Findings Of Fact On September 29, 1975 Respondent, R. J. Hunt Construction Company, through its President and qualifying general contractor, Richard J. Hunt, entered into a contract with Richard McCarty to construct two Second Story Additions to Palm Ocean Villas, Pompano Beach, Florida for a price of $53,700. The contract provided that the contractor would complete the building within 8 weeks of the issuance of a building permit and, if not completed, a 5 percent penalty would be deducted until December 10, 1975 and thereafter, if not complete, an additional 5 percent of the contract price would be deducted each week until complete. Building permits were issued on October 3 and 6, 1975 and work proceeded satisfactorily until the end of the 8 weeks contract period on December 1, 1975 when the project was 90 percent to 95 percent complete. At this time the contractor stopped work on the project and transferred his employees to another job. One of the contract provisions not completed was the application of waterproofing on a deck. Despite Hunt's assurances that he would get a subcontractor to complete this waterproofing, it still had not been completed by Christmas and McCarty employed a contractor to apply the waterproofing material in early January for which he paid $1,000 allowed by the contract. Subsequent thereto McCarty received notice of liens filed against his property from 4 subcontractors. These were American Metal Products Company, J. P. Electric Company, Ole Eds Construction, and Margate Plumbing. In order to get a certificate of occupancy it was necessary for McCarty to pay some of these subcontractors. American Metal Products installed an aluminum railing around the balcony for which they filed a notice of lien for $1,200 and subsequently filed a petition in bankruptcy. The present status of this lien was not ascertained. J. P. Electric Company had split their draw into three parts and they were paid by Hunt $700 for the initial work. When they refused to allow final inspection Hunt asked McCarty to pay them and take it off his last draw. McCarty paid $2,000 to J. P. Electric, leaving a balance owed of $781.92. Hunt also asked McCarty to pay Margate Plumbing and take this payment off the draw. Margate had been paid $1,000 upon completion of the rough work. In order to get occupancy McCarty paid Margate $1,800 which satisfied the lien of Margate. Ole Ed installed the septic tank and drain field for which they have filed a lien for $2,500 which is unpaid to date. Numerous miscellaneous items included in the contract for which McCarty advanced funds to keep work progressing amounted to $671.54. Hunt also requested McCarty to order the appliances which were included in the contract price since he (McCarty) could get them at contractor's price. For these appliances (stoves, air conditioners and refrigerators) McCarty expended $2,373.28. Total expenditures made by McCarty are as follows: McCarty paid to Hunt in draws $48,400.00 McCarty paid to J. P. Electric 2,000.00 McCarty paid to Margate Plumbing 1,800.00 McCarty paid for waterproofing deck 1,000.00 Misc. items paid for by McCarty 671.54 Appliances for which McCarty paid 2,373.28 Total paid by McCarty under contract $56,244.82 Balance owed to subcontractors. American Metals Corporation $ 1,200.00 J. P. Electric 781.92 Ole Ed's Construction 2,500.00 Total cost of project $61,736.74 At the time licensee stopped work on the project the railing around the balcony had not been installed, top decking had not been approved by building inspectors and waterproofing of deck had not been done. Extra costs not included in the contract price which were agreed to by McCarty included $300 to $500 extra for larger electric wire and $400 to $500 for larger septic tank than contract called for. These costs totaled approximately $800 which would bring the total contract price to $54,500. The working foreman on the job for the first three or four weeks of the contract, who testified on behalf of Respondent, was unfamiliar with all terms of the contract or with the finances of Hunt. When the existing roof was removed for the second floor addition to be added, conduits had to be replaced and some 2 x 12 joists had to be replaced. This work unexpectedly increased the cost of the contract to the contractor. The septic tank could not be placed where originally intended, and as a result, about 100 fee of sidewalk had to be torn up and replaced. Further, a larger septic tank than originally planned had to be installed. This latter increase was agreed to and paid for by McCarty. One character witness testified that Richard J. Hunt enjoys a good reputation in the construction industry.
The Issue Whether the Agency should register the Petitioner as a septic tank contractor?
