The Issue The issue to be determined is whether Respondent, Brian T. Hart (“Respondent” or “Mr. Hart”), failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2010), and if so, what penalty should be imposed?
Findings Of Fact No direct evidence was presented at hearing to establish that Respondent held a certification issued by the Criminal Justice Standards and Training Commission. However, at all times relevant to these proceedings, Respondent was employed by the Tallahassee Police Department (“TPD”) as a police officer. Evidence was presented that he had been hired by the Tampa Police Department, and Respondent was identified consistently as a “cop” or “officer.” It does not appear from the record that Respondent’s status as a certified law enforcement officer is in dispute in this proceeding. On or about August 15, 2011, an Order of Judgment and Sentence was filed in the Second Judicial Circuit, in Leon County, in the case of State of Florida v. Brian Hart, Case No. 2011-MM511. Although there was testimony indicating that Respondent was convicted by a jury of his peers, the Order of Judgment and Sentence does not indicate whether the judgment, for which adjudication was withheld, was a result of a plea of guilty or nolo contendere, or as a result of a trial. Respondent, his counsel, and the Assistant State Attorney signed the document, implying that it was more likely a result of a plea agreement of some sort. In any event, adjudication was withheld and Respondent was sentenced to 12 months’ probation, with no contact with the victim, and random alcohol screens.1/ Officer Gregory Wilder investigated the allegation of battery lodged against Respondent. The charge stemmed from an incident at AJ’s Sports Bar (“AJ’s”) where Respondent allegedly grabbed a female patron at the back of the neck and pushed her head down to his crotch. While Officer Wilder testified regarding his investigation of the incident leading to the battery charge against Respondent, he was not present when the alleged battery occurred and did not have responsibility for the investigation until the day after the incident. No competent evidence was presented to demonstrate the basis for the battery charge, in that no person who was involved in or a witness to the incident testified at hearing. Respondent admitted being at AJ’s the night of the alleged incident, and consuming several alcoholic beverages, but consistently denied any memory of interaction with the victim. In the course of Officer Wilder’s investigation, he received information indicating that Respondent was or had been involved in an abusive domestic relationship with his girlfriend, Lauren Bauer. Officer Wilder arranged to speak with Ms. Bauer to ask her about her relationship with Respondent. Ms. Bauer met with Officer Wilder at the police department on January 11, 2011, at his request. Consistent with her testimony at hearing, Ms. Bauer indicated that she began seeing Respondent in March 2010, and during that time she maintained her own apartment but slept most of the time at Respondent’s apartment. Respondent’s relationship with Ms. Bauer lasted for approximately ten months. During that time, the couple had discussed getting married and moving to Tampa. Ultimately, Ms. Bauer had concerns about Respondent’s drinking and problems with anger management, which led to the termination of the relationship approximately two weeks before she spoke to Officer Wilder. During the course of the relationship, Respondent was verbally and physically abusive toward Ms. Bauer. The abuse began as verbal outbursts, and escalated to physical abuse approximately 2-3 months into the relationship, when he threw a water bottle at her and hit her in the forehead. On another occasion, sometime in late summer of 2010, he held her in a chokehold in order to take his phone from her, and spit in her face repeatedly. On October 26, 2010, Ms. Bauer had planned a party at AJ’s Sports Bar for her brother’s 21st birthday. She had asked Respondent to attend the party while she was planning the event. The night before, however, the two of them had a fight. On the evening of the party, Respondent called Ms. Bauer