Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Susan Belyeu Kirkland, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Petitioner’s Notice of Voluntary Dismissal With Prejudice, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED Filed November 16, 2011 2:59 PM Division of Administrative Hearings DONE AND ORDERED this le day of November, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this fa day of November, 2011. ous Nalini Vinayak, Deafer Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCLjdce Copies furnished: Jason T. Allen, Esquire Bass, Sox and Mercer, P.A. 2822 Remington Green Circle Tallahassee, Florida 32308 Bianca G. Liston, Esquire McDonald Toole Wiggins Post Office Box 4924 Orlando, Florida 32802 Nalini Vinayak Dealer License Administrator
Conclusions This matter came before the Department for entry of a Final Order upon the Settlement Stipulation and submission of an Order Relinquishing Jurisdiction and Closing File by Lisa Shearer Nelson, an Administrative Law Judge of the Division of Administrative Hearings, copies of which are attached and incorporated by reference in this order. The Department hereby adopts the Settlement Stipulation and Order Relinquishing Jurisdiction and Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that the parties shall carry out the terms of the Settlement Stipulation. The Department acknowledges that on November 21, 2011, Respondent paid the civil fine of $250.00 to the Department. Filed December 5, 2011 2:36 PM Division of Administrative Hearings DONE AND ORDERED this ae day of December, 2011, in Tallahassee, Leon County, Florida. Michael D. McCaskill, Assistant Deputy Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 5 day of December, 2011. Vabiat D. rok Nalini Vinayak, Dealer License Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Ronald D. Edenfield Post Office Box 229 Grand Ridge, Florida 32442 James K. Fisher, Esquire Department of Highway Safety And Motor Vehicles Neil Kirkman Building, Room A430 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 Lisa Shearer Nelson Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Dwight Davis, Section Manager Division of Motorist Services Wayne Jordan, Section Supervisor License Installer Program
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Elizabeth W. McArthur, Administrative Law Judge of the Division of Administrative Hearings, pursuant to the Petitioner’s Notice of Voluntary Dismissal With Prejudice, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed October 1, 2010 10:23 AM Division of Administrative Hearings. DONE AND ORDERED this DW ~day of September, 2010, in Tallahassee, Leon County, Florida. arl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motor Vehicles this _ 32s) day of September, 2010. Nalini vane. bea ‘Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Mark L. Ornstein, Esquire Killgore, Pearlman, Stamp, Ornstein & Squires, P. A. Post Office Box 1913 Orlando, Florida 32802 Virginia Gulde, Esquire Nelson, Mullins, Riley & Scarborough LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
The Issue The issue in this case is whether Petitioner should deny Respondent's application for a yacht salesperson's license on the ground that Respondent failed to furnish proof of his good moral character in violation of Section 326.004(6)(a), Florida Statutes (1999). (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating yacht and ship salespeople and brokers and for administering and enforcing Chapter 326. Respondent is a licensee applying for renewal of a yacht salesperson's license. Respondent applied for and the Division approved Respondent's initial yacht salesperson's license in 1995. Pursuant to Section 326.004(1), yacht salesperson's licenses are valid for a two-year period. In addition, Respondent formerly held a state contractor's license and a real estate broker's license from Petitioner's agency. The Construction Industry Licensing Board ("CILB") is a division of Petitioner. The CILB served Respondent with an administrative complaint regarding his contractor's license in March 1997. In 1998, the Florida Real Estate Commission ("FREC") revoked Petitioner's real estate license. The Division did not become aware of the administrative proceedings against Respondent's construction and real estate licenses until August 1998. By final order issued March 19, 1998, the CILB fined Respondent and suspended his state contractor's license for five years. The CILB found that Respondent violated Section 489.129(1)(h)(2), (k) and (m). Respondent committed mismanagement that caused financial harm to a customer by accepting deposit money but failing to perform on the contract; abandoned the construction project under contract by failing to begin construction for a period of five months; and engaged in deceitful conduct in the practice of contracting. The CILB also found that Respondent violated Section 489.129(1)(n) by committing incompetence and misconduct in the practice of contracting. The victims in Respondent's CILB case received $22,845.00 from the Construction Industries Recovery Fund as compensation for the harm they suffered due to Respondent's violation of Section 489.129(1)(h)(2). Respondent's obligation to pay restitution to the victims was discharged in bankruptcy. Respondent is still paying the fines and interest ordered in the CILB license suspension case involving his construction license. After the CILB suspended Respondent's contractor's license, FREC, another division of Petitioner, issued an administrative complaint seeking to revoke Respondent's real estate broker's license on the ground that the CILB had suspended Respondent's construction license. Respondent voluntarily surrendered his real estate broker's license for revocation. By final order dated August 19, 1998, FREC revoked Respondent's real estate broker's license. Respondent timely applied for, and the Division approved, the renewal of Respondent's yacht salesperson's license in August 1997. On this renewal application, Respondent answered "N" to question number four which asked whether there were any cases pending against the applicant. In August 1999, Respondent timely applied for renewal of his yacht salesperson's license. Petitioner denied the application on the sole ground that Respondent failed to show that he is of good moral character in violation of Section 