Findings Of Fact The Respondent, Alton Lynn Gillen, Jr., is a licensed Surety Agent doing business in the State of Florida. Respondent was charged by information, on or about December 23, 1980, in the Circuit Court of the Twentieth Judicial Circuit of the State of Florida, with a violation of the Racketeering Influenced and Corrupt Organization Act and with conspiracy to traffic in cannabis. On February 5, 1981, Respondent pled nolo contendere to the charges contained in the information. On May 13, 1981, an Order was entered in the Circuit Court of the Twelfth Judicial Circuit in and for Lee County, Florida, adjudicating Respondent guilty of a violation of the Racketeering Influenced and Corrupt Organization Act and of conspiracy to traffic in cannabis. Respondent was sentenced by the same order to state prison for a period or term of ten years. Respondent, having reserved his right to appeal as a condition of the nolo contendere plea, thereafter appealed this conviction and is currently awaiting its determination. Respondent, through his attorney, contacted Petitioner to ascertain whether or not he would be permitted to continue operating under his license after adjudication of guilt and while his appeal was pending. In a telephone conversation between Respondent's attorney and Onez O'Neill, Chief of Bureau of Licensing, on February 20, 1981, Respondent was advised that once the Department received formal notice of the convictions, a revocation proceeding would probably be instituted, but that his license would be reinstated upon receipt by the Department of certified copies of the information, judgment and sentence, and notice of appeal. Within a few days after being adjudicated guilty (May 13, 1981), Respondent obtained certified copies of those documents, as well as certified copies of notice of appearance by the appellate attorney, motion for supersedeas bond, and the supersedeas bond. On or about May 20, 1981, Respondent personally delivered those documents to O'Neill's office with a cover letter from his attorney (R-Ex 1). Since O'Neill was not in her office that day, Respondent gave the documents to the assistant chief, Joe Crutchfield. Respondent explained the nature of the problem and the reason for the delivery of the documents. Crutchfield assured him that everything appeared to be satisfactory and that he would personally discuss the matter with O'Neill the next day. On or about June 1, 1981, Petitioner caused a letter to be sent to Respondent by John Rich, a licensing specialist employed by Petitioner (R-Ex 2). This letter advised that Respondent could "continue operating as a bondsman under his current license until such time as the legal appeal process has been finalized...", subject to approval by the surety company underwriting Respondent. Based on the affirmative representations of Petitioner, by telephone and by its letter of June 1, Respondent continued to write bonds and incur financial obligations as a result thereof. Respondent also continued making contributions to a "build-up fund" held in trust for his underwriter. The buildup fund is money generated out of bond premiums which is held in an escrow account for the underwriter if it becomes legally liable for an estreature of a bond written by Respondent. On September 30, 1981, Petitioner renewed Respondent's license with full knowledge of his convictions (P-Ex 3). On April 5, 1982, Petitioner filed its Administrative Complaint seeking to revoke Respondent's license based on his adjudication of guilt of the two criminal charges to which he pleaded on February 5, 1981.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint, subject to refiling if Respondent's appeal is denied. DONE and ORDERED 30th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1982. COPIES FURNISHED: David A. Yon, Esquire Department of Insurance and Treasurer 428-A Larson Building Tallahassee, Florida 32301 Burton C. Conner, Esquire 207 N.W. Second Street Okeechobee, Florida 33472 The Honorable Bill Gunter Insurance Commissioner & Treasurer Department of Insurance The Capitol Tallahassee, Florida 32301
Findings Of Fact The Respondent, Shirley A. Cramer, is a licensed real estate broker in the State of Florida. Her license number is 0460613. On or about June 9, 1990, the Respondent entered into a six-month residential lease in Clearwater, Florida. She entered into the lease on her own account. She was not acting as a real estate broker. The Respondent breached the lease, and the landlord sued in civil court for damages and recovered a judgment in the amount of $9,740.29. The Respondent has not paid the judgment, or any part of it. (The Respondent made an offer to settle the judgment for less than the full amount, but the landlord rejected the settlement offer.) The landlord has not been able to collect any money on the judgment. A deposition in aid of execution has been taken, but the landlord has not levied on the judgment. Not long after entering into the lease, the Respondent advertised it for sublease. The advertisement was answered on or about June 29, 1990, by Thomas E. Maloney. In response to the ad, Maloney went to see the Respondent at her office. (The evidence was not clear whether it was a real estate office.) There, she asked for a partial rental deposit in the amount of $1,000, with another $500 due at a later date. The Respondent told Maloney that she was a Florida licensed real estate broker and assured him that his deposit would be safe with her. The Respondent later contacted Maloney and told him that his credit references did not check out and that she was not going further with the sublease arrangement. When Maloney asked for his deposit back, she told him that she would return it to him as soon as she could raise the money. The Respondent never returned any of the deposit to Maloney, and he sued her in civil court to recover the $1,000. The case was tried, and a judgment was entered in Maloney's favor but only in the amount of $500. The evidence was not clear why Maloney was not awarded the full $1,000. He testified that, when he responded to the ad for the sublease, he learned that there already was a woman living there who was supposed to have moved out but did not. The Respondent suggested to Maloney that the woman could sleep on the couch. It is not clear from the evidence whether Maloney agreed to this arrangement. He testified only: "I says, you know --- It was just a stupid move on my part so -- and she is not going to pay me." It may be that the circumstances of the existence of the other tenant, and the possibility that Maloney initially agreed to the arrangement, had something to do with the amount of the judgment Maloney was able to recover. The Respondent has not paid Maloney any money on the judgment he recovered against her. Maloney has decided not to spend any more of his own money trying to recover on the judgment. On or about September 28, 1991, the Treasurer of the State of Florida, acting in his capacity as Insurance Commissioner, entered a Final Order suspending, for one year, all insurance licenses and eligibility for licensure held by the Respondent. The Final Order was based on findings that the Respondent had failed either to secure insurance after receipt of insurance premiums from two customers, or to account and deliver the insurance premiums she had collected from them. In one case, the evidence proved that the Respondent was "professionally responsible" for the misconduct of someone acting as her employee, and was personally responsible only for having a refund check dishonored for insufficient funds. In the other case, the Respondent was personally responsible for the entirety of the transaction, and it was found: "If not outright fraud and misrepresentation, Respondent's conduct constitutes, at best, gross negligence and incompetence " On or about August 9, 1991, the Treasurer of the State of Florida, acting in his capacity as Insurance Commissioner, filed an Administrative Complaint against the Respondent alleging that she engaged in insurance activities which required a license while her licenses were suspended and that she misappropriated, unlawfully withheld, or converted fiduciary funds. On or about August 20, 1992, the Treasurer of the State of Florida, acting in his capacity as Insurance Commissioner, entered another Final Order requiring that the Respondent pay a $500 administrative fine and placing the Respondent's insurance licenses on probation for two years. This Final Order was based on findings: (1) that, on November 28, 1990, less than two months after her insurance licenses were suspended for a year, but while she was "under the impression" that she could continue to sell insurance while the suspension was on appeal (although the suspension never was stayed pending appeal), the Respondent was selling worker compensation insurance; and (2) that she collected a $3,000 premium from a customer, did not put the money into a trust account, failed to place the coverage, withdrew the money from the account and used it for her own benefit on two occasions (replacing it after the first time), and failed to return the premium to the customer until March 8, 1991. The Respondent, through counsel, asserted that the Respondent has paid the fine referred to in the preceding Finding, but there was no evidence in the record to support that claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a final order: (1) finding the Respondent guilty of violating Section 475.25(1)(b) and (d)1., Fla. Stat. (1991); (2) requiring her to immediately (in any event, not more that 30 days after entry of the Final Order) return to Thomas E. Maloney his $500 and to provide the Commission with evidence of payment; (3) requiring her to pay a $1,000 administrative fine within 30 days after entry of the Final Order; (4) requiring her to successfully complete 60 hours of post-licensure education for brokers, including a 30-hour broker management course, and to provide evidence of completion to the Commission; and (5) suspending her real estate broker license for five years, subject to being reduced to a one-year suspension upon evidence of compliance with (2), (3), and (4), above. RECOMMENDED this 31st day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3322 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the Department's proposed findings of fact (the Respondent not having filed any): 1.-4. Accepted and incorporated to the extent not subordinate or unnecessary. 5. Rejected in part as not proven. (Maloney did not testify that he was not told about the woman, and indicated that he asked for his deposit back after the Respondent told him that his credit references did not "check out.") 6.-10. Accepted and incorporated to the extent not subordinate or unnecessary. 11. The date of the Final Order was August 20, 1992, not 1991. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney Department of Professional Regulation, Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1772 Peter C. Clement, Esquire 35084 U.S. 19 North Palm Harbor, Florida 34684 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is whether there is a disputed issue of material fact to be resolved by an administrative hearing.
