The Issue Whether Respondent failed to preserve and maintain broker records in violation of Section 475.5015, Florida Statutes. Whether Respondent committed culpable negligence or breach of trust in any business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Chapters 120, 455, and 475, and the rule promulgated thereto. Respondent is and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued License No. 600642 in accordance with Chapter 475. The last license was issued to Respondent as a broker of Cascade Referral Service, Inc., 2439 Bee Ridge Road, Sarasota, Florida. At all times material, Respondent was the president and registered agent of Knightsbridge Park International (KPI), a corporation under the laws of Florida. At all times material, Respondent was the registered agent of an entity called Knightsbridge Vacation Homes (KVH). Between August 14, 1999, through May 21, 2001, Respondent was an active broker/officer of Knightsbridge Realty, Inc. (KRI). In the Fall of 1999, Sharon Malecki (Malecki), a resident of Wisconsin, met with Respondent's wife, Janet Wilkes, who was vice-president of KPI, to discuss engaging KPI's services in managing Malecki's property in Kissimmee, Florida. On or about February 14, 2000, as a result of this initial contact, Malecki entered into a contract with KPI to manage her property. Respondent signed the contract as president of KPI. The contract required Respondent and KPI to provide general management services to Malecki and to provide a monthly accounting showing all income and expenses for a period of one year commencing on March 1, 2000. The contract also required Malecki to keep a balance of $500 as a "management reserve balance." Respondent and KPI were required to deposit any amounts held in excess of the reserve amount in Malecki's bank account. Implicit in the monthly accounting requirement was that KPI and Respondent would collect the rental proceeds from Malecki's property and remit the proceeds to Malecki. At the same time the parties executed the contract, Malecki sent KPI a check for $500 to be kept in the escrow account for incidental maintenance and repairs of the property. Between August 10, 2000, and August 24, 2000, KPI placed a tenant by the name of "Plant" in Malecki's property and collected $1,214.29 in rent from the tenant. Between August 29, 2000, and September 12, 2000, KPI placed a tenant by the name of "Lusted" in Malecki's property and collected $1,309 in rental income funds from the tenant. The monthly accounting for August of 2000, purports to represent that KPI paid Malecki $616.42 toward the balance owed. Malecki never received this payment. Respondent failed to remit any of the above-referenced funds to Malecki. Respondent sent Malecki a letter dated November 7, 2000, in which he terminated the management contract and promised to send Malecki a final accounting "as soon as possible." On or about January 2, 2001, Respondent sent Malecki a letter, in which he acknowledged that there had been a "major accounting breakdown." In the letter, Respondent promised to make an interim payment within the next week. Subsequent to receipt of the two letters, Malecki made various attempts to obtain an accounting of the rental proceeds due. Respondent never remitted nor accounted for the funds. At all times material, Respondent failed to account for the $500 deposit he held for the benefit of Malecki. In June of 1999, a real estate broker by the name of John Young (Young) referred Isabel Benitez (Benitez) to Respondent after she bought a home through Young. On or about June 23, 1999, Benitez signed a contract with Respondent to manage her property located at 7981 Magnolia Bend Court, Kissimmee, Florida. The contract period was for one year and was renewed for an additional year in June of 2000. Although structured in the form of a lease, there was a clear understanding that KPI and Respondent were performing property management services and were obligated to pay a guaranteed amount to Benitez every month. The contract required Benitez to place a $500 deposit with Respondent and KPI as a "management deposit" to be used for incidental expenses associated with the management of the property. In approximately August of 2000, Benitez stopped receiving monthly payments from KPI. During the latter part of 2000, Benitez made various attempts to contact Respondent to determine the whereabouts of the monies due her. On or about December 14, 2000, Benitez sent Respondent a letter, in which she requested the monies due her under the contract. On or about December 15, 2000, Respondent faxed to Benitez a response to her letter, in which he accepts her termination of the contract and confesses that he had "not been involved in property management matters, let alone accounting aspects " On or about January 2, 2000, Respondent mailed to Benitez a letter informing her that there had been an "accounting breakdown," and promising to make an interim payment within a week. A review of an accounting provided to Benitez, dated February 9, 2001, indicates that Respondent owes Benitez funds in excess of $8,473. At all times material, Respondent has failed to remit the funds due or otherwise account for said funds. Around February of 2001, Thirza Neal (Neal), a resident of Washington, D.C., engaged the services of KRI to manage her property located at 114 Dornock Street, Davenport, Florida. Neal delivered a check for $1,000 to a Chris Turner (Turner), who was an agent of KRI, for the "start-up of utility costs." At some point, Neal decided not to engage the services of KRI, and on March 12, 2001, Neal sent an e-mail to Turner, in which she terminated the management contract and requested a return of her deposit. The above e-mail contains an indication that it was copied to the attention of Respondent. On or about March 26, 2001, Neal sent a certified letter to Respondent demanding a return of the deposit. On or about March 28, 2001, Neal received a letter from a gentleman by the name of B.C. Murphy, referencing her letter to Turner, denying that the check had been deposited into KRI's account and informing Neal that he had purchased KRI during the previous year. Eventually, Neal determined that the bank had inadvertently deposited the check into KVH's account. Neal made several attempts to contact Respondent personally and through his attorney and received no response. Neal was eventually able to obtain a reimbursement from the bank. Respondent neither provided assistance to Neal, nor did he remit the funds on his own accord. At some point later, Petitioner began an investigation and David Guerdan (Guerdan) was assigned to investigate the case. During the course of his investigation, Guerdan conducted interviews of the complaining witnesses and Respondent. On or about September 26, 2001, Guerdan conducted an interview of Respondent. During the course of the interview, Respondent was unable to address the specifics of the complaints. Respondent told Guerdan that he was not involved in the day-to-day operations of the business. He stated that his wife and son actually ran the business and that they had "poor accounting practices, overspent and ran out of the money." During the interview, Respondent could not be specific as to the amounts due each owner. Guerdan was unable to determine whether Respondent paid the funds due to each owner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Florida Real Estate Commission issue a final order finding Respondent guilty of violating