The Issue The issue in this case is whether Petitioner is entitled to an exemption from sales and use tax as a religious or charitable organization.
Findings Of Fact By Application for Consumer Certificate of Exemption dated March 17, 1992, Petitioner requested a sales tax exemption as a religious organization. The application indicates that Petitioner was incorporated on February 18, 1992. At all times, the president of Petitioner has been Reverend Robert M. Rinaldi. By letter dated April 16, 1992, Respondent requested that Petitioner supply information concerning its primary purpose, including a list of all activities or services and to whom they are generally offered. The letter also requested, among other things, statements of receipts and expenditures and a copy of the letter determining that Petitioner is exempt from federal income tax. Petitioner submitted to Respondent evidence of 12 expenditures during the quarter ending March 31, 1992. The expenditures and their descriptions are as follows: Morrisons-- dinner business; Holiday Inn in Tampa--lodging for quarterly convention; Maas Brother in Naples--attire; Marshalls-- personal; Martha's Health Food Shop--personal; Things Remembered--card case/business cards; RJ Cafe Tropical--lunch interview; Beach Works Marco Island--attire; annual membership fee for vice president's American Express card; Las Vegas Discount golf and tennis in Naples--personal; Eckerd's Vision Works--medical eyeglasses; Quality Inn Golf Country Club in Naples--lodging during business travel; Avon Fashions/Hampton-- personal; Del Wright in Sarasota--automobile expenses and travel; JC Penney--personal; Amador's Restaurant in Naples-- dinner/lunch; Avon Fashions/Hampton--personal; annual membership fee for treasurer's American Express card; and Mobil Oil--business travel. Petitioner produced other evidence of similar types of expenditures, such as for fitness center fees, car insurance, car service, car payments, utilities, and rent. Nothing in the record links these expenditures to religious or charitable activities. There were expenditures for printing religious tracts and self- improvement educational materials, but they do not appear to be a substantial part of the total expenditures of Petitioner during the time in question. After receiving these materials, a representative of Respondent telephoned Reverend Rinaldi and stated that Petitioner would have to submit additional documentation of its income and expenses and formal affiliation with prison chapels where Petitioner reportedly conducted outreach programs. Respondent's representative also asked for evidence of Reverend Rinaldi's counselling credentials. Petitioner next submitted a copy of a letter from the Department of Treasury determining that Petitioner was exempt from federal income tax. Petitioner also submitted a budget for the year ending 1992 and a proposed budget for the year ending 1993. However, the budgets did not document a charitable purpose. The budget reveals that the largest disbursement was $4200, which was rent for an office and living quarters. The largest single receipt was $1764.27, which was a contribution from the incorporator, who was Rev. Rinaldi. There were no charitable receipts, such as from contributions from members, the public, or anonymous sources. On November 10, 1992, Respondent sent a letter to Petitioner requesting additional information, including statements of the primary purpose of the organization and of receipts and expenditures. The request asked for a description or explanation for each charity-related program expenditure. On November 18, 1992, Petitioner submitted a second Application for Consumer's Certificate of Exemption. The information was essentially unchanged from the first application. Rev. Rinaldi also sent Respondent a religious flyer. On February 10, 1993, Petitioner submitted a third Application for Consumer's Certificate of Exemption. The material was essentially unchanged from the preceding two applications. On March 30, 1993, one of Respondent's representatives sent a letter to Petitioner stating that Petitioner does not meet the criteria for exemption from sales tax. In response, Petitioner sent a letter to Respondent received April 8, 1993, requesting reconsideration of the denial. On May 4, 1993, Respondent sent Petitioner a letter stating that, as indicated during an earlier telephone conversation, Respondent had not yet received sufficient documentation to justify a sales tax exemption. Following up on Rev. Rinaldi's opinion that Petitioner qualified as a charitable organization, the letter suggests that he submit materials describing each charitable service or activity, the types of persons receiving such services, the frequency that the services are offered, the demonstrated benefit provided by Petitioner to disadvantaged persons, the fees charged by Petitioner, and the availability of Petitioner's services at the same or less cost elsewhere. The letter also asks for a statement of income and expenses. In response, Petitioner filed a fourth Application for Consumer's Certificate of Exemption on November 10, 1993. Rev. Rinaldi explained Petitioner's activities as informing people of the truth and the second coming of Jesus Christ and stopping addictions to drugs and alcohol. The enclosed materials included a church telephone number. The materials state that services are available 24 hours a day for no fees and are provided solely for the spiritual preparation of humanity. The materials also indicate several addresses at which religious activities are conducted. Upon investigation, Respondent learned that Petitioner's telephone number had been disconnected, the street address is Rev. Rinaldi's apartment, and the addresses at which religious activities are conducted are locations of Alcoholic Anonymous, from which Rev. Rinaldi and his church had been barred as public disturbances. Checking with the post office, the investigator learned that all mail for Rev. Rinaldi and Petitioner is being forwarded to an address in New York. Respondent asked for more information, and Petitioner supplied information no different than that previously supplied. By letter dated April 26, 1994, Respondent informed Petitioner that its application was denied. Following another exchange of correspondence, Respondent sent Petitioner a Notice of Intent to Deny dated June 17, 1994. The Notice of Intent to Deny states that Respondent determined that: [Petitioner] travels from church to church and does not assemble regularly at a particular established location. [Petitioner] conducts services for short periods of time at numerous temporary locations. [Respondent] has reviewed your application and supporting documents and has determined that the primary purpose of your organization fails to meet the qualifications for sales tax exemption authorized by Section 212.08(7), Florida Statutes. By letter dated June 24, 1994, Petitioner requested a formal hearing on its application for sales tax exemption. Petitioner does not regularly conduct services. Petitioner does not engage in other religious activities nor does Petitioner provide services typically associated with a church. Petitioner has no established physical place for worship. Petitioner has generalized plans to construct one or more places for worship. However, these plans are post-apocalyptic in nature and thus do not assure the commencement of construction in the immediate future.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Revenue enter a final order denying Petitioner's application for an exemption certificate from sales and use tax. ENTERED on December 20, 1994, 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 December 20, 1994. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Rev. Robert Rinaldi P.O. Box 1081 167 N. Collier Blvd. J-3 Marco Island, FL 33937-1081 Attorney Lisa M. Raleigh Office of the Attorney General The Capitol--Tax Section Tallahassee, FL 32399-1050
Findings Of Fact The primary issue presented at the hearing in this case is whether the Petitioner has the requisite experience as an investigator. From 1973 through January, 1977, the Petitioner was employed on a full-time basis with the Dade County Department of Human Resources. Although a small portion of his work with Dade County was investigative in nature, his role was primarily as a counselor or social worker. During the same time the Petitioner worked on a part-time basis with the Minorities Contractors Association. In this capacity he did credit checks and background checks on individuals who were seeking loans from the corporation. During this same period the Petitioner worked on a part-time basis with attorneys. He worked as an investigator, observing accident scenes, taking photographs, getting statements from potential witnesses, and other general investigative work. The Petitioner has worked in these part-time capacities for more than three years. The investigative work would amount to approximately 18 months of full-time experience as an investigator. The Petitioner has been arrested approximately 7 or 8 times. The most serious arrest was in 1963 for Contributing to the Delinquency of a Minor. This conviction was not reflected on the Petitioner's application. It does not appear that the Petitioner's civil rights have been taken from him, and it does appear that he has not been arrested for a period of in excess of five years. It appears that, except for his lack of experience, the Petitioner is qualified for licensure as a private investigative agency.