Findings Of Fact On October 30, 1991, the Department of Professional Regulation, Division of Real Estate, issued an administrative complaint against Marilyn Mirus, the Petitioner herein. [Administrative complaint attached to motion to relinquish jurisdiction as Exhibit A, not disputed by Petitioner] The administrative complaint alleged three violations of Chapter 475, Florida Statutes: having been convicted or found guilty, regardless of adjudication, of a crime in violation of Section 475.25(1)(f), Florida Statutes; having been found guilty of a course of conduct which shows dishonesty in violation of Section 475.25(1)(o), Florida Statutes; and having failed to inform the FREC of having pled nolo contendere or having been convicted of a felony within thirty days of such conduct in violation of Section 475.25(1)(p), Florida Statutes. [Exhibit A to the motion, not disputed by Petitioner] The allegations arose as a result of a criminal case in Broward County, Florida (Case no. 91-4894CF) wherein the Petitioner was charged with 31 counts of grand theft. In connection with those charges, the Petitioner pled nolo contendere and received a five year probation. Additionally, the court withheld adjudication of guilt for all counts. [Exhibit A to the motion, not disputed by Petitioner] As an additional condition of the sentence, Petitioner was required to make restitution in the amount of $69,834.50 to the alleged victim. [Exhibit A to the motion, not disputed by Petitioner] To resolve the charges of the administrative complaint, Petitioner entered into a stipulation attached to the motion to relinquish jurisdiction as Exhibit B. [Not disputed by Petitioner] The stipulation provided, in pertinent part: Respondent [Petitioner herein] neither admits nor denies all the allegations of essential fact contained in the Administrative Complaint. Respondent admits that the allegations of fact contained in the Administrative Complaint, if true, support a finding of a violation of the Real Estate Practice Act. There is currently pending in the Florida Fourth District Court of Appeal an appeal (hereafter, "the Appeal") of the Order dated March 2, 1992 (hereafter, "the Order"), denying the Respondent's Motion to Vacate and Set Aside Plea in Case No. 91-4894, Division FM, in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida. STIPULATED DISPOSITION * * * 8. The Respondent's license shall be suspended beginning on the filing date of the Final Order approving this Stipulation. Thereafter, the suspension shall remain in effect during the pendency of the Appeal. Immediately upon the conclusion of the Appeal, the Respondent's license shall be automatically and permanently revoked unless the Order is reversed as the direct and immediate result of the Appeal. In the event of such reversal, the suspension shall be lifted. * * * 13. The Respondent expressly waives all notice requirements and right to seek judicial review of or to otherwise challenge or contest the validity and enforcement of this Stipulation and resulting Final Order of the Commission adopting and incorporating this Stipulation. [Emphasis added.] A final order accepting the stipulation entered into by the parties was adopted on May 19, 1992. [Attached to the motion to relinquish jurisdiction as Exhibit C, not disputed by Petitioner] The District Court of Appeal rendered a decision on April 21, 1993, which denied Petitioner's request to set aside the nolo contendere plea. Her requests for a rehearing on that decision were also denied. [Attached to the motion to relinquish jurisdiction as Exhibits D and E, not disputed by Petitioner] Petitioner maintains [Response to order issued by Hearing Officer on November 29, 1995] she should be able to challenge the denial of licensure because of the following disputed matters: Did Petitioner commit the crimes of which she was accused, and to which she plead nolo contendere? The Courts have held that when there is a plea of nolo contendere filed, it raises the presumption that a crime had been [sic] convicted. However, the Courts have held that the Licensee has the opportunity to rebut this presumption and assert his or her innocence of the underlying criminal charges together with what the reasons and circumstances were to show why the plea of nolo contendere was raised. See Ayala v. Department of Professional Regulations, 478 So.2d 116 (1st DCA Fla. 1985) and Son v. Florida Department of Professional Regulation, Division of Real Estate, 608 So.2d 75 (3rd DCA Fla. 1992). Was the Petitioner advised as to what the effect of her plea of nolo contendere would have as the same relates to the revocation of her license by the Department of Business and Professional Regulations? What was the effect of revocation of one's Real Estate License on April 7, 1992, at the time the stipulation was entered into by Petitioner? Has the effect of a revocation on a license changed from April 7, 1992 [to] today, if so, was her (sic) advise proper to enter into the Stipulation had she known what the law was today as it relates to the law of 1992? (It wasn't until October 1, 1992 that revocation became permanent. Prior to that date the laws of Florida were silent as to the term of a revocation. Section 455.227(4) F.S. 1992.) Was the adjudication withheld and was the file sealed as it relates to the criminal charges which were the subject of the original complaint against Marilyn Mirus? Is the Petitioner now held accountable for a crime that under the Florida law for all intents and purposes she did not commit nor was she even charged with such a crime? Petitioner has not challenged the authenticity or accuracy of the documents attached to the motion to relinquish jurisdiction.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Florida Real Estate Commission enter a final order dismissing the request for hearing filed by Petitioner. DONE AND ENTERED this 8th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 8th day of January, 1996. COPIES FURNISHED: Manuel E. Oliver Assistant Attorney General Suite 107 South Tower 400 West Robinson Street Orlando, Florida 32801 William J. Haley, Esquire BRANNON, BROWN, HALEY, ROBINSON & BULLOCK, P.A. 10 North Columbia Street Lake City, Florida 32056-1029 Henry Solares Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue By a two-count Amended Administrative Complaint, the Department of Insurance has charged Respondent, a licensed Florida life and health insurance agent, pursuant to Count I with violations of Sections 626.611(7), 626.611(14) and 626.621(8), F.S. arising out of his plea of nolo contendere to a felony charge of grand theft, and pursuant to Count II with violating Section 626.611(7) F.S. arising out of adjudication of guilt to multiple misdemeanor charges of issuing worthless bank checks.