and asked her to come over to his apartment so that they could “make up” and he could go with her to the event. However, when she arrived at Respondent’s apartment, Respondent was already intoxicated. Ms. Bauer testified that there were four bottles of wine on the table, that Respondent’s speech was slurred, and that he smelled of alcohol. Given Respondent’s condition, Ms. Bauer decided it would be better if Respondent did not attend the party, but Respondent was insistent that he would attend. When she went to her car to leave, he followed her and tried to prevent her from entering the car. While she was able to get in the car and leave the premises, it was not before he hit her car door and tried pulling her out of the car. Ms. Bauer picked up a friend and both went to the party for her brother at AJ’s. Despite her asking Respondent not to attend, he showed up at AJ’s, still clearly intoxicated, and kept trying to talk to her. She asked him to go home, and he refused, grabbing her arm and pulling her off of her barstool. Ms. Bauer did not want a confrontation and was afraid that Respondent would hit her in public. To avoid any further confrontation, she cashed out and left the sports bar. Ms. Bauer attempted to but did not obtain an injunction against Respondent to leave her alone. No competent evidence was received with respect to why the injunction was denied. From the evidence presented, Respondent and Ms. Bauer had an “on again-off again” relationship, and she had continued to see him even after experiencing abuse. However, Officer Angie Booth testified credibly that it is not uncommon for victims to continue a relationship that includes abuse. Ms. Bauer’s testimony that she hoped Respondent could resolve his anger management and alcohol issues is credited. Investigator Wilder completed a probable cause affidavit and forwarded the domestic abuse investigation to the State Attorney’s Office for review. Although charges were filed, the case was never prosecuted because of an unspecified “legal technicality” related to the timing of the charge. Once the battery charges were filed, the TPD suspended Respondent and placed him on administrative leave. In addition, the TPD initiated an internal affairs investigation, which was conducted by Investigator Angie Booth. As a result of the investigation, on April 18th, 2011, Investigator Booth completed an Internal Affairs Unit report, and recommended that Respondent violated the TPD’s General Order 46 in three respects: that he committed conduct unbecoming an officer; a violation of laws or rules; and alcohol abuse. All three recommendations were sustained, and Respondent’s employment with the TPD was terminated. Respondent contends that Ms. Bauer is simply bitter and vengeful over the break in their relationship. While he admits that they often argued, he claims that he never abused her, and points to the fact that the TPD investigation did not include physical evidence of abuse. Ms. Bauer, however, did not initiate the investigation against Respondent. She was contacted by law enforcement because of information gained from other sources pointing to an abusive relationship. Ms. Bauer testified credibly about the volatile nature of the relationship, and her testimony that she suffered abuse at Respondent’s hands is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a Final Order finding that Respondent failed to maintain good moral character as defined by rule 11B- 27.0011(4)(b)3., in violation of section 943.1395(7). It is further recommended that Respondent’s certification be suspended for a period of one year, followed by probation for one year. It is also recommended that as a condition of probation, the Commission consider requiring courses and/or counseling to address anger management and substance abuse. DONE AND ENTERED this 1st day of March, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 2013.
The Issue The Issue for consideration is this matter is whether the Respondent, Kinnett Dairies, Inc., should be placed on the State of Florida's convicted vendors list because of its conviction on January 9, 1990 for "making false statements to a federal agency."
