Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Mitchell H. Abelman, has filed a claim against the bond for $389.00 alleging that Passport failed to perform on certain contracted services. Because the relevant events occurred some three or four years ago, many of the details concerning this transaction are somewhat vague. It is clear, however, that in response to a solicitation call, on August 15, 1990, petitioner purchased a travel certificate from Executive Travel, Inc., a Connecticut telemarketeer, authorized to sell travel certificates on behalf of Passport. The certificate entitled the holder to a five-day, four-night trip for two to the Bahamas, plus four nights' lodging in Daytona Beach and Orlando, Florida. For this, petitioner agreed to pay $389.00 through a charge to his credit card payable to the telemarketeer. The certificate carried the name, address, and logo of Passport. Prior to purchasing the certificate, petitioner was never told that in order to take the trip, he must pay additional charges. Had he known this, he would not have purchased the certificate. A travel certificate, video, and instructions were mailed by Passport to petitioner around August 22, 1990. The certificate clearly stated that it expired in one year, or on August 27, 1991. The instructions stated that in order to reserve travel dates, the traveler must return the certificate to Passport with the requested travel dates at least 75 days prior to the traveler's departure. Petitioner says he did not open up his mail from Passport for a considerable period of time and thus was initially unaware of these restrictions. On an undisclosed date, petitioner telephoned a representative of Passport and requested confirmation of certain travel dates. Although these dates were apparently more than a year after the certificate was issued, a Passport representative verbally approved the dates but told him that that in order to reserve those dates, he must send in an additional $90.00 for port charges, taxes, and meals on the ship. Petitioner refused to pay any more money since he had not been told this when he purchased the certificate. Therefore, he never returned the travel certificate to confirm his reservation. When petitioner telephoned a Passport representative a second time concerning the use of his certificate, he was told that his travel certificate had expired. He was offered the right to use the Florida portion of his trip but only if he paid a $50.00 deposit. Petitioner declined to do so and later filed this claim for a refund in the amount of $389.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and he be paid $389.00 from the bond. DONE AND ENTERED this 13th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of December, 1994. COPIES FURNISHED: Mitchell H. Abelman 507 Chestnut Avenue Los Angeles, California 90042 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue in this case is whether the Respondent, Michael Crudele, should be disciplined for alleged violations of the statutes and rules governing the conduct of insurance agents.
Findings Of Fact The Respondent, Michael Crudele, is currently eligible for licensure and is licensed in Florida as a life insurance agent and as a life and health insurance agent. The Respondent was the agent-of-record on two American Life and Casualty Insurance Company (American Life) annuities purchased by Mary Clem, one in the face amount of $30,000 dated October 28, 1992, and the other in the face amount of $20,000 dated December 28, 1992. Clem was 84 years old at the time and a widow. The annuities represented more than 80 percent of her life savings. The Respondent became agent-of-record on these annuities at the request of Charles Perks, a good friend and former fellow Metropolitan Life agent. Clem had been an insurance customer of Perks since approximately 1985. When Clem complained to Perks that "the bottom fell out of interest" on her certificates of deposit, he suggested the American Life annuities as a safe alternative that paid higher interest. But Perks was not an authorized agent for American Life, so he asked the Respondent to participate in the sales and split the commissions. In 1992, the Respondent became involved in the Zuma Engineering Co., Inc., a startup tire recycling venture. After being introduced to Zuma, the Respondent became very enthusiastic about its prospects. He invested $30,000 in Zuma, received stock in return for his investment, and became a thirty percent owner. He also became involved in all aspects of the startup business, from promoting the business to the public, to raising capital from and working with private investors, to cleaning up Zuma's recycling facility. He understood that he was a corporate director, but corporate filings with the Secretary of State indicate that he was a vice-president from October 27, 1993, until March 20, 1994. The Respondent not only solicited investors himself, he participated in recruiting a sales force. As part of this effort, he recruited his friend Charles Perks. In late 1993 and early 1994, Perks and the Respondent approached Mary Clem to solicit her investment in Zuma. It is not clear from the evidence how the solicitation of Mary Clem proceeded. It is believed that Clem may have initially contacted Perks around the time of the anniversary date of the $30,000 annuity to complain that she had been notified of a drop in the interest rate paid by the annuity. Mary Clem received a guaranteed 5.75 percent interest, plus a one percent interest "bonus" for a total of 6.75 percent interest during the first year of her two American Life annuities. The "bonus" interest automatically terminated at the end of the first year. In addition, the evidence was that the standard interest guarantee decreased to five percent starting with the second year. It is not clear when Clem received notice of the decrease in the interest guarantee or whether she received notice from American Life as to the elimination of the interest "bonus," but it is found that by December 2, 1993, Clem knew the interest rate on her $30,000 annuity was being decreased to five percent for the second year of the annuity. It is possible that she also knew by then that the interest on her $20,000 annuity was being decreased to five percent as well. Perks saw Mary Clem's dissatisfaction with the American Life annuities as an opportunity to sell Zuma promissory notes to her. On or about December 2, 1993, Charles Perks approached Mary Clem and sold her a $10,000 promissory note issued by Zuma. On its face, the promissory note was dated December 3, 1993, and paid twelve percent interest, with a single balloon payment of principal and interest due on June 3, 1995. The evidence was that the Respondent did not participate in this transaction on December 2, 1993. Mary Clem does not recall, and both Perks and the Respondent testified that the Respondent was not present. The Respondent testified that he was not even aware of this $10,000 Zuma note until the Department's Order of Emergency Suspension and Administrative Complaint on or about July, 1996, but this testimony is rejected as not being credible. It is found that the Respondent knew about Clem's purchase of the $10,000 promissory note either on December 2, 1993, or soon thereafter. It is found that by December 2, 1993, or shortly thereafter, Clem complained to both Perks and the Respondent about the interest on her annuities. It is found that all three of them discussed Zuma promissory notes as an alternative investment. Contrary to the Respondent's testimony, it is found that, if he did not already know about Clem's purchase of the $10,000 Zuma promissory note by then, the Respondent would have learned of the $10,000 Zuma promissory note during these discussions. It also is found that, based on those discussions, Clem decided to surrender her $20,000 annuity and use the money to buy Zuma promissory notes. It is found that Perks and the Respondent helped Clem with the surrender of her $20,000 annuity. It also is found, contrary to the Respondent's testimony, that Perks and the Respondent assisted in arranging for Clem to be able to purchase a Zuma promissory note in the face amount of $20,000 for the net cash surrender value of the $20,000 annuity, after deduction of premium tax and surrender penalty. When American Life was notified of Clem's desire to surrender the $20,000 annuity, the company contacted the Respondent and asked him to "conserve" the annuity, i.e., dissuade Clem from surrendering it. It is found that, if he did not already know about it by then, the Respondent would have learned of Clem's intentions to buy Zuma promissory notes when he contacted her on behalf of American Life to comply with American Life's request that he attempt to conserve the annuity. It also is found that, if he did not already know about Clem's purchase of the $10,000 Zuma promissory note, he would have learned of the $10,000 Zuma promissory note at this time. By letter dated January 24, 1994, American Life responded to Clem's request to surrender her $20,000 annuity. American Life's letter advised Clem that she was entitled to principal and $69.67 in interest, less premium tax in the amount of $213.69 and surrender charges in the amount of $1,625.65, for a net of $18,230.33. A check for the net amount was enclosed. A copy of American Life's January 24, 1994, letter was sent to the Respondent as the agent-of-record. On or about February 1, 1994, Perks and the Respondent went to Clem's home to complete the purchase of a $20,000 Zuma promissory note. The Respondent testified that, since all of the arrangements had been made in advance, the Respondent's role in the transaction was solely as "corporate director and verifier" on behalf of Zuma; however, the Respondent also would receive $900 of the $2,000 commission paid by Zuma on the transaction. Meanwhile, his additional role as American Life's agent required him to attempt to "conserve" the annuity policy. At one point, the Respondent testified that, as "corporate director and verifier," he inquired into Clem's assets (presumably to ascertain if the investment was appropriate for her). But he also testified that he assumed her assets were unchanged from 1992, raising a question as to whether the Respondent undertook any inquiry into Clem's assets on February 1, 1994, at all. At another point, the Respondent testified that he understood Mary Clem to have $200,000 in assets. See Department Exhibit 6. But, if so, those assets consisted of her home, the annuities and the $10,000 Zuma promissory note. It is found that the Respondent had no reason to believe she had any other assets. The Respondent also testified that he did not determine from his alleged inquiry into Clem's assets, and did not know, that Clem already had purchased a $10,000 Zuma promissory note. As previously found, it is considered incredible that the Respondent did not already know by February 1, 1994, that Clem had purchased the $10,000 Zuma promissory note; it is all the more incredible that he would not have learned of it from a diligent inquiry into Clem's assets for purposes of determining the appropriateness of the $20,000 Zuma investment. Mary Clem testified that the Respondent and Perks touted the safety of the Zuma investment as well as the higher interest it paid. The Respondent testified that, although acting in the conflicting roles described in the preceding finding, he discussed the differences between the two investments, including the risk of the Zuma investment. The Respondent testified that he read to Mary Clem from a written disclosure statement that defined Zuma's promissory notes as being a "risk investment," but no written disclosure statement was introduced in evidence. In any event, the "verification" was a mere formality; as the Respondent knew full well, Clem already had decided to buy the promissory note. Clem wrote a personal check in the amount of $18,230, and Perks and the Respondent gave her Zuma's $20,000 promissory note bearing twelve percent interest. The note was erroneously dated February 1, 1993, and erroneously stated on its face that the single balloon payment of principal and interest was due on February 1, 1995. The note was supposed to have a 24- month term from February 1, 1994, to February 1, 1996. (This discrepancy would lead to problems later. See Findings 32-33, infra.) In view of the conflict of interest inherent in the Respondent's multiple roles in the transaction, it is found that the Respondent did not make a good faith inquiry into appropriateness of the Zuma investment for Mary Clem and did not fully disclose the risk associated with it, as compared to the American Life annuity. If the Respondent disclosed the risk, it is found that he did not do so fully and clearly, again probably due to the conflict of interest inherent in his multiple roles. Neither Mary Clem nor her late husband had ever invested in any stocks, mutual funds or even bonds. Before Mary