Findings Of Fact Respondent is currently eligible for licensure and licensed in Florida as a life insurance agent and as a health insurance agent. He has been so licensed since 1985, and except for the facts, as set out infra., no disciplinary charges have ever been filed against him. Count I of the Amended Administrative Complaint On December 6, 1989, Respondent was charged by Information in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida, in Case No. 89-4842-CF, with a felony, to wit: Grand Theft in the third degree, a violation of Section 812.014, F.S. Respondent admitted that Case No. 89-4842-CF arose out of his writing a check on First Union Bank to cover computers previously contracted for by Respondent for his insurance agency. When he wrote the check, Respondent knew that he was short of funds but expected to deposit sufficient funds to the appropriate account before his check was presented for payment. When this "kiting" episode occurred, Respondent was short of funds due to an illegal conversion of funds perpetrated by one of his employee agents. Respondent did not get the money into his account in a timely manner and did not later "make the check good" before prosecution began. In accord with the appropriate regulatory rules, Respondent reported the illegal conversion by his employee agent to the Petitioner Department of Insurance and cooperated with that agency. He also reported the offending employee agent's illegal conversion to the local State Attorney. He cooperated in a criminal prosecution and filed a civil action in his own right against the offending agent. These events further depleted his assets and in part accounted for his being unable to make his check good. On July 19, 1990, in response to the Information filed against him, Respondent entered a plea of nolo contendere to grand theft, a felony in the third degree, in Circuit Court Case No. 89-4842-CF. With adjudication of guilt withheld, Respondent was placed on probation for one year and ordered to pay restitution in the amount of $7,139.29 to First Union Bank. Pursuant to court papers and Respondent's testimony, it appears that he was first given until July 19, 1991 to complete restitution on this charge. Respondent testified without refutation that he had received an extension from the circuit court until July of 1993 in which to make this restitution. That date had not yet been reached as of the date of formal hearing. With regard to his nolo contendere plea to a third degree felony, adjudication withheld, Respondent's unrefuted testimony is that he was represented by an attorney, Johnny Smiley, until Mr. Smiley was suspended from practicing law by the Florida Bar and that Mr. Smiley failed several times to appear on his behalf in court, did not advise him of any alternative misdemeanor pleas, and never properly advised him of all the potential consequences of pleading nolo contedere to a felony charge of grand theft, including that if that offense is construed as an offense involving moral turpitude, then Section 626.611(14), F.S. may be read to mandate revocation or suspension of his professional insurance licenses. It may be inferred from Respondent's testimony that Respondent, the prosecutor, and the circuit court judge assumed that Respondent would be able to continue selling insurance and thereby would be able to meet the restitution requirements of his plea bargain and probation. At formal hearing on January 3, 1992, Respondent represented that he had made some restitution and hoped to complete restitution under the foregoing circuit court order by January 31, 1992. Respondent further represented that a circuit judge had indicated that once Respondent made restitution on all charges (including those misdemeanor adjudications that gave rise to Count II of the instant amended administrative complaint, see infra.), the court would entertain a motion to set aside his grand theft plea. What the circuit judge may or may not have indicated is not admissible for proof of the matters asserted, but it is admissible to show Respondent's reliance thereon and his motivation beyond the obvious motivations for making restitution as soon as possible. By stipulation of the parties, the record in this instant disciplinary cause was left open for 60 days after formal hearing so that Respondent could amplify on this testimony. Pursuant to Fla. Rule of Criminal Procedure 3.850, and Art. I Section 16 of the Florida Constitution, Respondent has filed a Motion for Post- Conviction Relief in Circuit Court Case No. 89-4842-CF. However, a copy of this motion was not filed as an exhibit with the Division of Administrative Hearings until the day before the record herein closed by Order of March 5, 1992. Because the record was closed, the outcome, if any, of that circuit court motion/exhibit is not before the undersigned. Also, Respondent's motion/exhibit alone is not sufficient evidence for the undersigned to infer that Respondent has paid all required restitution amounts as of the date of this recommended order. Count II of the Amended Administrative Complaint From September 7, 1990 through July 30, 1991, the Respondent was charged by several Informations in the Circuit Court of the Eighth Judicial Court, in and for Alachua County, Florida, in Case Nos. 90-3267-CF-A, 90-3310- CF-A, 90-3881-CF-A, 91-2236-CF-A, 91-2237-CF-A, 91-2238-CF-A, 91-2712-CF-A, and 91-2713-CF-A, with one count per case of a third degree felony, to wit: Issuing a Worthless Check, a violation of Section 832.05(4), F.S. According to Respondent's unrefuted testimony, the negative balance situation arising from his earlier felony plea bargain, the need to make restitution in that case, and his attorney fees and costs associated with suing the agent who had taken money from Respondent's agency and one of Respondent's insurance carriers had caused an additional shortage of personal funds at a time Respondent was desperately fighting to save his marriage and keep his family, consisting of a wife and two small daughters, together. He admitted that he had issued seventeen worthless bank checks during this stressful period for personal expenses, primarily for telephone charges, groceries, and furniture. Nonetheless, Respondent's marriage failed and the couple is now divorced. By a plea bargain executed July 30, 1991, Respondent agreed to enter a nolo contendere plea to four first degree misdemeanor charges of issuing worthless bank checks and agreed to make restitution totalling $6,492.88 on thirteen others. The restitution agreement covering 17 checks included restitution for nine worthless checks for which the State had agreed to allow deferred prosecution. Five check charges were to be dismissed. What happened next is not entirely clear because, despite an order of the circuit court accepting the plea bargain, the case numbers in the plea bargain and on the subsequent judgments do not match, and it appears that on July 30, 1991, Respondent plead nolo contendere and was adjudicated guilty of eight first degree misdemeanor charges, ordered to serve six months probation on each, the probations to run concurrently, and was further ordered to make restitution pursuant to the plea/restitution agreement. Pursuant to court papers and Respondent's testimony, it appears that he was also given six months, or until approximately January 31, 1992, to make restitution on these cases. That date had not yet been reached as of the date of formal hearing. Respondent remained on probation as of the date of formal hearing. Respondent testified at formal hearing that he hoped to make full restitution on these cases by January 31, 1992, and that unless he also made full restitution on the grand theft case, he could not file a motion to vacate his plea therein. (See, Finding of Fact 7, supra.) Respondent did not file any evidence of restitution in these misdemeanor cases, although he was given until March 5, 1992 to do so. The filing as an exhibit herein of his Motion for Post- Conviction Relief in the circuit court felony case covered in Count I of the instant amended administrative complaint is not sufficient for the undersigned to infer that Respondent has made full restitution on these misdemeanor charges covered in Count II of the instant amended administrative complaint. (See, Finding of Fact 8, supra.) Respondent presented the testimony of Reverend L.D.J. Berry, pastor of a Baptist Church in St. Thomas, Florida, to the effect that the minister has bought insurance from Respondent and has always found him to be helpful and honest in insurance matters. Although Reverend Berry has counselled with Respondent, Respondent is not a member of Reverend Berry's parish. Reverend Berry has never been a recipient of one of Respondent's bad checks. Reverend Berry considered the Respondent to be of good character, even knowing of his bad check history.