Findings Of Fact By Order No. 8947, dated July 12, 1979, the Commission proposed for adoption Rules 25-10.145 and 25-10.146, to become part of the Florida Administrative Code, if adopted. Rule 25-10.145, as proposed, provides as follows: Contributions, Customers' Beneficial Interest. To the extent that customers have directly or indirectly borne the burden of providing capital or facilities used to provide utility services through contributions, they will not lose the benefit of their contributions to the utility, as a result of sale of those facilities. From and after the effective date hereof, as a condition precedent to authority to collect and receive further contributions-in-aid-of- construction, all water and sewer utilities subject to regulation under Chapter 367, Florida Statutes, regardless of whether or not service availability policies and charges have been previously approved by the Commission, will agree and declare that they hold all future contributions in trust for the customers of the utility and will so provide in their tariff. Contributions, as referred to above, include all monies, and/or property, real, personal or mixed, including, but not limited to, sewage collection/water distribution systems, easements, real property interests, water supply and treatment facilities, sewerage treatment and effluent disposal facilities, meters, and meter boxes, fixtures relative thereto, and water and/or sewer service as contributions (without expenditure of funds by or on behalf of the utility, as by a stockholder or affiliate or parent company, which expenditures are not recovered as a cost of doing business by the entity making the same) Rule 25-10.146, as proposed, provides as follows: Contributions and Depreciation, Sale, Customers' Beneficial Interest. To the extent that customers have directly or indirectly borne the burden of providing capital or facilities used to provide utility services through contributions and paid depreciation on utility systems, they will not lose the benefit of their contributions to the system and the depreciation they have paid, through their rates, on the utility system as a result of sale of those facilities. From and after the effective date hereof, as a condition precedent to authority to receive and collect further contributions-in-aid-of- construction, all water and sewer utilities subject to regulation under Chapter 367, Florida Statutes, regardless of whether or not service availability policies and/or charges have been previously approved by this Commission, will agree and declare that they hold all contributions in trust for the customers of the utility system and so provided in their tariff. Contributions, as referred to above, include all monies and/or property, real, personal or mixed; including but not limited to, sewage collection/water distribution systems, easements, real property interests, water supply and treatment facilities, sewerage treatment and effluent disposal facilities, meters and meter boxes, fixtures relative thereto, and water and sewer laterals received by the utility providing water and/or sewer service as contributions (without expenditure of funds by or on behalf of the utility, as by a stockholder or by an affiliate or parent company, which expenditures are not recovered as a cost of business by the entity making the same) In its order No. 8947 proposing Rules 24-10.145 and 25-10.146 for adoption, the Commission indicated that the purpose of the rules was ". . .to preclude conversion of customers' contributions and accumulated depreciation to investment in the hands of a transferee where there is no concomitant benefit to the customers." The Commission defines contribution-in-aid-of-construction" ("CIAC") in Rule 25-10.121(4), Florida Administrative Code, as: The sum of money and/or the value of property represented by the cost of the water distribution and sewerage collection systems including lift stations and treatment plants by a developer, or owner, of the utility, which developer or owner transfers, or agrees to transfer, to Service Utility in order to induce Service Utility to provide utility service to specified property. (CIAC) may include connection charges and main extension charges as herein defined. . . Pursuant to the provisions of Section 120.54(4), Florida Statutes, Petitioners timely filed their petitions challenging the validity of Respondent's Proposed Rules. The parties hereto stipulated that each utility petitioner is regulated by the Commission pursuant to Chapter 367, Florida Statutes, and is, therefore, substantially affected by the proposed rules. It was further stipulated that each utility petitioner presently owns full legal and beneficial title to certain property treated by the Commission pursuant to its rules as CIAC. The Petitioners contend generally that the proposed rules are an invalid exercise of delegated legislative authority, in that nothing in the provisions of Sections 367.101 and 367.121, Florida Statutes, which are the statutory provisions asserted by the Commission as authority for adoption of the proposed rules, would authorize the rules' adoption. More specifically, Petitioners contend that: the adoption of the proposed rules exceeds the statutory authority of the Commission; the requirements of the proposed rules are not appropriate or reasonably related to the ends specified in Chapter 367, Florida Statutes, pursuant to which the Commission is proposing the rules; there is no rational basis to support the findings in Order No. 8947 on which the proposed rules are based; the proposed rules exceed the constitutional limitations of the Commission's authority; the proposed rules are vague and indefinite and are, therefore, unconstitutional; and the Economic Impact Statement provided by the Commission is wholly inadequate, and the Commission has failed to follow the requirements of Section 120.54(2), Florida Statutes. In accordance with Section 120.54(1), Florida Statutes, the Commission contends that adoption of the proposed rules is authorized by virtue of the provisions of sections 367.101 and 367.121, Florida Statutes. Section 367.101, Florida Statutes, provides that: Charges and conditions made by a utility shall be just and reasonable. The commission shall, upon request or upon its own motion, investigate agreements or proposals for charges and conditions to be made by a utility for service availability. The commission shall set just and reasonable charges and conditions for service availability. Section 367.121(1), Florida Statutes, insofar as here deemed pertinent, provides that the Commission, in the exercise of its jurisdiction, shall have power: To prescribe fair and reasonable rates and charges, classifications, standards of quality and measurements, and service rules and regulations to be observed by each utility; To prescribe uniform system and classification of accounts for all utilities which, among other things, shall establish adequate, fair, and reasonable depreciation rates and charges. . . As indicated above, CIAC consists of money paid, or property conveyed, to a utility by a developer or customer in order to induce the utility to provide utility service to specified property. When paid in cash, such payments are also referred to as a service availability charge, a connection charge, or a main extension charge. Since CIAC funds ". . .are collected from customers or developers to defray the expense of extending service to such new customers. . .they represent capital outside of the utility's debt and equity capital structure." State v. Hawkins, 364 So.2d 723, 724 (Fla. 1978). Since CIAC represents property acquired from the utility's customers and not from its debt and equity capital structure, CIAC is not included in a utility's rate base, and rates authorized by the Commission do not allow a return on contributed property. In addition, since December 5, 1978, the Commission has prohibited depreciation of contributed property as an operating expense for rate-making purposes. As indicated by the court in State v. Hawkins, supra, a procedure allowing reintroduction of CIAC property into a utility's rate base structure ". . .results in a windfall to the utility, which earns a return on property other than its own, and unfairness to the rate payers, who must pay higher rates in spite of their contributed capital." 364 So.2d at 725. (Emphasis added). When a regulated utility is sold to another regulated utility, the Commission retains jurisdiction over the rates of the transferee, and the treatment of CIAC in the hands of the transferee. Since the Commission retains jurisdiction over rates and treatment of CIAC when a regulated utility is sold to another regulated utility, the proposed rules have no effect on such sales. However, there is a potential for a different result when a regulated utility is either sold to or condemned by a governmental authority. The Commission lacks jurisdiction to regulate utilities ". . .owned, operated, managed or controlled by governmental agencies. . ." Section 367.022, Florida Statutes. In addition, Section 367.071(3)(a), Florida Statutes, requires the Commission to approve the sale or transfer of certificates or facilities to a governmental agency ". . .as a matter of right." The overall purpose of the proposed rules is to preserve the benefits of CIAC to the system's customers upon the sale of a regulated utility to a governmental authority. The proposed rules seek to preserve this benefit by assuring that when a regulated utility is sold to a governmental authority, the rates of the governmental authority will not reflect the acquisition of property designated as CIAC. The proposed rules purport to accomplish this purpose by requiring regulated utilities, as a condition precedent to accepting future CIAC, to declare that all CIAC, both received in the past and to be acquired in the future, is held in trust for the benefit of the customers of the utility system. The proposed rules do not, however, require any refund, distribution, or other payment on account of CIAC property to customers of a regulated utility on sale of the regulated utility to a governmental authority. Accordingly, the proposed rules accomplish their purpose by putting a governmental agency which is negotiating for the purchase of a private utility on notice that certain portions of that utility's assets are beneficially owned by the customers of that utility. Further, the effect of the proposed rules in the event of condemnation of a regulated utility system by a governmental authority is to establish a zero value payable directly to the utility for contributed property. When a regulated utility is sold to a governmental authority, the purchase price is not customarily based on an appraisal of the regulated utility system's assets, nor is it based on the book value of those assets. Instead, the purchase price is usually based on net revenues which the utility system can generate. In essence, the sales price of the regulated utility, when based on this "revenue approach". results from a determination of the amount of bonds the revenue stream will support after allowance for operating expenses. For this purchase price the purchasing governmental agency currently obtains all the assets that support the revenue stream. The evidence in this proceeding indicates that although there exist other methods of evaluation in arriving at the purchase price for a regulated utility system, those methods are rarely used. It is, however, clear, that but for the assets provided by CIAC, a regulated utility system would be less valuable upon sale to a governmental agency. The evidence in this proceeding establishes that when a regulated private utility system is sold to a governmental authority, rates for utility services after sale have historically decreased or remained the same. However, there is no evidence in this proceeding as to what effect, if any, the acquisition of CIAC property has had on rates charged by governmental authorities after purchase. It is, however, clear that when CIAC property constituting a portion of a private utility's assets are transferred to a governmental agency, that agency is free to require that customers of the utility, either through rates or taxes, pay