The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code. Petitioner, Dr. Hoover, seeks to recover his attorney's fees and costs incurred in the defense of an action brought against him by the Department of Professional Regulation, Board of Medicine. The issues for determination are whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 92-2202, DPR Case No. 0104601, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or whether special circumstances exist which would make an award unjust.
Findings Of Fact The Department of Professional Regulation, a state agency, initiated action against Dr. Hoover by filing an Administrative Complaint on May 16, 1991, in DPR Case No. 0104601 (Hoover I); Dr. Hoover by election of rights requested a formal hearing; the case was referred to the Division of Administrative Hearings (DOAH) and was assigned DOAH #91-4068. (DOAH Case No. 91-4068: Administrative Complaint, Election of Rights form) The case was set for final hearing on November 13-14, 1991. Dr. Hoover requested a continuance on October 16 because he would be unavailable to assist counsel prepare for hearing. Hearing Officer Robert Meale denied his request. (DOAH Case No. 91-4068: Request for Continuance, Order Denying Continuance) The Department moved for a continuance on October 29th because the primary expert witness had gone to Japan and could not return in time for the hearing or depositions by Dr. Hoover. The Hearing Officer also denied this motion. (DOAH Case No. 91-4068: Petitioner's Motion for Continuance, Order Denying Continuance) On November 5, 1991, the Department filed a Notice of Voluntary Dismissal, Without Prejudice. (DOAH Case No. 91-4068: Notice) The Hearing Officer closed the DOAH file on November 13, 1991. (DOAH Case No. 91-4068: Order) Dr. Hoover then filed a Petition for Fees and Costs on November 21, 1991, and the case was assigned DOAH Case No. 91-7526F. (DOAH Case No. 91- 7526F: Petition) After formal hearing the Petition was denied by the Hearing Officer, who on March 31, 1992, ruled that "the Department has met its burden of showing that the filing of the Administrative Complaint was substantially justified." (DOAH Case No. 91-7526: Final Order) Immediately, without returning the case to the Probable Cause Panel, the Department served the same Administrative Complaint in DPR Case #0104601 on Dr. Hoover (Hoover II). By election of right, he again requested a formal hearing. (DOAH Case No. 92-2202) On April 8, 1992 two cases against Dr. Hoover were referred to DOAH, DPR Case #0104601 and #110008. They were assigned DOAH Case #92-2202 and 92- 2201, respectively, and were assigned to Hearing Officer Mary Clark, who consolidated them without objection. (DOAH Case Nos. 92-2201, 92-2202) Dr. Hoover's counsel withdrew and Mr. Brooten became counsel of record on May 4, 1992. (DOAH Case No. 92-2202) On May 14, 1992, Dr. Hoover filed his Motion to Dismiss DOAH Case #92- 2202. After oral argument the motion was granted by the Hearing Officer on September 16, 1992. (Recommended Order of Dismissal, DOAH Case No. 92-2202) The Hearing Officer held in her Conclusions of Law that the Department of Professional Regulation had no jurisdiction to dismiss a complaint, hold it in abeyance, and refile at its convenience without a new probable cause determination. The Hearing Officer also noted that the passage of time might yield changed circumstances and a changed result. (Recommended Order of Dismissal, DOAH Case No. 92-2202) On October 12, 1992, Dr. Hoover filed a Motion for Attorney's Fees and Costs which was denied without prejudice by the Hearing Officer on October 21, 1992, on the grounds that, without a final order, he was not a prevailing small business party. (DOAH Case No. 92-2202) On October 4, 1992, a Probable Cause Panel of the Board of Medicine again found probable cause in DPR Case #0104601. (Memorandum of Finding of Probable Cause, filed by DPR in DOAH Case No. 93-0168F) By Final Order filed on December 30, 1992, the Board of Medicine dismissed DPR Case #0104601 without prejudice. The Board of Medicine in its Conclusions of Law in the Final Order expounded and clarified the Board's intentions and interpretation of the governing statutes. The Board rejected the Hearing Officer's conclusions, but "in the interest of equity" determined that ". . . the disposition recommended by the Hearing Officer be ACCEPTED AND ADOPTED." (DOAH Case No. 92-2202) On February 8, 1993, the Department served the Administrative Complaint in DPR Case #0104601 (Hoover III) on Dr. Hoover. (Motion to Abate, filed 3/8/93 in DOAH Case No. 92-2201). DPR Case #0104601 (Hoover III) is now pending in the Fifth District Court of Appeal, Case #93-455, on a petition for writ of prohibition by Dr. Hoover. DOAH Case #92-2201 (DPR Case #0110008) is in abeyance, at the request of the parties, awaiting determination by the appellate court on the extraordinary writ. (Order of Abeyance dated 3/17/93 in DOAH Case No. 93-2201) It is uncontroverted that DOAH Case #92-2202 was initiated by a state agency, that Dr. Hoover prevailed when the case was dismissed, and that Dr. Hoover is a "small business party" as defined in Section 57.111(3)(d), F.S. The reasonableness of the claimed fees and costs, $10,376.22, total, is likewise uncontroverted.