Subsections 475.25(1)(a) and (e) and Section 475.5015, as charged in the Administrative Complaint; and Impose a fine of $1,000 and suspend Respondent's license for a period of two years and require Respondent to make restitution to his former clients and complete a 45-hour salesperson's post-licensure course, as prescribed by the Florida Real Estate Commission. DONE AND ENTERED this 22nd day of August, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 22nd day of August, 2003. COPIES FURNISHED: Christopher J. De Costa, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1772 Brian John Wilkes 55 Pacific Close Southampton, England SO143TY Nancy P. Campiglia, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Respondent, Department of Legal Affairs (Department) is an agency of the State of Florida. Petitioner, Calvin L. Fox (Fox), was employed by the Department from April 24, 1978 to June 26, 1987, and consequently accrued nine years, two months and two days of creditable state service. Immediately prior to his employment with the Department, Fox had been employed by a county government. That employment, which commenced March 17, 1976, is creditable under the state retirement system but is not considered creditable state service for other termination benefits. Upon his resignation from the Department, Fox was paid $966.31 for accumulated sick leave based on the erroneous conclusion that March 17, 1976, as opposed to April 24, 1978, was the date he commenced creditable state service. 1/ Commencing in 1985, Fox was engaged in litigation against the Department arising from his employment with the State of Florida. While the record does not disclose the specifics of that litigation, it does establish that the parties resolved their dispute through the execution of a mutual release dated August 7, 1987, and a joint stipulation of voluntary dismissal with prejudice of a Federal court action on the same date. Pertinent to this case, the joint stipulation provided: In consideration for such mutual releases and voluntary dismissal with prejudice, the parties agree to provide the consideration agreed upon in the Mutual Release attached as Exhibit 1 as full settlement of all claims alleged or which could have been alleged in this cause of action. By accepting the terms of this stipulation and the mutual release which may pertain, the parties do not admit liability or wrongdoing in this action. The parties agree to mutual releases and the payment of consideration solely to accomplish the compromise and settlement of any and all claims, demands, actions, causes of action, or suits of any kind or nature whatsoever, including all attorney fees and costs, arising from Plaintiff's employment or non- employment, by the Defendants. All parties stipulate and agree that this document, with the attached release, represents the entire agreement between them, and that the terms contained herein may not be changed or altered without the express written consent of all parties. The mutual release provided: In consideration of Employee Fox's voluntary dismissal with prejudice and his voluntary resignation, the sufficiency of which is hereby acknowledged, the State, for itself and its legal representatives and assigns, agrees to release, acquit, satisfy and forever discharge Employee Fox, his agents or servants and all heirs, legal representatives, successors or assigns, from all claims alleged or which could have been alleged in the above-styled actions and from all causes of action, claims or demands whatsoever in law or in equity as a result of any loss known or unknown at this time, or which may hereafter become known, develop or accrue, occasioned by or arising out of, directly or indirectly, any of the matters set forth or which could have been set forth in the above-referenced or any other litigation between the parties. * * * The undersigned have read the foregoing release and fully understand it and voluntarily accept it for the purpose of making a full and final compromise, adjustment and settlement of any and all claims based upon the allegations of the above-referenced litigation or any other litigation between the parties and for the express purpose of precluding forever any further or additional claims arising out of Employee Fox's employment or non-employment. In March 1988, the erroneous payment of accumulated sick leave to Fox was disclosed during a routine audit of the Department by the Auditor General. Fox has denied liability for the repayment of such monies predicated on the parties execution of the joint stipulation and mutual release discussed supra.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order which terminates any further efforts to collect the subject monies from Fox. DONE and ENTERED this 31st day of March, 1989, in Tallahassee, Leon County, Florida. 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 31st day of March, 1989.
Findings Of Fact The Department is an agency of the executive branch of the State of Florida. Mr. Crowell, prior to February, 1990, was employed as a career service employee of the Department for approximately 19 years. Mr. Crowell has worked for the State of Florida for approximately 24 years. Immediately prior to and during part of February, 1990, Mr. Crowell was employed as a Community Assistance Consultant with the Department's Community Development Block Grant Program (hereinafter referred to as the "Grant Program"). Wanda A. Jones, Planning Manager of the Grant Program, was Mr. Crowell's immediate supervisor at all times relevant to this proceeding. The Department has incorporated the provisions of Rule 22A-8.011, Florida Administrative Code, governing the use of leave, in the Department's Policies and Procedures No. 1109.01. Pursuant to Policies and Procedures No. 1109.01, Department employees are required to notify their supervisor of any illness and obtain approval of the use of annual leave. Mr. Crowell was counseled by Ms. Jones in January or February, 1989, concerning his failure to obtain authorization for use of sick leave each day that Mr. Crowell was sick. Ms. Jones also explained this requirement at two or three staff meetings. Mr. Crowell was aware of the Department's requirements concerning the use of leave. Mr. Crowell was required to travel as a part of his employment. Mr. Crowell traveled an average of two times per month. Mr. Crowell submitted an Authorization to Incur Travel Expense dated December 7, 1989 (hereinafter referred to as the "December 7, 1989, Request"), to the Department requesting authorization to travel on State business on December 13, 14 and 15, 1989. The December 7, 1989, Request was approved by the Department. Mr. Crowell indicated in the December 7, 1989, Request that "[p]ersonal car will be used for entire trip." Mr. Crowell did not own a motor vehicle during the period of time at issue in this proceeding. Mr. Crowell intended to rent an automobile, pay the rental charges himself and claim reimbursement only for mileage incurred in travel on State business. Mr. Crowell had been issued a Budget Rent-A-Car (hereinafter referred to as "Budget"), credit card by the Department on October 6, 1989. Mr. Crowell signed a Department form at the time the Budget credit card was issued acknowledging the following: that on the date above I received the above-described credit card; that I, by my signature hereon have acknowledged that I understand all policies and procedures governing the use of said card; and that I have been advised that abuse of