Findings Of Fact The Petitioner, Ronald Burkett, applied for registration has a septic tank contractor to the Department of Health, the regulatory and permitting authority. The Department noticed the Petitioner by letter of its intent to deny his application for various grounds and that he had a right to a formal hearing. The Petitioner made a timely request for a formal hearing and these proceedings ensued. The application filed by the Petitioner was filled out by his now ex-wife, Susan Burkett, who had previously been a licensed septic tank contractor and the Petitioner's employer. The couple did business in the name of Working Man Septic Tank (Working Man). Susan Burkett filed out the application because the Petitioner does not read or write. The Petitioner as the employee of Working Man installed a septic tank without a license under a complex set of circumstances in which the property owner, employees of the Department of Health and the Petitioner sought to eliminate a serious health problem at a rental property. The existing septic system had failed and raw sewage was on the ground in the yard of single family residence which was being rented. The Department of Health sought to eliminate the nuisance. The Petitioner undertook to fix the system, submitted an application, and commenced work. Thereafter, it was determined that public sewer service was available, and this precluded issuance of the permit to repair the septic system. There is conflicting testimony about what occurred next; however, based upon the testimony of all the witnesses, the Petitioner left the tank he had installed in the ground; the owner hooked up the system; and the problems were eliminated. However, Susan Burkett received a warning letter from the Department of Health for having commenced the work without the permit. In 1994, the Petitioner was disciplined for septic tank contracting without a license, for installing septic tanks without a permit, and for substandard work in contracting. In 2003, Burkett repaired and replaced a distribution box at 638 Lakewood Road without a permit or an inspection which resulted in his now ex-wife, Susan Burkett, receiving a fine of $1,000, as the responsible contractor. Complaint SC 0752 alleges that U.S.A. Septic abandoned its contract and failed to fully perform a repair. Ron Burkett received checks in the amount of $3,500, which were negotiated in due course. Profit and Loss Statements which were part of tax documents submitted with the Petitioner's application indicated that they were for Ron's Septic Tank Service and Ronald E. Burkett. However, these statements were prepared in error by the Petitioner's accountants who subsequently supplied corrected documents showing the Petitioner's business name to be U.S.A. Septic Tank Co. and Ronald E. Burkett, Proprietor. Ron's Septic Tank Service is an unrelated septic contracting company owned and operated by another individual. This appears to have been a scrivener's error by the accountant which was corrected. However, the corrected documents are at odds with the business organization which supposedly existed, that is, U.S.A. Septic Tank Co., operated by Susan Burkett. At a minimum, the activities of U.S.A. Septic Tank Co. cannot be separated from the Petitioner's activities, and the Petitioner cannot divorce himself from misfeasance and malfeasance of that company or other companies which he worked for as an employee of his wife. The Construction Industry Certificate of Exemption from Florida Workers' Compensation Law filed with the application had had the expiration date altered. While the Petitioner may not have been responsible for the alteration, his application was facially deficient by failing to have a current exemption certificate.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Health deny the Petitioner's application for registration as a septic tank contractor. DONE AND ENTERED this 16th day of March, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 16th day of March, 2004. COPIES FURNISHED: Edward Brian Lang, Esquire One West Lloyd Street Pensacola, Florida 32501-2635 Rodney M. Johnson, Chief Counsel Department of Health Northwest Law Office 1295 West Fairfield Drive Pensacola, Florida 32501 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Earthmark operates the Corkscrew Regional Mitigation Bank under contract with the South Florida Water Management District (SFWMD). RCH is a company in the business of sand and limestone mining and was the applicant for Environmental Resource Permit No. 0266397-001. The Department is the state agency with the authority and duty to regulate mining activities in Florida. On August 20, 2008, the Department issued a Notice of Intent to Issue Environmental Resource Permit No. 0266397-001 (“Corkscrew Road Excavation” or “the mining permit”) to RCH to extract sand and limestone from a 1,365.5-acre tract of land owned by RCH in Lee County. On August 22, 2008, the Notice of Intent was published in the Fort Myers News-Press, a daily newspaper of general circulation in Lee County and nearby counties in the region. The newspaper notice included a statement that a person desiring to challenge the proposed action of the Department must file a petition for hearing with the Department within 21 days. No petition to challenge the proposed action was received by the Department within 21 days of publication of the newspaper notice. On November 25, 2008, 43 days after the deadline stated for the filing of a petition for hearing, Earthmark filed its Petition for Formal Administrative Hearing with the Department. On December 8, 2008, the Department referred the petition to DOAH. The Corkscrew Regional Mitigation Bank operated by Earthmark is located on 632.5 acres of land adjacent to the proposed sand and limestone mine. The mitigation bank was established in the 1990s and was originally operated by Mariner Properties Development, Inc. (Mariner). Negotiations began in 2006 between Earthmark Mitigation Services, Inc., of which Petitioner Earthmark was a subsidiary, to purchase from Mariner the contractual rights to operate the mitigation bank. The purchase agreement was executed in April 2007, and closed (all contingencies satisfied) in March 2008. Throughout the time that Mariner operated the mitigation bank, it regularly employed the consulting services of Kevin L. Erwin Consulting Ecologist, Inc. Erwin’s company has its offices in Fort Myers. Erwin has had a long career in environmental consulting and is knowledgeable about the Department’s environmental permitting procedures. In November 2007 and January 2008, Ervin was paid by Earthmark for consulting services. In May 2008, Earthmark and Erwin executed an agreement for consulting services. Erwin is the Qualified Mitigation Supervisor for the Corkscrew Regional Mitigation Bank. On March 28, 2007, Erwin attended a meeting in Fort Myers with SFWMD and Lee County employees, and other interested persons to discuss, among other topics, mining activity in Lee County. Erwin’s interests