The Issue Whether Respondent, a licensed real estate broker in the State of Florida, committed the offenses set forth in the Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty of investigating and prosecuting complaints against real estate professionals, including real estate brokers and real estate salesmen. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0430387. The last license issued to Respondent was as a broker-salesman, in limbo, with a home address of 1127 S. Federal Highway, Lake Worth, Florida. At the times pertinent to these proceedings, Respondent had placed his license with Anderson Realty, Inc., Jupiter, Florida. On June 15, 1989, Terry and Franci Evans met with Respondent to discuss their interest in building a house. Respondent told the Evans that he was a real estate broker and that he would negotiate the purchase of the lot the Evans had selected and would arrange for the construction of the house. On July 9, 1989, Terry and Franci Evans, entered into a contract to purchase a residential building lot and a contract to construct a house on the lot that the Evans had selected. The ADA Group, Inc. (ADA) was identified as the contractor and the Evans were identified as the purchaser/owner. Respondent signed the contract on behalf of ADA and was identified by the contract as being an agent of ADA. There was no explanation of Respondent's relationship with ADA. Although the contract identified the Evans as the purchaser/owner, the Evans had not purchased the subject lot. The owner of the lot was not identified by the contract, and there was no competent evidence as to who owned the lot. On June 15, 1989, the Evans gave Respondent a check in the amount of $1,000.00. On July 9, 1989, the Evans gave Respondent a check in the amount of $1,500.00. Both of these checks were given to Respondent as a deposit on the purchase of the lot and construction of the house for which the Evans contracted with ADA on July 9, 1989. The contract executed by the Evans was contingent upon their receiving financing for the project. The form of the contract Respondent used for the subject transaction had been used by Anderson Realty and had been developed by Anderson Realty's attorney. Article V of the General Conditions of the contract executed by the Evans and Respondent on July 9, 1989, contained the following pertinent provision: ... If this contract is contingent upon financing for the purchaser/owner, then the purchaser/owner understands and agrees that no work shall be commenced until the loan commitment is issued. ... The Evans gave Respondent these two checks because they were lead to believe by Respondent that the checks would be refunded to them if the transaction did not close. At the time these checks were given to Respondent, his licensure was officially placed with Anderson Realty. Anderson Realty had requested in January 1989 that Respondent's license be placed inactive. On July 13, 1989, Respondent's license was placed in an inactive status. At no time did Respondent deposit these checks into the escrow account of Anderson Realty or notify it of the subject transaction. Respondent cashed both checks given to him by the Evans. The Evans attempted to secure financing as required by the contract, but they were unable to do so. The subject transaction with ADA failed because the Evans were denied financing for the project. After they had been denied financing, the Evans asked Respondent to return the money they had given to him. Respondent told the Evans that he had made expenditures from the funds the Evans had deposited with him in anticipation of the closing of the transaction. Respondent offered to return a portion of the money to the Evans, but, as of the date of the hearing, Respondent had refunded none of the money to the Evans. Respondent did not produce any verification as to how he expended the money that the Evans had left with him. There was no competent evidence as to who owned the lot that the Evans had agreed to purchase, and there was no competent evidence as to Respondent's relationship with ADA.
