Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that Truitt's application for an unarmed (Class F) guard license be granted, but that his application for an armed (Class G) guard license be denied. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of April, 1979. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1979 COPIES FURNISHED: Roy L. Truitt, Sr. 129 NW 60th Court Miami, Florida 33126 Gerald B. Curington, Esquire Department of State The Capitol Tallahassee, Flordia 32304
Findings Of Fact Ernest Brown is a registered real estate salesman holding a registration issued by the Florida Real Estate Commission. Brown received notice of the instant hearing as required by the statutes and rules. His probation officer testified she had contacted him and he had advised her that he would not attend the proceedings. Brown was placed on probation with an adjudication of guilt withheld by the Circuit Court of Pinellas County, Florida, on January 25, 1989 (see Exhibit 2). Paragraph 10 of the conditions of probation requires that Brown serve 180 days in the Pinellas County Jail on weekends from 7:00 p.m. Friday until 7:00 p.m. Sunday. Because of the appeal of his case, Brown did not begin serving this jail term until August 24, 1989. He has served 72 of the 180 days according to the records of his probation officer. Brown is currently in the custody of the State's probation department.
Recommendation The Board's counsel advised the Hearing Officer after hearing that Respondent had surrender his license. This constitutes an ex parte communication of which notice is hereby given to all parties. This fact is immaterial to consideration of the matter at hand. The Board has long taken the position, quite correctly, that surrendering of a license did not impair jurisdiction to consider violations of its statutes by a licensee while licensed. Similarly, surrender of a license cannot terminate the Hearing Officer's consideration of the matter after hearing. The instant case was duly heard and the Recommended Order prepared prior to receipt of any pleadings relative to surrender by Brown of his license. At this point, the Board may accept surrender of the license and dismiss the Administrative Complaint, in which case Brown would be considered not to have had any disciplinary action against him, or the Board may enter its final order based upon the record and this Recommended Order. Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the license of Ernest Brown. DONE and ORDERED this 23rd day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mr. Ernest B. Brown 2027 Thirteenth Street, South St. Petersburg, Florida 33172
Findings Of Fact Respondent Pobst had been employed by Petitioner and had obtained permanent status in the career service as a half-time University Parking Patroller, at the time he transferred to the position of Motor Vehicle Operator (MVO) on Friday, April 18, 1986. At that time, he came under the supervision of Terry Fisher, Store Supervisor of the University's Central Receiving Department. The MVO position was full time, with regular hours of 8 a.m. to 5 p.m., and Pobst was on probationary status in that job classification at all times relevant to these proceedings. Prior to being hired in that position he had been counseled by Eugene Weber, Stores Manager (supervisor to Terry Fisher), concerning abuse of leave, but the emphasis was on sick leave abuses. On Monday, April 28, 1986, Pobst reported one hour late due to a weekend holdup, and immediately requested and received authorization from Fisher to take unpaid leave so as to obtain a copy of a report from the Tampa Police Department. Pobst had no annual leave available. When he transferred positions he was already in arrears for time off and already owed money for that time off. Fisher requested that Pobst telephone him later in the day. Respondent completed his business with the Tampa Police Department late in the day and did not need additional time. Nevertheless, he did not call Fisher because the work day was completed when he had the first opportunity to call in. Both Pobst and Fisher understood that Pobst would return to work no later than the beginning of the workday on Tuesday, April 29, 1986. Fisher would have granted additional leave on the same terms (unpaid leave with payroll deduction) had Pobst called in, however, Pobst never called in. Pobst did not report for work on Tuesday, April 29; Wednesday, April 30; Thursday, May 1; or Friday, May 2. From the time Respondent left Fisher on the morning of April 28 until the morning of Sunday, May 4, 1986, Respondent had no contact with his immediate supervisor or with any other individual in his chain of supervision at the University. Late the night of April 28, Pobst was injured in a fight. At 12:30 a.m. on April 29, Pobst was arrested for aggravated assault. The charge was ultimately dismissed by the Hillsborough County Circuit Court. However, he arrived at Hillsborough County Sheriff's Central Booking at 2:20 a.m., was booked at 4:54 a.m., and processed at 6:15 a.m. on April 29. From 2:20 a.m. until 6:15 a.m. on April 29, Pobst was either in a Booking/Releasing Section holding cell without telephones, or on a bench in the Receiving Area with two regular local-only telephones as well as two collect-only telephones that resemble pay telephones. He made one