Findings Of Fact The Department of General Services is the state agency required, pursuant to Section 287.133(3)(d), Florida Statutes, to maintain a list of the names and addresses of those persons who have been disqualified from the public contracting and purchasing process under that section. On May 16, 1991, Kinnett, pursuant to a plea agreement with the State of Georgia, entered a plea of nolo contendere to a one count felony charge brought under Section 16-10-22, Official Code of Georgia for conspiracy in restraint of trade. On July 31, 1991, Kinnett was convicted in federal court of a one count felony charge brought under Section 1 of the Sherman Antitrust Act, for a combination and conspiracy to suppress and eliminate competition by rigging bids. Pursuant to the requirements of the Florida statute in issue here, Kinnett made timely notification of those convictions to the Florida Department of General Services. Thereafter, based on those convictions, the Department concluded it was in the public interest to place Kinnett on the convicted vendors list. The parties have stipulated that concurrently with and as a part of the agreement for the entry of the plea of nolo contendere to the state charge, Kinnett entered into an agreement with the State of Georgia whereby it paid a fine of $10,000.00 and costs of an additional $10,000.00. It also cooperated fully with the investigation of the Attorney General of the State of Georgia which led up to the charge. On the same date, May 16, 1991, Kinnett also entered into an agreement with the United States Department of Justice whereby it plead guilt to one felony count, as alleged in the information, and agreed to pay criminal penalties of $300,000.00 over a four year period and $25,000.00 in civil damages to the United States. On July 19, 1989, Kinnett entered into a settlement agreement with the State of Florida regarding possible bid rigging of school requirements contracts in Florida by various dairies and paid settlement sums of $150,000.00. All penalties and civil liabilities due to the federal and state governments have been paid. Kinnett fully cooperated with both Florida and Georgia in connection with their investigations into its activities. It also cooperated with the federal Grand Jury investigating its activities, a matter which was confirmed in an October 8, 1991 letter from the federal prosecutor to the Department. No Kinnett employees were indicted as a result of the investigations by the federal and state governments as noted. No member of Kinnett's top management had knowledge of the alleged conduct of the four employees who were implicated in the misconduct involved herein. None of those four employees are still associated with Kinnett. Kinnett has implemented an active antitrust and ethics compliance program developed with the advice and assistance of experienced antitrust counsel. Inherent in this program is the adoption of a Code of Ethics and Standards of Conduct regarding antitrust matters; establishment of an ethics committee to monitor compliance; establishment of a reporting "hotline"; adoption of new bidding procedures bringing upper management into the pricing process; implementation of a training program for all personnel; and adoption of a policy and procedure review program to oversee both internal and external review of company ethics, policies and procedures. Going beyond the minimal requirements, Kinnett has arranged for outside accountants to perform a yearly, in-depth audit of all company books and accounting and pricing practices and has retained an expert in ethics to review existing policies and procedures and make recommendations for improvement. Kinnett has maintained its long-standing involvement in both civic and charitable activities in and around the Columbus, Georgia area and employs disabled veterans and military retirees, who currently make up 38% of its workers, when possible. It was recognized by the Georgia Department of Labor for its efforts in this area. Kinnett was one of the first companies in the Columbus, Georgia area to test both employees and job applicants for drug use, and has endorsed the Mayor's Task Force for Drug Free Columbus and consistent therewith has been instrumental in assisting other companies to establish programs to address substance abuse. Its officers are active as leaders in various civic organizations and it has given generously to numerous public, civic and charitable organizations. No matters in aggravation, other than the existence of the pleas, the convictions, and the penalties involved herein was presented by the Department. No evidence was presented relating to a conviction in January, 1990.
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.
Findings Of Fact On January 16, 1987, Department of Health and Rehabilitative Services notified J. S. By letter that it had received a report of neglect regarding him and advised him of his right to request the report be amended or expunged. J. S. did so but on February 26, 1987, the Department advised him his request for expungement had been denied. Thereafter, J. S. requested a formal hearing which was held by the undersigned on October 27, 1987. After a full, formal hearing on the merits, at which both testimony and documentary exhibits were presented by both parties, the undersigned, on December 1, 1987, entered a Recommended Order in which it was found, as a matter of fact, that while the alleged victim of the neglect was incapable of totally caring for himself, the evidence presented was insufficient to establish that the relationship between the victim and J. S. was a care-giving one or that J. S. had the responsibility to look out for the victim so as to bring him within the purview of the statute. The Department thereafter entered a Final Order consistent with the Recommended Order, amending the classification of the report to "unfounded" and expunging it from the Department records. Evidence introduced at the original formal hearing held herein established that J. S. was an employee, (resident manager) at the Royal Palm Retirement Home in Ft. Myers, Florida. He was not the owner of the facility nor was any evidence introduced to indicate he had any financial interest, other than as an employee, in the facility. Further, he was not engaging in the professional practice of a licensed profession. His relationship with the alleged victim was found to be no more than that of landlord-tenant. The Department's investigation of the alleged neglect, while not completely comprehensive, nonetheless was sufficiently thorough to meet the test of reasonableness.