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 which finds that Respondent violated the provisions of Section 475.25(1)(b), Florida Statutes, which suspends all real estate licenses previously issued Respondent for a period of one year, and which imposes an administrative fine against Respondent in the amount of $1,000. RECOMMENDED this 21st day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3748 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact in paragraphs 1-14 and 18-20 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 15 and are rejected as being unsubstantiated by the evidence since these proposed findings are based exclusively on hearsay. The proposed findings of fact in paragraph 16 and 21 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Post Office Box 1900 Orlando, Florida 32802 Andrew J. Jalassola 1127 South Federal Highway Lake Worth, Florida 33460 Darlene F. Keller Division Director Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute licensees under Chapters 455 and 475, Florida Statutes. Respondent holds Florida real estate license 0315624. Until May 25, 1993, Respondent was licensed as a salesperson with Richard J. Moncello, Monard Realty and Investments, 4241 John Young Parkway, Orlando, Florida 32804. The fee arrangement between Respondent and Mr. Moncello provided that Respondent received 90 percent of the commission on her transactions and Mr. Moncello received 10 percent. Respondent and Mr. Moncello had been friends since 1982. On April 21, 1993, Respondent negotiated a contract between Mr. and Mr. Jerrod Zlatkiss, sellers, and Ms. Julie B. Maienzi, buyer, for the purchase of real property for $42,000. Mr. Moncello had no knowledge of the transaction. Respondent was in the employ of Mr. Moncello at the time. The transaction closed on April 27, 1993. The total commission due from the sellers was $1,567.57. Of that amount, Mr. Moncello was entitled to $156.75 under the fee arrangement between Respondent and Mr. Moncello. At the closing, the closing agent issued check number 8422 for $567.57 to Respondent in part payment of the commission due from the sellers. The buyer executed a promissory note for $1,000 in favor of Respondent. Respondent delivered the check for $567.57 to Respondent's mother. Respondent's mother deposited the check to her account and subsequently issued a check to Mr. Moncello for $57.00. Respondent did not have a checking account. Her mother took care of Respondent's affairs. Respondent had been injured in an automobile accident and was taking prescription drugs for pain. She was incapable of operating a motor vehicle and had to be driven to and from the closing. Respondent has little or no recollection of the events surrounding the transaction in question, including the day of closing. Mr. Moncello subsequently discovered the transaction and terminated Respondent. The amount due and owing Mr. Moncello is $100. Respondent has caused the buyers to execute a new mortgage note in favor of Monard Investors Services, Inc., in the amount of $1,000.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found not guilty of violating Section 475.25(1)(b), Florida Statutes. It is further recommended that Respondent be found guilty of violating Sections 475.25(1)(a) and 475.42(1)(b), be reprimanded and placed on probation for one year. DONE and ENTERED this 25th day of April, 1994, in Tallahassee, Florida. DANIEL MANRY 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 25th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 83-6802 Petitioner's Proposed Findings of Fact 1-15 Accepted in substance Respondents' Proposed Findings of Fact Respondent did not submit proposed findings of fact COPIES FURNISHED: Ms. Mary K. Conner, pro se 522 Orange Drive, #16 Altamonte Springs, Florida 32701 James H. Gillis, Esquire Senior Attorney Florid Department of Business and Professional Regulation Division of Real Estate Legal Section-Suite N308 400 W. Robinson Street, North Tower Orlando, Florida 32801-1772 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire Acting General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0729
Findings Of Fact This cause originated in a disciplinary action resulting from an administrative complaint filed by the Department of Professional Regulation, Division of Real Estate against the Petitioners herein, Malcolm Lewis Hardy and Aquatic Realty, Inc. The Petitioners herein were the Respondents in the licensure disciplinary proceeding. That proceeding was resolved in their favor by the Recommended Order of the Hearing Officer and by the Final Order filed April 15, 1988 by the Department of Professional Regulation. They have accordingly filed a request for attorney's fees and costs on the ground that the prosecution involved in the underlying case was not "substantially justified." The cause came on for a brief hearing. The parties elected to dispense with calling witnesses at the hearing because they entered into a factual stipulation whereby all germane facts were placed of record. It was thus established that Petitioners Malcolm Lewis Hardy and Aquatic Realty, Inc. (hereafter Hardy) were the Respondents in a licensure disciplinary action brought against them by the above-named Respondent. That disciplinary action was resolved by Final Order filed April 15, 1988 by the Department of Professional Regulation. The Respondents in that case, the Petitioners herein, were totally absolved of any