at the workshop were generalized. He was not attending exclusively because of his association with the Corkscrew Regional Mitigation Bank. He testified that he was representing the interests of “three or four dozen” clients. On the sign-in sheet for the workshop, under the heading “Organization,” Erwin wrote KLECE, the initials of his consulting company. Howard Hayes, Program Administrator in the Department’s Bureau of Mines and Minerals Regulation, was invited to attend the meeting and to make a presentation. Hayes testified that, during his presentation at the meeting, he mentioned that a permit application for the Corkscrew Road Excavation was pending at the Department. It was not made clear in Hayes’ testimony whether he included details sufficient to identify the location of the proposed Corkscrew Road Excavation. It is logical that Hayes would mention the pending permit application because mining activity in Lee County was a prominent subject of the workshop. Attached to Earthmark’s petition for hearing is an affidavit by Erwin that includes the following statement: On March 28, 2007, as a representative of Earthmark, I requested, from the Program Administrator of the FDEP Mines and Mineral Regulation, that I be notified of any actions concerning the proposed mine. Erwin subsequently prepared an amended affidavit that changed this statement to read as follows: On March 28, 2007, I, as a representative of the Mitigation Bank, requested from the Program Administrator of the FDEP Bureau of Mines and Minerals Regulation that I, on behalf of the Mitigation Bank, be notified of any agency action concerning the proposed corkscrew excavation project (application number 0266397-001). The clarity and specificity of Erwin’s request for notice, as described in his affidavit statements, with respect to the permit application of interest to Erwin and the identity of the mitigation bank as the entity for whom Erwin was making the request, was not borne out in Erwin’s testimony at the hearing. Erwin testified at the hearing that he does not recall hearing Hayes mention the proposed Corkscrew Road Excavation. Erwin testified that he asked Hayes to “keep us posted” about meetings, permit applications, and proposed agency actions regarding any mining proposals in Lee County. Erwin did not specifically request to be informed about the Corkscrew Road Excavation. Furthermore, although Erwin said that Hayes knew that Erwin was associated with the Corkscrew Regional Mitigation Bank, Erwin did not refer specifically to the mitigation bank when he asked Hayes to “keep us posted.” Erwin did not describe Hayes’ response to his oral request for notice about mining permits, except that Hayes’ response was understood by Erwin to be in the affirmative. Erwin did not say, for example, that Hayes told him, “Okay, I will notify you when the Department issues its Notice of Intent on the Corkscrew Road Excavation.” Erwin did not say that Hayes made a written note to himself regarding Erwin’s request for notice. Hayes remembers seeing and talking to Erwin at the meeting in Fort Myers. Hayes said that Erwin was one of several people that stood around him after Hayes’ presentation to ask Hayes questions or to discuss mining issues. However, Hayes does not recall being asked by Erwin to give him notice of mining permit applications or proposed Department actions on mining permits, in general, or the Corkscrew Road Excavation, in particular. It is Hayes’ practice to take notes at meetings and workshops and to include in his notes any request that he receives from a person to be notified of proposed agency action. Hayes took notes during the March 28, 2007 meeting, which were admitted into evidence, but Hayes made no note that Erwin (or anyone else) had requested notice of mining permit applications or proposed Department actions on mining permits. In the past, the Department’s Bureau of Mines and Minerals Regulation has accepted both written and oral requests for notification of proposed agency action. When such a request is made, a note is placed in the Department’s permit application file as a reminder to send the person who made the request a copy of the Notice of Intent. No note was placed in the permit application file for the Corkscrew Road Excavation. The preponderance of the evidence, taking into account the credibility of the witnesses, supports a finding that, whatever Erwin said to Hayes on March 28, 2007, his words were not effective to cause Hayes to understand that Erwin was making a formal request for notice of the Corkscrew Road Excavation that required Hayes to place a note in the permit application file and to send Erwin a copy of the Notice of Intent when it was issued. Earthmark claims that it first became aware of the Corkscrew Road Excavation when it was informed by Erwin in October 2008. Erwin testified that he first learned about the mining permit from a SFWMD employee and received a copy of the Notice of Intent on October 7, 2008. By that date, the 21-day deadline for filing a petition had already passed. From the March 2007 workshop in Fort Myers to October 2008, a period of almost 19 months, neither Erwin nor any employee or agent of Earthmark made an inquiry at the Department about proposed mining activity in Lee County. If Erwin knew about the proposed Corkscrew Road Excavation in March 2007, as indicated in his affidavits, the fact that he never inquired about the proposed mine is difficult to understand. Erwin said he made no inquiry because he trusted the Department to inform him. After being informed by Erwin about the Corkscrew Road Excavation on or about October 7, 2008, Earthmark waited 20 days to file with the Department a Request for Extension of Time to File a Petition for Formal Administrative Hearing. Earthmark requested an extension of 21 days, to November 17, 2008, which the Department granted. Earthmark then waited until November 17, 2008, to file a second request for an extension of time to file a petition. The Department denied the second request and ordered Earthmark to file its petition no later than November 25, 2008. Earthmark filed its petition on November 25, 2008, 39 days after it was informed about the mining permit.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is recommended that Earthmark’s Petition for Formal Administrative Hearing be DISMISSED as untimely. DONE AND ENTERED this 29th day of December, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2008. COPIES FURNISHED: Ronald Woodrow Hoenstine, III, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Frank E. Matthews, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314-6526 Anthony J. Cotter, Esquire Gray Robinson, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 Orlando, Florida 32802 Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Michael W. Sole, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether Respondent committed an act of violence against, or wrongfully detained, Beatrix Shadwell and, if so, what penalty should be imposed.
