The Issue Whether or not all or part of the 40 statements challenged in the petition of Great American Reserve Insurance Company violate Section 120.535 F.S. requiring the agency to immediately discontinue all reliance upon the statements or any substantially similar statement as a basis for agency action.
Findings Of Fact On June 13, 1994, Petitioner filed a petition for administrative determination of agency statement. The petition listed the following agency statements and alleged that each constituted a rule pursuant to Chapter 120.52(16), F.S. which had not been adopted by the rulemaking procedures provided by Section 120.54 F.S. [1993]. The challenged statements are as follows: Respondent issues a form which solicits information as follows: Please provide the following information for each approved and pending annuity contract: Form number. Name of form, if any. Date approved or if pending. What are the surrender charges and for how long? What is the initial interest rate and for how long? What is the guaranteed interest rate? Are there any bonuses? If so, for how long and under what circumstances are they paid? Is this annuity two-tier? If so, how is interest applied? What field compensation is paid for each variation? Are any of these forms field issue that allow the agent to write in the current rate of interest? If so, what controls are in place to guarantee accuracy? Respondent issues a form which solicits information as follows: Please list any other annuities offered by the company and their corresponding contract maintenance fees, administration charges, surrender charges, etc. Respondent issues a form which solicits information as follows: Please provide the agent compensation levels associated with each form and/or set of surrender charges. Respondent issues a form which solicits information as follows: Please describe the specific calculation basis of the various annuity purchase rates/settlement options. Please include sample calculations of all options at a selected age(s). Respondent issues a form which solicits information as follows: What percentage sales are expected to be replacements of an existing contract? Please identify the replacement percentages by source (internal, external, 1035 exchanges, etc.). Respondent issues a form which solicits information as follows: [Provide] a brief description of the market and marketing method. Respondent issues a form which solicits information as follows: Please provide the following: Agency training procedures as they relate to this form, Any brochures provided to agents which refer to this form, Any guidelines to assure that policy comparisons are accurate and fair, Standards to ensure that no marketing methods are used which would have the effect of inducing replacement sales through misleading representations, and All forms, other than those required by Rule 4-151.006 and 4-151.007(3)(b), used to a execute replacement sales. Respondent issues a form which solicits information as follows: Please describe the company's practice concerning credited interest rates for annuity products in renewal years. Does the credited interest rate on a given date vary by the duration of the policy within a policy form block of business? If so, please describe the relationship between the various rates. How is this practice disclosed in sales literature for its products? On an annuity policy, varying the death benefit by issue age and duration is unfair discrimination under Ch. 626.9541(1)(g). It is not appropriate to vary the death benefit by age at death for an annuity policy. Variation of surrender charges in an annuity policy by age results in unfair discrimination under Ch. 626.9541(1)(g). Basing the surrender charge in an annuity policy on the age of the annuitant is unfair discrimination under Ch. 626.9541(1)(a). Where surrender charges, which are guaranteed in an annuity contract, vary between forms and the policy parameters, which vary in support of these different surrender charges (interest, bonuses, etc.), are not guaranteed in the contract, if a company were to have products with different surrender charges this would constitute unfair discrimination under Ch. 626.9541. Unfair discrimination is prohibited under annuity contracts by Florida Statute 626.9541(1)(g). The Department continues to receive filings with many variations of interest rates and surrender charges for which the surrender charges are guaranteed and the interest rates are not. These many combinations, applied to the same type contracts, violate this statute. If a single insurance company offers more than one annuity policy in the same market in Florida, the values to the purchaser pursuant to guaranteed parameters under each policy must be actuarially equivalent to those of each other policy. A withdrawal provision in an annuity contract which waives surrender charges on all or part of a partial surrender but imposes surrender charges on all of a total surrender will produce unfair discrimination. Proposed interest rate differentials must result in compensatory guarantees across whatever number of free withdrawal options are made available in an annuity contract for a block of business. It is the position of the Florida Department of Insurance that where multiple annuity products are presented for approval in the State of Florida that the examination of the guaranteed parameters of the policies must all result in the same actuarially equivalent benefit to the beneficiary of the policy for a block of business. If you looked at a block of business sold under each policy, taking into account the distribution of that business and the persistency patterns of that business over the life of that block of business, there must be a comparable return to the policyholder. Less than half a point would be considered approaching reasonable. In an annuity policy, where the present value at death of the amount of death benefit paid is based on the manner in which it will be paid, this is discriminatory pursuant to Ch. 626.9541. It should be revised so that the death benefit options are actuarially equivalent. Each settlement option which may be exercised under an annuity policy must be the actuarial equivalent of each other settlement option offered under that policy. Settlement options offered in an annuity policy may not vary based on the age of the policyholder. An annuity policy may not contain a one direction market value adjustment. One direction MVA does not provide equitable treatment. such an adjustment should be allowed to move equally in both directions to prevent inequitable and discriminatory treatment under Ch. 626.9541. The Department of Insurance mandates compliance with the provision in the current draft of the standard non-forfeiture law for annuities that guaranteed minimum annuitization rates must be at least that guaranteed during the accumulation phase, for a policy not to violate Ch. 626.9541(1)(a) and Ch. 627.411(2). In an annuity contract, the guaranteed minimum annuitization rate may not be less than the guaranteed minimum accumulation rate, per the current draft of the standard non- forfeiture law for deferred annuities. The Department considers a minimal measure of benefits being reasonable in relation to premiums under Ch. 627.411(2), to be compliance with the standard non-forfeiture law. The guaranteed minimum annuitization rate in an annuity policy may not be less than the guaranteed minimum accumulation rate, per the current draft of the standard non-forfeiture law for deferred annuities. The Department continues to feel that attribution of mortality expense charge to variations in the annuitization phase is inappropriate. The current draft of the standard non-forfeiture law for deferred annuitities allows use of projection scale G to be applied to the 1993 table a to account for possible future mortality improvement. It would also appear inappropriate to deduct a mortality charge in the annuitization phase for a mortality risk from the accumulation phase, as the risk no longer exists. Annuity policy forms may not be approved unless all sales brochures and literature are submitted with the forms. All annuity contracts must contain a table of guaranteed values. A table of guaranteed values in an annuity policy must demonstrate any available partial withdrawals not subject to surrender charges, even if the free partial withdrawal provisions are set out in the policy. An annuity contract must include a table of guaranteed minimum annuitization rates. Current company practice may not be presented in the illustration or brochure as a product characteristic of an annuity policy. Only contractually guaranteed items may be presented as policy parameters. If a contract contains proposed provisions which would allow the company to reserve the right to make future changes in charges, guarantees or contractual provisions in the policy, this would violate Ch. 627.474. A sales illustration in an annuity policy must display surrender values, even if the surrender charges are disclosed in the