Her condition was so bad that she required treatment by a psychiatrist while hospitalized for eight (8) days for severe depression with suicidal tendencies. Those who know her have indicated that her behavior was not in keeping with her normal professional conduct, and that she has a deep respect and love of her chosen profession. Miss Calhoun indicated her willingness to seek professional help and guidance to assist her with her emotional problems, and to have periodic reports on her progress submitted to the Board as a condition of her continued practice. She also was willing to have her job performance monitored by periodic reports from her employer to the Board. Considering particularly Dr. Farquhar's letter, he places some degree of responsibility for her condition upon the supervision which she received from the physicians and nurses at her hospital. Dr. Farquhar states that Miss Calhoun's performance prior to the occurrence of her personal problem was outstanding. He further indicates that he would be willing to re-employ Miss Calhoun if she were rehabilitated and if she could meet the expectations of her profession. Dr. Farquhar concludes by expressing his belief that she can again represent the best of nursing as she had in the period before her problems. There are few of us who have not tasted the bittnerness of a broken personal relationship. Each person is effected to a greater or lesser deree, and reacts differently . The majority are able to re-establish their personal relationships and pursue their social and professional interest. However, during that period when all seems lost and when just coping is a struggle there are few of us who have not succumbed to some form of abnormal behavior. The duty of the Board of Nursing is first to protect the people of Florida by insuring the high quality of nursing care. The Board has the further duty to insure its members adhere to the high standards and ideals of the nursing profession. It also has a duty to its members individually to nurture and protect their talents so that the Boards two other purposes are served. In this case the Board has an opportunity to fulfill all of its purposes. The record in this case would indicate that Miss Calhoun's behavior was the result of an isolated, though undoubtedly personally tragic situation. The record reveals that her case was not effectively followed up after her release from the hospital, and that at the time of the incident charged she was not responding normally.
Recommendation Therefore the Hearing Officer recommends that the Board place the Respondent on probation for one year and require her to submit periodic reports to the Board regarding her employment and health. DONE and ORDERED this 9th day of February, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Building Jacksonville, Florida 32202 Counsel for Petitioner Richard Moore, Esquire 924 Barnett Bank Building Jacksonville, Florida 32205 Counsel for Respondent.
The Issue The issue is whether Charlie Phillips is entitled to licensure as a real estate salesman.
Findings Of Fact Charlie D. Phillips applied for licensure as a real estate salesman on or about May 22, 1987. That application was denied by the Florida Real Estate Commission on August 19, 1987, based upon Mr. Phillips' answer to question 6, which asked whether he had been convicted of a crime. Mr. Phillips had answered yes. He had attached to the application a letter indicating that he had been convicted of the felony of indecent exposure before a minor in Colorado in April 1983, when Mr. Phillips was 21 years old. The incident involved had occurred approximately two years before his conviction. After the incident and before his conviction Mr. Phillips had engaged in counselling with a Colorado psychiatrist, Dr. Brent Steel for close to a year before the matter went to court. At the criminal hearing Mr. Phillips pled guilty, was placed on probation, and was not incarcerated for any period of time, apparently in part due to his successful participation in therapy with Dr. Steel. The Colorado court terminated the probation almost a year early. Mr. Phillips remained in counseling with Dr. Steel in Colorado for five years. Since coming to Key West, Florida, Mr. Phillips has been counselled by Dr. Tanju T. Mishara, a clinical psychologist licensed in Florida. At first, Mr. Phillips had been counselled by a psychologist working under Mishara's supervision at the mental health care center in the Lower Keys, but after the psychologist's training was completed, Dr. Mishara continued seeing Mr. Phillips. The Hearing Officer is persuaded by Dr. Mishara's testimony that Mr. Phillips has overcome the delinquent behavior which Mr. Phillips engaged in when he was young. Neither the behavior nor the urges that caused the behavior have occurred for a number of years now. Mr. Phillips has continued in therapy in Colorado and Florida beyond the period that he was required to as a result of the criminal proceeding, which Dr. Mishara regards as an important indication that Mr. Phillips resolved to take responsibility for his actions and to overcome the behavior which got him into trouble. Most people stop counseling as soon as the troublesome behavior stops without ever resolving the problem that led to the inappropriate behavior. Dr. Mishara has determined that it is no longer necessary for Mr. Phillips to remain in therapy. Mr. Phillips now is well adjusted socially, has been involved in post- secondary education, has a responsible job, has earned the respect and trust of coworkers, has a serious relationship with a young woman of his age, and is unlikely to engage in further antisocial behavior which would jeopardize his standing in the community or the integrity of a profession in which he was involved. The Hearing Officer is satisfied that Mr. Phillips is now a competent and responsible citizen who has overcome his problem. The Hearing Officer was especially impressed with the forthright manner in which Mr. Phillips disclosed his past difficulties, accepted responsibility for his actions, and detailed the efforts that he has made to overcome those past problems. In view of the both the very favorable impression which Mr. Phillips made at the hearing, and the testimony of Dr. Mishara in which she indicated she would have no reservation in recommending the approval of his application as a salesman, which is a position of trust, the Hearing Officer is persuaded of Mr. Phillips' rehabilitation.
Recommendation Based upon the foregoing it is RECOMMENDED that the Florida Real Commission enter a final order granting Charlie D. Phillips' application for licensure as a real estate salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of May, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1988. APPENDIX Rulings on the Real Estate Commission's proposed findings of fact. Adopted in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered generally in findings of fact 4, 5, and 6. Rejected because Dr. Mishara was familiar with Mr. Phillips' case because of her supervision of the psychologist who first worked with him, Dirk Lorensen (transcript page 16) and she began seeing him in the fall of 1986. She is also familiar with his records from his therapy in Colorado. (Transcript page 17) Rejected as an insufficient characterization of Dr. Mishara's testimony. Rejected because the issue here is rehabilitation, not whether there may have been other occasions of exposure prior to the one to which Mr. Phillips pled guilty. COPIES FURNISHED: CHARLIE D. PHILLIPS POST OFFICE BOX 607 KEY WEST, FLORIDA 33041 LAWRENCE S. GENDZIER, ESQUIRE ASSISTANT ATTORNEY GENERAL DEPARTMENT OF PROFESSIONAL REGULATION SUITE 212, 400 WEST ROBINSON STREET ORLANDO, FLORIDA 32801 DARLENE F. KELLER, ACTING DIRECTOR DIVISION OF REAL ESTATE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