for those assets a second time. Petitioners have cited no authority to establish that a regulated private utility has a legal right, as a matter of course, to require contributions from developers or customers of the system to provide necessary funds to finance its system. In fact, Sections 367.101 and 367.121, Florida Statutes, evince a clear legislative intent to allow receipt of CIAC only upon terms deemed by the Commission to be "just and reasonable." In light of the Commission's past treatment of CIAC for rate-making purposes-- that is, to exclude CIAC from a utility's rate base to avoid requiring consumers to pay rates based upon the value of facilities for which they themselves have already paid-- and the concurrence in that approach by courts in this and many other states, the proposed rules appear to be a logical, just and reasonable extension of this approach in order to protect the interests of the consuming public upon sale of a regulated private utility to a governmental agency. Accordingly, it is specifically held that the Commission did not exceed statutory authority in promulgating the proposed rules. Petitioners argue that there is no rational basis to support the findings in Order No. 8947 on which the proposed rules are based. In this connection, Petitioners assert that customers do not invariably pay for CIAC in the purchase price of their homes; that customers do not invariably pay for depreciation expenses of a utility in rates; and that since the purchase price of a private utility by a governmental agency is not affected by the amount of contributed assets, customers of the utility will not have to pay higher rates because of the purchase of CIAC with the other assets of the regulated utility. These arguments tend to obfuscate the clear intent of the proposed rules, which is to prevent a regulated private utility from selling CIAC property which was obtained at no cost to the detriment of consumers who contributed, either directly or indirectly, that property under generally prevailing economic conditions. The fact that Petitioners can conceive of a situation in which a customer arguably does not pay his pro rata share of a collection or distribution system in the purchase price of his home, or by way of depreciation, is insufficient to invalidate these proposed rules. Further, as noted previously, Petitioners have failed to establish that rates charged by governmental entities after purchase of the assets of a private utility do not reflect the acquisition of CIAC, the effect of which would be to require utility customers to again pay for property which they have contributed to the utility, either directly or indirectly. In passing, it should be noted that, although proposed Rule 25-10.146 refers to "paid depreciation" in its first paragraph, there is no provision in that rule which would require that such paid depreciation be held in trust by a regulated utility. Petitioners argue that the adoption of the Proposed Rules by the Commission exceeds constitutional limitations on the Commission's authority for a variety of reasons. First, Petitioners contend that economic reality requires regulated private utilities to receive CIAC in order to continue to function, so that the practical effect of the proposed rules on the great majority of utilities which are dependent upon CIAC as a source of capital is to require them, under duress, to transfer beneficial ownership of much of their property to their customers. In essence, the Petitioners contend that the proposed rules would unconstitutionally take the property of regulated private utilities without due process of law or the payment of full compensation. These arguments are without merit. As indicated previously, regulated private utilities have no vested right to receipt of future CIAC. The legislature has authorized the Commission to set "just and reasonable" conditions to the receipt of future CIAC, one of which conditions is the recognition by the utilities that previously received CIAC, acquired at no cost to the utility, is to be held in trust for the benefit of those customers who provided it in the first instance. The utility's reliance on receipt of CIAC as a method of financing, developed over a period of years, cannot, in and of itself, raise the "privilege" of receiving CIAC to the level of a vested "right". Petitioners argue that the imposition of a trust on CIAC as a mode of preventing "unjust enrichment" to regulated private utilities upon a sale to a governmental agency is an unconstitutional usurpation of rights reserved to the judicial branch of government. However, in addition to the incidental effect of preventing unjust enrichment, the imposition of the trust proposed in these rules preserves the rights in contributed property to those persons who have directly or indirectly paid for them. The method sought to be adopted by the Commission is clearly within the grant of authority from the legislature in Chapter 367, Florida Statutes, and does not violate the requirements of Article II, Section 3, of the Florida Constitution. Petitioners next argue that the effect of the proposed rules in establishing a zero value payable to the utility on contributed property in the event of condemnation by a governmental agency is an unconstitutional invasion of the authority of the judiciary in the determination and allowance of just compensation in condemnation proceedings. This argument, too, is without merit in that it ignores the fact that CIAC assets held in trust by the utility pursuant to the proposed rules does not constitute the exclusive property of the utility. The proposed rules would, of course, have no effect on previously received CIAC should a regulated utility elect not to file the necessary declaration of trust required as a condition to receipt of future CIAC. In the event of condemnation in a situation where a utility has filed a declaration of trust, just compensation must still be paid for CIAC property, but the customers who provided the property in the first instance will be allowed, by virtue of the proposed rules, to share in the benefits of any compensation award. In effect then, the establishment of a zero value payable to the utility on CIAC is not unconstitutional, in that the utility, by virtue of the definition of CIAC, has no beneficial ownership interest in the property. Petitioners next contend that the Proposed Rules would unconstitutionally abrogate existing contracts creating liens on real property owned by regulated private utilities, and would further impair the value of existing developer agreements by which utilities have the right to receive from developers full title to future CIAC as a condition to providing services. With respect to receipt of future CIAC, the Commission clearly has authority to grant or withhold permission to receive such contributions. Nothing in contracts between utilities and developers can serve to divest the Commission of its jurisdiction in this regard. In short, utilities have no constitutional right to receipt of future CIAC, notwithstanding the existence of contrary provisions in developer agreements. With respect to existing trust indentures and mortgages which have created liens on real property owned by utilities, the proposed rules, as a matter of law, cannot operate to invalidate preexisting property rights of secured creditors in property pledged as security for debts to them. The proposed rules would, in effect, operate only as between the utility, its customers, and potential governmental agency purchasers, and would serve to put a potential purchaser on notice of the existence of the beneficial interest of utility customers in CIAC property. Accordingly, these arguments advanced by Petitioners for the invalidity of the proposed rules are also without merit. Petitioners argue that the proposed rules are unconstitutionally vague and indefinite in that they fail to delineate the duties and responsibilities of the trustee or the rights granted to the customers, as beneficiaries, as a result of the declaration of trust required by the proposed rules. This argument is unpersuasive, in that the term "in trust" has a clearly recognized meaning in the law, and the legal niceties of the trust concept contained in the proposed rules may adequately be handled in the declaration of trust, developer's agreement, or special contract filed by the utility with the Commission pursuant to the requirements of Chapter 25-10, Florida Administrative Code. In this fashion, the Commission's policy, as evidenced by the proposed rules, may be refined on a case-by-case basis. See, McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1 DCA 1977). Finally, Petitioners contend that the proposed rules are invalid because the Commission failed to provide an adequate economic impact statement as required by Section 120.54 (2)(a), Florida Statutes. That statute requires that: Each agency, prior to the adoption, amendment, or repeal of any rule, shall provide information on its proposed action by preparing a detailed economic impact statement. The economic impact statement shall include: An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; An estimate of the cost or the economic benefit to all persons directly affected by the proposed action; An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; and A detailed statement of the data and method used in making each of the above estimates. In response to this requirement, the Commission filed a Statement of Economic Impact, consisting of four paragraphs on one page, which contained the following: The cost of the Florida Public Service Commission to implement the proposed rules is limited to the adoption thereof. The paperwork likewise is so limited. There will be no cost to the utilities presently owning the water and/or sewer systems, except in the event of sale, a loss of an unjustified windfall profit resulting from conversion of the accumulated depreciation and contributions directly or indirectly made to the capital of the utility into investment in the hands of the transferee utility would occur. The economic benefit to the customers will be substantial by forestalling the above referenced conversion of depreciation and contributions into investment, thus, retaining to the customers the benefits they obtained through their direct or indirect contributions to the cost of the facilities used to provide utility service. It is impossible to quantify the benefits in dollars, because of the many variables, such as the amount of contributions, the amount of accumulated depreciation, the cost of equity and/or debt used to buy the utility system. The proposed rules will not affect competition or open market for employment. The above estimates are based on a review of present practices in the water and sewer utility industry in Florida. The facts of the cases cited in the order proposing the rule are by this reference incorporated herein and made a part hereof as if fully set forth. The evidence in this proceeding clearly establishes that there are three sources of capital available to regulated private utilities. These are equity contributed by the utility or its shareholders, debt arranged through borrowings from financial institutions, and CIAC received from developers or customers of the utility. Of these sources, CIAC is the least expensive to the utility and, since CIAC is excluded from a utility's rate base, results in lower utility rates to the consumer. Equity and debt financing are more expensive than CIAC and, should a utility elect not to accept future CIAC, one of two results will follow. Either future expansion of utility service will have to be financed through debt or equity, thereby increasing rates paid by customers; or, if those sources of capital are unavailable, the utility will stop expanding, thereby making utility service more difficult to obtain and possibly adversedly impacting presently unserved potential customers. Although not addressed in the Economic Impact Statement, the Commission, in an order issued September 19, 1979, a copy of which was received into evidence in this proceeding as Respondent's Exhibit No. 5, specifically recognized ". . .that deletion or elimination of contributions will undoubtedly