telephone call from a collect call telephone. He made that call to the information operator, in an attempt to get Terry Fisher's home telephone number. The call was refused by the information operator because it "was made from a collect call telephone." Respondent was not allowed to make a second telephone call at that time but was told by the officer in charge of him that he would have an opportunity later to make another call. In any case, Pobst would have been unsuccessful in getting Terry Fisher's home phone number because it was unlisted. He did not again ask to use the telephone for the remainder of April 29, 1986, either during business hours when he might have reached Fisher at work or after business hours. From 6:15 a.m. until approximately 1:00 p.m. on April 29, Respondent was in a Housing and Support Section holding cell consisting of three rooms: a dayroom with collect-only telephones that resemble pay telephones; a sleeping room without telephones; and a vestibule between the sleeping and dayrooms. This was cell 200C/2, which is one of several individual sleeping rooms opening onto a common dayroom with collect-only telephones operable from 7:00 a.m. until 11:00 p.m. Although the sleeping area and dayroom are normally kept locked, confined persons usually have free access to both areas 24 hours a day. However, there are times and circumstances in which the areas are separately locked, and confined persons do not have such free access. At approximately 1:00 p.m. on April 29, Respondent was moved to the infirmary for examination and on medical staff instruction was placed in cell 200C/2 "B", a lockdown cell for medical observation. This particular lockdown cell was intended for confined persons who were deemed to need psychiatric observation. In the psychiatric medical lockdown area, incarcerated persons normally are allowed out of their cells for one hour per day to take a shower, watch television, or make telephone calls. However, special circumstances or inappropriate behavior may result in an inmate being denied the opportunity to leave his cell on any given day. Respondent had no access to a telephone during the move, wait, or infirmary/dispensary visit. Although Pobst's testimony emphasized his physical injuries and confused state of mind resulting from the assault by third persons leading up to his arrest in the midnight hours of April 28-29, he also related that while awaiting medical examination on April 29, he engaged in a fight with three police officers who requested that he undress for the physical examination. It appears to be this belligerent attitude which resulted in his being confined in restraints thereafter. Respondent's candor and demeanor and various inconsistencies in his testimony do not render him credible on the issue of inability to contact his employer during the whole of the time prior to his being placed in restraints or the period after he was released therefrom. His testimony that he was so confused at all times that he could not ask for a phone is not believable in light of the police log that he was in "good" condition on May 2, the testimony of Officer Blackwood that even a very "bad" prisoner would get to use the phone or write a letter if he just asked to do so, and that the property inventory showed Pobst had available $.85 for stamps or a local phone call. For these same reasons, Respondent's testimony that he was not permitted to use the phone at any time is not credible. Respondent's father testified to Respondent's disheveled and beat-up appearance on Friday, May 2, but Respondent appears to have been capable of coherent conversation. Respondent did not visit a medical doctor until May 7, 1986, five days after his release, and then did so primarily for the purpose of obtaining a medical excuse in an attempt to be rehired. Pobst was first placed in restraints at some time on Wednesday, April 30, and was in and out of restraints that day and the next, Thursday, May 1. An individual is placed in medically-approved restraints if he is viewed by the staff as a danger to others, or if the medical staff believes that he is at risk to commit suicide. An individual in restraints may not be allowed out of his cell on any given day and in this condition he is not permitted to use the telephone. On Wednesday, April 30, Fisher advised Eugene Weber, Stores Manager, that Pobst had not reported for work or called in since their Monday conversation. On April 30, after telephoning at least four area hospitals, Fisher telephoned Hillsborough County Sheriff's Office Central Booking and was informed that Pobst was in jail for aggravated assault and that all inmates could make as many telephone calls as they wanted. Fisher reported this information to Weber who reported the same to his supervisor, Keith Simmons, Director of Procurement. 