Findings Of Fact In 1932, Respondent was driving one of three cars involved in an automobile accident in Ohio. Respondent was approximately 18 years old. Two females in one of the automobiles not driven by Respondent died in the accident. They were Ms. Clara Shaw and Ms. Betty Montgomery. In January, 1933, Respondent was indicted for manslaughter of Ms. Montgomery. 2/ Respondent was also indicted for "failure to stop in case of an automobile accident" ("failure to stop"). Manslaughter was a felony in Ohio in 1933. Failure to stop was not a felony. 3/ Respondent initially pled not guilty to both manslaughter and failure to stop. Pursuant to a plea bargain between Respondent's attorney and the state attorney, Respondent subsequently changed his plea and entered a plea of guilty to both manslaughter and failure to stop. In exchange for Respondent entering a guilty plea, Respondent was sentenced to six months in the county jail and placed on probation for one year. Respondent served only 37 days of his sentence. The balance of his sentence and the imposition of court costs was suspended during the court's April term. Respondent successfully completed his probation. Respondent was not found guilty of manslaughter in Ohio in 1933. There is no adjudication of guilt in the court file for either manslaughter or failure to stop. Only a certificate of sentence appears in the court file. A certificate of sentence was entered only for failure to stop. No certificate of sentence was entered for manslaughter. In 1933, Section 12404 of the Ohio General Code required a person who was found guilty of manslaughter to be: . . . imprisoned in the penitentiary not less than one year nor more than twenty years. The court had no authority to find Respondent guilty of manslaughter and then either impose a sentence of less than one year or allow Respondent to serve out that sentence anywhere except the state penitentiary. 4/ The court sentenced Respondent to six months in the county jail. Respondent served only 37 days of his six month sentence. None of those days were served in the state penitentiary. Respondent remained in Ohio until he moved to Florida in 1940 or 1941. The state of Ohio never prevented Respondent from exercising his civil rights. Once Respondent reached the age of 21, he voted in local, state, and national elections in Ohio. Respondent also voted in local, state, and national elections in Florida for 50 years. 5/ Respondent served in the U.S. military for 2 1/2 years after his criminal conviction in Ohio. Thereafter, Respondent was employed in the defense industry by North American Aviation and by Martin Marietta from 1951 through 1977. Respondent had a confidential security clearance at North American Aviation and a secret security clearance at Martin Marietta. 6/ Respond disclosed his Ohio criminal record during security checks required for both North American Aviation and Martin Marietta. Respondent has been licensed to carry a concealed weapon in Florida for approximately seven years. He is applying for the third renewal of that license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of being "found guilty" of a felony in another state, within the meaning of Section 790.23(1)(d), and granting Respondent's request for the license at issue in this proceeding. RECOMMENDED this 25th day of July, 1995, in Tallahassee, Florida. DANIEL MANRY 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 25th day of July, 1995.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings, Respondent was a licensed Ordinary Life, including Disability Agent, doing business as Steven Miller Insurance and Associates located at 718 Broadway, Suite 2, Daytona Beach, Florida. On June 2, 1983, the Respondent was charged by a Criminal Information in Case No. 83-2219-CC with two (2) felony counts, Count I being presentation of a fraudulent insurance claim, in violation of section 817.234, Florida Statutes, and County II being grand theft of the second degree, in violation of section 812.014, Florida Statutes. On January 5, 1984, the Respondent entered a plea of nolo contendere to the felony offense of Grand Theft of the Second Degree, a Third Degree Felony, Case No. 83-2219-CC, in the Circuit Court for the Seventh Judicial Circuit of Florida in and for Volusia County, Florida. On January 5, 1984, the Circuit Court for the Seventh Judicial Circuit accepted Respondent's plea of Nolo Contendere and placed Respondent on three (3) years of supervised probation, withholding adjudication of guilt and imposition of sentence. On July 8, 1985, Respondent was discharged from probation after successfully completing eighteen (18) months of his three (3) year probationary period. Respondent's testimony was that: (1) his boat, a 24- foot Regal Royal was taken while parked across from his home just prior to June 29, 1982; (2) he reported the theft to the Daytona Beach Police Department on June 29, 1982; (3) he filed an insurance claim several months after reporting the theft to the police and was paid; (4) approximately one (1) year later his boat was found in the possession of his wife's sister and her husband; and (5) he plead nolo contendere to the charge of grand theft on advice of counsel that a plea of nolo contendere was the same as pleading innocent, would not affect his insurance license and the plea would avoid putting a strain on his marriage. Mainly this testimony went unrebutted by the Petitioner.