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order that: Finds Respondent guilty of violating Sections 626.611(14) F.S. and 626.621(8) F.S. and not guilty of violating Section 626.611(7), F.S. as alleged in Count I of the Amended Administrative Complaint; Finds Respondent not guilty of violating Section 626.611(7) F.S. as alleged in Count II of the Amended Administrative Complaint; and Suspends Respondent's licensure and eligibility for licensure as a life and health insurance agent for six months and provides for a probationary period subsequent to reinstatement of his licenses to run concurrently with any criminal probations left for him to serve, up to the maximum of two years provided by Section 626.691 F.S., during which period of license probation, Respondent's insurance business shall be monitored by the Department of Insurance upon such terms as the Department shall determine to be appropriate. RECOMMENDED this 29th day of April, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3109 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted substantially; modified to eliminate subordinate, unnecessary, and cumulative findings: 1, 2, 3, 4, 5, 7, 13, and 15. Rejected because as stated, it is a mischracterization of the weight of the evidence, but sunstantially covered within the recommended order: 6, 8, 14, 16. Accepted as modified. What has been rejected has been rejected so that the recommended order conforms the greater weight of the credible record evidence as a whole: 9, 10, 11, 12, 17. Respondent's PFOF: Accepted substantially, but modified to eliminate subordinate unnecessary, and cumulative findings or otherwise C, D, E, F. Accepted as modified. What has been rejected was rejected to conform the recommended order to the greater weight of the credible record as a whole: A, B. COPIES FURNISHED: Michele Guy, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 S. Scott Walker, Esquire Watson, Folds, Steadham, et al. P. O. Box 1070 Gainesville, Florida 32602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 200 E. Gaines Street 412 Larson Building Tallahassee, Florida 32399-0300
The Issue The issue is whether Petitioners' applications for reimbursement from the Securities Guaranty Fund should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: These cases involve claims by Petitioners, Clyde and Patti Gallo (Case No. 98-3765) and Richard and Belinda Morin (Case No. 98-3766), for payment from the Securities Guaranty Fund (Fund) for monetary damages suffered as a result of violations of the Florida Securities and Investor Protection Act by William Anthony McClure (McClure). When the violations occurred, McClure was a registered associated person employed by Schneider Securities, Inc. (Schneider), a Colorado corporation registered as a securities dealer in the State of Florida. The Fund is administered by Respondent, Department of Banking and Finance (Department), which must approve all applications for payment from the fund. Undisputed Facts Regarding the Gallo's Claim McClure served as manager for Schneider's branch office in Gainesville, Florida. On February 26, 1993, the Gallos deposited the sum of $213,978.10 with Schneider to open an account for investment purposes. McClure executed a Letter of Authorization dated March 18, 1993, for the transfer of $30,000.00 from the Gallo's brokerage account without the Gallo's authority. This money was then transferred to Buddy Miller, who paid McClure $5,000.00 for the delivery of the money. McClure subsequently obtained ratification of the transfer of monies from the Gallo's account by representing to Mr. Gallo that the transaction was a "factoring arrangement" and that the investment of monies would be "secure." McClure made the foregoing representations at a time when he knew that Miller was insolvent, that he was paying him a kickback, and that the money had already been transferred from the Gallo's account. McClure did not disclose this information to the Gallos. The Gallos lost the entire $30,000.00 appropriated by McClure from their account with Schneider. In February 1995, the Gallos filed a five-count complaint with the Circuit Court of the Eighth Judicial Circuit against McClure and Schneider. They also served a treble damage notice to McClure under Section 772.11, Florida Statutes. McClure did not make restitution within 30 days from receipt of notice in order to avoid liability for treble damages. In April 1996, the Gallos received the sum of $40,000.00 from Schneider in a mediated settlement. This amount covered their loss of principal. On August 19, 1996, an Amended Final Judgment awarded the Gallos the sum of $30,000.00 in compensatory damages. This amount was then trebled to $90,000.00 pursuant to Section 772.11, Florida Statutes. The Amended Final Judgment subtracted the sum of $40,000.00 received from Schneider from the $90,000.00 in trebled damages for a total of $50,000.00 plus statutory interest of $9,999.00, or a total of $59,999.00 against McClure. On December 4, 1996, a Final Judgment awarded the Gallos the sum of $20,878.50 in attorney's fees and the sum of $1,312.06 in court costs against McClure. The parties agree that these amounts are not recoverable from the Fund. On July 11, 1998, the Gallos submitted a claim to the Department seeking to recover $10,000.00 of the treble damages they were awarded pursuant to Section 772.11, Florida Statutes. This claim was denied by the Department on July 28, 1998, on the ground that a claimant cannot recover treble damages from the Fund. Undisputed Facts Regarding the Morin Claim In January 1993, Richard and Belinda Morin deposited the sum of $231,862.59 with Schneider to open an account for investment purposes. McClure was the account executive for Schneider who handled the Morin's brokerage account. In mid-March 1993, McClure contacted Mr. Morin to suggest an investment that he represented as being "secure" and "short-term." McClure described the investment to Morin as a "factoring security" of an account receivable of a major manufacturing concern that was secured by the guaranteed payment of the invoice. The investment suggested by McClure to Morin was really an unsecured loan to a small outdoor furniture manufacturer in Central Florida known as Cypress Originals (Cypress). Cypress was then in severe financial distress which fact was not disclosed to Morin by McClure. On March 5, 1993, or prior to the above discussion, McClure had forged Morin's signature on a Letter of Authorization for the transfer of $25,000.00 from the Morin's brokerage account with Schneider and forwarded the money to Cypress. In June 1993, McClure appropriated an additional $20,000.00 from the Morin's brokerage account into his own personal account or to an account owned and controlled by him. The Morins lost the entire $45,000.00 appropriated from their account. In February 1995, the Morins filed a five-count complaint in the Circuit Court of the Eighth Judicial Circuit against McClure and Schneider. They also served a treble damage notice to McClure under Section 772.11, Florida Statutes. McClure did not make any restitution within thirty days after receipt of the notice in order to avoid liability for treble damages. In February 1997, the Morins received $45,000.00 from Schneider in a mediated settlement. This amount covered their loss of principal. On July 2, 1997, the Morins were awarded the sum of $45,000.00 in compensatory damages. This amount was trebled to $135,000.00 pursuant to Section 772.11, Florida Statutes. The Final Judgment awarded the Morins the sum of $90,000 ($135,000.00 in trebled damages less $45,000.00 received from Schneider), prejudgment interest of $48,397.20, court costs of $9,001.67, and attorney's fees of $32,410.00 against McClure. The parties agree that the court costs and attorney's fees are not recoverable from the Fund. On June 11, 1998, the Morins submitted a claim with the Department seeking to recover $10,000.00 of the prejudgment interest award. On July 28, 1998, the Department issued its proposed agency action denying the claim on the ground that prejudgment interest cannot be recovered from the Fund. The Department's Interpretation and Practice The Department interprets the term "actual or compensatory damages," as used in Section 517.141(1), Florida Statutes, to mean only the principal amount of the loss by the investor. The Department has never approved a claim against the Fund for any damages other than the actual loss of principal. Under the Department's interpretation of "actual or compensatory damages," prejudgment interest and trebled damages would be excluded from being recovered from the Fund.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order denying the applications of Clyde and Patti Gallo and Richard and Belinda Morin for reimbursement from the Securities Guaranty Fund. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1999. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Steven D. Spivy, Esquire 230 Northeast 25th Avenue Suite 200 Ocala, Florida 34470-7075 Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 526, Fletcher Building Tallahassee, Florida 32399-0350 Harry L. Hooper, III, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
The Issue The issue in this case is whether Petitioner's Petition for Relief should be dismissed pursuant to Section 120.57(1)(i), Florida Statutes.