the use of this card may result in dismissal from employment with this Department and possible prosecution under the laws of Florida. On December 13, 1989, Mr. Crowell rented an automobile from Budget. Mr. Crowell was given a Lincoln Town Car (hereinafter referred to as the "Lincoln") because of the unavailability of a smaller automobile. Mr. Crowell signed a rental agreement (hereinafter referred to as the "Rental Agreement") for the Lincoln indicating that the rental fees were to be charged to the Department through the Budget credit card issued by the Department to Mr. Crowell. Pursuant to the Rental Agreement, Mr. Crowell was to rent the Lincoln for approximately three weeks, turning it in on January 3, 1990. The Rental Agreement listed the costs of renting the Lincoln for an hour, a day, a week or a month. Mr. Crowell submitted a Voucher for Reimbursement of Traveling Expenses dated December 19, 1989, to the Department for authorized travel on December 12-15, 1989. Mr. Crowell indicated that a "[p]ersonal car was used for entire trip" and he claimed reimbursement of $107.00 for mileage driven. During early January, 1990, Mr. Crowell went to a Budget office with the intent of returning the Lincoln he had rented on December 13, 1989. Mr. Crowell was told that he owed close to $600.00. Mr. Crowell had thought that he would owe approximately $375.00 and, therefore, had not brought enough money to pay the total rental charge. Mr. Crowell left without paying the rental charge or returning the Lincoln. On December 28, 1990, Mr. Crowell submitted three separate Authorization to Incur Travel Expense forms to the Department seeking approval of travel for State business in January and February, 1990. On the three forms "pov" was noted. Mr. Crowell used "pov" as an abbreviation for "privately owned vehicle." Mr. Crowell submitted a Voucher for Reimbursement of Traveling Expenses to the Department for two authorized trips for January, 1990. Mr. Crowell indicated that a "pov was used" on one of the vouchers and he claimed reimbursement for mileage driven on both forms. Mr. Crowell used the Lincoln he had rented on December 13, 1989, for the January, 1990, trips he was reimbursed for. Sometime during January, 1990, the Tallahassee branch manager of Budget, Russell Kennedy, became concerned that Mr. Crowell was late returning the Lincoln. Therefore, Mr. Kennedy contacted Mr. Crowell and inquired about when he intended to return the Lincoln. Mr. Crowell indicated that he would return the Lincoln on February 1, 1990. On January 30, 1990, the Department's personnel director, Mark Helms, was informed by the Director of the Housing and Community Development Division, the Division in which Mr. Crowell was employed, that he had been notified that Mr. Crowell had rented the Lincoln with his Department-issued credit card and that the Lincoln had not been returned or paid for. Mr. Helms contacted Mr. Kennedy. Mr. Kennedy informed Mr. Helms that Budget considered the Department to be liable for the rental of the Lincoln. Mr. Kennedy indicated that Mr. Crowell had agreed to return the Lincoln on February 1, 1990. Mr. Crowell did not return the Lincoln on February 1, 1990. Mr. Helms spoke with Mr. Kennedy on Monday, February 5, 1990, and was informed that Mr. Crowell had not returned the Lincoln. Mr. Helms informed the Division Director. On February 5, 1990, Ms. Jones was told by the Division Director to meet with Mr. Crowell and instruct him to resolve the problem he had created by renting the Lincoln with the Department-issued Budget credit card. Ms. Jones met with Mr. Crowell at approximately 3:00 p.m., Monday, February 5, 1990. Ms. Jones informed Mr. Crowell that the Department was concerned that he had rented the Lincoln using the Budget credit card issued to him by the Department because of the Department's potential liability for the rental. Ms. Jones informed Mr. Crowell that he had to resolve the problem he had created with Budget immediately. She suggested that, although she could not tell him how to use his leave time, he should consider taking time to take care of the matter. Mr. Crowell left the meeting and returned shortly thereafter with his time sheet. Mr. Crowell requested that Ms. Jones approve annual leave from 3:30 p.m. to 5:00 p.m., February 5, 1990, and all day Tuesday, February 6, 1990. Ms. Jones approved Mr. Crowell's request. Mr. Crowell left work at approximately 3:30 p.m., February 5, 1990. Mr. Crowell did not return to work on February 6, 1990. On Wednesday, February 7, 1990, and Thursday, February 8, 1990, Mr. Crowell spoke by telephone to an employee of the Department that worked in another section and got the employee to leave a "Post-It" note on his door both days indicating "O.C./SL". Mr. Crowell did not report to work on February 7 or 8, 1990. Ms. Jones treated Mr. Crowell as having used sick leave for these two days. On February 8, 1990, Ms. Jones sent a letter to Mr. Crowell informing him that his failure to resolve the matter with Budget was a serious disciplinary matter. Ms. Jones did not attempt to telephone Mr. Crowell because he did not have a telephone. Ms. Jones did, however, telephone Cheryl Jamison, whom Ms. Jones believed to be Mr. Crowell's daughter-in-law. Ms. Jones left a message on an answering machine to have Mr. Crowell call her immediately. On Friday, February 9, 1990, and Monday, February 12, 1990, through Thursday, February 15, 1990, Mr. Crowell did not come to work, call in sick or otherwise inform the Department of the reason for his absence or obtain approval for his absence. Mr. Crowell has not returned to work at the Department since February 5, 1990. At the formal hearing Mr. Crowell testified that he did not inform Ms. Jones that he would not be at work on February 9, 1990, or thereafter because she had instructed him to not come back until he resolved the problem with Budget over the rental of the Lincoln. This testimony is inconsistent with Ms. Jones' testimony and Mr. Crowell's actions on February 5, 1990, and February 7 and 8, 1990. If Mr. Crowell had in fact been instructed not to return until he resolved the Budget problem and that he did not have to worry about following established procedures for absences, Mr. Crowell would not have gotten approval for annual leave for February 5 and 6, 1990, or informed the Department that he would not be at work on February 7 and 8, 1990, because he was sick. On February 12, 1990, Ms. Jones telephoned and spoke with Nathan Crowell, Mr. Crowell's son. Ms. Jones indicated that she needed to speak with Mr. Crowell. She was told that Mr. Crowell had been told that she was trying to contact him. Mr. Crowell received the letter sent by Ms. Jones on February 8, 1990. Mr. Crowell was also aware that Ms. Jones had called his son's telephone number attempting to get in touch with him. Mr. Crowell made no effort, however, to respond to Ms. Jones. The Division Director was informed by Ms. Jones on February 15, 1990, that Mr. Crowell had been absent for five days without authorization. The same day Mr. Helms received a memorandum from the Division Director recommending that Mr. Crowell be treated as having abandoned his employment with the Department. Mr. Helms prepared a letter for the Secretary's signature informing Mr. Crowell that the Department was treating Mr. Crowell that he had abandoned his position. At the time that the Department decided to treat Mr. Crowell as having abandoned his position, the Department was aware of efforts by