Clem invested in the American Life annuities, she and her late husband always invested in certificates of deposit. While it is true that Clem wanted higher interest than she was getting on her annuities, she also wanted safety and security. It is found that, if the Respondent had fully and completely disclosed the risk of investing in Zuma promissory notes, Mary Clem would not have invested in them. Mary Clem also surrendered her $30,000 American Life annuity and used the money she received to buy another Zuma promissory note. The Respondent claimed not to have known anything about the third Zuma note, and the Department was not able to prove that he did. It is not clear exactly when Clem decided to surrender her $30,000 annuity and buy a third Zuma note. It was before March 3, 1994, the date of the American Life letter responding to Clem's request to surrender her $30,000 annuity. American Life's letter advised Clem that she was entitled to principal and $16.04 in interest, less premium tax in the amount of $324.71 and surrender charges in the amount of $2,474.92, for a net of $27,216.41. A check for the net amount was enclosed. As with Clem's request to surrender her $20,000 annuity, American Life contacted the Respondent and asked him to try to "conserve" the annuity. The Respondent also received a copy of American Life's March 3, 1994, letter as the agent-of- record. The Respondent admitted that he telephoned Clem on or about February 28, 1994, to try to conserve the annuity but that Clem was adamant. He claimed that Clem did not tell him what she intended to do with the money and that he did not ask. The meeting at which Clem bought the third Zuma promissory note took place on March 10, 1994. Mary Clem thought the Respondent was there but could not swear to it. Perks also testified that he thought the Respondent was there. The Respondent testified that he definitely was not there and did not know the transaction took place. By that time of the meeting on March 10, 1994, the Respondent had become suspicious and distrustful of Zuma's principals. They had diluted his thirty percent share of the company to a mere 0.3 percent. In addition, the Respondent did not think that the principals were following the business plan they had "sold" the Respondent, and which the Respondent in turn had "sold" to private investors, including Mary Clem. By early March 1994, the Respondent began to take steps to attempt to protect the investors in Zuma, including himself, and force Zuma to follow its business plan. Eventually, he emptied Zuma's accounts and placed the funds in the trust account of the lawyers he hired to sue Zuma and its principals to enjoin them to follow the business plan. The court ruled against the Respondent and required him to return the money to Zuma. The Respondent paid his lawyers' fees out of his own pocket. Based on the timing of events, it seems probable that the Respondent did not meet with Perks and Clem on March 10, 1994. By that time, he was becoming deeply involved in his dispute with Zuma and its principals. It is less clear that the Respondent was completely ignorant of Clem's intention to use the money from the surrender of the $30,000 American Life annuity to buy a third Zuma note, but he may well have lost track of Mary Clem and her intentions in the midst of his dispute with Zuma and its principals. It had been arranged before the March 10, 1994, meeting for Clem to be able to purchase a Zuma promissory note in the face amount of $30,000 for the net cash surrender value of the $30,000 annuity, after deduction of premium tax and surrender penalty. The Respondent denied participating in making these arrangements or having any knowledge of them. A similar arrangement already had been made for the $20,000 annuity and Zuma note, and it is conceivable that Perks did not require the Respondent's participation to arrange it for the $30,000 annuity and Zuma note. It is found that the evidence did not prove the Respondent's participation. On March 10, 1994, Clem wrote a personal check in the amount of $27,2126.41, and received Zuma's $30,000 promissory note dated March 10, 1994. On its face, the note paid twelve percent interest, with quarterly payments of $900 interest and the principal payable on March 10, 1996. The Respondent contacted Mary Clem in June or July, 1994, to inquire about her Zuma investment. Clem told him everything was fine. In December 1994, the notes were revised to show Mary Clem's daughter as a beneficiary on the notes in the event of Clem's death. The revised $20,000 note preserved the erroneous issuance and due dates. See Finding 21, supra. The $900 interest payment due on the $30,000 Zuma note on March 1995, was seriously past due. In addition, no payments were made on the $20,000 note. On April 1, 1995, the $20,000 note was renewed upon payment of $6,200 interest and penalties. Under the renewal note, monthly interest payments of $200 were due, and a balloon payment of principal and remaining interest was due on September 1, 1995. By mid-1995, Zuma was in default again, and Clem received no payments after August 8, 1995. Zuma paid Clem a total of just $23,400 on the three promissory notes. The Respondent conceded that there was a high risk of losing one's entire investment in Zuma and that someone investing in Zuma had to be prepared to lose the entire investment. He also conceded that Mary Clem should not have invested the bulk of her life savings in Zuma. He also conceded that it would have been significant to know, and he should have wanted to know, the extent of Clem's investment in Zuma before increasing her investment in Zuma.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order: (1) finding the Respondent, Michael Crudele, guilty of violating Sections 626.611(7), 626.621(3), and 626.621(6), Florida Statutes (1993); and (2) suspending his license and eligibility for licensure as a life insurance agent and as a life and health insurance agent for six months. RECOMMENDED this 6th day of January, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cecile M. Haake, has filed a claim against the bond in the amount of $398.00 alleging that Passport failed to perform on certain contracted services. On December 24, 1990, petitioner responded to a newspaper advertisement promoting a five-day, four-night cruise to the Bahamas for $199.00 per person. The advertisement was run by Travel Partners International (TPI), a telemarketeer selling travel certificates on behalf of Passport. Petitioner purchased a certificate authorizing two persons to take the cruise. For this, she paid $398.00. Shortly thereafter, petitioner received a package with a reservation request form. The form carried the name, address and telephone number of Passport. It should have contained an issue date and the name of the sponsor, but TPI erroneously left that information blank. Ordinarily, a certificate would expire one year after the issue date. Petitioner was not told this when she agreed to purchase the package. Around February 20, 1992, petitioner returned the reservation request form to Passport with a requested travel date of May 1, 1992. On February 26, 1992, Passport returned the form and advised petitioner that "your reservation form was not completed by your sponsor." She was told to have TPI complete the form, and resubmit it with her requested travel dates. By now, however, TPI had gone out of business. Petitioner accordingly filled in TPI's name in the space for the sponsor, and she inserted an issue date of March 15, 1991. This meant her certificate would expire on March 15, 1992, or less than a month later. She again returned the form to Passport. Since her requested travel dates were more than a year after the issue date, Passport declined to accept the reservation. Although in some cases Passport offered to extend certificates for an additional year for a $50.00 fee, there is no evidence that Passport did so in this case. When petitioner requested a refund of her money, Passport's successor corporation, Incentive International Travel, Inc. (Incentive), declined to issue a refund on the ground the package was purchased from TPI and not Passport, and Passport had never received any money from the telemarketeer. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $398.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of January, 1995. COPIES FURNISHED: Cecile M. Haake 7254 Quail Meadow Road Charlotte, North Carolina 28210 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue The issue for determination is whether Petitioner should receive her lottery prize winnings of $2,500.
Findings Of Fact On June 17, 1996, Gussie Mae Dempson (Ms. Dempson) won a lottery prize in the amount of $2,500. By letter dated June 18, 1996, the Department of Health and Rehabilitative Services, now the Department of Children and Family Services (Children and Family Services) notified the Department of the Lottery (Lottery) that, among other things, Ms. Dempson was indebted to Children and Family Services in the amount of $4,622, as of June 18, 1996. Due to being notified of the debt owed by Ms. Dempson to Children and Family Services, the Lottery forwarded Ms. Dempson's lottery prize winnings to the Department of Banking and Finance, Office of the Comptroller (Banking and Finance). By letter dated July 5, 1996, the Banking and Finance notified Ms. Dempson that, among other things, her entire lottery prize winnings were being withheld due to the debt owed by her to Children and Family Services and that all of the winnings would be applied to the debt. The debt owed by Ms. Dempson to Children and Family Services originates from two accounts for Aid to Families with Dependent Children (AFDC) and two accounts for Food Stamps. AFDC Account No. 31-01057-52 Ms. Dempson was determined eligible for AFDC by Children and Family Services on AFDC Account No. 31-01057-52. She received AFDC for numerous months, including the months of October 1976, December 1976, February 1997 through July 1997, and January 1978, being issued allotments ranging from $119 to $88 per month. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "client error" in the amount of $753. For October 1976, Ms. Dempson received $119, but was eligible for $0, resulting in an over-issuance of $119. For December 1976, Ms. Dempson received $88, but was eligible for $78, resulting in an over-issuance of $10. For February, March, April, and May 1977, Ms. Dempson received $88 per month, but was eligible for $0, resulting in an over-issuance of $88 per month or $352. For July 1977, Ms. Dempson received $92, but was eligible for $0, resulting in an over-issuance of $92. For January 1978, Ms. Dempson received $92, but was eligible for $0, resulting in an over-issuance of $92. Ms. Dempson was notified of the overpayment, her right to dispute the overpayment, and her responsibility for the overpayment. She made repayments to Children and Family Services from February 8, 1980 through April 20, 1981. Ms. Dempson's debt to Children and Family Services on this account was reduced to $333. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $753 in AFDC. AFDC Account No. 31-01057-53 Ms. Dempson was subsequently determined eligible to receive AFDC by Children and Family Services on AFDC Account No. 31-01057-53 for numerous months, including the months of April 1992 through December 1992. She received allotments of $180 per month from April through November, and two allotments in December for $95 and $180. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "agency error" in the amount of $1,715. For the months of March 1992 through November 1992, Ms. Dempson received $1,620, but was eligible for $0, resulting in an over-issuance of $1,620. In December 1992, Ms. Dempson received $275, but was eligible for $180, resulting in an over- issuance of $95. As a result, Ms. Dempson's total over-issuance for March 1992 through December 1992 was $1,715. By letter dated January 28, 1994, Children and Family Services notified Ms. Dempson, among other things, of the overpayment, her right to dispute the overpayment, and her responsibility of repayment. The letter was mailed to the last address provided by Ms. Dempson. No response was received by Children and Family Services. By a second letter dated April 4, 1994, Children and Family Services notified Ms. Dempson, among other things, of the overpayment and of the overpayment being a debt for which she was responsible for paying. The letter was mailed to the same address as the first letter in that no change in address had been provided to Children and Family Services by Ms. Dempson. Again, no response was received. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $1,715 in AFDC. Since the notification letters, Children and Family Services has recouped some of the debt from subsequent AFDC checks to Ms. Dempson. Ms. Dempson does not recall receiving and endorsing the AFDC checks for the months of March 1992 through December 1992, and, therefore, denies receiving and endorsing the checks. The evidence is sufficient to support a finding and a finding is made that Ms. Dempson received and endorsed the checks.2 Food Stamp Account No. 31-01057-42 Ms. Dempson was determined eligible for Food Stamps by Children and Family Services on Food Stamp Account No. 31-01057- She received Food Stamps for numerous months, including the months of February 1991 through June 1991, November 1991 through January 1992, and October 1992 through December 1992. She received allotments ranging from $143 to $221 per month. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "client error" in the amount of $1,278. Two separate instances of over-issuance had occurred on this account. One instance resulted in an over-issuance of $935 for the months of February 1991 through June 1991, as well as the months of November 1991 through January 1992. Another instance resulted in an over-issuance of $343 for the months of October 1992 through December 1992. For February 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $90, resulting in an over-issuance of $111. For March 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $83, resulting in an over-issuance of $118. For April 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $118, resulting in an over-issuance of $83. For May 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $32, resulting in an over-issuance of $169. For June 1991, Ms. Dempson received $201 in Food Stamps, but was eligible for $83, resulting in an over-issuance of $118. For November 1991, Ms. Dempson received $221 in Food Stamps, but was eligible for $77, resulting in an over-issuance of $144. For December 1991, Ms. Dempson received $221 in Food Stamps, but was eligible for $136, resulting in an over-issuance of $85. For January 1992, Ms. Dempson received $213 in Food Stamps, but was eligible for $106, resulting in an over-issuance of $107. For October 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $0, resulting in an over-issuance of $143. For November 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $33, resulting in an over-issuance of $110. For December 1992, Ms. Dempson received $143 in Food Stamps, but was eligible for $53, resulting in an over-issuance of $90. Ms. Dempson was notified of the over-issuance, her right to dispute the over-issuance, and her responsibility for repayment. Through automatic deductions in her Food Stamps, Ms. Dempson has been repaying the over-issuance since March 1994. The automatic deduction began at $11 a month in her Food Stamp allotment until June 1994 when the deduction became and is currently $10 a month. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $1,278 in Food Stamps. Food Stamp Account No. 31-01057-43 Ms. Dempson was determined eligible for Food Stamps by Children and Family Services on Food Stamp Account No. 31-01057- She received Food Stamps for numerous months, including the months of August 1992, October 1992 through December 1992, and January 1993 through June 1993, being issued allotments ranging from $203 to $292 per month. After issuance of the allotments, a review by Children and Family Services determined that Ms. Dempson had received an over-issuance through "agency error" in the amount of $1,692. For August 1992, Ms. Dempson received $240 in Food Stamps, but was eligible for $0, resulting in an over-issuance of $240. For October 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119. For November 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119. For December 1992, Ms. Dempson received $262 in Food Stamps, but was eligible for $143, resulting in an over-issuance of $119. For January 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $149, resulting in an over-issuance of $143. For February 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $97, resulting in an over-issuance of $195. For March 1993, Ms. Dempson received $292 in Food Stamps, but was eligible for $109, resulting in an over-issuance of $183. For April 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $10, resulting in an over-issuance of $193. For May 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $10, resulting in an over-issuance of $193. For June 1993, Ms. Dempson received $203 in Food Stamps, but was eligible for $15, resulting in an over-issuance of $188. By letter dated March 11, 1994, Children and Family Services notified Ms. Dempson, among other things, of the over- issuance, her right to dispute the over-issuance, and her responsibility for repayment of the over-issuance. The letter was mailed to the last address provided by Ms. Dempson. No response was received by Children and Family Services. An inference is drawn and a finding is made that Ms. Dempson did not dispute the over-issuance of $1,692 in Food Stamps. Outstanding Debt As of the date of the hearing, August 15, 1997, the total amount of the debt owed by Ms. Dempson to Children and Family Services was $4,473, representing AFDC Account No. 31- 01057-52 at $333, AFDC Account No. 31-01057-53 at $1,583, Food Stamp Account No. 31-01057-42 at $865, and Food Stamp Account No. 31-01057-43 at $1,692.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance, Office of the Comptroller enter a final order providing for payment to the Department of Children and Family Services of the lottery prize winnings of $2,500 claimed by Gussie Mae Dempson. DONE AND ENTERED this 26th day of November, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1997.
The Issue At issue is whether respondent committed the offense alleged in the petitioner's "notice of intent to impose administrative fine and to issue cease and desist order" and, if so, what administrative action should be taken.
Findings Of Fact Petitioner, Department of Agriculture and Consumer Services, is a state agency charged, inter alia, with administering and enforcing the provisions of Chapter 559, Part XI, Florida Statutes, regulating "sellers of travel." Here, petitioner has charged that respondent had operated as a "seller of travel" without being registered as required by Section 559.927(2), Florida Statutes. The only proof offered to support such contention at hearing was a written inspection report prepared by James Kelly, an inspector employed by petitioner. 1/ That report recited that Mr. Kelly performed an inspection of respondent's premises on November 4, 1994, that he met with Denise Arencibia (who was later identified as respondent's vice president), and that the following events transpired: Went in undercover and asked about weekend cruises. Denise gave me a brochure for the Seaward & gave me prices at $329 per person. She can make all arrangements. They will accept a cashier's check payable to Escape Travel Services. Mr. Kelly did not, however, appear at hearing or otherwise offer testimony in this case. Consequently, for the reasons discussed in the conclusions of law, there is no competent proof of record to support a finding that respondent operated as a "seller of travel" on the date of Mr. Kelly's inspection as contended by petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the charges against respondent. DONE AND ENTERED this 12th day of September 1995 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 September 1995.
The Issue The issues for determination are whether Respondent violated Subsections 112.313(2), 112.313(4) and 112.313(6), Florida Statutes (2004),1/ as alleged, and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this proceeding, Danny Howell was a duly-elected commissioner for the City of Ocoee, Florida (hereinafter "City" or "City of Ocoee"). As a commissioner for the City of Ocoee, Respondent was subject to the requirements of Chapter 112, Part III, Florida Statutes, the Code of Ethics for Public Officers and Employees. At all times relevant to this proceeding, James Gleason was city manager for the City of Ocoee. Mr. Gleason was appointed city manager by the Ocoee City Commission in January 2001 and served in that position until March 2004. When Mr. Gleason was initially appointed as city manager, Respondent did not vote in favor of Mr. Gleason. During his tenure as city manager, Mr. Gleason was supervised by the Ocoee City Commission, which was comprised of five elected commissioners. As a commissioner, Respondent was one of Mr. Gleason's immediate supervisors. Several years prior to Mr. Gleason's appointment as city manager, he had been a commissioner for the City of Ocoee and a candidate for mayor. As a result of Mr. Gleason's political involvement in the City, Respondent knew Mr. Gleason before he was appointed city manager. When hired, Mr. Gleason's annual base salary was approximately $87,000.00. Mr. Gleason's annual base salary at the time of his termination from the position of Ocoee city manager was $103,000.00. As a City commissioner, Respondent was paid a monthly salary of $400.00 per month to serve on the City Commission. In addition to his $400.00 monthly salary, Respondent received a monthly stipend of $275.00 for local travel. Fine for Late-Filed Campaign Treasurer's Report At all times relevant to this proceeding, Jean Grafton served as the Ocoee city clerk and as the City's supervisor of elections. By letter dated April 12, 2001, Ms. Grafton advised Respondent that a $150.00 fine had been assessed against him due to his Campaign Treasurer's Report not being timely filed. The same or a similar letter was also sent to Vickie Prettyman, Respondent's campaign treasurer. Despite Respondent's having been notified of the $150.00 fine in April 2001, a year later the fine had not been paid. After the $150.00 fine remained outstanding for more than a year, Ms. Grafton requested Mr. Gleason's assistance in getting Respondent to pay the fine. Ms. Grafton told Mr. Gleason that if Respondent did not pay the $150.00 fine, she would have to notify the Florida Elections Commission that Respondent had failed to pay the fine. Upon learning that the $150.00 fine had not been paid, Mr. Gleason discussed the matter with Respondent. Respondent advised Mr. Gleason that Ms. Prettyman was to pay the fine. In making this statement, Respondent was reasonably relying on Ms. Prettyman's representation to him that she would pay the $150.00 fine. As Respondent's campaign treasurer in 2001, Ms. Prettyman took responsibility for late-filing Respondent's Campaign Treasurer's Report in April of that year. Thus, Ms. Prettyman assumed she should pay the fine. The $150.00 fine for the late filing of Respondent's Campaign Treasurer's Report was paid on May 17, 2002. There is no dispute that Mr. Gleason delivered $150.00 in cash to the City Clerk's Office and paid the fine that had been assessed against Respondent. However, there was conflicting testimony between Ms. Prettyman and Mr. Gleason as to who provided the funds for the payment of the $150.00 fine and under what circumstances the fine was paid. On May 17, 2002, Ms. Prettyman met with Mr. Gleason at the City's Beach Recreation Center, where Ms. Prettyman worked as interim recreation director for the City. The meeting was about an upcoming work-related project. After the meeting ended, Mr. Gleason reminded Ms. Prettyman that the $150.00 fine was still outstanding.2/ Ms. Prettyman then told Mr. Gleason she got paid that day3/ and would pay the fine after she cashed her paycheck during her lunch hour. Although it was lunch time, Ms. Prettyman told Mr. Gleason that she could not leave the recreation center until the other employee assigned to the center returned from lunch so that the center could remain open.4/ On May 17, 2002, Mr. Gleason volunteered to stay at the Beach Recreation Center, so it could remain open while Ms. Prettyman went to the bank to cash her paycheck. When Ms. Prettyman returned to the recreation center, she told Mr. Gleason that she would go to City Hall to pay the fine later that afternoon. In response, Mr. Gleason offered to take the money to City Hall and make the payment for Ms. Prettyman since he was going there after he left the recreation center. Ms. Prettyman accepted Mr. Gleason's offer to deliver the $150.00 to City Hall and pay the fine for her. Ms. Prettyman then gave Mr. Gleason $150.00 in cash to pay the outstanding fine. Mr. Gleason never gave Ms. Prettyman a receipt for the payment. However, a few days after Ms. Prettyman gave the $150.00 to Mr. Gleason, she checked with Ms. Grafton to determine if the fine had been paid. In response, Ms. Grafton acknowledged that the payment had been received. Mr. Gleason contradicts the foregoing account regarding payment of the $150.00 fine, as described and testified to by Ms. Prettyman. Specifically, Mr. Gleason denied that Ms. Prettyman gave him the $150.00 in cash to pay the fine and testified that he paid the fine out of his personal funds. According to Mr. Gleason, he paid the fine after being directed to do so by Respondent. Mr. Gleason testified that after Ms. Grafton asked him to assist her in getting Respondent to pay