1/ On Thursday, May 1, Simmons telephoned Hillsborough County Jail Central to confirm Fisher's report that Pobst had access to a telephone and was told that all an inmate had to do was ask and that inmates are let out for just such purpose each day. In reliance on this information, Simmons contacted Roland Carrington, Director of Labor Management Relations, requested advice regarding the appropriate University response to Respondent's unauthorized absences, and was told it was appropriate to invoke the job abandonment rule. On Friday, May 2, Respondent Pobst was not in restraints at any time during the day, and his condition and attitude were both noted as "good" on the police log completed at 10:00 a.m. and 4:30 p.m. Respondent did not ask to use a telephone on Friday, May 2 until at least 5:00 p.m., at which time he telephoned his mother in Indiana and then waited in the dayroom for release. When Respondent was allowed to use the telephone on May 2, 1986, he instructed his mother to have his father call his employer to notify him of his whereabouts. She in turn telephoned his father, Robert Pobst, in Tampa. Robert Pobst called for his son at 8:25 p.m. and effected release on bond at 9:40 p.m. on Friday, May 2. After being released from jail at 9:40 p.m. on Friday, May 2, 1986, both Respondent Pobst and his father attempted to reach Respondent's superiors at the University of South Florida. Respondent also attempted to reach Terry Fisher at home, but did not have enough information to get in touch with the right person. On Sunday, May 4, Respondent reached Weber at home by telephone. Pobst explained the circumstances of his absence to Mr. Weber, and informed him he desired to report for work the following morning. Weber explained that Respondent's unauthorized absence was deemed as a resignation via job abandonment and that the paper work had already been processed. However, the true chronology is that upon Weber's notification Friday, May 2, that Pobst had again failed to appear or call that day, Simmons instructed his administrative assistant to prepare a letter of notification to Pobst. The letter provided that he was deemed to have resigned via abandonment. However, it was not until Monday, May 5, 1986, that Simmons actually mailed Pobst the notification of acceptance of his resignation via job abandonment by certified mail, return receipt requested. On Monday, May 5, 1986, before receiving the official notification of abandonment, Pobst reported to the University one hour before the beginning of the work day. At that time Pobst's request for reconsideration of his resignation via abandonment was declined by Simmons in reliance on information from the Sheriff's Department which contradicted Respondent's assertion that he was unable to contact the University during the whole of April 29 through May 2 inclusive. Terry Fisher had the authority to grant Pobst leave for the time he was incarcerated in the Hillsborough County Jail, and would have done so had Respondent given him a telephone call requesting such leave. On April 30, 1986, Terry Fisher, Eugene Weber, and Keith Simmons, all had knowledge that Respondent was incarcerated in the Hillsborough County Jail and had not appeared for work because he was physically unable to be present at work. Although each of Respondent's superiors knew that Respondent was incarcerated in the Hillsborough County Jail and was unable to be at work for that reason, none made any attempt to contact Respondent in order to gain direct information on his employment status or intentions. It was not demonstrated that any University supervisor had any animosity toward Pobst, and it appears that it was not Pobst's being in jail but his failure to call in and their belief that he could have called in and did not do so that influenced Pobst's superiors to invoke the resignation via abandonment rule on May 2. Mr. Weber specifically chose to invoke the rule because he had made a negative assessment of Pobst's credibility from previous absence excuses and because he relied on the telephone representations by law enforcement personnel that Pobst could have called at any time. Additionally, Weber, who was Fisher's superior, took into consideration that late April and early May was an especially busy time of year for Central Receiving because it was the end of the fiscal year and all University departments were receiving large orders in an attempt to exhaust their old budgets before claiming new ones. After May 5, Respondent made numerous efforts to regain his employment. He talked with Fisher, Weber, Simmons, and Roland Carrington in the University's Personnel Office. He requested his then-current position, OPS employment, and work he had performed prior to his transfer on April 18, 1986. Following his termination from employment Respondent made an application for Unemployment Compensation. Because the University of South Florida initially contested his eligibility, Respondent was required to appeal the initial denial of unemployment compensation. Thereafter, Respondent and the University of South Florida were parties before an appeals referee, who conducted a de novo evidentiary hearing. The issue before the appeals referee was whether Respondent "voluntarily left employment without good cause." In determining this issue, the appeals referee applied a test of "good cause" associated with "misconduct" as those words of art are defined or contemplated in Chapter 443 Florida Statutes, determined that Respondent had committed no misconduct, and awarded unemployment compensation.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that a Final Order be entered finding Respondent to have abandoned his position with the University of South Florida. DONE and RECOMMENDED this 10th day of April, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 10th day of April, 1987.
