The Issue The issue is whether Petitioner's application for reinstatement of his license as a general contractor should be granted or denied.
Findings Of Fact Stipulated Facts Petitioner was previously issued Certified General Contractor's License number CGC42026. His license was active in the 2004 renewal cycle, became delinquent-active in the 2006 renewal cycle, and null and void at the start of the 2008 renewal cycle. Due to an executive order of the Governor relating to tropical storms, Petitioner's license became null and void on October 2, 2008. Petitioner was required to pay a renewal fee and report continuing education credit hours in order to renew his license prior to the start of the 2008 renewal cycle to avoid the license becoming null and void. Petitioner timely paid the renewal fee ($518) to renew his license. Petitioner completed and reported two continuing education hours for the reporting period ending August 31, 2008. Petitioner completed and reported 44 continuing education hours through July 5, 2011, and is currently up to date with all of his required continuing education credit hours. While Petitioner completed and reported a portion of his required continuing education hours, he did not complete and report all of his required continuing education hours to renew his license during the 2008 renewal period. This was due to financial difficulty and an inability to pay for continuing education credit hours. At present, the total hours Petitioner completed and reported would fulfill his 2006, 2008, and 2010 continuing education requirements. A license becomes null and void if it is not renewed within two years of the renewal date. Petitioner filed his application pursuant to section 455.271(6), Florida Statutes, to reinstate his Certified General Contractor's License number CGC42026. The Department entered its Notice of Intent to Deny the application. Following the Board's issuance of a Corrected Notice of Intent to Deny, Petitioner filed an Amended Petition for Formal Administrative Proceedings. The Corrected Notice stated that Petitioner's license expired due to non receipt of continuing education credits for renewal and, following the delinquency period, became null and void. The reasons for the denial set forth in the corrected notice were as follows: Applicant failed to present evidence of a good faith effort to comply with the license renewal statutes and rules and failed to present evidence that rises to the level of illness or unusual hardship that would justify the failure to renew the license. The Board approved the application of Alberto Munoz to reinstate his Certified Pool/Spa Contractor's License pursuant to section 455.271(6) at the July 14, 2011, meeting of the Board. The application filed by Mr. Munoz stated that his license had gone null and void because he failed to pay the required license renewal fee due to undue due to undue financial hardship. The Board approved the application of Edwin W. Steffen to reinstate his Certified Plumbing Contractor's License pursuant to section 455.271(6) at the August 11, 2011, meeting of the Board. The application filed by Mr. Steffen stated that his license had gone null and void because his "two cycle inactive status expired in August 2010." Further, Mr. Steffen cited financial difficulties following the "2009 market crash that hurt [him] significantly," leading him to "go back into the workforce." Neither the Department nor the Board has adopted any rules pertaining to applications to reinstate licensees pursuant to section 455.271(6) other than a Department approved application form. Facts based upon evidence of record Petitioner's Certified General Contractor's (CGC) license was active during the 2004 renewal cycle, and became delinquent-active in the 2006 renewal cycle. Petitioner was required to pay a renewal fee and report continuing education credit hours in order to renew his CGC license prior to the start of the 2008 renewal cycle to avoid the license becoming null and void. During the 2006 and 2008 renewal cycles, Petitioner worked as a construction foreman in remote encampments in Puerto Rico and in the U.S. Virgin Islands. Although these jobs were full-time, he earned very little money on these projects. During this time, Petitioner's wife and three children remained at home in Puerto Rico. He earned only enough during this time for his family to subsist. Although working in remote locations in Puerto Rico and in the U.S. Virgin Islands during this time, Petitioner insists that he always intended to return to Florida and was actively seeking work here. He did not finish working in the remote encampments until 2009. While working in the remote locations, he had no access to the Internet and relied on phone calls to friends in an attempt to find appropriate yet affordable continuing education courses. The courses he learned of were expensive at a time when he was earning little money and trying to support his family. Petitioner's testimony in this regard is deemed credible and is accepted as fact. When Petitioner submitted his application for reinstatement of his license, he included a money order for $100 as required. During this period of time, Petitioner paid his renewal fee and completed two continuing education credit hours, but was unable to afford the required number of authorized continuing education credits, and was not in a place from which he could travel to attend live courses. Petitioner made a good-faith effort to comply with the license renewal statutes and rules. He paid the renewal fee and has since completed the necessary continuing education requirements.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order granting Petitioner's application for reinstatement of his license as a general contractor. DONE AND ENTERED this 13th day of January, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 13th day of January, 2012.
