The Issue Case No. 97-3049 Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes? Did Respondent perform the services of a private investigator during the period of January 1, 1997 through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes? Case No. 97-3096 Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes? Did Respondent perform the services of a private investigator during the period of January 1, 1997, through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of investigating and enforcing the provisions of Chapter 493, Florida Statutes. Case Number 97-3049 Respondent Dormal Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding. Respondent Dormal Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding. During the period of January 1, 1997, to April 7, 1997, Respondent Dormal Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Geoffrey A. Foster, attorney-at-law and for Dwight M. Wells or Deborah Wells (Wells), attorneys at law. While performing private investigations for Foster and Wells during the period of January 1, 1997 to April 7, 1997, Respondent Dormal Cavilee was under contract and was not solely and exclusively employed by Foster or by Wells. Additionally, an employer-employee relationship did not exist between Foster or Wells and Respondent Dormal Cavilee in that neither Foster nor Wells deducted federal income tax or social security tax, or furnished any health or retirement benefits to Respondent Dormal Cavilee. Case Number 97-3096 Respondent Mary Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding. Respondent Mary Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding. During the period of January 1, 1997, to April 7, 1997, Respondent Mary Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Dwight M. Wells or Deborah Wells (Wells), attorneys at law. While performing private investigations for Wells during the period January 1, 1997, to April 7, 1997, Respondent Mary Cavilee was under contract and was not solely and exclusively employed by Wells. Additionally, an employer-employee relationship did not exist between Wells and Respondent Mary Cavilee in that Wells did not deduct federal income tax or social security tax, or furnish any health or retirement benefits to Respondent Mary Cavilee. Case Numbers 97-3049 and 97-3096 A billing statement from Respondent Dormal Cavilee and Respondent Mary Cavilee dated March 1, 1997, to Dwight M. Wells, shows the date of investigation, the person performing the investigation (either Dormal Cavilee or Mary Cavilee), the amount of time involved in performing the investigation, the hourly rate and the total amount charged. The billing statement shows that the investigations are related to the defense of Grady Wilson in Case Number CF93-5094-A1XX, a criminal case in Polk County, Florida. Nothing on the billing statement indicates that it is a statement for private investigations furnished by a private investigative agency referred to as Criminal Defense Investigations. The Motion for Payment of Costs filed by Dwight M. Bell in Case Number CF93-5094-A1XX provides in pertinent part: That the following expense was incurred during the investigation, discovery process, pre-trial preparation and trial of this cause: Criminal Defense Investigations $2,500.00 Both the Order Approving Additional Funds for Investigation Costs dated March 3, 1997, and the Order Approving Motion for Payment of Costs refer to the payments as payment for investigations performed by criminal defense investigations. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee advertised as providing, or engaged in the business of furnishing private investigations, notwithstanding language in the motion and orders referred to above which was apparently referring to the type of services being performed rather than private investigations being furnished by a private investigative agency. On April 7, 1997, a Cease and Desist Order was issued to both Respondent Dormal Cavilee and Respondent Mary Cavilee. The record indicates that both Respondent Dormal Cavilee and Respondent Mary Cavilee honored the Cease and Desist Order and cease performing any private investigations other than in an employer-employee relationship with Wells. Chapter 493, Florida Statutes, did not apply to such activity. See Section 493.6102, Florida Statutes. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee attempted to “cover-up” any of their activities when questioned by the investigator for the Department. Respondents knew or should have known that their activity in regards to investigations for Foster and Wells required that they be licensed under Chapter 493, Florida Statutes. However, there appeared to be some confusion on the part of the Respondents as to whether their relationship with the defense attorneys required that they be licensed under Chapter 493, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and review of Rule 1C-3.113, Florida Administrative Code, concerning disciplinary guidelines, range of penalties, and aggravating and mitigating circumstances, it is recommended that the Department in Case Number 97-3049 enter a final order: (a) dismissing Counts I, II, and IV of the Administrative Complaint; (b) finding Respondent Dormal Cavilee guilty of the violations charged in Count III and V of the Administrative Complaint, assess an administrative fine in the amount of $300.00 for each count for a total of $600.00. It is further recommended that the Department in Case Number 97-3096 enter a final order dismissing Counts I and III of the Administrative Complaint; and finding Respondent Mary Cavilee guilty of the violations charged in Count II of the Administrative Complaint, assess an administrative fine in the amount of $300.00. DONE AND ENTERED this 2nd day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1998. COPIES FURNISHED: Hon. Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel The Capitol, Plaza Level-02 Tallahassee, Florida 32399-0250 Kristi Reid Bronson, Esquire Department of State, Division of Licensing The Capital, Mail Station Four Tallahassee, Florida 32399-0250 Dormal Dean Cavilee 1900 Queens Terrace Southwest Winter Haven, Florida 33880 Mary Louise Cavilee 2768 Janie Trail Auburndale, Florida 33823
The Issue The issue is whether Petitioner's application for licensure as a real estate instructor should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Mr. Haller is a highly educated individual, having received two undergraduate degrees, two master degrees, and a law degree from the University of Florida. He is licensed as a real estate broker, having received his license in 1978; is a licensed commercial pilot (and a current member of the Civil Air Patrol); and is certified by the State as a teacher in the areas of chemistry, mathematics, general science, and exceptional student education. Also, Mr. Haller was just accepted for admission to the University of North Florida in the Master of Science in Computer and Information Sciences program for the 2004 summer term. Mr. Haller was licensed as a member of The Florida Bar in 1982 and for a number of years maintained a law practice as a sole practitioner in Gainesville, Florida. Much of his work involved real estate transactions. Around 1996, however, he suffered a nervous breakdown, which resulted in his hospitalization. During that illness, he was unable to attend to client matters, which resulted in several complaints being filed against him by former clients, and led to the filing of charges by The Florida Bar. (However, no criminal charges arose out of these complaints, and the clients never pursued the matter in civil court.) Pending the outcome of the disciplinary matter, he was placed on The Florida Bar's inactive list on December 26, 1996. Because of his fragile state of health, rather than contesting the charges, Mr. Haller chose to voluntarily resign from The Florida Bar on June 19, 1997, with leave to seek readmission after five years, effective nunc pro tunc (retroactive) to December 26, 1996. He has not yet applied for readmission but says he intends to do so. Since The Florida Bar matter, and with the exception of the corollary matter described in Finding of Fact 4, there have been no other blemishes on Mr. Haller's record in any respect. Based on The Florida Bar's action, on July 9, 1998, the Department filed an Administrative Complaint against Mr. Haller, as a real estate broker, charging him with having had a registration suspended, revoked, or otherwise acted against in violation of Section 475.25(1)(s), Florida Statutes (1997). (The record shows that the Department and Commission had a complete record of all allegations pending against Mr. Haller when he resigned from The Florida Bar.) On