Findings Of Fact The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore RECOMMENDED: That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent. DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 13th day of December, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Benny R. Hardy Post Office Box 1014 Umatilla, Florida 32784 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The central issue in this case is whether Respondent should be terminated from employment with the school district.
Findings Of Fact On January 4, 1994, Respondent completed an applicant security check form for employment with the Petitioner. The form specified a series of questions related to past or pending criminal charges to which Respondent was to check either a "yes" box or a "no" box. On each occasion, Respondent checked the "no" box. At the conclusion of the form is a certification as follows: I certify that the above responses are true, complete, and correct to the best of my knowledge and are made in good faith. I understand that any incompleteness or false information on this form may be just cause for a rejection of my application for employment or dismissal in the event I am employed by the School Board of Palm Beach County. Respondent did not disclose that in 1987 she was charged with aggravated assault and possession of a weapon. As a result of the charges, Respondent was sentenced to one year probation, required to pay a fine and court costs, and fifty hours of community service. When Mr. Lachance learned of the results of the background search (which differed from Respondent's application), he met with Respondent who admitted the criminal charges but who alleged that she had believed them to be resolved. The recommendation was then made to the Board to terminate Respondent's employment as a bus driver.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That School Board of Palm Beach County, Florida enter a final order dismissing the Respondent from her employment with the school district in accordance with the Board action of April 7, 1995. DONE AND ENTERED this 12th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 12th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2884 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 5 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Lee M. Rosenberg, Esq. School District of Palm Beach County Office of the General Counsel 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406 Ms. Tina King 5030 Elcharo North West Palm Beach, Florida 33415 Dr. Bernard Shulman Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Dionaris Cabrera, (hereinafter "Petitioner Cabrera") the sole stock holder of Florida Sunset Shuttle, Inc., a Dissolved Florida Corporation, was correctly assessed a penalty for violating the workers' compensation laws of Florida, during the period of 2006 through 2008. Whether Petitioner, Florida Sunset Shuttle, Inc., (hereinafter "the old corporation") is responsible for providing workers' compensation coverage for its alleged employees, and whether the old corporation was properly noticed of the violation. Whether Petitioners or either one of them, are in violation of the Workers' Compensation Act during the relevant time period due to the failure to secure workers' compensation coverage for its employees. Whether Florida Sunset Shuttles and Charters, Inc., (hereinafter "the new corporation") is a successor entity of Florida Sunset Shuttle, Inc., or Dionaris Cabrera, d/b/a Florida Sunset Shuttle, Inc., pursuant to Chapter 440, Florida Statutes, and/or Florida Administrative Code Chapter 69L-6. Whether the Stop-Work Orders and amended penalties issued to Petitioner Cabrera and the old corporation were properly applied to the new corporation. Whether the Department of Financial Services, Division of Workers' Compensation (hereinafter "Respondent") is estopped from imposing a penalty on the new corporation due to a prior determination made by the investigator assigned to the file in 2006 and the detrimental reliance upon representations made to Ruben Cabrera and Jennifer Crain, who were representing the old corporation in the proceeding.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. PARTIES INVOLVED AND RESPONDENT'S ACTIONS Petitioner Cabrera is the sole owner and director of Petitioner Florida Sunset Shuttle, Inc., (the old corporation) a Florida Corporation. She founded the company in 2005. At the time of the hearing and at the time of the imposition of the Stop-Work Order, she was residing outside the United States, most likely in the Dominican Republic. At the time of the issuance of the first Stop-Work Order, the old corporation was administratively dissolved for failure to file its annual report. During the relevant time period, there is no evidence that Petitioner Cabrera was actively controlling day-to-day operations of either the old corporation or the new corporation. Ruben Cabrera and Jennifer Crain were employed by the old corporation, with Ruben Cabrera being the manager and Jennifer Crain being his assistant. Ruben Cabrera also held himself out as an officer of the old corporation. Ruben Cabrera and Jennifer Crain were not