The Issue The issue to be determined in this proceeding is whether the Petitioner is entitled to attorney’s fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Petitioner, Aaron Cox d/b/a Cox Construction, Inc., is a Florida corporation organized for profit. It is owned by Petitioner, Aaron Cox. Petitioner constitutes a “small business party” within the meaning of Section 57.111, Florida Statutes. On April 22, 2008, Jason Brown, a Department of Business and Professional Regulation (Department or DBPR) investigator, observed Cox and workers for Cox performing work on a roof that appeared to require a roofing contractor's license. Petitioner was doing framing work which did not require a license and removed some of the roof related to the framing work. Petitioner did not have a roofing contractor’s license. On June 20, 2008, Robert Marnick, another DBPR investigator taking over the case, issued Cox a “Uniform Disciplinary Citation – Unlicensed” pursuant to Florida Administrative Code Rule 61-32.003. The citation stated that Marnick had probable cause to believe that Cox had violated Section 489.127(1)(f), Florida Statutes, and sought a penalty of $2,500.00. Section 489.127(1)(f), Florida Statutes, provides that no person shall “engage in the business or act in the capacity of a contractor or advertise himself or herself or a business organization . . . without being duly registered or certified or having a certificate of authority.” Florida Administrative Code Rule 61-32.003, provides that citations imposing designated fines may be issued to unlicensed persons for violations under the following conditions: “1) there has been no prior citation, final order or Notice and Order to Cease and Desist to the subject; 2) there is no evidence of consumer harm in the current case; and 3) the subject has not previously held a license to practice the activity at issue.” Rule 61-32.003(4) also provides that citations for unlicensed practice of a profession shall include a statement that, in lieu of the citation, the subject may choose the administrative procedures in Section 455.225, Florida Statutes. The citation issued to Petitioner, however, contained the following statement: SUBJECT MUST CHOOSE ONE OF THE FOLLOWING: I choose to PAY the penalty/investigative costs (if any) on the citation. I choose to DISPUTE the citation and wish to have this case PROSECUTED under s. 455.225, Florida Statutes. The Citation had attached to it a form entitled "Legal Rights and Mailing Instructions." The form included the following information with respect to disputing the basis for the citation: The legal options available to you after you have been issued a citation are as follows: You may DISPUTE the facts alleged in the citation and elect to have the case formally prosecuted. In that case, you must check the appropriate box and return the original or a copy of the citation within 30 days of the date you were served. An Administrative Complaint will be filed thereafter and served upon you. If the Department prevails at the hearing, you may be required to pay a fine and any additional investigative or administrative costs associated with prosecution. Prosecution will be in accordance with Chapters 455 and 120, Florida Statutes, and the practice act governing the profession. . . . Petitioner disputed the citation on July 17, 2008, and Respondent began an investigation into the matter as required by Section 455.225(1)(a), Florida Statutes. Petitioner was notified of the investigation by letter dated August 28, 2008. Pursuant to Section 455.225(4), Florida Statutes, a determination of probable cause shall be made by a majority of the probable cause panel, or by the Department, as appropriate. For unlicensed activity the probable cause determination is made by the Department. If probable cause exists, the statute directs that the Department will file a formal complaint against the licensee. Section 455.225(5), Florida Statutes, provides that a formal hearing will then be held before an administrative law judge from the Division of Administrative Hearings pursuant to Chapter 120 if disputed issues of material fact arise after the Department files an administrative complaint. The Department attorney assigned to review the case determined that there was no probable cause to find a violation based on insufficient evidence. The case was closed and the Petitioner was notified. However, the notification letter sent to Petitioner does not specifically make any reference to the term "probable cause." Once notified, the Petitioner served his Request for Award of Attorney’s Fees and Costs Pursuant to Section 57.111, Florida Statutes. No administrative complaint was ever filed by the Department. No complaint was ever filed in circuit court. No notice of voluntary dismissal was filed. No settlement took place between the parties.