The Issue The issues are as follows: (a) whether a proposed amendment to Florida Administrative Code Rule 64B14-3.001(12) constitutes an invalid exercise of delegated legislative authority in violation of Sections 120.52(8)(b) and/or 120.52(8)(c), Florida Statutes (2005); and (b) whether Petitioners are entitled to attorneys' fees pursuant to Section 120.595(2), Florida Statutes (2005).
Findings Of Fact This matter arises from Respondent's proposed amendment (the proposed rule) to Florida Administrative Code Rule 64B14- 3.001(12), which defines the term "direct supervision" for purposes of Part XIV, Chapter 468, Florida Statutes (the O&P practice act.) Respondent advertised the text of the proposed rule in Volume 31, Number 35, September 2, 2005, of the Florida Administrative Weekly. The proposed rule states as follows in relevant part: (12) Direct Supervision means: supervision while the qualified supervisor is on the premises. The licensed orthotist, prosthetist, orthotist/prosthetist, or pedorthist will provide a physical evaluation of each patient's orthotic and or prosthetic needs and may delegate appropriate duties to support personnel. However, the licensed practitioner shall physically evaluate the effectiveness, appropriateness and fit of all devices within the scope of the licensed practitioner's licensure practice requirements, including those repaired devices in which the repairs affect the fit, physical structure or biomechanical function of the device, on every patient, prior to patient use of the device; For the purpose of replacement of worn or broken components which do not in any way alter the fit, physical structure or biomechanical functioning of the existing device, direct supervision of support personnel providing repairs to orthoses or prostheses means the aforementioned repair must be approved by the appropriately licensed practitioner prior to beginning of repairs. The responsible licensed practitioner must at all times be accessible by two way communication, enabling the supervisor to respond to questions relating to the repair. * * * Specific Authority 468.802, F.S. Law Implemented 468.802, 468.803, 468.807, 468.808, 468.809, F.S. History--New 10-21- 99, Amended 2-19-04, 5-5-04. Respondent conducted a final public hearing regarding the proposed rule on November 18, 2005. Petitioners filed a petition challenging the proposed rule within 10 days after the final public hearing. Petitioners would be substantially affected by the proposed rule. The parties stipulate to the citation of official notices and other matters published in Florida Administrative Weekly.
The Issue Whether the Petitioner has jurisdiction over the Respondent and, if so, whether Respondent committed the offenses alleged in the administrative complaint and the penalties, if any, that should be imposed.
Findings Of Fact The administrative complaint that underpins this proceeding was filed June 20, 1996. At that time, the Respondent was the holder of pari-mutuel wagering occupational license number 0541161-1081 as a trainer. This occupational license was the renewal of a pre-existing license for a period of one year that expired June 30, 1996. There was no evidence that the occupational license that expired June 30, 1996, was renewed by the Respondent. In 1986, 1987, and 1988, Dr. Douglas Slavin was the owner of thoroughbred race horses that raced in Florida. Respondent was, during those years, employed by Dr. Slavin as the trainer for his race horses. In 1988, Respondent purchased from Dr. Slavin a race horse named Political Regent. Respondent had trained Political Regent for racing at pari-mutuel facilities in Florida. This transaction occurred in Florida. In 1988, Respondent and Respondent’s son, Gregory Sacco, took to New Jersey a horse named Political Pocket. This horse was owned by Dr. Slavin and had been trained by Respondent for racing at pari-mutuel facilities in Florida. Dr. Slavin had given Respondent and his son permission to take Political Pocket to New Jersey. Without Dr. Slavin’s permission and unknown to him, Respondent and his son sold Political Pocket to a third party in New Jersey. Respondent failed to pay Dr. Slavin for Political Regent or for Political Pocket. After Dr. Slavin discovered that Political Pocket had been sold, he instituted a lawsuit in the Circuit Court in and for Dade County, Florida, against Respondent and his son, Gregory Sacco. The Case Number for this suit was 89-14563 CA 08. On June 24, 1992, a final judgment was entered against Respondent and his son, Gregory Sacco, based, in part, on the transactions involving Political Pocket and Political Regent. This judgment was entered on a joint and several basis.1 As of the time of the formal hearing, the judgment entered in Case No. 89-14563 CA 08 had not been satisfied.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law contained herein. It is further recommended that the final order declare Respondent to be ineligible for licensure in the State of Florida so long as his debt to Dr. Slavin remains unpaid. DONE AND ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of June, 1997
The Issue The issue in this case is whether Petitioner is entitled to issuance of an occupational license, pursuant to section 550.105, Florida Statutes.