Findings Of Fact Respondent holds a Class "D" Security Officer license, Number D93- 16229, and a Class "G" Statewide Firearm license, Number G93- 03349. On March 2, 1996, Respondent's wife telephoned the Collier County Sheriff Office from a convenience store and asked for assistance. A deputy was dispatched to the convenience store to talk to her. Respondent's wife was distraught when the deputy arrived. She said that she was afraid that something was wrong with her husband. She told the deputy that he had shot a gun when she had left the house and she was afraid that he had shot himself. In response to questioning, Respondent's wife, who had redness around her throat and small cuts on her hands, admitted that she and her husband had had an argument. The deputy accompanied Respondent's wife to her home. He searched the house without finding Respondent, although he found several guns, including some loaded. He then questioned Respondent's wife more closely. According to the deputy, Respondent's wife admitted that her husband had physically abused her by grabbing her by the throat, handcuffing her, taping her mouth closed, and putting a gun to her head and threatening to kill her. The deputy took a sworn statement to this effect by writing down what Respondent's wife said and having her sign it. Respondent's wife testified that nothing happened except that she and her husband had an argument. She claimed that her written statement is inaccurate due to her exaggerations and difficulties with English. Respondent's wife is Panamanian and has not resided in the United States for long. She speaks and understands English reasonably well, but not perfectly. While the deputy was speaking with Respondent's wife, Respondent telephoned the house. The deputy ordered him to come home and talk to the deputy. When Respondent returned home, the deputy gave him his Miranda rights and asked him about the incident. Respondent admitted pointing an unloaded weapon at his wife. Petitioner has not proved by clear and convincing evidence all of the facts contained in the statement of Respondent's wife. Her language problems raise some doubt as to the accuracy of the now-repudiated statement. However, Respondent admitted to the deputy that he pointed an empty gun at his wife. This evidence is unrebutted by other evidence because Respondent elected not to testify, and his wife did not discredit this portion of the deputy's testimony.
Recommendation Based on the foregoing, it is RECOMMENDED that the Division of Licensing, Department of State, enter a final order revoking Respondent's Class "D" and Class "G" licenses. ENTERED on October 19, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on October 19, 1995. COPIES FURNISHED: Hon. Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Phyllis Slater, General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250 Kristi Reid Bronson Assistant General Counsel Department of State Division of Licensing The Capitol, M.S. Number 4 Tallahassee, FL 32399-0250 Steve Edmund Shadwell, pro se 1880 51st St. SW Naples, FL 33999
The Issue At issue in this proceeding is whether the decision of the respondent, Department of Administration (Department), to reject, as untimely, the proposals submitted by petitioner, Medco Containment Services, Inc. (Medco), and intervenor, Preferred Employee Pharmaceutical, Inc. (Preferred), comported with the essential requirements of law, and whether the Department should exercise its discretion to reject all proposals and extend a new request for proposals.
Findings Of Fact Background On June 14, 1991, the Department of Administration, Division of State Employees' Insurance (Department), issued Request for Proposal No. 91-15 for a mail order prescription drug program (hereafter the "RFP"). The deadline for submitting sealed proposals in response to the RFP, as amended, was established as 2:00 p.m., August 2, 1991, and the time for opening proposals was established as 2:01 p.m., August 2, 1991. Pertinent to the deadline for submitting proposals established by the RFP, the RFP provided, at General Condition 3 (DGS Form PUR 7033): PROPOSAL OPENING: Shall be public on the date, location and the time specified on the acknowledgment form. It is the proposers responsibility to assure that his proposal is delivered at the proper time and place of the proposal opening. Proposals which for any reason are not so delivered will not be considered. . . . The RFP further provided at Section III, subsection L: Proposals must be mailed or hand delivered to arrive at the time, date and address as shown in the Schedule of Events. ALL PROPOSALS WILL BE PUBLICLY OPENED ON THE TIME, DATE AND ADDRESS SHOWN IN THE SCHEDULE OF EVENTS. ANY PROPOSALS RECEIVED AFTER THIS SPECIFIED TIME AND DATE WILL BE RETURNED UNOPENED. At the time of the deadline, the Department had received a number of proposals, including that of intervenor, Revco D.S., Inc. (Revco). Thereafter, at 2:02 p.m. on the bid opening date, the Department received proposals from petitioner, Medco Containment Services, Inc. (Medco), and intervenor, Preferred Employee Pharmaceuticals, Inc. (Preferred). These late submittals were rejected by the Department as untimely. Medco and Preferred contest the propriety of the Department's rejection of their proposals as untimely, and contend that the late submission of their proposals was a minor irregularity that should be waived by the Department or, alternatively, that the Department should exercise its discretion to reject all proposals and extend a new request for proposal. Pertinent to the position advocated by Medco and Preferred, the RFP provided, at General Condition 6: AWARDS: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any irregularity or technicality in proposals received. . . . However, no persuasive proof was offered that it was in the best interest of the state to waive the late filing of such proposals or reject all proposals. 2/ The Department, contrary to the contentions of Medco and Preferred, has evidenced no intention during the course of these proceedings to waive, as a minor irregularity, the late submission of their proposals in light of the mandatory language of the RFP regarding the rejection of such late submittals, and has evidenced no intent or advanced any reason to exercise its discretion to reject all bids. The circumstances surrounding the late submittal of the Medco and Preferred proposals In response to the RFP, Medco prepared a proposal at its Montvale, New Jersey, offices. 