wrongdoing with regard to the charges in the administrative complaint in that proceeding. A copy of that Final Order was mailed by the agency to "Diane Cleavinger, Esquire, 300 East 15th Street, Panama City, Florida 32405." Ms. Jan Nelson, a secretary at that address, and employed by Ms. Cleavinger's former law firm, received a copy of that order and executed the return receipt appearing on the envelope on April 18, 1988. Ms. Nelson was not Ms. Cleavinger's secretary, but rather the secretary of Ms. Fitzpatrick, one of Ms. Cleavinger's former law partners. In any event, Ms. Nelson executed the return receipt on April 18, 1988, but Ms. Cleavinger never received the Final Order nor notification of its filing or receipt by Ms. Nelson. Mr. Hardy never became aware of or received a copy of the Final Order either, until the agency sent another copy to him on September 12, 1988. The affidavit and request for attorney's fees was filed within sixty days of that date. Ms. Cleavinger had left her law firm on January 1, 1988 to become a Hearing Officer with the Division of Administrative Hearings. Mr. Hardy only learned of the Order when he made a direct contact with the Department of Professional Regulation and they learned that he had not received the Final Order. It was thus mailed to him on September 12, 1988 and received on September 14, 1988. That Order dismissed all claims against Hardy and Aquatic Realty, Inc. and thus those parties are in fact "prevailing, small business parties," within the meaning of Section 57.111, Florida Statutes. It was stipulated at hearing, as well, that these Petitioners are small business, prevailing parties and that they incurred attorney's fees in the amount of $1,642.04 for services rendered by Ms. Cleavinger when she represented them in the underlying case-in-chief and that costs amount to $333.71. Additionally, Mr. Hardy further incurred attorney's fees and costs in the amount of $500 in connection with the pursuit of this fee claim by attorney Whitton. It was stipulated that that amount is reasonable. Additionally, the Department accepted its burden of establishing that its action was "substantially justified," within the meaning of Section 57.111, Florida Statutes, and have stipulated that they have not done so. Thus the only issue for resolution concerns whether the claim of Hardy was time-barred.
Findings Of Fact The petition herein is brought in the name of "Silvia S. Ibanez." It prays that attorneys fees and costs be awarded pursuant to Section 57.111 F.S. to "Petitioner Ibanez . . . as the small business prevailing party in this disciplinary action and any other relief deemed appropriate," in the amounts of $11,252.73 for the services of the Holland & Knight law firm, $13,822.50 for the services of the Moore, Hill and Westmoreland law firm, and $8,563.50 for the services of Robert Shapiro, Esquire. Herein, Ms. Ibanez seeks recovery of attorney's fees and costs incurred in DOAH Case No. 91-4100, styled, Department of Professional Regulation, Board of Accountancy v. Silvia Ibanez. That case involved a recommended order in Ms. Ibanez' favor, a final order against her, a direct appeal to the Florida First District Court of Appeal, a writ of certiorari from the United States Supreme Court, and subsequent remand activity. That disciplinary proceeding was initiated by the agency against Ms. Ibanez, a licensed certified public accountant (CPA), alleging violation of certain Board rules, most prominently the rules which have come to be known as the "holding out" and "fraudulent advertising" rules. Ms. Ibanez was the only respondent named in the July 30, 1991 amended administrative (disciplinary) complaint, the only initiating document provided. The January 15, 1992 recommended order therein shows that Silvia Ibanez was individually charged with disciplinary violations of the certified public accountancy statute and rules for (Count I) practicing public accounting in an unlicensed firm by various personal acts; (Count II) by appending certain designations to her name; and (Count III) by practicing public accounting by holding herself out as a CPA and appending the CPA designation after her name in advertising so as to imply she abided by Chapter 473 F.S. The closest that case came to dealing with any business entity other than Silvia Ibanez individually was an inarticulate phrase drafted into paragraph eleven of Count I of the amended administrative complaint, the thrust of which complaint was to define a violation of the advertising rule. That inarticulate paragraph eleven seemed to charge Ms. Ibanez individually for failing to license her law firm, "Silvia S. Ibanez, P.A.", as a CPA firm. From the Order of Reconsideration dated August 22, 1991, it appears that inarticulate and convoluted paragraph eleven allegation against Ms. Ibanez individually was only intended to address Count I as already framed and was withdrawn to avoid confusing, instead of clarifying, the issues in dispute. The recommended order contains the following findings of fact and conclusions of law which are significant to this fees and costs case: Finding of Fact 9: Neither the CFP nor CPA credential is part of the firm name, "Silvia S.Ibanez, P.A.