Findings Of Fact Petitioner's First Case. In 1985, Petitioner filed an administrative complaint with the Florida Commission on Human Relations (hereinafter referred to as the "Commission") alleging that Respondent had discriminated against him on the basis of his race and his gender. In 1987, as a result of the 1985 complaint, a Recommended Order was entering recommending that the Commission enter a final order finding discrimination on the basis of race. The 1987 recommendation was ultimately adopted in a Final Order issued by the Commission in 1988. In January 1990, the First District Court of Appeal affirmed the Commission's decision. School Board of Leon County v. Weaver, 556 So. 2d 443 (Fla. 1st DCA 1990). As a result of the foregoing, Respondent hired Petitioner as a full-time social studies teacher for the 1990- 1991 school year. Petitioner's Second Case. At the end of the 1990-1991 school year, Respondent determined that Petitioner's contract would not be renewed. Petitioner subsequently filed a second complaint with the Commission alleging, among other things, retaliation. Petitioner simultaneously filed a complaint with the EEOC alleging violations of Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. ss 1981 and 1988. In March 1992, the Commission issued a No Cause Determination finding that Petitioner had not shown a prima facie violation of Chapter 760, Florida Statutes, and that Respondent had "articulated and substantiated" a legitimate nondiscriminatory reason for its decision not to renew Petitioner's contract. In October 1992, the EEOC issued a similar determination. In January 1993 Petitioner filed a Complaint in the Circuit Court of the Second Judicial Circuit, Leon County, Florida. This Complaint was designated Case No. 93-200 (hereinafter referred to as the "State Court Case"). The State Court Case was brought pursuant to Title VII of the Civil Rights Act of 1964, as amended, and 42 U.S.C. ss 1981 and 1988. In particular, Petitioner alleged that Respondent had discriminated against him when it failed to renew his teaching contract following the 1990-1991 school year and that it had subsequently discriminated against him by failing to hire him for positions for which he had applied between 1991 and the filing of the Complaint in the State Court Case. Petitioner alleged that the Respondent had discriminated against him on the basis of his race and gender. The State Court Case was initially assigned to Judge E. Steinmeyer, III. Judge Steinmeyer initially ruled that the trial would be limited to a consideration of whether Respondent discriminated against Petitioner between August 1990 and January 19, 1993. Judge Steinmeyer entered this order on or about September 27, 1996. The State Court Case was subsequently transferred to Judge Charles D. McClure. While hearing pre-trial motions, Judge McClure amended Judge Steinmeyer's ruling concerning the limit of the scope of the trial. Judge McClure ruled that Petitioner would also be allowed to introduce evidence concerning alleged discrimination by Respondent for the period beginning January 1993 and ending at the date of the trial of State Court Case. Although Judge McClure did not enter a written order to this effect, he did nonetheless enter a valid order of the court. Transcript of Pre-Trial Hearing of January 6, 1997, Page 28. The State Court Case was transferred five times before being assigned to Judge Terry P. Lewis. Judge Lewis issued a Pretrial Order on October 8, 1998, in which he explained some of the history of the case and reaffirmed Judge McClure's earlier order: Judge Charles McClure was next assigned to this case. In pretrial motions, the parties sought to revisit issues with him. He amended Judge Steinmeyer's Order and indicated the [Petitioner] would be allowed to introduce evidence of the failure to rehire subsequent to January of 1993, up to the date of trial. . . . . There is a value in consistency and, all things being equal, my preference is to abide by the prior rulings of the predecessor judges and to make my rulings as consistent as possible with theirs. . . . Pursuant to Judge Lewis's Pretrial Order, Petitioner was allowed to present evidence in the State Court Case concerning alleged discrimination by Respondent against Petitioner on the basis of his race and gender during the period 1990 through October 1998. The State Court Case trial commenced October 12, 1998, and ended in a jury verdict on or about October 15, 1998. The jury ruled in favor of Respondent on all counts, finding no retaliation and no discrimination on the basis of race or gender, and judgment was entered for Respondent. The judgment was subsequently affirmed per curiam. Weaver v. School Board of Leon County, 757 So. 2d 504 (Fla. 1st DCA 2000). Petitioner's Third Case. While the State Court Case was pending, Petitioner filed a complaint against Respondent in the United States District Court for the Northern District of Florida. The complaint was designated case number 4:97cv272-RH (hereinafter referred to as the "First Federal Court Case"). Petitioner alleged that Respondent, in refusing to hire him for 32 positions which he had applied for from 1994 to 1995, had discriminated against him on the basis of his race and gender. Summary Judgment was granted in March 1999 in the First Federal Court Case. In granting Summary Judgment, the court accepted two Reports and Recommendation issued by Magistrate William C. Sherrill, Jr. In one of those Reports Magistrate Sherrill concluded, among other things, that a non- discriminatory reason had been proven by Respondent for its refusal to hire Petitioner: that Petitioner's job performance during the 1990-1991 school year had been inadequate. The decision to grant Summary Judgment in the First Federal Court Case was affirmed on appeal by the United States Court of Appeals for the Eleventh Circuit in an unpublished opinion. Weaver v. School Board of Leon County, (Case No. 99- 11045, March 29, 2000). In its decision, the Eleventh Circuit stated: The district court correctly concluded that there were no genuine issues of material fact precluding summary judgment for the Board because Weaver failed to show that the Board's articulated reason for not hiring him was a pretext for race or gender discrimination. The Board stated that it did not hire Weaver during the 1994-1995 school year because of prior unsatisfactory and inadequate performance during the 1991- 1992 [sic] school year in which he was a full-time seventh grade Social Studies teacher at Leon County's Deerlake and Nims Schools. Weaver has wholly failed to bring forward sufficient evidence to demonstrate that these reasons for failing to hire him were a pretext for discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir. 1987). Petitioner's Fourth Case. In 2000, Petitioner filed a second complaint against Respondent in the United States District Court for the Northern District of Florida. The complaint was designated case number 4:00cv91-WS (hereinafter referred to as the "Second Federal Court Case"). Petitioner alleged that Respondent, in refusing to hire him for positions which he had applied from 1995 to 2000, had discriminated against him on the basis of his race, age, and gender, and in retaliation for previous filed complaints. Respondent moved to dismiss the complaint in the Second Federal Court Case arguing, among other things, that two previous cases, the State Court Case and the First Federal Court Case, had determined that Respondent had not discriminated against Petitioner in refusing to hire him after the 1990-1991 school year and, therefore, Petitioner should not be allowed to continually apply for jobs with Respondent and then file a suit if he is not hired. In a Report and Recommendation issued in the Second Federal Court Case, Magistrate Sherrill wrote: [Petitioner's] pleading demonstrates that there are no new facts, no significant changes, but simply that [Respondent] continues to refuse to hire [Petitioner]. This conduct was deemed nondiscriminatory in the prior litigation between the parties. Four courts have now held that [Respondent's] actions were lawful and, thus, the issue may not be raised again in subsequent actions. See Kremer, 456 U.S. at 467 n. 6, 102 S.Ct. at 1890, n. 6. Unless there are material and significant changes in the facts underlying the dispute between these two parties, [Petitioner] may not continue to bring discrimination claims against [Respondent] every time he is denied employment. Judge William Stafford adopted the Report and Recommendation and ordered that Petitioner was enjoined from filing any lawsuit in Federal court alleging discrimination against him by Respondent unless Petitioner pays attorney's fees of Respondent incurred in the Second Federal Court Case and attaches affidavits from persons other than Petitioner setting forth competent evidence of discrimination in any future complaint. Petitioner's Current Complaint and Request for Hearing; Petitioner's Fifth Case. Petitioner is an African-American male. On September 25, 1995, Petitioner filed a Charge of Discrimination (hereinafter referred to as the "FCHR Complaint") with the Commission. Petitioner alleged that Respondent had discriminated against him on the basis of race, gender, and retaliation. In particular, Petitioner alleged that Respondent had discriminated against him "[i]n February of 1991 and continuing through September 19, 1995 " Some of the allegations of the FCHR Complaint relate to alleged acts of discrimination which occurred more than 365 days before the FCHR Complaint was filed. By filing the FCHR Complaint on September 