3/ The proposal was enclosed in a box which was entrusted, along with a second box containing Medco's response to the Department's RFP No. 91-14 for a prescription drug card program, to a courier service in Montvale on the afternoon of August 1, 1991, for delivery to the Department prior to 2:00 p.m., August 2, 1991. While both boxes apparently arrived in Tallahassee, Florida, the morning of August 2, 1991, the local courier service only picked up one box, that containing Medco's proposal in response to RFP No. 91-14. Not until 1:00 p.m. that day was such oversight discovered by a second courier service, which then took possession of Medco's response to the subject RFP (RFP No. 91-15) and delivered it to the Department at 2:02 p.m. that day. Preferred, located in Davie, Florida, also prepared a response to the subject RFP. On the morning of August 2, 1991, Preferred entrusted its proposal to US Air's PDQ courier service for delivery to the Department prior to 2:00 p.m. that date. The courier service did not, however, deliver Preferred's proposal to the Department until 2:02 p.m. Following the receipt of the Medco and Preferred proposals, they were taken to the bid opening room, where the bid opening for the RFP had already commenced. At that time, only envelopes which contained "no bids" (a notice that the respondent did not wish to submit a proposal) had actually been opened. Notwithstanding, based on the untimeliness of their submittal, the Department rejected the Medco and Preferred proposals. 4/ During the course of the public opening of the proposals that had been timely submitted, the cost proposals of such potential vendors were announced and posted. However, the award process has been stopped pending resolution of this protest and all proposals that were timely submitted are currently in the custody of the Department's evaluation team. 5/ By letters of August 7, 1991, addressed to Medco and Preferred, the Department advised such parties that, under separate cover, it was returning their proposals since they had not been received until after the opening of proposals had commenced. Medco refused to accept delivery of its proposal from the United States Post Office and it was returned to the Department, where it currently remains. Regarding the integrity of such proposal, the proof demonstrates that at no time since it was originally entrusted to the courier service by Medco on August 1, 1991, until the present has such proposal been opened or in any other manner been tampered with. Regarding the Preferred proposal, the proof demonstrates that upon the return of such proposal it was opened, and remains in Preferred's possession.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which dismisses the protests of Medco and Preferred. RECOMMENDED in Tallahassee, Leon County, Florida, this 23rd day of October, 1991. WILLIAM J. KENDRICK, 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 23rd day of October, 1991.
Findings Of Fact Respondent, Norman G. Becker, Jr., is a licensed dentist having been issued license number DN 0002281 by Petitioner, Department of Professional Regulation, Board of Dentistry. He has practiced dentistry in the State since 1958. On or about September 8, 1980, Respondent furnished one William R. Northlick, 101 North Grandview, Mount Dora, Florida, a written prescription for four-ounces of dimethvl sulfoxide (DMSO). Northlick had been a patient of Respondent for approximately ten years, had complained of severe elbow pain, and inquired as to the status of DMSO and where it could be obtained. Respondent told him it was available at a local drug store and advised he could try a small amount. At an undisclosed date in 1980, Respondent was approached by a professional golfer named Gary Weintz who commlained of golfers elbow and who asked about the availability of DMSO. Respondent is active in arranging golf functions on the Professional Golf Association-(PGA) tour and presumably met Weintz, uho is a member of the PGA, in that capacity. Respondent telephoned William Kennedy, a pharmacist at Thayer's Colonial Pharmacy in Orlando, Florida, and asked whether DMSO could be legally prescribed. Kennedy replied that he believed it permissible for Becker to assist Weintz in obtaining the drug and thereafter took a prescription for the same over the telephone. Before filling the prescription, Kennedy required Weintz to sign a patient release form acknowledging that DMSO was a veterinary product and releasing anyone from liability due to its use. Other than the two occasions referred to above, Becker has not prescribed DMSO at any time. He did not charge Northlick or Weintz for his assistance nor did he provide any follow-up care or treatment to either individual. Respondent has never personally used DMSO or applied it to any other patient or friend. Respondent has been a practicing dentist in Florida since 1958, and has lived in Winter Park, Florida, for the last eighteen years. His specialty is periodontics and he was the founder and first president of the Florida Society of Periodontics. He enjoys an excellent personal and professional reputation in the community. This was attested to by Dr. Neil G. Powell, immediate past president of the Florida Dental Association. Other than the present incident, Respondent's record has been exemplary, and he has never been subject to prior disciplinary action. Although Becker wrote the prescription for Northlick on a prescription pad, he did not consider it to be a prescription item". Rather, he considered it the same as when giving customers written instructions for obtaining water piks, electric toothbrushes and other non-prescription items. For this reason, he wrote the words "use as directed" on the prescription pad in lieu of the detailed instructions typically given when writing a normal prescription.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsection 466.028(1)(z), Florida Statutes, as charged in the Administrative Complaint and that the remaining charge in paragraph 11a be dismissed. It is further RECOMMENDED that Respondent be issued a private reprimand. DONE and ENTERED this 22nd day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of February, 1982. COPIES FURNISHED: Theodore R. Gay, Esquire 130 North Monroe Street Tallahassee, Florida 32301 James F. Page, Jr., Esquire P.O. Box 3068 Orlando, Florida 32802 Salvatore A. Carpino, Esquire 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent, John B. Riley ("Respondent"), willfully violated sections 106.11(4) and 106.19(1)(d), Florida Statutes (2016), with regard to a check drawn on his campaign account in the amount of $316.00, made payable to the City of Opa-Locka, without sufficient funds on deposit to pay the $316.00 fee to run in a special election for a seat on the City of Opa-Locka City Commission; or willfully violated section 106.07(5) and willfully and knowingly violated section 106.19(1)(c), with regard to accurately reporting information on his September 12, 2016, M8 Campaign Treasurer's Report ("M8 Report"); and, if so, what civil penalties are appropriate.
