The Issue The issue presented for decision in this case is whether Respondent committed the violations of Sections 106.07(5) and 106.19(1)(c), Florida Statutes (1995), as set forth in the Order of Probable Cause and accompanying Statement of Findings issued by the Florida Elections Commission on August 13, 1998.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent John Morroni is a member of the Florida House of Representatives, representing District 50. He was first elected in 1992, and has been reelected subsequently. In 1995, Representative Morroni was serving his second term and beginning his reelection campaign for 1996. Representative Morroni appointed Robert P. Symanski, a certified public accountant, as his campaign treasurer. Representative Morroni designated himself as deputy treasurer for the campaign. Prior to the commencement of each campaign, Representative Morroni signed a "Statement of Candidate" form, attesting that "I have received, read, and understand the requirements of Chapter 106, Florida Statutes." Thomas Carey is a trial lawyer from Clearwater. Representative Morroni had known Mr. Carey before 1992. After Representative Morroni was elected, Mr. Carey served as the liaison between the Florida Academy of Trial Lawyers and Representative Morroni. Mr. Carey is nationally known as a leader in efforts to prevent drunk driving, having served as a local and a national officer of Mothers Against Drunk Driving. Mr. Carey had worked with Representative Morroni in connection with drunk-driving issues. Representative Morroni was reelected without opposition in 1994. After that election, Mr. Carey approached Representative Morroni and offered to throw a kick-off party for his next campaign, telling Representative Morroni to let him know when the time was right to plan such a function. At some point in the summer of 1995, Representative Morroni called Mr. Carey and told him the time was right to plan the kick-off party for the 1996 campaign. Mr. Carey told Representative Morroni that his home could not be used for the party, but that his sister’s house would be ideal for the party. Mr. Carey and Representative Morroni decided that the party would be held on the last week of August. Mr. Carey obtained the consent of his sister, Patricia Rowan, and her husband, Dr. Patrick Rowan, to use their home on Clearwater Beach for the party. The Rowans also agreed to contribute $500 each as an in-kind contribution to defray the costs of the party. In July 1995, Mr. Carey was in the midst of a large jury trial, and did not have the time to oversee the details of the party. At this time, Mr. Sandy Golden was working as a volunteer for Mr. Carey on drunk driving issues, and was beginning to take on some paid personal duties for Mr. Carey. Mr. Carey delegated the planning of the party to Mr. Golden and his friend, Marilyn Curtis. Mr. Golden testified that he had nothing to do with the planning of the party, beyond getting his friend Ms. Curtis involved. Mr. Golden testified that he found Ms. Curtis and that Mr. Carey hired her to coordinate the party. Mr. Carey testified that he had no recollection of "hiring" Ms. Curtis. He testified that he believed Ms. Curtis was volunteering her services, and that it was only after the fact that he agreed to pay her, at the urging of Mr. Golden. Ms. Curtis testified that she had no discussions with Mr. Carey concerning payment for her services. She testified that Mr. Golden assured her that she would be paid. Mr. Carey testified that at the outset he established a budget of $1,500 for the party, and that he based this number on the fact that he and each of the Rowans could lawfully provide $500 as in-kind contributions to the Morroni campaign. Neither Mr. Golden nor Ms. Curtis remembered a firm dollar amount being established before the party. Ms. Curtis telephoned Representative Morroni to obtain a list of invitees and other information for the party. Representative Morroni testified that he knew Ms. Curtis had planned major events for corporate clients, including the president of Outback Steakhouse, and he was concerned that his campaign kickoff party not be too ostentatious. Representative Morroni cautioned Ms. Curtis that this was not a fundraiser, but a party for his campaign co-chairs and friends, and that a "fancy" party was not required or wanted. Ms. Curtis designed and mailed the invitations. She was reimbursed for the printing and mailing of the invitations by personal check from Mr. Carey, in the amount of $106.44, dated August 16, 1995. The party was held at the Rowans’ house on August 26, 1995. Mr. Carey testified that he arrived early and was presented with invoices from the various vendors who provided goods and services for the party. It is undisputed that Mr. Carey paid the following amounts by personal checks dated August 26, 1995: $52.50 for valet parking services; $296.80 for bartending services; and $900 for catering services and dinner buffet; $100 for photography services. By check dated September 13, 1995, Mr. Carey paid an invoice of $79.18 for floral arrangements. At Mr. Golden’s urging, Mr. Carey wrote a check for $300 to Ms. Curtis to compensate her for 15 hours' work on the party, at a rate of $20 per hour. This check was written on August 27, 1995, the day after the party. Thus, Mr. Carey wrote checks totaling $1834.92 to cover expenses for the party, including the $300 payment to Ms. Curtis and the late payment of $79.18 to the florist. There was some dispute at the hearing as to how Mr. Carey came to write these checks and whether he was reimbursed for his outlay of all the expenses for the party. Representative Morroni testified that it was obvious the party cost more than the $500 an individual is allowed by law to contribute, and that he remembered a passing conversation in which he complimented Mr. Carey on the party and expressed the hope that someone was sharing the expenses with him. Representative Morroni testified that a more detailed discussion as to the division of expenses would have been improper, given that this was a party and there were 28 other campaign people present. He also considered Mr. Carey to be knowledgeable and experienced in political matters, and thus not in need of a lecture about contribution limits. Mr. Golden testified that he was present during the brief conversation between Mr. Carey and Representative Morroni. Mr. Golden’s recollection was similar to that of Representative Morroni. Mr. Golden recalled Representative Morroni complimenting Mr. Carey on the party, then reminding Mr. Carey of the $500 limitation and telling Mr. Carey to be sure he "split out" the costs of the party. Mr. Carey testified that a more detailed conversation took place. As noted above, Mr. Carey testified that he had established a $1,500 budget for the party, based on $500 contributions from him and from each of the Rowans. As the invoices rolled-in during the party, Mr. Carey became concerned that the $1,500 budget was going to be exceeded, and concerned as to the logistics of paying the invoices. Mr. Carey testified that he discussed these matters with Representative Morroni in the presence of Mr. Golden and Mrs. Rowan. One option discussed was for Mr. Carey and the Rowans to write $500 checks to the Morroni campaign, which would in turn pay the invoices. Another option was to divide each invoice three ways and write three separate checks to cover each one. Mr. Carey testified that Representative Morroni suggested that, because Mr. Carey had already paid some of the invoices, he keep writing his personal checks to cover them, then have the Rowans reimburse him. Mr. Carey thought this the most workable option, and so continued paying the invoices by personal check. Mr. Carey testified that the group still had to deal with the contingency of the expenses exceeding the $1,500 budget. Mr. Carey testified that, at Representative Morroni’s suggestion, Mr. Golden agreed that any amount over $1,500 would be attributed to him, and that Mr. Golden would reimburse Mr. Carey by working for him without pay on drunk-driving issues. Mr. Golden flatly denied ever agreeing to such an arrangement or agreeing to make a contribution of any kind to the Morroni campaign. As noted above, Representative Morroni testified that he had no recollection of this detailed conversation taking place, let alone suggesting the payment/reimbursement plan outlined by Mr. Carey. Representative Morroni’s testimony, as corroborated by Mr. Golden's, is credited on this point. Representative Morroni testified that he had a difficult time getting hold of Mr. Carey to obtain the contribution details for inclusion in his campaign finance report. As the reporting deadline approached, Representative Morroni made several telephone calls to Mr. Carey. At length, he reached Mr. Carey, who gave him the needed information over the telephone. Representative Morroni relayed the information to Mr. Symanski, his campaign treasurer, who in turn included the information in the campaign treasurer’s report for the period July 1, 1995 through September 30, 1995, filed October 10, 1995. Mr. Carey testified that he had no clear recollection of providing the numbers to Representative Morroni, and that he believed Mr. Golden had provided the information to the Morroni campaign. Mr. Carey testified that if he did call Representative Morroni with the information, he simply would have been relaying information provided to him by Mr. Golden. Representative Morroni’s testimony is credited, and it is found that Mr. Carey provided the numbers to Representative Morroni. It was undisputed that the figures included in the referenced treasurer’s report accurately reflected Mr. Carey’s oral report to Representative Morroni. The relevant figures related to the kick-off party were as follows, all listed as "in-kind contributions" and dated August 26, 1995: Name Amount Description Dr. Patrick Rowan $500 Kick-off Party Expenses Mrs. Patrick Rowan $500 Kick-off Party Expenses Mr. Tom Carey $500 Kick-off Party Expenses Ms. Marilyn S. Curtis $79.26 Kick-off Party Expenses Mr. Sandy Golden $300 Kick-off Party Expenses Thus, the total reported expenses for the party were $1,879.26, as compared to $1,834.92 in actual paid invoices. Representative Morroni testified that he took these figures from Mr. Carey at face value, seeing no reason to question their accuracy or completeness. He knew that all the individuals listed as contributors were present at the party and were involved in its organization. Representative Morroni testified that he took down the figures and reported them directly to Mr. Symanski. Mr. Symanski testified that he had no previous experience serving as a campaign treasurer, and felt that it was not his position to "challenge" someone who claimed to have made an in-kind contribution. His practice was to refer any questions regarding in-kind contributions to Representative Morroni. Mr. Symanski testified that $1,800 "seemed like a lot more than what we would have spent, but if that’s what they said they spent, that’s what I recorded." He testified that the $500 allocations for the party did not raise concerns in his mind, because he knew beforehand that the costs of the party would have to be split up in some fashion. Both Representative Morroni and Mr. Symanski testified that, as a general matter, they reported in-kind contributions based upon the word of the contributor. They did not ask for receipts or other verification of the amount claimed by the contributor, provided those amounts seemed reasonable. Neither man was aware of any legal requirement