Budget to contact Mr. Crowell and obtain a return of the Lincoln. Budget had sent a certified letter to Mr. Crowell on February 7, 1990, informing Mr. Crowell that criminal charges would be brought against him if he did not return the Lincoln. The return receipt was returned on February 13, 1990, signed by Mr. Crowell. Mr. Crowell still did not return the Lincoln. Mr. Kennedy had also driven by Mr. Crowell's residence several times during early February, 1990, looking for the Lincoln. The Lincoln was not found. The letter from the Secretary was sent to Mr. Crowell by certified mail, return receipt requested, on February 15, 1990. Mr. Crowell received the letter on February 22, 1990. Mr. Crowell returned the Lincoln to Budget on Sunday, February 18, 1990. Mr. Crowell did not pay for the rental of the Lincoln at that time. On February 27, 1990, Mr. Crowell telephoned Mr. Helms. This was his first contact with the Department since February 5, 1990. Mr. Crowell did not indicate that he had not abandoned his position or offer any explanation. Mr. Crowell merely asked Mr. Helms about continued insurance coverage and the payment for his accrued sick and annual leave. Mr. Crowell sent a letter to the Department of Administration dated March 6, 1990, contesting the Department's determination that he had abandoned his employment. On March 7, 1990, Mr. Crowell met with Mr. Helms and Barbara Jo Finer, a Department Senior Attorney. Mr. Crowell discussed payment of the Budget rental charges he had incurred with the payment he was to receive for his unused annual leave as a result of his termination of employment. Budget was paid the rental charges incurred by Mr. Crowell for use of the Lincoln on April 16, 1990. Budget was paid $1,734.03 of Mr. Crowell's payment from the State of Florida for his unused leave. In addition to the inconsistencies in Mr. Crowell's testimony described in Finding of Fact 29, Mr. Crowell evidenced a lack of credibility while testifying on two other matters. First, Mr. Crowell testified at the formal hearing that he did not receive a telephone call from a representative of Budget. This testimony is contrary to Mr. Crowell's testimony during his deposition taken on June 18, 1990. Secondly, Mr. Crowell testified that he was not notified that his deposition was available to read until 5:00 p.m., Thursday, July 5, 1990. This testimony was contradicted by the office manager of Accurate Stenotype Reporters, the firm which had the deposition prepared.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order concluding that Oscar Crowell abandoned his position of employment with the Department and dismissing the petition in this case with prejudice. DONE and ENTERED this 28th day of September, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 28th day of September, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Crowell's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Page I: 1st Paragraph 32. 2nd Paragraph Hereby accepted. 3rd Paragraph Not supported by the weight of the evidence. Page II: Not supported by the weight of the evidence. The first sentence is accepted. The rest of the paragraph is not supported by the weight of the evidence. The first sentence is accepted. The rest of the paragraph is not supported by the weight of the evidence. Page III: 1st paragraph Hereby accepted. Although the Department did take the position that it was not liable for the total rental charge incurred by Mr. Crowell for use of the Lincoln, Budget was taking the position that the Department was liable. Therefore, there remained a potential liability which the Department was concerned with. 2nd paragraph Not supported by the weight of the evidence. 3rd paragraph Not supported by the weight of the evidence. 4th paragraph Not supported by the weight of the evidence. 5th paragraph (including part of this paragraph which appears on page IV) Not supported by the weight of the evidence. Page IV: 1st full paragraph Not relevant to this proceeding and not supported by the weight of the evidence. 2nd paragraph The first sentence is not supported by the weight of the evidence. Even if Ms. Jones had told Mr. Crowell to resolve the problem before returning to work, it was unreasonable for Mr. Crowell to not return to work for almost two weeks without obtaining authorization for such an extended absence. The rest of the proposed findings of fact are not supported by the weight of the evidence. 3rd paragraph Not supported by the weight of the evidence. Not relevant or supported by the weight of the evidence. (including part of this paragraph which appears on page V) Not supported by the weight of the evidence. Page V: st paragraph Hereby accepted. nd paragraph The weight of the evidence failed to prove that Mr. Crowell was directed to leave and not return. The rest of this paragraph has been accepted in Finding of Fact 26. rd paragraph Not supported by the weight of the evidence. th paragraph Not supported by the weight of the evidence and argument. Page VI: 1st paragraph Not supported by the weight of the evidence. 2nd paragraph Not supported by the weight of the evidence. 3rd paragraph The first sentence is hereby accepted. The rest of the proposed findings of fact are not supported by the weight of the evidence. 4th paragraph 2. Except for the first sentence, these proposed findings of fact are not supported by the weight of the evidence. 5th paragraph This paragraph is Mr. Crowell's recommendation and not a finding of fact. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2, 27 and 32. 2 1-2. 3 4. 4 3. 5 7. 6 Hereby accepted. 7 5. 8 6. 9 Hereby accepted. 10 12, 23-24. 11 24. 26. The last four sentences are not relevant to this proceeding. The Department treated Mr. Crowell as having taken sick leave on February 7 and 8, 1990. The Department did not treat Mr. Crowell as being absent without authorization on those days. Hereby accepted. 14-15 27. 16 30. 17-18 28. 19 31. 20 Hereby accepted. 21 36. 22 32 and 34. The first two sentences are hereby accepted. The rest of this proposed finding of fact is not relevant to this proceeding. Mr. Crowell requested a formal hearing to contest the Department's decision by letter dated March 6, 1990. His failure to discuss the matter after that date, therefore, does not support a conclusion that Mr. Crowell was abandoning his employment. 38. The last sentence is not relevant to this proceeding for the same reasons the last part of proposed finding of fact 23 is not relevant. See 29. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. It is not clear what Mr. Crowell meant. See 5. Hereby accepted. Subparagraph (b) does not support a conclusion that Mr. Crowell abandoned his position. 29 12. 30 20. 31 23. 32 33. 33-34 33. 35 12, 14, 17-18 and 35. 36 Hereby accepted. 37-44 and 47 Mr. Crowell did make the statements referred to in these proposed findings of fact and they are not consistent. As the trier of fact, I do not find that Mr. Crowell's credibility was called into question by these inconsistencies. 45-46 40. COPIES FURNISHED: Oscar Crowell 1038 Preston Street Tallahassee, Florida 32304 G. Steven Pfeiffer General Counsel Barbara Jo Finer Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399
The Issue Whether Petitioner failed to secure worker’s compensation coverage for seven employees who worked from February 28, 2006, to March 3, 2006, in violation of Chapter 440, Florida Statutes, and whether, as a result, Petitioner should be assessed a penalty in the amount of $1,115.52.
