The Issue The issue is whether the Respondent discriminated against the Petitioner on the basis of his disability, and whether the Respondent’s discharge of the Petitioner from employment was unlawfully based upon his disability, in contravention of Section 760.10, Florida Statutes (2003), and the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. Section 1201 et seq.
Findings Of Fact The Petitioner worked for the Respondent from September 17, 1999 through July 9, 2002. At the time of his termination from employment on July 9, 2002, the Petitioner worked in the Respondent’s Pensacola, Florida, Store No. 1605 under the supervision of Front End Assistant Manager Jackie Lewis and Store Co-Manager Rodney Snyder. The Petitioner’s last position with Wal-Mart was as a “People Greeter,” working eight-hour shifts. The Petitioner suffers from diabetes. On his employment application, the Petitioner indicated that he was able to work any scheduled hours and was seeking full-time employment. The Petitioner’s diabetes did not interfere with his ability to secure full-time employment. The Petitioner began his employment with the Respondent in Pensacola, Florida, Store No. 1222 as a maintenance associate, handling janitorial tasks. During the time he worked as a maintenance associate the Petitioner had his diabetes “under control.” The Petitioner completed an ADA “Job Matrix” form provided by the Respondent, on which he represented that he was able to perform all essential functions of his position without the need for any accommodation. No mention was made by the Petitioner at that time of his diabetic condition or resulting need for an accommodation. The Petitioner had “run-ins” with store management during his tenure as an employee of the Respondent. The Petitioner had a “run-in” with a Meat Department Manager over an assignment to mop-up a sugar spill, which the Petitioner refused to do. The Petitioner complained about supplies, or the lack thereof, at the store. The Petitioner admitted that there were tasks he simply refused to perform. The Petitioner had several problems with his co- workers and managers. On August 28, 2001, the Petitioner’s poor work attitude was cited on his annual performance appraisal, which was termed “below expectations.” During the course of his employment with the Respondent, the Petitioner was disciplined on several occasions through Wal-Mart’s “coaching” process. On February 17, 2001, the Petitioner received a “written coaching” for his failure to perform assigned job tasks, and he was informed that he needed to improve his job performance. Neither the annual performance rating nor the “coaching” session was caused by the Petitioner’s medical condition. On July 31, 2001, the Petitioner received a more severe form of coaching, a “Decision-Making-Day.” The coaching indicated that the Petitioner failed to complete jobs in a timely manner, questioned the authority of his managers, and had trouble following the directions of supervisors. The Petitioner was informed that if his performance did not improve he would be terminated. The Petitioner was given a day off to consider whether he wanted to continue to work for the Respondent and to prepare a performance action plan. In his performance action plan, the Petitioner indicated he would be more productive and approach his work with a more positive attitude. Following his performance action plan, the Petitioner requested and was granted a transfer to the position of "People Greeter," who works at the front of the store and welcomes customers as they enter the store. A "People Greeter" also performs certain tasks related to security. The Petitioner claimed to have given the Respondent’s personnel office a doctor’s note on June 27, 2002, indicating that the Petitioner needed a break every two hours in order to properly regulate his medication. The note made no mention of the Petitioner’s diabetic condition. The Respondent disavows any knowledge of receipt of a note concerning the Petitioner’s medical condition and need for frequent breaks. The Petitioner claimed that he was not always given the breaks he needed to regulate his medication. Given the nature of retail operations, in terms of the ebb and flow of shoppers entering the store, regular breaks are not always possible. Prior to the alleged submission of the doctor’s note on June 27, 2002, the Petitioner received coaching from his supervisors. On June 22, 2002, the Petitioner received verbal coaching from Ms. Jacqueline Lewis concerning his lack of respect for Customer Service Managers and other store management. Ms. Lewis received a statement from the Petitioner’s trainer indicating he refused to follow Wal-Mart policies for the "People Greeter" position. Ms. Lewis received written complaints from other co- workers of the Petitioner concerning his performance as a "People Greeter." All of these statements were factors in Ms. Lewis’ evaluation of the Petitioner’s performance as a "People Greeter." On the day of his termination, the Petitioner shouted 75-feet across the front of the store to the Customer Service Manager, requesting that she contact Ms. Lewis about issues taking place in the front of the store. He called a second time when his first request went unheeded. This behavior took place in front of store customers. Based upon the shouting incident, the Petitioner’s violation of policies, and the written complaints from co- workers, the Respondent terminated the Petitioner’s employment on July 9, 2002. The specific reasons given for the Petitioner’s termination were his inability to perform his job and for his not being respectful of other associates. The Petitioner believes that his co-workers and supervisors were aware of his diabetes. No co-workers or supervisors of the Petitioner testified at hearing that they were aware of the Petitioner’s diabetes. Ms. Lewis, the Front End Assistant Manager in the store, was not aware of the Petitioner’s diabetes. Ms. Carolyn Miller, the head Customer Service Manager for the store, was not aware of the Petitioner’s diabetes. Mr. Snyder, the store co-manager, was not aware of the Petitioner’s diabetes. Upon termination from employment with Wal-Mart, the Petitioner secured a Florida security guard license on his first try and obtained work as a security guard. The Petitioner was able to work a full eight-hour shift while employed by the Respondent. The Petitioner was able to perform the duties of his maintenance position when he held that job. At the time of his termination, the Petitioner was actively seeking a new position with Wal-Mart in the heating and ventilation area. When the Petitioner was unable to perform tasks associated with his employment, he attributed this to “old age,” and not his diabetes. The Petitioner planned to open his own steam cleaning and air conditioning repair business while he worked at Wal-Mart and felt physically able to do so. Since his termination from Wal-Mart, the Petitioner has secured gainful employment as a security guard at various factories, involving activities such as walking and driving trucks. The Petitioner has plans to rewire his house by himself. The Petitioner’s diabetes is kept in control by medication, and he does not require insulin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that the Respondent did not discriminate against the Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 20th day of April, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 20th day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John M. Dickson 7870 Castlegate Drive Pensacola, Florida 32534-4555 Richard L. Ruth, Esquire Ford & Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondents committed the offenses set forth in the Administrative Complaint and, if they did, the penalties, if any, which should be imposed.