that a candidate or campaign obtain documentation of the value of in-kind contributions. Other factual issues were raised by the parties that are ultimately tangential to the resolution of this case but nonetheless require resolution to complete the record. First, the Commission questions the veracity of Mrs. Rowan’s testimony regarding the $500 contributions made by her and her husband, because Dr. and Mrs. Rowan initially executed affidavits, on forms sent by the Commission’s investigator, attesting that they made no contributions to the Morroni campaign. Mrs. Rowan’s explanation of this seeming contradiction is credited. She testified that her husband has been extremely ill, having been diagnosed with a brain tumor in January 1998. In fact, as of the date of the hearing, Dr. Rowan had already outlived his initial prognosis of one year. The Rowans learned of Dr. Rowan’s condition at roughly the same time they executed the original affidavits. Mrs. Rowan testified that under the circumstances neither she nor Dr. Rowan paid much attention to the affidavits. Mrs. Rowan testified that someone later mentioned to her a newspaper article listing her as a contributor to the Morroni campaign. The article jogged her memory regarding the party and caused her to execute a corrected affidavit reflecting her $500 in-kind contribution. She had no explanation as to why the corrected affidavit was not provided to the Commission until the date of the hearing. On the date of the kick-off party, Mrs. Rowan wrote a check to her brother, Mr. Carey, in the amount of $4,200. She testified that $1,000 of this amount was the contribution of her and her husband to the party expenses, and the remainder was payment for legal services performed by Mr. Carey. Her testimony is credited on this point. Respondent presented testimony regarding a subsequent falling-out between Mr. Carey and Mr. Golden over tactics in the crusade against drunk driving, as well as testimony regarding Mr. Golden’s feeling that Representative Morroni had "sold out" on the drunk-driving issue. Respondent’s purpose was to provide an ulterior motive for Mr. Golden’s filing the confidential complaint in this matter some two years after the events occurred, and to at least imply that Mr. Golden is mentally unstable and unreliable as a witness. It is found that the facts concerning the Carey/Golden feud, all of which occurred after the events here at issue, are irrelevant to this proceeding, except as they provide some indicia that both Mr. Carey and Mr. Golden have reasons, rational or otherwise, to make each other look as bad as possible. Mr. Golden’s motive in filing the confidential complaint is irrelevant. As to Mr. Golden’s reliability as a witness, the only relevant point on which his testimony is contradicted concerns whether he agreed to have the party expenses exceeding the purported $1,500 budget attributed to him, to be "worked off" at a later time. For the reasons set forth in the Conclusions of Law below, it makes no difference to the resolution of this case whether Mr. Golden or Mr. Carey is credited as to whether this arrangement was made. The relevant point is whether Representative Morroni was aware of any such arrangement, such that he could be found to have willfully signed a false or incorrect report. Representative Morroni’s testimony that he was not aware of such an arrangement is credited.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Elections Commission enter a final order dismissing the charges against the Respondent, Representative John Morroni. DONE AND ENTERED this 28th day of April, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1999. COPIES FURNISHED: Michael T. McGuckin Assistant General Counsel Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Chris Haughee, Esquire Greene, Donnelly & Schermer 102 West Whiting, Suite 201 Tampa, Florida 33602-1480 Barbara Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Steven Christensen, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue The issue to be resolved in this proceeding concerns whether the Respondent willfully violated Section 106.141(1), Florida Statutes, by failing to properly account for and report the expenditure of certain campaign funds.
Findings Of Fact The Respondent was elected as State Attorney for the Seventh Judicial Circuit in 1988. He defeated the incumbent at that time, Stephen Boyles. Thereafter, in 1992, the Respondent was a republican candidate for re-election as State Attorney in that circuit. The Respondent was challenged in that republican primary in 1992 by Steve Alexander, a former Assistant State Attorney, under both Mr. Boyles and the Respondent. The campaign was a nasty and personal one, focusing on the Respondent's religious beliefs, including his prison ministry. The Respondent was defeated by 57 votes of more than 40,000 votes cast. Upon being defeated in the primary, the Respondent elected to support the democratic candidate in the general election, Ted Doran. The Respondent sent letters on his campaign stationery through the law office of Kermit Coble, a partner with the firm of Coble, Woods, Seps, Clayton and Teal. Two groups of letters were sent out: one to supporters of the Respondent in the primary and another to all members of the Florida Bar for the Seventh Judicial Circuit. The postage on these letters was provided through Mr. Coble's postage meter at his law firm and totaled $260.00. There came a time when Mr. Coble and representatives of his law firm called the Respondent to request reimbursement for the postage funds expended, the $260.00. The Respondent, therefore, wrote a check to reimburse Mr. Coble for the postage early on the morning of October 1, 1992. He used a check drawn on the campaign account. Typically, Mrs. Tanner wrote the check, both on the campaign checkbook and on their personal checkbook. The Respondent did not normally write checks. However, on this occasion, the Respondent did not want to bother Mrs. Tanner with the issuance of the reimbursement check. She was a student at the time, in graduate school, in addition to having to care for two daughters, the youngest of which was causing her parents considerable difficulty. Although the Respondent had read Chapter 106, Florida Statutes, in connection with embarking on his political campaign, he did not recall a specific prohibition which barred the use of campaign funds for the purpose involved in this proceeding. The use of the campaign checkbook did not trigger any awareness, at the time the Respondent issued the check, of any inappropriateness of using campaign funds in that manner. He did not give his action the thoughtfulness and attention that he should have, by his own admission. He conceded that he was pre-occupied with other duties and responsibilities at the time and failed to adequately consider the legal ramifications and consequences of his actions. At about this time, he was heavily involved in the preparation of a "double murder case", one of several significant cases in his office that he was attempting to complete prior to the end of his term of office. In fact, he had just recently completed the trial of serial killer, Aileen Wuornos. He had been keeping very long hours, arising before dawn and working late at night in order to prepare for each day's work and complete it. Several weeks later, he realized he had made an error in using campaign funds to pay for the postage charge. He requested Mrs. Tanner to reimburse the campaign account from their personal funds. He then relied upon and trusted his wife, Mrs. Tanner, who was also his campaign treasurer, to accomplish the reimbursement payment. He did not actually follow up on his request to her and gave it no further thought, assuming that it had been done. The Respondent and his wife have been married for 25 years, and she served as his campaign treasurer for both of his political campaigns in 1988 and 1992. She collected and deposited contributions to the campaign, wrote checks for campaign expenses, and she was responsible for completing and timely filing campaign reports with the Division of Elections and with local elections officials in her capacity as campaign treasurer. Mrs. Tanner acknowledged that the Respondent had asked her to reimburse the campaign account from their personal funds and that she had simply forgotten to do it. This time in question was a difficult time for her and her family. She was a student in graduate school and working as the mother of teenage daughters. Their younger teenage daughter was having behavioral problems which made her difficult to manage. Additionally, at the same period of time, the Respondent's mother was ill and required medical attention, including emergency room visits. In summary, it was a stressful, difficult time for the Respondent and his wife. Mrs. Tanner was quite distracted from the orderly, normal performance of her duties as a mother and student, as well as a campaign manager. She simply forgot to make the reimbursement, after being requested to do so by the Respondent. The Respondent and his wife filed the campaign treasurer's report dated October 5, 1992, which covered the period of August 28, 1992 through October 5, 1992. This report did not include any reference to the expenses related to the letters sent on behalf of Ted Doran. A note attached to the report, however, indicated that an amended report would be filed. The final campaign treasurer's report, covering the period October 5, 1992 through December 12, 1992 did include an expense of $260.00 to reimburse the firm of Coble, Woods, Seps, Clayton and Teal for the postage in question. The report did not note any payment from the Tanners' personal funds to the campaign as reimbursement for that postage. The Respondent and his wife signed the campaign treasurer's reports, as required by law, certifying the correctness and completeness of the report, which the Respondent believed to be the case at the time he signed it. He testified that he reviewed the report for accuracy, completeness and legal compliance and did not note the lack of an entry showing a personal reimbursement to the campaign account. He stated that the report was accurate and complete and that it contained all financial activities of the campaign for that period in question. On January 12, 1993, however, a sworn complaint was filed by Shirley Bundy, former chairwoman of the Volusia County Republican Party Executive Committee, against the Respondent. She complained of the use of the Tanner republican campaign stationery to support a democratic candidate. The complaint also stated that a "reliable source" had informed Mrs. Bundy that Kermit Coble had paid the postage for the letters the Respondent sent in support of democratic candidate, Ted Doran. Thereafter, pursuant to statutory authority, the Division of Elections initiated an investigation in response to the Bundy complaint. Investigator, C.L. Ivey, was assigned to conduct the investigation. He is an experienced investigator, having over 31 years of experience with the Florida Department of Business Regulation and the Florida Department of Professional Regulation. On March 8, 1993, the Respondent filed an initial response to the complaint. He attributed the complaint to political retribution by Mrs. Bundy. He stated at that time that the postage cost had been reimbursed to Mr. Coble "with a personal check". He believed that that had, indeed, been done at the time he made that representation. The Respondent testified at hearing that he summarily put together his initial response to the complaint without