directors of the old corporation. Ruben Cabrera had managed the business operations of the old corporation since its creation in 2005. On November 13, 2007, Respondent's investigator, Lisette Sierra (Sierra), conducted a compliance check at the old corporation's worksite, located at 851 East Donegan Avenue, Kissimmee, Florida, to verify compliance with the workers' compensation statutes. Upon arrival at the worksite, Sierra observed that it consisted of a fenced lot with a trailer and several parked buses. At the worksite, Sierra personally spoke with Jennifer Crain and Ruben Cabrera. Petitioner Cabrera was not present. On and after November 13, 2007, Petitioner Florida Sunset Shuttle, Inc., did not carry workers' compensation for anyone associated with the corporation. On November 13, 2007, Respondent issued a Division of Workers' Compensation Request for Business Records to the old corporation. Although two documents were tendered, the records requested were not produced within the 5 business day time period specified in the request. On November 28, 2007, Respondent issued a second Request for Production of Business Records for Penalty Assessment Calculation (hereinafter "Request") directed to Petitioners, Cabrera and Florida Sunset Shuttle, Inc. The Request required Petitioners or either of them, to produce records related to bus drivers who performed services for the company during the specified period. On the same date, Respondent issued a "Stop-Work Order" to Petitioner Cabrera and the old corporation for failure to meet the requirements of Chapter 440, Florida Statutes, and the Insurance Code, ordering Petitioner Cabrera and the old corporation to cease all business operations and assessing a $1,000.00 daily penalty against Petitioner Cabrera and the old corporation, pursuant to Subsection 440.107(7)(d), Florida Statutes, for failure to comply. The Stop-Work Order and Request was posted on the work site on November 28, 2007. On November 30, 2007, Sierra was unable to serve the Stop-Work Order on the old corporation, via its registered agent or an officer. She served the Stop-Work Order and the Request by hand delivery on Jennifer Crain, Assistant Manager, at the company offices. On December 10, 2007, Respondent issued a subsequent Stop-Work Order and Order of Penalty Assessment. It was served on a representative of counsel for all of the Petitioners. The parties named on the first and second Stop-Work Order were "Dionaris Cabrera, d/b/a Florida Sunset Shuttle, Inc., and Florida Sunset Shuttle, Inc., a Dissolved Florida Corporation." Florida Sunset Shuttle, Inc., was found to be an administratively dissolved corporation at the time the Stop-Work Orders were issued. The old corporation continued to operate its business in violation of both Stop-Work Orders issued by Respondent. On December 17, 2007, Respondent issued an Amended Order of Penalty Assessment directed to Petitioner Cabrera and the old corporation, amending the penalty assessed to $346,349.58, pursuant to the formula listed in Sections 440.107 and 440.10, Florida Statutes. Since no business records were received from either Petitioner in response to the Request, the penalty was calculated by imputing the old corporation's gross payroll. After unsuccessful attempts to serve either Petitioner Cabrera or the old corporation, Respondent served the Amended Order, dated December 17, 2007, on an alleged employee of Petitioner Cabrera and/or the old corporation, name unknown, at the company offices on January 3, 2008. Petitioner Cabrera is the mother of Ruben Cabrera, the company manager. She is the sole stockholder, corporate officer, and registered agent listed for Florida Sunset Shuttle, Inc., in the Florida Secretary of State's records. There has not been any contact with Petitioner Cabrera during the course of Respondent's investigation. It appears that Petitioner Cabrera does not live in or around Orlando, Florida. According to Ruben Cabrera, Petitioner Cabrera was living in Santo Domingo, Dominican Republic, during the entire course of their investigation and this proceeding. Ruben Cabrera was the manager who operated the old corporation from its company offices in Kissimmee. He entered into arrangements to provide shuttle bus services for guests to tourist destinations with several hotels in the Kissimmee/Orlando area. While negotiating and signing these contracts with hotels, he held himself out to be an officer of the old corporation. It was unclear from the evidence when the old corporation closed business operations, but it appears to have done so prior to January 1, 2008. On November 30, 2007, Ruben Cabrera incorporated the new corporation. He was named the sole owner, corporate officer, and registered agent. The principal place of business was the same as the worksite of the old corporation, and the addresses of the registered agent and corporation's sole officer were the same as well. On January 30, 2008, Respondent served a 2nd Amended Order of Penalty Assessment (hereinafter "2nd Amended Order") directed to Petitioner Cabrera and the old corporation, on Jennifer Crain, Assistant Manager, at the company office, assessing a $406,349.58 