Findings Of Fact On May 15, 1989, Petitioner filed an Order to Cease and Desist, Administrative Charges and Complaint with Notice of Rights against several parties including the following Respondents to the instant proceeding: Habersheir Securities, Inc. (Habersheir); Raymond Hayden (Hayden); Sharieff Mustakeem (Mustakeem); and Frank J. Hurt, III (Hurt). By Order Imposing Sanctions entered November 30, 1989, a default pursuant to Rule 1.380(b)(2)(C), Florida Rules of Civil Procedure, was entered against Habersheir, Hayden, and Mustakeem. No appearance was made by Habersheir, Hayden, or Mustakeem at the formal hearing, although Notice of Hearing was served upon them. Habersheir is a corporation whose main office in Atlanta, Georgia, has been registered with Petitioner as a broker/dealer since June 22, 1987. The Florida branch office of Haersheir was located at 100 West Cypress Creek Road, Suite 810, Fort Lauderdale, Florida 33309. The branch office was registered with Petitioner on September 29, 1988. At all times pertinent hereto, Mustakeem was the president of Habersheir and the majority owner of its stock, while Hayden was a vice- president of Habersheir. At the time of the final hearing, neither Mustakeem nor Hayden was registered with Petitioner. At all times pertinent hereto, Hurt was qualified for registration with Petitioner as a principal. Hurt's registration with Petitioner had not, prior to the filing of this matter, been disciplined. The application submitted by Habersheir to Petitioner on September 7, 1988, listed Hurt as the "Designated Manager in Charge Registered as Principal in Florida". Form BD is a form required by Petitioner in the application process. On Schedule E of the Form BD filed by Habersheir on November 14, 1988, Hurt is listed as the "Supervisor" of the Florida Branch. Hurt's name and his registration with Petitioner as a principal were used in connection with the registration of the Florida Habersheir branch to gain a favorable review of the application by Petitioner. Such use was without compensation to Hurt, but was with his knowledge and permission. Hurt was a salesman who had been employed by Habersheir for a short period of time when the application for the Florida branch office was filed. He was not an officer of Habersheir and had no managerial authority. At no time did Hurt intend to serve the Florida branch office of Habersheir in any capacity and at no time did he have any authority to supervise or otherwise manage that office. Representatives of Habersheir transacted business in Florida between September 7, 1988 and September 28, 1988, prior to Habersheir's branch office being registered in Florida with Petitioner on September 29, 1988. Associated persons working for Habersheir sold securities in or from the branch office in Fort Lauderdale, Florida prior to the associated persons being registered with the Petitioner. Habersheir's branch office in Fort Lauderdale, Florida, failed to maintain records and make available for Petitioner's inspection its cash receipt and disbursement blotter, securities received and delivery blotter, order tickets, and customer confirmations on all transactions as required by Section 517.121, Florida Statutes, and by Rule 3E-600.014(4), Florida Administrative Code. Habersheir also failed to maintain copies of its associated persons files as required by Rule 3E- 600.0014 (5)(a), Florida Administrative Code. At all times pertinent to this proceeding, Habersheir was a member of the National Association of Securities Dealers (NASD). Between November 7, 1988, and November 30, 1988, Habersheir's authority to transact business was suspended by NASD. Habersheir failed to notify its Fort Lauderdale, Florida, branch office of its suspension by NASD. Consequently, business was transacted by that branch office while Haersheir's authority to transact business was suspended by NASD.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that the State of Florida, Department of Banking and Finance, Division of Securities, enter a final order which: Revokes all registrations presently held by Habersheir Securities, Inc., and which assesses an administrative fine against Habersheir Securities, Inc. in the amount of $10,000.00 for its violations of Sections 517.12(5), and 517.121(1), Florida Statutes; and Which dismisses the administrative complaint against Sharieff Mustakeem, Raymond Hayden, and Frank J. Hurt, III. DONE AND ENTERED this 27th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 22nd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE 89-3886 The following rulings are made on the findings of fact submitted by Petitioner: The proposed findings of fact In paragraphs 1-10 are adopted in material part by the Recommended Order. The proposed findings of fact In paragraph 11 are adopted in part by paragraph 1 of the Recommended Order, and are rejected in part as being unnecessary to the findings made. COPIES FURNISHED: Randall L. Rubin, Esquire Assistant General Counsel Office of Comptroller 401 N.W. 2nd Avenue Suite N-708 Miami, Florida 33128 Oliver Lee, Esquire Troutman, Sanders, Lockerman & Ashmore Candler Building, Suite 1400 127 Peachtree Street, N.E. Atlanta, Georgia 30303-1810 Frank J. Hurt, III 6666 Powers Ferry Road Suite 202 Atlanta, Georgia 30339 Preston Spears 91 Farmington Drive Woodstock, Georgia 30188 Rahim Davoudpour 1972 Benthill Drive Marietta, Georgia 33062 Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol Tallahassee, Florida 32399-0350 William G. Reeves General Counsel Department of Banking and Finance The Capitol Plaza Level, Rm. 1302 Tallahassee, Florida 32399-0350 =================================================================
The Issue The issues to be resolved in this proceeding concern whether the Respondent should certify the Petitioner as a minority business enterprise (MBE) and, specifically, whether the corporate Petitioner is an affiliate of a non-minority-owned business for purposes of Rule 38A-20.005(4)(b), Florida Administrative Code, and whether the Petitioner's business is performing a "useful business function" in accordance with Rule 38A-20.007, Florida Administrative Code.
Findings Of Fact The Petitioner is engaged in the business of operating an out-patient medical diagnostic imaging center. The Petitioner is a closely-held Florida corporation. It was organized in 1996. All of the Petitioner's stock is owned by Sherrin G. Sowers and Beverly S. King. Each of them own fifty percent of the corporation. Both Ms. Sowers and Ms. King are minority persons within the meaning of Section 288.703(3), Florida Statutes, and are hereinafter described as the "minority owners." The Respondent is an agency of the State of Florida responsible for granting or denying applications for minority business enterprise (MBE) certification in accordance with Section 288.703(1), Florida Statutes, and Rules 60A-2.001 and 60A-2.005, Florida Administrative Code. The minority owners of the corporation, Ms. Sowers and Ms. King, are majority shareholders in the corporation owning at least fifty-one percent of the Petitioner's stock within the meaning of Rule 60A-2.005(2)1, Florida Administrative Code. The minority owners exercise sufficient management and technical responsibilities and capabilities to control the operation of the business. Ms. Sowers is the President and Administrator. She has a broad background in the medical administrative field and is primarily responsible for corporate operations. The control exercised by these two owners is real, substantial and continuing. Ms. Sowers oversees and controls corporate purchasing. She is also responsible for hiring and firing employees and oversees the financial affairs of the corporation. She is a college graduate who worked as a genetic counselor and has served as the administrator of the Division of Genetics of the Bowman Gray School of Medicine of Wake Forest University. She handles all contract negotiations for the corporation and serves as administrator of the entire facility. The corporation is an independently owned and operated business concern. Both Ms. Sowers and Ms. King are the sole directors and shareholders of the corporation. No other person has any interest in the corporate profits. The corporation is not an affiliate of a non-minority business. Although the corporation has a contract with South Baldwin Imaging Associates, this contract could as well be with another group if desired. The minority owners have no ownership interest in South Baldwin Imaging Associates. There are no common directors; there is no common management; there are no common employees; there is no common inventory and there is no co-owned equipment. Although two of the principals of South Baldwin Imaging Associates are the husbands of Ms. Sowers and Ms. King, the Petitioner has demonstrated that the two owners of the Petitioner corporation exercise sole financial and operational control and do not share profits with Dr. King and Dr. Sowers. Rather, they are physicians whose professional association, South Baldwin Imaging Associates, simply use the services of the Petitioner, The Imaging Center of Pensacola, Inc. Although the Respondent asserts that Dr. Sowers and Dr. King guaranteed the Petitioner's mortgage and line of credit, that does not indicate any affiliation nor any relinquishment of control by Ms. King and Ms. Sowers to them or to South Baldwin Imaging Associates. Rather, it was shown to be a requirement of the lending institution that in order for it to grant and underwrite a mortgage for the Petitioner corporation, both the owners of the corporation and their spouses had to undertake the mortgage-related debt and line of credit. This was necessary in order to render the bank secure in the event that one or both of the minority shareholders who own the Petitioner corporation should die or otherwise default on re-payment of the note subject to the mortgage or the line of credit. Thus the lender, by standard, generally-accepted legal and banking practice, would have a guarantor to look to for re-payment and would have both owners of any jointly owned collateral bound by the note and mortgage. The corporation serves thirty-five and forty patients a day referred by physicians for diagnostic imaging services. It performs various services, such as MRI's, CT scans and ultrasound imaging. The corporation thus serves a useful business function. It is not simply a "shell corporation" or a captive corporation of another affiliated business. The corporation itself is not required to have any licenses. No license is required for a corporate business to operate a free-standing, diagnostic imaging center. Rather, the technical personnel who operate the diagnostic imaging equipment such as CT scanners, MRI devices and the like, are required to have individual licenses as operators of such machines. The operation of a free-standing diagnostic center, such as the one involved in this proceeding, is not a trade or profession in itself which must be licensed or certified under Florida law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Department of Labor and Employment Security granting the Petitioner's application for minority business enterprise certification. DONE AND ENTERED this 6th day of October, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of October, 1999. COPIES FURNISHED: Charles L. Hoffman, Jr., Esquire Shell, Fleming, Davis & Menge Ninth Floor Seville Tower 226 Palafox Place Pensacola, Florida 32501 Joseph L. Shields, Senior Attorney Department of Labor and Employment Security Division of Minority Business Advocacy and Assistance Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security Division of Minority Business Advocacy and Assistance Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Mary Hooks, Secretary Department of Labor and Employment Security Division of Minority Business Advocacy and Assistance Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189