The Issue The issue for consideration in this case is whether Respondent's certificate as an educator in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Commissioner of Education, was the state official in Florida responsible for the certification of educators and the regulation of the teaching profession in Florida. Respondent was certified as an educator in this state by the Petitioner, and held Florida Educator's Certificate 554449, valid through June 30, 1995, and covering the area of elementary education. Crystal S. Bush, Respondent's wife, met the Respondent when he was her cross-country coach while she was a sixth grade student at Suncoast Middle School. He became her teacher for English and social studies the following year when she was a seventh grade student at that school. She married him in February 1993, when she turned sixteen years old, while she was in the ninth grade. Respondent and his wife had one child, a boy, in February 1994, and separated in the Spring of 1995 because, she claimed, he became very controlling and verbally abusive. Because she did not have any money, and needed funds on which to live, Mrs. Bush withdrew $400.00 from their joint bank account. With their child, she moved back with her parents, occupying the garage apartment on their property about three and a half miles from where she had lived with Respondent. Mrs. Bush insists that Respondent knew she was leaving, but she did not know if he knew where she was going. She believes he did, however, because he knew she had no place else to go. A day or two after the separation, Respondent came to the apartment where Mrs. Bush and the baby were staying. They were taking a nap at the time. He claims he went to the parents’ house first and was told his wife was in the garage apartment and he should "go on in,” which he did. Respondent entered the apartment and went into the bedroom where Mrs. Bush and the baby were sleeping. According to Mrs. Bush, she was awakened by Respondent's yelling that he wanted his mail-box key and the money she had taken from their joint account. Mrs. Bush contends that though she had her own checking account before this, he opened up the joint account with her as a gift, and it was into this joint account that their sizable tax refund check had been deposited. She claims that they had agreed she was to get half of the refund, but Respondent later reneged on that agreement. Mrs. Bush gave him the mail-box key, but asked him to let her keep a part of the refund. She had stopped working as a club dancer and had no money. Respondent refused. Because of his attitude, she declined to return any of the money she had withdrawn. Because Respondent's yelling was scaring the baby, and Mrs. Bush tried to terminate the conversation, but Respondent would neither be quiet nor let her leave. She tried to ignore him, but, she contends, he picked up an incense box and threatened to kill her with it. Respondent also demanded that she give him the baby. He claims he had had care of the child 5-to-6 nights a week while his wife was working, but when she left, she refused to let him have the child any more. Mrs. Bush contends that when she refused to give up the child, Respondent pushed her to the floor, pulled her hair and hit her on the lip, splitting it. She cannot say whether he hit her with his open hand or his fist, but there is no doubt her lip was split. The injury was observed by Mr. Gregory, a domestic violence investigator with the county, when he interviewed her a few days later. Mrs. Bush also claims that during the course of the fight over the baby, Respondent threatened to break the baby's arm if he had to in order to get the child. Respondent denies this, and there is no evidence that any such injury was inflicted on the child. However, that Mrs. Bush finally gave up the child and the Respondent left the premises. Immediately after Respondent's departure, Mrs. Bush called the police who responded within fifteen minutes. When they arrived, she told them that Respondent had hit her and the child, and she repeated that allegation to the court when she subsequently sought an injunction against him. She also advised an investigator for the Department of Education that Respondent had hit her and had returned the child to her scratched and bruised. This report was also made to child protection investigators with the Department of Health and Rehabilitative Services some weeks later. No evidence was introduced to confirm her allegations of injury to the child, however. Later the day of the incident, Respondent was arrested on a charge of domestic violence, and the child was returned to Mrs. Bush. While the police were at her house, they suggested she sign a document seeking a restraining order against Respondent, which she did. Respondent and his wife talked by telephone several times after his arrest. As a result of these discussions, she put up the funds required to get him released from jail on bond the following morning. Several days after the incident, because she was experiencing pain in the neck, Mrs. Bush saw her doctor. At that visit, no medical attention was required for the injury to her lip. She did not feel it necessary to take the child to the doctor because though, she claims, he had been struck by the Respondent, he did not seem to be injured. In