Recommendation Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the Respondent be found guilty of violating section 626.611(14), Florida Statutes. For such violation, considering the circumstances surrounding the violation, it is RECOMMENDED that the Petitioner enter a final order suspending the Respondent's license for a period of two (2) years. DONE and ENTERED this 24th day of October, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of October, 1985. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact No. 1. Adopted in Finding of Fact No. 2. Adopted in Finding of Fact No. 3. Adopted in Finding of Fact No. 4 with the exception of the language that "Respondent was sentenced." Petitioner's Exhibit No. 3 specifically states that sentence was withheld and Respondent was placed on probation. Rejected on a conclusion of law rather than a proposed finding of fact. Adopted in Finding of Fact No. 5 with the exception of the date July 1, 1985. Respondent's Exhibit No. 2 shows the order was entered on July 8, 1985. Rulings on Respondent's Proposed Findings of Fact: (Respondent did not number the paragraphs in his Proposed Findings of Facts but for purposes of this Appendix a number has been assigned to each paragraph.) This information was considered as background information and, therefore, covered in the background portion of this Recommended Order. Adopted in Finding of Fact No. 1. This information was considered as background information and, therefore, was covered in the background portion of this Recommended Order. The information in the first sentence was considered as background information and, therefore, was covered in the background portion of this Recommended Order. The second sentence is Respondent's interpretation of what Petitioner alleges and is not a finding of fact but more a conclusion of law. 5.-6. Other than as adopted in Finding of Fact No. 6, rejected as immaterial, unnecessary and unsupported hearsay. 7. Adopted in Finding of Fact Nos. 4 and 5 with the exception of the language "after completing six months he was released." Petitioner's Exhibit No. 2, Respondent's Exhibit No. 2 and Respondent's testimony on lines 15-19, page 15 of the transcript shows Respondent served eighteen (18) months of his probationary period. COPIES FURNISHED: Lisa Santucci, Esquire 413-B Larson Building Tallahassee, Florida 32301 Thomas F. Woods, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette Street Tallahassee, Florida 32301 Honorable William Gunter Department of Insurance and Treasurer State Treasurer and Insurance Commissioner The Capitol - Plaza Level Tallahassee, Florida 32301
The Issue Whether Respondent failed to properly represent Petitioner when she was terminated from her position as a school bus driver by the Seminole County School District on or about June 1994, on the basis of her race (African-American) and handicap, in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Seminole County School Bus Drivers' Association, Inc. (Respondent), is a labor organization as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by the Seminole County School Board (District) as a school bus driver during the relevant period of time from 1985 until June 1994. At the end of the 1993-1994 school year, Petitioner was terminated as a bus driver by the District. At said time, Petitioner was a member of the Seminole County School Bus Drivers' Association. Petitioner is an African-American female and a licensed bus driver. Joe Wicks (Wicks), who worked for Respondent and assisted Petitioner in her efforts to preserve her job at the end of the 1993-94 school year, is also African-American. Respondent is a public sector union affiliated with the Florida Teaching Profession/National Education Association (FTP/NEA). The FTP/NEA manages the staff associated with its affiliated unions through entities called UniServ offices. Nancy Wheeler (Wheeler) served as the executive director of the Seminole UniServ at the time Petitioner's employment was terminated by the District in 1994. In that capacity, Wheeler managed UniServ staff members who provided assistance to Respondent's members. Another of Wheeler's duties as executive director was to advise Respondent's Board about the merits of particular grievances for which arbitration is requested by the member. Respondent's Board has authority over the arbitration process used to enforce the collective bargaining agreement between bus drivers and the District. Over the years Wheeler served as executive director, 30 to 40 percent of Respondent's members have been African-American and Respondent's Board has been proportionally represented with African-Americans as well. The grievance process available to members of Respondent consisted of the following steps: 1) Informal efforts to resolve dispute; 2) Step I hearing before the employee's immediate supervisor; 3) Step II hearing before the Superintendent or his designee; 4) Step III binding arbitration before neutral arbitrator. At the end of the 1993-94 school year, District transportation officials proposed the employment termination of eight of Respondent's members because of their poor attendance patterns. In late May 1994, Respondent filed a grievance on behalf of Petitioner concerning the District's proposed termination of her employment in which it alleged that the District did not have just cause to support Hampton's termination. That grievance was pursued through Step II. Although the District ultimately decided to retain the