Findings Of Fact The Petitioner is Elizabeth Nicolitz who has been actively licensed in Florida as an optician since May 1, 1985. The Respondents are the Board of Opticianry and the Department of Professional Regulation. The Petitioner sought her attorney's fees and costs from an administrative proceeding, DOAH Case No. 92-1477, which was initiated by the filing of an administrative complaint on October 23, 1991, seeking disciplinary action against the Petitioner. The First District Court of Appeal summarized the facts and law leading up to this attorney's fees and costs case in Nicolitz v. Board of Opticianry and Department of Professional Regulation, 609 So.2d 92 (Fla. 1st DCA 1993), as: Nicolitz was previously placed on probation and ordered to file quarterly reports. When two of those reports were late filed, an administrative complaint was filed against her. Through counsel she executed an "election of rights" form and disputed the allegations of fact and sought a formal hearing before a Division of Administrative Hearings (DOAH) hearing officer in accordance with Section 120.57(1), Florida Statutes. The matter was referred to DOAH, where counsel for the Depart- ment of Professional Regulation (Department) and counsel for Nicolitz entered into a prehearing stipulation. The Department construed this stipula- tion as demonstrating an absence of disputed issues of material fact and, in accordance with Florida Administrative Code Rule 22I-6.033, moved the hearing officer to relinquish jurisdiction. The DOAH hearing officer considered Nicolitz's response in opposition to the motion to relinquish jurisdiction, heard oral argument, and denied the motion. Several weeks later, and one day before the scheduled formal hearing, counsel for the Department filed an "notice of voluntary dismissal without prejudice." This pleading essentially tracked the earlier motion to relinquish jurisdiction in concluding that no material issues of fact were in dispute, and sought dismissal without prejudice to the Department's right to proceed before the Board of Opticianry (Board) in an informal hearing pursuant to Section 120.57(2), Florida Statutes. The hearing officer entered an order which "ratified" the voluntary dismissal and purported to dismiss the administrative complaint. See F.A.C. Rule 22I-6.037. When an informal hearing was scheduled before the Board, Nicolitz petitioned this court for a writ of prohibition and we issued an order to show cause. We have considered the petition, the responses of the Department and the Board, and petitioner's reply, and grant relief. . . . [The opposition] is based in part on an argument that [Ms. Nicolitz] has failed to acknowledge and comprehend the relationship between the Department and the Board in disciplinary proceedings. While we agree that relationship is key to proper resolution of this dispute, we find it is respondents [Department and Board] who miss the mark. The disciplinary proceeding essentially evolves in three stages, the first being an investigation by the Department and its report to the Board as to the existence of probable cause. See SS. 455.225(1), (2), and (3), Fla. Stat. (1991). The Board then may direct the Department to file an formal complaint and the Department shall "prosecute that complaint pursuant to the provisions of chapter 120." S. 455.225(4), Fla. Stat. The prosecution, second stage of the disciplinary proceeding, may or may not result in a referral to DOAH, but if it does, the relationship of the Board and the Department is altered. In the first stage, and during the third stage when jurisdiction returns to the Board and it enters a final order in accordance with section 455.225(6), the Board is a quasi-judicial body and the Department acts as an investigative and prosecuting authority. While jurisdiction lies with DOAH, however, that tribunal has jurisdiction and the Board is a party to the proceedings. S.120.57(1)(b)(3). During the DOAH proceedings, the Department acts as counsel of record for the Board and, we conclude, the Board must be bound by its counsel's actions. Those actions include voluntary dismissal of a complaint. Petitioner filed her attorney's fees and costs petition pursuant to Section 57.111 F.S. with the Division of Administrative Hearings on February 26, 1993, less than sixty days after the District Court's mandate issued. That is the case sub judice. She seeks attorney's fees and costs starting from October 29, 1991. The disciplinary litigation and administrative background between Ms. Nicolitz and Respondents could be described as a long and dreary "mini war," fought in sequential encounters. An abbreviated chronology of this epic struggle is essential to reach the material issues at bar, and illustrates that most of the time the right hand of the bureaucracy had no idea what its left hand was doing, even when the right hand directed the left hand to act. Ms. Nicolitz was licensed in Florida as a Dispensing Optician Lic. No. DO 0002492, and owned an optical establishment in Jacksonville known as "Specs and Company, Inc." During the summer of 1986, Ms. Nicolitz became the sponsor of an apprentice optician named Douglas H. Stewart. Chapter 484 F.S. permits licensed opticians to sponsor an apprentice optician for training purposes and allows the apprentice to perform a limited number of opticianry tasks, subject to the regulations contained in Rules 21P-16.001 through 21P-16.011 F.A.C. On June 30, 1986, while Ms. Nicolitz was away from the establishment, apprentice Stewart measured a patient's pupillary distance and segment height for assembling and fitting a pair of glasses in apparent violation of Rule 21P- 16.003 F.A.C. On December 12, 1986, the Department initiated disciplinary action against Ms. Nicolitz's license through the filing of a formal complaint styled DPR v. Elizabeth Nicolitz, Case No. 0072717. The case was subsequently resolved by stipulation of the parties, and Ms. Nicolitz signed the stipulation on March 23, 1987. The stipulation was then presented to the Board of Opticianry on April 10, 1987. A final order was filed May 12, 1987, ordering Ms. Nicolitz to pay an administrative fine of $250.00 within 30 days. Additionally, she would be placed on probation for one year and as a condition of probation, she was required to file quarterly reports, commencing the first of the month three months from the date of the filing of the final order. On May 12, 1987, Ms. Patricia B. Guilford, Executive Director of the Board of Opticianry wrote Ms. Nicolitz pointing out that the final order had been officially filed and as such, the terms of the March 23, 1987 stipulation must now be fulfilled. Ms. Guilford also pointed out that the administrative fine of $250.00 was due on or before June 12, 1987 and that Ms. Nicolitz's probation had begun, effective May 12, 1987, and would end June 12, 1988. The letter further specified that there were "specific terms and conditions" of probation that had to be met. As part of the letter, she included a copy of the filed final order. This package was sent by U.S. Certified Mail to Ms. Nicolitz and was signed for by her agent. Ms. Nicolitz paid the $250 fine on June 1, 1987. However, she did not thereafter file her quarterly reports with the Board in satisfaction of the other terms of her stipulation. On October 6, 1990, the Board of Opticianry filed a new administrative complaint, styled DPR v. Elizabeth Nicolitz, Case No. 0106310, alleging that Ms. Nicolitz had violated the previous final order by failing to submit the required quarterly reports in a timely fashion. Ms. Nicolitz responded to the Department by asserting that she had never received the final order, especially in reference to the probation requirement. On the advice of counsel, Ms. Nicolitz suggested that a new stipulation agreement be entered between her and the Department calling for new starting dates for her probation and quarterly reports. As agreed to, the new stipulation required Ms. Nicolitz to file quarterly reports on March 31, 1990, June 30, 1990, September 30, 1990, and December 31, 1990. In entering into the new stipulation agreement, the Department took into consideration allegations made by Ms. Nicolitz and her counsel that the final order may not have been properly served upon her, and agreed to dismiss pending complaint DPR v. Elizabeth Nicolitz, Case No. 0106310, filed October 6, 1990. That case was presented to the November 18, 1989 Probable Cause Panel for closure. The Panel heard the arguments and agreed to closure. During all of this period, agency personnel had harbored suspicions of Ms. Nicolitz because they felt she should have known what to do and when to do it because she had signed the stipulation and because of the agent's signature on the receipt for the final order. There were misinterpretations of the earlier closing order and attorneys for both parties fired off accusatory, and eventually explanatory and apologetic, letters. In any case, it was abundantly clear as of November 18, 1989 at the latest, that Ms. Nicolitz knew she must file her quarterly reports on March 31, 1990, June 30, 1990, September 30, 1990, and December 31, 1990. As per her agreement, Ms. Nicolitz submitted her first and second quarterly report on March 22, 1990 and June 1, 1990, respectively. However, she failed to submit the third quarterly report which was due September 30, 1990. The Board sent her a letter notifying her that she was delinquent. She then submitted the third report on October 16, 1990. She was again late with the filing of her last quarterly report due December 31, 1990. The Board once again notified her of the delinquency, and she submitted the last quarterly report on February 11, 1991. On October 23, 1991, a formal administrative complaint was filed. It charged Ms. Nicolitz with a violation of Section 484.014(1)(i) F.S., which provides for discipline of a licensee for: Violation of a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department. That administrative complaint became the underlying DOAH Case No. 92-1477, the procedural history of which is set out in Findings of Fact 3-4 supra. A more detailed factual history behind how the administrative complaint came to be filed is set out infra. There has never been any dispute that Ms. Nicolitz filed her first two of four required probation reports on time or that they were properly mailed directly to the Department of Professional Regulation instead of the Board. Since it was due on September 30, 1990, Ms. Nicolitz's third report, dated October 16, 1990, was 16 days late when she wrote it. Administrative Assistant Leah R. Hickel is an employee of the Board of Opticianry, whose paycheck is issued by the Department. In a letter dated October 17, 1990 Ms. Hickel advised Ms. Nicolitz that her quarterly report due September 30 had not been timely received and that she had thirty days from the date of Ms. Hickel's October 17, 1990 letter (i.e. November 16, 1990) to file the third quarterly report and comply with the terms of the final order. Ms. Nicolitz's October 16, 1990 report was stamped in as received by the Board on October 23, 1990. Ms. Hickel's letter and