illustration. An illustration in advertising of an annuity policy must demonstrate any available partial withdrawals not subject to surrender charges, even if the terms of a free partial withdrawal provisions are set out in the advertising. Computer generated sales illustrations for annuity policies must include the following: Name of the person that the illustration is prepared for. Name of the agent preparing the illustration. A current date. A proposed date of maturity. Disclosure of all expense charges including a clear statement of the surrender charges. An illustration in advertising of a one tier annuity policy must specify the maturity date. The agent is not permitted to write in the current interest rate in the sales brochure. Death benefits or settlement options in an annuity policy to be sold to males and females must be based on male mortality tables for men, female mortality tables for women or gender blended mortality tables. Statements 1-8 challenge forms used by the Department of Insurance soliciting the enumerated information. Statements 9-40 challenge statements of policy used by the Department in review of annuity insurance policy and advertising forms. Between the filing of the Petition herein and the date of formal hearing, the Respondent agency filed a notice of rule development workshop. (See Finding of Fact 36) The parties stipulated: That Petitioner has standing herein as a person substantially affected by the agency statements challenged in the petition herein. That each challenged agency statement is an agency statement defined as a rule under Section 120.52(16) F.S.; and That none of the challenged agency statements have been adopted by the rulemaking procedure provided by Section 120.54 F.S. [1993]. By reason of the parties' stipulations, the only matter to be determined is whether or not the agency is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address the statements challenged by the petition herein. In an effort to establish minimal standards on a wide variety of issues, the Department of Insurance and State Treasurer has recently tried to approach rulemaking in a holistic or coordinated manner among its various bureaus and areas of technical expertise instead of piecemeal, as historically. In 1989-1990, the agency adopted 225 forms as rules, reducing the number of forms in use from 800. Its last wholesale rules review and revision occurred in the fall of 1991, partly in response to the legislative creation of Section 120.535 F.S., was internally code-named "the rules reorganization project," and met the statutory March 1, 1992 deadline to formalize existing non-rule policies. Both projects were conducted under the oversite of agency attorney Ruth L. Gokel, of the agency's legislative and rules section. Since then, the agency has largely deferred to its technical experts to initiate rulemaking, and not to its lawyers. However, anytime a regulatory employee approaches the legislative and rules section, that section immediately initiates rulemaking procedures. While Ms. Gokel does not provide routine oversite to the agency's bureaus or divisions to determine whether they are routinely using non-rule policy, she has the authority to recommend to agency bureaus and divisions that they are in need of rules. Because she is familiar with the complex processes for promulgating rules, she coordinates much of the agency's rule drafting. Ms. Gokel created a departmental manual on rulemaking in June 1991. The manual was published after enactment of Section 120.535 F.S. Portions of that manual, upon which Petitioner strongly relies, provides: any interpretation of a statute or any requirement generally imposed on agents, companies or other regulated entities as a group which has not been adopted as a rule, is a non-rule policy. * * * The first time we interpret a statute and apply it to a particular fact situation, the interpretation is not as yet a statement of general applicability and thus is not a rule. The second time an issue arises . . . we need to begin to formulate a rule. The third or fourth time a statute is interpreted and applied in a given manner, a rule should be published. Petitioner views this manual as binding upon the agency to begin rulemaking in some form immediately upon any agency employee imposing any statutory interpretation for the first time and even if the statutory interpretation is still only part of an individual's mental process. Petitioner also views the manual as requiring the agency to publish a rule upon the third or forth similar interpretation. However, the competent substantial evidence as a whole shows that the manual's pronouncements were, at best, aspirational. The manual was designed as the agency's first best attempt to educate its non-lawyer experts concerning their responsibilities under a new law, to ensure agency compliance with the new law by "picking up any non-rule policy floating around", to head off potential violations of the new law, and to minimize the number of potential petitions challenging agency statements under the new law. The manual also was in line with the agency's new evolving coordinated approach to rulemaking. The manual is designed to alert laymen to rulemaking problems, and was revised in December 1993. It will continue to be revised periodically. Prior to the filing of the Petition herein, the Department adopted checklists to aid insurers in their submission of policy forms and to aid the Department staff in their reviews of such form filings. The checklists are adopted as forms in Part II of Rule Chapter 4-149. Prior to the filing of the Petition herein, the Department adopted rules governing the review of advertising material for annuities. Those rules may be found in Part II of Rule Chapter 4-150. The Department has conducted actuarial reviews of annuity filings only since May of 1992. Although there were no statutory changes on or about that date, the Department was motivated to institute much closer scrutiny of annuities and the sale of annuities in this state as a result of the rule challenges to the Department's "bank rules", Chapter 4-223 F.A.C. Actuarial review by the agency has evolved in order to ensure that the products are clearly presented, that they are not unfairly discriminatory, that the sales presentations and contracts are not misleading, and that the product has not been designed for use with inappropriate marketing practices. These are statutorily permissible goals. See, Chapter 627 F.S. Of necessity, the Department review must combine its regulatory concerns into one cohesive set of policy statements. The actuarial review of annuities was first conducted by actuary Mike Morgan from May 1992 to about February 1993, when that responsibility was assumed by another Department actuary, Tom Foley. In December, 1993, the responsibility shifted to yet another Department actuary, Linda Ziegler. During the course of the reviews performed by each of these agency employees, judgments were made as to particular aspects of the actuarial review. Those judgments regarding the particular forms being reviewed were expressed in letters to the companies involved. Some of these letters were requests for additional information. If the additional information were supplied and, in the opinion of the reviewing actuary, it did not result in a violation of Florida statutes or rules, then the filing was approved. If the reviewing actuary found a violation based on the additional information, the filing was disapproved. Other letters were disapproval letters after a complete review of all the requested information. Actuarial review is an arcane business involving informed consideration of many different aspects of a filing. The decision to approve or disapprove is made on the basis of the totality of the filing. It may be that one aspect of a particular filing might not be entirely within the required parameters in the judgment of the actuary, but that aspect, in that particular filing, might be offset by another aspect, which in turn would render the filing approvable. All pieces of the whole are interrelated and the whole is complex. When Ms. Ziegler became responsible for the filings, she consulted with Mr. Morgan and Mr. Foley. Over the course of the two years of review, the actuaries involved wrote several hundred letters addressing actuarial issues on a situation by situation basis as each situation arose. Between December 1993 and the filing of the Petition herein, Ms. Ziegler was the responsible reviewing actuary. During those approximately six months, Ms. Ziegler consistently and uniformly applied the statements challenged to every application for annuity policy form and advertising form approval filed. Thus, even those statements used relatively few times have been used every time the policy embodied in the statement could have been applied. Additionally, departmental letters to insurance company applicants for approval of annuity policy and advertising forms, some 630 separate applications of challenged statement numbers 2, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23 and 40, related to unfair discrimination pursuant to Section 627.9541(1)(g) F.S. Challenged statement number 29 has been the articulated agency policy for at least 21 months, since the issuance of Department of Insurance Informational Bulletin 92-032 issued October 21, 1992. In January of 1994, Mike Morgan drafted language intended for the agency's legislative package for the 1994 session to address parts of the problem of actuarial review statutorily. Although agency personnel believed the agency had, and has, authority to perform these reviews, Ms. Ziegler testified that it is always better if matters are addressed by specific statutes because they are then much less subject to challenge. The Legislature did not address the issue of annuities in 1994. However, Mr. Morgan's work remained available to Ms. Ziegler when she began drafting what eventually became the Department's proposed rules on the subject. In March 1994, Ms. Ziegler began work on a draft bulletin to send to the companies to inform them in a more comprehensive way of the Department's current interpretations of several parts of the actuarial review problem. At about that time, she met with Department attorney Dennis Silverman who advised that eventually she would need to pursue rulemaking. Ms. Zeigler was unavoidably absent from the workplace at some time during this period due to an accident. When she returned to her office, she prioritized what she considered "more immediate" work. In May 1994, Ms. Ziegler returned to the draft bulletin, made a few minor changes, and then abandoned the project in favor of proposed rules. The Petition in this cause was filed June 13, 1994. Ms. Ziegler was aware that the forty statements had been challenged by the Petition shortly after the Petition herein was filed. In the third week of June 1994, Ms. Ziegler sought out Ms. Gokel. At that time, Ms. Ziegler had draft rules she felt cohesively addressed the actuarial review necessities, including addressing certain misleading sales practices. She also had several of the checklists adopted in Part II of Chapter 4-149 F.A.C. on which she had drafted proposed changes. Her comprehensive package addressed the totality of the necessary review and, as a result, also addressed each of the forty statements challenged in the pending Petition. Ms. Ziegler represented to Ms. Gokel that she was comfortable with the whole package and was ready to go public with it. Ms. Gokel informed Ms. Ziegler that since February, 1994 Ms. Gokel had had an assignment to make changes to the same checklists and had already had two meetings, in February and in March, with two other members of the Department regarding the same matter. Yet another member of the Department, Kim Forrester, had been working on proposed changes to the advertising rules in Part II of Chapter 4-150 F.A.C. Ms. Forrester was working with another departmental attorney, so in line with the agency's comprehensive approach to rules, Ms. Gokel had the foregoing assignment transferred to her. Based upon Ms. Gokel's considerable education, training, and experience in rulemaking, her understanding of agency policy concerning the need for and use of rule development workshops, the great amount of insurance industry interest which can reasonably be anticipated for the draft rules, and her personal knowledge regarding the complexity and breadth of the actuarial matters addressed in the draft rules, Ms. Gokel determined that a rule development workshop was essential. Rule workshops have been more the norm than the exception with this agency since at least 1992. The agency published its Notice of Rule Development Workshop in the Florida Administrative Weekly on July 1, 1994. The notice stated that a preliminary draft of the rules would be available for distribution on July 22, 1994, and that the workshop would be held on August 23, 1994, from 2 to 4 p.m. Respondent's witnesses affirmatively demonstrated significant planning and tangible steps that have been taken in furtherance of the rulemaking process since the filing of the foregoing notice. Ms. Gokel has devised a feasible preparatory checklist or schedule for meeting the deadlines announced in the published notice. Between publication of the Notice of Rule Development Workshop and formal hearing, something has been accomplished almost every day. In accord with this schedule, Ms. Gokel has once again met with Ms. Ziegler to discuss the proposed changes; has worked on the needed changes to the checklists with the secretary in the Bureau of Life and Health Forms and Rates because those checklists are documents in the "Lotus Notes" software program not available to Ms. Gokel in the agency's legislative and rules section; has reviewed the statutory authority supplied by Ms. Ziegler and has added the history notes where they were missing in the draft prepared by Ms. Ziegler; has incorporated Ms. Ziegler's and Ms. Forrester's proposed changes into the draft of the advertising rules; has reworked Ms. Ziegler's and Ms. Forrester's drafts for compliance with the Secretary of State's filing requirements; and has produced preliminary rule drafts. These steps have been expeditious and are themselves tangible evidence of the agency's current good faith efforts in the rulemaking procedure. Other steps listed by Ms. Gokel as necessary remained to be accomplished after formal hearing. Those included a meeting between Ms. Gokel and Ms. Forrester about the advertising rules; preparation of the existing rules which adopt the checklists showing the new revision dates; a meeting with Ms. Ziegler to discuss another proposed new rule in the actuarial review rules; a comprehensive review of the history notes; consolidation of the existing drafts into a single document for distribution as noticed for July 22, 1994; and preparation of the sign-in sheets and agenda for the workshop noticed for August 23, 1994. Provisions for timely accomplishing these tasks has been made on Ms. Gokel's schedule. As of the date of formal hearing, Ms. Gokel had already discovered several other statutory sections which should have been included in the Notice of Rule Development Workshop. She expressed the intent to file an amended notice reciting the additional statutory authority, but not otherwise changing the date or time of the workshop. This discovery represents at least one advantage of a comprehensive approach to agency rule drafting as practiced by this agency. Once the workshop draft has been distributed on July 22, 1994, the agency anticipates holding the workshop on August 23, 1994 and leaving the record open for written comments if appropriate. The agency's current intent is to leave the record open for only two weeks, which the agency's past workshopping experience has proven sufficient. Although this period could be extended further, there is no evidence in this record to suppose it will be. After the record closes, the plan is for agency personnel to conduct an internal review of the comments that were received, if any; Ms. Gokel will prepare a revised draft of the rules, as warranted, and will circulate an internal route slip for approval of the agency "senior management" involved. Only the lattermost effort of the route slip is an internal procedure peculiar to this agency and is not a requirement of Chapter 120 F.S. Historically, this route slip procedure has been ministerial and has only taken a few days. There is no clear evidence to show it will be different or take longer this time. Finally, the agency will have to file for notice, pursuant to Section 120.54 F.S. Petitioner presented only speculation to the effect that the foregoing schedule would not be met. The agency's assessment that in the area of actuarial review, moving from "first-time-ever" review of annuities to a comprehensive rule package in two years is the rulemaking equivalent of the "speed of light," may be more colorful than informative and is not binding upon the finder of fact, but the foregoing agency schedule and the agency's actions thereon are found to be currently expeditious in the circumstances of the number and type of rules necessary for such complex subject matter. If any challenged statement were not being addressed by the rulemaking process, the agency would have been unable to demonstrate that the agency rulemaking process is currently proceeding expeditiously and in good faith. However, here, the agency affirmatively demonstrated through unrefuted testimony that its draft rules have addressed, with at least some degree of particularity, each of the forty statements challenged by the Petition. Statements (1) and (2) of the Petition for Administrative Determination of Agency Statement involve requests for information of a company as to the other annuity products which the company is offering, have approved or are pending approval. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1, Forms DI4-555, DI4-556, and DI4-557. Statement (3) of the Petition involves a request for information concerning the agent compensation levels paid on the proposed product. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1, Forms DI4-548, DI4-555, DI4-556, and DI4-557. Statement (4) of the Petition involves a request for information regarding a specific description of the basis of the guaranteed minimum annuitization rates in the contract. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1, Forms DI4-555, DI4-556, and DI4-557. Statement (5) of the Petition involves a request for information regarding sales of the product which are expected to be replacements of existing coverage. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1, Forms DI4-555, and DI4-556. Statement (6) of the Petition involves a request for information regarding the market to be targeted and the marketing method to be used with respect to the proposed form. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1, Forms DI4-548, DI4-549, DI4-551, DI4-555, DI4- 556, and DI4-557. Statement (7) of the Petition involves a request for information regarding the agency training methods to be used with respect to the proposed form. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1 Forms DI4-555, DI4-556, and DI4-557. Statement (8) of the Petition involves a request for information regarding the credited interest rates in renewal years and their disclosure to consumers as practiced by the company. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1, Forms DI4-555, DI4-556, and DI4- 557. Statements (9) and (10) of the Petition address the Department's concern about unfair discrimination under Section 626.9541(1)(g), F.S., in the death benefit offered in an annuity product. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4- 149.064(2)(a)3. Statements (11) and (12) of the Petition address the Department's concern about unfair discrimination under Section 626.9541(1)(g), F.S., in the variation of surrender charges by age in an annuity product. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4-149.065(4). Statements (13), (14), (15), and (18) of the Petition address the Department's concern about unfair discrimination under Section 626.9541(1)(g), F.S., between essentially identical products which have variations in guaranteed surrender charges, and other guaranteed parameters, and do not provide comparable benefits for premiums paid for the annuity products. This subject is addressed in the proposed draft Rule 4-149.071, Petitioner's Exhibit I. Statement (16) of the Petition addresses the Department's concern about unfair discrimination under Section 626.9541(1)(g), F.S., between policyholders of the same annuity form in treatment under the withdrawal provisions. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4-149.065(4)(c). Statement (17) of the Petition addresses a special case scenario of the Department's concern as expressed in statements (13), (14), (15), (18). This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4-149.071. Statement (19) of the Petition addresses the Department's concern about unfair discrimination under Section 626.9541(1)(g), F.S. regarding the payment of a death benefit. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4-149.066, and 4- 149.064(2)(a)3. Statement (20) of the Petition address the Department's concern about unfair discrimination under Section 626.9541(1)(g), F.S., in the value of the annuitization value available in an annuity product. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4- 149.066. Statement (21) of the Petition address the Department's concern about unfair discrimination under Section 626.9541(1)(g), F.S. in the choice of annuitization options available in an annuity product. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4-149.066. Statements (22) and (23) of the Petition address the Department's concern about misrepresentation and unfair discrimination under Section 626.9541(1)(a) and (g), F.S., in the inclusion of a Market Value Adjustment which affects the policy in only one direction. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4- 149.067(2). Statements (24), (25), and (27) of the Petition address the Department's concerns about misrepresentation under Section 626.9541(1)(a), F.S., and ambiguity and reasonableness of benefits to premiums under Section 627.411(1)(b), and (2), F.S. in the interest rate component of the guaranteed minimum annuitization rates in the annuity contract. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4- 149.064(2)(a)4. Statement (26) of the Petition addresses the Department's concern about reasonableness of benefits to premiums under Section 627.411(2), F.S. for an annuity contract. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4-149.064(2)(a). Statement (28) of the Petition addresses the Department's concern about reasonableness of benefits to premiums under Section 627.411(2), F.S., in the treatment of charges under an annuity contract. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4- 149.064(2)(c). Statement (29) of the Petition addresses the Department's concern about timely review and approval of sales literature as noticed by Bulletin 93- 032's expression of existing Rule 4-150.120 F.A.C.. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1, Forms DI4-548, DI4-549, DI4-550, DI4-551, and DI4-555. Statements (30) and (31) of the Petition involve a requirement for the contract to contain an accurate table of guaranteed values, to prevent ambiguity under Section 627.411 (1)(b), F.S. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1, Forms DI4-555, DI4-556, DI4-557. Statement (32) of the Petition involves a requirement for the contract to contain an accurate table of guaranteed minimum annuitization values, to prevent ambiguity under Section 627.411(1)(b), F.S. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1, Forms DI4-555, DI4-556, DI4-557. Statement (33) of the Petition addresses the Department's concern about accurate, complete and non-misleading presentation of policy characteristics in sales literature, under existing Rule 4-150.105. This subject is addressed in the proposed draft rules in Petitioner's Exhibit J, proposed draft Rule 4-150.105(1)(a). Statement (34) of the Petition addresses the Department's concern that a contract explicitly describe policy provisions over the life of the contract, under Section 627.474, F.S. This subject is addressed in the proposed draft rules in Respondent's Exhibit 1, Forms DI4-548, DI4-555, DI4-556, and DI4-557. Statement (35) of the Petition addresses the Department's concern about accurate, complete and non-misleading presentation of policy characteristics in sales literature, under existing Rule 4-150.105. This subject is addressed in the proposed draft rules in Petitioner's Exhibit J, proposed draft Rule 40150.105(1)(b). Statement (36) of the Petition addresses the Department's concern about accurate, complete and non-misleading presentation of policy characteristics in sales literature, under existing Rule 4-150.105(1)(f) F.A.C.. Statement (37) of the Petition addresses the Department's concern about accurate, complete and non-misleading presentation of policy characteristics in sales literature, under existing Rule 4-150.105. This subject is addressed in the proposed draft rules in Petitioner's Exhibit J, proposed draft Rule 4-150.105. The requirement expressed by statement (37)(e), is presently found in currently promulgated Rule 4-150.106(1). Statement (38) of the Petition addresses the Department's concern about accurate, complete and non-misleading presentation of policy characteristics in sales literature, under existing Rule 4-150.105. This subject is addressed in the proposed draft Rule 4-150.105(1)(e). Statement (39) of the Petition addresses the Department's concern about accurate, complete and non-misleading presentation of policy characteristics in sales literature, under existing Rule 4-150.105. This subject is addressed in the proposed draft rules in Petitioner's Exhibit J, proposed draft Rule 4-150.105(1)(d). Statement (40) of the Petition addresses the Department's concern about reasonableness of benefits to premiums under Section 627.411(2), F.S., and unfair discrimination under Section 626.9541(1)(g), F.S. in the value of the death benefits and guaranteed annuitization rates for an annuity contract. This subject is addressed in the proposed draft rules in Petitioner's Exhibit I, proposed draft Rule 4-149.064(2)(a)4. The testimony that the forty challenged statements are addressed in the Department's draft rules [Pet.I, J; Resp. 1], as set forth above, is uncontroverted. The Petitioner did not present any evidence nor elicit any testimony refuting or otherwise discrediting this testimony on that issue.
The Issue The issue to be determined is whether Petitioner, Department of Environmental Protection (DEP), is entitled to attorney’s fees pursuant to section 57.105, Florida Statutes, from Respondents, Bernard Spinrad and Marien Spinrad (Spinrads), and their counsel, related to litigation between the parties in DOAH Case No. 13-2254.