cause increases in rates to be paid by the customers." Respondent's Exhibit No. 5, at page 5. Further, the evidence in this proceeding established that any increase in rates of private water and sewer utilities might potentially affect the competitive balance between businesses served by those private utilities and businesses served by utilities owned by governmental authorities. At least one-half of the water and sewer utilities in Florida regulated by the Commission earn gross revenues of less than $25,000 annually, and at least 75 percent of these utilities earn less than $100,000 annually. Because most water and sewer utilities are relatively small, many traditional sources of debt and equity are not available to them. Nevertheless, the water and sewer industry is capital intensive and requires access to relatively large amounts of capital. As a result of these economic circumstances, regulated utilities are largely dependent upon CIAC to provide funds for necessary utility construction, improvement and expansion. Lenders furnishing debt financing to utility systems ordinarily seek and obtain mortgages on all utility assets, including CIAC property. In addition, lenders also look to CIAC in the form of service availability charges as a major source of cash flow for repayment of outstanding loans. Many utility companies have outstanding borrowings which could be placed in technical default if they continue to accept CIAC under the proposed rules and were consequently required to declare that all past contributions are to be held in trust for the benefit of customers. Although, as previously indicated, the declaration of trust could not operate to divest a lender of a preexisting perfected security interest, the mere act of the utility in declaring such a trust to exist may constitute a technical default under some existing loan agreements. More importantly, if the proposed rules are adopted, and the utility elects to continue to accept CIAC, the requirement that it hold all past and future contributions in trust might impair its future borrowing power since lenders could no longer obtain as security full title to the assets they have been accustomed to receiving. Therefore, if debt market financing is restricted or impaired, utilities might be required to further rely on equity capital, if available, which might increase the utility's cost of capital and consequently increase the rates charged to customers. The Commission submitted no competent evidence at the final hearing in this cause to confirm either the conclusions reached or the methodologies utilized in formulating its Economic Impact Statement. The evidence in this proceeding establishes that in preparing its Economic Impact Statement, the Commission failed to take into account, or to even consider, the potential economic impact of the proposed rules on the regulated utilities' ability to finance future construction or expansion; on the utilities' existing debt structure; and on the customers of those utilities in the form of increased rates should the utilities resort to debt or equity financing, or in the form of service availability should the regulated utilities choose to cease further expansion. In short, contrary to the Commission's conclusion in its Economic Impact Statement, adoption of the proposed rules may, in fact, have economic ramifications far beyond the sale of a privately owned utility system to a governmental agency. The provisions of Section 120.54(2), Florida Statutes, mandating the preparation of an economic impact statement by an agency in the course of rulemaking proceedings was clearly intended to insure that an agency has carefully considered the economic impact of rule adoption on all persons directly affected by the proposed action. There is no evidence in the record of this proceeding to establish that the Commission has complied with either the letter or spirit of Section 120.54(2), Florida Statutes. It is clear that the preparation and submission of an erroneous or defective economic impact statement constitutes an invalid exercise of delegated legislative authority in the context of a Section 120.54, Florida Statutes, rulemaking proceeding. Department of Environmental Regulation v. Leon County, 344 So.2d 297, 299 (Fla. 1 DCA 1977). In the context of this proceeding, the failure of the Commission to submit a valid economic impact statement strikes at the heart of the purpose of the proposed rules, and cannot be considered "harmless error" as in Polk v. School Board of Polk County, 373 So.2d 960 (2d DCA Fla. 1979). In summary, Petitioners have failed to demonstrate that the proposed rules exceed the statutory authority of the Commission or that the contents of the proposed rules are arbitrary, capricious or unconstitutionally vague. However, the absence of a properly prepared economic impact statement renders proposed rules 25-10.145 and 25-10.146 an invalid exercise of delegated legislative authority. The parties have submitted proposed findings of fact in this proceeding. To the extent that such findings of fact are not adopted in this Final Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence. DONE AND ORDERED this 25th day of October, 1979, in Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William A. Van Nortwick, Jr., Esquire Post Office Box 59 Jacksonville, Florida 32201 Kenneth M. Myers, Esquire 1428 Brickell Avenue Miami, Florida 33131 Ben E. Girtman, Esquire Post Office Box 669 Tallahassee, Florida 32301 Gary P. Sams, Esquire Post Office Box 6526 Tallahassee, Florida 32301 Leon F. Olmstead, Esquire and Raymond E. Vesterby, Esquire 101 East Gaines Street Tallahassee, Florida 32304 John Roger Howe, Esquire Room 4, Holland Building Tallahassee, Florida 32301
The Issue Whether Petitioner, Dr. Herbert R. Slavin, is entitled to an award of attorney's fees and costs in an amount not exceeding $50,000 pursuant to section 57.111, Florida Statutes (2011).
Findings Of Fact Dr. Slavin, a licensed physician who specializes in internal medicine, has practiced in the state of Florida since 1981. In or around 2008, Dr. Slavin formed, and is the sole shareholder of, "Ageless Medicine Associates," a subchapter S corporation1/ under which he practices medicine. On October 31, 2011, the Department filed an Administrative Complaint that charged Dr. Slavin with two statutory violations, both of which were ultimately dismissed by the Board of Medicine. In connection with that proceeding, Dr. Slavin now seeks an award of attorney's fees and costs pursuant to section 57.111. As explained later in this Final Order, a party seeking fees and costs pursuant to section 57.111 must demonstrate that he or she was a "small business party" at the time the underlying action was initiated by the state——in this instance, October 31, 2011. Section 57.111(3)(d) contemplates that a small business party can take four alternative forms, only two of which require discussion here: a partnership or corporation, including a professional practice, that, during the relevant timeframe, had 25 or fewer full-time employees or a net worth of not more than $2,000,000 (section 57.111(3)(d)1.b.); or an individual whose net worth did not exceed $2,000,000 during the relevant period (section 57.111(3)(d)1.c.). The evidence establishes that, as of October 2011, Ageless Medicine Associates had fewer than 25 employees and a net worth that did not exceed $2,000,000. The problem, though, and as discussed elsewhere in this Order, is that section 57.111(3)(d)1.b. has no application where, as in this case, the underlying complaint was filed against a licensee individually, rather than the partnership or corporation under which the licensee conducts business. As for Dr. Slavin's personal finances, his 2011 tax return reflects income of $171,810, virtually all of which comprises wages and business income derived from Ageless Medicine Associates, and an adjusted gross income of $161,400. The remainder of Dr. Slavin's financial picture (including, for example, any assets on hand that did not generate taxable income) during October 2011 is nebulous, however, for nearly all of his testimony focused incorrectly on his finances at the time of the final hearing: Q. Are you, doctor, currently worth $2,000,000? A. No. * * * Q. Dr. Slavin, do you own a home? A. Yes. Q. How much, if you know, is that home worth? A. Probably around $300,000 to $350,000. Q. And do you have a mortgage on that home? A. Yes. Q. How much is the mortgage; do you know? A. $145,000. Q. And do you have any cash in the bank? A. Yes. Q. How much? A. Around $10,000 . . . . * * * Q. Do you own any boats? A. No. Q. Do you own any vacation homes? A. No. Q. Do you own any interest in any other businesses? A. No. Q. Do you have a lot of stock accounts? A. No. * * * Q. Okay. Is there any other asset that you have that has not been mentioned; your home, your business? Do you own your vehicles? A. No, they're leased. Q. Do you own any other stocks or bonds that provide you with an income or that are worth money, that you know of? A. No. * * * Q. Dr. Slavin, you testified that -- You were asked by counsel whether or not you had a lot of stocks or bonds as assets and you stated no. Do you -- what does a lot mean? A. Well, I have -- I don't have any direct ownership of stocks or bonds. There are some annuities I have that have, I guess, investments and mutual funds or something. You know, I'm not -– * * * Q. Dr. Slavin, have you presented any information or any documentation as to what items are within your home? A. Not that I'm aware of. I have a television, -- Q. Do you have -- A. -- a refrigerator and -- Q. Do you have furniture in your home? A. Yeah. I have furniture, a refrigerator, stove, microwave. I have -- Q. Do you have computer equipment in your home? A. I have laptop computers in the home. Q. Do you have any personal items; jewelry, watches in your home? A. I have -– Yes, I have watches. Final Hearing Transcript, pp. 23; 25-28; 30-31 (emphasis added). Even assuming, arguendo, that Dr. Slavin's testimony had been properly oriented to the relevant time period (which it was not, in nearly all instances), his overall evidentiary presentation was simply too fragmentary to permit the undersigned to independently determine the value of his net worth——a figure derived2/ by subtracting total liabilities from total assets. For example, Dr. Slavin provided: no information concerning his annuities and mutual funds, the value of which could be non- trivial due to the remunerative nature his profession and his length of time in practice; no details regarding the value of his household assets; and no credible evidence regarding the value of his home.3/ In light of these gaping holes in the evidence, which preclude anything more than rank speculation concerning the value of Dr. Slavin's personal net worth, it is determined that status as a small business party has not been proven.4/ Because Dr. Slavin's failure to establish his status as a small business party is fatal to his application for attorney's fees, it is unnecessary to determine whether the underlying proceeding was substantially justified.