October 14, 1998, and after an informal hearing in which he admitted the allegations of fact, the Commission entered a Final Order suspending Mr. Haller's real estate license for three months and requiring that he reimburse the Commission in the amount of $240.00 for investigative costs. The license was subsequently reinstated after the suspension time had expired and remains in good standing at this time. Mr. Haller is currently employed as a chemistry teacher for the Duval County School District. He is also a mathematics instructor at Florida Community College in Jacksonville. In July 2003, he was offered a position as a real estate instructor at the Watson School of Real Estate in Jacksonville, Florida. He has been offered a similar position at Florida Community College. In order to be employed as an instructor, Mr. Haller needed to secure a real estate instructor's license from the Commission. To that end, he filed an application with the Commission on September 15, 2003. However, it was denied by the Commission on the ground that his law "registration" had been disciplined by the Florida Bar in 1997. It is fair to infer from the Transcript of the Commission's meeting on February 18, 2004, that the Commission did not believe that Mr. Haller was completely candid when he responded to an inquiry regarding the circumstances surrounding his resignation from The Florida Bar. The Commission's denial triggered the filing of the request for a hearing. As clarified by the parties at the hearing, in order to become licensed, Mr. Haller must demonstrate that he is now qualified for licensure "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient," so that it affirmatively appears that the "public and investors will not likely be endangered by the granting of the registration." § 475.17(1)(a), Fla. Stat. In other words, Mr. Haller must demonstrate that since his resignation from The Florida Bar in mid-1997 (which is the disqualifying offense), his conduct and reputation have been such that it is unlikely that if he is licensed as a real estate instructor, the public and investors will be endangered. Mr. Haller has been, and is now, employed as a public school teacher in Duval County, as well as in the community college system. In these positions, he is entrusted to teach and interact with students on a daily basis. A letter from one of his supervisors corroborates Mr. Haller's testimony that he is performing those tasks in a reputable and competent manner. In addition, Mr. Haller currently holds an active real estate broker's license, which allows him to conduct transactions on behalf of investors and members of the public. There is no evidence in the record that he is a threat to investors or the public in his role as a real estate broker. Indeed, the evidence shows that he is not. If the instructor's license is issued, instead of dealing with investors and members of the public in a broker's capacity, Mr. Haller will be teaching applicants who are seeking a real estate license. Testimony by an active investor who has been involved in at least 2,000 real estate transactions in the Alachua County area over the last 30 years or so, some handled by Mr. Haller, established that Mr. Haller is a "veteran of real estate transactions" since the 1970s, and that his honesty and integrity since his resignation from The Florida Bar have not been questioned. A member of the Endowment Board for Santa Fe Junior College, which has raised almost $30 million for the college, and who is a long-time realtor, further established that Mr. Haller possesses the humility, education, and character necessary to be a good real estate instructor. Another witness testified that he would have no hesitation in using Mr. Haller for a real estate transaction. Finally, a retired certified public accountant who is now employed by the University of Florida testified that Mr. Haller possesses the character, intelligence, and experience to be licensed as an instructor and would be an asset to the profession. The foregoing evidence supports a finding that Mr. Haller has sufficiently rehabilitated himself since his resignation from The Florida Bar through meaningful employment in the public and community college school systems, and that he will pose no threat to the public or investors as a real estate instructor. The evidence further supports a finding that Mr. Haller enjoys a good reputation in the community, and that his conduct since mid-1997 has been good. Because the statutory criteria have been satisfied, the application should be approved.
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 granting Petitioner's application for licensure as a real estate instructor. DONE AND ENTERED this 20th day of July, 2004, in Tallahassee, Leon County, Florida. S 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 20th day of July, 2004.
Findings Of Fact On August 17, 1989, the Executive Board acting for the Local Elected Officials of the Heartland Employment and Training Consortium, voted to terminate Clifton Thomas, Jr., from his position as Executive Director of the Heartland Private Industry Council. At the time of his termination from employment, Mr. Thomas was being paid the sum of $47,528 per annum. Mr. Thomas' salary was established on an annual basis by the Executive Board. On or about December 1, 1989, Mr. Thomas, acting through his attorney, Mr. Robert McKee, notified E. John Dinkel, III, acting as counsel for the Executive Board, that he intended to file a law suit against the Heartland Employment and Training Consortium and its Executive Board. The complaint to be filed in the United States District Court, Middle District of Florida, Tampa, Division, demanded equitable relief and damages and alleged that Mr. Thomas was fired without justification and "was not accorded due process." Mr. Dinkel, acting as counsel for the Executive Board, was able to obtain agreement from Mr. McKee, acting as counsel for Mr. Thomas, that the complaint would be dropped upon payment of $24,096 to Mr. Thomas. At a regularly scheduled meeting of the Heartland Private Industry Council held on December 14, 1989, the Council voted to concur in a payment of $24,096 to Mr. Thomas to avoid the cost of litigation. It was understood and agreed that a statement would be signed by Mr. Thomas denying any liability or wrongdoing by any of the parties to the action. At a specially convened meeting of the Executive Board of the Heartland Consortium held on December 15, 1989, the Board unanimously agreed to the settlement. On December 21, 1989, a check in the amount of $21,598.40 was issued to Mr. Thomas. This amount represented the agreed upon amount minus a levy from the Internal Revenue Service. The check (#010471) was charged to the pooled administrative funds from allocations through State of JTPA formula monies. In consideration of the above payment, Mr. Thomas gave up his threatened law suit and signed a statement, dated December 22, 1989, denying any wrongdoing on the part of the Executive Board, the Heartland Private Industry Council and any officers or employees of the Board or Council. In the annual audit of the Heartland Private Industry Council conducted by Grant Thornton, Accountants and Management Consultants, the use of JTPA monies to pay the former Executive Director was questioned. The auditor stated: "The use of JTPA funds in settlement of legal claims was determined by Florida Department of Labor and Employment Security to be an unallowable cost under State and Federal law as indicated in a letter to the Council's attorney dated November 6, 1989, therefore this is a questioned cost." On September 30, 1991, the Heartland Private Industry Council received notification from Patricia S. Gilbert, Director, DLET that the costs questioned by the auditor were disallowed. No reason other than that cited by the auditor was given. On October 24, 1991, Heartland Private Industry Council, Inc., notified the Department of Labor of their intent to appeal the disallowed cost. On November 1, 1991, Jack E. Lyons, Executive Director of the Heartland Private Industry Council, wrote a letter to Secretary Scruggs, questioning the applicability of the statutes, both State and Federal, that were cited by the auditor in the statement of questioned costs. At a regularly scheduled meeting of the Heartland Private Industry Council held on April 17, 1992, the Council denied any misapplication of Federal JTPA dollars and voted to not permit the Executive Director to settle the disallowed costs by payment from non-JTPA dollars. The attached documentation styled Index of Exhibits, containing fourteen (14) exhibits is incorporated by reference into the proposed Statement of Facts.