the fine, he discussed the matter with Respondent on two or three occasions. Mr. Gleason testified that on one of these occasions, Respondent told him (Gleason) that he made more money than Respondent so he (Gleason) should pay the fine and make it go away. Based on the foregoing comments that Respondent allegedly made, Mr. Gleason testified that he believed Respondent wanted, expected, or was directing him (Gleason) to pay Respondent's $150.00 fine. Furthermore, Mr. Gleason testified that he believed and/or feared that his job as city manager might or could be adversely affected if he did not pay the fine. Contrary to Mr. Gleason's testimony, the credible testimony of Respondent is that he never directed or in any way coerced, threatened, or pressured Mr. Gleason to pay the $150.00 fine. Ms. Prettyman's testimony regarding payment of the $150.00 fine and the circumstances surrounding the payment is found to be more credible than that of Mr. Gleason. Waiver of Fees Related to Late Payment of Water Bill During the time Mr. Gleason served as city manager, Respondent and his wife were sometimes late in paying for their residential water service. In March 2003, the City of Ocoee determined that Respondent's residential water service would be terminated due to non-payment of the balance owed on the account. On or about March 20, 2003, Cathy Sills, who worked in the City's Utilities Service Department (hereinafter referred to as "Utilities Department"), contacted Mr. Gleason and informed him that Respondent was on the City's water service cut-off list. Mr. Gleason then contacted Respondent and informed him that his water service was going to be turned off that day if his bill was not paid. After being notified that his water service was scheduled to be cut-off, Respondent told Mr. Gleason that either he (Respondent) or his wife would go to the Utilities Department that day to pay the past due balance. Respondent also told Mr. Gleason that he would not be able to pay the late charges and any other related fees. On March 20, 2003, after Mr. Gleason telephoned Respondent about his (Respondent's) delinquent water bill, Respondent went to the Utilities Department and paid his water bill. Some time after Respondent spoke to Mr. Gleason, but before he arrived at City Hall to pay his water bill, the water service had been turned off. Due to Respondent's existing financial difficulties, Respondent needed more time to pay the late charges or other fees related to the water bill. Nevertheless, Respondent never asked or directed Mr. Gleason to waive the late charges or other fees associated with his delinquent water bill. Furthermore, Respondent never asked or directed Mr. Gleason to make sure that Respondent's water service was not cut off to restore water services after it was cut off. Mr. Gleason testified that after he talked to Respondent about his (Respondent's) delinquent water bill, he called Ms. Sills at the Utilities Department and asked her what the policy was regarding waiver of late charges. Mr. Gleason then told Ms. Sills that if the policy allowed for such a waiver, she should remove Respondent's late charges and the disconnect/service interruption fee from his account.5/ At all times relevant to this proceeding, the City of Ocoee had an informal "forgiveness" policy in which late charges and other penalties related to delinquent water bills were waived. The purpose of the policy was to provide assistance to individuals, who like Respondent, were having financial difficulties. Consistent with the City's "forgiveness" policy, Mr. Gleason had routinely directed the Utilities Department employees to waive late fees and other fees related to delinquent water bills of eligible citizens and to work out payment plans for them. Ms. Sills waived Respondent's late charges and the service interruption fee associated with Respondent's water bill after being directed to do so by Mr. Gleason. As a result of this waiver, on March 20, 2003, two late fee charges totaling $50.00 and one service restoration fee of $50.00 were "reversed" or removed from Respondent's account. Ms. Sills confirmed the waiver in an e-mail to Mr. Gleason in which she wrote, "Pursuant to our conversation and you [sic] direction, I have reversed from [Respondent's] account" two late fees at $25.00 each and one service restoration fee of $50.00. Respondent received a call from Ms. Sills advising him that the late fees and other fees related to his water bill had been waived. However, she did not mention why they were waived or at whose direction. At the time Mr. Gleason directed Ms. Sills to waive Respondent's late fees, Mr. Gleason knew that Respondent was currently experiencing financial difficulties and had been experiencing such difficulties for some time. Based on Respondent's financial circumstances, he was eligible for the waiver of late fees and service interruption fees under the City's "forgiveness" policy. The City's "forgiveness" policy, which was applied in Respondent's case and effectively waived his late charges and service interruption fees, was also routinely used in other financial hardship cases. Respondent had been delinquent in paying his water bill on other occasions because of the financial difficulties he was experiencing. However, the waiver of late fees and service interruption fees given to Respondent in March 2003, at the direction of Mr. Gleason, was the only waiver that Respondent ever received. Not long before March 20, 2003, the City Commission adopted a policy which increased the late charges for delinquent water bills from $5.00 to $25.00. When the Commission was considering the fee increase, Respondent opposed the increase. Notwithstanding Respondent's opposition to the increase in late charges for delinquent water bills, he believes that once a policy is adopted by the Commission, it should be applied equally to everyone. In accordance with this belief, Respondent did not ask or direct Mr. Gleason to violate City policy with regard to Respondent's water service, water bill, or fees/charges related thereto. Payment of City-Issued Credit Card on Balance At all times relevant to this proceeding, City commissioners received a monthly stipend of $275.00 to cover travel costs and expenditures in the local area. The City of Ocoee is located in Orange County, Florida. However, the resolution that established the monthly stipend for City commissioners defined the "local area" as Orange, Seminole, Lake, and Osceola counties.6/ In addition to receiving the monthly stipend of $275.00 for local travel, the City issued credit cards to the City commissioners. Each month, the charges incurred by City commissioners were reviewed by the City's Finance Department to reconcile and ensure the legitimacy of the charges. On May 9, 2002, Gequitha Cowan, executive assistant to the mayor and commissioners of the City of Ocoee, sent an e-mail to Respondent. In the e-mail, Ms. Cowan reminded Respondent that he had not yet paid the City the $354.18 to cover non-reimbursable charges that he charged on the City-issued credit card. Ms. Cowan sent Mr. Gleason a courtesy copy of the e-mail. Of the $354.18 outstanding balance on the credit card, $157.83 was for expenses Respondent incurred that were related to his attending the League of Cities conference held in Atlanta, Georgia. The remaining credit card balance of $196.35 was for local charges, primarily to restaurants made during a seven-month period, September 1, 2001, through April 2002. Respondent admitted that included in the $196.35 credit card balance is a $28.80 charge for which he should not be reimbursed. This charge resulted from Respondent's inadvertently using his City-issued (Visa) credit card, instead of his personal Visa credit card when he purchased medicine at a local store. Except for the $28.80 charge, Respondent believed that the other charges at issue were expenses for which the City should have reimbursed him. After Mr. Gleason received a copy of Ms. Cowan's May 9, 2002, e-mail, he met with Respondent to see if any of the charges identified in the e-mail were expenditures that could be properly reimbursed by the City. With respect to the $157.83 expenditure, Respondent presented no documentation to support reimbursement. As to the remaining balance (except the $28.80 Eckerd's charge), the credit card charges were for expenditures made at establishments in the local area and were not reimbursable by the City. There is no allegation that the expenditures made by Respondent were not legitimate expenses. However, based on the City's policy, expenditures for official City business in the local area should have been paid out of Respondent's monthly stipend. Such expenditures were not reimbursed by the City, even if the expenses were put on the City-issued credit card. Pursuant to the City's policy, generally, the City reimbursed City commissioners only for expenditures involving official business outside the local area. Respondent sometimes mistakenly made improper charges when using his City-issued credit card because he did not understand the City's policy related thereto.7/ In fact, as of the date of this proceeding, Respondent acknowledged that he still does not understand the policy. Due to Respondent's frustration with not understanding the City's policy and resulting problems associated therewith, Respondent voluntarily returned his City-issued credit card to the City's Finance Department in 2002. Although Respondent believed, albeit mistakenly, that he should have been reimbursed for the subject charges on the City-issued credit card, he never brought the issue regarding the disputed charges before the City Commission, the final arbiter of such disputes. Having failed to do so, Respondent does not dispute that he was obligated to pay the City $354.18, as determined by the City's Finance Department. After Respondent received Ms. Cowan's e-mail and talked to Mr. Gleason about the charges, he did not immediately pay the charges. The reason Respondent did not pay the charges in May or early June 2002, was that he was not working. As a result of being unemployed, Respondent was experiencing financial difficulties and did not have the money to pay the $354.18 to the City.8/ On June 3, 2002, Mr. Gleason paid the City of Ocoee $354.18 from his personal funds to cover Respondent's outstanding City-issued credit card debt. Mr. Gleason paid the outstanding charges using a personal check which had the imprinted name of Mr. Gleason and Mr. Gleason's wife. The memo section of the check indicated that the check was for "miscellaneous expenses" for the same time period as Respondent's outstanding charges. There is no dispute that on June 3, 2002, Mr. Gleason paid the $354.18 to cover Respondent's outstanding credit card charges. However, the circumstances surrounding the credit card payment, the reason Mr. Gleason made the payment, and whether Respondent repaid Mr. Gleason for the payment are disputed. Although, due to his financial situation, Respondent was unable to timely pay his outstanding $354.18 credit card charges, he never asked or directed Mr. Gleason to pay those charges. Furthermore, Respondent never coerced, threatened, or pressured Mr. Gleason to pay the credit card charges. Respondent was out-of-town on June 3, 2002, the day Mr. Gleason paid his $354.18 credit card bill, but returned to the City of Ocoee a day or a few days later. Respondent first learned that Mr. Gleason had paid the $354.18 outstanding credit card balance in or about early June 2002, after returning from his out-of-town trip. Mr. Gleason approached Respondent at City Hall and told him that he (Gleason) had taken care of the credit card bill. Mr. Gleason then gave Respondent the receipt which showed that Mr. Gleason had paid Respondent's outstanding $354.18 credit card bill. Mr. Gleason told Respondent that he paid the credit card bill because he was trying to help him (Respondent) out with "Martha" and did not want Respondent to look bad. Respondent was surprised to learn that Mr. Gleason had paid the $354.18. In response to Mr. Gleason's statements to Respondent described in paragraph 60, Respondent told Mr. Gleason that he had no right to pay the outstanding credit card bill and that he did not want him to pay the bill. Respondent also told Mr. Gleason that his paying the bill would "create a bad problem" for both of them. The "Martha" referred to by Mr. Gleason during his conversation with Respondent, discussed in paragraph 60, was Martha Lopez Anderson, a citizen of the City of Ocoee. At the time in question (May or early June 2002) Ms. Anderson, a very active citizen in the community and a familiar face at City Hall, was making public record requests regarding the travel expenses of City commissioners. The travel records requested and being reviewed by Ms. Anderson were located in the Finance Department in City Hall. Consequently, it was common knowledge among many City employees at City Hall that Ms. Anderson