reviewing his records or consulting his wife about the matter. He knew that she had been under a lot of stress at the time and did not even mention it to her. He was in the process of re- establishing his private law practice and was very pre-occupied with that and, therefore, relied exclusively on his memory of the facts involved in making the initial response to the complaint. Shortly thereafter, as part of his investigation, Mr. Ivey sought certain information and records from the 1992 campaign from Mrs. Tanner. She asked the Respondent about the request for information and, after further discussion and review of pertinent records, the Respondent and Mrs. Tanner learned that the Respondent's initial response, indeed, was incorrect. This was the first time that the Tanners had discussed the matter since the Respondent's original request for Mrs. Tanner to reimburse the campaign account from their personal account. On March 23, 1993, the Respondent filed a notarized, corrected response to the complaint, in which he explained the circumstances of his initial response, as well as explaining the circumstances surrounding the payment of the postage to Mr. Coble's law firm and the failure of Mrs. Tanner to reimburse the campaign funds from their personal funds, as he had requested her to do. The Respondent stated in this corrected response that in the last months of his term as State Attorney, he was pre-occupied with other matters and "was just too busy and did not give this matter my personal attention". Simultaneously with making this corrected response, the Respondent sought to reimburse the general revenue fund of the state for $260.00 with his personal check. He was informed that he needed to file an amended campaign report and to sent his reimbursement check with that report. He promptly did so and made his reimbursement to the general revenue fund at that time. Mr. Ivey completed his investigation and submitted his report on April 28, 1993. The report was based solely on documentary evidence. Mr. Ivey did not interview, depose, or otherwise interrogate the Respondent or Mrs. Tanner. Following the completion of his report, Mr. Ivey had no further contact with the case. Mr. Ivey had a case load at that time of 30 or 40 cases assigned to him. Mr. Ivey testified that he tries to complete investigations within a six-month period. He testified at hearing that because of the case load and limited resources available to him, many investigations had to be handled through correspondence, without an interview or a deposition. In this case, one of the reasons why an interview or deposition was not conducted, according to Mr. Ivey, was because the Respondent admitted all of the acts necessary to make out a violation of the statute, except for denying the element of willfulness. The investigative report stated that the Respondent had acknowledged the improper payment of the postage and had taken steps to correct it. The report also states that the Respondent did not acknowledge that the violation was willful. More than one year after Mr. Ivey completed his report, on May 19, 1994, the Division of Elections found probable cause to believe that a willful violation of Section 106.141(1), Florida Statutes, had occurred. A letter from Barbara Linthicum informing the Respondent of that finding was sent on May 19, 1994 to the Respondent. He testified, however, that he had never received that letter. The Florida Elections Commission issued its order of probable cause on June 28, 1994. It has not been established by sufficient, preponderant evidence of record that the Respondent willfully violated Section 106.141(1), Florida Statutes, as alleged. The probable cause finding was based only on an investigation which consisted of a review of documents and not upon consideration of any testimony or statements by either the Respondent or Mrs. Tanner. The weight of the evidence establishes that the Respondent acted in a careless manner but that his conduct was not "willful", as that term is employed and intended in Section 106.l41(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered dismissing the complaint against John Tanner for the reasons found and concluded above. DONE AND ENTERED this 28th day of February, 1995, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4641 Petitioner's Proposed Findings of Fact 1-14. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely in accord with the weight and credibility of the preponderant evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. The Hearing Officer has made the findings of fact on this subject matter after weighing, considering and determining the candor and credibility of the witnesses and evidence. Accepted, in the sense that the Respondent, if he had adequately reflected, would have known that the campaign check written was in violation of the law but not in terms of the violation being willful, intentional and conscious at the time he wrote the check. Consequently, this proposed finding of fact is subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as contrary to the Hearing Officer's findings of fact made on this subject matter after determining the candor and credibility of the witnesses and the evidence. Accepted, only in terms of a mere recitation of the attempted proof of the Respondent concerning bias on the part of agency personnel. It has not been found that such bias, if any existed, had an effect on the prosecution of this case by the agency and the Respondent has candidly receded from that position in a post-hearing letter to the Hearing Officer and opposing counsel. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact are accepted, to the extent that they are in accord with the findings of fact made by the Hearing Officer. Proposed findings number 28 and numbers 30 through 39 are rejected as being immaterial and unnecessary to an adjudication of this dispute. COPIES FURNISHED: David R. Westcott, Esq. Florida Elections Commission The Capitol, Room 2002 Tallahassee, FL 32399-1007 Christopher R. Haughee, Esq. AKERMAN, SENTERFITT & EIDSON, P.A. 216 South Monroe Street, Suite 200 Tallahassee, FL 32301 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, FL 32399-0250 Don Bell, Esq. General Counsel Department of State The Capitol, PL-02 Tallahassee, FL 32399-0250
Findings Of Fact In February, 1984, Respondent herein, Lorenzo Thomas, sought and received official permission to seek the office of Manatee County Commissioner pursuant to Section 110.233(4)(a), Florida Statutes. He thereafter filed for election and was defeated. At the time, Respondent was serving as a volunteer coordinator with District VIII, a full-time Career Service position, and the office sought was a partisan office. The office held by Respondent at the time, that of volunteer coordinator, was at least partly funded by federal funds and under the provisions of the Federal Hatch Act, he was precluded from seeking partisan public office. This determination, however, was not communicated to the Respondent even though it was contained in a memorandum dated August 22, 1984 from C. T. Clagett, District Personnel Officer, and addressed to the Respondent at his office symbol. Respondent, therefore, believed that his application had been approved without qualification. In January, 1988, Respondent decided to again run for election to the office of Manatee County Commissioner, a position which remained a partisan political office. At the same time, he continued to occupy his position as a volunteer coordinator with the Department. His position was funded at least 25%, from federal funds. Respondent did not submit a request to his District Administrator, Ms. Dry, but discussed the matter with his immediate supervisor, Mr. Ward, and with several other coworkers and individuals. No one to whom, he spoke, indicated to him or raised the possibility that he would be ineligible to run because of the partial federal funding of his position or that if he ran for partisan political office, he would, by operation of law, be deemed to have resigned. Department regulation 60-30, dated November 15, 1982, which deals with political activities at subparagraph 4c(6), identifies as prohibited political activity, candidacies for partisan elective office by employees of the Department whose principal employment is in connection with an activity which is funded wholly or in part by federal funds or grants and subject to the Federal Hatch Act. Relying on the mistaken belief that his prior application had been properly approved, and believing that none of the circumstances which pertained at the time of the 1984 application had changed, Respondent failed to submit a new application relating to his new campaign for office in 1988. On July 20, 1988, Delores Dry, the District VIII Administrator, while in Tallahassee, received information that Respondent had initiated a campaign for local partisan office and on her return to her office on July 21, 1988, met with Respondent concerning it. When Respondent indicated he contemplated filing for office she informed him that he occupied an office covered by the Hatch Act and since the office sought was a partisan political office, he might be precluded from lawfully running. She also advised him that if she had the authority to do so, she would grant him a waiver, but that she did not have that authority. She advised State Senator Woodson of the same thing. Woodson, in turn, passed this information on to Thomas. July 22, 1988, was the last day for filing for election and on that date, prior to receipt of approval from his supervisor, Mr. Thomas filed for election to the Manatee County Commission and submitted his request to Ms. Dry through his immediate supervisor, Mr. Ward. Mr. Ward, in turn, forwarded the application with a recommendation for approval. The application was received by Ms. Dry on July 26, 1988 and Ms. Dry, who had done her research in the interim, denied the application and returned it to Respondent by mail that same day. She is satisfied he did not intend to violate the rules and that his mistake was an honest one. At no time was Mr. Thomas advised by anyone in authority that his application had been or would be approved. He believed, that his prior application approval, which he had not been advised was erroneously approved, would pertain again. However, the 1988 election was a separate election entirely from that for which he had received prior approval. He did not apply until the day of filing and his filing was accomplished prior to receipt of approval from Ms. Dry. He was not misled by anyone in authority with the Department, nor could he reasonably believe, based on his conversations with Ms. Dry or Senator Woodson, that approval was forthcoming