Recommendation It is recommended that a Final Order be entered finding the payment to Clifton Thomas, Jr., of $24,096 in settlement of his law suit against the Heartland Private Industry Council Inc. to be a nonallowable cost and improperly charged to federally provided funds. RECOMMENDED this 29th day of July, 1992, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1992. COPIES FURNISHED: Larry R. Jackson, Esquire 300 Parkview Place Lakeland, FL 33805 Carolyn Cummings, Esquire Hartman Building, Suite 307-2102 Capitol Circle SE Tallahassee, FL 32399 Frank Scruggs, Secretary 303 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152 Cecilia Renn Chief Legal Counsel 307 Hartman Building 2012 Capital Circle SE Tallahassee, FL 32399-2152
The Issue The issues in these consolidated cases are as follows: (1) whether Respondents employed Lorene Walker, who had contact with scholarship students and who did not meet the requisite criteria to pass the Level 2 background screening as required by section 1002.421(1)(m) and (p), Florida Statutes (2019), and if so, what is the appropriate remedy; and (2) whether Respondents engaged in fraud in violation of section 1002.421(3)(d) and, if so, whether Petitioner should revoke Respondents' participation in several Florida Scholarship Programs.1
Findings Of Fact Parties, People, and Programs The Department is the government agency charged with administering numerous state scholarship programs pursuant to section 1002.421, Florida Statutes. The Department operates or has administrative responsibilities for the Gardiner Scholarship Program, the John M. McKay Scholarships for Students with Disabilities Program, the Florida Tax Credit (FTC) Scholarship Program, and the Family Empowerment Scholarship Program. See §§ 1002.385, 1002.39, 1002.394, and 1002.395, Fla. Stat. The Gardiner, McKay, FTC, and Family Empowerment scholarships defray tuition and other qualified educational expenses for eligible students who attend charter, private, or other eligible schools in the state of Florida. The Department also operates or administers the Hope Scholarship Program, which provides tuition assistance to victims of school bullying so that they can enroll in another school. See § 1002.40, Fla. Stat. The scholarship funds are awarded to eligible students to be used at eligible schools. The Commissioner is the agency head of the Department and has the authority to revoke or suspend a school's eligibility to receive scholarship monies on behalf of eligible students. The Independent Education and Parental Choice Office, also referred to as the School Choice Office (Office), is a section of the Department which oversees several school choice options outside Florida's public school system. The Office also oversees the administration of various scholarships programs under chapter 1002. The Office is in regular contact with schools that participate in these scholarship programs. Respondents have been operating as private schools for approximately six years. Since the 2013/2014 school year, they have been found eligible and participated in numerous scholarship programs pursuant to section 1002.421. Respondents operate two campuses: (1) School Code No. 4015 located at 1056 North Pine Hills Road, Orlando, Florida (Pine Hills Campus); and (2) School Code No. 8827 located at 5308 Silver Star Road, Orlando, Florida (Silver Star Campus). The Schools serve 40 to 50 scholarship students and receive approximately $200,000 per year in scholarship funds. Judith Shealey is the owner of the Schools. She carries the title of Executive Director, Principal, Headmistress, and/or Owner. Ms. Shealey has family members who are students and teachers at the Schools. Compliance Requirements As explained by RaShawn Williams, the Office, parents, and eligible schools work closely together to access the scholarship funds. The parents apply for the scholarships through the designated agency and enroll their students directly with an eligible school. The school is responsible for enrolling the student in the scholarship program awarded to that student. Essentially, the student must be deemed eligible to receive scholarship funds, and the school must be eligible to receive those scholarship funds. If a private school is deemed ineligible by the Office for participation in a scholarship program, the students at that school do not lose their eligibility for scholarship funds. Rather, they simply cannot use those funds to enroll in the ineligible school. As private school participants in the Florida Scholarship Programs, the Schools were required to register with the State through the submission of a Private School Annual Survey; and then apply for eligibility through the submission of a yearly Scholarship Compliance Form (Compliance Form). The Compliance Form specifies numerous governing statutory requirements including: (1) submitting background screenings for officers, directors, or other controlling persons; (2) certifying all staff with direct student contact have passed an FDLE Level 2 background screening; and (3) terminating or denying employment to all persons who cannot meet this requirement. The Compliance Form is completed by applicant schools online, and then a signed and notarized hard copy is mailed to the Office. The relevant portions of the Compliance Form are found in "Section 4," and involve background checks: * Has each Owner, Operator, and Chief Administrative Officer undergone a Level 2 background screening through the Florida Department of Law Enforcement and submitted the results to the Florida Department of Education in accordance with section 1002.421(1)(m), Florida Statutes? (Reports must be filed with the private school and made available for public inspection). * * * * Have all employees and contracted personnel with direct student contact submitted their fingerprints to the Florida Department of Law Enforcement for state and national background screening in accordance with section 1002.421(1)(m), Florida Statutes? * In accordance with section 1002.421(1)(m), Florida Statutes, does the school deny employment to or terminate an employee or contracted personnel with direct student contact if he or she fails to meet the background screening standards under section 435.04, Florida Statutes? * In accordance with section 1002.421(1)(m), Florida Statutes, does the school disqualify instructional personnel and school administrators from employment in any position that allows direct contact with students if the personnel or administrators are ineligible under section 435.40, Florida Statutes? A "No" answer on any of the above questions would, if unresolved, result in a private school's ineligibility for scholarship funds. The evidence establishes that the Schools answered "Yes" for sections 4A, 4C, 4D, and 4E on the notarized Compliance Forms that were submitted on December 18, 2018, and December 11, 2019. In addition to certifying the information above on the Compliance Forms every year, an eligible school must submit to the Office screening documentation for directors, principals, board members, administrators, and officers as part of the renewal of participation in the scholarship programs. Screening documentation related to other employees must be maintained by the schools and is usually only reviewed by the Office during an audit or a site visit of the school. There is no dispute that the Schools never listed Lorene Walker as an administrator for the Schools. There is no dispute the Schools never submitted any background screening information for Ms. Walker until specifically requested by the Office in November 2019. Employment of Lorene Walker Lorene Walker was hired by the Schools in 2013.3 She had children and/or grandchildren who attend the Schools. The Schools claim Ms. Walker was hired from an entity known as "Career Source." Although Ms. Walker believed that she had been cleared to work at the Schools, there is no employment file or documentation that she had undergone the Level 2 background screening required by law before being employed at the Schools. Originally, Ms. Walker worked as a "floater." As a floater, Ms. Walker cooked, cleaned, and did whatever the school needed at the time. It is unclear whether she had direct contact with students in this position. 