Ms. Nicolitz's third report must have crossed in the mail, but the third report was clearly timely received by the Board within the terms of Ms. Hickel's letter, and it may be reasonably inferred to have been received even earlier by the Department. Ms. Hickel sent a similar letter to Ms. Nicolitz on February 6, 1991 to the effect that Ms. Nicolitz's December 31, 1990 final quarterly report had not yet been received and that she must submit it within 30 days (i.e. March 8, 1991). The fourth report was filed with both Respondents within the time-frame provided in that letter. Contrary to the testimony of Susan J. Foster, the current Executive Director of the Board of Opticianry, and Manty Morse, a member of the Board and one of the members of the Probable Cause Panel which arrived at the new administrative complaint on September 16, 1991, the overwhelming record evidence is to the effect that Leah Hickel had apparent authority to extend the time for Ms. Nicolitz to file her third and fourth reports. Also, on the issue of whether or not Ms. Hickel had actual authority to extend probationers' time for reporting, it is found that she did. The Board had adopted a policy of extending by 30 days the time for filing probation reports as reflected by the minutes of an open meeting held November 3, 1989, stating: "The Board directed Ms. Hickel to send a 30-day letter any time a person is found not in compliance with a Final Order and to refer to complaints if they do not respond." (Emphasis supplied). Board Member Dale Wenal, the Board attorney, Theresa Bender, and the Department prosecutor, Renee Alsobrook, were present at the February 9, 1990 Board meeting when the November 3, 1989 Board meeting minutes were discussed and adopted. Board members, including Ms. Wenal, voted for adoption of the minutes, and both sets of minutes were preserved as a standard business record of the Board. This method of doing regular Board business, i.e. the instruction of its support service personnel, was common practice of this particular collegiate body. Under these circumstances, it is immaterial that a formal motion and vote to "create" such a policy did not occur at either meeting. It is also immaterial that Ms. Wenal and Ms. Morse were not present at the November 3, 1989 meeting and that Ms. Morse was not present at the February 9, 1990 meeting. No one for either the Board or the Department notified Ms. Nicolitz that she was in violation upon her late-filing of the third or fourth probation reports, filed within the extensions granted by Ms. Hickel on October 17, 1990 and February 6, 1991. However, on February 12, 1991, Ms. Hickel sent a memorandum to Denise Love, Senior Complaint Analyst, to the effect that she now wanted to initiate a complaint for violating the prior final order. Ms. Love advised Ms. Nicolitz via a February 26, 1991 letter of a preliminary investigation. Ms. Love already had signed the Department's internal uniform complaint form on February 21, 1991. To further obfuscate what the agency(ies) were doing, while the Department was initiating the investigation preparatory to an administrative complaint for late filed reports, Ms. Hickel notified Ms. Nicolitz by letter dated March 1, 1991 that: This will acknowledge receipt of your last quarterly report, received in this office on February 15, 1991. Please be advised we are notifying the office of licensure to remove your license from pro- bationary status, this date. The effect of the foregoing letter was to remove Ms. Nicolitz's license from probationary status as of March 1, 1991. By letter of March 28, 1991, Ms. Love invited a response to her February 26, 1991 letter from Ms. Nicolitz. Ms. Nicolitz, now thoroughly confused and frustrated, responded that she had sent all her reports and Ms. Hickel had acknowledged receipt thereof. On April 30, 1991, Ms. Love sent a similar letter to Ms. Nicolitz stating that no response from Ms. Nicolitz had been received. Ms. Nicolitz's attorney then entered the fray and wrote Ms. Love on May 21, 1991 advising her of the March 1, 1991 Hickel letter removing Ms. Nicolitz from probation. Ms. Love had already prepared an investigative synopsis to the file dated May 8, 1991. It was not altered thereafter by her. It reads: SECTION I - ALLEGED VIOLATION Failure to comply with terms of Final Order previously entered in a disciplinary hearing; violation of a rule. STATUTE/RULE NUMBER Rule 21P-8.020(2)(i), FAC; Section 484.014(1)(g), Fla. Stat. SECTION II - SYNOPSIS This investigation is predicated on the receipt of a complaint on 2/14/91 from the Board of Opticianry, alleging that Subject has failed to comply with the terms of the Final Order issued in DPR case #0072717. Subject was placed on probation and required to submit quarterly reports to the Board, but has not done so; Subject was notified of the complaint by letter to inquire dated 2/26/91 and again on 4/30/91. Response from Subject was received 4/24/91. Subject states that she has now complied with the terms of the Final Order and has submitted all of her quarterly reports. She says that Leah Hickel of the Board of Opticianry will confirm this. (Emphasis supplied). The Probable Cause Panel (Ms. Manty Morse and Ms. Dale Wenal) had at least the following items before them when considering Ms. Nicolitz's case on September 16, 1991: a uniform complaint form, a proposed closing order and a recommendation for a letter of guidance, an administrative complaint, a previously issued final order and attached affidavit of service, a memorandum of finding of probable cause, the four letters from Ms. Nicolitz to the Board purporting to be her quarterly reports, findings made by the Department, the two "extension" letters from Leah Hickel dated October 17, 1990 and February 6, 1991, the investigative synopsis, and the March 1, 1991 Hickel letter removing Ms. Nicolitz from probation. The materials had been received and reviewed by panel members earlier. Ms. Marcel Flannigan of the Department, Renee Alsobrook and Lucy Sneider, attorneys for the Department, and Theresa Bender, Counsel for the Board of Opticianry, were also present for the meeting. The direct evidence at formal hearing by Manty Morse was that she was unaware as of the September 16, 1991 Probable Cause Panel meeting of the Board's prior delegation of authority to Ms. Hickel and that she had not interpreted the Hickel letters as granting an extension for Ms. Nicolitz's third and fourth reports. With the advice of counsel, the panel had viewed each day which the probation reports were late as a separate violation of the prior final order which had never been formally modified. The exchange at the Probable Cause Panel Meeting went as follows: A VOICE: She's saying she filed her reports on April 17th of 1991. MS. ALSOBROOK: After Lea wrote. A VOICE: After. In other words, had she not written to her we'd still be waiting for her. MS. ALSOBROOK: And we also wrote her on September 30th of 1990 and she sent her report for that quarter in on October 23rd. So you may want to file an AC. It's up to you. A VOICE: An AC, air conditioning? MS. ALSOBROOK: An administrative complaint. What would you all like? You have probable cause; you can do either one. It's up to you. A VOICE: Well I would find probable cause, okay, and do file an Administrative Complaint. MS. BENDER: Okay. So you previously had found probable cause and -- A VOICE: Letter of Guidance. MS. BENDER: -- wanted to close it with a letter of guidance. A VOICE: But I would like to change that and have an Administrative Complaint. I don't feel good about this the other way. THE CHAIRPERSON: Okay. MS. ALSOBROOK: What section, 484.014(i), failure to comply with Final Orders? THE CHAIRPERSON: You don't want to send a letter to -- you want a response. A VOICE: I can't imagine that they would have attorneys -- MS. ALSOBROOK: Ready for the next one? (Whereupon, the above matter was concluded) Ms. Morse's formal hearing testimony essentially corroborated the statements made by the panel members at the September 16, 1991, Probable Cause Panel meeting. Her comments reflect the following, in part: Q With regard to the Nicolitz case, do you remember being provided with the entire investigative file? A Yes. Q When you reviewed this file to find probable cause, can you explain briefly why probable cause was found? A Probable cause was found because she didn't file her reports on time. Q Did the panel consider that each day that the reports were beyond the cutoff date for the quarter to be a violation? A Yes, we did. And we were upset that it had taken this long for her compliance and still she had not done it in a timely manner. Q Did you consider her to be, in essence, ignoring the Board? [objection] Q How did you interpret Ms. Nicolitz's actions as far as the late filing? A Well, the way the panel saw them, myself and Mrs. Wenal, was that she really didn't care, you know, and that's why we were both upset. So, she was just disregarding all the orders that were given to her previously and now, even though we had extended for her to file her reports, you know, two years, three years later. Q Do you recall if the prosecutor had recommended that you find probable cause? A Yes. Q Do you recall if the prosecutor had indicated a recommended penalty or action after you found probable cause? A I remember that they wanted a letter of guidance at that time. Q What is a letter of guidance? A It's to explain to her that there was probable cause found and for her to, you know, tell what went wrong and to guide her so she would not do it again, I guess. Q Did the panel decide to issue a letter of guidance? A At first we thought that was the proper thing to do. But then when we got into discussion, that we saw how far the case went and we saw all this inconsistency, you know, and she still filed late, that's when we decided not to go with the recommendation of the attorney. Q And what was the direction of the probable cause panel to the prosecutor? A It was to find probable cause, that we had found, and to file an administrative complaint. (Emphasis supplied) It is accepted that at the time of the Probable Cause Panel meeting, Ms. Morse did not have actual knowledge of the actual authority reposed in Ms. Hickel by the Board's actions of November 3, 1989 and February 9, 1990, but Ms. Morse's lack of actual knowledge of the Board's directive to Ms. Hickel is not controlling as to whether or not the panel's decision to file a new administrative complaint was substantially justified. Board members have a duty to advise themselves concerning the Board directives which have been previously issued to staff. Nor is it indicative of substantial justification whether or not Ms. Nicolitz knew of the content of the prior Board minutes. It is material whether the Probable Cause Panel knew or should have known on September 16, 1991, when it determined there was probable cause Petitioner had committed a violation, rejected the Department's recommendation for closing, and instructed the Department to file an administrative complaint, that the prior Board directive permitting extensions had been issued and what the panel did, knowing that the extensions had been granted. From her presence and vote on February 9, 1990, it may be inferred that on September 16, 1991 Ms. Wenel had actual knowledge of Ms. Hickel's actual authority to grant extensions and ignored it. It also is clear that on September 16, 1991, both Ms. Wenal and Ms. Morse also ignored the apparent authority of Ms. Hickel's October 17, 1990 and February 6, 1991 letters, which were physically before them, and knew of and also ignored Ms. Nicolitz's ultimate compliance with those letters, which were also before them, and that both Panel members did so because the Hickel letters were contrary to the members' subjective perception that Ms. Nicolitz had been ignoring them and their prior final orders. They also ignored the apparent ratification of Ms. Nicolitz's probation compliance contained in the March 1, 1991 Hickel letter. Their deliberations indicate no adequate basis for a probable cause determination since they had Ms. Nicolitz's quarterly reports and Ms. Hickel's extension letters before them and could not have been misled by the Department's report to the effect that Ms. Nicolitz only "states that she has now complied." (Emphasis supplied) The Department report also told them that Ms. Nicolitz requested that they ask Ms. Hickel to confirm all her assertions. Leah Hickel worked for the Board. Had the Panel consulted Leah Hickel, any doubts concerning her authority to grant extensions could have been cleared up. Therefore, the Panel ignored all exculpatory evidence pointed out by the accused. The Panel did not have a basis in law or fact for the administrative complaint actually filed. The Panel also deviated from proper legal and standard procedure by not conducting a clear vote on a finding of probable cause. 