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, LORENZO THOMAS, be deemed to have resigned his position with the Department of Health and Rehabilitative Services effective upon receipt of the District VIII Administrator's memorandum to him of August 1, 1988. RECOMMENDED this 12th day of January, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK 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 12th day of January, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4585 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted herein. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein Accepted and incorporated herein Petitioner advised his agency in writing of his candidacy the day he filed for election. & 6. Accepted and incorporated herein 7. & 8. Accepted and incorporated herein FOR THE RESPONDENT 1. & 2. Accepted and incorporated herein 3. & 4. Accepted and incorporated herein 5. - 7. Accepted and incorporated herein 8. & 9. Accepted in part but rejected as to the finding that Ms. Dry agreed to unequivocally grant Petitioner a waiver. Her agreement was conditioned upon her having the authority to waive, which she did not have. Accepted in part. Petitioner was not assured of any waiver. His interpretation of Ms. Dry's comments in that light was unjustified. Rejected in that Petitioner's reliance on the 1984 letter and the comments of Mrs. Dry and Mr. Ward was not reasonable. The rule clearly requires advance approval. He did not have it. COPIES FURNISHED: Anthony N. DeLuccia, Jr., Esquire District Legal Counsel HRS District VIII Post Office Box 06085 Ft. Myers, Florida 33906 Layon F. Robinson, II, Esquire 442 Old Main Street Bradenton, Florida 34205 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Findings Of Fact In July, 1992, the Department of Health and Rehabilitative Services (HRS) published notice soliciting proposals from interested attorneys to provide intrastate and interstate child support legal services HRS District VI. The services were to be provided from October 1, 1992, through June 30, 1993. (Exhibit #4). Within relevant deadlines, protests to the written specifications of the solicitation were filed by Petitioner, Donald W. Belveal, and others. HRS determined that material disputes of fact existed and the protests were referred to the Division of Administrative Hearings (DOAH) where the cases were consolidated and set for final hearing. (Exhibit #5) Hearing Officer, Veronica Donnelly, conducted the hearing and issued a recommended order on December 22, 1993, recommending that the specifications be rejected as flawed and that they be extensively revised. (Exhibit #5). Exceptions were filed, and upon a suggestion of mootness HRS entered a final order on March 17, 1993, dismissing the proceedings and finding further: No Final Order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees. The request for a determination of attorney fees is DENIED. The request to dismiss the department's exceptions to the Recommended Order is DENIED. (Exhibit #6) Donald Belveal appealed this final order to the Second District Court of Appeal. The full opinion of the court in Donald W. Belveal v. State of Florida, Department of Health and Rehabilitative Services, case no. 93-01121, dated February 25, 1994, provides: The law firm of Donald Belveal appeals a final agency order entered by the Florida Department of Health and Rehabilitative Services (HRS) which dismisses administrative proceedings and denied Belveal's motion for attorney's fees and costs under section 57.111(4), Florida Statutes (1991) on the ground that Belveal was not a prevailing party. We reverse. Belveal and other lawyers formally protested a bid solicitation package prepared by HRS to procure legal services for its child support program in Hillsborough County. The Department of Administrative Hearings (DOAH) held a formal hearing after which the hearing officer entered a recommended order that the package be revised, citing numerous improprieties. HRS filed excep- tions to the order. In addition, to prevent a lapse in services during the protest proceedings, HRS extended the existing contract for legal services to cover the remainder of the bid proposal period. Arguing that the extension nullified the bid solicitation and rendered the administrative contest moot, Belveal and the others filed a motion to dismiss the exceptions. They also asked that the case be remanded to DOAH for an award of attorney's fees and costs under the Florida Equal Access to Justice Act, section 57.111(4), Florida Statutes (1991). The deputy secretary for human services of HRS entered a "final order" which concluded that Belveal's motion to dismiss/suggestion of mootness was tantamount to a request that the proceedings be discontinued. The department dismissed the proceedings, denied the request to dismiss HRS's exceptions, and denied the request for attorney's fees stating, "[n]o final order has been issued in this cause which granted any affirmative relief to Petitioners. Therefore, they are not a prevailing party, and are not entitled to attorney fees." HRS exceeded its authority in entering this order. First, the dismissal of the action exceeded the scope of the motion to dismiss the exceptions. Second, the determination of whether Belveal was a prevailing party entitled to attorney's fees and costs was solely within the jurisdiction of the DOAH hearing officer. See Dep't. of Health and Rehabilitative Services v. S. G., 613 So. 2d 1380, 1384 n.1 (Fla. 1st DCA 1993). Because HRS denied the motion to dismiss the exceptions yet never ruled on the hearing officer's recommended order, we remand the case to HRS for further proceedings in accordance with section 120.57, Florida Statutes. Reversed; remanded. In addition, the appellate court issued its order granting fees in the appeal, "...provided that appellant is ultimately the prevailing party in the proceeding below." (Exhibit #2) HRS entered its corrected final order on June 22, 1994, finding the case to be moot with the exception of the attorney's fees issue, acknowledging that the agency is without jurisdiction to determine who is the prevailing party and entitled to fees, and dismissing the case. (Exhibit #4) It is undisputed that Donald Belveal is a small business party. (Respondent's proposed final order, paragraph 8). Donald Belveal claims total fees of $21,292.25, incurred in the administrative proceeding, which fees are based on 121.67 hours at an hourly rate of $175. He claims additional fees for the appeal. (Exhibit #3) As stipulated, the claimed fees are reasonable, but the award may not exceed $15,000. (Respondent's proposed final order, paragraph 9.)
Findings Of Fact Petitioner is a permanent Career Service employee of the Department of Offender Rehabilitation (DOR), State of Florida, who was serving as a Planner and Evaluator II, Class Code 5291, Position No. 04038, Planning and Development Section, Bureau of Planning, Research and Statistics, in July, 1977. (Composite Exhibit 3) The 1977 Florida Legislature reduced the number of authorized positions in the DOR through "productivity adjustment," effective July 1, 1977. By letter of July 26, 1977, the Secretary of the DOR requested the Secretary of Administration to approve a statewide competitive area for the positions to be abolished. By letter of July 27, the Secretary of Administration approved the requested competitive area to include all organizational units on a statewide basis within the Department. At that time, the DOR had four positions in the class of Planner and Evaluator II. These were then held by Petitioner, Sunil Nath, Position 00053, Edward M. Teuton, Position 07974, and Bill C. Schnitzer, Position Number 03756. All of these positions except Position 07974 were abolished as a result of the legislative mandate. The incumbents of the four positions met with Mr. James A. Ball, DOR Personnel Officer, on or about July 28, 1977. At that time, he informed them of the position deletions and consequent necessary layoffs. Ball indicated in his comments to the group that the Petitioner would not be adversely affected because he had the greatest number of retention points of the four individuals. It was further indicated by Ball to Petitioner at this meeting and in later discussions that Petitioner would assume the duties of the remaining Position 07974 and proceed to "phase in" to the job. By letters dated August 5, 1977, Nath, Teuton and Schnitzer were notified by the Secretary of the DOR of their layoff under State Personnel Rule 22A-7.11, and advised of their options and rights under pertinent law. (Composite Exhibits 1-4, Testimony of Ball, Fitzgibbon) By letter of August 31, 1977, to the State Personnel Director, the Secretary of the DOR requested that selective competition be approved under State Personnel Rule 22A-7.11(3) for the position of Planner and Evaluator II, DOR, Class Code 5291, Position Number 07974, among persons affected by layoff in the Department. The letter stated: The specific background necessary to perform the job requirements of this unique position of Mutual Participation Program Administrator are reflected below and relate directly to the duties of the position as reflected on the official Position Description, a copy of which is attached. The letter further indicated the particular qualifications for the position. The Position Description attached to the letter set forth the duties and responsibilities of the job, but did not specify particular qualifications required of the incumbent. Conley M. Kennison, State Personnel Director, in a letter of September 8, 1977, approved selective competition for the position in question "In accordance with Section 22A-7.11(3), Personnel Rules and Regulations, F.A.C., and based on the specific qualifications required of this position to function as the coordinator for the Mutual Participation Program as substantiated by the Position Description you submitted." The concept of selective competition for a position arises only in layoff situations. Under normal layoff procedures, an employee's number of retention points computed under Rule 22A-7.11 determines priority for available remaining positions. However, if selective competition is used, only those employees possessing the special qualifications for a particular position are eligible to compete therefor, and if several have the necessary qualifications, the employee with the highest retention points is selected. Approval for selective competition is based on special qualifications that must be derived from the official Position Description. In such cases, an economic impact statement is not prepared nor are the normal procedures for promulgation of a rule. Neither are Position Descriptions promulgated as rules under Chapter 120, Florida Statutes. Minimum qualifications for a particular class of positions are set forth in separate documents called Class Specifications. Position Descriptions are prepared by the affected agency and approved by the Department of Administration. In the instant case, the Deputy State Personnel Director approved selective competition for Position 07974 based upon qualifications considered necessary from the duties and responsibilities shown in the Position Description. (Composite Exhibit 2, Testimony of Dean) After approval had been obtained for selective competition for Position 07974, it was determined by DOR that only Edward M. Teuton, the incumbent of that position, possessed the necessary qualifications. As a result, Petitioner, who had no prior knowledge that selective competition was to be applied, was orally informed by his supervisor on September 13 or 14 that he would not receive the position and that Teuton would retain the same. On September 19, he received a letter dated September 14, 1977, from the Secretary of the DOR, which provided formal notice of layoff, and informed him of his right to appeal such action and to request demotion or reassignment to a position for which he might be eligible. He thereafter appealed the layoff and requested demotion in lieu thereof based on information received from the Department Personnel Officer who told him that he would have to take such action in order to retain state employment. (Composite Exhibit 4, Testimony of Petitioner)
The Issue The issue in this case is whether Respondent, the Department of Corrections, discriminated against Petitioner, Nader F. Fahami, on the basis of his race, Asian, and his national origin, "Iranian".