-Law Offices," which also appears on Ibanez' business card. Ibanez' telephone directory listings and card at issue show the CPA and CFP credentials strictly appended to Respondent's individual name. Findings of Fact 16: Ibanez testified credibly that her intent in appending CPA and CFP credentials solely to her own name is to indicate that she is, in her own right, individually licensed as a CPA and CFP. Conclusion of Law 9: 3/ DPR asserted that Ibanez is engaged in "practicing public accounting" as set forth in one or both of the definitions of that term contained in subparagraphs (a) and (b) of Section 473.302(4) F.S. Ibanez countered to the effect that she was exempt from those statutory definitions on the basis of one or more of the three exclusions to the term "public accounting," which are set forth in Sections (1), (2) and (3) of Rule 21A- 20.011 F.A.C., and therefore, she could not be held to have violated any portion of Chapter 473 F.S. More specifically, Ibanez urged that because she is working as an attorney within a P.A. (which she asserted is an employer not required to be licensed under Chapter 473 F.S.), she falls under exception 21A-20.011(1) F.A.C. The April 23, 1992 final order of the Board and the appellate court orders in the disciplinary case did not alter the foregoing findings of fact or specifically address the foregoing conclusion of law, which does little more than recite a legal position posited by Ms. Ibanez before DOAH in the disciplinary case. At the time of the recommended order in the disciplinary case, Rule 21A-20.011(1) F.A.C. provided: "Practice of, or practicing public accountancy" as defined by Section 473.302(4) F.S., shall exclude any of the following: Services rendered by a licensee as an employee of a governmental unit or an employee rendering accounting services only to his employer as long as that employer is not required to be licensed under F.S. 473,... Ms. Ibanez' law firm was never licensed as a CPA firm, and she did not purport to be the qualifying licensee for a CPA firm. Concurrent with most of the duration of the disciplinary action, Ms. Ibanez was also pursuing a Section 120.56 F.S. rule challenge to another rule, the "holding out" rule, Rule 21A-20.012 F.A.C. She had initiated that challenge in her capacity as a licensed CPA. As Petitioner in that rule challenge, Ibanez et al v. Board of Accountancy et al, DOAH Case No. 3336R, Ms. Ibanez posited herself as a sole practitioner and an employee of the law firm, "Silvia S. Ibanez, P.A.", but the law firm was not a party to, and did not participate in, the rule challenge. "Silvia S. Ibanez, Esquire" appears on the copies list of the final order in the rule challenge. That final order declared the "holding out" rule invalid on January 15, 1992. The agency et al appealed that final order to the First District Court of Appeal, but dismissed the appeal on May 6, 1992. Any fees and costs associated with the rule challenge were disposed of in a November 23, 1992 Final Order of Dismissal entered in Silvia S. Ibanez v. Board of Accountancy DOAH Case No. 92-0427F and may not be recouped in the instant proceeding. Based on all the available evidence, 4/ the law firm of "Silvia S. Ibanez, P.A." also did not participate in the disciplinary case even as a legal representative of Ms. Ibanez, the individual, until after the recommended order was entered. The rule challenge case, DOAH Case No. 91-3336R, was heard on August 1-2, 1991. The disciplinary case, DOAH Case No. 91-4100, was heard on August 27, 1991. Pursuant to a stipulation during the formal hearing of the disciplinary case on August 27, 1991, on September 20, 1991, the parties designated items to be adopted into the record of the disciplinary case from the rule challenge case. For convenience, these items were copied and filed in the disciplinary case. 5/ Because the "holding out" rule had been held invalid, the disciplinary case was considered by the hearing officer to be a case of first impression. Because the "holding out" rule had been held invalid, only the statute utilizing the term, "holding out", was applied to one count of the disciplinary case. However, the other existing rules could still be applied as plead. The January 15, 1992 recommended order in DOAH (disciplinary) Case No. 91-4100 recommended finding Ms. Ibanez was not "holding herself out as a certified public accountant", finding her not guilty of all charges alleged under Counts I through III, and dismissing all counts. Contrary to the conclusions reached in the recommended order in the disciplinary case, the Board of Accountancy's final order found and concluded that Ms. Ibanez was guilty on all three counts and should be disciplined with a reprimand. Ms. Ibanez, in her individual name, appealed that final order to the Florida First District Court of Appeal, which per curiam affirmed the Board's final order by its judgment entered June 9, 1993. The United States Supreme Court granted a writ of certiorari and, after oral argument, issued its opinion in Ms. Ibanez' favor. That appellate case was also styled in her name, individually. By a June 13, 1994 order, the Supreme Court mandated the Florida First District Court of Appeal to act in conformity with the Supreme Court opinion. The First District Court of Appeal issued its own mandate to the Board on October 5, 1994. The Board issued its final order on remand on January 31, 1995. 