employment of five of these bus drivers, no driver received assistance from Respondent beyond the Step II level of the grievance process. Further, there was no obvious race- related pattern in the District's decision to retain only some of the drivers. Three of the eight drivers were African- American, and three white drivers and two African-American drivers from among them were ultimately retained by the District in June 1994. Petitioner experienced depression, a brief period of situational grief due to the unexpected death of a boyfriend, in early 1994 but suffered from no other medical condition during the 1993-94 school year. At the end of January 1994, Petitioner's treating physician (Dr. Fraser) authorized her to return to work after a short leave period. Petitioner, in fact, returned to her job as a driver for the rest of the 1993-94 school year. Petitioner fully recovered from her "depression" several months later and was able to return to full-time employment elsewhere by the end of 1994. Although information about Petitioner's situational depression and her medical and other absence excuses was presented to Joseph Wise, Transportation Director (Wise), at the Step I Grievance hearing and to Dr. Paul J. Hagerty, Superintendent (Superintendent), at the Step II Grievance hearing, the School District's decision-makers (Wise and Superintendent Hagerty) determined there was just cause for Hampton's termination due to her long history of excessive absenteeism. In deciding whether to take Petitioner's grievance to arbitration, Respondent followed its normal practice including a personnel file review by Wheeler followed by her recommendations to Respondent's Board. Wheeler reviewed Petitioner's evaluation and disciplinary history concerning attendance problems and determined her case lacked sufficient merit to warrant taking it to arbitration. Those records reflected a five-year history of poor attendance, disciplinary warnings, and discipline imposed for poor attendance. Respondent's Board accepted Wheeler's recommendation that it not take Petitioner's case to arbitration. Respondent had successfully assisted Petitioner with prior employment problems she encountered over the years without incident or complaint by Petitioner. Neither Respondent's Board nor any staff member of Respondent, including Wicks and Wheeler, harbored any animus toward Petitioner. Assistance with her 1994 termination grievance though Step II was provided by Respondent absent any consideration of race or disability. Further assistance was appropriately denied to Petitioner on the basis of her employment history which strongly supported the charges against her and rendered an arbitration proceeding to challenge the termination futile. Petitioner's race and disability status played no role in Respondent's decision to forego taking Petitioner's grievance to arbitration. Transportation Department officials, and ultimately the Superintendent, had complete authority over the final employment decisions made regarding Petitioner and the other bus drivers whose termination had been recommended by Wise at the end of the 1993-94 school year. At no time did Respondent, or any agent thereof, have any authority to control or reverse these decisions. On May 27, 1994, Wicks and Petitioner signed and submitted a request for legal services to the FTP/NEA on the same day Respondent filed the grievance on Petitioner's behalf. The legal services document is a request that the FTP/NEA provide any legal assistance it might deem appropriate. The form specifically states that the FTP/NEA may decide to do so in its discretion. Wheeler did not have the authority to provide any legal services to Petitioner for the FTP/NEA; rather, that authority rested with the General Counsel of the FTP/NEA. Had Respondent taken Petitioner's grievance to arbitration, Wheeler, and not an attorney, would have handled the matter as was Respondent's usual practice. Petitioner's position that her request for legal services must be honored or it would be a violation of the labor contract is not supported by the evidence. Petitioner did not suffer from a medical condition of sufficient severity and duration to entitle her to the disability protections of the Florida Civil Rights Act. The medical evidence showed, however, that even those documents proved Petitioner's own physician (Dr. Fraser) repeatedly approved her return to work during the months in question, and that he did not expect the condition to have a significant impact on her once the proper medication regimen could be established. In fact, Dr. Fraser's note of May 11, 1994, states that he expected the medication-related side effect problem to be corrected over the next few weeks. Petitioner testified, and the medical records confirm, that she took a period of leave because of her grief- related problems and that she worked from February to June 1994. Although Petitioner missed some days intermittently during the remainder of the year. Dr. Fraser returned her to work in short order each time. Petitioner also testified that she obtained and sustained other full-time employment by the end of 1994 and that she has not been treated for "depression" since 1994. It is obvious from the record that Petitioner's physician did not consider her condition to be so significant as to prevent her from working after the immediate period of grief for which she sought and was granted leave. Neither Wicks, Wheeler, Respondent's Board, nor any agent of Respondent took any action concerning Petitioner which was motivated by her race or medical condition. Petitioner filed her Petition for Relief with the Florida Commission on Human Relations (FCHR) on April 5, 1999. The filing of the Petition was more than 35 days after the determination of no reasonable cause by the FCHR.