Findings Of Fact The Parties. Petitioner, Nader F. Fahami, was born in Iran. Mr. Fahami's race is considered "Asian" for purposes of this proceeding. Mr. Fahami has lived in the United States for approximately 16 years. The Department of Corrections (hereinafter referred to as the "Department"), is an agency of the State of Florida. Among other things, the Department is responsible for the design of facilities used to house inmates under the supervision of the Department. The design of facilities is the responsibility of the Bureau of Facility Services (hereinafter referred to as the "Bureau"), of the Department. Mr. Andres Santana is the Engineer Supervisor of the Bureau. Mr. Santana is an Hispanic male. Mr. Fahami's Qualifications for Employment. Mr. Fahami has been awarded a B.A. degree in architecture from Florida A & M University. Mr. Fahami has also been awarded a B.S. degree in Architectural Technology from Florida International University. Mr. Fahami has experience in engineering drafting. Mr. Fahami lacks working knowledge and experience with "computer aid drafting" or "CAD". CAD is a computer program utilized by the Bureau in its drafting work. Mr. Fahami's Application for Employment. During 1992, Mr. Fahami contacted Mr. Santana about employment with the Department. Although there were no employment opportunities available for Mr. Fahami at that time, Mr. Santana suggested that Mr. Fahami file a State of Florida employment application and resume in case future positions opened. In October of 1993, an Engineer I position became available with the Bureau and was advertised. Mr. Fahami filed an application for the position. Mr. Fahami was interviewed by Mr. Santana. Mr. Fahami was one of 17 applicants Mr. Santana and his immediate supervisor agreed to grant interviews to. The interviews for the Engineer I position consisted of asking applicants questions which they were allowed to answer verbally, and a written test. Mr. Fahami only correctly answered 8 of the twenty written questions, the lowest of any applicant. In fact, Mr. Fahami's score is the lowest ever achieved by the approximately 50 different individuals that have taken the written test for various positions with the Bureau. Mr. Fahami was not hired for the Engineer I position. During the first three months of 1994 the Department hired 3 architectural drafts-persons. The positions were to be paid for out of "Other Personnel Services" and are referred to as "OPS" positions. The first OPS position was advertised in the Tallahassee Democrat. The Bureau was looking for someone with a strong background in plumbing, heating and air conditioning and electrical drafting. The Bureau was also looking for someone with CAD experience. Mr. Fahami was interviewed by Mr. Santana for the first OPS position. Mr. Fahami's application for the position in October of 1993 had been maintained by the Department. Mr. Fahami was not, however, offered the position. Michael Kirkland was hired to fill the first OPS position. Mr. Kirkland, a white male, had 5 years of architectural drafting experience and 11 years of plumbing, air conditioning and electrical drafting experience. Mr. Fahami only had 4 years of architectural drafting experience and 3 years of plumbing, air conditioning and electrical drafting experience. A second OPS position was created because Mr. Kirkland could not report to work until he had given his former employer 2 weeks notice. For the second OPS position the Bureau was looking for someone with good manual drafting skills and experience in computer drafting. Mr. Fahami was not interviewed for the second OPS position since he had just been interviewed for the first position. Mr. Fahami was not offered the second OPS position. Maria Caspary, an Hispanic woman, was hired for the second OPS position. Ms. Caspary had 5 years of architectural manual drafting and 1 year of CAD experience. Ms. Caspary had been awarded bachelor degrees in design and in architecture. The third OPS position was created in February of 1994. For this position the Bureau was seeking a person with CAD experience. Mr. Fahami was not interviewed for this position either because of his recent interview. Mr. Fahami was also not hired by the third OPS position. Maria Yebra, an Hispanic woman, was hired for the third OPS position. Ms. Yebra had 2 years of CAD experience. She had also been awarded bachelor degrees in design and in architecture. In addition to the OPS positions created in 1994, the Department created another OPS position in March of 1995. The Bureau was seeking an individual with manual and computer drafting skills. Mr. Fahami was not interviewed for the OPS position created in March of 1995. Nor was Mr. Fahami hired for the position. The OPS position created in March of 1995 was filled by Luis Lara, an Hispanic male. Mr. Lara had earned bachelor and masters degrees in architecture. Mr. Lara also had 8 years of drafting experience, including 2 years experience with CAD. The Department's Employment Decisions. In all four of the employment decisions related, supra, Mr. Santana recommended that his immediate supervisor, Mr. Steve Watson, hire the individual ultimately hired by the Department for the OPS positions. The evidence failed to prove that Mr. Santana's recommendations were not related to the education and relevant experience of the individuals he recommended for the OPS positions as compared to Mr. Fahami's education and relevant experience. The evidence also failed to prove that Mr. Santana took into account Mr. Fahami's race or national origin in deciding not to recommend him for employment. The evidence failed to prove that Mr. Watson made the decision to hire Mr. Kirkland, Ms. Caspary, Ms. Yebra or Mr. Lara based upon their race or national origin. The evidence also failed to prove that Mr. Watson failed to hire Mr. Fahami because of his race or national origin. The evidence failed to prove that Mr. Fahami was more qualified than any of the individuals hired by the Department for the OPS positions at issue or that his race or national origin played any role in the Department's decision not to hire him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Nader Fahami's Petition for Relief. DONE AND ENTERED this 9th day of February, 1996, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 95-4954 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Fahami did not file a proposed order. The Department's Proposed Findings of Fact 1 Accepted in 1 and 7. 2 Accepted in 8-9. 3 Accepted in 10. 4 Accepted in 6, 11, 14 and hereby accepted. 5 Accepted in 12 and hereby accepted. 6 Accepted in 13 and hereby accepted. 7 Accepted in 13 and 15. 8 Accepted in 16 and 18. 9 Accepted in 19-20. 10 Accepted in 21-23. 11 Accepted in 24-27. 12 Accepted in 25-27. COPIES FURNISHED: Nader F. Fahami 5800 University Boulevard; West 119 Jacksonville, Florida 32216 J. D. Lester, Supervisor Department of Corrections Civil Rights Unit 2601 Blairstone Road, Room 300 Tallahassee, Florida 32399-2500 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Harry K. Singletary, Jr., Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500
The Issue The issues for determination are whether Respondent, Frank Moore, violated section 112.313(6), Florida Statutes (2008), by misusing his position and/or resources within his trust to help Lonnie Evans in his 2008 re-election campaign for Mayor of Coleman; whether Respondent violated section 112.313(6) by engaging in a traffic stop of Timothy Brunson to discuss a pending ethics complaint; and if either or both violations are proven, what penalties should be imposed?
Findings Of Fact Frank Moore was an officer with the City of Coleman Police Department prior to Lonnie Evans' first election as Mayor, and became the Coleman Chief of Police at some point after Evans' first election as mayor. Chief Moore retired in 2010, but remains employed by the City of Coleman as a reserve officer. Lonnie Evans served as mayor of the City of Coleman for twelve years. Prior to his service as mayor, he was on the City Council for 24 years. Respondents Moore and Evans were, at all times relevant to this proceeding, subject to the requirements of chapter 112, part III, Florida Statutes, otherwise known as the Code of Ethics for public officers and employees. Lonnie Evans ran for re-election as mayor in 2008, and was defeated by Eve Carruthers. The election was held on December 8, 2008. Coleman is a small town in Sumter County, Florida, with approximately 600 residents and 200 registered voters. Because of the size of the community and the nature of their jobs, Frank Moore and Lonnie Evans know each other fairly well, and are, in turn, well-known in the community. At the time relevant to this case, the police department in the City of Coleman consisted of three officers: the police chief, one additional full-time patrol officer, and one reserve officer. During at least part of the time relevant to these proceedings, the full-time patrol officer was James Dingle. Mr. Dingle was hired in December of 2007. He was interviewed by Chief Moore and Mayor Evans, and Mayor Evans hired him on a conditional basis until his employment could be approved by the City Council, consistent with the town's charter. Mr. Dingle was on probationary status for the first year of his employment. In October 2008, Frank Moore and Lonnie Evans determined that his probation should be extended, and in December 2008, his employment was terminated by vote of the City Council. At the heart of Mr. Dingle's termination was his handling of traffic tickets and refusal to change the manner in which he handled them, after counseling by Chief Moore, and his unwillingness to follow orders given to him by his superiors. Mr. Dingle would routinely write tickets indicating that the offending driver was going less than his or her actual speed. The actual speed would be listed under "comments," whereas the speed Mr. Dingle fabricated would be listed on the ticket as the speed the offender was driving. Mr. Dingle felt it was a matter of officer discretion, and that it was "unethical" not to give drivers a break. Frank Moore, on the other hand, directed Mr. Dingle to use the actual speed when writing tickets, leaving the discretion up to the judge. After counseling by Chief Moore, Mr. Dingle continued to write tickets for the lower speed. Because he felt Chief Moore's direction to use the actual speed was unethical, he did not feel he needed to follow it. On July 24, 2009, some seven months after Mr. Dingle was fired and eight months after the mayoral election, the Florida Commission on Ethics received a complaint by Mr. Dingle against Frank Moore, alleging that Moore was campaigning for Lonnie Evans while on duty (COE Case No. 09-100). No corresponding complaint was received from Mr. Dingle with respect to Mr. Evans. Specifically, the complaint stated: On November 18, 2008, at or about 9:00 A.M. Chief Frank Moore failed to show for traffic court which he was subpoena to appear. . . . After I (James Dingle) completed traffic court, I went to the Coleman Police Department and observed Frank Moore and the current mayor Lonnie G. Evans inside the Chief's office with several copies of campaign (flyers) laying on his desk, I also observed a voters list of the residence of Coleman who were registered to vote in the city election and phone numbers. On two separate occasions, when I walked into the police station I overheard the Mayor talking to an unknown person asking them to vote for him. Note: that the Mayor Evans and Chief Moore were inside the City of Coleman Police Station and using the City office supplies for Mayor Evens' campaign. On one occasion I observed the Mayor hang the phone up in the middle of his conversation when I walked back into Chief Moore's office. Since Chief Moore is hard of hearing, I heard Chief Moore say to Mayor Evans "who else we can call." Note: that Chief Moore was on full uniform and on duty. I made contact with two of Coleman residences who advised me that Chief Moore was driving the Mayor around in the City's vehicle asking residences to vote for him. The following residences are willing to speak to any investigator in this matter: (1) Lucy Burnette . . . . (2) Ronnie Owens . . . At hearing, Mr. Dingle acknowledged that he had no personal knowledge regarding the allegation that Chief Moore and Mayor Evans were campaigning in a city-owned vehicle, and had never witnessed them doing so. Mr. Dingle's Coleman Police Department Daily Activity/Log Report for November 