penalty on these two Petitioners. The increase in penalty was due to the allegation that the old corporation continued to operate in violation of the Stop-Work Order. In addition, none of the parties listed on the Penalty Worksheet, attached to the 2nd Amended Order, had current, valid exemptions from workers' compensation coverage. An exemption from workers' compensation allows the exemption holder to be exempt from having to secure the payment of workers' compensation on behalf of himself or herself. None of the persons used to calculate the penalty had workers' compensation exemptions. The penalty period began on November 20, 2006, because a prior investigation by Respondent found the old corporation to be in compliance only up to that date. Utilizing the Scopes Manual published by the National Council on Compensation Insurance and adopted by Florida Administrative Code Rule 69L-6.021, as guidance, Respondent determined that Petitioner Cabrera and/or the old corporation's activities involved clerical workers and bus drivers. Thus, she assigned the class codes 8810 and 7382, respectively, to the old corporation's activities. On January 30, 2008, Respondent also served an Order Applying Stop-Work Order and Amended Order of Penalty Assessment to Successor Corporation or Business Entity (hereinafter "Order Applying") on the new corporation. The Order Applying transferred the effect of the Stop-Work Order and Amended Order issued to the old corporation to the new corporation, based on the allegation that the new corporation was a successor corporation, pursuant to Subsection 440.107(7)(b), Florida Statutes. Ruben Cabrera, the owner/operator, transferred ownership and control of the new corporation to Jennifer Crain on January 9, 2008. Jennifer Crain became the registered agent, sole owner, and officer of the new corporation. It hired some of the drivers who previously worked for the old corporation and put them on salary under the new corporation. The new corporation leased new vehicles and served some of the same routes as the old corporation from the same company location. The new corporation properly carried workers' compensation insurance when served with the Order Applying. Therefore, the new corporation was in compliance with Subsection 440.10(1)(a), Florida Statutes, at the time Jennifer Crain took over ownership and control of the new corporation. COMPANY OPERATIONS Drivers for the old corporation submitted applications for employment to the company, prior to being hired. However, drivers signed contracts with the old corporation which stated that they were independent contractors and not employees, and no deductions were taken out their pay. 1099 Forms were issued at the end of the year. Drivers for the old corporation did not pay insurance on the vehicles they used for business purposes. Drivers for the old corporation were not responsible for the expenditures associated with repair or maintenance of the vehicles used by the drivers for business purposes. The corporation paid for the insurance. Drivers for the old corporation did not pay any fees or charges to the company for use of the vehicles. Drivers for the old corporation paid their own admission fees for entry into amusement parks, or other incidental expenses. Drivers for the old corporation wore black pants and a white shirt as a standard uniform. Drivers for the old corporation were paid according to the length of time for which they worked each day. Drivers for the old corporation did not own the vehicles they used for business purposes. They did not pay the old corporation for use of the vehicles in carrying out the contracts of the old corporation. The vehicles were leased under contract by the old corporation. Drivers for the old corporation did not individually contract with hotels for services, but carried out the contracts entered into by the old corporation. The old corporation did not submit any invoices for services rendered by its drivers. There is no evidence that the drivers maintained separate businesses. Payments to drivers were made to individuals rather than to their "businesses." Drivers for the old corporation were paid by the full day or half day, according to the span of time they worked. Ruben Cabrera entered into contracts with clients of the old corporation. He signed the contracts as either manager or as president of the old corporation. Drivers for the old corporation regularly visited the old corporation's clients to pick-up or drop-off passengers in the course of their employment. The old corporation's contract with at least one hotel refers to the old corporation's drivers as "employees." On June 16, 2008, Respondent issued a 3rd Amended Order of Penalty Assessment directed to Petitioner Cabrera and the old corporation, reducing the fine assessed to them to $131,504.60. The penalty was reduced after Respondent received the old corporation's business records and was able to use them to calculate a penalty. The old corporation received payment for its services from multiple businesses in the Kissimmee/Orlando area. The old corporation's records do not specify who, if any, of the drivers paid by the old corporation are