Findings Of Fact The Recommended Order in DOAH Case No. 13-2254, including the Preliminary Statement, the Findings of Fact, and the Conclusions of Law contained therein, and the Department of Environmental Protection’s Consolidated Final Order in OGC Case No. 13-0858 are incorporated herein by reference as the facts underlying this Final Order.
Findings Of Fact Respondent, Invarrary Retirement Center, Inc. (IRC), is licensed by petitioner, Department of Health and Rehabilitative Services (HRS), to operate an adult congregate living facility (ACLF). The facility operates under the name of Inverrary Retirement Center at 5811 Northwest 28th Street, Lauderhill, Florida. On or about April 4, 1984, two HRS inspectors performed a routine relicensure survey of IRC. The purpose of the survey was to determine whether IRC was complying with all HRS requirements relating to record keeping, sanitation, fire and safety. During the course of the survey, the inspectors noted the following violations of HRS rules: There was no staff member within the facility at all times who was certified in an approved first aid course (Rule 10A- 5.19(5)(f), F.A.C.); The facility failed to keep "current" records of self administered medication (Rule 10A-5.18(6)(f), F.A.C.); Menus were not planned and posted where they could be easily viewed by the residents (Rule 10A-5.20(1)(j), F.A.C.); The kitchen was not equipped with an approved exhaust hood over the stove (Rule 10A-5.23(15)(a), F.A.C.); An electrical extension cord was used to service the coffee maker (Rule 10A- 5.23(15)(a), F.A.C.); One of the buildings had an insufficient means of egress for the residents (Rule 10A- 5.23(15)(a), F.A.C.); There were no manually operated fire alarms capable of being heard throughout the facility (Rule 10A-5.23(15)(a), F.A.C.); Respondent failed to provide documenta- tion reflecting the smoke detectors were tested on a weekly basis (Rule 10A- 5.23(15)(a), F.A.C.); and (j) There was a sliding bolt on an exit door on one of the buildings (Rule 10A- 5.23(15)(a), F.A.C.). All of the foregoing constituted a separated violation of HRS rules. 1/ When the survey was completed, the inspectors reviewed all violations with IRC's manager and advised her that a resurvey would be taken in about thirty days, and that all violations must either be corrected by that time, or some action instituted which reflected an intent on the part of the facility to correct the same. This was in accordance with HRS policy governing ACLFs, and approximated the time given other facilities to make similar corrections. On April 10, 1984, a Corrective Action Plan was issued by HRS and sent to IRC. This document set out in detail the various violations found in the April 4 inspection and set a compliance date of May 4, 1984 for all corrections to be made. A resurvey of IRC's facility was made by the same two HRS inspectors on May 18, 1984. With the exception of item (3)(h), which required documentation verifying that smoke detectors be tested weekly, the inspectors noted that no corrections had been made. However, respondent presented evidence that items (3)(b) and (3)(c) had indeed been corrected by that date and such evidence is deemed to be more persuasive than contrary evidence offered by HRS representatives. Further, the violation in item (3)(f), and turns on whether an HRS publication or the City of Lauderdale fire code was controlling when the inspection was made. Because no evidence was presented to establish which standard was in effect, the allegation that an HRS publication was violated must fail. Accordingly, it is found that IRC failed to timely correct items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i), and (3)(j) as required by the Corrective Action Plan. Respondent eventually made all corrections, although not within the HRS imposed deadline. One of the deficiencies [item (3)(d) required extensive renovations, including bids and a city permit, which took considerable time to accomplish. However, IRC's manager neglected to provide HRS inspectors with any evidence on the May 18 visit showing that bids were being solicited, or that there was any "movement" on the project. The same is true for item (3)(g) which required competitive bids from suppliers. IRC also failed to advise HRS that it could not immediately enroll an employee in the Broward County First Aid Course [item (3)(a)] because of the large number of participants in the class. IRC failed to do so even though its manager had been told that an extension on the May 4 deadline could be obtained where IRC gave some evidence to the inspectors that action was being instituted to correct the deficiency.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating agency rules as set forth in items (3)(a), (3)(d), (3)(e), (3)(h), (3)(i) and (3)(j) of the administrative complaint, and that a $900 administrative fine be imposed, to be paid within thirty days after the data of the final order rendered in this proceeding. All other charges should be DISMISSED. DONE and ORDERED this 11th day of March, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1985.
The Issue This issues are whether Respondent violated Section 464.018(1)(h), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the agency charged with regulating the practice of nursing pursuant to Section 20.43(m), Florida Statutes, and Chapters 455 and 464, Florida Statutes. Respondent is, and at all times material hereto, a licensed registered nurse in the state of Florida. Her license number is RN 1948882. Emory L. Bennet Veterans Nursing Home (the facility) is located in Daytona Beach, Florida. At all times relevant here, the facility employed Respondent as its Executive Director of Nursing. At all times material to this case, the facility had a written policy regarding the recording and implementation of verbal orders given by doctors over the telephone. The policy sets forth the following procedures: Verbal orders, including telephone orders, for medications and treatments are taken only by a registered nurse or other licensed or registered healthcare specialists in their own area of specialty and are immediately recorded, dated, and signed by the person receiving the order. Telephone and verbal orders are written in triplicate: Original copy to nursing office where it is promptly faxed, mailed or hand carried to physician for signature. Second copy remains on chart in designated area until signed copy is returned. Third copy is sent to pharmacy for inclusion in the following months [sic] printed doctor's orders. *All telephone and verbal orders are to be written on physician's order sheet by person receiving order. *All telephone and verbal orders by consulting physicians must be countersigned by attending physician. *After receiving telephone or verbal order, that order is to be noted. *All telephone and verbal orders are signed by the ordering physician within 48 hours. The facility's telephone/verbal order form, in triplicate, includes space for the following information: (a) facility name and address; (b) patient name, admission number and room number; (c) attending physician name; (d) date and time of order; (e) date order discontinued; (f) order; (g) signature of nurse receiving order; (h) signature of physician; (i) date of physician signature; (j) initials of nurse notating orders on various documents