Findings Of Fact The Parties Petitioner, John A. Short, is an applicant for a general individual occupational license, pursuant to section 550.105(2)(a), which would authorize him to work as a blacksmith and farrier at licensed pari-mutuel facilities in Florida.4/ Respondent is the state agency charged with issuing occupational licenses to employees of pari-mutuel wagering facilities in the state of Florida pursuant to chapter 550. Petitioner's Application for Occupational License and Waiver On December 11, 2017,5/ Petitioner filed with Respondent DBPR PMW-3120, Individual Occupational License Application, seeking to obtain a pari-mutuel wagering general individual occupational license. Also on December 11, 2017, Petitioner filed DBPR PMW-1380, Request for Waiver, seeking a waiver, pursuant to section 550.105(5)(c) and rule 61D—5.006, of disqualification from occupational licensure under section 550.105(5)(b) on the basis of a felony conviction. In his license application filed on December 11, 2017, Petitioner disclosed that he had a prior felony conviction that was adjudicated on September 22, 1998, in Jefferson County, Kentucky.6/ Subsequently, on March 5, 2018, Petitioner filed an amended application page on which he disclosed two other criminal offenses: receiving stolen property, and possession of marijuana. Both of these offenses, which were misdemeanors, were adjudicated on November 24, 1991, in Kentucky. On June 13, 2018, Petitioner participated in a waiver interview conducted by Respondent, as required under rule 61D-5.006. At the interview, Petitioner disclosed that he had several other criminal convictions, some of which had not been listed on his license application. In the Denial Letter, Respondent notified Petitioner that it was denying his application on the basis of his felony conviction for third degree assault on a police officer and his failure to disclose all of his convictions on his license application. Respondent also notified Petitioner that it was denying his request for a waiver. Evidence Adduced at the Final Hearing As noted above, Petitioner is a blacksmith and farrier, and he currently works in that trade in Florida, where he now resides full time. Specifically, Petitioner works with Marshall Hudson, also a blacksmith and farrier, who is a subcontractor to the Wellington Equestrian Federation at Equestrian Sport Productions in Wellington, Florida. Petitioner has worked with Hudson for four or five seasons, shoeing horses of many different breeds, including thoroughbreds, quarter horses, standardbreds, walking horses, saddlebreds, and carriage horses, at the barns, showgrounds, and other venues at which the horses are located. The competent, credible evidence establishes that Petitioner is, or has been, licensed by the Kentucky Horse Racing Commission as a blacksmith and farrier over a period of several years,7/ with the exception of a short period in 2016 during which his license had lapsed. Pursuant to his Kentucky occupational license, Petitioner is, or has been, authorized to conduct his trade at licensed racing facilities in Kentucky, including Churchill Downs and other tracks. Petitioner credibly testified——and no countervailing evidence was presented——that he has never been subject to licensure discipline during the entire time he has been licensed in Kentucky. Petitioner's Criminal Offenses At the final hearing, Petitioner was forthright regarding his criminal record. He testified that he had been convicted of third degree assault on a police officer, a felony, in Jefferson County, Kentucky in 1998,8/ and credibly explained the circumstances surrounding that conviction. His account of that incident provided at the final hearing is consistent with that provided in his June 13, 2018, waiver interview.9/ Petitioner also readily acknowledged that he had been convicted of numerous misdemeanor offenses, some of which have been expunged from his criminal record. These include theft by deception, receiving stolen property, shoplifting, carrying a concealed weapon, possession of marijuana, driving under the influence, and several traffic—related offenses. With the exception of the possession of marijuana and some traffic—related offenses, Petitioner's criminal offenses were committed during the 1990s. His most recent arrest was in 2011, for misdemeanor possession of marijuana, which was resolved by paying a $150.00 fine. Since then, Petitioner has not been convicted of any crimes.10/ There was no evidence presented showing that Petitioner has ever engaged in criminal activity regarding pari— mutuel wagering, gambling, bookmaking, cruelty to animals, or that is a capital offense.11/ Evidence Regarding Petitioner's Character Hudson testified regarding Petitioner's character. He attested that Petitioner is a good person who has a talent for working with horses. He has never known Petitioner to have a conflict with any owner, rider, or veterinarian in connection with any of the horses that Petitioner has worked with over the years. At the final hearing, Petitioner acknowledged that in 2016, he engaged in pari-mutuel work for a short period of time in Kentucky without being licensed. Petitioner's Kentucky Horse Racing Commission occupational license had lapsed while he was not working in—state. He renewed it later that year, but during the time his license had lapsed, he occasionally worked at Churchill Downs in order to make enough money to apply for a new