the interim between Respondent's arrest and his subsequent court appearance at which his plea of nolo contendere was entered, Mrs. Bush obtained an order granting a temporary injunction against the Respondent to prevent him from committing any violence against her. This was followed by an amended order which made the injunction permanent. Mr. Gregory, the court's domestic violence and family law investigator, received the same story from Mrs. Bush that she had told to the police, and conducted his own investigation. Gregory claims to have spoken with Respondent during several mediation meetings. On each interview, save one, Respondent had an attorney present. Mr. Gregory contends that Respondent admitted there had been a physical altercation between him and his wife, but that the hitting of Mrs. Bush was an accident which occurred while he was trying to take the child from her arms. Gregory also states that Respondent admitted striking Mrs. Bush in the mouth, pushing her to the floor, pulling her hair, and threatening to take the child away from her. At hearing, Respondent again claimed he was acting in self-defense to his wife’s striking out at him and grabbing him by the genitals. In light of the fact that this defense was not raised to anyone prior to hearing, however, it is rejected. Based on his investigation into the incident, Mr. Gregory recommended that the State Attorney proceed with prosecution of the criminal charges which had been filed against the Respondent. Thereafter, on February 27, 1996, Respondent pleaded nolo contendere in circuit court to a charge of domestic violence. The court withheld adjudication but sentenced the Respondent to one-year probation, a fine of $150.00, required him to attend counseling, and directed him to refrain from contact with Mrs. Bush. In the expert opinion of Marilyn L. Strong, the Director of Personnel Services for the Lee County Schools and an educator with almost a quarter century of administrative and supervisory background, the misconduct attributed to Respondent constitutes both gross immorality and moral turpitude as they are defined in the Florida Statutes and the rules of the Department of Education. However, Ms. Strong’s opinion is not supported by the facts in this case, and it is found that Respondent’s single striking of his wife does not here constitute either gross immorality or moral turpitude.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commissioner of Education enter a Final Order dismissing the Administrative Complaint. DONE AND ENTERED this 16th day of October, 1997, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1997. COPIES FURNISHED: J. David Holder, Esquire 14 South Ninth Street DeFuniak Springs, Florida 32433 Lawrence Bush, pro se 4840 East Riverside Drive Fort Myers, Florida 33905 Kathleen M. Richards Executive Director Education Practices Committee 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Program Director Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, Pl-08 Tallahassee, Florida 32399-0400
Findings Of Fact Bernard M. Tully, M.D. served by mail his Motion to Tax Attorney's Fees and Costs pursuant to Chapter 57, Florida Statutes, on May 19, 1987; same was filed with the Division of Administrative Hearings on May 21, 1987 and was assigned DOAH Case No. 87-2265F. This instant cause is a fee and costs case pursuant to Chapter 57, Florida Statutes, arising out of Department of Professional Regulation, Board of Medical Examiners v. Bernard M. Tully, M.D.; DOAH Case No. 85-3175. The Department of Professional Regulation has moved to dismiss Tully's Motion to Tax Attorney's and Costs, (hereafter, "Fees and Costs Petition") upon allegations that the claim was not filed in a timely manner pursuant to Section 57.111(4)(b)2, Florida Statutes, and upon allegations that the Fees and Costs Petition did not comply with the requirements of Section 57.111(4)(b), Florida Statutes, in that the claimant had not submitted an itemized affidavit of the nature and extent of the services rendered as well as the costs incurred. A Voluntary Dismissal was served by mail by Petitioner Department of Professional Regulation in DOAH Case No. 85-3175 on March 6, 1987, and filed with the Division of Administrative Hearings on March 10, 1987. The Order closing the Division file in that case was entered March 18, 1987, but is largely superfluous since a Voluntary Dismissal by the party bearing the burden of proof dismisses a cause by operation of law as of the date of filing of the Voluntary Dismissal. Tully's Fees and Costs Petition was served (May 19, 1987) and filed (May 21, 1987) well beyond the 60 day timeframe (May 11, 1987) provided in Section 57.111(4)(b)2, Florida Statutes, for the filing of such claims. Tully's Fees and Costs Petition attached schedules itemizing costs incurred and pleadings filed in DOAH Case No. 85-3175. The Petition was not verified and no affidavits are attached. In these respects, the Fees and Costs Petition failed to comply with Section 57.111(4)(b)1, Florida Statutes, and Rule 22I-6.35, Florida Administrative Code. Neither does the Fees and Costs Petition or any accompanying affidavit allege whether or not Tully requests an evidentiary hearing; that he is a small business party; where his domicile and principal office are located; how many employees