18, 2008, indicates that Mr. Dingle started his work shift at 12:30 p.m. and was in traffic court from 1:00 to 2:00 p.m. He claimed that he had stated the wrong time for the events because there were other days that week where he had appeared in traffic court in the morning. The time records do not support this statement. Mr. Dingle testified that on November 18, 2008, he entered the police station three times. The first time, he did not observe or hear anything unusual. The second time he entered, however, he claims that he heard Mayor Evans tell Chief Moore to "hush" or "be quiet." He also testified that he saw campaign flyers, envelopes and stamps on Chief Moore's desk. In addition, he saw a list that he believed to be a voter registration list on the desk. The third time he entered the police station, Mr. Dingle stated that he heard Chief Moore ask Mayor Evans "who else can you call to help him." He also claimed that the mayor again told the chief to be quiet because someone else was in the building. Contrary to his written complaint, Mr. Dingle did not testify that he saw Mayor Evans use the police station telephone and did not testify that he heard anyone asking for a vote. Mayor Evans owns and uses a cell phone. There is no clear and convincing evidence that any conversation that Mr. Dingle overheard took place using a city telephone. Mr. Evans' testimony that he did not use a city phone to campaign is credible and accepted. The door of the police station locks when it is shut, and must be opened either with a key from the outside, or by someone opening it from the inside. In addition, there is a pass-through window in Chief Moore's office through which he can observe people coming in and out of the police station. While Chief Moore is hard of hearing, he is not deaf, and he would have been able to see and hear people entering the building. His testimony that Evans at no time asked him to be quiet is credited. Moreover, overhearing the comment "who else can you call" and concluding that the comment was campaign-related requires a leap that the undersigned is unwilling to take. There are a variety of city-related tasks and events that could require the mayor and the chief of police to work together that have nothing to do with campaigning for office. This comment, standing alone or in connection with the other observations Mr. Dingle recounted, is not clear and convincing evidence of campaigning using city resources or during work hours. At some point, Mr. Dingle saw fit to remove a page from the typewritten list, along with a campaign flyer, from his supervisor's desk, presumably after Chief Moore left for the day. He did so at after his probation had been extended by Evans and Moore, and after he had received one if not two memos criticizing his performance. The list consists of a list of names and the designation "Coleman" under a column titled "City_Name." There is no title or heading on the document. There are no addresses, telephone numbers, or voter registration numbers on the list. There is no clear and convincing evidence indicating the nature of the list or whether it actually depicted registered voters.1/ Moreover, even if Mr. Dingle's testimony is credited, the presence of campaign flyers in the police station, standing alone, is not clear and convincing evidence of using city resources to campaign. The flyer was the same type of flyer posted in places all over town. Mrs. Moore testified that she had volunteered to stuff envelopes and print flyers for Mr. Evans, and did so at home over a period of several days. Mayor Evans supplied the stamps and envelopes. She then gave the envelopes and a box of flyers to her husband so that he could deliver the flyers to Mr. Evans and mail the envelopes from the post office adjacent to the police station. The Advocate offered no evidence to rebut this testimony. Moreover, as confirmed by the city clerk, the computer and printer in Chief Moore's office did not belong to the City of Coleman, but instead belonged to Chief Moore. Based on the totality of the evidence presented, clear and convincing evidence did not establish that Chief Moore and Lonnie Evans were engaged in campaign activities in the police station on November 18, 2008. On December 9, 2009, an Order Finding Probable Cause in COE Case No. 09-100, which forms the basis for DOAH Case No. 10- 1284, was filed by the Commission on Ethics. The finding was reported in a local newspaper in January of 2010. Cynthia Martin, a City of Coleman Council member, showed the newspaper article to Timothy Bronson. Ms. Martin had run against Lonnie Evans in a previous election for mayor, and lost. As a result of Ms. Martin's encouragement, both Timothy Bronson and his mother, Gloria Bronson, filed complaints with the Commission against Chief Moore on January 22, 2010, nearly fourteen months after the last election in which Mr. Evans was a candidate (COE Complaint No. 10-016). Both complaints stated that the mayor and the chief of police had, for each election, come to their house and asked them to vote for Mayor Evans. Both indicated that Chief Moore had stated that if Evans was not elected, then he would lose his job. The mayor of Coleman does not have the authority to hire or fire the police chief. Only the city council can take that action. Frank Moore continued to serve as police chief for the City of Coleman for well over a year after the election, until sometime in 2010, when he retired. Cynthia Martin visited the Bronson's in their home and brought a notary with her so that the Bronsons could complete the complaints against Moore and Evans. The Bronsons claimed that Chief Moore would drive by their home and pull into their driveway. They would come out to the fence and speak to him. From their position on the other side of the fence from the car, they claimed that they could see campaign signs for Lonnie Evans in the back floorboard of the patrol car. Timothy Bronson also testified that on one occasion, Lonnie Evans was in the patrol car with Chief Moore, and asked his mother to vote for him. Mrs. Bronson did not testify to any such request by Lonnie Evans, and testified that when Frank Moore came to the house, Lonnie Evans was not with him. Timothy claimed in his taped interview that Chief Moore was driving a white unmarked car, but at hearing insisted that the car Chief Moore drove on these occasions was gray. Mrs. Bronson, testified that the car was either white or "brownish." Chief Moore acknowledges that he sometimes drove by the Bronson home, usually in response to a complaint by Mrs. Bronson, such as people speeding on her street. He agrees that he sometimes stopped and spoke to her and her son, but denies talking about the mayoral race. He also flatly denies ever having Lonnie Evans in his patrol car at the Bronson home. The patrol cars have dark tinted windows in the back, and the view is obstructed by both the tint and the barrier separating the front and back seats. It is unlikely that either of the Bronsons would be able to see signs in the floorboard of the backseat from a location on the other side of the fence from the car. Mrs. Bronson admitted at hearing that she suffers from short term memory loss as a result of a medical event. Timothy Bronson filed a second complaint alleging the same thing on March 3, 2010, against Lonnie Evans (COE Case No. 10-043). He and his mother also filed amendments to their first complaint on March 17, 2010. Timothy Bronson alleged that Respondent pulled him over in order to talk to him about his complaint. Mrs. Bronson claimed that he followed her closely for a mile or so, and it intimidated her.2/ Clear and convincing evidence did not support Timothy Bronson's allegation. On April 14, 2010, Lucy Burnette also filed a complaint with the Commission on Ethics, against Lonnie Evans. In her complaint (Ethics Complaint 10-074), she claimed that Mayor Evans came with Chief Moore to the local fruit stand, in the police car while Chief Moore was in uniform, asking her to vote for him. Ms. Burnette did not file a complaint against Chief Moore. The complaint was written out by Cynthia Martin, while Ms. Burnette volunteered at the fruit stand. She acknowledged at hearing that some of the statements contained in the written statement were not true, and she wished that she had read the statement more closely before she signed it. For example, the statement in her complaint that "the former mayor asked me to vote for him while he was with the chief of police, in uniform" was not true. According to Ms. Burnette, Mr. Evans did not get out of the car and did not speak to her. Ms. Burnette testified that Chief Moore and Mayor Evans came to the fruit stand in a gray city police car. Mayor Evans was in the passenger seat. Chief Moore got out of the car, according to Ms. Burnette, and told her she needed to talk to Mayor Evans about what she wanted and she could possibly get it. The only indication as to when this incident supposedly occurred was that it happened just before the 2008 election. Ms. Burnette had an ongoing issue with the City of Coleman over her attempts to run a deli or barbeque on her property. At one point, while she claimed she was not a resident of Coleman, Chief Moore had been directed to "shut her down." She claimed that she wanted, but did not need, a license to operate, and that Chief Moore told her to talk to the mayor and he could help her get the license she sought. Although the record is unclear, it appears that her licensure problem exists because her property is not zoned for commercial use, and that in order for her to get a license, she would have to seek a variance from the city council. In any event, Mayor Evans does not issue licenses or direct them to be issued. While he may have had some influence on the decision- making process, the comment made by Chief Moore, if in fact he made it, made no reference to the election or voting for Mayor Evans. Ms. Burnette simply made the assumption that Chief Moore was implying that a vote for Mayor Evans would help Ms. Burnette's efforts to receive a license. She even referred to Chief Moore's statement as some sort of bribe by Mayor Evans, delivered through Chief Moore. Chief Moore often stopped by the fruit stand on his way home from work to buy some fruit. Lucy Burnette often complained to him about her problems related to getting a license when he stopped by. He testified that he told her, on more than one occasion, that she should talk to Mayor Evans or members of the city council about her problem, but did not talk to her about the election or ask her for votes. His testimony is credited. Lucy Burnette's written complaint indicates that there were witnesses to Chief Moore and Mayor Evans coming to the fruit stand in the police car. Investigator Maolli from the Commission on Ethics was unable to locate any witnesses to corroborate her account. On April 14, 2010, Ronnie Owens filed complaints with the Commission on Ethics against both Chief Moore and Mayor Evans (COE Complaint Nos. 10-075 and 10-076). Cynthia Martin approached Mr. Owens and told him about "the election thing," and asked him if he saw Chief Moore and Lonnie Evans in the car together. She asked him to file complaints with the Commission on Ethics, and actually wrote out the complaints for him to sign. Prior to Ms. Martin approaching him, Mr. Owens was not aware that there was any problem with the mayor and the police chief campaigning while on duty. He admitted that he filed the complaint after he had a "run-in" with Chief Moore over an incident that took place at a local store. The City of Coleman is bisected by a railroad track. Residents living in the neighborhood on the west side of the track are predominately African-American. This area of the town is sometimes referred to as "the quarters." It is not unusual for some residents of the quarters to sit at a table in a lot on the corner, or on someone's front porch, and play cards or dominos. Mr. Owens claims that prior to the election, he and some other men were sitting at Mr. Robert T's house playing dominos. Mayor Evans and Chief Moore drove up in the gray Crown Vic and walked over to the men, and Chief Moore asked them to support Lonnie Evans in his election. One of the men asked Evans for a campaign sign, and Evans indicated he did not have any with him, but would bring one back. Mr. Owens testified that Lonnie Evans later returned, in his truck, and gave a campaign sign to one of the men. Mr. Owens stated that there were five men present when