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent, Department of Labor and Employment Security, is the agency responsible for carrying out the duties and responsibilities assigned by the Governor of Florida under the Job Training Partnership Act, Public Law, 97- 300, as amended. In administering the JTPA, Respondent provided Petitioner, along with others, a RFP, which among other things, solicited proposals for programs to provide training and employment for older individuals as provided for by Section 124, JTPA, Title I. Paragraphs 111(1-7) of the RFP lists the requirements that must be addressed in the proposal and be judged affirmatively by Respondent in order for the proposal to be designated responsive and subject to further review and scoring. One of the requirements is the review by, and concurrence of, the CEO prior to submitting the proposal. The purpose of requiring CEO and Private Industry Council (PIC) Concurrence Statements at time of submission is to insure that no applicant uses State approval to "arm twist" the local PIC and CEO into approval. Petitioner submitted its proposal to the appropriate PIC for review and concurrence, thinking that the CEO Concurrence Statement would be obtained by the PIC. Upon return of the proposal by the PIC, there was no executed CEO Concurrence Statement included and, upon inquiry, Petitioner was informed by Joseph M. Brannon, Executive Director, PIC, that a CEO Concurrence Statement was not required for a JTPA Title I Program. At this point, Petitioner did not inquire of Respondent as to the need for the executed CEO Concurrence Statement even though the RFP indicated that the CEO Concurrence Statement was required at the time of submission. Joseph M. Brannon is not an agent of the Respondent and had no authority to change any of Respondent's RFP requirements. Although the proposal had been reviewed by, and had the concurrence of, the local PIC, the proposal, as timely submitted by the Petitioner on February 6, 1987, did not contain the CEO Concurrence Statement. The CEO, Harry H. Waldon, did execute, after the fact, a CEO Concurrence Statement dated January 14, 1987, which is the same date of the PIC Concurrence Statement and this CEO Concurrence Statement was transmitted to the Respondent by Mr. Brannon on March 6, 1987, some sixteen (16) days after the deadline of 3:00 p.m. on February 18, 1987. The evidence is insufficient to show that the CEO reviewed and concurred in the proposal prior to submission even though he was present at the meeting when the local PIC reviewed and concurred in the proposal. Even though Thomas E. Skinner, Jr. is the Executive Director of the Private Industry Council of Service Area 6, his testimony, which I find credible, was that his staff handled these matters and he was not aware of the necessity of CEO Concurrence Statement for a JTPA, Title I program. However, on this occasion, Mr. Skinner was acting on behalf of the Petitioner and it was his responsibility to submit a proposal that was responsive to Respondent's RFP, notwithstanding the conflicting advice from Joseph Brannon concerning the executed CEO Concurrence Statement. Although Respondent, independently of the RFP, advised proposal applicants of the necessity of achieving the 75 percent of performance goals in the previous year if requesting continued funding, a requirement for responsive proposals, there was credible evidence that Respondent did not relax the necessity of timely meeting this requirement by the date of proposal submission or relax any other requirement set out in the RFP. Petitioner's proposal was rated as non-responsive by the Respondent for failure to timely submit an executed CEO Concurrence Statement. The criteria adopted by the Respondent in the RFP is in accordance with the JTPA and the Governor's goals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Respondent enter a Final Order finding Petitioner's proposal as non-responsive and denying Petitioner's request for further review and scoring. Respectfully submitted and entered this 3rd day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 3rd day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-I684BID 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 in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 3. Adopted in Finding of Fact 2. Adopted in Findings of Fact 4 and 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 3. Adopted in Finding of Fact 8 but clarified. Adopted in Finding of Fact 8 but clarified. Adopted in Finding of Fact 4. 5-7. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Rejected as legal argument. Adopted in Finding of Fact 3. Adopted in Findings of Fact 7 and 8. COPIES FURNISHED: Hugo Menendez, Secretary 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Thomas E. Skinner, Jr. Qualified Representative Amex Enterprises, Inc. Post Office Box 47035 Jacksonville, Florida 32247-7035 Carolyn Cummings, Esquire Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657
The Issue The issue in this case is whether Petitioner, Conval-Care, Inc., is entitled to the payment of attorney fees and costs pursuant to Section 57.111, Florida Statutes, from the Agency for Health Care Administration, the successor in interest to the Respondent, the Department of Health and Rehabilitative Services.
Findings Of Fact By letter dated November 4, 1991, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), notified Conval-Care, Inc. (hereinafter referred to as "Conval-Care"), that it intended to impose an administrative fine on Conval-Care pursuant to Section 409.913(9)(c), Florida Statutes. Conval-Care contested the proposed fine and requested a formal administrative hearing, including a request that it be awarded attorney fees and costs pursuant to Section 57.111, Florida Statutes. The matter was designated case number 92-0126 and was assigned to the Honorable Judge Robert T. Benton, then Hearing Officer Benton. On June 30, 1993, following a formal hearing held on March 24, 1993, Hearing Officer Benton entered a Recommended Order recommending dismissal of the sanctions letter of November 4, 1991. The findings of fact made by Hearing Officer Benton, in Conval-Care, Inc. v. Department of Health and Rehabilitative Services, DOAH Case No. 92-0126, are hereby adopted to the extent relevant to this proceeding. On September 19, 1993, the Department entered a Final Order. The Department accepted and incorporated into its Final Order the findings of fact made by Hearing Officer Benton. The Department, however, rejected Hearing Officer Benton's conclusions of law to the extent that he not had concluded that Conval-Care lacked authority to reject the demand for its records which was the subject of the proceedings. The Department concluded that, in light of the fact that Conval-Care had acted on the advice of counsel, it would reduce the fine from $25,000.00 to $5,000.00. The Department's decision was appealed by Conval-Care. On December 16, 1994, the District Court of Appeal, First District, filed an opinion reversing the Department's Final Order. Mandate from the First District was entered January 3, 1995. On February 14, 1995, Conval-Care filed a Petition for Attorneys Fees and Costs in this case. Conval-Care requested an award of $15,000.00 as a small business party pursuant to the provisions of Section 57.111, Florida Statutes. Attached to the Petition were the Final Order entered by the Department, the Recommended Order, the First District's Opinion and Mandate, an Attorney's Affidavit stating the nature, extent and monetary value of the services rendered and costs incurred in the proceedings, the Petition for Formal Administrative Hearing filed by Conval-Care in 1991 and the Department's November 4, 1991 sanctions letter. On March 2, 1995, the Agency for Health Care Administration, the successor in interest of the Department (hereinafter referred to as "AHCA"), filed a Response in Opposition to Petition for Attorney's Fees and Costs. 10 In its Response, AHCA admitted all of the allegations contained in paragraphs 1 through 6 and 8 through 9 of the Petition. AHCA denied the allegations of paragraph 7 of the Petition. Paragraph 7 of the Petition alleged the following: 7. The action of DHRS, in filing the admini- strative complaint against CCI, was not sub- stantially justified because there was no reasonable basis in law or fact to support the issuance of its letter seeking to impose an administrative fine upon CCI. Attached to the Response was an Affidavit from John M. Whiddon in support of its position that its actions were substantially justified. The Affidavit does not add any alleged credible justification not presented to Hearing Officer Benton or the First District Court of Appeal. AHCA did not assert in it Response the following: that the costs and attorney's fees claimed in Conval-Care's affidavit were unreasonable; that Conval-Care is not a prevailing small business party; that circumstances exist that would make an award unjust; or that AHCA was a nominal party only. AHCA also did not "either admit to the reasonableness of the fees and costs claimed or file a counter affidavit [specifying each item of costs and fee in dispute] along with its response." Finally, AHCA did not request an evidentiary hearing in its Response. The only issue which AHCA asserted in its Response was at issue in this proceeding is whether AHCA's actions were substantially justified. On April 6, 1995, an Order to Provide Information was entered. Although the parties had not requested an evidentiary hearing, the undersigned entered the Order soliciting input from the parties before the undersigned decided whether a hearing was necessary on the one issue raised by the Department. In the Order, the parties were given an opportunity to provide input concerning the procedures they believed should be followed to resolve this matter. The parties were specifically requested to answer certain specified questions, including the following: 1. Do the parties believe that an [sic] hearing is necessary to resolve any factual disputes and/or for purposes of oral argument before a decision is rendered? * * * 5. Do the parties agree that the documents attached to the Petition and the Response should be considered in rendering a decision in this case? . . ." Conval-Care filed a response to the April 6, 1995 Order indicating that there was no need for a hearing. Conval-Care asserted that a hearing would be improper unless Conval-Care consents to one. Conval-Care also asserted that all of the documents attached to petition should be considered. AHCA filed a response to the April 6, 1995 Order indicating that "[t]he Respondent feels a hearing in this matter is essential." AHCA did not provide any explanation of why it believed a hearing was necessary or any discussion of whether a hearing was authorized under the applicable statutes and rules. AHCA also indicated in its response that it "agrees that the documents attached to the Petition and Response should be considered in this case " On May 19, 1995, an Order Concerning Final Order was entered. Based upon a review of the pleadings and the lack of explanation from either party to justify an evidentiary hearing, it was concluded that no evidentiary hearing was necessary. Therefore, the parties were informed in the May 19, 1995 Order that a hearing would not be held in this case. The parties were also informed that they could file proposed final orders on or before May 30, 1995. Conval-Care filed a proposed order. AHCA did not. Neither Conval-Care nor AHCA timely requested an evidentiary hearing in this case. Both parties agreed that the documentation filed with Conval- Care's Petition and AHCA's Response could be relied upon in reaching a decision in this case. Based upon AHCA's failure to contest most of the relevant issues in this proceeding, the only issue which requires a decision if whether the Department's actions against Conval-Care were substantially justified. The documents, including the Mr. Whiddon's Affidavit filed by AHCA with its Response, sufficiently explain why the Department took the actions it took against Conval-Care which led to this proceeding. No evidentiary hearing was, therefore, necessary. The weight of the evidence failed to prove that the Department's actions in this matter were substantially justified. The Department could have sought the information it wanted by pursuing available discovery. Counsel for Conval-Care even remained the Department of the availability of discovery. The Department, however, rather than pursuing the information which it indicated it needed, elected to pursue a punitive action against Conval-Care rather than obtaining the information through discovery. The Department's reason for pursuing punitive actions against Conval-Care was not convincing to Hearing Officer Benton. Despite this fact, the Department entered a Final Order upholding its actions and imposing a fine of $5,000.00 for refusing to provide it with information which it could have obtained through other means. The First District Court reversed the Department's Final Order opining that the Department "lacked a legitimate investigatory purpose for demanding the records" which gave rise to its action against Conval-Care. Finally, the entire record in this case failed to indicate that there was any basis in law or fact to substantially justify the actions of the Department.