Findings Of Fact Respondent, Department of Financial Services, Division of Workers’ Compensation ("the Division"), is the state agency responsible for enforcing the statutory requirement that employers provide workers' compensation coverage for their employees. Subsection 440.107, Florida Statutes (2006). Petitioner, Boudreau Concrete, Inc. (BCI), was, at all relevant times, an employer and engaged in concrete construction work in Florida. John Cipyak is a vice president with Builders Plus, a Boynton Beach Company hired to work on a Westview Office Building Site, in Port St. Lucie, Florida. Builders Plus subcontracted with BCI to perform pre-concrete form carpentry work at the site, including construction of the foundation and panels into which the concrete slab would be poured. Near the end of February 2006, Mr. Cipyak told Mr. Boudreau that the Westview project was falling behind schedule and that BCI needed more laborers on the job. Mr. Cipyak testified that Mr. Boudreau specifically agreed that his company, BCI, would hire sufficient additional manpower and would not use subcontractors. That agreement was not reduced to writing. In response to the need for additional laborers, the Division claims that BCI violated the applicable statutes and the insurance code by hiring seven carpenters, who worked at the Westview site from February 27, 2006, through March 3, 2006, as employees of BCI without providing workers' compensation insurance coverage for them. The seven carpenters are Dimas Zelaya, Francisco Figueroa, Gerardo Nava, Hector Sevilla, Jeremias Martinez, Carlos Quevedo and Jesse Hernandez. BCI claims that the seven carpenters were employees of a subcontractor, J. A. J. Construction Company, owned by Jose Alfredo Jiminez, and that Mr. Jiminez, BCI believed, carried the required workers' compensation insurance. The arrangements to have the additional workers on the project were made during a telephone call between Mr. Boudreau, Mr. Jiminez and Mr. Zelaya, who got the other six men to come with him and once they reported to the job, served as a translator for them. On March 2, 2006, Lynn Cornelius, a manager with Woodland Construction Company, Inc. (“Woodland”), sent an e-mail to Thomas Puglis, of the Division, listing the names of seven former employees of Woodland who had left Woodland’s employment, on February 24, 2006, to work for a subcontractor on another project. He named the same seven people who started work on the Westview site on the following Monday, February 27, 2006. On March 3, 2006, Mr. Puglis and Lieutenant Vance Akins, both investigators for the Division, visited the construction site where the seven former Woodland employees were working. With the assistance of an interpreter over the telephone, because no Spanish speaker was available for the site visit, the investigators instructed the seven workers to fill out Spanish language questionnaires for public works contractor licensing, provided by St. Lucie County. The investigators also tape recorded a statement from the only one of the seven men who spoke some English, Dimas Zelaya, during which, at best, he could be understood to have recognized and identified a picture of Mr. Boudreau. Lieutenant Akins telephoned another Division investigator Robert Barnes from the work site. Mr. Barnes testified that he telephoned someone who identified himself as Todd Freeman, a BCI employee, from whom he got the name of William Yocum of First Financial Employee Leasing, Inc., as the leasing company that provided workers' compensation coverage for BCI. Although he had no personal knowledge about where the seven carpenters were working from February 27 through March 3, 2006, Mr. Yocum noted that they were not covered on the policy for BCI and that the failure of BCI to report the names of all of its employees to the leasing company would violate the agreement between those two companies. Mr. Boudreau, on behalf of BCI, wrote a check dated March 10, 2006, to J. A. J. Construction Services, Inc., for $3860.00, with the notation "7 men - 2/27-3/3." BCI had no evidence of a written agreement with J. A. J. and the compensation to J. A. J. was solely for the wages earned by the carpenters. The Division's case is essentially based on the inference, without corroborating evidence, that Mr. Boudreau fabricated the subcontractor relationship and furthered that deception by writing the check after he knew BCI was being investigated for failure to secure workers’ compensation insurance. The Division based its assertion on the fact that Mr. Boudreau could not name the subcontractor during his first interviews by Mr. Barnes, saying that he was dealing with the subcontractor through Mr. Zelaya. The Division also presented evidence to demonstrate that the nature of the working relationship between BCI and the seven men was that of employer and employee, not independent contractors. That evidence was inconclusive. Although Mr. Boudreau kept their time sheets and personally supervised the work at the job site everyday from Monday through Thursday, with the assistance of Mr. Zelaya, as a translator, the carpenters brought their own tools and used materials and supplies provided by Builders Plus. The argument that J. A. J.'s role was administrative in nature is not convincing, since the same can be said of the leasing company, with which the Division asserted BCI should have obtained coverage. Mr. Barnes testified that he reviewed records of J. A. J., that someone from his office questioned Mr. Jiminez, and that they determined that the seven carpenters were not covered by J. A. J.'s workers' compensation policy during the time that they were working for Mr. Boudreau, based on some sworn statement made by Mr. Jiminez to the investigators. Mr. Jiminez did not appear as a witness in this case. The Division's investigator conceded that the Division did not determine whether or not the seven workers should have been on the J. A. J. policy. Mr. Zelaya testified that he spoke to Mr. Jiminez about getting more pay and understood that he would ". . . work with the license and insurance of Jose Jiminez. Mr. Boudreau was going to pay Jose and Jose was to pay me." Further, he stated that "Jose gets the workers, Jose makes a dollar off of the pay that we make. Mr. Boudreau was to give Jose a check, and Jose was to pay us, but Jose never paid us." Before he paid Mr. Jiminez, Mr. Boudreau requested and received from J. A. J. a workers' compensation policy, but that certificate of insurance was dated March 6, 2006, and did not appear to cover BCI for the prior week. At the same time, Mr. Boudreau added some of the workers to his own lease company policy, in an apparent attempt to continue the job, but was unable to do so after the stop work order was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order rescinding the Stop Work Order and Order of Penalty Assessment, Amended Order of Penalty Assessment, and Second Amended Order of Penalty Assessment. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 8th day of June, 2007. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Mary Morris, Esquire Morris & Morris, P.A. 224 Datura Street, Suite 300 West Palm Beach, Florida 33401 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact In April, 1963, Petitioner, Carl E. R. Nelson, soon to graduate from Florida Southern College with a degree in citrus, wrote to representatives of the State of Florida, Department of Agriculture, with questions regarding his possible employment by the agency upon his graduation. In his reply letter to Petitioner, dated April 24, 1963, H. L. Jones, Assistant Director, Division of Plant Industry, inter alia, outlined the benefits package offered to state employees which convinced Petitioner to apply for a position with the state rather than work for the federal government, which reportedly paid 40% more than the state for similar positions. After an interview with Mr. Jones and the Division Director, Mr. Nelson was offered a regularly established position with the Division of Plant Industry in its Miami office at a salary of $405.00 per month. The letter of notification to him indicated his first six months employment would be on a "probationary" basis. Petitioner was sent an "info" copy of a June 26, 1963 memo from the Department of Agriculture's Personnel Director to the Director of Petitioner's Division, reflecting he was to be paid out of "OPS" funds. However, neither the Division Director's letter nor that of the Secretary of Agriculture, advising him of his hiring, made any mention of the source of his pay or indicated he would be other than a regular probationary employee. Petitioner believed that from the day he began work, on July 1, 