3 Ms. Walker testified she began working there in 2015, but later stated she started in 2013. Ms. Shealey indicated by 2014, Ms. Walker had transitioned into the current position. Regardless, in 2014, Ms. Walker transitioned into a more active role at the Schools. Although the Schools claim in response to the Complaints that she was simply an administrative assistant to Ms. Shealey, the evidence establishes that Ms. Walker was the Administrator for the Schools during the time relevant to the Complaints. She reminded teachers to send out grades, attended meetings, oversaw the lunch program, and prepared school-related and financial documentation. Ms. Walker was also responsible for the Schools' students' enrollment into the scholarship programs. As Administrator, Ms. Walker also had authority, either explicit or implicit, from the Schools' owner, Ms. Shealey, to represent the Schools when dealing with the Office. She worked directly with Ms. Williams on compliance issues, including fire safety, health inspections, and completion of the Annual Survey and Compliance Form for the Schools. Ms. Walker also responded to requests for information from Ms. Williams and others in the Department. It was clear Ms. Walker was integral to the operation of the Schools. Ms. Shealey and Ms. Walker were the only two individuals with access to the Schools' email accounts that were used to correspond with the Department. The emails from one of the email addresses usually contained Ms. Shealey's signature block indicating either the title of "Principal" or "Headmistress." Ms. Walker's signature line identified her title as "Administrator." Before being hired by the Schools, Ms. Walker had been arrested for numerous offenses between 1978 and 2001 in Florida. Although most of these offenses were dismissed, dropped, and/or abandoned, she pled nolo contendere to and was found guilty of a 1994 charge for unlawful purchase of a controlled substance, a second-degree felony in violation of section 893.13, Florida Statutes (1993). The 1994 charge is a disqualifying offense which rendered Ms. Walker ineligible to be a school employee.4 There was no evidence that Ms. Walker had obtained an exemption for this qualification. As noted above, the Schools never disclosed Ms. Walker's importance in their operations in their Compliance Forms. Prior to November 2019, the Schools had never provided any screening documentation for Ms. Walker to the Office as part of the yearly compliance process. Investigation and Complaints On or around October 14, 2019, the Department received a complaint from another state agency concerning possible abuse by an employee of the School at the Pine Hills campus. Although the abuse investigation was handled outside of the Office, the Office opened an inquiry into the Schools' compliance with background check requirements and other issues. Whitney Blake conducted the investigation on behalf of the Office. The first step in this inquiry was a letter from Ms. Blake's supervisor, dated October 25, 2019, requesting (among other things) a list of all employees (including both teachers and other personnel) and results of current FDLE Level 2 background screenings for all employees. 4 Section 435.04, Florida Statutes, provides the following in relevant part: (2) The security background investigations under this section must ensure that no persons subject to the provisions of this section have been arrested for and are awaiting final disposition of, have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, or have been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or similar law of another jurisdiction: * * * (ss) Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or if any other person involved in the offense was a minor. On November 4, 2020, Ms. Walker sent the Department a list of all the Schools' staff, including herself as "Administrator," along with the results of her background screening, revealing her previous disqualifying offense. On November 15, 2019, Ms. Blake attempted to contact Ms. Shealey by phone because she was concerned that Ms. Walker, who was the disqualified employee, was the person sending the information from the School. When she called the Schools and requested to speak with the owner (Ms. Shealey), the person who answered purportedly claiming to be the Schools' owner did not have a distinguishable accent. Ms. Shealey was known to have a strong accent, whereas Ms. Walker did not. Regardless, on this call, Ms. Blake instructed the person on the other end of the phone line that the Schools would need to terminate Ms. Walker immediately because of her disqualifying offense. On that same day, Ms. Blake then sent a follow-up email to the Schools (at both email addresses utilized by the Schools) indicating there were outstanding items that had not been provided as requested in the October 25 letter. She also specifically requested proof Ms. Walker was no longer at the Schools. Specifically, the Department stated: Upon review of the Level 2 background screenings, it was determined Lorene Walker has disqualifying offenses pursuant to section 435.04, F.S. An employee or contracted personnel with direct student contact means any employee or contracted personnel who has unsupervised access to a scholarship student for whom the private school is responsible. To certify compliance with this requirement, please submit a signed statement indicating Lorene Walker's employment at your school has been terminated or that individual's role with your school no longer puts he/she in proximity to scholarship students. Your attention to this in the next five days will preempt any further action on our part. (emphasis added). That same date, November 15, 2019, the Schools emailed one of the items requested by Ms. Blake, an abuse poster, to the Office. Although Ms. Walker testified she did not send the email, it had her signature block and was from one of the Schools' two email accounts to which she had access. The undersigned finds Ms. Walker sent this email to Ms. Blake. On November 18, 2019, the Schools sent another item previously requested by Ms. Blake, the teaching qualifications for a teacher, to the Office. Again, although Ms. Walker claimed she did not send the email, it had her signature block and was from one of the Schools' two email accounts to which she had access. The undersigned finds Ms. Walker sent this email to Ms. Blake. Ms. Blake did not receive any proof that the Schools had removed Ms. Walker from her position within five days as requested in the November 15 email to the Schools. As a result, on November 22, 2019, Ms. Blake emailed the Schools reiterating the requirements of section 1002.421, and repeating her request for a signed statement that Ms. Walker had been terminated or had no contact with scholarship students. Ms. Blake also added: "Failure to turn in the requested documentation could impact your school's ongoing participation in the Scholarship Program." During this time, Ms. Blake spoke to Ms. Shealey numerous times on the phone regarding the outstanding requests related to another teacher and the signed documentation that Ms. Walker had been removed from her position. Ms. Shealey indicated it would be difficult to remove Ms. Walker due to Ms. Walker's oversight of the school and her familiarity with the scholarship student information. After Ms. Blake did not receive the requested proof of Ms. Walker's removal from the Schools and two other items related to a teacher, the Office issued a Notice of Noncompliance on December 5, 2019. On December 19, 2019, Ms. Shealey sent to Ms. Blake one of the outstanding items related to the teacher by email. There was no mention of Ms. Walker and no signed proof that Ms. Walker had been removed from her position. The next day, Ms. Blake wrote an email to Ms. Shealey indicating that she did not have authority to exempt Ms. Walker from the background screening requirements. She again asked for the outstanding information related to the other teacher and a signed statement indicating Ms. Walker had been removed and no longer had proximity to scholarship students. On December 23, 2019, Ms. Shealey emailed Ms. Blake that the teacher for which there was an outstanding request had resigned and no longer worked for one of the Schools. Ms. Blake responded with yet another request for the signed statement indicating Ms. Walker had been terminated or was no longer in proximity to scholarship students. In response, Ms. Shealey sent an email to Ms. Blake with an attached letter. The letter titled "Termination of your employment" and dated December 9, 2019, indicates that Ms. Shealey terminated Ms. Walker during a meeting held on December 9, 2019. The letter is unsigned. Ms. Shealey indicated in the text of the email that it was the hardest letter she had to write. Being concerned that they had not received a signed statement, Ms. Blake and Ms. Williams requested that a site visit be conducted at the Pine Hills Campus. A visit was scheduled for February 5, 2020, and the Schools were provided notice of the site visit by certified mail, email, and telephone. Additionally, the Schools were provided a checklist of the documents that should be provided to the inspector during the site visit. On February 5, 2020, Scott Earley from the Office conducted the site visit at the Pine Hills Campus. When he arrived, Ms. Shealey was not there and none of the documentation previously requested had been prepared for review. Mr. Earley testified that once Ms. Shealey arrived, she did not know where all the requested documents were, nor could she produce all of them. For example, when asked about a necessary health form, Ms. Shealey indicated that Ms. Walker would know where the document was, but she could not locate it. Mr. Earley did not recall Ms. Shealey stating during the inspection that Ms. Walker was working from home, but she gave Mr. Earley the impression that Ms. Walker's background screening issue had been resolved. Regardless, the Site Visit Staff/Consultant Worksheet filled out for the February 5 site visit does not disclose Ms. Walker as a member of staff or contracted personnel with the Pine Hills