25, 1995, the allegations contained therein should have been limited to alleged acts of discrimination which occurred between September 26, 1994, and September 25, 1995. On November 24, 1999, more than three years after Petitioner filed the FCHR Complaint, the Commission issued a "Notice of Determination: No Jurisdiction," and a "Determination: No Jurisdiction." The Commission gave the following explanation, in relevant part, of why it had concluded it had no jurisdiction over the FCHR Complaint: In his Complaint of Discrimination, Complainant asserted that between February, 1991, and September, 1995, he was not considered by Respondent for teaching positions for which he made application. Counsel for Respondent argues that Complainant's charges must be dismissed as a matter of law. Counsel states, "[M]r. Weaver's claims of discrimination against the School Board of Leon County, including but not limited to the 1994- 95 school year, and continuing to October 1988 [sic] have been litigated in both state and federal courts in favor of the school board." Information provided to the Commission indicates that in January, 1993, Complainant filed a civil suit in the Circuit Court of the Second Judicial Circuit. Case number "93-200" was assigned to the case. The complaint states, inter alia, that following the 1990-91 school year, Complainant applied for positions with Respondent and was not considered. Judge McClure of the Second Judicial Circuit held that Complainant would be permitted to introduce evidence of Respondent's failure to rehire subsequent to January, 1993, up to the date of the trial. Case number 93-200 was litigated before a jury of the Second Judicial Circuit. A Verdict Form provided to the Commission and dated October 15, 1998, indicates that Complainant was not retaliated against and that Complainant was not discriminated against because of his race or sex in Respondent's 'decisions not to hire him (Complainant) following the 1990-91 school year.' Therefore, the Commission's jurisdiction over the Complaint of Discrimination was terminated as a result of the issues being litigated in the Second Judicial Circuit. Inasmuch as the Commission lacks jurisdiction over the Complaint, the Determination will not address the merits of the allegations of discrimination contained in the Complaint. On December 25, 1999, Petitioner filed a Petition for Relief with the Commission. The Petition for Relief was filed three years and three months after Petitioner filed the FCHR Complaint. In the Petition for Relief, Petitioner relates a long history between himself and Respondent. That history for purposes of this proceeding goes back to at least 1979 when Petitioner was employed as a substitute and temporary teacher by Respondent. Petitioner goes on to contend that Respondent has discriminated against him from at least 1985 through the date of the Petition for Relief. The relevant allegations which may be considered, however, are limited by the dates alleged in the FCHR Complaint, February 1991 to September 19, 1995, since those were the only dates the Commission had an opportunity to consider before referring the matter to the Division of Administrative Hearings. On February 1, 2000, the Commission filed the Petition for Relief with the Division of Administrative Hearings and requested that an administrative law judge be assigned to conduct all necessary proceedings. On February 4, 2000, Respondent filed Respondent's Motion to Dismiss Petitioner's Petition for Relief. Respondent argued that the Petition for Relief should be dismissed for two reasons: (a) the Petition for Relief is barred by the statute of limitations of Section 760.11, Florida Statutes; and (b) the allegations of the Petition for Relief are barred by the doctrine of res judicata. An Order on Motions was entered on June 20, 2000, disposing of numerous motions filed in this matter, and disposing of Respondent's Motion to Dismiss Petitioner's Petition for Relief as follows: Respondent has filed a Motion to Dismiss Petitioner's Petition for Relief in which two grounds have been raised for the dismissal of the Petition for Relief in this case. Petitioner has filed a response to the Motion. Both grounds for the dismissal of this case have merit. Therefore, a recommended order of dismissal will be entered in this case within thirty-five days of the entry of this Order: July 24, 2000. The parties will be given an opportunity to file proposed recommended orders within fifteen days of the date of this Order: July 5, 2000. On July 25, 2000, a Recommended Order of Dismissal was entered recommending that this case be dismissed. The Recommended Order recommended dismissal of: Those portions of the Petition for Relief dealing with events that occurred more than 365 days before Petitioner filed the FCHR Complaint; The entire Petition for Relief due to the failure to comply with Section 760.11, Florida Statutes; and 3. The entire Petition for Relief based upon the doctrine of res judicata. On November 1, 2001, an Order Remanding Petition for Relief from an Unlawful Employment Practice (hereinafter referred to as the "Order of Remand") was entered by the Commission. In entering the Order of Remand, the Commission rejected the second and third reasons for recommending that the Petition for Relief be dismissed and returned the matter to the Division of Administrative Hearings. The Commission failed to address the first reason. The Order of Remand was filed with the Division of Administrative Hearings on November 30, 2001. On December 24, 2001, Respondent filed Respondent's Second Motion to Dismiss Petitioner's Petition for Relief. At the time the Motion was filed, the Division of Administrative Hearings did not have jurisdiction over this matter, because the Order of Remand had not yet been accepted. The Order of Remand was subsequently accepted and the file of the Division of Administrative Hearings was reopened by an Order Reopening File entered on February 13, 2002. The Respondent's Second Motion to Dismiss Petitioner's Petition for Relief was filed more than 20 days after the Commission's Order of Remand was entered. It was filed, however, before jurisdiction over this matter was accepted by the Division of Administrative Hearings. The Second Motion to Dismiss was, therefore, filed within less than 20 days after the file in this case was reopened. A motion hearing was scheduled for July 23, 2002, to consider the Second Motion to Dismiss. During the hearing, Petitioner was asked on more than one occasion to explain any differences in the allegations of this matter and the State Court Case. Other than suggesting that this case involves allegations of gender discrimination and the State Court Case did not, a suggestion refuted by the jury verdict in the State Court Case, Petitioner was unable to state any difference. Indeed, the material allegations of this matter and the State Court Case, the First Federal Court Case, and the Second Court Case are no different. At the conclusion of the July 23, 2002, motion hearing, it was announced that Respondent's Second Motion to Dismiss Petitioner's Petition for Relief was granted, that a recommended order would be entered recommending dismissal of this matter, and that the parties could file proposed recommended orders within 20 days of the motion hearing. On August 14, 2002, an Order was entered memorializing the rulings entered at the July 23, 2002, motion hearing. Petitioner has alleged in three previous court proceedings that Respondent's failure to hire him since 1991, was based upon race and gender. In one of those cases the issue was tried before a jury, and it was determined that Respondent had articulated a reasonable reason for refusing to hire Respondent-his unsatisfactory and inadequate performance as a teacher during the 1990-1991 school year-and that Petitioner had failed to prove that the reason for Respondent's refusal was a pretext. Two subsequent cases recognized this verdict. Petitioner continues to disagree with those judicial determinations and is attempting for a fourth time to litigate the same issue. Should he fail here, no doubt he will continue to file future proceedings. There is, however, no new issue to be tried. The doctrine of collateral estoppel should be applied to dismiss this matter. This case involves the same Petitioner bringing the same action against the Respondent that has been fully litigated and determined through a final decision of a court of competent jurisdiction in the State Court Case, the First Federal Case, and the Second Federal Case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint of discrimination filed in this case by James J. Weaver. DONE AND ENTERED this 21st day of August, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 21st day of August, 2002. COPIES FURNISHED: James J. Weaver 1424 Jake Street Tallahassee, Florida 32310 William R. Mabile, III, Esquire William D. Horgan, Esquire Fuller, Johnson & Farrell, P.A. 111 North Calhoun Street Post Office Box 1739 Tallahassee, Florida 32302-1739 C. Graham Carothers, Esquire Ausley & McMullen 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent failed to properly represent Petitioner when she was terminated from her position as a school bus driver by the Seminole County School District on or about June 1994, on the basis of her race (African-American) and handicap, in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Seminole County School Bus Drivers' Association, Inc. (Respondent), is a labor organization as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by the Seminole County School Board (District) as