Findings Of Fact Respondent is a retired, disabled veteran and currently serves part time as an elected city commissioner for the City of Opa-Locka, Florida. Respondent previously ran for public office on multiple occasions beginning in 1976. He was elected and served as a city commissioner for the City of Opa-Locka in 1982 and as mayor in 1984. This case concerns Respondent's candidacy in 2016 for Opa-Locka city commissioner. On August 11, 2016, Respondent became a candidate in a special election scheduled for November 8, 2016, to fill the un- expired term of former City Commissioner Terence Pinder, who died on May 24, 2016. The qualifying period for the November 8, 2016, special election began on August 1, 2016, and ended on Friday, August 12, 2016, at 12:00 p.m. Respondent appointed himself as treasurer of his campaign and accepted his appointment as campaign treasurer on August 10, 2016. On August 10, 2016, Respondent opened his campaign account with Wells Fargo bank. On that same date, Respondent made an initial cash contribution (loan) deposit into his campaign account in the amount of $250.00. According to the City of Opa-Locka charter, the qualifying fee for the Opa-Locka City Commission seat was $250.00. A separate state assessment fee in the amount of $66.00 was also required to be paid, for a total fee of $316.00. Respondent signed and issued Check No. 100 (dated August 9, 2016) from his Wells Fargo campaign account to the City of Opa-Locka in the total amount of $316.00, for the qualifying fee of $250.00 and state assessment fee of $66.00. At the time he wrote the check, Respondent did not know how much money was in his campaign account. Respondent had a finance committee of five volunteers collecting campaign contributions. Respondent gave the committee members deposit slips, and he instructed them to directly deposit the campaign contributions they received into the Wells Fargo bank campaign account. However, members of the committee bundled and held onto contributions, failing to deposit the contributions into the bank account. The $316.00 check was tendered by Respondent to the City of Opa-Locka on August 11, 2016. The $316.00 check was not paid from the campaign account and was returned unpaid due to insufficient funds. On August 19, 2016, Respondent made an expenditure to Wells Fargo bank in the amount of $35.00, which represented a returned check fee. As indicated in the Commission's Exhibit 18, the returned $316.00 check and $35.00 returned check fee are reflected in a Wells Fargo Bank Statement covering the period of August 10, 2016, through August 22, 2016. However, when the statement was sent by the bank to Respondent, and when Respondent received the statement, is unclear based on the evidence adduced at hearing. On Tuesday, September 6, 2016, Joanna Flores, CMC, city clerk, and supervisor of elections for the City of Opa-Locka (Respondent's filing officer), was informed by the City of Opa- Locka Finance Department that Respondent's $316.00 check was returned because of insufficient funds. On September 7, 2016, Ms. Flores sent Respondent a letter via certified mail and electronic mail informing him that he was disqualified as a candidate for city commissioner on the November 8, 2016, ballot pursuant to section 99.061(7)(a)1., Florida Statutes, because of the returned check and Respondent's failure to pay the $316.00 fee by the end of the qualifying period. After Respondent was disqualified, he had the committee members who had been holding the contribution checks return the checks to the donors. Prior to his disqualification, Respondent never made any additional deposits into his campaign account, and he never had a balance of at least $316.00. Between the submission of his $316.00 check to Ms. Flores and his disqualification, Respondent never checked his campaign account balance to determine the amount of funds available. On September 12, 2016, after he had already been disqualified, Respondent filed his M8 Report for the period of August 1, 2016, to August 31, 2016. Respondent signed the report certifying that he examined the report and that it was true, correct, and complete. On the first page of the September 12, 2016, M8 Report, included within the Commission's Exhibit 5, Respondent indicated a monetary expenditure in the amount of $316.00, the same amount as the required fee. However, Respondent did not identify the $316.00 fee on the third page of the report, which requested a list of "itemized" expenditures. Respondent testified he did not identify the $316.00 check on the list of itemized expenditures because the check had not cleared the bank. Respondent also reported that on August 10, 2016, he made a contribution (loan) to his campaign in the amount of $325.00. Respondent also reported as an itemized expenditure, that on August 20, 2016, he made an expenditure to Wells Fargo bank in the amount of $35.00 for a bank fee. On September 15, 2016, the Florida Supreme Court issued its opinion in Wright v. City of Miami Gardens, 200 So. 3d 765 (Fla. 2016). In Wright, the Supreme Court held section 99.061(7)(a)1., as amended by the Florida Legislature in 2011, facially unconstitutional. The 2011 version of section 99.061(7)(a)1., in effect at the time of Ms. Flores' decision to disqualify Respondent, provided in pertinent part: (7)(a) In order for a candidate to be qualified, the following items must be received by the filing officer by the end of the qualifying period: A properly executed check drawn upon the candidate's campaign account payable to the person or entity as prescribed by the filing officer in an amount not less than the fee required by s. 99.092, unless the candidate obtained the required number of signatures on petitions pursuant to s. 99.095. The filing fee for a special district candidate is not required to be drawn upon the candidate's campaign account. If a candidate's check is returned by the bank for any reason, the filing officer shall immediately notify the candidate and