Mayor Evans and Chief Moore came by the quarters. None of the other men testified at hearing, and Investigator Maolli was unable to find any who could corroborate that Evans and Moore came to the quarters in the police car while Moore was in uniform. Each incident reported by the Bronsons, Ms. Burnette, and Mr. Owens involved the use of a city-owned police car while campaigning. The City of Coleman owns three police cars: a marked patrol car, a white Crown Victoria, and a gray Crown Victoria. The passenger compartment of the police cars contains a computer, printer, video system, radar unit, and other equipment. By necessity, this equipment takes up space not normally filled in a regular vehicle. The City Council had approved Chief Moore's use of a car as a "take home" vehicle, and he used the white Crown Victoria almost exclusively. He drove the white police car back and forth to work from his home in Cedar Hill. He testified credibly that he was allowed to make stops in the city car, for example to pick up a grocery item, on his way to and from work. It was not permissible to use the car for personal entertainment or trips. Chief Moore also drove his personal car, a Buick Lucerne. Lonnie Evans stopped driving, at the urging of his wife and son, by either September or early October of 2008 because of his declining eyesight. As a consequence, he did not drive during the 2008 campaign. He was driven to campaign by his wife, Carolyn, in their red Jeep SUV, by a member of the City Council and former postmistress Vergie Everett (who passed away in February of 2010) in her Cadillac, or on one occasion, by Chief Moore in his privately-owned Buick. Both men testified credibly that when Chief Moore drove Mr. Evans, it was on a weekend and Chief Moore was dressed in jeans and a t-shirt. Both men also testified that there was one occasion when Lonnie Evans rode in the front seat of the white police car while it was driven by Chief Moore. A benefit was held to help Cleveland Williams, a former member of the city council, who had become disabled. After the benefit, the proceeds were counted at City Hall and placed in an envelope for delivery. Mayor Evans accompanied Chief Moore to deliver the funds raised at the benefit. The two men rode past the location in the quarters where the men played dominos on their way to Mr. Williams' home, but did not stop. Because of the amount of equipment and the "accumulated mess" in the police car, Mayor Evans found it exceedingly uncomfortable and was emphatic that he would not repeat the experience. With the exception of one of the men in the quarters requesting a sign, there is no claim that at any time signs or flyers or campaign literature of any kind was distributed. There was one occasion when, according to Chief Moore, campaign signs for both candidates were placed in a patrol car. On the one occasion when this occurred, teenagers had vandalized some campaign signs for both candidates. They were transported in the white police car to where the kids were congregated, and then placed in the marked patrol car and taken to the police station where the parents of the suspected were contacted and shown the signs. His testimony is credited. Based on the totality of the evidence presented, there is not clear and convincing evidence that Mayor Evans or Chief Moore ever used a city vehicle to campaign during the December 2008 election, and there is not clear and convincing evidence that Chief Moore campaigned on Lonnie Evans' behalf while on duty. Bob and Carolyn Bolesta also testified to a conversation with Chief Moore that they believed occurred shortly before the 2008 election. Both denied ever seeing Chief Moore and Mayor Evans riding in a police car together. However, they both testified that, on occasion, Chief Moore would come by their home to check on them, as Mr. Bolesta had suffered from some significant heath issues. On one occasion, the Bolestas testified that Bob Bolesta and Chief Moore discussed the election and Mr. Bolesta (who supported Eve Carruthers) expressed the view to Chief Moore that Mayor Evans "was in trouble." He stated that Chief Moore then said he would have to go see some people about the votes, and believed that Chief Moore initiated the conversation. Frank Moore acknowledged going out to the Bolestas to check on them, and enjoyed speaking with them. He denied, however, asking them to support Lonnie Evans for mayor. Chief Moore did admit politics may have been discussed with Mr. Bolesta, as Mr. Bolesta liked to talk about Coleman and what was going on in the town. Chief Moore denied initiated the discussion regarding the election and denied asking for votes. The Bolestas were also often visited by James Dingle when he was with the police department. Mr. Bolesta often attended city council meetings, and was disturbed about James Dingle's termination from the police department. The more credible evidence demonstrates that the Bolestas and Chief Moore did discuss politics as part of a general discussion, but that the discussion did not rise to the level of campaigning for Mayor Evans.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Commission on Ethics enter a Final Order and Public Report finding that no violation of section 112.313(6) has been demonstrated. DONE AND ENTERED this 16th day of February, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 16th day of February, 2011.
The Issue Whether Respondent acted properly in refusing to post a job order for Petitioner's business, an "adult maid service."
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Walker is a sole proprietor doing business under the name Babe-A-Maid, which advertises as an "adult maid service." Babe-A-Maid's advertising makes plain that it is in the business of adult entertainment. A customer may browse Babe-A-Maid's web site and select a "maid" who will be transported to the customer's location to perform topless or nude dancing. No evidence was presented that Babe-A-Maid's services go beyond dancing to acts of prostitution. Mr. Walker personally screens potential customers, and pays to provide security to dancers who are sent to perform for groups of people. Babe-A-Maid's "Subcontractor Agreement" with its dancers provides that it is not an escort agency. Babe-A-Maid has operated in Mr. Walker's native Kenosha, Wisconsin for a number of years. Babe-A-Maid has been accepted for listing by the Wisconsin equivalent of AWI. On April 26, 2001, Mr. Walker submitted a job order to the Florida job service office in St. Petersburg, announcing the availability of positions with Babe-A-Maid. By letter dated July 25, 2001, AWI's complaint specialist Jim Cadwallader informed Mr. Walker that his job order would not be accepted for posting. Mr. Cadwallader's letter stated: I have found that the activities described in your job order include conduct, e.g., nude dancing, which has detrimental secondary effects that are harmful to the public health, safety and welfare. Therefore, it has been determined that it is not in the best interest of the State or its citizens to assist in promoting your industry. Mr. Walker requested clarification as to the meaning of "detrimental secondary effects." By letter dated July 31, 2001, Mr. Cadwallader responded as follows: The job order that you wish to place would secondarily impact and threatens to impact the public health, safety and welfare by providing an atmosphere conducive to, among other things, violence, sexual harassment, public intoxication, prostitution and the attendant health risks. As previously stated, this decision is designed to serve a substantial governmental interest while allowing for reasonable alternative avenues of communication. The decision not to place your job order on the job services web-site does not adversely affect other reasonable alternative avenues of advertisement that are available. Mr. Walker conceded that the placement of advertisements in newspapers and other sources yielded approximately 800 responses from prospective dancers in the St. Petersburg area. However, he testified that his experience in Wisconsin showed him that the state job service listings provide an even-flow of employees, lessening the need for paid advertising. Robert Bradner, the AWI employee who actually made the decision to reject Mr. Walker's job order, testified that the state was not attempting to regulate Mr. Walker's admittedly legal business. Rather, the problem was a perceived linkage that a job listing would create between the state and Babe-A-Maid. Mr. Bradner did not want to establish a public perception that the state was endorsing Babe-A-Maid. Mr. Bradner conceded that Babe-A-Maid's was the only rejection of which he was aware since AWI's creation in 2000. Mr. Bradner also conceded that his decision was not based on any written statute, rule or guideline. AWI provided a second reason for its rejection of Mr. Walker's job order: that he is not an "employer" as contemplated by the Wagner-Peyser Act and its implementing rules. Mr. Walker conceded that the dancers who work for him are independent contractors who are paid only for the hours they are actually out on a dancing job. Babe-A-Maid applicants must sign a "Subcontractor Agreement" that states, in relevant part: I, [name of Subcontractor], hereinafter referred to as the Subcontractor, enter into an agreement, with Babe-A-Maid. We do hereby agree that for good and valuable consideration, the Subcontractor shall provide services to Babe-A-Maid as outlined below, pursuant to the terms and conditions contained herein. Babe-A-Maid is a referral agency for persons seeking cleaning/entertainment services, hereinafter referred to as Clients. * * * The parties agree that the Subcontractor shall be treated as a Subcontractor, responsible for all Federal, state, and local law purposes [sic]. The terms of this agreement shall not be deemed to be an employment contract, nor shall the Subcontractor be deemed an employee of Babe-A-Maid for any purpose. The Subcontractor shall be responsible for paying all Federal, State and local taxes, and acquiring all licenses or other permits in the locale associated with providing services and receiving compensation for the provision of entertainment services. * * * The Subcontractor shall have neither actual nor apparent authority to bind Babe-A-Maid in contract nor shall Babe-A-Maid assume any responsibility for the acts of the Subcontractor. The Subcontractor agrees to indemnify Babe-A-Maid for all damages, fines, attorney fees, and cost imposed upon it for acts committed by the Subcontractor. The Subcontractor hereby warrants the information he or she has provided to Babe- A-Maid regarding his or her identification is true and current. The Subcontractor also warrants that the tax identification number provided at the bottom of this agreement is the number that the United States government has properly assigned to the Subcontractor. The evidence established that Babe-A-Maid does not employ its dancers. The dancers are subcontractors who inform Babe-A-Maid of the days and times they are available to go out on calls. Aside from general instructions by Babe-A-Maid, such as dressing appropriately and not using illegal drugs or drinking "excessive" amounts of alcohol during their shows, the dancers control the manner of their performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting the job service order submitted by Oliver Walker on behalf of his business, Babe-A-Maid. DONE AND ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2001. COPIES FURNISHED: Oliver Walker Babe-A-Maid Post Office Box 1933 Kenosha, Wisconsin 53141 Sonja P. Mathews, Esquire Agency for Workforce Innovation Atkins Building, Third Floor 1320 Executive Center Drive Tallahassee, Florida 32399-2250 Michelle M. Austin, General Counsel Agency for Workforce Innovation Office of the General Counsel Atkins Building, Suite 330 1320 Executive Center Drive Tallahassee, Florida 32399-2250 Veronica Moss Agency for Workforce Innovation Office of the General Counsel Atkins Building, Suite 330 1320 Executive Center Drive Tallahassee, Florida 32399-2250
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the parties have stipulated 1/ that the only disputed issues to be resolved by the Hearing Officer are: Whether the Petitioner qualifies as a small business party as defined by Section 57.111, Florida Statutes. Whether the agency's actions were substantially justified. Whether special circumstances exist that would make an award of attorney's fees unjust.