independent contractors. The 3rd Amended Order of Penalty Assessment was served at the DOAH on counsel for the parties. Following a hearing, the Motion to Amend Order of Penalty Assessment was granted by the undersigned ALJ, and this matter proceeded to final hearing. PRIOR INVESTIGATION BY RESPONDENT On September 12, 2006, Respondent initiated an investigation into the alleged violation of the workers' compensation laws of Florida by Petitioner, Florida Sunset Shuttle, Inc. The investigating agent for Respondent, Ray Reynolds (Reynolds), issued a Stop-Work Order on September 15, 2006, for failure to obtain coverage for its employees. It is alleged that in a meeting with Ruben Cabrera, his attorney at the time, and Jennifer Crain, held on September 15, 2006, Reynolds reviewed the contracts with the drivers, and, apparently based on those facts alone, agreed that the bus drivers who worked for Florida Sunset Shuttle, Inc., were independent contractors. He advised the parties of such findings. However, on September 19, 2006, an Amended Order of Penalty Assessment was issued assessing the corporation a penalty of $2,084.09 for the violation. Florida Sunset Shuttle, Inc. did not challenge the findings of Respondent that a violation had occurred, and voluntarily paid the fine for failing to provide coverage for those employees named. It also produced proof of workers' compensation coverage for nine employees, which included Ruben Cabrera and Jennifer Crain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Financial Services, Division of Workers' Compensation, enter a final order dismissing the "Stop- Work Order and Order of Penalty Assessment" directed to Dionaris Cabrera, d/b/a Florida Sunset Shuttle, Inc.; The Department of Financial Services, Division of Workers' Compensation, enter a final order upholding the "Stop- Work Order and Order of Penalty Assessment" and its successor orders directed against Petitioner Florida Sunset Shuttle, Inc., a dissolved Florida corporation; and that The Department of Financial Services, Division of Workers' Compensation, enter a final order upholding the "Order Applying Stop-Work Order and Amended Order of Penalty Assessment to Successor Corporation or Business Entity" against Florida Sunset Shuttles and Charters, Inc., and imposing a penalty of $131,604.60. DONE AND ENTERED this 8th day of December in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 8th day of December, 2008.
Findings Of Fact Michael A. Doub was employed as a correctional officer I at DeSoto Correctional Institution, Department of Corrections. He held this position from October 3, 1986 until he was determined to have abandoned his position on June 8, 1989. During this period, Doub's work performance had been rated at the "achieves standards" level. Doub had in excess of twenty (20) days of accumulated leave credits available for use at the time of his separation from employment with the Department. On June 4, 1989, Officer Doub was arrested by the Hardee County Sheriff's Department on the charge of sexual battery. Doub was taken to the Hardee County Jail where he was confined until he could post appropriate bail. Doub was scheduled to work from 8:00 a.m. to 4:00 p.m. on June 4, 1989. On June 4, 1989, DeSoto Correctional Institution, specifically Lieutenant James Jacobs, was notified by Sergeant J. Krell of the Hardee County Sheriff's Department of Doub's arrest, the charges pending against him and his confinement at the Hardee County Hail pending the posting of appropriate bail. Lieutenant Jacobs is Officer Doub's immediate supervisor. This contact was not initiated at Officer's Doub's request. Officer Doub was aware the Sheriff's Department had notified the Institution of his whereabouts and situation. Doub did not contact the Institution in order to specifically request that he be granted leave pending his release from jail. On June 12, 1989, Officer Doub was released from the Hardee County Jail after posting bail. On the same date, he received the letter of abandonment from DeSoto Correctional Institution. On June 12, 1989, Officer Doub contacted DeSoto Correctional Institution seeking permission to return to work. This requested [sic] was denied based on the letter of abandonment. Thereafter, Doub filed a request for review of the decision of the Institution finding him to have abandoned his position. The criminal charge of sexual battery pending against Officer Doub was withdrawn by the State Attorney of the Tenth Judicial Circuit, in and for Hardee County, Florida.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Petitioner be reinstated as a Correctional Officer I, as he did not abandon his position within the Career Service System for three consecutive workdays. DONE and ENTERED this 29th day of November, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1989. COPIES FURNISHED: Gene "Hal" Johnson, Esquire 300 East Brevard Street Tallahassee, Florida 32301 Perri King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Ms. Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 =================================================================
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