6/ It is undisputed that Ms. Ibanez is the prevailing party in the underlying disciplinary case, DOAH Case No. 91-4100. Her petition which initiated the present fees and cost case was filed with DOAH on February 13, 1995 and is timely under Section 57.111 F.S. and Rule 60Q-2.035 F.A.C. It did not request an evidentiary hearing. The agency's February 28, 1995 response herein was timely. It disputes whether the Petitioner is a small business party; disputes the amount, rate, and reasonableness of the attorneys' fees claimed; and asserts that the agency's actions were substantially justified at the time the underlying disciplinary case was initiated. It does not specifically request an evidentiary hearing. 7/ By the failure of both parties to request an evidentiary hearing and to respond to the notice and order to show cause entered herein on June 28, 1995, they are deemed to have waived an evidentiary hearing in this cause. Without any supporting documentation, the petition asserts standing upon the following bare allegation: 12. Ibanez meets the prevailing party provisions of F.S. Section 57.111 and is a "small business" party, with her principal place of business in Orlando Florida. Ibanez has no employees other than herself. As of the date the state agency initiated this proceeding, Ibanez was the sole shareholder of her law firm professional association ("P.A.") and the P.A.'s net worth did not exceed $2,000,000.00. The petition alleges in conclusionary terms that the agency's actions were substantially unjustified and that no circumstances exist that would make an award of attorney's fees unjust, but no reason or argument is advanced in support of the allegation. The petition claims the following amounts as fees and costs: Petitioner incurred substantial legal fees and costs at the administrative and appellate levels, as explained below: Fees & Costs Holland & Knight $11,252.73 [Exhibit "H"] Moore, Hill & Westmoreland $13,822.50 [Exhibit "I"] Robert Shapiro, Esq. $ 8,563.50 [Exhibit "J"] Even after considering financial assistance to keep the case alive, Petitioner incurred in excess of $15,000 in attorney fees and costs. (Emphasis supplied) The language just emphasized does not provide any information as to which portions of the fees and costs, if any, constituted "financial assistance to keep the case alive." 8/ Ms. Ibanez' affidavit to the effect that the participation of co- counsel was required is attached to her petition, but her affidavit does not address the reasonableness of the fees claimed by each of the named law firms. Therefore, her affidavit does not meet the requirements of Rule 60Q-2.035(3) F.A.C. "Exhibit H" of the petition addresses the $11,252.73 claimed by Ms. Ibanez on behalf of Holland and Knight. That exhibit does not include the affidavit required by Rule 60Q-2.035 (3) F.A.C. Petitioner also filed an unauthorized "Supplement to Exhibit H" on February 28, 1995. See the Preliminary Statement, above. Although such "supplements" are not authorized by statute or rule and no order permitted it, the Supplement has been considered because it was filed within the 60 days provided by statute and rule for the filing of the original petition and Respondent has not objected to it or moved to strike. Unfortunately, the Supplement also does not include an affidavit executed by any attorney with Holland and Knight. 9/ "Exhibit I" of the petition addresses the $13,822.50 claimed by Petitioner on behalf of Moore, Hill and Westmoreland. It contains an affidavit of J. Lofton Westmoreland on behalf of "Westmoreland, Hook and Bolton, P.A," which substantially complies with Rule 60Q-2.035(3) F.A.C. While it is no small matter that there is a discrepancy in the firm names cited by Petitioner and Mr. Westmoreland, Respondent agency also has not raised this as an issue. Accordingly, the undersigned, being cognizant of the frequent shift and drift of law firm names, infers that regardless of which firm Mr. Westmoreland is now associated with, his affidavit applies to this case. 10/ Therefore, Mr. Westmoreland's affidavit has been considered and found sufficient on its face. This finding does not, however, validate all of the claimed fees and costs. 11/ "Exhibit J" of the petition addresses the $8,563.50 claimed by Petitioner on behalf of Robert Shapiro, Esquire. There is nothing signed by Mr. Shapiro, let alone an affidavit that meets the requirements of the applicable statute and rule. The breakdown provided shows Mr. Shapiro's fees are based on appellate work on the disciplinary case at the United States Supreme Court level, and that he has been paid portions thereof so that the balance owed is $2,300.00. The only cost listed is $28.50 in Federal Express charges. 12/ All the fees and costs claimed herein apply to the period after the recommended order in the disciplinary case and almost all apply after the commencement of the appeal process from the final order altering that recommended order. The courts have already ordered the Department of Business and Professional Regulation, Board of Accountancy to pay Ms. Ibanez $5,028.55 for the printing of the record and $300.00 as clerk's costs. These amounts do not seem to be broken out of the petition's supporting exhibits and none of the documentation provided with the petition discusses whether or not the appellate fees and costs claimed herein could have been requested before the courts and were not requested, were requested and denied, or were not available from the courts. There is an indication that some fees and costs were requested on appeal and denied by the courts, but there is no detail as to which fees and costs were claimed at the appellate level and there is nothing to show the legal reason for denial. Consequently, it is impossible to assess from the documentation provided which fees and costs are still to be decided on remand. 13/ Because the foregoing facts are dispositive of the petition, it is unnecessary to make further findings of fact on the issue of substantial justification vel non of the agency at the time the disciplinary action was initiated.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is ORDERED: The Petition for attorney's fees and costs is denied and dismissed. DONE AND ORDERED this 29th day of August, 1995, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1995.