he has; whether or not he is a sole proprietor of an unincorporated business, and, if so, whether or not his net worth exceeds $2,000,000; whether or not he operates as a partnership or corporation i.e. professional practice, and, if so, whether or not the net worth exceeds $2,000,000; whether the agency's actions were substantially unjustified; and whether or not circumstances exist that would make the award unjust; or whether or not the agency was a nominal party only. There were also no documents upon which the claim was predicated attached to the Fees and Costs Petition. in these respects, the Petition failed to comply with virtually all of Section 57.111(4)(b), Florida Statutes, and Rule 22I-6.035(1)(2), and (3), Florida Administrative Code. Tully timely filed a Response to Order to Show Cause wherein he acknowledged as true and accurate the dates as found in Finding of Fact 4, supra. Moreover, his Response concedes that pursuant to Section 57.111(4)(b)2, Florida Statutes, the application for an award of attorney's fees must be made within 60 days after the date that a small business party becomes a prevailing small business party, but his Response asserts that nothing in the applicable statute provides that an application for costs must be made within 60 days, and therefore at least his application for costs must be deemed timely. The Response further sets out an itemization of costs incurred and is sworn to by Tully's attorney of record. No leave to amend the Petition was granted by the Order to Show Cause.
The Issue The issue for consideration was whether the Respondent, Frank R. Kuiken, Jr., should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
Findings Of Fact At approximately 3:00 PM on August 30, 1989, Manatee County Sheriff's Deputy Michael Kenyon saw Respondent's wife, Michelle, driving their automobile in the city of Bradenton with a blue flasher posted on the dash board inside the windshield. Because the unauthorized use of such a light is prohibited by law, Deputy Kenyon stopped Ms. Kuiken and when he approached the car, noticed she had moved the light from the dashboard to the floor. When he asked her why she had such a light in the car, she replied that her husband, a private investigator, used it in the course of his business in emergency situations. Deputy Kenyon requested Respondent be contacted and come to the scene. When he arrived, Kuiken advised Kenyon that he was a private investigator and used the light only in cases of extreme emergency in the performance of those duties. He further related he had not yet had the opportunity to use it. Mr. Kuiken also indicated that in addition to being a private investigator, he was a process server appointed by two local judges, and a court officer. Deputy Kenyon attempted to verify Respondent's claim to being a court officer but was unable to do so. Upon request, Respondent refused to show a private investigator's license, but indicated he had a permit to carry a concealed weapon. Several days later, Mr. Eugene Blitch, an investigator with the Department of State's Division of Licensing, was contacted by the Bradenton Police Department regarding Mr. Kuiken's claim to being a private investigator, and requested to confirm the licensing status. Blitch's inquiry and search of official state records revealed that Kuiken was the holder of a concealed weapon permit but did not hold, does not now hold, and never has held a license as either a private investigator or a private investigative agency. There was no evidence presented with reference to the occupational license. Respondent's business card, which he gave to the Deputy Sheriff indicates he holds himself out, without qualification, as an "investigator" offering surety recovery, missing persons searches, and service of process services. He claims this card was not given out to the general public but only to attorneys and finance companies for whom he worked on a contract basis. On September 7, 1989, Mr. Blitch, in the company of a Manatee County detective, went to the Respondent's home in Bradenton where upon inquiry from Blitch, Respondent admitted he did not hold a license to do private investigative work. He also indicated he carried no liability insurance but claimed, however, that he did not work for the public and did not advertise or hold himself out to the general public as a private investigator. He indicated he worked for attorneys, as a process server, and as an employee of ITT Financial Services. Inquiry of the manager of this concern revealed Respondent was not an employee of the company but did security and investigative work for it on a contract basis from time to time. During his interview with Blitch, Respondent denied having admitted to the deputy that he was a private investigator, but the other evidence contradicts this and is found to be more credible. The evidence of record clearly indicates that Respondent held himself out as an investigator, and the hearsay statement of the ITT manager confirms this. Respondent asserted to Mr. Blitch that since he did no work for the general public and limited his activity solely to process serving, work for attorneys, and for ITT, he was not required to be licensed. When advised that his understanding was incorrect, he quickly agreed to do whatever was necessary to "get legal".