Findings Of Fact The Petitioner, Stephen S. Spector, M.D., has at all times material to this proceeding been licensed in the State of Florida as a physician. At all times material to this proceeding the Petitioner has engaged in the practice of medicine specializing in ophthalmology and ophthalmic surgery. In connection with his medical practice, the Petitioner also owns and operates, directly or indirectly, at least one outpatient surgery center where he performs most of his surgical procedures. In the normal course of events, when the Petitioner performs surgery at the outpatient surgery center he owns, the patient, or the patient's insurance carrier, is billed separately for the Petitioner's professional services as surgeon and for the use of the outpatient facility. 3/ In the course of his professional practice as a physician/surgeon and the operation of his outpatient surgery center, the Petitioner does business under a variety of business names or business entities, including the following: 4/ Steve S. Spector, M.D., P.A.; Presidential SurgiCenter, Inc.; Presidential Optical, Inc.; and Presidential Eye Center, P.A. At all times material, the Petitioner owned 100 percent of the stock in each of the four corporate entities listed immediately above. At all times material, the Petitioner was employed by Presidential Eye Center, P.A., as a physician/surgeon specializing in ophthalmology, and has been so employed for a period of approximately fourteen or fifteen years. In recent years, the Petitioner's estimated monthly income from his employment by Presidential Eye Center, P.A., was $10,000.00 per month. In some recent years, his income from his employment by Presidential Eye Center, P.A., was somewhat higher. 5/ The Petitioner also receives monthly rental payments from Presidential Eye Center, P.A., Presidential SurgiCenter, Inc., and Presidential Optical, Inc., of approximately $9,500.00. As of the date on which the Administrative Complaint was filed, the Petitioner's net worth was approximately $691,000.00. The evidence in the case does not reveal the number of Petitioner's employees or the number of people employed by the corporate entities through which the Petitioner does business. 6/ The evidence in this case does not clearly reveal which professional and/or business activities are engaged in by the Petitioner in his individual capacity and which are engaged in through each of the four corporate entities of which he is the 100 percent owner. 7/ The Case of Department of Professional Regulation, Board of Medicine v. Stephen S. Spector, M.D., DOAH Case No. 93-1307, DPR Case No. 92-0666, had its genesis in a September 17, 1991 letter from Marc Freeman, M.D., Medical Director of the Family Medical Centers, to the Department of Professional Regulation 8/ (Department) alleging that the Petitioner had made false representations related to billing practices regarding five cataract surgeries and that the Petitioner also made a practice of submitting bills for services and facilities that were allegedly covered by a capitation contract. The case was assigned to DPR Investigator Robert Herron, who notified Petitioner of the complaint and investigation by letter of February 6, 1992. Investigator Herron obtained copies of the medical records for four of the patients indicated in Dr. Freeman's complaint letter, which included records from Humana Hospital and Presidential SurgiCenter, Petitioner's surgical center. Investigator Herron interviewed Dr. Freeman, interviewed the Petitioner through his attorney, and interviewed the attorney representing Humana Health Care Plan. The Petitioner, through counsel, represented that any overbilling to Humana occurred due to errors in bookkeeping and accounting, and not through any fraud on the part of the Petitioner. Other documents obtained as part of this investigation included, but were not limited to, capitation agreements between Petitioner and Humana Medical Plan, Inc., and related court documents from civil litigation which transpired as a result of Petitioner's alleged breach of contract and unjust enrichment. Investigator Herron did not interview the employees of the Petitioner who handled the Petitioner's billing for professional services and for use of facilities. Humana's civil complaint against Petitioner, Case No. CL 90-8421 A B, alleged that Petitioner breached his contract with Humana and profited unfairly as a result, by performing surgeries and billing for same contrary to the provision of capitation agreements between the Petitioner and Humana. Humana claimed that the overbilling by the Petitioner totaled almost $400,000.00. On or about May 21, 1992, Investigator Herron compiled a report which was reviewed and approved by his supervisor on the same date. Settlement of the case between Humana and Petitioner was reached, and an Order of Dismissal was filed in that cause on September 23, 1991. The settlement called for Petitioner to pay Humana Medical Plan, Inc., a total sum of $210,000.00 over an approximate four-year period of time. This settlement was also to include a letter by Humana indicating that this case involved a contractual dispute based upon accounting procedures, and was not based upon allegations of fraud. 9/ Prior to the Probable Cause Panel meeting of July 29, 1992, the Department forwarded to the panel members copies of the complete investigative file regarding the Petitioner, along with a copy of the Department's recommendation in the form of a draft Administrative Complaint. Each panel member received and reviewed the materials related to this case prior to the Probable Cause Panel meeting. DPR Case No. 92-0666 was forwarded to the Probable Cause Panel with a recommendation that probable cause be found for an Administrative Complaint. Present at the July 29, 1992, Probable Cause Panel meeting were panel members Richard McEven, Chairman; Gerard Kaiser, M.D.; and Edward Dauer, M.D. Also present were M. Catherine Lannon, Esquire, from the Attorney General's office, Carlos J. Ramos, attorney for the Department of Professional Regulation, and Teresa Corley, also from the Department. Probable cause was found to exist unanimously by the Panel members, with Dr. Dauer noting that the proposed Administrative Complaint accurately represented "the facts of law at issue." Probable cause was found to exist that Petitioner violated the following statutory provisions: Section 458.331(1)(h), (k) and (n), Florida Statutes. On or about August 7, 1992, the Department initiated action against the Petitioner's license to practice medicine as directed by the Probable Cause Panel of the Board in DPR Case No. 92-0666, later DOAH Case No. 93-1307, through the filing of an Administrative Complaint. The Administrative Complaint filed on August 7, 1992, charged Petitioner with the following violations: filing false reports which the licensee knew to be false in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide services under a capitation agreement; by making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide service under a capitation agreement; and exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party in that Petitioner billed patients' insurance carriers for use of his private surgical facility when, in fact, he did not use the facility to perform the surgeries and had agreed to provide services under a capitation agreement. At the time of the four surgeries that form the basis for the underlying Administrative Complaint, there was no capitation agreement between the Petitioner and Humana, because Humana had terminated the agreement. The materials presented to the original Probable Cause Panel included several documents, all apparently overlooked, which showed that the capitation agreement had been terminated and that the effective date of the termination was prior to the date of the four surgeries at issue in the Administrative Complaint. At the time of the four surgeries at issue in the underlying Administrative Complaint, an employee of Petitioner, Jeanne Gold, had the responsibility of billing for Petitioner's services and for the Presidential SurgiCenter facility fee. For each patient listed in the Administrative Complaint, Ms. Gold billed Humana a surgical facility fee for surgeries purportedly rendered by Petitioner at the Presidential SurgiCenter, even though the surgeries were actually performed at Humana Hospital. There were logical explanations for how the errors occurred, which explanations are set forth in affidavits from Jeanne Gold, Brenda Gruber, and Stephen Cohen. These affidavits which explain how the errors in billing occurred were not part of the materials reviewed by the original Probable Cause Panel, but the information contained in these affidavits could have been obtained prior to the original Probable Cause Panel meeting if the case has been adequately investigated. When the Petitioner was told that Humana believed he had incorrectly billed for the four surgeries at issue, he instructed his staff to inquire into the matter and take any necessary corrective action. The Petitioner subsequently made appropriate reimbursements to correct the subject billing errors. On or about September 14, 1993, Department legal counsel presented DPR Case No. 92-0666 to the Probable Cause Panel for reconsideration based upon information which indicated that Petitioner did not have a capitation agreement with Humana at the time of the subject surgeries and that the incorrect billing was simply an error, not an intentional or fraudulent act. Based upon the recommendation of Department legal counsel, the second Probable Cause Panel dismissed all charges against the Petitioner. The evidence presented to the original Probable Cause Panel was an insufficient basis upon which to find probable cause for the violations asserted in the Administrative Complaint. That evidence failed to contain evidence that would reasonably support a belief that the Respondent acted intentionally or fraudulently, and the evidence also affirmatively showed that some of the facts asserted in the Administrative Complaint were incorrect. Adequate investigation would have revealed that all of the incorrect billing alleged in the Administrative Complaint resulted from unintentional error, for which there was a logical explanation.