The Issue Whether or not Petitioner's response to Respondent's RFP 90 PY is responsive so as to be eligible for an award of "Wagner-Peyser 10% funds."
Findings Of Fact Section 7(b)(2) of the Wagner-Peyser Act, 29 U.S.C. s. 49f. is a federal grant source which permits ten percent of the sums allotted by Congress to each state to be used to provide certain services and functions within the discretion of the governors of the respective states. Included among such services are job placement services for groups determined by the Governor of Florida to have special needs as set forth in Subsection 7(b)(2) of the Wagner- Peyser Act. Petitioner Goal Employment is a private-for-profit Florida corporation engaged in the business of finding gainful employment for offenders, i.e., those persons who have been convicted of a crime but who are now out of prison seeking employment. On January 26, 1990, the Respondent, Division of Labor, Employment and Training (LET) of the Florida Department of Labor and Employment Security (LES), published a request for proposals (RFP) soliciting competitive sealed proposals for job placement programs in accordance with Section 287.057(3) F.S. and the federal grant source, commonly referred to as "Wagner-Peyser 10% funds." The response date and time for this 1990 RFP, a/k/a RFP 90 PY, was 3:00 p.m., March 23, 1990. Petitioner, Goal Employment, filed a timely proposal with Respondent, but the agency found Goal Employment's proposal to be nonresponsive and notified Petitioner of this determination in a letter dated April 4, 1990. That letter set out the grounds of the Respondent agency's determination as follows: This nonresponsiveness is due to failure to have proposed program activities that are legal and allowable, i.e., private for profit entities are not eligible to apply for Wagner-Peyser 7(b) funds. Petitioner had 72 hours from that notification in which to protest. It has been stipulated that Goal Employment's proposal would have been found responsive but for the exclusion of private-for-profit organizations from eligibility. By letter dated April 9, 1990, Petitioner gave written notice of receipt of notification of nonresponsiveness on Saturday, April 7, 1990 "around 10:00 a.m." and of its intent to file formal written protest. Date and time of Respondent's receipt of this letter of intent are not clear, but Respondent has not asserted lack of timeliness. Interim negotiations failed, and on April 17, 1990 Petitioner timely filed a formal written protest, which was "fast-tracked" at the Division of Administrative Hearings, pursuant to Section 120.53(5) F.S. In the immediate past, the Respondent agency had, indeed, permitted contracting with private-for-profit organizations, and Petitioner corporation had been a successful bidder in Respondent's 1988 and 1989 letting of similar contracts. Therefore, Petitioner's principal and president, Ernest S. Urassa, was thoroughly familiar with how these types of contracts had been bid in the past. Mr. Urassa's familiarity with the earlier agency bid policy and procedure was also the result of his prior employment by the agency. The RFP for 1989 did not prohibit private-for- profit organizations from participating. Goal Employment's contract pursuant to that prior RFP had not been completed as of the date of formal hearing, and at all times material to the 1990 RFP which is at issue in this proceeding, Mr. Urassa and Goal Employment coordinated the 1989 contract's compliance through an agency contract manager, Dan Faughn. On November 8, 1989, before the final draft of the 1990 RFP was finalized, Mr. Faughn informed Mr. Urassa by telephone that for the next program year, that is for the 1990 RFP, the agency would no longer permit private-for-profit company participation in Wagner-Peyser contracting. In response to January 11, 1990 oral inquiries from Mr. Urassa, the Chief of Respondent's Bureau of Job Training, Shelton Kemp, sent Mr. Urassa a January 16, 1990 letter as follows: The program year 1990 Request for Proposals prohibits private-for-profit companies from participating in Wagner-Peyser 7(b) contracting. The Wagner-Peyser Act, Section 7(b)(2), allows the governor of each state to provide, "...services for groups with special needs, carried out pursuant to joint agreements between the employment service and the appropriate private industry council, and chief elected official or officials or other public agencies or private nonprofit organizations,..." [Emphasis supplied] Those involved in the agency RFP process had reached the foregoing position after receiving advice from their General Counsel who, in turn, had relied on legal advice from the Governor's legal staff. Roy Chilcote, Labor Employment and Training Specialist Supervisor in Respondent's Contract Section, participated in the draft of the 1990 Project Year Request for Proposal (RFP 90 PY) which is at issue in these proceedings. Prior to drafting the 1990 RFP, Mr. Chilcote was unable to locate any written issue papers or legal opinions interpreting the following language contained in the Wagner-Peyser legislation: ...the Governor of each such State to provide-- (2) services for groups with specific needs, carried out pursuant to joint agreements between the employment service and the appropriate private industry council and chief elected officials or other public agencies or private nonprofit organizations; [Emphasis supplied] Up until that time, the issue of whether private-for-profit organizations could compete had not resulted in any specific opinion from legal personnel, however it is fair to say that lay personnel of the agency, including Mr. Urassa, who had previously been employed there, had based agency policy and earlier RFP requirements on lay interpretations either of the foregoing statutory language or of the Job Training Partnership Act's (JTPA) pre-amendment language, and that the lay interpretations had always permitted private-for- profit organizations to bid for Wagner-Peyser 10% funds just as they had competed for JTPA funds. Upon his own review of the statutory language, Mr. Chilcote, also a layman, did not share his predecessor's opinion, and he requested legal advice from the agency's General Counsel, and, in turn, received the legal interpretation that private-for-profit organizations were ineligible. Mr. Chilcote received this legal advice in the fall of 1989, and he accordingly drafted the 1990 RFP to preclude private-for-profit entities as bidders for Wagner-Peyser funds. The actual language contained in the 1990 RFP published January 26, 1990, as found on page 2 thereof, is as follows: All governmental agencies and nongovernmental organizations (both for profit and not for profit entities) may apply for funds under the JTPA Title I Program. All governmental agencies and not for profit nongovernmental organizations (private for profit entities are not eligible) may apply for funds under the Wagner-Peyser 7(b) program. Documen- tation supporting the legal structure of the proposer must be on file with the Bureau of Job Training before any contract resulting from a response to the RFP can be executed. [Original emphasis] Under the next major heading of the 1990 RFP (page 5 thereof), all potential bidders, including Petitioner, were advised: The Bureau of Job Training conducts a two step proposal review process. The first step is a technical review to determine if a proposal is responsive to the requirements of the RFP and the second step is a programmatic review of the relative merit of that proposal. The following is a description of the specific criteria that the Bureau will use to determine the responsiveness of a proposal. Each of the criteria listed must be satisfactorily addressed for a proposal to be determined responsive. A proposal determined nonresponsive will be given no further consideration. The proposer will be notified in writing of the nonresponsive determination and the reason(s) for the determination. No exception will be made to these requirements. Although the "specific criteria" listed thereafter do not make reference to the ineligibility of for-profit organizations, that contract specification was clearly noted and emphasized under the preceding heading. See, Finding of Fact 14, supra. Before publication of the 1990 RFP, Mr. Chilcote circulated the draft within the agency for comments. It was at this point, November 8, 1989, approximately 10 weeks before the 1990 RFP was published, that Mr. Faughn orally notified Mr. Urassa of its contents, that Mr. Faughn and Mr. Urassa began inquiries concerning the reinterpretation, and that Mr. Faughn and Mr. Urassa commented unfavorably on the new draft RFP because it precluded private-for- profit bidders. See, Finding of Fact 9, supra. The agency's position allowing Wagner-Peyser 7(b) funding for private- for-profit organizations prior to Program Year 1990 was based in part upon its earlier layman's understanding of the Congressional intent underlying the language of Section 7(b)(2). See, Findings of Fact 12-13, supra. In 1990, the agency altered its position so as to begin excluding for-profit organizations from eligibility for Wagner-Peyser money solely due to its reinterpretation of the statute by legal counsel. This reinterpretation was applied to prohibit the agency from contracting for the delivery of services with all private-for-profit organizations and has not been formally adopted as a rule pursuant to Section 120.54 F.S. Petitioner has been aware of this reinterpretation since November 8, 1989 (actual oral notice), was notified of it in writing on January 16, 1990 (Shelton Kemp's letter), and was again notified of it in writing on January 26, 1990 (1990 RFP publication). Petitioner did not file a formal rule challenge directly with the Division of Administrative Hearings. Prior to the March 3, 1990 bid/proposal deadline, the agency held three RFP workshops: February 20, 22, and 23, 1990. At no time during this process was Petitioner led to believe that private-for-profit entities were to compete for the 1990 RFP. Nonetheless, Petitioner, a private-for-profit entity, submitted its proposal timely before the March 23, 1990 bid closing and was rejected as nonresponsive. It thereafter proceeded solely with a bid protest. See, Findings of Fact 3, 4, and 5, supra.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Labor and Employment Security enter a final order ratifying its previous decision that the Respondent's 1990 bid/proposal is nonresponsive. DONE and ENTERED this 29th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 29th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2667BID The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-2, 15 Accepted. Accepted except for what is unnecessary. Accepted except for what is subordinate or cumulative. 5-6 Subordinate and cumulative. 7-10, 19 Accepted. 11-14, 16, 18 Rejected as mere legal argument. 17 Rejected as subordinate. Respondent's PFOF: 1-5 Rejected as mere legal argument. Accepted. COPIES FURNISHED: Thomas W. Brooks, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32301 David J. Busch, Esquire Department of Labor and Employment Security Suite 131, The Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, General Counsel Department of Labor and Employment Security The Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 =================================================================