the candidate shall have until the end of qualifying to pay the fee with a cashier's check purchased from funds of the campaign account. Failure to pay the fee as provided in this subparagraph shall disqualify the candidate. § 99.061(7)(a)1., Fla. Stat. (2011) (emphasis added). Respondent was disqualified by the City of Opa-Locka based on the 2011 version of section 99.061(7)(a)1., because the $316.00 check was returned, and Respondent failed to pay the required fee before the end of the qualifying period. After striking down the aforementioned version of the statute as unconstitutional, however, the Supreme Court, in Wright, went on to revive the prior version of section 99.061(7)(a)1., in existence before the 2011 amendments. Wright, 200 So. 3d at 779. The prior version provided, in pertinent part, that if a candidate's qualifying check was returned, the candidate was allowed 48 hours after being notified of that fact by the filing officer to pay the fee by cashier's check, "the end of the qualifying period notwithstanding." § 99.061(7)(a)1., Fla. Stat. (2010); Wright, 200 So. 3d at 768. Based on the Supreme Court's decision in Wright and upon advice from the City of Opa-Locka city attorney, on September 15, 2016, Ms. Flores informed Respondent that he could resubmit a check and be allowed to qualify for the special election. On September 16, 2016, Respondent tendered to the City of Opa-Locka two personal money orders issued by Wells Fargo bank in the amount of $316.00 and $20.00, respectively. Accordingly, Ms. Flores, once again, qualified Respondent as a candidate.1/ Against this backdrop, on September 23, 2016, Anna M. Alvarado, an opponent of Respondent in the special election for the City Commissioner seat, filed a sworn complaint with the Commission, alleging that Respondent committed certain campaign finance law violations. On September 28, 2016, the City of Opa-Locka adopted Resolution 16-9249, resetting the special election that had been set for November 8, 2016, and calling for a special election to be held on November 29, 2016, to fill the unexpired term of Commissioner Pinder. Respondent filed another Campaign Treasurer's Report on October 11, 2016, for the period of September 1, 2016, through September 30, 2016. In this report, Respondent reported as an itemized expenditure the $316.00 qualifying fee. Respondent filed an amended M8 Report on October 17, 2016, for the period of August 1, 2016, through August 30, 2016. In the itemized contributions section of the amended report, Respondent deleted the August 10, 2016, $325.00 loan and added the August 10, 2016, $250.00 loan. In the itemized expenditures section of the amended report, Respondent deleted the August 20, 2016, $35.00 bank fee and added the August 19, 2016, $35.00 bank fee. Respondent knew that he was required to report all contributions received and all expenditures made by the campaign on his Campaign Treasurer's Report. Respondent's filing officer notified Respondent that he was required to certify to the correctness of each Campaign Treasurer's Report and that he bears the responsibility for the accuracy and veracity of each report. Respondent's filing officer provided him with a copy of chapter 106 and The Candidate and Campaign Treasurer's Handbook. Respondent read chapter 106. In sum, the Commission failed to demonstrate, by clear and convincing evidence, that Respondent willfully violated sections 106.11(4) and 106.19(1)(d), when he signed the $316.00 check drawn on his campaign account without sufficient funds on deposit to pay the amount of the fee. Respondent did not voluntarily and intentionally bounce the $316.00 filing fee check to the City of Opa-Locka with specific intent and bad purpose to violate or disregard the requirements of the law. Respondent credibly and persuasively testified that he had a committee of volunteers collect campaign contributions; he instructed the committee members to directly deposit the contributions into the Wells Fargo bank account; the committee members failed to deposit contributions into the account; and he was unaware of the account balance when he tendered the fee to Ms. Flores on August 11, 2016. Respondent's testimony was unrefuted. Moreover, it makes no sense that Respondent would intentionally bounce his filing fee check he tendered to Ms. Flores on the last day of the qualifying period, knowing that the consequence of such action would disqualify him from the race under the law existing at that time. The Commission also failed to demonstrate, by clear and convincing evidence, that Respondent willfully and knowingly omitted information from his September 12, 2016, M8 Campaign Treasurer's Report. The Commission contends Respondent failed to disclose the $316.00 filing fee on the report. As detailed above, that check bounced. Nevertheless, Respondent, in fact, reported the $316.00 filing fee check as an expenditure on the first page of the report, although Respondent did not identify the check on the third page of the report as an "itemized" expenditure. Respondent also filed another Campaign Treasurer's Report on October 11, 2016, for the period of September 1, 2016, through September 30, 2016. In this report, Respondent reported as an itemized expenditure the $316.00 qualifying fee. The Commission also contends that although Respondent made a contribution (loan) to his campaign account in the amount of $250.00 on August 10, 2016, he willfully and knowingly reported the amount as $325.00. The Commission further contends that although Respondent made an expenditure to Wells Fargo bank on August 19, 2016, in the amount of $35.00, he willfully and knowingly reported that the expenditure had been made on August 20, 2016. As detailed above, Respondent corrected these errors in an amended report. The Commission also failed to demonstrate, by clear and convincing evidence, that Respondent willfully certified that the campaign's September 12, 2016, M8 Report was true, correct, and complete, when it was not.