1/ Ms. Nicolitz's first report (March 22, 1990) stated that as of December 1989, she had closed Specs and Company Inc.'s optical business and that for the first quarter she had not practiced opticianry. The second report (June 1, 1990) stated she had not practiced opticianry in the second quarter. The third report (October 16, 1990) stated she had done nothing optical at all during the third quarter, other than going to a few optical meetings. The fourth report (February 11, 1991) reported that nothing had changed, Petitioner was not working for anyone as an optician and she had not done so for the last quarter of 1990. Ms. Nicolitz's four reports to the Board under the terms of her probation were that she had "closed Spec's and Company's Optical Business;" was home "out of all business settings;" "had not practiced opticianry," "was not operating a business and had not done anything optical at all," and "was not working optically or for anyone as an optician," throughout the whole of 1990. Despite a great deal of backpedalling on the foregoing representations as contained in pleadings and papers filed immediately prior to formal hearing with the intent to defuse Respondents' motion for summary final order of dismissal, Ms. Nicolitz's oral testimony at formal hearing does not appear to materially alter the representations contained in her four reports for the year 1990. To the extent that she has made any inconsistent statements in any form concerning the year 1990, those statements are found not to be credible. It is therefore found that Ms. Nicolitz was not operating as a "small business party" during the whole of 1990. With regard to her situation in 1991-1992, the only years relevant to the attorney's fees and costs incurred in the underlying case, Ms. Nicolitz testified that she operated Specs and Company, Inc. as an optical shop only until December 1989, when she closed it and moved into her two residential garages the portion of optical equipment which she was unable to sell. She did this, because, as she put it, "a question of conflict of interest arose" with her opthalmologist husband's work at Baptist Eye Institute. Specs and Company, Inc. was not administratively dissolved until October 9, 1992, but it was clearly no more than a de facto corporation at all times material. Ms. Nicolitz appeared in her individual capacity in the underlying case, and Specs and Company, Inc. was not a party. Prior to her licensure, Ms. Nicolitz was apparently only an appentice employee of the corporation. It is unclear if that status of "employee" altered after she was licensed in 1985. From 1982 until Ms. Nicolitz ceased to compete with her husband due to alleged "conflict of interest" in 1989, her corporation had all the indicia of doing business including maintaining a location open to the public during normal business hours; providing opticianry services to customers; having optical equipment, a lease agreement, secretarial staff, office equipment, finishing lab, city occupational license, business stationery, advertising, income, bank accounts; filing returns and paying sales and corporate taxes; and filing W-2 forms for employees. After 1989, any equipment which had not been sold sat in residential garages, and Ms. Nicolitz maintained no occupational license or any other indicia of a business. She specifically did not operate a business for profit out of any location labelled "Specs and Company, Inc." or "Elizabeth Nicolitz, O.D." at any time after December, 1989. Ms. Nicolitz's testimony and her answers to discovery were inconsistent or vacillated with regard to whether or not she considered what she personally did during 1991-1992 to constitute "practicing opticianry." Putting the best light on it, Ms. Nicolitz was clear that she did not think anything she did for family or friends during 1991-1992 constituted practicing opticianry "until I thought about it," immediately before a hearing on the motion for summary final order in this fees case. Her position at formal hearing was that merely maintaining an active individual professional opticianry license was sufficient to constitute "practicing opticianry." She gave as an example of what she was capable of doing as, "[A]t any time if I wanted to practice opticianry that I could. If someone was absent at, let's say Lens Crafters and they needed me to come in, I would bring my license in with me and practice under Lens Crafters with my new license for them." Admittedly, however, she never was actually employed anywhere by any other optician during this period of time. Rather, she listed herself for income tax purposes in both 1991 and 1992 as a "consultant" employee of her husband's business, "Ernest Nicolitz, M.D. P.A." She testified that this term meant "design consultant." Her husband is a medical physician, an opthalmologist. The total of the practice of opticianry now recollected by Ms. Nicolitz for 1991-1992 is that over some unspecified period of time, on sporadic occasions, she pushed lenses back into glasses frames for children whose names she did not know and with whom she had no ongoing relationship when their tumbling activities at a gym she belongs to resulted in the lenses popping out; in March or April of 1991, she replaced stripped screws in a neighbor's damaged glasses frames and heated the frames in hot water to mold them back in shape for the neighbor's face; later, she sold the same neighbor some glasses frames with nonprescription display lenses for the neighbor's mother, apparently without ever seeing the mother, and definitely without reporting the $50 sale as professional or any other type of income, and without paying any sales or other tax thereon. Ms. Nicolitz derived no pay as an optician for any of these activities and had no prescription for the tumblers, the neighbor, or the neighbor's mother. She had her professional license but no occupational license in her own name. Also, at a time no more definite than "in the fall" of 1991, Ms. Nicolitz was involved in fitting hunting glasses for her husband and son, one pair each. At her home, upon written prescriptions from her opthalmologist husband, Ms. Nicolitz fitted frames to her husband's face and her son's face, took the offset of the pupillary distance due to the scope on a gun and then "we figured out the density of the lenses we would be using and we figured out, what, you know, color tones we wanted to use in the lens. And then we ordered the lenses and had them ground at a lab to my specifications." Although she testified that her husband did not know how to offset the optical center for the hunting glasses and could not physically measure himself, her overall description shows Ms. Nicolitz was working under the direction, not of a customer, but of her husband, the opthalmologist, for whom she worked as a "consultant." She charged no separate opticianry fees and had no occupational license in her own name. Clearly, she was intentionally not in competition individually in her own right or as "Specs and Company, Inc." with her husband for "conflict of interest" purposes. Ms. Nicolitz and her C.P.A., Mr. Shelton, whose expert testimony came by way of deposition, estimated her personal net worth as between $400,000 and $450,000 for 1991-1992, but given that Ms. Nicolitz's C.P.A. made his estimates purely for family financial planning purposes 2/ and Ms. Nicolitz eschewed any concrete knowledge of her own financial affairs, their evidence does not establish Petitioner's net worth. The Department's C.P.A. expert witness estimated the combined worth of Ms. Nicolitz and her husband as $2,190,000, based upon tax returns and Mr. Shelton's deposition. No evidence categorized Petitioner's personal net worth as derived in any significant part as related to her practice of opticianry, or established the net worth of Specs and Company, Inc. or broke out with reasonable clarity Ms. Nicolitz's "personal net worth from personal and business investments." The testimony of the three attorneys who testified as to fees and costs has been thoughtfully considered and weighed. It is found that Petitioner was obligated to her attorney for fees and costs for 15.30 hours and no allowable costs as of the date of voluntary dismissal of the underlying case, for 40.30 hours and $279.70 in allowable costs as of the date the initial petition for fees and costs was filed February 26, 1993, for 40.30 hours and $279.70 in allowable costs as of the date of filing of the amended fees and costs petition herein; and for 126.30 attorney hours and $368.05 costs as of the commencement of formal hearing on fees and costs herein. The rate of $200.00 dollars per hour charged by Petitioner's counsel is a reasonable hourly rate, given the unique circumstances of this case. At that rate, Petitioner's counsel established sufficient hours to reach the $15,000 statutory cap prior to the commencement of formal hearing on the attorney's fees and costs issues. 3/