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which dismisses the Petition for Relief for lack of jurisdiction and/or denies the Petition on the merits. DONE AND ENTERED this 24th day of February, 2000, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings 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 this 24th day of February, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Mae Vanessa Hampton Laurel Oaks Apartments 8775 Orange Court Tampa, Florida 33637 Pamela Cooper, Esquire FTP/NEA 213 South Adams Street Tallahassee, Florida 32301 Anthony D. Demma, Esquire Meyer & Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32301
Findings Of Fact On Tuesday, April 24, 1979, respondent went to the home of Alberta Cross in Melbourne, Florida, to see Ms. Cross' daughter, Sandra Young, mother of his two children. At the time, respondent was having an argument with Sandra Young. Frank Bell, a friend of Ms. Cross for several years, was at her house when respondent called on Ms. Young. Mr. Bell pointed a gun at respondent and ordered him off the property. Ms. Young threw herself between respondent and Mr. Bell and then left with respondent in the van in which he had arrived. After talking things over with a friend, respondent decided to swear out a warrant for Mr. Bell's arrest. As a result, Mr. Bell was arrested the following day. He was released from jail on bond, on April 26, 1979, a Thursday. Some seven years earlier, Mr. Bell and respondent had confronted one another at Ms. Cross' house. On that occasion, too, Mr. Bell pointed a gun at respondent. Between 5:00 and 5:30 on the afternoon of April 26, 1979, Mr. Bell arrived at the home of Linda Marie Harden. Ms. Harden lived within sight of respondent's father's house. A little before 7:00 o'clock on the evening of April 26, 1979, Mr. Bell left the Harden residence in a 1964 Chevrolet sedan. Both windows on the left hand side of the vehicle were rolled up. The left front door window was held together with tape and could not be rolled down. The left front door could not be opened from the inside of the car. As Mr. Bell turned a corner in front of respondent's father's house, respondent took up position with a shotgun, threw a cinder block at the car, and, when Mr. Bell turned around to see what had caused the noise, fired a single shot which blew out both windows on the left hand side of the car, hit Mr. Bell in the left shoulder, forehead, back of his head, and left eye, knocked him over in his seat, and resulted in his hospitalization for nine days. After the shooting, respondent fled. Respondent could have avoided a confrontation with Mr. Bell by taking cover. Respondent's father and respondent's son were sitting in the front yard with respondent, beside one of two vans parked in the front yard, when respondent first spotted Mr. Bell's car. Respondent's father grabbed his grandson and ran for the house before the shooting. Instead of making a run for the house or taking shelter behind a van, respondent threw the cinder block and fired the shotgun. When the police arrived, they found a pistol on the right hand side of the floor in the back of Mr. Bell's car. Mr. Bell did not point this gun at respondent on April 26, 1979; Mr. Bell did not even see respondent before the shot was fired. As a result of these events, respondent was tried on charges of aggravated battery. In those proceedings, as in these, he raised the defense of self defense. The criminal trial eventuated in an acquittal. Three young people, including two of respondent's former students, witnessed the shooting. News of the incident spread rapidly. The next day, respondent's principal received eight to ten telephone calls from parents with remarks like "Surely you won't let a murderer stay in the classroom." Other parents complained in person and two students mentioned the incident to the principal. Respondent was suspended on April 27, 1979, and subsequently fired, by the Brevard County School Board. After respondent's acquittal, 120 students signed a petition for his reinstatement.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Education suspend respondent's teaching certificate for three years. DONE and ENTERED this 24th day of January, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: J. David Holder, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 C. Anthony Cleveland, Esquire 208 West Pensacola Street Tallahassee, Florida 32304