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Dr. Allen is, and has been at all times relevant to this proceeding, a licensed veterinarian in the State of Florida, having been issued license number VM 0003475 by the Department of Business and Professional Regulation. The Department is the licensing authority for persons who seek to practice veterinary medicine in Florida. The Division of Pari-Mutuel Wagering ("Division") is a subdivision of the Department of Business and Professional Regulation. It is the licensing authority for the pari-mutuel wagering industry, with the responsibility for issuing occupational licenses to persons connected with racetracks, including veterinarians. The Division does not have jursidiction to issue or discipline licenses to practice veterinary medicine in Florida. Three stewards are assigned to a racetrack to ensure that the rules of racing are followed; one is employed by the state and two by the racing association at the particular pari-mutuel facility. The stewards have the authority to impose discipline upon persons who have pari-mutuel wagering occupational licenses if they find that the rules have been violated. On December 21, 1993, Dr. Allen was working at Calder Race Course as a veterinarian, and he was fined $500.00 in a ruling of the stewards at the Tropical Park at Calder Race Course for violation of Calder Racing Association Rule 1.21(4). The fine was imposed for Dr. Allen's failure "to conduct his business in a proper manner as an equine veterinarian in regard to the keeping of his records and the filing of bills." The charge which was the subject of the stewards' ruling derived from testimony Dr. Allen gave during a stewards' hearing regarding a positive drug test on a race horse named Ski Robbery. The charges at issue in the hearing were not brought against Dr. Allen but against the trainer of Ski Robbery. However, during the course of his testimony at the hearing, Dr. Allen admitted that he had added money to a bill submitted to the trainer for services rendered to Ski Robbery. On January 31, 1994, the Division filed an Administrative Complaint against Dr. Allen's pari-mutuel wagering occupational license, alleging violation of several of the Division's rules. In its Administrative Complaint, the Division alleged, among other things, that Dr. Allen had admitted to padding his bill to an owner/trainer by administering only one of the several drugs listed on the bill and that Dr. Allen had included an entry on a Veterinary Report of Medication filed with the state which was, by his own admission, false. On June 7, 1994, Dr. Allen entered into a Consent Order with the Division to settle the case and avoid further litigation. The Division of Pari- Mutuel Wagering agreed to accept a fine of $1,000 from Dr. Allen in full resolution of the matters contained in the Administrative Complaint. The Consent Order expressly stated that Dr. Allen did not admit liability or culpability with regard to the charges alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board of Veterinary Medicine enter a Final Order finding Jonathan S. Allen guilty of violating section 474.214(1)(b), Florida Statutes (1993), imposing an administrative fine of $500.00 for this violation, and dismissing Count II of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March 1996. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March 1996.
The Issue Whether the Respondent is in violation of Sections 479.07(1)(4)(6) and 479.11(1), Florida Statutes. Whether subject signs violate state and federal laws and should be removed.
Findings Of Fact The following described sign is located in an unzoned area and violates the set back requirements being closer than 660 feet from the nearest edge of the road right-of-way: Highway: I-10 Location: 6/10 of a mile west of State Road 81 south side of I-10 Copy: Fina Gas-Diesel-Exit 1/2 Mile then Left Notice of violation regarding subject sign was properly sent by the Department of Transportation and received by the Respondent. No application was made prior the the erection of the subject sign, and the sign has been refused a permit. Mr. Curtis A. Miller, Jr., the President and major stockholder of Curt Miller Oil Company, Inc. in good faith discussed the erection of the subject sign with the councilmen and Mayor of Ponce de Leon, Florida, and proceeded to erect his sign without first obtaining a permit from the Department of Transportation. The Respondent contends that the sign is needed, that he spent a large amount of money on the erection and that he thought the sign would be in a properly zoned area at the time the erection was completed. Respondent admits that the sign at the time of the hearing is in violation of the set back requirements of Chapter 479, Florida Statutes. The Petitioner contends that it refused to permit the sign inasmuch as the set back was less than 660 feet from the nearest edge of the right-of-way of an interstate highway.