The Issue Whether Michael Clay Bishop, d/b/a J and M Enterprises (“Respondent”), failed to secure the payment of workers’ compensation insurance coverage for its employees; and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (“Petitioner” or “Department”), correctly calculated the penalty to be assessed against Respondent.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent purports to be a “Private Common Law Non- Associated Unincorporated Business Trust Organization,” or “UBTO,” engaged in business in Florida.2/ Michael Clay Bishop is one of Respondent’s trustees. The nature of Respondent’s business was a disputed issue at the final hearing. Mr. Bishop testified that he performed handyman services, such as cleaning, yardwork, removal of old furniture, and repair of flood-damaged properties. The record contains Respondent’s business card, which Mr. Bishop provided to the Department’s Compliance Investigator, Carl Woodall, on January 31, 2017. The business card reads, “J & M Enterprises,” and advertises as follows: Quality repairs, restoration and remodels; paint interior/exterior, flooring, fencing, decks, crown molding, concrete. BIG OR SMALL WE DO IT ALL! The business card indicates the business is “Insured” and has “references available.” Mr. Bishop did not dispute that the business card belonged to Respondent, or that it accurately represented the services provided by Respondent. Respondent accepts monetary payments for work performed by check made out to J and M Enterprises.3/ Respondent maintains a business checking account in the name of J and M Enterprises to which Respondent deposits payments for services performed by Respondent. On January 31, 2017, Mr. Woodall encountered Mr. Bishop at a residence undergoing remodeling at 8623 Lagoon Drive in Panama City Beach. Mr. Woodall observed Mr. Bishop engaged in the act of filling cracks in a bar area of the residence with putty, presumably to prepare the surface for painting. Mr. Bishop testified that he was “cleaning some caulking that wasn’t done very well.” Mr. Bishop objected to characterization of his work as painting, or preparing the surface for painting. However, Mr. Bishop admitted that he was hired by Chris Roberts of Rainbow International as a subcontractor on the remodel. Mr. Woodall testified that he spoke with Chris Roberts on the date in question, who informed him that Mr. Bishop was hired to perform painting services on the remodel, and that he was compensating J and M Enterprises at the rate of $20 per hour for the painting services. Mr. Woodall’s notes, made on his Field Interview Worksheet, corroborate his testimony on these facts. Mr. Bishop’s testimony was neither credible nor reliable. It is inconceivable that Rainbow International hired Respondent to clean caulking at $20 per hour. The evidence supports a finding that Respondent is engaged in the business of residential painting, including preparation of surfaces for painting. It is uncontested that Respondent was not covered by workers’ compensation insurance at all times material hereto. Mr. Bishop testified that he was under a mistaken assumption that he was exempt from workers’ compensation insurance since he had no employees. However, at final hearing, he explained that he had been made aware that the requirement applies to any business in the construction industry with one or more employees. Mr. Woodall personally served Mr. Bishop with a Stop-Work Order and Request for Production of Business Records on January 31, 2017. At all times material hereto, Mr. Bishop maintained that Respondent’s business records were confidential, pursuant to the business trust agreement, and that to disclose those business records would violate his obligation to Respondent’s trustees. A document purported to be Respondent’s trust indenture was admitted in evidence as Respondent’s Exhibit R4. Article 29, Section 29.1, of the Indenture is titled, “Disclosure of Documents,” and provides as follows: NO document, record, bank account, or any other written information dealing with the internal affairs or the operations of this UBTO shall be disclosed to any third party, except upon formal written board approval of the Board of Trustees given at a regular or special meeting of the Board of Trustees as set forth above. Respondent did not comply with the Department’s request for business records, such as check stubs, bank statements, or tax returns, from which the Department could establish Respondent’s payroll for the audit period.4/ Department Penalty Auditor, Eunika Jackson, was assigned to calculate the penalty to be assessed against Respondent. Pursuant to section 440.107(7)(d), Florida Statutes, the Department’s audit period is the two-year period preceding the date of the Stop-Work Order. The audit period in this case is from February 1, 2015 through January 31, 2017. Respondent provided no evidence that Respondent was not engaged in business at any time during the audit period. Respondent’s trust indenture is dated January 19, 2012. Because Respondent provided no business records from which the Department could establish Respondent’s payroll for the audit period, Ms. Jackson imputed Respondent’s payroll, pursuant to section 440.112(2). Based upon Mr. Woodall’s observations of the work being performed at the jobsite, Ms. Jackson determined that the type of construction work performed was painting. Ms. Jackson consulted the Scopes Manual published by the National Council on Compensation Insurance (NCCI) and utilized classification code 5474, the general painting classification, for purposes of calculating the penalty. Ms. Jackson then applied the corresponding approved manual rates for classification code 5474 for the related periods of non-compliance. Ms. Jackson applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)1. and Florida Administrative Code Rules 69L-6.027 and 69L-6.028 to determine the penalty to be imposed. Because Respondent did not provide records sufficient to determine its payroll during the audit period, Ms. Jackson correctly assigned the statewide average weekly wage (AWW) to Mr. Bishop, the only employee identified on the jobsite on the date in question. § 440.107(7)(e), Fla. Stat. Ms. Jackson likewise correctly utilized the AWW multiplied by two when applying the statutory formula for calculating the penalty to be assessed. See § 440.107(7)(d)1., Fla. Stat. On April 18, 2017, by certified mail, the Department served Respondent with an Amended Order of Penalty Assessment assessing a penalty of $30,600.44, which was fully imputed. Respondent made a payment of $1,000 to the Department which has been applied to the imputed penalty. The Department’s Penalty Calculation worksheet notes a balance due of $29,600.44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, finding that Michael Clay Bishop, d/b/a J and M Enterprises, violated the workers’ compensation insurance law and assessing a penalty of $30,600.44. DONE AND ENTERED this 28th day of September, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 28th day of September, 2017.
The Issue The issue presented for decision herein is whether or not the Respondent's private investigator licenses should be revoked based on conduct, set forth hereinafter in detail contained in an Amended Administrative Complaint filed herein mailed October 11, 1985. Preliminary Statement The Petitioner, Department of State, Division of Licensing, issued an Administrative Complaint to assess an Administrative fine against Respondent Arthur Letourneau, on November 9, 1984. The complaint was amended on March 5, 1985. A second amended complaint was issued on October 11, 1985 seeking revocation of Respondent's license. That complaint is the charging document which is the focus of this hearing. That document alleges as follows: Count I: The Respondent operated a private investigative agency for hire utilizing unlicensed investigators and process servers prior to becoming licensed as a Class "A" agency in violation of Sections 493.319(1)(g) and 493.304(1), Florida Statutes. Count II: The Respondent performed the services of a Private Investigator for hire without a Class "C" license in violation of Section 493.319(1)(g); Count III: Respondent has incurred and has failed to satisfy two judgments for outstanding fees for private investigations which constitute misconduct under Section 493.319(1)(f). The investigations were performed by David Tracy and Anthony Luizzi and judgments and fees are outstanding in the amount of $5,314.44 (Tracy) and $1,731.00 (Luizzi). At the hearing, Respondent's Counsel filed an ore tenus Motion for Continuance of the hearing based on a claimed lack of timely notice to prepare for the hearing. Respondent's Motion was tentatively denied. 1/ Additionally, Respondent's Counsel challenged the constitutionality of Chapter 493, Florida Statutes, alleging, inter alia that the referenced statute violated Respondent's due process in that the statute was overbroad, ambiguous and may involve the prohibition of innocuous activities. Counsel also alleged that the statutes as enacted violated Respondent's First Amendment Right to freedom of speech. Finally, Respondent's counsel averred that conduct proscribed by Section 493.301, F.S. involved conduct which although improper to be engaged in by an unlicensed investigator, is the type conduct considered permissible by attorneys utilizing the services of investigators. The undersigned lacks authority to render determinations of the alleged unconstitutionality of statutes and therefore denied Respondent's Motion to Dismiss based on the alleged unconstitutionality of Chapter 493, Florida Statutes.