Campus. Although Ms. Walker was not at the Pine Hills Campus during the site visit, Mr. Earley believed based on his observations and conversations with Ms. Shealey that Ms. Walker was still employed by the Schools as a director or principal. Almost two weeks later on February 20, 2020, Petitioner filed the Complaints against the Schools. It was not until March 11, 2020, in response to the Complaints that the Schools submitted for the first time a signed copy of a termination letter dated December 9, 2020. Even after the Complaints had been served on the Schools, however, it was unclear what Ms. Walker's involvement was with the Schools. There may have been some confusion because Ms. Walker had been seen after her purported termination on campus. Ms. Walker claimed she was on campus only to pick up her children and grandchildren. Testimony from two of the Schools' teachers indicated that they noticed Ms. Walker was no longer at the Schools, but knew she was taking care of the Schools' paperwork from her home. Neither teacher could establish a date certain for when Ms. Walker stopped working on campus and/or when she began working at home. Prior to the filing of the Complaints in these proceedings, there was no evidence that the Schools ever reported to the Office that Ms. Walker had been working from home. Nothing in the Petition filed on March 4, 2020, indicates Ms. Walker was still employed at the Schools. It was not until March 11, 2020, in response to the Complaints that the Schools submitted for the first time a signed copy of a termination letter dated December 9, 2020. As part of the March 11 submission, Ms. Shealey sent a signed statement indicating she had not terminated Ms. Walker, but rather "had her work from home." This was the first time Ms. Shealey indicated to the Office that Ms. Walker was still working for the Schools. In the Motion filed April 10, 2020, the Schools indicated they were unaware of the specifics of the Level 2 background screening requirement, and that, once aware, "we took action immediately and terminated the employee in question." There was no indication in the body of the Motion the Schools continued to employ Ms. Walker to work at her home. Attached to the Motion, however, was the same letter submitted on March 11 indicating Ms. Walker was working from home. In the Amended Petition filed on May 15, 2020, the Schools state Ms. Walker was terminated: "I terminated Ms. Lorene Walker due to the Department's information in order to come into compliance with the Florida Department of Education." "I rectified this deficiency by terminating Ms. Walker." "Ms. Lorene Walker was terminated on December 9, 2019, as advised by Whitney Blake." Although the Amended Petition does not explicitly state Ms. Walker continued to work for the Schools at home, it does leave room for this interpretation: "As of December 9, 2019, Ms. Lorene Walker no longer works in the Lion of Judah facility." It is unclear on what date Ms. Walker stopped working from home for the Schools. What is clear is that at the time of the final hearing she was no longer working at the Schools in any location or in any capacity. ULTIMATE FACTUAL DETERMINATIONS The greater weight of the evidence establishes Ms. Walker, in her role as Administrator, should have been disclosed to the Office as an "operator" or "a person with equivalent decision making authority." The Schools were required to send her background screening documentation to the Office as required by the Compliance Form and section 1002.421(1)(p), and they did not. The Schools employed a person with a disqualifying offense in violation of sections 1002.421(1)(m) and 435.04(2)(ss). Specifically, the Schools employed Ms. Walker from 2014 (if not earlier) through December 2019 (if not later) in a position in which she was in the vicinity of scholarship students, knowing that she had been found guilty of a felony and without obtaining or providing documentation related to a Level 2 background clearance. The Schools continued to allow Ms. Walker to remain in a position that placed her in the vicinity of scholarship students after receiving notification of her ineligibility for almost a month (if not more). The greater weight of the evidence establishes the Schools engaged in fraudulent activity, to wit: (1) Ms. Shealey falsely represented to the Office that the Schools complied with Section 4 of the Compliance Form for 2018 and 2019; (2) the Schools falsely obscured Ms. Walker's role at the School and her criminal background; and (3) the Schools failed to honestly disclose Ms. Walker's employment status when they claimed to terminate her on December 9, 2020, but failed to inform the Office that they had retained (or rehired) her to work at home. The Schools made these statements of material fact either knowing they were false or in reckless disregard of the truth or falsity of the representations, which were false.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner enter a final order (1) upholding the suspension; and (2) revoking the eligibility of Lion of Judah Academy (4015) and Lion Of Judah Academy (8827) to participate in the following Florida Scholarship Programs: John M. McKay Scholarships for Students with Disabilities Program, Florida Tax Credit Scholarship Program, Gardiner Scholarship Program, Hope Scholarship Program, and/or Family Empowerment Scholarship Program. DONE AND ENTERED this 3rd day of November, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 3rd day of November, 2020. COPIES FURNISHED: Jason Douglas Borntreger, Esquire Department of Education Suite 1544 325 West Gaines Street Tallahassee, Florida 32310 (eServed) Judith Shealey Lion of Judah Academy 1056 North Pine Hills Road Orlando, Florida 32808 Shawn R. H. Smith, Esquire Law Office of Shawn R. H. Smith, P.A. Post Office Box 547752 Orlando, Florida 32854 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Respondent, Department of Labor and Employment Security, is the agency responsible for carrying out the duties and responsibilities assigned by the Governor of Florida under the Job Training Partnership Act, Public Law, 97- 300, as amended. In administering the JTPA, Respondent provided Petitioner, along with others, a RFP, which among other things, solicited proposals for programs to provide training and employment for older individuals as provided for by Section 124, JTPA, Title I. Paragraphs 111(1-7) of the RFP lists the requirements that must be addressed in the proposal and be judged affirmatively by Respondent in order for the proposal to be designated responsive and subject to further review and scoring. One of the requirements is the review by, and concurrence of, the CEO prior to submitting the proposal. The purpose of requiring CEO and Private Industry Council (PIC) Concurrence Statements at time of submission is to insure that no applicant uses State approval to "arm twist" the local PIC and CEO into approval. Petitioner submitted its proposal to the appropriate PIC for review and concurrence, thinking that the CEO Concurrence Statement would be obtained by the PIC. Upon return of the proposal by the PIC, there was no executed CEO Concurrence Statement included and, upon inquiry, Petitioner was informed by Joseph M. Brannon, Executive Director, PIC, that a CEO Concurrence Statement was not required for a JTPA Title I Program. At this point, Petitioner did not inquire of Respondent as to the need for the executed CEO Concurrence Statement even though the RFP indicated that the CEO Concurrence Statement was required at the time of submission. Joseph M. Brannon is not an agent of the Respondent and had no authority to change any of Respondent's RFP requirements. Although the proposal had been reviewed by, and had the concurrence of, the local PIC, the proposal, as timely submitted by the Petitioner on February 6, 1987, did not contain the CEO Concurrence Statement. The CEO, Harry H. Waldon, did execute, after the fact, a CEO Concurrence Statement dated January 14, 1987, which is the same date of the PIC Concurrence Statement and this CEO Concurrence Statement was transmitted to the Respondent by Mr. Brannon on March 6, 1987, some sixteen (16) days after the deadline of 3:00 p.m. on February 18, 1987. The evidence is insufficient to show that the CEO reviewed and concurred in the proposal prior to submission even though he was present at the meeting when the local PIC reviewed and concurred in the proposal. Even though Thomas E. Skinner, Jr. is the Executive Director of the Private Industry Council of Service Area 6, his testimony, which I find credible, was that his staff handled these matters and he was not aware of the necessity of CEO Concurrence Statement for a JTPA, Title I program. However, on this occasion, Mr. Skinner was acting on behalf of the Petitioner and it was his responsibility to submit a proposal that was responsive to Respondent's RFP, notwithstanding the conflicting advice from Joseph Brannon concerning the executed CEO Concurrence Statement. Although Respondent, independently of the RFP, advised proposal applicants of the necessity of achieving the 75 percent of performance goals in the previous year if requesting continued funding, a requirement for responsive proposals, there was credible evidence that Respondent did not relax the necessity of timely meeting this requirement by the date of proposal submission or relax any other requirement set out in the RFP. Petitioner's proposal was rated as non-responsive by the Respondent for failure to timely submit an executed CEO Concurrence Statement. The criteria adopted by the Respondent in the RFP is in accordance with the JTPA and the Governor's goals.