was reviewing the City commissioners' travel records. After Mr. Gleason paid Respondent's credit card balance, but prior to October 1, 2002, Richard Waldrop, a friend of Respondent and long-time City employee, became aware that Ms. Anderson was reviewing the City Commissioners' travel records. In fact, Ms. Anderson spoke to Mr. Waldrop about the matter and told him that Mr. Gleason had paid a bill for Respondent and that Respondent had not repaid Mr. Gleason. Mr. Waldrop does not recall the actual date that he learned that Respondent owed Mr. Gleason money for the bill that Mr. Gleason had paid. However, Mr. Waldrop's credible testimony was that he is sure that it was prior to October 1, 2002. After June 3, 2002, but prior to October 2002, Respondent was approached by Mr. Waldrop, who asked him if Mr. Gleason had paid a bill owed by Respondent. In response to his friend's inquiry, Respondent told Mr. Waldrop that Mr. Gleason had paid the bill, but without Respondent's prior knowledge. Respondent also acknowledged that he had not repaid Mr. Gleason, because he did not have the money. Upon learning that Respondent had not repaid Mr. Gleason, Mr. Waldrop was concerned that this was something that Mr. Gleason might want to "hold over" Respondent's head. Mr. Waldrop told Respondent that this situation "didn't look good" and then offered to lend Respondent $420.00 so that he could reimburse Mr. Gleason. Respondent accepted Mr. Waldrop's offer to lend him $420.00 so that he could repay Mr. Gleason. In order to repay the loan to Mr. Waldrop, Respondent and Mr. Waldrop agreed that Respondent, through his (Respondent's) and his wife's cleaning service, would provide house cleaning services to Mr. Waldrop and his wife two hours every other week until the debt was repaid. These services were provided at no charge for about a year, until the $420.00 debt was repaid. After Respondent received the $420.00 loan from Mr. Waldrop, he reimbursed Mr. Gleason for the outstanding credit card balance that Mr. Gleason had paid on June 3, 2002. Although the amount Respondent owed Mr. Gleason was $354.18, when Respondent repaid Mr. Gleason, he gave Mr. Gleason $355.00 in cash. Due to the passage of time, Respondent does not recall the exact date that he reimbursed Mr. Gleason for paying Respondent's $354.18 outstanding credit card debt. Nonetheless, Respondent testified credibly that he repaid Mr. Gleason weeks, rather than months, after he learned that Mr. Gleason had paid Respondent's credit card bill. Furthermore, Respondent testified credibly that he is certain that he reimbursed Mr. Gleason prior to October 1, 2002. Mr. Gleason denied that Respondent repaid him the $354.18. Also, Mr. Gleason's testimony regarding the circumstances which resulted in his paying Respondent's outstanding credit card debt contradicts Respondent's testimony. According to Mr. Gleason, he met with Respondent in or about May 2002, after receiving Ms. Cowan's e-mail, about his credit card balance. Mr. Gleason testified that during that discussion, Respondent told Mr. Gleason that he (Gleason) made the "big bucks" and "could afford it [the credit card balance]." In May 2002, when Respondent's outstanding credit card balance was at issue, Mr. Gleason knew that Respondent was having financial difficulties, as well as other problems. Mr. Gleason testified that, in light of those difficulties, when Respondent made the comments noted in paragraph 73, Mr. Gleason believed that Respondent either did not have the money to pay the credit card bill or did not intend to pay it. Mr. Gleason did not interpret the alleged comments (that Mr. Gleason made "big bucks" and could afford to pay the outstanding credit card balance) as an attempt by Respondent to coerce, threaten, or pressure him to pay the $354.18 or to extort the money from him. Rather, Mr. Gleason testified that he implied from those comments that Respondent was asking Mr. Gleason for a loan. Contrary to Mr. Gleason's interpretation of the foregoing comments made by Respondent, Respondent did not ask Mr. Gleason for a loan, imply that Mr. Gleason should lend him money to pay the $354.18 outstanding credit card balance, or direct Mr. Gleason to pay Respondent's outstanding credit card balance. At this proceeding, Mr. Gleason testified that Respondent never repaid him for the $354.18 payment that he made to the City for Respondent. This testimony contradicts an earlier statement Mr. Gleason made at a City Commission meeting. During the October 1, 2002, City Commission meeting, Mr. Gleason stated that the commissioner, for whom he had paid an outstanding credit card balance, had repaid him in full and that he (Gleason) owed the commissioner some change. Mr. Gleason did not name the commissioner to whom he was referring, but he was referring to Respondent.9/ Mr. Gleason made the statement that the commissioner had paid him in full, in response to comments of Ms. Anderson, in the context of a broader discussion about commissioners' travel expenses. Almost as an aside to the specific "travel expenses" topic being discussed, Ms. Anderson mentioned that inappropriate charges made by "commissioners" were being reimbursed by Mr. Gleason.10/ During the course of making the foregoing comments, Ms. Anderson never specifically named the commissioners whose expenses were being reimbursed by Mr. Gleason. The statement Mr. Gleason made at the October 1, 2002, City Commission meeting, is consistent with the credible testimony of Respondent on two points. First, Mr. Gleason's statement that he was paid in full supports Respondent's testimony that he reimbursed Mr. Gleason for paying the $354.18 credit card balance to the City prior to October 1, 2002. Second, Mr. Gleason's statement that he owed the commissioner change is consistent with Respondent's testimony that, when he reimbursed Mr. Gleason, he gave Mr. Gleason $355.00 in cash. This was $.82 cents more than the outstanding credit card bill that Mr. Gleason paid. In this proceeding, Mr. Gleason testified that when the issue of his paying Respondent's $354.18 credit card charges came up at the City Commission meeting, he did not tell the truth when he said that Respondent had paid him. Mr. Gleason testified that on October 1, 2002, but prior to the City Commission meeting that day, Respondent approached Mr. Gleason and advised him that Respondent's $354.18 credit card bill issue might be raised at the meeting. Mr. Gleason also testified that Respondent told him that if the issue were raised at the meeting, Mr. Gleason should say that Respondent had paid/reimbursed him.11/ Mr. Gleason testified that he lied at the City Commission meeting at the behest of Respondent, because he "wanted to keep [Respondent's] favoritism in terms of [Gleason's] job." As to matters related to the payment of Respondent's outstanding $354.18 credit card debt and the circumstances related thereto, Respondent's testimony is found to be more credible than that of Mr. Gleason. Purchase of Surplus Computer While serving on the City Commission, Respondent's wife, Mrs. Howell, and their son, frequently visited City Hall. During these visits, it was customary for Respondent's son, who was about ten-years-old, to visit Mr. Gleason, whose office was next door to Respondent's office. When Respondent's son went to Mr. Gleason's office, Mr. Gleason would give him candy and sodas. Mr. Gleason and Respondent's son enjoyed a cordial relationship. The City of Ocoee periodically disposes of surplus equipment, including computers, by use of a closed bid system which was open to employees and elected officials. In or about September 2003, during one of Mrs. Howell's and her son's visits to Mr. Gleason's office, a discussion ensued about computers and the City's upcoming sale of its surplus computers. Mrs. Howell's son stated that he wanted one. That day, Mrs. Howell's son had gone to Mr. Gleason's office first, and she joined him there later. In response to Respondent's and Mrs. Howell's son saying he wanted a computer, Mr. Gleason volunteered to get him one as a gift. Mrs. Howell responded by telling Mr. Gleason, "No. He [referring to her son] can wait." Mrs. Howell rejected Mr. Gleason's offer initially because she felt that the family could not afford one, and she did not feel comfortable allowing her son to accept a gift from Mr. Gleason. However, she did not feel comfortable telling Mr. Gleason, especially in her son's presence, that she could not afford the computer her son wanted. Mrs. Howell was adamant and repeatedly told Mr. Gleason that she did not want him to purchase a computer for her son. Nonetheless, Mr. Gleason insisted that he was going to get the computer for her son anyway. After Mrs. Howell made it clear that she did not want Mr. Gleason to purchase a computer for her son, Mr. Gleason said to her, "Listen, I'm going to get it and you can do whatever you want, if you want to pay me back or whatever." Mrs. Howell's final answer to Mr. Gleason was the same one that she initially shared with Mr. Gleason--she did not want him to purchase a computer for her son. Mrs. Howell never asked or agreed to Mr. Gleason buying a computer for her son, and she never agreed to pay Mr. Gleason for purchasing a computer. Respondent was not present in Mr. Gleason's office with his wife and son when Mr. Gleason and Mrs. Howell were discussing the surplus computer, but Mrs. Howell told Respondent about the conversation later. After learning of his wife's conversation with Mr. Gleason, Respondent told Mr. Gleason that he did not want his son to have a computer. Based on this discussion, Respondent believed the matter was settled. There was a computer in Respondent's home, and Respondent believed that for his ten-year-old son to have his own computer would be a detrimental distraction. Mr. Gleason's offer to buy a surplus computer as a gift for Respondent's son was subject to Mr. Gleason being a successful bidder. In order to purchase one of the City's surplus computers, a potential purchaser had to submit a bid. Consistent with this policy, Mr. Gleason submitted a bid for a surplus computer. On September 19, 2003, Mr. Gleason was notified that his bid of $130.10 was one of the successful bids and that he had won one of the City's surplus computers. A few days later, Mr. Gleason purchased the surplus computer to give to Respondent's son. On Monday, September 22, 2003, Mr. Gleason sent an e-mail to Respondent indicating that he had successfully bid on one of the surplus computers. In the e-mail, Mr. Gleason stated that he was going to pay for the computer on Tuesday and then "turn the PC [computer] over to [Respondent's son] for his room." Mr. Gleason then wrote, "We can work out the details later!" Both Respondent and his son read this e-mail. The September 22, 2003, e-mail gave the false and/or misleading impression that Respondent had asked Mr. Gleason to purchase the computer for Respondent's son, knew that Mr. Gleason had submitted a bid on the computer, and had agreed to repay Mr. Gleason for the computer. In fact, none of those impressions were accurate. Respondent never asked Mr. Gleason to bid on a computer for Respondent's son or to purchase such computer. Neither did Respondent ever promise to pay Mr. Gleason for a computer. Although the implication in the September 22, 2003, e-mail was false, there is no indication that Respondent replied to the e-mail. Furthermore, Respondent provided no explanation or reason as to why he failed to respond to the misleading e-mail. On or about September 22, 2003, after Mr. Gleason paid for and received the surplus computer, and he took the computer to Respondent's home, unannounced. When Mr. Gleason brought the computer to Respondent's home, Respondent and his wife were placed in an awkward position. Their son was home when Mr. Gleason brought the computer and was very happy and excited about getting a computer. Seeing the expression on her son's face, Mrs. Howell did not have the heart to tell Mr. Gleason to take the computer back. Rather than disappoint their son, Respondent and his wife allowed Mr. Gleason to install the computer. Not long after Mr. Gleason brought the computer to Respondent's home, Respondent called Mr. Gleason several times and told him to come and pick up the computer. Despite Respondent's repeated directives, Mr. Gleason never came to get the computer. At some point, Mr. Gleason left a voice mail message on Respondent's home telephone indicating that the surplus computer he purchased and gave to Respondent's son was a gift. Rather than picking up the computer as Respondent had requested, on October 1, 2003, Mr. Gleason sent Respondent another e-mail message which stated, "The computer is a gift from [sic] to [Respondent's son], tell [Mrs. Howell] to not worry about any cost-he is a good kid and I hope it helps him with his school work." The October 1, 2003, e-mail implies that Mrs. Howell had agreed to pay for the computer, that Mr. Gleason had now