Findings Of Fact The name Zorba's Restaurant and Lounge has been continuously used by the Petitioner or its predecessors in business as the name of a restaurant and lounge located at 504-508-510 Athens Street, Tarpon Springs, Florida, for a period of over ten years. Kaliope Padides was at one time director of a corporation named Zorba Lounge, Inc. which originally owned and operated the aforementioned business. In 1975 this business was sold and the corporation, Zorba Lounge, Inc. was dissolved involuntarily on November 14, 1975. The purchaser was required to continue using the name Zorba Restaurant and Lounge. Two or three years thereafter, the brother-in-law of Kaliope Padides, Peter Padides, bought the business and operated it as a sole proprietorship until December, 1982. At that time, the business burned and Peter asked Kaliope and her husband, Nicholas, to assist him in operating the business. They elected to form a corporation and instructed their attorney to reserve the name Zorba's. On December 23, 1982, counsel for Anthanasios and Linda Maillis sent a letter to the Division of Corporations, State of Florida, reserving the name Zorba's Restaurant and Lounge, Inc. The Maillises had instructed their counsel to reserve the name Zorba's Restaurant and Lounge, Inc. although they were aware of the business operated by Peter Padides, because they thought the name Zorba's Restaurant and Lounge, Inc. was not protected. On December 27, 1982, counsel for Kaliope, Nicholas and Peter Padides sent a letter to the Division of Corporations, State of Florida, reserving the name Zorba, Inc. On December 27, 1982, the Division of Corporations, State of Florida, reserved the name Zorba's Restaurant and Lounge, Inc. and Zorba, Inc. and forwarded to the respective parties confirmation of said name reservations. On January 4, 1953, the Articles of Corporation for Zorba, Inc. were filed and sealed by the Secretary of State, State of Florida on January 13, 1983. On January 6, 1983, the Articles of Corporation for Zorba's Restaurant and Lounge, Inc. were filed and sealed by the Secretary of State, State of Florida on January 10, 1983. The Maillises reserved the name and incorporated in the name Zorba's Restaurant and Lounge, Inc. knowing the existence of the business operating in the name of Zorba's Restaurant and Lounge and with the intent to capitalize on the use of that name in operating a similar business located in the same geographic area. The reservation of this name was made in bad faith, and for the purpose of engaging in unfair competition.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is recommended that the Respondent's name of Zorba's Restaurant and Lounge, Inc. be rejected and its reservation of the name revoked. DONE and ORDERED this 28th day of April, 1983, in Tallahassee, Florida. STEPHEN F. DEAN 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 28th day of April, 1983. COPIES FURNISHED: John G. Fatolitis, Esq. One North Pinellas Avenue Tarpon Springs, Florida 33589 Edwardo R. Latour, Esq. Yanchuck, Thompson & Young, P.A. 1100 South Pinellas Avenue Tarpon Springs, Florida 33589 William G. Stevens, III, Esq. Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 Honorable George Firestone Department of State The Capitol Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent is guilty of the allegations in the two Administrative Complaints filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact On September 24, 1996, Respondent Lazaro R. Morera was certified by Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission, and was issued law enforcement certificate number 166884. At all times material hereto, Respondent was employed as a police officer by the City of Miami Beach. Jose G. Coutin (hereafter referred to as "Coutin, Sr.") owned and operated a business in Miami known as Manhattan Medical Center, a medical clinic providing therapy for persons injured in auto accidents. The procedure at Manhattan Medical was the same for all patients. When a new patient came in, the patient filled out a form. Thereafter, the patient was scheduled for 34 therapy sessions, starting with three sessions a week. Every 30 days the patient signed a therapy sheet, which was a form confirming the patient had received the prescribed treatments, whether the patient had received treatment or not. Manhattan Medical billed the patient's insurance company every 30 days. After the usual 34 therapy sessions, Manhattan Medical then sent a final bill to the patient's insurance company. The patient made no payments or co-payments to Manhattan Medical for treatment. Manhattan Medical accepted whatever amounts the insurance company paid and then gave the patient a percentage of the money Manhattan Medical received. Coutin, Sr., who was not a medical doctor and had no medical training, privately advised the patients coming to Manhattan Medical that in addition to giving them part of the money Manhattan Medical received from that patient's insurance company, Manhattan Medical would also pay patients for referring others to the clinic. Arnaldo Bugallo is a "meter maid" for the City of Miami Beach Parking Department. He frequently spoke with Respondent when they saw each other during work activities. They were not personal friends. Bugallo was treated at Manhattan Medical for a back injury received in an auto accident. He never paid any monies related to his numerous treatments. Although he testified that he thought he could get additional free treatments for referring patients to Manhattan Medical, he denied knowing that he would receive from Manhattan Medical a portion of the money the clinic received from Bugallo's insurance company. When Coutin, Sr., quietly slipped a check for approximately $350 into Bugallo's backpack, Bugallo simply cashed it without questioning the reason he was receiving a check from Manhattan Medical. In early 2000 Respondent was involved in an auto accident. Some time later, Respondent complained at work to Bugallo that his back hurt, and Bugallo gave Respondent the address and telephone number of Manhattan Medical. When Respondent went to Manhattan Medical, Coutin, Sr., explained to him how the billings to Respondent's insurance company would work. Since Respondent had not come to the clinic shortly after his auto accident, Coutin, Sr., explained to Respondent that they would back-date the dates of his treatments in order to relate his treatments to his car accident. Respondent signed his therapy forms in blank. Thereafter, he seldom came in for treatment, but signed more blank forms at the clinic when the clinic called to say he had to come in to sign forms so they could bill his insurance company. The percentage that Manhattan Medical would pay each patient out of the monies received from that patient's insurance company varied. The usual amount was twenty percent. Coutin, Sr., paid Respondent thirty percent, however, because he knew Respondent was a police officer. He paid Respondent $1,932 on August 3, 2000, by check written on one of his other businesses, representing thirty percent of the approximately $6,000 which Manhattan Medical received from Respondent's insurance company. Based upon information received in 2000 from insurance companies, the Department of Financial Services initiated an investigation of Manhattan Medical. Violeta Serrano, one of the Department's insurance fraud investigators, reviewed insurance claim files and interviewed patients who gave sworn statements that they were paid money to treat at Manhattan Medical even though they received no treatments. She also interviewed runners who brought accident participants to Manhattan Medical and were paid by the clinic to do so. Based upon her investigation, she concluded that the clinic was billing for services not rendered and was paying alleged patients for treatments not received by them. She also discovered that doctors were not even present at the clinic every day. She participated in the execution of a search warrant, interviewed clinic employees, and took records from the clinic. The clinic owner, Coutin, Sr., was arrested. Serrano subsequently presented evidence to the State Attorney's Office, and Respondent was arrested. Coutin, Sr., already a convicted felon, was charged with insurance fraud (state charges) and possession of three guns by a convicted felon (a federal charge). Serrano arrested Coutin, Sr., for insurance fraud a second time when he attempted to collect more money while he was out on bond following his first arrest by her. Following his guilty plea, Coutin, Sr., received a sentence of two years in a federal prison for 20 counts of insurance fraud concurrent with two years for the weapons charge. Prior to Coutin, Sr., entering into his plea agreement, Serrano questioned him regarding the information she had on Respondent allegedly being treated at the clinic. He agreed to cooperate in her investigation and told her about Respondent's lack of treatments and about the check that he gave to Respondent. Coutin, Sr., has completed his prison term, has paid $137,000 in restitution, and has completed five years of probation. The charges against Respondent were dropped by the State Attorney's Office after he gave a sworn statement. Also arrested about the same time as Coutin, Sr., were Jose A. Coutin (hereinafter "Coutin, Jr.") and Coutin, Jr.'s, wife. Coutin, Jr., operated a similar clinic near Manhattan Medical. He also worked for Manhattan Medical, and Manhattan Medical processed the billing and claims forms for his clinic. Respondent never sold Luxor gold wire automobile rims to Coutin, Jr., and Coutin, Sr., never gave Respondent any money to pay for those rims. An investigation regarding Respondent was commenced by the internal affairs division of the City of Miami Beach Police Department. On November 12, 2003, the case was re-assigned to Officer Dale Twist. Eldris Rodriguez is a claims processor for Allstate Insurance. One of her co-workers is Ana Ruiz, who is currently Respondent's fiancé. Rodriguez and Ruiz were very good friends, who socialized together. Rodriguez' children and Respondent's children played together. On February 18, 2004, Respondent called Rodriguez at work and asked if she would play a prank on someone for him. She agreed to do so. He gave her a telephone number and asked her to call that number and tell Dale Twist's wife that Rodriguez was Dale Twist's mistress. After work, Rodriguez called the telephone number, but received no answer. She called Respondent to report that, and he told her to try again. Rodriguez waited for a few moments and placed the call again. This time a woman answered, and Rodriguez told the woman what Respondent had instructed her to say, including where Rodriguez and the woman's husband allegedly met each other. When that telephone call was completed, Rodriguez called Respondent and told him what had been said. Rodriguez did not know Dale Twist and did not know that he was a police officer with the City of Miami Beach Police Department. When Respondent gave Rodriguez the name Dale Twist, Respondent did not tell her that Twist was a police officer. He merely told Rodriguez that Twist worked for the City. Before long, Rodriguez was contacted by Cornelious O'Regan of the City of Miami Beach Police Department internal affairs division regarding her telephone call. She gave statements to internal affairs twice during the month of March. On May 21, 2004, Respondent gave a sworn statement as part of the internal affairs investigation. He denied giving Dale Twist's telephone number to Rodriguez and denied asking her to make the telephone call to Twist's wife claiming to be Twist's mistress.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in both Administrative Complaints and revoking Respondent's certification as a law enforcement officer. DONE AND ENTERED this 17th day of September, 2008, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 September, 2008. COPIES FURNISHED: David H. Nevel, Esquire Nevel & Greenfield, P. A. 6741 Orange Drive Davie, Florida 33314 Sharon S. Traxler, Esquire Department of Law Enforcement - 7100 Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Crews, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue Whether Respondents, Zuma Engineering Company, Inc., ("Zuma") and Michael J. Gruttadauria, sold securities in Florida in violation of Sections 517.07 and 517.12, Florida Statutes? Whether Respondents, in connection with the offer and sale to Florida investors of Zuma promissory notes, (whether the notes constituted securities or not) violated the anti-fraud provisions of Section 517.301(1)(a), Florida Statutes? Whether Mr. Gruttadauria, as President of Zuma, may be held responsible for Zuma's corporate acts even if Mr. Gruttadauria did not have direct knowledge of them?