Findings Of Fact Respondent, George Thomas Darby, at all times relevant to these proceedings, was licensed as a professional bail bondsman and limited surety agent. The Respondent was previously licensed as an ordinary-combination life, including disability agent, but such license expired on March 30, 1981. On January 7, 1982, a grand jury indictment was issued in the United States District Court for the Northern District of Florida, Panama City Criminal Division, against the Respondent, George Thomas Darby. The indictment specifically charged that the Respondent: Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other stated individuals to possess with the intent to distribute more than 1,000 pounds of the Schedule I control substance marijuana, in violation of Sections 841 and 846 of Title 21 of the United States Code. Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other specified persons to import into the United States the Schedule I control substance marijuana in violation of Sections 952 and 963 of Title 21 of the United States Code. Did knowingly and intentionally import into the United States a Schedule I control substance in violation of Section 952 of Title 21 and Section 2 of Title 18 of the United States Code. Did knowingly and intentionally possess with the intent to distribute the Schedule I control substance marijuana in violation of Section 841 of Title 21 and Section 2 of Title 18 of the United States Code. On July 14, 1982, George Thomas Darby was convicted in the United States District Court for the Northern District of Florida, Panama City Criminal Division, as follows: Defendant has been convicted as charged of the offense of from on or about January, 1975, until the date of the indictment, in the Northern' District of Florida and elsewhere, knowingly combining, conspiring, and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952 and 963, as charged in Count 111(3) of the indictment. Pursuant to the above conviction, the Respondent, George Thomas Darby, was sentenced to a term of five years imprisonment and fined $15,000. The Respondent, by answer, admitted and further, at the formal hearing by stipulation, accepted as true the following facts: That you, George Thomas Darby, on or about July 14, 1982, in the United States District Court of the Northern District of Florida, in Case No. MCR 82-00203-07, were found guilty of knowingly combining, conspiring and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952, and 953, as charged in Count 111(3) of a previous grand jury indictment, Criminal Case No. MCR82-00203. The violation of either of the aforementioned titles is a felony as defined by Title 18, U.S.C. Section I(1). The Respondent has been licensed as a professional bail bondsman since October, 1976. His primary business as a bail bondsman has been in Jackson County, Florida. The Respondent has had no prior criminal convictions and no complaints or other disciplinary actions by the Department of Insurance against any license held by him from that Department. The Respondent has voluntarily ceased writing bail bonds since February of 1982, to the date of the hearing. Prior to the above-referenced conviction, the Respondent enjoyed a reputation as an honest, hardworking, and law-abiding citizen in the Jackson County area. On January 31, 1983, Clyde M. Taylor, Jr., Esquire, counsel for the Respondent in the above-referenced criminal action, filed an appellate brief in the United States Court of Appeal for the Eleventh Circuit on behalf of George Thomas Darby, seeking to reverse the July 14, 1982, district court conviction. At the time of the formal hearing, this appeal was pending.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Insurance enter a Final Order dismissing its Administrative Complaint against the Respondent, George Thomas Darby. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance Suite 413-B, Larson Building Tallahassee, Florida 32301 Clyde M. Taylor, Jr., Esquire 1105 Hays Street Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1983.
The Issue The issue presented is whether Respondent should deny Petitioner's application to be licensed as a resident personal lines insurance agent.
Findings Of Fact Respondent is the state agency responsible for licensing insurance agents in the state pursuant to Chapter 626, Florida Statutes (2004). On October 29, 2004, Respondent received Petitioner's application to be licensed as a resident personal lines insurance agent (insurance agent). On October 13, 2005, Respondent issued a Notice of Denial to Petitioner. Respondent based the denial on several grounds that fall into three categories. The first category is based on Petitioner's prior criminal history. In relevant part, the Notice of Denial denies the application because Petitioner pled nolo contendere to a crime punishable by imprisonment of one year or more. The Notice of Denial further states that the crime was one of moral turpitude and that Subsection 626.611(14), Florida Statutes (2004), makes denial of the application compulsory. Even if the crime were not one of moral turpitude, the Notice of Denial states that the plea of nolo contendere provides a discretionary ground to deny the application pursuant to Subsection 626.621(8), Florida Statutes (2004). The Notice of Denial states a second category of grounds that are also compulsory. The second category of grounds may be fairly summarized as alleging a lack of fitness or trustworthiness to engage in the business of insurance. The second category of grounds generally relates to turpitude inherent in the criminal offense and an inaccurate application answer stating that Petitioner had no prior criminal record. The Notice of Denial states that Petitioner lacks one or more qualifications for the license, that Petitioner committed a material misstatement or misrepresentation on her application, and that Petitioner demonstrated a lack of fitness or trustworthiness to engage in the business of insurance as provided in Subsections 626.611(1), 626.611(2), and 626.611(7), Florida Statutes (2004). The third category of grounds relates to waiting periods. The Notice of Denial states that Petitioner must wait 17 years from the date she pled nolo contendere before applying for a license