decided that the computer was a gift, and that he no longer expected Mrs. Howell to repay him for purchasing the computer. However, that implication is not only misleading, but unfounded. Nevertheless, Mrs. Howell never agreed to repay Mr. Gleason for the computer. Instead, she, like her husband, had repeatedly refused Mr. Gleason's offer to purchase a computer as a gift for their son. Even though Respondent did not want Mr. Gleason to purchase a computer for his son, there is no indication that Respondent or his wife replied to the October 1, 2003, e-mail. Respondent never directed, requested, threatened, coerced, or pressured Mr. Gleason to purchase a computer for their son. However, when Mr. Gleason brought the computer to Respondent's home, he accepted it. After realizing he had exercised poor judgment in accepting the computer, Respondent did not return the computer to Mr. Gleason. Instead, Respondent kept demanding that Mr. Gleason pick up the computer from Respondent's home. Even when it became apparent that Mr. Gleason was not going to pick up the computer, Respondent never returned the computer to Mr. Gleason. The computer never worked properly so eventually, Respondent and/or his wife threw it in the trash. Mr. Gleason disputes and contradicts the foregoing account of events related to his purchasing the computer for Respondent's son. Mr. Gleason testified that Respondent initially approached him and expressed an interest in the City's surplus computers. According to Mr. Gleason, Respondent asked if such computers could be purchased on a payment plan. Mr. Gleason testified that after checking with the appropriate office, he advised Respondent that the City did not accept payment plans for the purchase of surplus computers and equipment. Mr. Gleason testified that Respondent then told Mr. Gleason that he (Respondent) wanted Mr. Gleason to get him a computer and that he expected Mr. Gleason to be successful on the bid. Mr. Gleason testified that in October 2003, he decided to give the computer to Respondent's son because his relationship with Respondent by this time had become adversarial, and he decided that it would be in his best interest not to make an issue of purchasing the computer. With regard to the purchase of the computer for Respondent's son and issues related thereto, the testimony of Respondent and Mrs. Howell is found to be more credible than that of Mr. Gleason. Gleason's Termination as City Manager In February 2004, about four months after Mr. Gleason gave the computer to Respondent's son, Respondent and two other City Commission members voted to terminate Mr. Gleason's employment with the City. As a result of this majority vote, Mr. Gleason was terminated as city manager. Respondent voted to terminate Mr. Gleason because he believed that Mr. Gleason was not doing the job. Respondent also was concerned that Mr. Gleason had taken inappropriate and unsolicited actions (i.e., purchasing the computer in September 2003 and paying the $354.18 credit card debt in June 2002), presumably to help Respondent. All the actions taken by Mr. Gleason were unsolicited and done gratuitously because Mr. Gleason thought that he was losing Respondent's support, and Mr. Gleason was trying to gain or regain Respondent's support. Instead of gaining Respondent's support, Mr. Gleason's inappropriate and unsolicited actions had the opposite effect. Respondent, displeased with Mr. Gleason's inappropriate and unsolicited actions, was offended by those actions and voted to terminate Mr. Gleason as city manager. The month after he was terminated, Mr. Gleason filed a Complaint with the Commission on Ethics (hereinafter the "Commission on Ethics" or "Commission") making the allegations, which are the subject of this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a final order and public report be entered finding that Respondent violated Subsection 112.313(4), Florida Statutes, in one of the four instances alleged; Respondent did not violate Subsection 112.313(4), Florida Statutes, in three of the four instances alleged; Respondent did not violate Subsection 112.313(6), Florida Statutes, in any of the four instances alleged; and Respondent did not violate Subsection 112.313(2), Florida Statutes, in any of the four instances alleged; and imposing a civil penalty of $500.00 for the single violation. DONE AND ENTERED this 7th day of September, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th of September, 2007.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Helen Stahler, has filed a claim against the bond in the amount of $198.00 alleging that Passport failed to perform on certain contracted services. In response to an offer run in a local newspaper on an undisclosed date in early 1991, petitioner agreed to purchase a five-day, four-night trip for two to the Bahamas at a cost of $99.00 per person. For this, she wrote two checks payable to Passport, each in the amount of $99.00. Although Passport has no record of the transaction, it may be reasonably inferred that the advertisement was run by, and the package purchased directly from, Passport since petitioner's checks were endorsed by Passport and deposited in a bank used by that entity. After receiving a videotape, brochure and travel certificate, petitioner attempted by telephone to reserve certain dates for her trip. Because the certificate could not be used on a weekend, a fact not known at the time the certificate was purchased, petitioner became frustrated and requested a refund of her money by letter dated January 27, 1992. To date, she has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $198.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of January, 1995. COPIES FURNISHED: Helen Stahler 11200 Walsingham Road, Number 69 Largo, Florida 34648 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Dr. Mark H. Feldman maintained a practice in podiatry at 1101 West Broward Boulevard, Fort Lauderdale, Florida. A widening and upgrading of Broward Boulevard resulted in a taking of a portion of the building in which Dr. Feldman maintained his practice. Because the widening of this highway was a part of a federal aid project, the doctor became eligible for certain payments to businesses as provided in the manual of Right-of-Way Bureau operating procedures and incorporated by reference into the Florida Administrative Code as Chapter 14-1. The provisions concerning payments to businesses include payment of actual reasonable expenses in moving the business and personal property, direct loss of tangible personal property in moving or discontinuing the business and actual reasonable expenses in searching for a replacement business. Further, in lieu of payment for actual moving and losses as indicated above, a fixed payment may be paid. Dr. Feldman applied for a fixed payment and was denied by the Department of Transportation. The Department of Transportation based its denial on two grounds: Dr. Feldman had already received payments for reasonable expenses, direct less of personal property and discontinuing his business, and for search of a replacement business site; and Dr. Feldman was ineligible for a fixed payment because the doctor maintained a commercial enterprise with more than one establishment, which was not being acquired by the State or the United States and was engaged in the same or similar business. Dr. Feldman asserted that he accepted payment because of the representation of employees of the Department and that he did not maintain two (2) business locations.
Findings Of Fact Dr. Mark H. Feldman maintained a practice in podiatry at 1101 West Broward Boulevard in Fort Lauderdale, Florida. A portion of the building in which Dr. Feldman maintained his practice was taken by the State under a construction project, which was partially federally funded, to widen Broward Boulevard. As a result of this taking, it was necessary for Dr. Feldman to move his practice. Dr. Feldman became eligible for certain payments to businesses required to move because of such construction. Dr. Feldman asserted that prior to receipt of the Department's notice, he engaged in discussions with representatives of the Department regarding his options. Dr. Feldman requested consideration for fixed payment in lieu of actual moving expenses, which resulted in a preliminary investigation by the Department of Transportation. This investigation revealed that in addition to maintenance of his practice at 1101 West Broward Boulevard. Dr. Feldman also was listed in the telephone directory and in the building directory as maintaining offices at 7301 North University Drive, Tamarack, Florida. This second location was not affected by any taking. Based upon this information, the Department made a determination that the doctor was not eligible for fixed payment in lieu of actual moving expenses because Dr. Feldman's business affected by the taking was part of a commercial enterprise having at least one other establishment which was not being acquired by the State or the United States and which was engaged in the same or similar business. See Right-of-Way Bureau Operating Procedures Manual, 4.3.7E(1)(b). Based upon this initial denial, and having received notice that he could only be guaranteed 90 days' occupancy, Dr. Feldman applied for actual expenses, which were paid. Thereafter, Dr. Feldman submitted his application for fixed payment in lieu of actual moving expenses, which was denied on the basis that he had received actual moving expenses. Approximately one year prior to the announcement by the Department of the incipient taking of the property of 1101 West Broward Boulevard, Dr. Feldman had been in practice with another podiatrist, Harry Westridge. Dr. Westridge originally maintained his practice at 1101 West Broward Boulevard. Dr. Westridge had joined Dr. Feldman's practice at 7301 North University Drive in Tamarack several years ago. In April of 1977, Dr. Westridge purchased Dr. Feldman's practice at North University Drive. As a part of their agreement, Dr. Feldman took over the lease and personal property located at 1101 West Broward Boulevard. Further, as a part of their agreement, Dr. Feldman agreed to permit Dr. Westridge to utilize his name in conjunction with the Tamarack practice. Both doctors explained that this was because Dr. Westridge was a newcomer to the area and was purchasing the "good will" in Dr. Feldman's practice, and it protected Dr. Feldman's investment if Dr. Westridge was unable to meet his obligations under the purchase agreement. However, both doctors testified that subsequent to Dr. Westridge's purchase of the practice Dr. Feldman did not maintain regular office hours at the Tamarack address, did not regularly see patients at the Tamarack address, and had seen approximately twelve (12) patients at the Tamarack address between April of 1977, and April of 1978. This included consultations and referrals to Dr. Feldman by Dr. Westridge. The nature of his surgical practice in podiatry prevented Dr. Feldman from waiting to move his practice until the Department of Transportation took his property where he was located. Further, Dr. Feldman could not afford to move his practice without assistance. Dr. Feldman only applied for payment of his actual expenses, which he received, when he was initially told he did not qualify for in-lieu of payment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Transportation pay Dr. Feldman a fixed payment in lieu of actual expenses and offset any amounts paid to Dr. Feldman against the fixed payment. DONE and ORDERED this 2nd day of November, 1979, 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: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Dr. Mark H. Feldman 6468 Racket Club Drive Lauderhill, Florida 33319 =================================================================