Findings Of Fact The Parties The Department Petitioner, the Department of Banking and Finance, Division of Securities and Investor Protection, is the state agency mandated by the Florida Securities and Investor Protection Act, Chapter 517, Florida Statutes, to "administer and provide for the enforcement of all the provisions of [Chapter 517]." Section 517.03, Florida Statutes. Zuma Respondent Zuma Engineering Co., Inc., is a Florida corporation that has ceased operating and is no longer in business. Its last known address was 11700 Belcher Road South, Largo, Florida 34643. In the early part of this decade, Zuma's business operation was to consist primarily of the recycling of scrap rubber tires through a manufacturing process that produced crumb rubber to be used in the construction of roads. Zuma had other revenue components planned as well: picking up tires from used tire dealers, shipping used tires to overseas dealers, collecting factory on-site dump fees for used tires, and pursuing the manufacture of rubber mulch to be used in playgrounds. Michael Gruttadauria Mr. Gruttadauria is the President of Zuma. Mr. Gruttadauria has been the President of Zuma since its inception, that is, since the day Zuma was incorporated. Former Respondents Jeffrey George Turino was Zuma's Chief Financial Officer. He had been a licensed securities dealer at some time prior to 1990 but his license lapsed. Mr. Gruttadauria relied on Mr. Turino for the raising of capital for Zuma through the sale of promissory notes. The other former respondents were selling agents for Zuma. Several of them were insurance salesmen who benefited from pre-existing relationships with insurance business clients to sell them promissory notes as investments in Zuma. For example, former Respondent Darren Carlson was Nancy Lechner's mother's insurance agent. Carlson sold Ms. Lechner's mother nursing home insurance. In the course of their business relationship, both Ms. Lechner and her mother learned that Mr. Carlson also sold annuities and offered other investments. Ms. Lechner, a nurse, and her mother, "were looking for . . . investments that paid a little more interest than what the banks would pay, and he mentioned Zuma to us." (Vol. 1, Tr. 118.) Mr. Carlson told Ms. Lechner it was "a recycling company. They had very unique equipment that made tires into mulch and rubber that went back into the roads, . . . I had heard of recycling on the TV and how fantastic it's doing. So we invested in it." (Vol. 1, Tr. 119). Mr. Carlson did not give Ms. Lechner and her mother a business plan, an offering circular or a prospectus, but after hearing of their concerns over whether the investment was safe or not, "he told us that if anything were to happen to the company that there is always the equipment, which was worth a lot of money, that we would get our money back." (Vol. 1, Tr. 120.) Ms. Lechner and her mother invested $47,000 in Zuma in 1995. In return, they received promissory notes. At the time of the investment, they did not understand that they had loaned the money to Zuma. They were not told that the equipment, which supposedly ensured the safety of the investment, was pledged, collateralized or leased. Had they known Zuma did not own the equipment, they would not have made the loan. Importantly, too, they were not told that there were approximately $2,000,000 in outstanding promissory notes at the time they invested. Mr. Carlson also failed to tell Ms. Lechner and her mother that Zuma had applied for but not yet received a state permit necessary to carry out its operation of producing crumb rubber. Had Ms. Lechner known about the lack of a permit, she would not have invested in Zuma. After the investment was made, Ms. Lechner and her mother did not receive any interest payments as required by the notes. Nor have she or her mother ever received re-payment of any of the principal. Their $47,000 has been lost. The only contact initiated by the company after the investment was a newsletter claiming that 1995 had been an explosive year for Zuma with a major tire company considering investment in Zuma and entry into a joint venture research agreement with the University of South Florida's College of Chemistry. Bad Business From the Start Zuma was undercapitalized from the beginning. Zuma did not have the millions of dollars necessary to conduct a successful crumb rubber factory. It did not own its equipment nor did it own the property on which the business was sited. Zuma's business never turned a profit either. In fact, its revenue never came close to approaching what was necessary just to break even. From 1990 through 1993, it had significant losses. For these four years, tax returns show revenue of only $37,000. Total expenses for the four years amounted to $572,000. Of these expenses, commissions paid to agents who obtained capital by selling promissory notes executed by Zuma amounted to $248,000. During the same time period, Zuma paid out over $117,000 in interest. Zuma's financial picture was portrayed at hearing in bleak terms by Mary M. Delano, the Department's financial investigator who had reviewed Zuma's financial records: [T]he business was operating at a large loss and . . . the revenues were far below what was necessary to maintain the operations of the business. . . . with a commissions and interest expense of that significance . . . the borrowings of the company were significant and . . . the cost of those borrowed funds were significant, also. Vol. 1, Tr. 80. Zuma's financial picture did not improve after 1994. But Zuma continued to obtain loans through promissory notes mainly from elderly people like Ms. Lechner's mother. Loans evidenced by promissory notes for the period of time from 1991 through 1995 totaled nearly three million dollars. Promissory Notes Because it did not have adequate capitalization, Zuma, through its principals, employees, associates and agents offered to sell and did sell promissory notes to finance its operation. Most had a maturity date in excess of nine months. The face value of the notes ranged from $25,000 to $170,0000. They were sold to Florida investors. Typical of these investors was Carlyle H. Charles' mother. She invested over $105,000 in Zuma for which she received a promissory note. The note was executed on June 5, 1997, the day after her 91st birthday. The funds in the case of Mr. Charles' mother came from surrender of two annuities. Even with interest which should have been paid, Mr. Charles' mother would have lost over $6,000 the first year of the life of the loan because of surrender penalties imposed by the annuity companies. Had Mr. Charles' mother understood that she would have lost so much money the first year from surrender penalties, there is "no way" (Vol. 1, Tr. 103,) that she would have loaned or invested the money in Zuma. The surrender penalty was not explained to Mr. Charles' mother by the insurance agent who had established the annuities for her. Nor was it explained by Darren Carlson who actually sold the promissory note to Mr. Charles' mother. She did not realize, moreover, the nature of the investment in Zuma. After discussion with Carlson, she thought that she had either entered new annuities or had the old ones adjusted to improve her payments. Mr. Charles' mother has never received any interest payments on the promissory note or repayment of any of the principal. Any possibility of re-payment has dimmed to the point of hopelessness now that Zuma is out of business. All told, Zuma sold more than seventy notes to more than forty investors. Most of these were elderly people, retirees and widows, in their seventies and eighties, who did not understand the full import of the investments in Zuma. None of Zuma investors were provided with an offering circular, a prospectus or a financial statement about Zuma. While these investors lost all of their investments, Mr. Carlson and Zuma's other selling agents were paid handsome commissions for the sale of Zuma promissory notes, usually between 10 percent and 15 percent of the face value of the notes. Registration with the Department Zuma's promissory notes were not registered as securities with the Department pursuant to Chapter 517, Florida Statutes. Neither Zuma nor Mr. Gruttadauria have ever been registered with the Department to sell securities. Mr. Gruttadauria's involvement Mr. Gruttadauria relied on Mr. Jeffrey Turino, Zuma's Chief Financial Officer, with regard to the sale of the promissory notes. Prior to an investment being made, Mr. Gruttadauria never met or talked with an investor except for Jack Wheeler. In Mr. Wheeler's case, Mr. Gruttadauria met with Mr. Wheeler and Mr. Turino before the promissory note was executed and, at Mr. Wheeler's insistence, Mr. Gruttadauria signed the note both on behalf of Zuma and personally. Mr. Gruttadauria also signed every promissory note on behalf of the corporation. Many of these notes were signed long after Zuma's financial condition had become desperate. During this time, Mr. Gruttadauria saw the selling agents as often as once or twice a week. He did not ask them who the