in patient's medical chart, including but not limited to, nurse's notes, patient care plan, doctor's order sheet, and medication administration record; (k) initials of nurse sending copy of order to pharmacy; and (l) date, time and signature of nurse communicating or following through with order. At all times material here, the facility had an "at- risk committee" (committee) that met at least once a week. The purpose of the committee was to review and make recommendations on patient care issues, including but not limited to, weight loss, bedsores, and falls. For patients considered to be "at risk," the committee's recommendations were supposed to be recorded on a "Residents at Risk" form. This form listed the following: (a) patient's room number; (b) patient's name; (c) problem/concern; (d) recommended intervention; (e) person responsible; (f) date; and (g) follow-up. After the committee made a recommendation that required physician approval, the nurse following through with the recommendation was supposed to contact the doctor by telephone or facsimile transmission, seeking his or her approval. Changes in medication could not be implemented without prior approval from the doctor. If the nurse received a physician's approval in a verbal order, the nurse was supposed to fill out and sign a telephone/verbal order form. The nurse would then implement the order herself or delegate that responsibility to a floor nurse. If a second nurse implemented the verbal order, she would add her initials and signature in the appropriate places, indicating the date and time of each action taken. The doctor would sign the telephone/verbal order form on his next visit to the facility. Respondent was the chairperson of the committee at all times relevant here. Other members of the committee included the following: nursing supervisor for the seven a.m. to three p.m. shift, consultant dietitian, food service director, rehabilitative/restorative supervisor and therapist, care plan coordinator, infection control nurse, and social service director. Occasionally, the facility's pharmacist and administrator participated in the committee meetings. Pursuant to the facility's policy, a telephone order form was to be filled out immediately after and not before receipt of a verbal order from the doctor. Despite this policy, the committee, before and during Respondent's tenure as Executive Director of Nursing, routinely recorded its recommendations for at-risk patients on a telephone/verbal order form as well as the "Residents at Risk" form. On March 23, 1999, Respondent conducted a committee meeting. In addition to Respondent, the following people attended the meeting: (a) Joan Locke, nursing supervisor of the seven a.m. to three p.m. shift; (b) Lee O'Malley, therapist; (c) Sandra F. Law, infection control nurse; (d) Gersom Marchena, social services director; and (e) Debra Weaver, listed as other. During the meeting, Respondent filled out the "Residents at Risk" form for seven patients, including C.K. She did not list W.A. as an at-risk patient. The committee discussed, among other things, standing physician orders for Ativan to be administered to C.K. and for Vistaril to be administered to W.A., both prescriptions on an as needed basis. The committee was concerned due to C.K.'s history of falls and because W.A. appeared to be overly sedated. Ativan and Vistaril are psychotropic medications. Respondent expressed her opinion that the three p.m. to eleven p.m. nursing staff was lazy and using the medicines as chemical restraints for C.K. and W.A. Respondent then directed her subordinate nursing supervisor, Joan Locke, to fill out telephone/verbal order forms discontinuing Ativan for C.K. and Vistaril for W.A. Respondent knew or should have known that the telephone/verbal order forms should not have been completed until after the doctor verbally approved the committee's recommendations. Following Respondent's instructions, Ms. Locke filled out the telephone/verbal order forms to discontinue the above- reference medicines for C.K. and W.A. She did not sign the forms as having received the orders from the doctor. Instead, Ms. Locke gave the telephone/verbal order forms to her subordinate, Barbara Majors, a licensed practical nurse. Ms. Locke instructed Ms. Majors to follow through with the orders. Ms. Majors incorrectly assumed that a doctor had verbally approved the changes in medication for C.K. and W.A. Ms. Majors then signed the forms on the lines for the signature of the nurse receiving the orders. Ms. Majors proceeded to make the proper notations in the patients' charts, to send copies of the orders to the pharmacy, and to remove the medicines from the patients' respective drawers in the medication cart. When the shift changed at three p.m. on March 23, 1999, the nursing supervisor for the three p.m. to eleven p.m. shift was Mary Lou McMaster, R.N. Ms. McMaster questioned the change in medication for C.K. and W.A. Ms. McMaster was unsuccessful in her attempt to contact Dr. Timothy Johnston, the facility's medical director, to verify the orders. Because she was unable to contact Dr. Johnston, Ms. McMaster contacted the facility's pharmacist, Rhomell Calara. Later in the evening of March 23, 1999, Mr. Calara contacted Dr. Johnston by telephone. During the conversation, Dr. Johnston made it clear that he had not approved orders to discontinue medicines for C.K. and W.A. and did not intend to do so. As a result of this telephone call, the medicines were not discontinued. The next morning, March 24, 1999, in a meeting of department heads, Mr. Calara questioned Respondent about the telephone/verbal orders. Respondent did not attempt to explain that the telephone/verbal orders were written as the committee's recommendation. Instead, Respondent stated that she was going to have the medications discontinued again because the afternoon shift was using them as chemical restraints and the patients were too sedated during the day. On the morning of March 25, 1999, Dr. Johnston attended the facility's meeting of department heads. During the meeting, Dr. Johnston questioned Respondent regarding the committee's procedures for implementing physician orders. When Dr. Johnston asked Respondent if she had given a direct order to discontinue the medications or a recommendation to discontinue them, Respondent got up and left the meeting. Respondent did not attempt to explain that the committee's recommendations were written as telephone/verbal orders as a result of miscommunication or other inadvertent mistake.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order fining Respondent $500, placing her on one year's probation with conditions, and requiring her to take appropriate continuing education courses. DONE AND ENTERED this 17th day of January, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 17th day of January, 2001. COPIES FURNISHED: John O. Williams, Esquire Maureen L. Holz, Esquire Williams and Holz, P.A. 211 East Virginia Street Tallahassee, Florida 32301 Reginald Moore, Esquire 559 Dr. Mary McLeod Bethune Boulevard Suite 1 Daytona Beach, Florida 32115 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Respondent was terminated as a deputy sheriff for offenses for which he had been previously disciplined and, if so, whether the termination is barred by principle of "double jeopardy."