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(f), Florida Statutes (1997), by pleading or having been found guilty of a crime which involves moral turpitude or fraudulent or dishonest dealing. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate broker pursuant to license no. 0414405. The last license issued is inactive. On December 15, 1997, Respondent entered into a plea of guilty to aggravated assault and leaving the scene of an accident with injuries. Both crimes are third-degree felonies under Sections 784.02(1) and 316.027(1)(a), respectively. The court adjudicated Respondent guilty and sentenced Respondent to two years of community control to be followed by two years probation. Both sentences ran concurrently. The court also imposed miscellaneous fines in the cumulative amount of $255 and ordered Respondent to pay probation costs. On January 13, 1998, Respondent sent a letter to Petitioner voluntarily disclosing his plea and conviction. Respondent has no prior disciplinary history. Both convictions involve a single incident which occurred on November 23, 1996, at the Draft House, 1615 Lee Road, Orlando, Florida, a bar in Orange County, Florida. Respondent touched the female owner of the bar on her buttocks. The owner's son took offense to the incident. When Respondent left the bar, the owner's son followed Respondent to Respondent's car in the parking lot. The owner's son hit Respondent in the nose with his fist. Respondent got into his car. The owner's son smashed the windshield of Respondent's car with a steel bar. Respondent left the scene to call for help. When Respondent drove away, Respondent's car struck the owner's son. Respondent did not remain at the scene because he feared for his own safety. Respondent stopped a few blocks away and called 911. The extent of injuries of the person struck by Respondent's car was not established at the hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 475.25(1)(f), and imposing an administrative fine of $1,000. DONE AND ENTERED this 16th day of November, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Richard F. Ronnick 4271 Biltmore Road Orlando, Florida 32804-2201 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner was employed by Respondent from May, 1981 until January, 1985. On January 17, 1985, Petitioner arrived at work at approximately 7:00 A.M. and began preparation for her day's work. At approximately 7:30 A.M. her supervisor, James A. Spencer, called her into his office to inform her about complaints he had received concerning Petitioner. Spencer did not intend to, and in fact did not, discipline Petitioner, but simply wanted to counsel her about the complaints. Spencer informed Petitioner that other employees had complained about her discussing religion while on the job, and also her offensive body odor and personal hygiene. Spencer simply felt Petitioner should know about these complaints so she could take corrective action concerning personal hygiene and discontinue discussing religion with other employees while on the job. Petitioner asked Spencer to tell her which employees had complained about her. When Spencer refused, Petitioner became very upset, angry and loud, saying she could not continue to work while co-workers were talking about her like this. Spencer asked her to settle down, relax, go to the ladies' room to regain her composure, and then return to work. Instead of following Spencer's directions, Petitioner returned to her work station, gathered her personal items and left without punching out. She left because she was upset and did not ask for, or receive, permission to leave work. When Petitioner was employed she received a copy of Respondent's rules and regulations. Rule 8 is as follows: To leave the plant before the end of your shift, you must have the approval of your supervisor. In case of an emergency, be sure to notify your assistant production manager prior to leaving if you cannot locate your supervisor. Petitioner did not inform either her supervisor or assistant production manager when she left the plant on January 17, 1985. Approximately two or three hours after leaving her job, Petitioner returned to work. Petitioner was not allowed to resume her job because Respondent's policy is to treat employees who walk off their job in violation of Rule 8 as having quit. Further, Respondent's policies do not allow rehiring employees who quit without proper notice. Arthur Wallace, Vice President, testified about the policy which precludes rehiring of Petitioner, and it does appear that Respondent's written company policies expressly deal with the situation of rehiring former employees. Respondent's rule provides: Former employees who left the Company voluntarily or through no fault of their own may be considered for re-employment. This rule is applicable because