Findings Of Fact The Respondent. At all times relevant to this proceeding, the Respondent, George Costage, served as a member of the City Commission of the City of Safety Harbor (hereinafter referred to as the "City"). Mr. Costage was first elected to the City Commission in March of 1986. He was reelected to the City Commission in 1988 and 1990. His bid for reelection in 1992 was unsuccessful. Mr. Costage's service on the City Commission was his only experience holding public office. Mr. Costage had previously worked as a fireman in the City of Detroit until his retirement. Mr. Costage was paid a salary of approximately $400.00 a month for his service on the City Commission. The City of Safety Harbor's Travel Policy and Procedure. Members of the City Commission, including Mr. Costage, were required from time to time to travel on behalf of the City. For example, travel for the City in conjunction with the Florida League of Cities was expected of Commissioners, including Mr. Costage. Mr. Costage served on the Ethics Committee of the Florida League of Cities. Commissioners also incurred expenses dealing with the citizens of the City which they usually were not specifically reimbursed for. In lieu of reimbursing Commissioners for such expenses, all Commissioners were paid $150.00 a month by the City. The $150.00 monthly payment was intended as reimbursement for the otherwise unreimbursed expenses they incurred. Commissioners were paid $150.00 per month regardless of the amount of actual expenses they incurred. The City also paid Commissioners for expenses they incurred for travel out side of the City on City business. For example, travel by Commissioners to an annual Florida League of Cities' meeting in Crystal River, Florida, was paid for by the City. There were several methods by which the City paid for out-of-town travel expenses of Commissioners: The City made payments directly to the vendor on behalf of a Commissioner; A credit card was issued by the City for each Commissioner. Commissioners were allowed to use the credit card to charge expenses which the City then paid directly to the credit card company; Commissioners could obtain reimbursement from the City for expenses they had previously incurred and paid out of their own resources; and The City could advance funds to Commissioners to cover estimated travel expenses to be incurred. The City used a form titled a "Travel Expense Certificate" (hereinafter referred to as the "Travel Form") in conjunction with the payment of travel expenses of Commissioners. The Travel Form was to be used by Commissioners to obtain reimbursement of travel expenses a Commissioner incurred and paid for out of the Commissioner's own resources. See Advocate's exhibit 4A and 4B, a photocopy of Travel Forms used by Mr. Costage. On the back of the Travel Form were instructions concerning how to complete the form and "Travel Expenses Regulations." Among other things, the following was printed on the back of the Travel Form: Traveling expenses shall be limited to those expenses incurred in the performance of a public purpose authorized by law to be performed and must be within the limitations prescribed below. . . . . . . . Certificate: "I certify that the expenses shown herein were necessary and actually incurred during, authorized travel in performance of official duty and the claim made herewith is true and correct in every manner." The City had established policies governing reimbursement of travel incurred by Commissioners. Some of those polices were in writing, having been included on the back of the Travel Form. The evidence failed to prove that the City, however, always strictly enforced its policies. Because of alleged problems associated with travel expenses paid by the City, including the issues in this case, the City adopted more extensive written travel policies by Resolution adopted November 20, 1989. Travel Expenses of Family Members. Commissioners, at times, took family members, including spouses, with them while traveling on City business. The City also, at times, made travel arrangements for family members and made advance payments of travel expenses for family members. It was the policy of the City that travel expenses of family members of Commissioners were not "expenses necessarily incurred in the performance of a public purpose authorized by law to be performed . . . ." Therefore, the City expected reimbursement of travel expenses incurred by family members. Although the City's policy concerning the payment of travel expenses of family members set out in finding of fact 15 was not specifically stated in writing, the general policy contained on the back of the Travel Form is sufficient to put a reasonable person on notice that they should determine whether a family member's travel expenses are "necessarily incurred in the performance of a public purpose authorized by law to be performed " It was not the policy of the City that travel expenses of spouses or other family members of a Commissioner incurred while the Commissioner was traveling on City business were to be borne by the City. The City did not require reimbursement for certain travel expenses incurred by a Commissioner which also benefited a family member of the Commissioner. Those expenses were limited to expenses which would generally have been incurred by the Commissioner regardless of the presence of the family member on the trip, i.e., the cost of a rental vehicle. Travel Expenses Incurred by Mr. Costage's Spouse Paid by the City. At issue in this proceeding is the period of time between March, 1986 and November 20, 1989, when the City adopted a written policy clearing setting out more extensive travel policies of the City. During the period of time at issue in this case, and while Mr. Costage was a Commissioner, his wife of thirty-seven years accompanied him on trips he took on City business. The City paid Mrs. Costage's travel expenses directly to the vendor when making travel arrangements or it paid travel expenses attributable to Mrs. Costage charged on the credit card provided to Mr. Costage by the City for his use. On at least one occasion, the cost of a helicopter trip over the Grand Canyon incurred by Mr. and Mrs. Costage was paid for by the City. Mr. Costage took no immediate action to reimburse the City for travel expenses paid by the City for Mrs. Costage's travel. Not until well after Mr. Costage was questioned publicly about the expenses paid by the City for Mrs. Costage's travel did Mr. Costage reimburse the City for her travel expenses. Mr. Costage's Payment of Mrs. Costage's Travel Expenses to the City. During Mr. Costage's campaign for reelection to the City Commission in the Spring of 1990, the propriety of the payment of the City of travel expenses incurred by Mr. Costage's spouse was questioned. As a result of the issue being raised, Mr. Costage requested that the City Manager determine the amount of travel expenses which the City had paid for Mrs. Costage's travel. This request was made in approximately March, 1990. The City Manager then requested and received an accounting from the City finance department. Based upon the records of the City finance department, it was initially determined that a total of approximately $3,100.00 in travel expenses attributable to Mrs. Costage had been paid by the City and had not been repaid by Mr. Costage. Mr. Costage was apprised of the City finance department's determination in approximately March, 1990. Mr. Costage asserted that the correct amount was about half the $3,100.00 amount arrived at by the City finance department. No reimbursement was made in March, 1990. At about the same time that Mr. Costage was informed of the amount of travel expenses attributable to his spouse, the Pinellas County Sheriff's Office began an investigation into the City's payment of travel expenses on behalf of family members of Commissioners and others. This was a general investigation, not limited to any one Commissioner or individual. As a consequence of the investigation, Mr. Costage took no further action to reimburse the City for the expenses paid on behalf of his spouse. Subsequent to the completion of the Sheriff's Office investigation, Mr. Costage again discussed the amount of his spouse's travel expenses with the City and it was mutually agreed that the correct amount of unreimbursed travel expenses paid by the City for Mrs. Costage was $2,974.63. Mr. Costage reimbursed the City this amount in February, 1991. Mr. Costage's Knowledge of the City's Policy Concerning the Payment of Family Member Travel Expenses. Mr. Costage has suggested that he did not violate Section 112.313(6), Florida Statutes, because of his assertion that the City did not have a policy that required him to pay for his spouse's travel expenses--that the City practice was just the opposite. He also has asserted that, if the City had such a policy, he was never informed that he was required to repay his spouse's travel expenses and he was not otherwise aware of such a requirement. These assertions are not supported by the weight of the evidence. First, the assertion that no policy requiring reimbursement of family- member travel expenses existed is contrary to the weight of the evidence: The statements on the back of the Travel Form are sufficient to place a reasonable person on notice that such expenses should not be paid for by the City. The statements are, at the very least, sufficient that it would be unreasonable for Mr. Costage to simply assume that his spouse's travel was "incurred in the performance of a public purpose authorized by law"; Several other Commissioners who served during at least part of the period that Mr. Costage was a Commissioner were specifically told that travel expenses incurred by family members of Commissioners were required to be repaid to the City by the Commissioner. See the testimony of Commissioners Caldemeyer, Cincota and Baty, City Mayor Dettmer and City Mayor Levine. Mr. Costage's assertion that it was the practice, if not the policy, of the City that travel expenses of family members were to be paid by the City is also not supported by the weight of the evidence: Except for Mr. Costage and former Commissioner McLaughlin, all the City officials who served during the period of time at issue and who testified at the final hearing of this matter indicated that they were aware that they were ultimately responsible for travel expenses incurred by family members and that the City did not pay those expenses; The evidence failed to prove that travel expenses of family members other than those attributable to Mr. Costage's spouse and possibly Mr. McLaughlin's spouse were paid for by the City without reimbursement; If the City had a policy of paying for spouse travel expenses without requiring reimbursement, why then did Mr. Costage ultimately repay the City almost $3,000.00? He repaid the expenses because he knew City policy required reimbursement and because his use of public funds for his spouse's benefit had been exposed; At best, the evidence proved that the City did not strictly enforce the policy that travel expenses were only to be paid with public funds if they were incurred for a public purpose. As a consequence of the City's lack of strict enforcement, Mr. Costage was able to avoid paying for his spouse's travel expenses from March, 1986 until February, 1991. The lack of enforcement of the City's travel policies, however, does not prove that the City had an established policy of paying the travel expenses of Commissioner's spouses. It only proved that City employees failed to question members of the City's governing body about their actions. The weight of the evidence also proved that Mr. Costage, despite his assertions to the contrary, was told and/or was aware of the City's policy requiring reimbursement of travel expenses of spouses: First, it is concluded that Mr. Costage was aware of the instructions on the back of the Travel Form: Mr. Costage filed two Travel Forms for which he received reimbursement of expenses incurred in 1986 and 1987. Although Mr. Costage was not able to say absolutely that the signature on the Travel Forms (Advocate's exhibit 4A and 4B) was his signature, he was also not able to say that it was not his signature and he acknowledged that the signatures could be his. It is, therefore, concluded that the two Travel Forms were signed and submitted by Mr. Costage. This conclusion is further supported by the fact that one other Commissioner witnessed Mr. Costage filing a Travel Form; Although on infrequent occasions a copy of a Travel Form without the back of the form was used by City personnel, it was the prevailing practice, especially of individuals such as Commissioners who were located in City Hall, to file an original three part Travel Form which included the instructions. Secondly, it is inferred from the following that Mr. Costage received instructions from the City Manager shortly after he was elected concerning the City's travel policies, including the policy concerning travel expenses of spouses: It was the City Manager's common practice and procedure to discuss, or cause to be discussed, City policies and procedures, including those governing spouse travel expenses, with all new Commissioners; All of the Commissioners who served during the period of time at issue and who testified in the final hearing, except Mr. Costage, recalled meeting with the City Manager or, at the City Manager's direction, the City's finance director, and discussing travel procedures. All of these Commissioners, except Mr. McLaughlin, recall being told that family travel expenses were to be paid by the Commissioner. Even Mr. McLaughlin admitted that he had been told that travel expenses attributable to his children were to be reimbursed by him. Mr. McLaughlin's testimony that the City policy concerning the payment of spouse travel expenses was not credible, especially in light of the ongoing litigation between Mr. McLaughlin and the City over travel expenses of Mrs. McLaughlin paid for by the City. While on a break during a budget workshop in 1986 or 1987, Mrs. Costage remarked in the presence of Mr. Costage and others that she thought the City should pay for the travel expenses of spouses of Commissioners because of all that the spouses did on behalf of the City. Mr. Costage did not indicate, as he has asserted in this proceeding, that the City already had a policy of paying for spouse travel expenses. The statement is also contrary to Mr. Costage's assertion that he was unaware of the actual policy of the City requiring that Commissioners ultimately pay for their spouse's travel; In 1987, Arthur Levine ran against Alton Dettmer for the position of City Mayor. At some time before the election Mr. Costage advised Mr. Levine to look into Mr. Dettmer's travel expense reports, implying that there was something wrong with the manner in which Mr. Dettmer had been paid for travel expenses. This act by Mr. Costage supports a finding that Mr. Costage was aware that the City had at least some policies governing travel. Benefit of Spouses Travel Expenses to Mr. Costage. Based upon the conclusion that Mr. Costage was aware that the City's policy required that he pay for Mrs. Costage's travel expenses and the fact that Mr. Costage did not pay for almost $3,000.00 in expenses incurred during the period March, 1986 through November 20, 1989, until February, 1991, it is concluded that Mr. Costage was aware that his failure to pay Mrs. Costage's travel expenses would be a financial benefit to him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, George Costage violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 91-37. It is further RECOMMENDED that Mr. Costage be publicly censured and reprimanded. It is further RECOMMENDED that Mr. Costage be required to pay a civil penalty of $3,000.00. DONE and ENTERED this 24th day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 24th day of September, 1992. APPENDIX Case Number 92-1007EC The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact A 1 2. 