Findings Of Fact At all times pertinent to this case, Respondent, Lendel Bright (Respondent), was employed by Petitioner, Everett S. Rice, Pinellas County Sheriff (Petitioner or the Sheriff), as a deputy sheriff or a sergeant. In May 2000, Petitioner received a complaint from Mark Parker, the husband of Belinda Parker, that his wife was having an extra-marital relationship with Respondent. At the time this complaint was filed, Respondent was a sergeant with the Pinellas County Sheriff's Office (Sheriff's Office), assigned to the Child Protection Investigations Division, and Belinda Parker was a civilian employee in the same division and was supervised by Respondent. As a result of the May 2000 complaint, Respondent's supervisor, Lt. Dennis Fowler, forwarded an Administrative Inquiry Form to the Administrative Investigations Division (AID). The inquiry form was subsequently returned to the command level for investigation and documentation. When questioned by Lt. Fowler and Capt. Rodney Steckel, Respondent denied having an extra-marital relationship with Ms. Parker. The allegation was also denied by Ms. Parker. The May 2000 complaint filed by Mr. Parker was later determined to be unfounded based upon several factors. First, during the investigation, both Respondent and Ms. Parker made statements denying the relationship. Second, Mr. Parker retracted his May 2000 complaint and requested that the matter be abandoned. On or about January 31, 2001, Mr. Parker again alleged that Respondent was having an extra-marital relationship with his wife. In this instance, the complaint was made to Capt. Steckel, who on February 1, 2001, made a second complaint to the Sheriff's Office. As a result of this second complaint, an investigation was initiated and conducted by the AID. This matter was assigned Administrative Inquiry No. AI-01-009 (AI-01-009). During the course of the investigation of AI-01-009, Respondent, while under oath, denied having an extra-marital relationship with Ms. Parker. Respondent also denied utilizing his agency cell phone for personal phone calls to Ms. Parker. At the conclusion of the investigation of AI-01-009, the matter was referred to the Administrative Review Board (ARB). Thereafter, the ARB convened to conduct a proceeding. At the ARB hearing, Respondent, while under oath, denied having an extra-marital relationship with Ms. Parker. Respondent also denied utilizing his agency cell phone for personal phone calls to Ms. Parker. In making these denials of the existence of an extra- marital relationship with Ms. Parker to the AID investigators and to the ARB, Respondent was untruthful. At the conclusion of the ARB hearing, the ARB recommended to Petitioner that Respondent be found guilty of violating Sheriff's Office rules and regulations related to untruthfulness and performance of duty. The ARB recommended that Respondent receive a ten-day suspension for these violations. On June 19, 2001, after the ARB hearing, at the request of Respondent's attorney, Petitioner agreed to modify the ARB recommendation. As part of this agreement, Petitioner did not accept the ARB's recommended finding of untruthfulness against Respondent, but instead found that Respondent was guilty of a single Level Five violation related to duties and responsibilities. For Respondent's part, he agreed to accept a demotion from the rank of sergeant to deputy sheriff and to waive his right to seek review of the discipline under the Civil Service Act. This agreement was reached to avoid Respondent's jeopardizing his law enforcement certificate with the State of Florida, Department of Law Enforcement, by having a finding of untruthfulness. Respondent voluntarily entered into the agreement discussed in paragraphs 13 and 14, and he received the benefit of the agreement. Pursuant to the agreement, there was no finding of guilt against Respondent as it relates to untruthfulness, and Respondent was demoted from sergeant to deputy sheriff, effective July 15, 2001, and continued to work for the Sheriff's Office. With this resolution, AI-01-009 was closed on or about June 19, 2001. The Notice of Sustained Complaint, dated June 19, 2001, to Respondent from the Sheriff, memorialized the agreement between the Sheriff and Respondent that there would be no finding as to untruthfulness and that Respondent would be demoted. This Notice of Sustained Complaint concerned AI-01-009 and was based on incidents which occurred between "January 2000 and February 2001." Between December 2001 and December 2002, after entering into the agreement discussed in paragraphs 13, 14, and 15, Respondent wrote a series of memoranda and correspondence to the Sheriff and others within the Sheriff's Office administration. In those written communications, Respondent continued to deny the existence of an extra-marital relationship between himself and Ms. Parker. In those communications, Respondent also alleged that the investigation in AI-01-009 was conducted inappropriately, that he was not treated fairly and equally, and that he had not requested the demotion that he agreed to in June 2001. In making the denials described in paragraph 17 regarding the extra-marital relationship between himself and Ms. Parker and the manner in which AI-01-009 was conducted and resolved, Respondent was untruthful. In February 2002, the AID again received a complaint from Mr. Parker that his wife was continuing to have an extra- marital relationship with Respondent. As a result of the complaint and additional information provided by Mr. Parker, the AID again initiated an investigation into the allegations of the extra-marital relationship. In July 2002, Ms. Parker provided a sworn statement admitting the existence of an extra-marital relationship between herself and Respondent. Ms. Parker also provided additional information regarding the circumstances surrounding that extra- marital relationship. In December 2002, the Sheriff submitted an interoffice memorandum to the AID notifying Respondent that he was the subject of an administrative investigation regarding violations related to truthfulness and conduct unbecoming a member of the Sheriff's Office. Petitioner stated in the interoffice memorandum that as a result of Respondent's correspondence, in which he repeatedly denied having an inappropriate relationship with Ms. Parker and claimed that the prior investigation was unfair, Petitioner "feels obligated to take the extraordinary measure to direct the Administrative Investigations Division to 're-examine this particular matter' and present the findings to the ARB." As a result of the December 2002 interoffice memorandum, the AID conducted an investigation into the actions of Respondent as they related to his conduct, the use of agency equipment, and his testimony and statements previously given to supervisors or in previous investigations. This matter was assigned Administrative Inquiry No. AI-02-082 (AI-02-082). During the investigation of AI-02-082 that followed, the AID confirmed the statement of Ms. Parker regarding the existence of an extra-marital relationship between her and Respondent. As part of the investigation of AI-02-082, on January 22, 2003, Respondent gave a sworn statement, in which he admitted to having an extra-marital relationship with Ms. Parker. Respondent also admitted that he had been untruthful in his previous statements regarding the extra- marital relationship. During the investigation related to AI-02-082, in his January 22, 2003, sworn statement, Respondent admitted to utilizing Sheriff's Office property, a cell phone, for personal purposes without providing reimbursement to the Sheriff's Office for the personal usage. Many of these phone calls were to Ms. Parker and took place after the closure of AI-01-009. During the investigation related to AI-02-082, in a sworn statement, Respondent admitted to authoring official Sheriff's Office documents, interoffice memoranda, and correspondence, that contained falsehoods. In one memo, written in or about December 2001, to the chief deputy in the Sheriff's Office, Respondent stated, "I never had or considered having an affair with Mrs. Parker, there was only a personal friendship" and that he "was truthful at all times." These memoranda were official Sheriff's Office communications that were written and disseminated by Respondent after the closure of AI-01-009. Notwithstanding Respondent's repeated and continuous denials in official Sheriff's Office documents, he continued to have an extra-marital relationship with Ms. Parker after AI-01-009 was settled and closed. By Respondent's own admission, the extra-marital relationship with Ms. Parker began in January 2000 and did not end until February or March 2002. After the investigation of AI-02-082 was concluded, an ARB hearing was convened on or about February 10, 2003. During this proceeding, Respondent again admitted to having an extra- marital relationship with Ms. Parker and to his having been untruthful in his previous statements regarding the extra- marital relationship. Respondent also admitted that he utilized the Sheriff's Office property, a cell phone, for personal purposes without providing reimbursement to the Sheriff's Office for the personal usage. Moreover, Respondent admitted that he wrote and distributed interoffice memoranda and correspondence, referenced above, that contained falsehoods. Based on its review