Recommendation Based on the foregoing Findings of Fact and conclusions of Law, it is, therefore: RECOMMENDED that the Respondent, Frank Robert Kuiken, Jr., be assessed an administrative fine of $250.00. RECOMMENDED this 11th day of April, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of April, 1990. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, Mail Station #4 Tallahassee, Florida 32399-0250 Frank Robert Kuiken, Jr. 5655 Tousley Drive Eau Claire, Michigan 49111 Hon. Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, John W. Moore, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as an independent contractor providing services to developmentally disabled persons. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on November 25, 1998, a DCFS committee denied the request. Petitioner is now barred from working in a position of special trust because of two disqualifying offenses. The first offense occurred on November 16, 1994, when Petitioner was arrested for possession of a controlled substance (cocaine), a felony, and possession of drug paraphernalia, a misdemeanor. On October 15, 1995, he entered a plea of nolo contendere. Under a pre-trial intervention program, he was placed on eighteen months probation, required to undergo random drug testing, and required to perform twenty-five hours of community service. The second offense occurred on November 25, 1995, when Petitioner, who was still on probation, was arrested for possession of a controlled substance (cocaine), a felony offense, and resisting arrest without violence, a misdemeanor. On January 18, 1996, he pled "no contest" to both offenses. Adjudication of guilt was withheld, and Petitioner was placed on two years community control to be followed by two years probation. He has successfully completed the community control phase of his sentence and will remain on probation for another nine months. From August 1996 until August 1997, Petitioner worked in Bay County for an independent support coordinator, Lorraine Bruce, who provided services for DCFS clients under a contract. He was forced to resign when a background screening disclosed the disqualifying offenses. While working for Bruce, Petitioner provided a variety of services to four developmentally disabled clients. Bruce considered Petitioner to be an outstanding employee and will quickly rehire him if an exemption is granted. Petitioner readily acknowledged his prior arrests and that his use of drugs was foolish and immature. He has completed around 215 hours of community service and a drug abuse course, and he has not used any drugs since 1995. As noted above, since his last arrest, Petitioner worked with mentally retarded clients for a year until he was disqualified. He now works in a restaurant. Petitioner enjoys working with developmentally disabled persons, and he desires an exemption so that he may be recertified by DCFS. He is heavily involved in church activities, and his pastor confirmed that Petitioner has contributed many hours to his church and community. In fact, Petitioner has been entrusted by the pastor with a set of church keys since he performs volunteer work at the church almost daily. Given the foregoing considerations, it is found that there is sufficient evidence of rehabilitation since Petitioner's last arrest in 1995, and that he will not present a danger to his clients if the request is approved. His request for an exemption should be approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 25th day of March, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1999. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John W. Moore 1410 New York Avenue Lynn Haven, Florida 32344 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, No. 252-A Tallahassee, Florida 32399-2949