326.004(6)(a). Petitioner determined that Respondent failed to show good moral character based on the CILB suspension of Respondent's contractor's license, FREC's revocation of Respondent's real estate license, and Petitioner's conclusion that Respondent had answered question four on his 1997 renewal application untruthfully in violation of Section 326.006(2)(f)1. Petitioner relied solely on a review of the documents in its file and did not conduct an independent investigation or interview Respondent. Respondent did not falsely answer "no" to question four on his 1997 renewal application. Question four asked, in relevant part: Has any judgment or decree of court been entered against you or is there now pending any case, in this or any other state, in which you were charged with any fraudulent or dishonest dealing. Question four limited its scope to judgments, decrees, and cases pending in any court in this or another state and did not ask for disclosure of administrative proceedings. Administrative agencies, including DOAH, are not courts. The administrative complaint filed against Respondent in March 1997 was not a case pending in a court in this or another state. As Petitioner noted on its Investigative Report, ". . . a final order of an agency is not a judgment or decree of court." Respondent construed question four on his 1997 renewal application to be limited to courts. Respondent's interpretation was reasonable and valid. It was not intended to deceive Petitioner. In August 1998, an attorney for FREC informed Respondent that he should disclose administrative proceedings in addition to court cases. Respondent immediately informed Petitioner by telephone and letter of the pending administrative proceedings. In the renewal application filed in 1999, Respondent disclosed the suspension of his construction license, the revocation of his real estate license, and answered "yes" to question four on the application. In an effort toward full disclosure, Respondent answered "yes" to question three when Respondent should have answered "no." Question three asked Respondent if he had been convicted of a crime. The only finding from the suspension of Respondent's construction license by the CILB and the revocation of Respondent's real estate license by FREC that is at issue in this case is a finding by ALJ Daniel M. Kilbride that Respondent committed fraud and deceit by adding a provision for a commission at the end of a construction contract entered into on December 23, 1994. By final order entered on March 16, 1998, the CILB adopted the Recommended Order of Judge Kilbride. The judicial doctrine of equitable estoppel, or estoppel by judgment, bars the re-litigation of factual and legal issues common to both the CILB case and this case. Therefore, the finding that Respondent committed fraud and deceit in 1994 cannot be litigated in this case. The good moral character of Respondent was not at issue in the license suspension case decided by Judge Kilbride. Therefore, Respondent is entitled to present evidence of his good moral character in this case including evidence that explains and mitigates the circumstances of the 1994 transaction in an effort to show that Respondent does not now lack good moral character. The sales commission at issue in the 1994 transaction was to be paid out of Respondent's proceeds from the construction contract. It was not an additional expense to be paid by the buyers. It did not increase the construction price of the house. The commission was to be paid by Respondent for services provided by Castle Real Estate on behalf of Respondent. The buyers did not object to the insertion of the commission provision at the end of the contract. The buyers did not object to the commission being paid at closing. The construction lender released the funds for the commission as part of the construction draw Respondent received. The funds were not separately identified, and Respondent had no knowledge that the lender had released the funds as part of the construction draw. Respondent was an active builder in the local real estate market. He had constructed several "spec" homes. When the real estate market declined, Respondent incurred financial problems attributable to subcontractors and was unable to service the debt he owed on the "spec" homes. Respondent declared bankruptcy in 1996. The buyers in the 1994 transaction did not make any request for refund until after Respondent had declared bankruptcy. Respondent could not make preferential payments to creditors after he declared bankruptcy. More than five years have passed since the 1994 transaction. Even if Respondent lacked good moral character in 1994, he now possesses good moral character. Respondent is now in stable financial condition. Respondent has made all payments due under the license suspension order in a timely manner. Respondent is a licensed captain in the Coast Guard Auxiliary. He has served as a commodore of the local boating club and as a former public affairs officer in charge of public education for the local flotilla. Respondent has conducted himself with integrity in all of his yacht sales. Respondent enjoys an excellent reputation in the boating community for honesty and integrity. Respondent's knowledge about yachts is above average. Over a span of 15 years, Respondent has held licenses with the state as a mortgage broker, real estate salesman, and real estate broker. During that time, no complaints have ever been filed against Respondent for his activities under those licenses. The revocation of Respondent's real estate license was based on the suspension of Respondent's construction license by the CILB. The complaint filed against Respondent's construction license involved a single isolated transaction that occurred more than five years ago for which there were significant mitigating circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent has good moral character, within the meaning of Section 326.004(6)(a), and renewing Respondent's yacht salesperson's license. DONE AND ENTERED this 28th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2000. COPIES FURNISHED: Ross Fleetwood, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Scott K. Edmonds Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Thomas C. Houck, Esquire 312 South Harbor City Boulevard Melbourne, Florida 32901 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