a school bus driver during the relevant period of time from 1985 until June 1994. At the end of the 1993-1994 school year, Petitioner was terminated as a bus driver by the District. At said time, Petitioner was a member of the Seminole County School Bus Drivers' Association. Petitioner is an African-American female and a licensed bus driver. Joe Wicks (Wicks), who worked for Respondent and assisted Petitioner in her efforts to preserve her job at the end of the 1993-94 school year, is also African-American. Respondent is a public sector union affiliated with the Florida Teaching Profession/National Education Association (FTP/NEA). The FTP/NEA manages the staff associated with its affiliated unions through entities called UniServ offices. Nancy Wheeler (Wheeler) served as the executive director of the Seminole UniServ at the time Petitioner's employment was terminated by the District in 1994. In that capacity, Wheeler managed UniServ staff members who provided assistance to Respondent's members. Another of Wheeler's duties as executive director was to advise Respondent's Board about the merits of particular grievances for which arbitration is requested by the member. Respondent's Board has authority over the arbitration process used to enforce the collective bargaining agreement between bus drivers and the District. Over the years Wheeler served as executive director, 30 to 40 percent of Respondent's members have been African-American and Respondent's Board has been proportionally represented with African-Americans as well. The grievance process available to members of Respondent consisted of the following steps: 1) Informal efforts to resolve dispute; 2) Step I hearing before the employee's immediate supervisor; 3) Step II hearing before the Superintendent or his designee; 4) Step III binding arbitration before neutral arbitrator. At the end of the 1993-94 school year, District transportation officials proposed the employment termination of eight of Respondent's members because of their poor attendance patterns. In late May 1994, Respondent filed a grievance on behalf of Petitioner concerning the District's proposed termination of her employment in which it alleged that the District did not have just cause to support Hampton's termination. That grievance was pursued through Step II. Although the District ultimately decided to retain the employment of five of these bus drivers, no driver received assistance from Respondent beyond the Step II level of the grievance process. Further, there was no obvious race- related pattern in the District's decision to retain only some of the drivers. Three of the eight drivers were African- American, and three white drivers and two African-American drivers from among them were ultimately retained by the District in June 1994. Petitioner experienced depression, a brief period of situational grief due to the unexpected death of a boyfriend, in early 1994 but suffered from no other medical condition during the 1993-94 school year. At the end of January 1994, Petitioner's treating physician (Dr. Fraser) authorized her to return to work after a short leave period. Petitioner, in fact, returned to her job as a driver for the rest of the 1993-94 school year. Petitioner fully recovered from her "depression" several months later and was able to return to full-time employment elsewhere by the end of 1994. Although information about Petitioner's situational depression and her medical and other absence excuses was presented to Joseph Wise, Transportation Director (Wise), at the Step I Grievance hearing and to Dr. Paul J. Hagerty, Superintendent (Superintendent), at the Step II Grievance hearing, the School District's decision-makers (Wise and Superintendent Hagerty) determined there was just cause for Hampton's termination due to her long history of excessive absenteeism. In deciding whether to take Petitioner's grievance to arbitration, Respondent followed its normal practice including a personnel file review by Wheeler followed by her recommendations to Respondent's Board. Wheeler reviewed Petitioner's evaluation and disciplinary history concerning attendance problems and determined her case lacked sufficient merit to warrant taking it to arbitration. Those records reflected a five-year history of poor attendance, disciplinary warnings, and discipline imposed for poor attendance. Respondent's Board accepted Wheeler's recommendation that it not take Petitioner's case to arbitration. Respondent had successfully assisted Petitioner with prior employment problems she encountered over the years without incident or complaint by Petitioner. Neither Respondent's Board nor any staff member of Respondent, including Wicks and Wheeler, harbored any animus toward Petitioner. Assistance with her 1994 termination grievance though Step II was provided by Respondent absent any consideration of race or disability. Further assistance was appropriately denied to Petitioner on the basis of her employment history which strongly supported the charges against her and rendered an arbitration proceeding to challenge the termination futile. Petitioner's race and disability status played no role in Respondent's decision to forego taking Petitioner's grievance to arbitration. Transportation Department officials, and ultimately the Superintendent, had complete authority over the final employment decisions made regarding Petitioner and the other bus drivers whose termination had been recommended by Wise at the end of the 1993-94 school year. At no time did Respondent, or any agent thereof, have any authority to control or reverse these decisions. On May 27, 1994, Wicks and Petitioner signed and submitted a request for legal services to the FTP/NEA on the same day Respondent filed the grievance on Petitioner's behalf. The legal services document is a request that the FTP/NEA provide any legal assistance it might deem appropriate. The form specifically states that the FTP/NEA may decide to do so in its discretion. Wheeler did not have the authority to provide any legal services to Petitioner for the FTP/NEA; rather, that authority rested with the General Counsel of the FTP/NEA. Had Respondent taken Petitioner's grievance to arbitration, Wheeler, and not an attorney, would have handled the matter as was Respondent's usual practice. Petitioner's position that her request for legal services must be honored or it would be a violation of the labor contract is not supported by the evidence. Petitioner did not suffer from a medical condition of sufficient severity and duration to entitle her to the disability protections of the Florida Civil Rights Act. The medical evidence showed, however, that even those documents proved Petitioner's own physician (Dr. Fraser) repeatedly approved her return to work during the months in question, and that he did not expect the condition to have a significant impact on her once the proper medication regimen could be established. In fact, Dr. Fraser's note of May 11, 1994, states that he expected the medication-related side effect problem to be corrected over the next few weeks. Petitioner testified, and the medical records confirm, that she took a period of leave because of her grief- related problems and that she worked from February to June 1994. Although Petitioner missed some days intermittently during the remainder of the year. Dr. Fraser returned her to work in short order each time. Petitioner also testified that she obtained and sustained other full-time employment by the end of 1994 and that she has not been treated for "depression" since 1994. It is obvious from the record that Petitioner's physician did not consider her condition to be so significant as to prevent her from working after the immediate period of grief for which she sought and was granted leave. Neither Wicks, Wheeler, Respondent's Board, nor any agent of Respondent took any action concerning Petitioner which was motivated by her race or medical condition. Petitioner filed her Petition for Relief with the Florida Commission on Human Relations (FCHR) on April 5, 1999. The filing of the Petition was more than 35 days after the determination of no reasonable cause by the FCHR.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which dismisses the Petition for Relief for lack of jurisdiction and/or denies the Petition on the merits. DONE AND ENTERED this 24th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings 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 this 24th day of February, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Mae Vanessa Hampton Laurel Oaks Apartments 8775 Orange Court Tampa, Florida 33637 Pamela Cooper, Esquire FTP/NEA 213 South Adams Street Tallahassee, Florida 32301 Anthony D. Demma, Esquire Meyer & Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
The Issue Fact Issues Did Petitioner, Flo-Ronke, Inc. (Flo-Ronke), fail to timely pay a fine imposed by Final Order of the Respondent, Agency for Health Care Administration (Agency)? Did the Agency reject attempts by Flo-Ronke to timely pay the fine in full by a single payment without conditions? Did Flo-Ronke attempt to pay the fine untimely in full by a single payment without conditions? If so, did the Agency reject the proffered payment? Did Flo-Ronke employ an individual in a position that required background screening who had a disqualifying criminal conviction? Law Issues Which party bears the burden of proof? What is the standard of proof? Do the facts support denying re-licensure of Flo-Ronke? Are untimely efforts to pay the fine in full with a single payment mitigating factors? If so, how should the factors be weighed?