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Respondent enter a Final Order finding Petitioner's proposal as non-responsive and denying Petitioner's request for further review and scoring. Respectfully submitted and entered this 3rd day of June 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 3rd day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-I684BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 3. Adopted in Finding of Fact 2. Adopted in Findings of Fact 4 and 7. Adopted in Finding of Fact 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 10. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 3. Adopted in Finding of Fact 8 but clarified. Adopted in Finding of Fact 8 but clarified. Adopted in Finding of Fact 4. 5-7. Rejected as immaterial and irrelevant. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Rejected as legal argument. Adopted in Finding of Fact 3. Adopted in Findings of Fact 7 and 8. COPIES FURNISHED: Hugo Menendez, Secretary 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Thomas E. Skinner, Jr. Qualified Representative Amex Enterprises, Inc. Post Office Box 47035 Jacksonville, Florida 32247-7035 Carolyn Cummings, Esquire Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with the responsibility and duty of investigating and prosecuting complaints against real estate professionals in the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been duly issued license numbers 0263586, 0261820, 0260480, and 0300938. The last license issued to Respondent was as a broker with the following entities: Avatar Realty, Inc., 4550 Poinciana Boulevard, Kissimmee, Florida; Avatar Communities, Inc., 201 Alhambra Circle, Coral Gables, Florida 33134; Golden Gate Realty, Inc., 4736C Golden Gate Parkway, Naples, Florida; and Avatar Condominium Management, Inc., 201 Alhambra Circle, Coral Gables, Florida. Prior to February 20, 1987, Respondent was the owner of a convenience store known as Hemispheres Food Mart, which was located in the Hemispheres condominium and office complex in Hollywood, Florida. On or about February 20, 1987, Respondent, as owner, entered into a three month exclusive right of sale listing agreement with South Florida Business Negotiators, Inc., for the sale of the Hemispheres Food Mart, at an asking price of $100,000. In connection with the foregoing listing agreement, the Respondent represented and warranted as true that the: "Business doing $286,000 yearly net $55,000 ambitious owner can improve potential to $350,000 yearly." On or about April 1, 1987, the Respondent, as seller, entered into a "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart" with Kenny Mohammed and Annie Mohammed, his wife, as purchasers, to sell the corporate stock of Hemispheres Food Mart, Inc. to the Mohammeds. This contract was executed by the Mohammeds on April 2, 1987. The first line of the contract reflects an erroneous date for the contract of May 5, 1987. Paragraph 12 of the "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart", provided as follows: 12. PURCHASER'S RIGHT TO INSPECTION OF SELLER'S RECORDS. The Purchaser, within 72 hours after the con- tract has been signed and executed by both parties, shall have the right, either by himself or through his accountant, to inspect the financial records and receipts of the Seller to verify the amount of sales of the Seller on a weekly basis. The Purchaser shall verify that the average gross sales on a weekly basis for the Seller, during the time period from January 1 through April 1 (the season) exceed the sum of $8,400.00 per week. If the Purchaser by himself or through his accountant determines that the gross sales for the Seller are less than $8,400.00 per week, the Purchaser shall have the unilateral right to terminate its obligations under the terms of this Contract. Seller shall supply Purchaser with copies of 1985 and 1986 tax returns. The Seller agrees to allow the Purchaser to sit in the place of business for a period of one week to observe and verify that the stated daily gross sales of the business exceed $1,200.00. If during the one-week observation period the daily gross sales do not meet $1,200.00, the Purchaser reserves the right to cancel this Agreement and the deposit held in escrow shall be refunded to them. On May 7, 1987, Respondent and the Mohammeds executed an addendum to their contract. Paragraph 23 of the addendum provides as follows: 23. INSPECTION OF RECORDS It is hereby agreed that both parties shall have complied with paragraph 12, PURCHASERS' RIGHT TO INSPECTION OF SELLER'S RECORDS, and therefore same shall be considered null and void. The representation contained in the contract relating to the level of sales was for sales made during the "season" between January 1 and April 1. Mr. Mohammed exercised his right to observe the sales during the week that began April 6, 1987. During the week long observation period, the sales for two of the days did not equal $1,200. Mr. Raymond provided various records and cash register tapes for the period January 1 - April 1, 1987, for inspection by Mr. Mohammed and Mr. Mohammed's financial adviser. Following the inspection of these records and the one-week observation period, Mr. Mohammed, against the advice of his attorney, elected to close the transaction. The transaction closed in May 1987. (The closing statement signed by Respondent and the Mohammeds does not reflect the day in May the transaction closed.) Subsequent to the closing, the Mohammeds sued Respondent in a civil action brought in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida. The "Final Judgment for Plaintiffs" entered September 19, 1989, by Circuit Judge J. Cail Lee provides, in pertinent part, as follows: ... [T]he Court having heard the testimony of all witnesses and having examined the proofs offered by the respective parties, the court finds that he testimony of the two witnesses was to the effect the defendant, Warren Raymond, falsified sales during the sales verification period to induce the plaintiffs, Kenny Mohammed and Annie Mohammed, to complete the purchase of the Hemispheres Mini Mart, and that constituted fraud, and that constituted a basis not only for compensatory damages but punitive damages as well. It is therefore, ORDERED AND ADJUDGED that the plaintiffs have a judgment against the defendant for fraud in the sum of $750.00 compensatory damages and $15,000.00 punitive damages ... Respondent appealed the judgment entered against him by Judge Lee. While the case was on appeal, Respondent and the Mohammeds settled the civil suit. Respondent did not admit any wrongdoing in the Settlement Agreement. Thereafter, on March 26, 1990, Judge Lee entered a "Final Judgment of Settlement" in the civil action which vacated the "Final Judgment for Plaintiffs" that he had entered September 19, 1989, and which dismissed with prejudice the civil action the Mohammeds had brought against Respondent. There was no competent evidence presented at the formal administrative hearing that Respondent had (a) misrepresented the value of the premises or potential of the business, (b) generated false sales during the observation period, (c) falsified cash register receipts, (d) conspired with his friends to falsify sales, or (e) otherwise engaged in fraud during the course of his business dealings with the Mohammeds.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint brought against Respondent in this proceeding. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON 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 January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5320 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-5, 7 and 11 (the first of the two paragraphs that are numbered 11) are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The use of the term "induced" is rejected as being contrary to the findings made or to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 9 are rejected as being unsubstantiated by the record. The last sentence is rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 11 (the second of the two paragraphs that are numbered 11) are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraphs 15 and 16 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James Gillis, Esquire Department of Professional Regulation Senior Attorney 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802-1900 Norman Segall, Esquire Bentata Hoet & Associates & Zamora, Segall, Lacasa & Schere 3191 Coral Way - Third Floor Miami, Florida 33145 Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in case number 94-6750 is whether Respondent's Class "A" private investigative agency license should be disciplined. The issue in case number 95-1084S is whether Respondent's application for a Class "C" license should be denied.