1963, he was earning credit toward retirement. In February, 1968, unsolicited by Petitioner, the Department of Agriculture sent him a notice of Continuous and Creditable Service calculation which reflected his beginning employment date as July 1, 1963, and that as of December 31, 1967, he had accumulated four years, 6 months of total continuous and creditable service. Computing back reveals service began on July 1, 1963. On October 31, 1973, a memo from one Department of Agriculture office to another, with an information copy to Petitioner, reflected he had completed ten years service in July, 1973, and an August 10, 1972 memo to Mr. Nelson, in relation to his military service, reflected the Department's calculation that he would complete ten years service in July, 1973. Twenty-two Personnel Action Request Forms of the Department of Agriculture, relating to the Petitioner, and dated from September 23, 1970 to August 14, 1985, all reflect Petitioner's initial service date as July 1, 1963. Ten employee leave statements pertaining to Petitioner, covering the period November 13, 1987 through March 31, 1988 also reflect his continuous creditable service date as July 1, 1963. In early 1975, Petitioner requested of the Department of Agriculture an audit of his service time. This request was forwarded to the Division of Retirement. Mrs. Ruth Sansom, Bureau Chief of Retirement Calculations did the check and determined that as of the end of March, 1975, Petitioner had 11.67 years creditable service. This equates to 11 2/3 years or 11 years, 8 months. Mrs. Sansom's computation was based in part on a November 9, 1973 record check of Department of Agriculture payroll tapes which showed that for July, 1963, Petitioner was paid out of OPS funds. Computing back, 11 years and 8 months prior to March 31, 1975, is August 1, 1963. Consequently, as early as May 1, 1975, Petitioner was advised he was not given credit for the month of July, 1963, but it is obvious he did not recognize the situation as it existed. In October, 1987, Petitioner was again advised by the Division of Retirement, as a response to his inquiry regarding credit for his military service, that as of the end of July, 1987, he had accumulated 24 years service indicating his creditable service started on August 1, 1963, not July 1, 1963. If the latter had been the case, his record would show 24 years, 1 month. It was this last credit report which prompted Petitioner's request for hearing. The evidence of record shows clearly that Petitioner began work with the State of Florida on July 1, 1963 as a probationary but not temporary employee and served continuously since that time. He was paid for the month of July, 1963, out of OPS funds. The June 26, 1963 memo from the Personnel Director to Petitioner's employer indicates he was to be on probationary status for six months and paid out of OPS funds. By implication that could mean he would not be a regular employee during the six months probationary status, but the fact that the source of payroll funds for Petitioner was changed to regular funds after one month would also imply he was supposed to be a regular employee from the inception of his employment, and this is supported by the recruiting correspondence which referred to the many benefits which inure only to regular employees. Consequently, it is found that Petitioner was intended to be a regular employee from the inception of his employment, but he was paid out of OPS funds for the month of July, 1963.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that Petitioner, Carl E. R. Nelson be granted credit toward state retirement for the month of July, 1963. Recommended in Tallahassee, Florida, this 7th day of May, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5541 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner 1. Accepted and incorporated herein. 2 - 3. Accepted as to the fact that Respondent was offered employment. Rejected as to the fact that the "offer" of retirement was the motivating factor in Petitioner's choice to accept state rather than federal employment. 4. Accepted and incorporated herein. 5 - 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein except for the finding that Petitioner was never notified he had been paid one month out of OPS funds. However, the method of notification was erroneous in content and did not serve to bring this change to his attention. Accepted and incorporated herein. For the Respondent 1 - 2. Accepted and incorporated herein. Accepted but irrelevant. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. COPIES FURNISHED: E. G. Couse, Esquire Grace and Couse, P.A. Post Office Drawer 1647 Ft. Myers, Florida 33902 William A. Frieder, Esquire Senior Attorney Office of the General Counsel Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue Whether the petitioner's application for renewal of his community association manager's license should be granted or denied.
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: Mr. Richter is a licensed community association manager, having been issued license number 1,439 by the Department in 1988. Mr. Richter's community association manager's license was renewed by the Department in 1990 and 1992. Mr. Richter is also licensed by the Department of Business and Professional Regulation as a real estate broker and as a Certified Public Accountant. The Department of Business and Professional Regulation, through its Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency charged with the administration of chapter 468, part VIII, Florida Statutes, and is specifically responsible for reviewing and approving applications for renewal of community association manager's licenses. The Bureau of Condominiums carries out this function. Community association manager's license renewal applications for the 1994 renewal year were required to be postmarked no later than September 30, 1994. On or about September 15, 1994, Mr. Richter mailed his completed 1994 license renewal application to the Department, together with a check made payable to the Department in the amount of $50.00, the required license renewal fee. In late November 1994, Mr. Richter telephoned the Department and inquired about the status of his renewal application. He spoke with Donald Sapp, an employee of the Bureau of Condominiums, who told him that the Department was behind in processing renewal applications for community association manager's licenses. The Department completed processing applications for the 1994 renewal period in mid-January 1995. On February 17, 1995, Mr. Richter telephoned the Bureau of Condominiums and advised Mr. Sapp that he had not received his 1994 license and that the check he wrote for the fee had not cleared his bank. Mr. Sapp stated that he would look into the matter and call Mr. Richter back. On February 21, 1995, Mr. Sapp telephoned Mr. Richter and advised him that the Department had no record of having received his 1994 license renewal application and check. Mr. Sapp asked Mr. Richter to send the Department a copy of his check register for the period including September 15, 1994, a copy of his bank statements for September, October, and November 1994, and a copy of a stop payment order on the check he wrote for the license renewal fee. On February 22, 1995, Mr. Richter sent Mr. Sapp, via Airborne Express, a copy of his check register and of the requested bank statements. He refused to place a stop payment order on his check, however. On March 10, 1995, Mr. Richter sent the Department a replacement check in the amount of $50.00 for the 1994 license renewal application fee. This check was received and, in accordance with standard procedure, deposited by the Department. Mr. Richter completed all of the continuing education hours required for license renewal prior to September 30, 1994. Mr. Richter has proven by a preponderance of the evidence that he timely mailed his 1994 license renewal application and that he should be granted a community association manager's license for 1994-1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order finding that Michael Richter's 1994 community association manager's license renewal application was postmarked prior to the September 30, 1994, deadline and granting Mr. Richter's application for a renewal license for 1994-1996. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of April 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 2nd day of April 1996.
The Issue The issue in this case is whether the Florida Commission on Human Relations should grant the Petition for Relief alleging that the Respondent discriminated against the Petitioner on the basis of his marital status, in violation of Section 760.10, Fla. Stat. (1995).