Findings Of Fact Flo-Ronke is an Assisted Living Facility (ALF). An ALF is a building, part of a building, or a residential facility that provides “housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.” § 429.02(5), Fla. Stat. (2015).1/ The Agency licenses and regulates ALFs. §§ 429.04 and 429.07, Fla. Stat. Flo-Ronke is subject to the Agency’s licensure requirements and is licensed by it. By Notice of Intent to Deny Renewal Application dated December 2, 2014, the Agency denied Flo-Ronke’s application to renew its license on the grounds that Flo-Ronke “failed to comply with the criminal background screening requirements by employing a caretaker who was not eligible to work in the facility.” On January 8, 2015, the Agency amended the Notice of Intent to Deny. On January 21, 2015, the Agency issued a Second Amended Notice of Intent to Intent to Deny for Renewal. This notice is the subject of this proceeding. The second amended notice asserts two bases for denial. One is the originally asserted background screening violation. The other is Flo-Ronke’s failure to pay an outstanding fine in AHCA Cases 2014002513 and 2014002514. Payment of the Fine In AHCA Cases 2014002513 and 2014002514, the Agency’s Administrative Complaint charged Flo-Ronke with four deficiencies involving insects, cleanliness, medication administration, and inadequate staffing. Originally, Flo-Ronke requested an evidentiary hearing before DOAH (DOAH Case No. 14-1939). Later, Flo-Ronke, through its owner Ms. Akintola, agreed there were no disputed issues of facts and stipulated to returning the matter to the Agency for an informal hearing. The Agency provided Flo-Ronke an opportunity for a hearing. No representative of Flo-Ronke appeared at the hearing. The Agency issued a Final Order on November 5, 2014, upholding the Administrative Complaint and imposing a $13,500 fine. The Agency’s Final Order included instructions on how to make the payment, advised that the payment was due within 30 days of the Final Order, and cautioned that interest would be imposed on overdue amounts. The Final Order included a Notice of Right to Judicial Review. On behalf of Flo-Ronke, Ms. Akintola appealed the Final Order pro se. The Florida Rules of Appellate Procedure do not provide for an automatic stay of a decision if it is appealed. Flo-Ronke did not seek a stay of the Final Order. Consequently, the obligation to pay the fine was effective as of the date of the Final Order. The First District Court of Appeal rendered an Order requiring Flo-Ronke to obtain counsel for the appeal because a corporation cannot be represented by an employee or officer. Flo-Ronke did not obtain counsel or respond to the court’s Order. On January 16, 2015, the court dismissed Flo-Ronke’s appeal. On April 9, 2015, Flo-Ronke, represented by the same counsel as in this proceeding, moved to re-open the appellate case. On April 17, 2015, the court denied the motion. It also denied Flo-Ronke’s subsequent motion seeking reconsideration, clarification, a written opinion, and a stay. From the date that the Agency entered the Final Order imposing the fine in DOAH Case No. 14-1939 (AHCA Cases 2014002513 and 2014002514) to the date of the final hearing, Flo-Ronke did not pay the fine. Starting around February 2015, attorney Scott Flint tried, on Flo-Ronke’s behalf, to arrange a payment plan for the fine. He discussed the proposal with Agency Attorney Edwin Selby. Mr. Flint linked the discussions to resolving a separate investigation of Flo-Ronke that the Agency was conducting. Mr. Flint never offered unconditional payment of the fine on behalf of Flo-Ronke. Mr. Flint testified that at some point during conversations about the two cases, Mr. Selby said the Agency would not accept full payment if it was offered. Mr. Selby testified that he did not make this statement. Mr. Selby’s testimony is more credible in this instance, as it is in other instances when Mr. Selby’s testimony differed from Mr. Flint’s. One reason Mr. Selby’s testimony is more credible is that on February 11, 2015, after the time Mr. Flint says Mr. Selby made the statement, Mr. Flint wrote Mr. Selby a letter proposing an installment plan for paying the fine. The letter did not mention the alleged statement that the Agency would not accept payment. The proposal and the failure to mention the alleged refusal are inconsistent with the assertion that Mr. Selby said payment would not be accepted. Also, Mr. Flint hedged his testimony about the alleged refusals, noting that lawyers say many things during negotiations. Mr. Selby’s testimony about conversations after the February 11 letter is also more credible. Mr. Selby never said that the Agency would not accept full payment if it were tendered. The clear and convincing evidence proves that from the date the Agency entered the Final Order to the date of the final hearing, Flo-Ronke never tendered full and complete payment of the fine to the Agency. Flo-Ronke, despite its assertions during pre-hearing motion practice, did not offer any evidence that could be reasonably be interpreted as proving that Flo-Ronke tendered full payment of the fine or that the Agency refused the payment. Even Mr. Flint’s testimony, if fully credited, is not evidence that Flo-Ronke tendered full payment or that the Agency refused full payment. Background Screening At all relevant times, Florida law required level two background screening of any person seeking employment with a provider whose responsibilities may require him to provide personal care or other services directly to clients or who will have access to the client living area. § 408.809(1)(e), Fla. Stat. (2014). Individuals who have disqualifying offenses may not hold positions where they provide services to clients or will have access to client living areas. Florida law also requires re-screening every five years after employment. § 408.809(2), Fla. Stat. (2014). Agency surveyor, Laura Manville, surveyed Flo-Ronke and its records on September 2, 2014. At that time, F.M. was employed there. Flo-Ronke employed F.M. since at least 2009. F.M.’s duties included caring for residents. In addition, even when performing non-caretaking duties, such as grounds-keeping and maintenance, F.M. had unsupervised access to the residents and their living area. F.M. was adjudicated guilty of a disqualifying sex offense on October 28, 1999. Flo-Ronke’s records did not document the required level 2 background screening of F.M. when reviewed on September 2, 2014. At that time, Ms. Manville told Ms. Akintola of the deficiency and that F.M. was not eligible to work at the ALF. This was not the first time the Agency advised Ms. Akintola of the deficiency. By letter dated October 2, 2009, the Agency advised that background screening of F.M. had revealed he had a disqualifying criminal offense. It advised Flo-Ronke that it must either terminate the employment of F.M. or obtain an exemption from disqualification. Flo-Ronke did neither. Ms. Manville conducted a follow-up survey on September 10, 2014. Despite the notice given on September 2, 2014, F.M. was still present at the facility performing grounds work and had access to client living areas. Ms. Akintola presented testimony and a single document attempting to prove that F.M. passed background screening in 2010. The document appears to show a determination of no background screening violation in 2010. Why it differs from other documents from 2009 and after 2010 is not explained. The circumstances surrounding the document are somewhat mysterious. It does not appear in the Agency files. On September 2, 2014, Ms. Akintola did not mention it. On that day, she said she thought F.M. did not need to satisfy screening requirements because he had worked for so long at Flo-Ronke. More importantly, the issue is whether F.M. was employed in 2014 in violation of the background screening requirements. The clear and convincing evidence, including evidence of the conviction in the background screening database, the continued employment of F.M. after September 2, 2014, and the letter of October 2, 2009, proves that in 2014 F.M. had a disqualifying offense and did not have an exemption from the disqualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the application of Flo-Ronke, Inc., for renewal of its ALF license. Jurisdiction over the Motion for Fees and Costs is retained for further appropriate proceedings once the prevailing party has been determined. DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 30th day of October, 2015.