Findings Of Fact The Parties. Petitioner, the Department of State, Division of Licensing (hereinafter referred to as the "Division"), is responsible for, among other things, the licensing of privateinvestigators and private investigative agencies in the State of Florida. Chapter 493, Florida Statutes. In pertinent part, the Division may issue, pursuant to Section 493.611, Florida Statutes, the following classes of licenses: Class "C": private investigator; Class "CC": private investigator intern; and Class "A": private investigative agency. At all times relevant to this proceeding, Respondent, Keith P. Acuff, was licensed by the Division as a private investigator intern. Mr. Acuff holds a Class "CC" license from the Division. Mr. Acuff is also the owner of a private investigative agency known as Chatoyant Executive Protection and Investigative Services (hereinafter referred to as "Chatoyant"). Mr. Acuff holds a Class "A" license from the Division for Chatoyant. License Requirements. In order to qualify for a Class "C" license, an individual must operate for a minimum of twenty-four months as a private investigator intern. Section 493.6203(4), Florida Statutes. During those twenty-four months, the intern must be sponsored and supervised by an individual holding a Class "C" license. See Sections 493.6101(11) and 493.6116, Florida Statutes. Anyone, regardless of licensure, may hold a Class "A" license. In order for the business to operate as a private investigative agency, however, the agency must be managed by a person holding a Class "C" license. Mr. Acuff's Investigatory Experience. Mr. Acuff first received his Class "CC" license in July of 1990. In October of 1994 Mr. Acuff applied for a Class "C" license. See Petitioner's exhibit 1. The Division denied the application based upon its conclusion that Mr. Acuff had failed to verify that he had accrued twenty-four months of sponsored service as a private investigator intern. Mr. Acuff was first employed by Don Hubbard Investigations. Mr. Acuff had not claimed, nor does the evidence support a finding, that he is entitled to any time toward a Class "C" license for his employment with Don Hubbard Investigations. From the middle of September, 1990, until December, 1991, Mr. Acuff was employed by The Brown Group. Mr. Acuff's sponsor at The Brown Group was Steve Brown. The Division was able to verify from documentation submitted by Mr. Brown that Mr. Acuff was entitled to 12 months of investigatory work while employed at The Brown Group. Mr. Acuff failed to prove that he was entitled to more than 12 months credit for his employment with The Brown Group. Although Mr. Acuff testified that he believes he worked at least 15 months under Mr. Brown's sponsorship, he offered no proof from Mr. Brown to substantiate his testimony. From December 15, 1991, to February 15, 1992, Mr. Acuff was employed by Intercontinental Detective Agency. Mr. Acuff's sponsor at Intercontinental Detective Agency was Sean Mulholland. The Division was able to verify that Mr. Acuff had performed investigatory duties for Mr. Mulholland for 1 month. Mr. Acuff failed to prove that he was entitled to more than 1 month credit for his employment with Intercontinental Detective Agency. Mr. Acuff testified that he believes he worked at least 3 months under Mr. Mulholland's sponsorship but he offered no proof from Mr. Mulholland to substantiate his testimony. Mr. Acuff's testimony that he submitted a Sponsorship Term Addendum completed by Mr. Mulholland to the Division was not credible and, even if it had been credible, was insufficient to constitute substantiation from Mr. Mulholland of Mr. Acuff's work for him. Mr. Acuff's next investigatory work was for MG Detective Agency. Mr. Acuff's sponsor at MG Detective Agency was Michael G. Hatcher. Mr. Hatcher agreed to sponsor Mr. Acuff by executing a Letter of Intent to Sponsor Private Investigator Intern on October 27, 1992. See Respondent's exhibit 2. Cynthia L. Cartwright signed the form agreeing to be an alternative sponsor. Mr. Acuff did not list any time under Mr. Hatcher's sponsorship for credit on his application for Class "C" license. See Petitioner's exhibit 1. The Division was not able to verify that Mr. Acuff had performed any investigatory duties for Mr. Hatcher. Mr. Acuff failed to prove that he was entitled to any credit for his employment with MG Detective Agency. Mr. Acuff testified that he believes he worked at least 3 months under Mr. Hatcher's sponsorship but he offered no proof from Mr. Hatcher to substantiate his testimony. Mr. Acuff claimed on his application for Class "C" license that, upon leaving MG Detective Agency, he worked for Chatoyant from June of 1993 until August 1994. Mr. Acuff claimed that he was sponsored by Ms. Cartwright while employed for Chatoyant. Mr. Acuff also claimed that he performed investigatory work under Ms. Cartwright's sponsorship during the period he worked for Chatoyant for at least 3 and 1/2 months. Initially the Division planned to issue Mr. Acuff a Class "C" license. The Division concluded that Mr. Acuff was entitled to at least 11 months of sponsored investigatory work under Ms. Cartwright's sponsorship. Before the Class "C" license was issued to Mr. Acuff, however, the Division concluded that Mr. Acuff was not entitled to any sponsored time under Ms. Cartwright's sponsorship. The evidence, as discussed, infra, proved that Mr. Acuff is not entitled to any credit for work performed under Ms. Cartwright's sponsorship. Based upon the foregoing, Mr. Acuff provided verification that he had 13 months of sponsored investigatory service. Mr. Acuff is, therefore, 11 months shy of the 24-months of experience required for a Class "C" license. Mr. Acuff's Association with Ms. Cartwright. Mr. Acuff met Ms. Cartwright in late 1992 when he was employed briefly at MG Detective Agency. Ms. Cartwright has held a Class "C" license since 1991. Upon Mr. Acuff's termination of employment at MG Detective Agency, Ms. Cartwright was told by Mr. Acuff and a mutual friend, Carolyn Barber, that he only needed 2 or 3 months to complete the 2 years of internship required for a Class "C" license. Ms. Cartwright was asked if she would sponsor Mr. Acuff and act as the manager of Chatoyant for 2 or 3 months. Ms. Cartwright agreed to Mr. Acuff's request. She did so because Ms. Barber had asked her to and she felt sorry for Mr. Acuff because he had been terminated by MG Detective Agency only needing, Ms. Cartwright thought, 2 or 3 more months of sponsorship. Ms. Cartwright signed a Letter of Intent to Sponsor. The form she signed was blank. The Letter of Intent to Sponsor was subsequently completed, dated April 14, 1993 and filed with the Division. Ms. Cartwright admits she signed a blank form even though she understands that it was improper for her to do so. After agreeing to sponsor Mr. Acuff and act as the manager of Chatoyant, Ms. Cartwright changed her mind. She telephoned the Division's offices in Tallahassee in August of 1993 to ask how she could have her name removed as manager of Chatoyant. Ms. Cartwright was informed that her name did not appear as manager of Chatoyant. In the fall of 1993 Mr. Acuff asked Ms. Cartwright to sign a form terminating her position with Chatoyant. Ms. Cartwright told Mr. Acuff she did not see why she needed to sign a form based upon what she had been told during her conversation with the Division. When Mr. Acuff suggested that the Division might have