investors were or what their interest in investing in Zuma might be. Mr. Gruttadauria wanted to know as little as possible about the people who were investing large sums of money in his failing business. Nonetheless, Mr Gruttadauria recognized his responsibility for the financial affairs of Zuma in October of 1995 when he sent out the newsletter received by Ms. Lechner. In the closing paragraphs of a 5-page letter trumpeting Zuma's environmental achievements and advances in the areas of the market place, personnel, finance, and research the following appears: The reason this newsletter is so long, is that Michael G., [Mr. Gruttadauria], thought others had been sent out since last October, and it turns out I was misinformed on this and other matters, by an employee no longer with the firm. [T]he bottom line is that I have the ultimate responsibility of everything that has or has not now returned to a "hands on" mode in regard to the financial aspects of Zuma. * * * My attitude is that without you, Michael G., and Zuma would not only be where they are "today", but would never be able to get where we going "tomorrow". You have every right to receive accurate, truthful answers to any and all of your questions regarding Zuma. Thank you for "Today" and thank you again for "Tomorrow". Zuma Engineering Co., Inc. Michael J. Gruttadauria President/Founder Petitioner's Exhibit No. 18, (emphasis added) To this day, with minor exceptions, all the promissory notes signed by Mr. Gruttadauria are in default.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Banking and Finance enter a final order ordering Zuma Engineering Co., Inc., and Michael J. Gruttadauria to cease and desist from all present and future violations of Chapter 517, Florida Statutes, and fining them the maximum amount allowable by law: $5,000 for each violation of the provisions of Chapter 517, Florida Statutes, found above; that is, $5,000 for failure to register Zuma as a dealer in securities and $10,000 times the number of promissory notes introduced into evidence in this proceeding ($5,000 for failure to register each and every note as a security with the department plus $5,000 for the fraud connected with each and every note.) DONE AND ORDERED this 5th day of November, 1997, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 5th day of November, 1997. COPIES FURNISHED: Josephine A. Schultz, Esquire Division of Securities and Investor Protection Department of Banking and Finance 526 Fletcher Building 101 East Gaines Street Tallahassee, Florida 32399-0350 Michael J. Gruttadauria 1908 Downing Place Palm Harbor, Florida 34683 Harry Hooper, General Counsel Department of Banking and Finance Room 1302, The Capitol 01 Tallahassee, Florida 32399-0350 Honorable Robert F. Milligan Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, Florida 32399-0350
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Frederick L. Roberts (Respondent) was a licensed Florida mortgage broker, holding license number MB 316324569. In November 1993, a friend of the Respondent, Alan Petzold, introduced Tami Aaronson to him. Ms. Aaronson owned property in Maryland and was interested in securing a mortgage on the Maryland property to provide funding for a Florida home for herself and her son, Jarrett. According to Ms. Aaronson, Mr. Petzold is the father of a minor son, Jarrett Aaronson. The Respondent believed that such was the case at the time he met the family. The Respondent met several times with Ms. Aaronson. The Respondent gave a “Flagship Mortgage Company” business car to Ms. Aaronson. The business card had the Respondent’s name printed on it. The Respondent had been briefly employed by Flagship Mortgage Company, but apparently was not so employed at the time he met Ms. Aaronson. Frederick L. Roberts (Respondent) received check number 0170, dated November 22, 1993, from Tami Aaronson as “Custodian for Jarrett Aaronson” in the amount of three thousand dollars. The notation on the check states that it is for “refinancing.” Ms. Aaronson believed the check was payment for services the Respondent would render in obtaining refinancing of the Maryland property. There was no written agreement between the Respondent and Ms. Aaronson, or between the Respondent and Mr. Petzold. The Respondent completed no written documentation related to the Aaronson transaction. The Respondent did not place the Aaronson deposit into a segregated escrow account. The Respondent did not record the Aaronson deposit into an escrow transaction journal. During the period he held the Aaronson funds, the Respondent worked on unrelated business, and traveled to China for about thirty days. The Respondent performed no work on behalf of Ms. Aaronson, Mr. Petzold, or Jarrett Aaronson. There is no evidence that the Respondent intended to perform any work on behalf of Aaronson/Petzold. The Respondent asserted that he asked for a three thousand dollar “deposit” as a means of discouraging the couple from asking for his assistance. The assertion is not credible. The Respondent asserts that the three thousand dollars he received from Ms. Aaronson was a deposit against travel expenses he would incur during his examination of the property in Maryland. The assertion is not supported by credible evidence. In the spring of 1994, the Respondent received a telephone call from Ms. Aaronson. The Respondent asserts that he believed Ms. Aaronson to have called him from a mental hospital. For whatever reason, at that time he determined that he no longer wanted to be involved in the Aaronson/Petzold situation. Shortly after receiving the Aaronson phone call in spring 1994, the Respondent also received a call from a Department of Banking and Finance investigator, apparently looking into a complaint received from Ms. Aaronson. The Respondent thereafter contacted Mr. Petzold and made arrangements to return the funds to him. According to a notarized statement dated May 9, 1994, the Respondent returned the three thousand dollars to Jarrett R. Aaronson and Alan C. Petzold. The Respondent testified that the money had been returned on May 8, 1994 to Mr. Petzold. The Respondent offered into evidence a document dated May 8, 1994, purporting to be a receipt received from Mr. Petzold for return of the funds. The signature is not notarized. The Respondent did not return the Aaronson deposit to Tami Aaronson. There is no evidence that Ms. Aaronson authorized the return of the three thousand dollars to Mr. Petzold. There is no evidence that Ms. Aaronson authorized the return of funds to Jarrett. Ms. Aaronson has not received any part of the three thousand dollars allegedly refunded. There is no evidence that the funds have been redeposited into the minor child’s custodial account. The Respondent asserts that he was not acting as a mortgage broker and was merely investigating the property to determine whether the Aaronson property could be used as a source of funds for the purchase of Florida property. The Respondent asserts that had a refinancing situation arisen, he would have referred Ms. Aaronson to another licensed person who would assist in the actual refinancing. The assertion is not supported by credible evidence. The Respondent asserts that in the spring of 1994 he had reason to believe that Ms. Aaronson had been hospitalized in a mental facility, and therefore he returned the funds to Mr. Petzold. The rationale for the failure to return the funds to the appropriate party is not persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a Final Order suspending the mortgage broker license held by Frederick L. Roberts until the following conditions are met: Payment to Tami Aaronson of $3,000 plus appropriate interest calculated from November 22, 1993. Payment of an administrative fine in the amount of $5,000. After compliance with the above conditions, the license suspension shall be lifted, and a two-year probationary period shall begin RECOMMENDED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 22nd day of October, 1997. COPIES FURNISHED: Clyde C. Caillouet, Esquire Department of Banking and Finance 4900 Bayou Boulevard, Suite 103 Pensacola, Florida 32503 Michael W. Carlson, Esquire Carlton Fields Ward Emmanuel Smith & Cutler, P.A. 215 South Monroe Street, Suite 500 Tallahassee, Florida 32301 Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350 Hon. Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
The Issue At issue is whether petitioner's application to take the examination required for licensure as an optician should be approved.
Findings Of Fact Mr. Silverstone seeks licensure through the apprenticeship program. His organized sponsor indicated he only supplied initial sponsorship forms. The vast majority of the hours Mr. Silverstone claims were not certified by his sponsor whose signature was forged.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered approving petitioner's application to take the examination required for licensure as an optician, and imposing an administrative fine of $1,000. DONE AND ENTERED this 13th day of June, 1997, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997.