Findings Of Fact The Respondent, Shaker Lakes Apartments Company d/b/a Seasons of Tampa, Limited, is a property management company whose principal place of business is in Cuyahoga County, Ohio. The Respondent owns real property or conducts business in Florida and has 15 or more employees. The Petitioner, Jerry Dolinger, was hired by the Respondent on or about August 14, 1989, as a maintenance supervisor at a starting pay of $12,000 a year. On or about May 1, 1991, the Petitioner was promoted to district manager at an annual salary of $20,541.57 ($395.03 per week), plus hospitalization benefits and the use of a company car. By the end of 1992, the Petitioner was demoted to maintenance supervisor, but his salary and benefits remained the same. The Petitioner's wife, Karen Dolinger, also was employed by the Respondent, as property manager for Seasons of Tampa, Limited. On or about April 1, 1993, the Petitioner's wife resigned due to disputes with and conduct of the Respondent's vice-president of operations, Jacqueline McCullough. Upon her resignation, she distributed a letter to all residents of the apartment complex giving the residents information concerning the change in property management and the names, addresses and telephone numbers of the Respondent's management personnel in Ohio. The Respondent did not wish to have the names, addresses and telephone numbers of the Respondent's management personnel in Ohio given to the tenants at Seasons of Tampa. The Respondent wished to have those individuals remain unknown to the tenants so all tenant complaints and similar issues would have to be resolved locally through the property manager and district manager. On or about April 2, 1993, Jacquelyn McCullough telephoned the Petitioner and asked whether he had any knowledge of his wife's letter to the tenants. The Petitioner denied any knowledge and in fact had no such knowledge. She asked if the Petitioner also intended to resign, and the Petitioner answered that he did not. Later on April 2, 1993, the Respondent terminated the Petitioner's employment. One of the reasons given for the termination--an alleged temporary staff reduction--was a pretext. (Within days of the Petitioner's termination, the Respondent hired someone to take the Petitioner's place as maintenance supervisor.) The other reason--alleged insubordination and disloyalty--was based on the Respondent's belief that the Petitioner knew about and participated in the letter to the tenants. But the only basis for this belief was the Petitioner's marital status. Since there was no evidence to support the Respondent's belief, the basis of the Petitioner's termination was his marital status. The Petitioner was unable to find reemployment until approximately June 11, 1993. However, his new employment was at a salary of only $17,000 a year, a reduction of $68.11 a week. The Petitioner suffered this reduction in salary until November 5, 1993, when he obtain employment at a salary higher than what he earned with the Respondent, together with hospitalization benefits and the use of a company car, for a total of salary loss during this period of $1,430.31. The Petitioner's loss of use of the Respondent's company car from April 2 through November 5, 1993, cost him monetary damages of $295 a month for replacement transportation, or approximately $2,100. (The Affidavit of Petitioner's damages incorrectly multiplies the monthly expense by 31 weeks, resulting in an incorrect alleged total loss of $9,145.) In order to redeem the second mortgage on the Petitioner's home, which went into default as a result of the loss of the Petitioner's salary, the Petitioner and his wife had to refinance, at a cost of $2,033.02. The Petitioner also claims damages due to the loss of life and health and hospitalization insurance from April 2 through November 5, 1993. But the Petitioner's testimony was that he could not afford to replace those insurance coverages, and there was not evidence that he suffered any out-of-pocket uninsured expenses that would have been covered by them. The Petitioner also claims damages for the loss of $3,775 worth of personal items sold to pay necessary living expenses for the period from April 2 through November 5, 1993. But those sums already are accounted for in loss of salary and would result in a double recovery if added to the loss of salary. Based on the Affidavit of Plaintiff's Attorney's Fees, a reasonable attorney fee in this case is $6,492.50. Based on the Certificate of Costs, reasonable costs to be taxed to the Respondent in this case is $178.42.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order: finding the Respondent guilty of illegal discrimination on the basis of the Petitioner's marital status; and (2) requiring that the Respondent pay the Petitioner a total of $9,692.03, together with legal interest from November 5, 1993, plus $6,492.50 as a reasonable attorney fee, together with legal interest from May 1, 1996, as affirmative relief from the effects of the illegal practice. DONE and ENTERED this 6th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5381 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the Petitioner's proposed findings of fact: Conclusion of law. 2.-5. Accepted and incorporated to the extent not conclusion of law, subordinate or unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. Annual salary rejected as inconsistent with the Affidavit of Petitioner's Damages; otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted but subordinate and unnecessary. 11.-15. Accepted and incorporated. 16. Accepted but subordinate and unnecessary. 17.-23. Accepted and incorporated to the extent not subordinate or unnecessary. Amount of loss rejected as not proven by the evidence; "mental anguish, loss of dignity, and other intangible injuries" rejected as not relevant in this proceeding; otherwise, accepted and incorporated. Accepted and incorporated. COPIES FURNISHED: David E. Davis, Esquire 620 E. Twiggs Street, Suite 305 Tampa, Florida 33602-3929 Jacqueline McCullough Vice President Shaker Lakes Apartments Company 1422 Euclid Avenue, Suite 1146 Cleveland, Ohio 44115-1951 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Petitioner has forfeited her rights and benefits under the Florida Retirement System (“FRS”) pursuant to section 112.3173, Florida Statutes (2017).1/
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the stipulation of the parties in the Joint Response to Pre-hearing Order, the following Findings of Fact are made: The FRS is a public retirement system as defined by Florida law. The Florida Division of Retirement is charged with managing, governing, and administering the FRS on behalf of the Florida Department of Management Services. For over 21 years, Ms. Painter was the head softball coach for Gulf Coast, an FRS-participating employer. By virtue of her employment, Ms. Painter was enrolled in the FRS. On May 5, 2014, the Bay County Sheriff’s Office commenced an investigation into allegations that Ms. Painter had misappropriated cash that had been provided to her to pay for players’ meals during a softball tournament in Las Vegas and that Ms. Painter was collecting and keeping rent money from softball players who were on full room-and-board scholarships and had their rent paid by the college. In the summer of 2014, Ms. Painter was charged by information with one count of grand theft, a third-degree felony. Gulf Coast did not terminate Ms. Painter’s employment. Gulf Coast allowed Ms. Painter’s employment contract to expire on June 20, 2014. On January 9, 2015, the information was amended to include seven counts of grand theft, each constituting a third degree felony under section 812.014(1) and (2)(c), Florida Statutes (2014). Though some counts dealt with other allegations, for the purposes of this proceeding, the essential charges involved the meal money and the rental payments. Ms. Painter ultimately entered a plea of nolo contendere to one count of grand theft. During the hearing before the court, the state attorney specified that Ms. Painter was pleading to Count IV, which alleged theft of the meal money. The contemporaneous notes taken by the court clerk state that Ms. Painter was pleading to “Count 4.” The order of probation states that she pled to “Count 4.” However, the actual written “Plea, Waiver and Consent” signed by Ms. Painter and the attorneys shows the numeral “1” under the heading, “Count.” It is unclear from the document whether Ms. Painter was pleading nolo contendere to one count of grand theft, or to Count I of the information. Count I involved the allegation that Ms. Painter had improperly collected rent from one of the scholarship players, Megan Griffith. At the circuit court hearing, no mention was made of the specific factual allegations in the count to which Ms. Painter was pleading. The court made no findings of fact. Ms. Painter was not required to allocute to any facts.2/ Upon entry of the nolo contendere plea, the court withheld adjudication. Ms. Painter was given two years’ probation and ordered to make restitution of $4,400, perform 100 hours of community service, and was directed to have no contact with Gulf Coast or her former players. The undersigned finds that the understanding of all parties, including the