as an insurance agent. The waiting period is based on agency rules in Florida Administrative Code Rules 69B-211.042(4)(b) and 69B-211.042(8) that are promulgated pursuant to Subsection 626.207(1), Florida Statutes (2004). The remaining Findings of Fact address the factual sufficiency of the second category of grounds for denial. The conclusions of law, in relevant part, address the legal sufficiency of the remaining grounds for denial. The criminal record of Petitioner is not disputed. On October 4, 2004, Petitioner pled nolo contendere to a third degree felony of grand theft in the Circuit Court in and for Pasco County, Florida, Case No. CRCO4-1177-CFAES. The court withheld adjudication of guilt and imposed fines and costs of $395. Petitioner served 30 days in the Pasco County jail. The court placed Petitioner on supervised probation for 18 months, which Petitioner successfully terminated early on September 27, 2005. Petitioner contests neither the inaccuracy of the application answer stating she had no prior criminal record nor the materiality of the inaccuracy. However, Petitioner does contest the agency's assertion that Petitioner possessed the culpable knowledge or scienter required to misstate, misrepresent, or commit fraud in attempting to obtain a license within the meaning of Subsection 626.611(2), Florida Statutes (2004). Petitioner also contests the assertions that she lacks one or more qualifications for licensure and that she lacks fitness or trustworthiness within the meaning of Subsections 626.611(1), 626.611(2), and 626.611(7), Florida Statutes (2004). Petitioner testified that her employer submitted her application electronically. Petitioner testified that she gave her employer accurate information concerning her application, but she did not review the application before transmission. The trier of fact finds the testimony concerning Petitioner's lack of culpable knowledge to be credible and persuasive. Petitioner testified with extraordinary candor. Her demeanor was frank and unguarded. Her denial of culpable intent to mislead the agency is consistent with the totality of evidence in this proceeding and with Petitioner's demonstrated fitness and trustworthiness after November 2002. After Petitioner gave birth to a son on March 20, 2002, her treating physician advised her to undergo a tubal ligation, and the subsequent surgery was successful. The resulting inability to bear more children, however, led Petitioner into a mental state that was subsequently diagnosed as severe clinical depression. Petitioner returned to work approximately 12 weeks after surgery. From August 2002 through November 2002, Petitioner engaged in an episode of compulsive spending in which she incurred approximately $70,000 in credit card debt that she charged to personal and business credit cards. In order to pay the debt, Petitioner began taking money from her employer. Petitioner describes her hedonistic offense in her own words: [T]his incident occurred when I was suffering from severe depression that was [subsequently] diagnosed by a physician. I have been under the treatment of a psychiatrist and also a psychologist. I still see my psychiatrist quarterly to make sure that all is well with my medications . . . . The psychologist released me from her care because she felt that I can now deal with everyday stress. . . . So in order to fill that void [of no more children] I started shopping. And I would - I would go to the mall in a day and I would spend several thousand dollars on absolute garbage, you know, when you look. I mean. I started buying clothes; I bought furniture. I just was a shopaholic. I would go every Saturday and Sunday and spend time at the mall and just shop like crazy. [M]y husband had no idea of our finances. He just gave the paycheck and said: You do what you need to do. As long as he could have cash he didn't care. So he had no idea. He didn't even know how much money I made; he didn't know how much our mortgage was; he didn't know anything about our finances. And then once I started having all these credit card bills then I was, you know, robbing Peter to pay Paul . . . . And then it just got where I snapped . . . . And . . . unfortunately it looked like the easy way out. It was an answer to my problems and I could continue doing what I needed to do. [T]he attorney [employer] pretty much left me to do what I needed to do. I wrote all of his court motions, and I wrote all of his pleadings, and accountings, and inventories, and he didn't even look at them. He would just sign them. He didn't review them at all. And so when I would give him checks to sign . . . I would just take him the check and say, "I need you to sign a check," and he would sign the check and wouldn't even look to see . . . it was [to me]. Transcript (TR), pages 15 and 24-26. After November 2002, Petitioner voluntarily disclosed her offense to her employer. Petitioner's effort to reclaim her integrity and trustworthiness was both epiphanic and Herculean. The effort is best described in her own words: I started contemplating suicide and said: Oh, well, this will take care of all the problems. But then I had read up and didn't want my kids to grow up without a parent or think that for some reason they caused me to do it. So at that point in time I was just - I didn't know what to do or where to turn. I was just completely lost. And so I hadn't been to church in like a year. For whatever reason the Sunday before the Monday that I went to [an] attorney