2 3. 3 5. 4 19. 5 12. B 1 4. 2-4 6. 5 7. 6 8. 7 14-15. 8 9. 9 Hereby accepted. 10 9. 11 33. 12 10. C 1 20-21. 2 22. 3 23. 4 24. 5 25. 6 Hereby accepted. 7 25. 8 26. 9 See 27. 10 27. 11 28. The last sentence is hearsay. 12 29. D 1-2 33(a) and hereby accepted. 3-5 33(b). 6 Hereby accepted. 7 31-32 and 33(b). 8 33(b). 9 Hereby accepted. 10 33(c). Not supported by the weight of the evidence. Hereby accepted. 13 33(d). 14 33. Mr. Costage's Proposed Findings of Fact Mr. Costage's proposed "Findings of Fact" consists primarily of a summary of the testimony of the witnesses and not the ultimate facts which the testimony may support. In large part, the summary of testimony is accurate. It has been noted below where testimony has been mischaracterized or where the testimony does not support the ultimate fact which the testimony may or may no support. Advocate's Witnesses: Constitutes a generally accurate summary of testimony. Constitutes a generally accurate summary of testimony. The second sentence is not, however, relevant. The suggestion in the next to the last sentence that "no reimbursement was sought" is not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. The last sentence is not relevant and/or is not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. Whether Mr. Caldemeyer's testimony was "repetitious" is not relevant. Constitutes a generally accurate summary of testimony. Constitutes a generally accurate summary of testimony. The last sentence is hearsay. Mr. Costage's Witnesses: Constitutes a generally accurate summary of testimony. Ms. Adkins testimony involved a period of time subsequent to the period of time at issue in this proceeding. Consequently, her testimony was not of much relevance. Nor was her testimony concerning what others did supported by the weight of the evidence. Not supported by the weight of the evidence. Constitutes a generally accurate summary of testimony. Mr. Costage's testimony was generally not supported by the weight of the evidence or was not relevant. The first three sentences are not supported by the weight of the evidence. The fourth sentence has been generally accepted in finding of fact 14. The fifth through seventh sentences are not relevant. With regard to the last sentence, see findings of fact 24- 29. Mr. Costage's proposed findings of fact end on page 7 of Mr. Costage's proposed recommended order. Beginning on page 7, Mr. Costage has provided argument and conclusions of law. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 George A. Routh, Esquire George A. Routh, P.A. 1446 Court Street Clearwater, Florida 34616 Bonnie J. Williams, Executive Director Commission on Ethics The Capitol, Room 2105 P. O. Box 6 Tallahassee, Florida 32302-0006
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's disability.
Findings Of Fact Mr. McMahon was a member of Suncoast beginning in approximately 1986. In 2008 and 2009, Mr. McMahon had a checking account, a VISA card, a savings account, and a loan with Suncoast. Mr. McMahon claims that he is disabled and that he suffers from personality disorders, post-traumatic stress, passive aggression, and obsessive compulsive disorder. No medical evidence was presented to substantiate his claims. He has been receiving benefits from the Social Security Administration based on a personality disorder since approximately 1996. Suncoast perceived Mr. McMahon as having a disability, based on his repeated assertions that he was disabled. In November 2008, Mr. McMahon filed a complaint with the Better Business Bureau of West Florida, Inc. (BBB), alleging that Suncoast was discriminating against him by not accommodating his communication disability. The BBB investigated and found that Suncoast had blocked access to Mr. McMahon's accounts because he was delinquent on a loan. The BBB contacted Suncoast concerning the complaint, and Suncoast provided Mr. McMahon a three-month payment due date extension on the loan, lowered his monthly payments, and unblocked his account. In January 2009, Mr. McMahon was delinquent on his loan. Again Suncoast tried to help Mr. McMahon with his delinquent account. At some point, Mr. McMahon's loan payments were put on automatic payments in order to reduce his delinquencies. Money would automatically be taken out of his account to make the monthly loan payments. Mr. McMahon had a direct deposit for his Social Security benefits payments. After the loan payments began being deducted automatically, Mr. McMahon canceled his direct deposits into the account from which his payments were automatically being deducted. Thus, there was no money in the account to make the monthly payments on his loan, and Mr. McMahon ceased making payments on the loan and again became delinquent on his loan. When one of Suncoast's members becomes overdrawn with regards to either a checking or savings account or credit card, or is delinquent in making payments on any credit card or loan obligation, that member loses access to his or her services, including use of all internet services, ATM cards, ATM machines, credit cards, and debit cards. The member would also be unable to access his or her account balance or make deposits into overdrawn accounts if the member attempted to make a deposit via ATM, as those services are suspended. These restrictions are typically automatically placed upon the accounts of any member with a delinquent loan account after 60 days of delinquency, and within 30 days of any overdrawn share draft account. Any member with a delinquent or overdrawn account, where services were suspended would be prevented from applying for a mortgage loan. If the member contacted Suncoast staff to apply for a mortgage loan or to utilize any other services, the member would be directed to the loss mitigation section of Suncoast, and loss mitigation would attempt to collect the debt or rectify the delinquency. Because Mr. McMahon again became delinquent on his loan payments after stopping the direct deposits, his accounts were restricted, meaning that he could not access the accounts. Mr. McMahon began a campaign of making repeated calls to Suncoast, screaming and yelling at Suncoast representatives, talking over the representatives, making vulgar statements, and using profanity. Mr. McMahon attributes his behavior to his communication disability and requested on numerous occasions that Suncoast accommodate his disability with "patience and understanding." A note was placed in the loss mitigation's note system and in Suncoast's host system, so that all employees of Suncoast who were working with Mr. McMahon could see and accommodate his request for patience and understanding. Suncoast representatives did provide Mr. McMahon with an abundance of patience and understanding. However, nothing seemed to appease Mr. McMahon, and his repeated calls were unproductive. Because of the repeated nature of Mr. McMahon's calls and his behavior during the telephone calls, there were numerous complaints by Suncoast's representatives to management. Jacqueline Gilbert (Ms. Gilbert), vice president of loss mitigation, determined that in order to protect Suncoast's representatives from Mr. McMahon's harassing behavior that all calls should be directed to her; Linda Fales (Ms. Fales), vice president of risk management, cardholder disputes, and DSA compliance for Suncoast; or Ben Felder (Mr. Felder), Suncoast's general counsel. Suncoast's representatives were advised that Mr. McMahon's calls should be transferred to Ms. Gilbert, Ms. Fales, or Mr. Felder. When the representatives would tell Mr. McMahon that they could not help him and that his call would have to be transferred, Mr. McMahon was verbally abusive to the representatives. Many times, if Mr. McMahon was going to be transferred, he would hang up and call right back to speak with a different representative. Sometimes, Mr. McMahon would call and hang up when a representative answered the call. At different times, Ms. Gilbert, Ms. Fales, and Mr. Felder talked with Mr. McMahon to attempt to discuss the reasons that his account was restricted. However, they had little success in communicating with Mr. McMahon because of his behavior. Although Mr. Felder was not able to service Mr. McMahon's account, he decided to handle all Mr. McMahon's requests and assign any work to be done to the appropriate employee because Mr. McMahon's behavior toward Ms. Gilbert and other Suncoast employees was unacceptable. Mr. McMahon did not make any loan payments between May 2009 and August 2009. During this same time period, Mr. McMahon's VISA credit card was well overdrawn. Carolyn Stepp (Ms. Stepp) had cosigned on Mr. McMahon's loan. On or about September 4, 2009, Suncoast exercised its "right of offset" and used funds in both Mr. McMahon's and Ms. Stepp's accounts to pay off the loan. There was still an outstanding balance of $1,046.86 on his VISA credit card. On September 10 and 14, 2009, Mr. McMahon asked to apply for a mortgage loan by telephone. He was not sure that Suncoast would give him a loan because of his delinquent accounts, but he felt that he should have the opportunity to apply because the loan had been satisfied when Suncoast exercised its right of offset. Although the loan was satisfied, Mr. McMahon still had an outstanding balance on his VISA credit card, which he had not been able to use for several months because his accounts had been restricted. He was advised that he would have to contact Mr. Felder to discuss the status of his account. On September 11, 2009, Mr. Felder and Mr. McMahon discussed his account. Part of the discussion concerned Suncoast's writing off Mr. McMahon's loan and VISA credit card balance, returning the offset amounts to Mr. McMahon's and Ms. Stepp's accounts, disbursing the remaining amounts in Mr. McMahon's account to him, and closing Mr. McMahon's accounts. At the conclusion of the conversation, Mr. Felder understood that Mr. McMahon was in favor of this solution and began to take steps to accomplish the tasks. Mr. Felder advised Mr. McMahon by telephone on September 17, 2009, that the tasks had been completed and that Mr. McMahon's accounts with Suncoast were closed, meaning that services at Suncoast were terminated and that Mr. McMahon's access to information was no longer available. Mr. Felder followed up the telephone conversation with a letter dated September 17, 2009, confirming the telephone conversation. Individuals who are not members of Suncoast are not qualified to apply for a mortgage loan with Suncoast. At the time that Mr. McMahon applied for a mortgage loan on September 14, 2009, his accounts at Suncoast were in the process of being closed. Mr. McMahon's requests to apply for a mortgage with Suncoast were not denied because Mr. McMahon was disabled. They were denied because Mr. McMahon had various account delinquencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Suncoast did not commit an unlawful housing practice and dismissing Mr. McMahon's Petition. DONE AND ENTERED this 27th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 27th day of April, 2011.