court, was that Ms. Painter was pleading nolo contendere to Count IV of the information. The amount of restitution ordered is roughly consistent with the amount of meal money that was at issue in Count IV. The numeral “1” on the plea document is either a misprint or was intended to convey that Ms. Painter was pleading to a single count of grand theft. At the final hearing, Ms. Painter testified that she was given $4,752 in cash to pay for meals during the Las Vegas trip, which began on January 31, 2014, and ended on February 4, 2014. Ms. Painter testified that if the girls were splitting up to eat at different restaurants, she would dole out cash to each group. If everyone was eating at the same restaurant, all the girls would place their orders, and Ms. Painter would pay the entire tab. Ms. Painter testified that this had been her practice on team trips for some time. She stated that she used to give each girl her portion of the total meal money at the start of a trip. However, some girls would inevitably spend all of their money before the end of the trip and Ms. Painter would have to pay for their meals out of her own pocket. By doling out the money one meal at a time, Ms. Painter ensured that it would last the entire five days. Ms. Painter denied keeping any of the meal money for herself. She admitted that she did not keep receipts from each meal she purchased, but testified that meal receipts were not required on multiple day trips, such as the Las Vegas tournament. Nothing she did on this trip was different than her usual practice. At the end of the trip, she returned $132 in unspent meal money to the athletic department. Ms. Painter testified that her nolo contendere plea was made for financial and emotional reasons. The case had dragged on for 17 months. The ordeal was humiliating and exhausting. She stated that accepting the plea deal was the hardest decision she had ever made, but that she did not in fact take any of the meal money from her softball players. The Department offered no admissible direct evidence to contradict Ms. Painter’s version of events. The undersigned did not admit the deposition of Gulf Coast Athletic Director Gregg Wolfe because it was a discovery deposition taken in Ms. Painter’s criminal case. The undersigned did admit the Bay County Sheriff’s Office case file on Ms. Painter’s criminal case, which included witness interviews and Ms. Painter’s bank statements. However, the case file was admitted on the understanding that it was a hearsay document that could only be used to supplement or explain other evidence. In the absence of competent non-hearsay evidence, or any showing by the Department that elements of the case file would be admissible over objection in a civil trial, the case file was of no utility. The Department’s only witness aside from Ms. Painter was its employee Allison Olson, the benefits administrator in the Bureau of Retirement Calculations. Ms. Olson’s knowledge of the case was gleaned purely through her review of the paper record, including the case file and the transcripts of depositions taken in the criminal proceeding. She had no first- hand knowledge of any of the events in question. Ms. Painter offered the deposition testimony of Joanne Booker, a member of Ms. Painter’s softball team at the time of the Las Vegas trip and currently an assistant basketball coach for Gulf Coast. In most essentials, Ms. Booker corroborated Ms. Painter’s testimony. Ms. Booker did not recall many particulars as to how the meals were purchased, but testified that at each meal the players were either given cash by Ms. Painter or had their meals paid for by Ms. Painter. Ms. Booker recalled no problems as to meals and recalled no one complaining about food on the Las Vegas trip. Even if it were found that Ms. Painter’s plea was actually entered as to Count I, the findings would be much the same. Ms. Painter testified that the “rent” she was accused of collecting and pocketing from the scholarship players was actually a voluntary contribution toward the rent of the non- scholarship players, to enable the entire team to live together in the same apartment complex. Ms. Painter testified that any money she collected was turned over to the lessor of the apartments. Again, the Department offered no admissible direct evidence to contradict Ms. Painter’s version of events. Ms. Painter’s testimony was at least credible enough to be accepted in the absence of any competent non-hearsay evidence to the contrary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order restoring to Susan Painter her rights and benefits under the Florida Retirement System and providing for payment to her of any past due benefits, together with interest at the statutory rate. DONE AND ENTERED this 25th day of September, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 25th day of September, 2018.
The Issue Whether the Respondent, Christina M. Restauri, committed the violations alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of regulating licensed community association managers pursuant to Florida law. At all times material to the allegations of this case, the Respondent was licensed as a community association manager, license number CAM 0019553. In May 1998, the Respondent became the community association manager for the Association. As such, the Respondent had duties and responsibilities in connection with the day-to-day management of the Association's business. In exchange for the performance of her manager duties, the Association paid the Respondent a salary, provided her with a condominium unit for her residence, paid her utilities, and covered her local telephone service. The Respondent's managerial duties included all office management for the Association, including the collection of fees owed to the Association, the payment of monies owed to vendors by the Association, and the accounting associated with payroll for salaries owed to employees of the Association. The Respondent and the Association entered into a written management agreement that outlined the terms of her employment. The agreement (Petitioner's Exhibit 1) did not require the Association to pay for the Respondent's family health insurance. Additionally, the agreement did not provide for paid sick leave in excess of four days per year. In connection with her responsibilities for payroll, the Respondent controlled the amount of checks made payable to herself for salary owed during the course of her employment. This authority also allowed her to control the amount of monies withheld from her salary to cover her family medical insurance and for the monies payable for federal withholding taxes and social security. On at least two occasions, the Respondent altered her withholding such that no monies were withheld for federal taxes. The Respondent failed or refused to produce a W-4 form that would have supported the change in withholding. Moreover, the Respondent did not produce a W-2 form that would have supported, after-the-fact, that the withholding forms had been modified to support the altered withholding amount. The Respondent failed or refused to produce documentation to establish that she repaid the Association for family medical benefits she received. Initially, the amount to cover the family health benefit was reportedly withheld from the Respondent's paycheck. The adequacy of the withheld amount came into question. Under the terms of her employment, the Respondent was to remit the monthly family health premium to the Association. She did not do so. In fact, copies of checks that were purportedly offered in support of her claim that she had made the payments were never deposited into the Association's account. When the Respondent was challenged as to the amounts owed for health premiums and the matter was to be further investigated, she tendered her resignation. She never produced any of the financial records requested to document any of the matters contested in this proceeding. In addition to the foregoing payroll discrepancies, the Respondent caused herself to be overpaid $125.00 for sick leave. On or about October 12, 2000, the Respondent took $700.00 from the Association's petty cash and loaned it to Sandy Schwenn. Ms. Schwenn was employed by the Association as a secretary and had agreed to repay the funds. The loan was never repaid. The Respondent was not authorized to loan monies from the Association's petty cash fund and admitted the error during a board of directors' meeting on November 15, 2000. Whether the Respondent made good on her promise to repay the loan herself is unknown. Clearly, at hearing the Respondent did not make such representation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a Final Order against the Respondent that imposes an administrative fine in the amount of $2500.00, and revokes her license as a community association manager. DONE AND ENTERED this 13th day of November 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November 2003. COPIES FURNISHED: Julie Malone, Executive Director Regulatory Council of Community Association of Managers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Christina Marie Restauri 4640 Northwest 30th Street Coconut Creek, Florida 33063 Jennifer Westermann Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202