I went to church and they told a story. And I said: You know, I'm willing to confess to what I've done at whatever cost because I can't - I can't keep going like this, and I can't keep pretending like nothing is wrong, and laying in bed and the couch all day. So I went to [an] attorney the very next day. Q. Do you need a moment? A. I'm okay. * * * In January 2003, I'm sorry. This is hard reliving it. THE COURT: That's okay. Take your time and if you need a recess just let me know. A. This is the first time that I just really said it out loud. THE COURT: Yes. A. In January of 2003, I contacted [an attorney]. I informed him . . . that I had done something wrong and I didn't know where to turn to or who to turn to. At this point in time I hadn't told my family and nobody knew. All they knew is that something was wrong with me. I wasn't myself. I was withdrawn and I stayed in bed . . . all day. The attorney immediately contacted my former employer to advise that there was a problem with his accounting system. Up until this time he had no knowledge of any . . . problems. My attorney also contacted a doctor for me to see immediately because he could tell that something was not right with me. At this time that my attorney contacted my former employer I offered to make immediate restitution, which I did [over time]. At this point in time my employer said that he did not want to contact any authorities because he didn't want the publicity in a small town. And as far as I knew, the situation was taken care of. I was making restitution and I thought it was over. At some point in time my former employer contacted the Federal Bureau of Investigation (FBI). After meeting with the FBI, I agreed to assist them because my former employer was billing my time as the attorney's time in guardianship cases. This would cause clients to run out of money and become eligible for Medicaid and other state governmental services. The federal government ended up dropping the charge against me and I . . . agreed to assist them in any cases against my employer. When things were not moving along in the federal case my former employer also contacted the local authorities. I was arrested on May 1 of 2004. And this was almost - this was almost a year-and-a-half after I had first come forward. And then in September 2004, my attorney was ready to go to trial. At the last minute the State Attorney offered a plea deal. I was told that I could finally put this nightmare behind me by pleading no contest and I would have no criminal record because the court would withhold adjudication. [T]he judge made a point to mention that adjudication was being withheld so I would have no felony criminal record. And also at this time there was no restitution ordered because I had already paid it all back. TR at 15-18. Petitioner paid approximately $85,000 in restitution. Restitution was a Sisyphean effort, as Petitioner explains: I paid back cash. I had taken - I had calculated $40,000. He said that I calculated - that I had taken $60,000 and then he raised it to $80,000 for his time. But I - I paid back $45,000 in cash. The credit card companies, he contacted every credit card company that I paid and they all reversed all of their [charges]. So I ended up owing, you know, another $45,000 back in credit cards that he had . . . all the payments reversed. . . . So I paid a total - it was $85,000. * * * [W]e sold everything we had. . . . We sold our home. I had bought my husband a third vehicle. We sold that. We had a motorcycle that sold. We had a lot of toys. TR at 27-28. The trier of fact is not persuaded that Petitioner would have lied on her license application in October 2005 after voluntarily disclosing her offense in January 2003. When Petitioner exercised a conscious choice to confess her offense, she knew with certainty that shame would follow her exposure to her husband and children. Petitioner also knew that her choice would subject her family to the financial hardship and social upheaval inherent in selling everything they owned to make restitution to her former employer. Petitioner learned a new occupation, contributed to her family's recovery, and testified candidly and frankly about her offense. When the court sentenced Petitioner to 30 days in jail, Petitioner requested that she be allowed to serve the sentence every other weekend. Petitioner worked during the week and did not want to be away from her children all week and every weekend. The judge granted the request. The trier of fact finds that Petitioner neither misstated nor misrepresented her criminal record on her license application. Nor did Petitioner commit fraud in answering the questions on the application within the meaning of Subsection 626.611(2), Florida Statutes (2004). The trier of fact finds that Petitioner does not lack one or more of the qualifications for licensure required in Subsection 626.611(1), Florida Statutes (2004).1 Nor does Petitioner demonstrate a lack of fitness or trustworthiness to engage in the business of insurance within the meaning of Subsection 626.611(7), Florida Statutes (2004).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order determining that Petitioner's license application has been granted by operation of law. DONE AND ENTERED this 17th day of May, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2006.
The Issue The issue is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration, enter a final order denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