of the allegations and the evidence related to AI-02-082, the ARB determined that Respondent was guilty of violating the Civil Service Act and the rules, regulations, and operating procedures of the Sheriff's Office. A February 10, 2003, interoffice memorandum sets forth the violations with which Respondent is charged and the conduct, which is the basis of those violations. The violations and conduct are summarized as follows: Pinellas County Sheriff's Office Rule 3-1.1 (Level Five violation), 5.6 related to Truthfulness; to wit: Members are required to be truthful at all times when acting in an official capacity, whether under oath or not, such as when offering testimony in legal proceedings and administrative investigations. Synopsis: Respondent was untruthful, repeatedly, to both supervision and the Administrative Investigations Division (while under oath) concerning his involvement in a paramour relationship. Pinellas County Sheriff's Office Rule 3-1.1 (Level Five Violation), 5.14 related to Conduct Unbecoming Members of the Agency, to wit: Knowingly making false entry or cause false entry to be made in any official record of the Sheriff's Office. Synopsis: Respondent knowingly made false entry on official agency records by repeatedly submitting inter-office memorandums, which he now admits contained both falsehoods and mistruths. Pinellas County Sheriff's Office Rule 3-1.3 (Level Three Violation), 3.1 related to Standard of Conduct, to wit: Members shall conduct their private and professional lives in such a manner as to not bring discredit to the Sheriff's Office. Synopsis: Due to Respondent's paramour relationship and his attempt to perpetrate falsehood and mistruths concerning the administrative investigative process, he brought discredit to the Sheriff's Office. Pinellas County Sheriff's Office Rule 3-1.1 (Level Three Violation), 3.1 related to Unauthorized Use of Agency Equipment, to wit: Members will not appropriate equipment owned by the agency for their own use. Synopsis: Respondent repeatedly used the agency-issued cellular telephone for personal use and failed to reimburse the agency for those calls. The violations resulted in a cumulative point total of 75, which allows for discipline from a ten-day suspension to termination. The ARB recommended to the Sheriff's Office that Respondent be terminated. The Sheriff reviewed the recommendation of the ARB and agreed with the recommendation. In the Notification of Sustained Complaint dated February 10, 2003, the Sheriff notified Respondent that he was being terminated from employment with the Sheriff's Office. The notification indicated that the complaint which was the basis of the sustained complaint involved incidents that occurred on "June 2000 through [p]resent." The violations in AI-01-009 and the underlying conduct, which was the basis for those violations, were resolved pursuant to the negotiated settlement agreement between the Sheriff and Respondent. Therefore, that conduct is not actionable in a subsequent disciplinary proceeding. However, the Sheriff is not precluded from imposing discipline for conduct which occurred after AI-01-009 was closed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a final order finding Respondent guilty of violating Sheriff's Office Rule 3-1.1, 5.14, related to conduct unbecoming members of the agency; Sheriff's Office Rule 3-1.1, 3.1, related to standard of conduct; and Sheriff's Office Rule 3-1.1, 3.1, related to unauthorized use of agency equipment; and upholding Respondent's termination as a deputy sheriff with the Pinellas County Sheriff's Office. DONE AND ENTERED this 3rd day of September, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 3rd day of September, 2003. COPIES FURNISHED: Kenneth J. Afienko, Esquire Kenneth J. Afienko, P.A. 560 First Avenue, North St. Petersburg, Florida 33701 Keith C. Tischler, Esquire Allen, Norton & Blue, P.A. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186 B. Norris Rickey, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 34616 Jean H. Kwall, General Counsel Pinellas County Sheriff's Office Post Office Drawer 2500 Largo, Florida 33779-2500
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Pamela Jan Powers, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0508538. On May 8, 1995, Respondent filed an application with the Department for licensure as a real estate broker. Pertinent to this case, item 9 on the application required that Respondent answer yes or no to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. . . . Respondent responded to the question by checking the box marked "NO." Following approval of Respondent's application, and her licensure as a real estate broker, the Department discovered a "Court Status" document (the "court document") for the Circuit/County Court, Broward County, Florida, which reflected that Respondent, then known as Pamela Jan Saitta, had been charged with five offenses, as follows: DISORDERLY CONDUCT POSSES/DISPLY SUSP/REVK/FRD DL LICENSE SUSP OR REVOKED2 PERS/INJ/PROT/INS REQUIRE FAIL CHANGE ADDRESS/NAME (Petitioner's Exhibit 1.) The court document further reflected that on May 18, 1990, a plea of nolo contendere was entered to counts 1 and 3, adjudication was withheld, and Respondent was assessed costs of $105.00, but not fined. As for the remaining counts, count 2 was nolle prosequi and counts 4 and 5 were dismissed. After receipt of the foregoing information, the Department undertook an investigation, which included an interview with the Respondent. At the time, Respondent told the investigator that she had no knowledge of the charges, as reflected on the court document. Thereafter, on July 18, 1997, the Department filed the Administrative Complaint at issue in this proceeding, which, based on Respondent's negative response to item 9 on the application, charged that Respondent "has obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against her license. On September 17, 1997, Respondent appeared before the Florida Real Estate Commission in an apparent effort to resolve the complaint informally. At that time, Respondent told the commission, under oath, that she had no recollection of the charges or disposition, as reflected on the court document.3 She acknowledged, however, that the document referred to her, but could offer no explanation. During a recess, the commission's counsel spoke with Respondent, and suggested that she try and secure a copy of the police report, as well as other useful information. (Petitioner's Exhibit 3, page 10.) Respondent, but not the Department, researched the records at the Broward County Police Department, and was able to locate a traffic accident report for February 21, 1990, that apparently related to the charges noted in the court document. (Respondent's Exhibit 1.) No police report was located. The accident report reflects that on February 21, 1990, Respondent's vehicle was struck in the rear by another vehicle. The report reads, in part, as follows: Driver of veh 1 [Respondent] had a suspended D.L. and no proof of insurance. Driver of Veh 1 [Respondent] was subsequently arrested for the suspended D.L. ss 322.34(1) No proof of insurance ss316.646(1) Fail to change address within 10 days ss 322.19 and unlawful Use of License ss 322.32(1). The vehicles were both towed by Dalys towing. There is no mention in the accident report of any disorderly conduct by Respondent or any charge of disorderly conduct against Respondent. Moreover, there is no explanation of record for the disorderly conduct charge made against Respondent, as evidenced by the court document. Regarding the events revealed by the accident report, Respondent acknowledges that these events are most likely the source of the charges that were reflected on the court document. She insists, however, that she has no recollection of receiving any citations at the time of the accident, and denies any knowledge of the court proceeding. In explanation, Respondent avers that, consequent to injuries received at the time, she has no recollection of events immediately following the accident. Regarding the court proceeding or its disposition, Respondent also avers she has no knowledge or recollection of that proceeding and did not appear in court on the charges. The only explanation she can offer for that proceeding or its disposition is that, most likely, her attorney resolved the matter, as he was resolving the civil suit that was brought against the other driver. Given the circumstances of this case, Respondent's averment that she was unaware of the charges or the disposition disclosed on the court document when she submitted the application for a broker's license, and that she was only able to connect the court document to the traffic accident after she had retrieved a copy of the accident report, is credible. In so concluding, it is observed that her testimony was candid and consistent. Moreover, her explanation afforded rational explanation for what, otherwise, would have been an irrational act. In this regard, it is observed that the charges filed against Respondent, as well as their disposition, were not serious and did not reflect adversely on her qualification for licensure as a real estate broker. Consequently, were she aware of the events, there was no rational reason to conceal them from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 13th day of March, 1998.