although Petitioner left her job while extremely upset and without notice, she was not asked to leave by her supervisor. She was deemed to have quit her job due to actions which were her own fault. Spencer told her to go back to work after going to the ladies' room to regain her composure. To the contrary Petitioner left work on her own, without permission, and was therefore considered to have quit her job. Thus, the above cited company rule precludes her re-employment. Respondent has rehired other employees when those employees gave proper notice and voluntarily quit, but no evidence was produced to show other employees who had violated Rule 8 had been rehired by Respondent. Respondent's company rules also allow for immediate termination, without notice, for flagrant insubordination. Petitioner left her job without informing her supervisor, or seeking his permission. She disregarded directions and acted inappropriately while he was counseling with her by becoming loud, angry and upset. Her failure to inform Spencer that she was leaving gave him no opportunity to transfer someone else to her job for the day. Instead, she impaired the operations of the company since her work was not completed during her absence. Petitioner's actions in violation of Rule 8 therefore constituted flagrant insubordination for which termination would have been appropriate, had she not been deemed to have quit. Petitioner filed a charge of discrimination with the Equal Employement Opportunity Commission and the Florida Commission on Human Relations on February 7, 1985 alleging discrimination based on sex and religion. The case was deferred to the Clearwater Office of Community Relations on February 11, 1985, which thereafter conducted an investigation and attempted conciliation.
Findings Of Fact It was stipulated that Respondent, Eugene Coney, is a licensee, and that he received due notice of said hearing. It was also stipulated that Robert Coney conducted 90 percent of the business activities of the business, writing checks, paying bills, and similar functions. Exhibits 1-6 were identified by James A. Harris, Jr., custodian of the Miami District Office Records, and were received into evidence. Beverage Agent James R. Bates testified that on May 8, 1974, he inspected the premises at 9:30 p.m. Robert Coney was present on the premises. Then asked to produce the beverage license, Robert Coney searched under the counter and produced the license. When asked to produce invoices for the sale of wine and malt beverages, Robert Coney produced those for that day but could not produce such invoices for the past six (6) months or for the past three (3) years. Bates did discover an old eviction notice and various other bills. In response to Bates' questions Robert Coney stated that he handled most of the business. Bates testified, and it was confirmed by the Coneys, that permission to keep invoices of wine and malt beverage sales off of the premises had not been requested. A copy of an eviction notice from the Court files was received as Exhibit 7. Beverage Agent Edward Pfitzenmaier inspected the licensed premises on April 9, 1975 and found the premises in the charge of Geneva Bell. Pfitzenmaier asked to see the beverage license and again it was found under the counter of the grocery. Robert Coney stated be was the brother of Eugene Coney, the licensee, and was employed at his brother's licensed premises as the manager. His duties included paying bills, clerking, protecting the business property, receiving beverages, selling beverages, and accounting for the business receipts. He had no written contract with his brother but it was their oral agreement that he could take food from the store's stocks and that the profits would split evenly between them. In addition, according to Eugene Coney, if Robert Coney required more than 50 percent of the profits to support his needs he was authorized to take so much of the profits as he required to support his basic needs. Robert and Eugene Coney both stated that Eugene had opened the business, had executed the lease with the landlord, and was in the premises at least every 7-8 days. Eugene Coney did relieve his brother when he was sick or as necessary, however, Eugene Coney had a full time job as a truck driver which required him to be out of town for several days at the time. Eugene testified that he had opened the business to provide his brother with employment because of Robert's heart condition, but that he (Eugene) was the owner, had absolutely final say in the conduct of the business, and could discharge Robert at any time. Eugene stated, however, that Robert was manager and could run the business as he wanted to run it. Both brothers testified that the store had been burglarized and vandalized on many occasions and that this had resulted in the destruction of many business records to include wine and malt beverage invoices. Similarly, their beverage license had been destroyed or disfigured during these burglaries which is why it was not displayed. Robert testified that after the inspection by Bates, he had found a box of business records which he had forgotten about which included some of the invoices in question. The Hearing Officer requested that the Petitioner's agents inspect these records and advise the Hearing Officer of the results of their inspection by affidavit which would be received as a late filed exhibit. Said affidavit is made a part of the record.