Findings Of Fact During times material, the Petitioner, Division of Licensing is the state agency having authority and jurisdiction to license and regulate private investigators and private investigative agencies pursuant to Chapter 493, Florida Statutes. Respondent, Arthur Leteurneau, applied for a Class "C" private investigator's license and a Class "A" private investigative agency's license on April 9, 1984. (Petitioner's Exhibit 2). The applied for licenses were issued to Respondent on September 21, 1984. Respondent holds Class "A" private investigative agency's license No. GA8400007 and Class "C" private investigation's license No. GC0400013, both effective September 21, 1984. Prior to his licensure in Florida, Respondent worked (in Florida) for various attorneys and law offices in Dade and Broward counties. (TR 211-225; Petitioner's Exhibit 1. Respondent performed a variety of services for said attorneys including the photographing of accident scenes, taking sworn witness statements, locating the whereabouts of witnesses and other persons and service of legal process. Additionally, while working for attorney Richard Auerbach, Respondent recruited two other individuals, Anthony Liuzzi and David Tracy to assist him in the performance of investigative work. David Tracy worked with Respondent from January thru September, 1983. (TR 91-95). Respondent gave Tracy specific work assignments such as the taking of witness statements, photographing accident scenes and completing client's interview sheets. At the time Tracy performed the services, he was not licensed as a investigator or as an intern. Tracy worked without a surety bond or insurance. A dispute arose between Respondent and Tracy concerning the payment of fees for Tracy's services. Tracy filed a claim against Respondent in Circuit Court, Broward County, regarding the payment for services and on September 18, 1984, a judgment was entered in his behalf in the amount of $5,314.44 for services rendered. (Petitioner's Exhibit 4, TR 100-103). That judgment was outstanding at the time of this hearing. (TR 107). Anthony Liuzzi began working with Respondent in July, 1883 and continued through September, 1983. At the time Liuzzi was a licensed investigator intern and was working under the sponsorship and insurance of the Intercounty Investigative Agency. (TR 133). Liuzzi, like Tracy, also assisted Respondent in completing work assignments including taking pictures of accident scenes, researching property ownership, interviewing clients and taking witness statements relating to personal injury claims. Like Tracy, Liuzzi also had a dispute with Respondent over fees for his services and filed a claim in Circuit Court for unpaid wages in the amount $1,731.00. Liuzzi received a judgment against Respondent in the amount climbed which was unsatisfied at the time of the hearing herein. (Petitioner's Exhibit 4; TR 138- 139). Prior to his licensure, Respondent spoke to several employees employed by Petitioner concerning the requirements for and his need to obtain an investigator's license in circumstances similar to the arrangements he had with the several lawyers for whom he performed investigative work. Excluding employee Pam Pingree, Respondent was advised (by Petitioner's staff) that he was not required to be licensed by Petitioner. Ms. Pingree advised Respondent that although it was not required that he be licensed, inasmuch as he was eligible for licensure and to remove any cloud concerning the need for him to be licensed, he should apply for and obtain a license. Respondent first spoke to Petitioner's employee Seymour Klosky on August 20, 1980. During the meeting with Klosky, Respondent also net with John Bianco, an investigator employed by Petitioner. Respondent later met with Harvey Matthews, also an employee of Petitioner, who related that what he was doing was permissible based on Respondent's detailed description of the manner in which he conducted assignments for the various attorneys. Respondent met with Matthews on October 8, 1983 and on February 9, 1984. TR 207-208. During the February 9, 1984 meeting with Matthews, Respondent requested a meeting with Pam Pingree who advised him of Petitioner's policy with respect to the need for licensure to engage in the type work that he was performing for attorneys. Ms. Pingree related that it "wasn't the policy of the Department to prosecute people if they have the qualification [Respondent] had, why don't he [Respondent] get a license." (TR 208). Respondent agreed to, and in fact applied for licenses, as indicated, on April 9, 1984. Respondent's application for licensure was investigated by Petitioner's employee Richard Chauncy. Respondent was investigated by investigator Chauncy on April 10, 1984. During the investigation, Respondent offered his experiences with law firms in Dade and Broward Counties as examples of the investigative experience he had. Additionally, Respondent listed his experience as a Deputy Sheriff with the Cook County Sheriff's office in Chicago, Illinois. Respondent was employed by the Cook County Sheriff's office from December 1970 thru July, 1979 as a Deputy Sheriff. Respondent also served as a private investigator in Chicago from the period June, 1970 to October, 1981 as a self employed private investigator on a part time basis. Petitioner was well aware of the fact that Respondent conducted private investigative work for various law firms in the Miami area during a period in which he was not licensed as a private investigator or licensed to conduct a private investigative agency. (Petitioner's Exhibit 1) Additionally, Petitioner was aware that Anthony Liuzzi and David Tracy had filed complaints against Respondent based on the dispute for unpaid wages which is the subject of the amended administrative complaint filed herein. (Petitioner's Exhibit 1, Page 3, Section v.) Additionally, Liuzzi had filed with Respondent at least three complaint letters which were the subject of investigation by Petitioner, prior to the time Respondent filed his application for licensure. (Respondent's Exhibits 1, 3 and 4). The judgments, which are the subject of the amended administrative complaint, were entered shortly (three days) prior to Respondent's licensure. The operative facts forming the basis for the issuance of the judgments involve the disputed wage claims of Anthony Liuzzi and David Tracy. Respondent was qualified to hold a private investigative and private investigator's agency license based on the experience requirements set forth in Section 493.306(4), Florida Statutes (1985). Petitioner's policy is to "take disciplinary action against an applicant who performs investigative services without a license, generally in the form of an administrative fine, and at the same time grant an otherwise qualified person a license." (TR 26-28, Testimony of Petitioner's Division Director, Shelley Bradshaw). All of the work performed by Respondent, which is the basis of the complaint filed herein, was work performed prior to Respondent's licensure either as a private investigator or a private investigative agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Amended Administrative Complaint filed herein be DISMISSED with prejudice. RECOMMENDED this 15th day of December, 1986, in Tallahassee Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1986.
Findings Of Fact Respondent, Mark P. Stanish, during times material held a Class "C" private investigator license issued pursuant to Chapter 493, Florida Statutes. During the period January, 1993 through April, 1993, Respondent advertised in local newspapers in and around Pasco County for "private investigators wanted". At least nine individuals responded to the advertisement placed by Respondent and appeared at meetings and seminars in Pasco County and were told by Respondent that, for a fee, his agency would train and license them and refer investigative cases to them subject to an independent contractor's agreement. At least three individuals paid Respondent $2,000 for training and the promise of being set up in a branch office with enough investigative work to earn $40,000 annually. After paying Respondent $3,000, Michael Straniere was given office space in Spring Hill, Florida and told to recruit as many investigators as possible. Straniere never received any investigative cases from Respondent or as a result of advertising in the local newspaper. Straniere received no training other than the sales pitch by Respondent to recruit as many investigators as possible, and that was the manner in which he could earn the salary that he was promised ($40,000 per annum). Ted Nizza was also made a similar solicitation by Respondent; however upon reflection, Nizza declined the solicitation when Respondent became defensive when Nizza suggested that it sounded like a pyramid scheme. Nizza, a former law enforcement officer in New York, did some background checks on Respondent's operations and learned that Respondent had no investigative work available, and that the manner in which monies would be earned, in the main, consisted of bringing in recruits and receiving a fee for each recruit selected, which recruits would pay a substantial fee ($1,000 or more) to be trained and licensed. In soliciting recruits, Respondent sought $1,995 for training or $3,000 for a management position. Respondent had no contracts for private investigative work during times material. At least four individuals gave Respondent down payments and deposits toward training, licensing and sponsorship for private investigative intern licenses. These deposits were in varying amounts from upwards of $200 to $1,000. Although seven recruits paid Respondent a fee to receive training to become licensed, only Straniere's license application was submitted to Petitioner for processing. In soliciting branch managers, Respondent told Nizza that the over- recruitment of private investigators and interns would not be problematic as there was a high turnover in the private investigation industry. During times material, neither Michael Straniere, Ted Steven Triola, Harry H. Orta, Robby L. Keen, Dorcas L. Stafford, Curtis J. Huff, or Joel Smith received any private investigative work from Respondent or through advertisements nor were they refunded any of the monies paid to Respondent. (proffered testimony) /2
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner enter a final order revoking Respondent's Class "C" private investigator license. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of May, 1994. JAMES E. BRADWELL 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 May, 1994.