made a mistake, Ms. Cartwright agreed to sign the form. In January or February of 1994 Ms. Cartwright signed a blank copy of a Termination/Completion of Sponsorship for Private Investigator Intern form. She gave the signed form to Ms. Barber. This form was ultimately completed, Ms. Cartwright's signature was notarized by Mr. Acuff's girlfriend, the form was dated August 30, 1994 and was then filed with the Division as part of Mr. Acuff's application for licensure. See Petitioner's exhibit 6. It was represented on Petitioner's exhibit 6 that Ms. Cartwright had sponsored Mr. Acuff from June 3, 1993 to August 26, 1994. An Employee Action Report was also filed with the Division. Petitioner's exhibit 5. The form indicates that Ms. Cartwright had resigned as manager of Chatoyant as of August 30, 1994. Ms. Cartwright did not sign the form. On October 5, 1994, Ms. Cartwright executed a Termination/Completion of Sponsorship for Private Investigator Intern form attesting that "I did not sponsor Patrick Acuff to my knowledge. I was not aware of Intent to Sponsor." Petitioner's exhibit 7. Ms. Cartwright did not sponsor any investigatory work by Mr. Acuff or act as the manager of Chatoyant. The Administrative Complaint. During the summer of 1994, the Division's office in Jacksonville received a letter questioning how Mr. Acuff could be working for Chatoyant without an appropriate license or manager. Ms. Norma Benvenuto, an investigator for the Division, checked the Division's records and determined that there was no sponsor listed for Chatoyant. Ms. Benvenuto spoke with Mr. Acuff and asked that he come to her office. Mr. Acuff complied. Mr. Acuff informed Ms. Benvenuto that Ms. Cartwright was the sponsor of Chatoyant. When asked for documentation, Mr. Acuff was only able to produce a blank form signed by Ms. Cartwright. Ms. Benvenuto asked Mr. Acuff to bring any documentation that would support his assertion that Ms. Cartwright was the manager of Chatoyant and that they had met to discuss his work during her sponsorship of him. Ms. Benvenuto telephoned Mr. Acuff more than once to remind him to bring the documentation. Mr. Acuff failed to provide any such documentation. Ms. Benvenuto contacted Ms. Cartwright in an effort to verify Mr. Acuff's assertions. Ms. Cartwright denied ever sponsoring Mr. Acuff or every actually performing any duties as the manager of Chatoyant. Ms. Cartwright also admitted that she had initially agreed to sponsor Mr. Acuff but had subsequently changed her mind. On October 20, 1995, the Division entered an Administrative Complaint against Mr. Acuff. The Denial of Mr. Acuff's Application for a Class "C" License. By letter dated December 16, 1994, the Division notified Mr. Acuff that his application for a Class "C" license was denied.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Division sustaining Counts II and III of the Administrative Complaint against Mr. Acuff in case number 94- 6750, requiring that he pay a fine of $1,000.00 and denying the application for a Class "C" license filed by Mr. Acuff or about August 30, 1994 in case number 95-1084S. DONE AND ENTERED this 28th day of April, 1995, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1995. APPENDIX The Division 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. Acuff did not file a proposed order. The Division's Proposed Findings of Fact 1 Hereby accepted. See 4-5. 2-3 Hereby accepted. Accepted in 22. Accepted in 22, 28 and hereby accepted. Hereby accepted. Accepted in 25 and hereby accepted. Accepted in 22 and hereby accepted. Accepted in 17 and hereby accepted. See 26 and hereby accepted. Hereby accepted. Accepted in 16 and hereby accepted. Accepted in 14. Accepted in 13, COPIES FURNISHED: Michele Guy Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Jeffrey Grainger, Esquire 1722 University Boulevard South Jacksonville, Florida 32216 Honorable Sandra B. Mortham Department of State The Capitol Tallahassee, Florida 32399 Don Bell Department of State The Capitol Tallahassee, Florida 32399
The Issue Whether or not Petitioner satisfies the "experience or training" requirement to obtain a Class "C" private investigator's license.
Findings Of Fact On May 22, 1989, Petitioner filed an application for a Class "C" private investigator's license. Included in that application, Petitioner related that he was employed by Austin Private Security Specialists of Austin, Texas as a security officer-undercover investigator during the period from September, 1985 until July, 1987. During his employment with Austin private Security Specialists (Austin), approximately 60% of Petitioner's job duties included investigative work and the remaining 40% was in security related work. Respondent did not credit Petitioner's investigative experience which he claims based on his employment at Austin; however, he was credited with nine months security experience based on his employment at Austin. Respondent' denied Petitioner's claim for investigative experience in Texas based on its determination that Petitioner was not in compliance with Texas regulations while he was employed at Austin. Petitioner also claimed experience for employment with Wackenhut Company of Tampa during the period February 28, 1989 through July 28, 1989. At Wackenhut, Respondent was employed as a private investigator intern. At Wackenhut, Petitioner worked under the sponsorship of Robert Crane, private investigator and successfully completed his work for Wackenhut during Crane's sponsorship. Petitioner was credited with five months investigative experience for his employment at Wackenhut. A review of Petitioner's relevant personnel records from Texas indicates that Petitioner was registered as a commissioned security guard from October 29, 1985 until September 4, 1986. Petitioner was registered as being employed in security sales from September 4, 1986 until September 30, 1987. Petitioner was never registered as an investigator with Austin or any other Texas company. In Texas, to properly perform investigative work, an applicant, as Petitioner, must either hold a private investigator's license or be registered under a qualifying company's license as doing investigative work for the company to be in compliance with state regulations. Section 35 of Texas article 4413(29 dd) and Sections 35 and 36A, Rules and Regulations of the Texas Board of Private Investigators. Petitioner was not otherwise exempt from licensure in Texas as he failed to demonstrate that he was employed exclusively as an undercover agent during the period for which he claims experience based on his Texas employment. Respondent has a written policy of not crediting experience or training without required licensure or registration as it is difficult to verify such experience without licensure and it is practically impossible to determine whether the applicant has complied with applicable law.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent enter a final order denying Petitioner's application for a class "C" private investigator's license. DONE and ENTERED this 2nd day of March, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1990. COPIES FURNISHED: Carrol D. Roberson 1714 Old Village Way Oldsmar, FL 34677 Henry D. Cawthon, Esquire Assistant General Counsel Department of State The Capitol, Mailstation #4 Tallahassee, FL 32399-0250 Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse, Esquire General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399