Recommendation Having found that the charges of falsifying the lease affidavit, the failure to keep records of sales of wine and malt beverages for a period of three (3) years, the failure of the applicant to show the alleged business interest of Robert Coney in his application were not proven, the Hearing Officer recommends these charges be dropped. Having found that the licensee failed to conspicuously display the beverage license, but having found some mitigating factors, the Hearing Officer recommends a minimal penalty of one week suspension or a civil penalty of $50. Having found the licensee in violation of Rule 7A-3.17, F.A.C., the Hearing Officer recommends that the licensee receive a light penalty of two weeks suspension or a civil penalty of $400. The suspensions are recommended to run consecutively. DONE and ORDERED this 4th day of February, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles L. Curtis, Esquire Department of Business Regulation The Johns Building Tallahassee, Florida Barnett Pletz, Esquire 335 N. W. 54th Street Miami, Florida 33127 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION DIVISION OF BEVERAGE DIVISION OF BEVERAGE, Petitioner, CASE NO. 75-1627 LICENSE NO. 23-951 EUGENE CONEY d/b/a 62nd STREET GROCERY, Respondent. /
Findings Of Fact Based upon the testimony of the witness, and the record in DOAH Case Number 91-5892C, the following findings of fact are made: Petitioner, a non attorney litigant, seeks an award of attorney's fees and costs exceeding $37,000 under Section 57.111, Florida Statutes (1991). Petitioner did not offer evidence that he expended 250 hours performing research and other preparation for the Administrative Hearing in DOAH Case Number 91-5892C, which was not held. Likewise, Petitioner did not offer evidence that $150.00 an hour, the rate which he seeks to be compensated, was a reasonable fee as evidenced by either the time, skill or the complexity of the issues involved in the above- referenced case. Finally, Petitioner did not present evidence which establishes that he is a small business party. While Petitioner referred to the fact that he, at times, does odd jobs for neighbors, there was no showing that he operated a business and, at best, he performed casual labor for neighbors. Petitioner admitted, during the hearing, that there was a criminal prosecution filed against him which was nolle prosequi by the local state attorney's office around May 13, 1992. On June 18, 1992, Respondent filed a Motion To Relinquish Jurisdiction asking that the Division of Administrative Hearings close its case file based on the fact that the abuse report, which was the focus of Case Number 91-5892C was reclassified to "closed without classification". That motion was granted and the Division's case file was closed. Respondent reclassified the report after the criminal charges were dropped due to evidence discovered during the course of the criminal investigation. Specifically, one of the key witnesses during the criminal case recanted the story which formed the basis of the criminal charge and the alleged victim admitted to being a problem child which resulted in strict disciplinary action being taken against him. As a result of the discipline, the alleged abuse victim concocted the abuse allegation. Respondent was substantially justified and had a reasonable factual basis to issue and classify the subject abuse report as proposed confirmed at the time that it was initiated (by Respondent). However, once the factual underpinnings of the criminal case were recanted by the alleged child victim, Respondent immediately took action to reclassify the report which obviated the necessity for holding a formal hearing in DOAH Case Number 91-5892C.