occupational license. On those occasions, he rode into the facility in the truck of another racetrack employee who was licensed, and no one questioned his presence because they knew him from having previously worked there, while he was licensed. He acknowledged that he knew he was legally required to hold a license to gain access to the backside of pari-mutuel racetracks in Kentucky, but testified that it was commonplace for unlicensed persons to work in the backside at Churchill Downs, except on large racing event days. No evidence was presented that Petitioner has ever accessed the backside of, or engaged in activities requiring occupational licensure at, pari-mutuel facilities in Florida while not being licensed to do so.12/ Findings of Ultimate Fact Petitioner's Felony Conviction As discussed above, Petitioner readily acknowledged that he was convicted of third degree assault on a police officer, a felony, in Kentucky in 1998. Respondent is authorized, pursuant to section 550.105(5)(b), to deny Petitioner's application for an occupational license on the basis of his felony conviction. Waiver of Disqualification from Licensure Section 550.105(5)(c) authorizes Respondent to waive licensure disqualification under section 550.105(5)(b) if "the applicant establishes that she or he is of good moral character, that she or he has been rehabilitated, and that the crime she or he was convicted of is not related to pari—mutuel wagering and is not a capital offense." As discussed above, there is no evidence showing that Petitioner has been convicted of any crime involving pari—mutuel wagering or that is a capital offense. Therefore, the question becomes whether the preponderance of the evidence shows that Petitioner is rehabilitated and of good moral character such that, pursuant to section 550.105(5)(c) and rule 61D—5.006, he is entitled to a waiver from licensure disqualification. The question whether a person is rehabilitated from his or her criminal conviction primarily focuses on the person's behavior subsequent to committing the offense, rather than focusing solely——or even primarily——on whether the person committed the offenses.13/ As discussed above, Petitioner was forthright in acknowledging that he had committed numerous criminal offenses in the past——one of them a serious felony that, pursuant to statute, has effectively excluded him from obtaining an occupational license. This is his only felony offense, and was committed over 20 years ago. Although Petitioner committed several offenses subsequent to his 1998 felony conviction, they were misdemeanors, the majority of which were committed in the 1990s and many of which subsequently have been expunged from his record. His most recent offense, misdemeanor possession of marijuana, for which he paid a small fine to resolve, occurred in 2011, some eight years ago. There is no evidence that he has engaged in criminal behavior since then. Based on the foregoing, the undersigned finds, as a matter of ultimate fact, that Petitioner is rehabilitated from his 1998 felony in Kentucky, which is the basis on which Respondent has proposed to deny his occupational license application. See J.D. v. Fla. Dep't of Child. & Fams., 114 So. 3d 1127, 1131 (whether an applicant is rehabilitated is an issue of ultimate fact to be determined by the trier of fact). Marshall Hudson, a colleague with whom Petitioner has worked for a few years now, vouched for Petitioner's character. Petitioner testified, credibly, that he has never had any "problems" associated with his work as a blacksmith and farrier. Respondent presented no evidence to the contrary. Petitioner admitted to working without a license in the backside of Churchill Downs in Kentucky for a short time, approximately three years ago. The evidence establishes that he did so because he needed the work in order to make enough money to apply for an occupational license, since his had lapsed while he had not been working in—state. Under these circumstances, it is understandable that Petitioner would accept the opportunity to make money that would enable him apply for an occupational license that would allow him to legally practice his trade. Once Petitioner had earned enough money to obtain an occupational license, he did so. It is further noted that there was no evidence presented that Petitioner has since engaged in the unlicensed practice of his trade in Kentucky or in any other state. The evidence also does not show that Petitioner has ever engaged in the unlicensed practice of his trade at licensed pari—mutuel facilities in Florida. Importantly, too, no evidence was presented showing that Petitioner has ever engaged in conduct involving gambling, bookmaking, or cruelty to animals, and none of his criminal offenses involved pari—mutuel wagering——conduct that would rightfully raise significant concerns as to whether he should be licensed. Based on these considerations, the undersigned determines, as a matter of ultimate fact, that Petitioner is of good moral character for purposes of obtaining a waiver, pursuant to section 550.105(5)(c) and rule 61D—5.006. See Albert v. Fla. Dep't of Law Enf., 573 So. 2d 187 (Fla. 3d DCA 1991)(except where a specific provision of statute has categorically——i.e., absolutely and without qualification—— disqualified an applicant from consideration for licensure, the question of what constitutes "good moral character" is a question of fact to be determined by the trier of fact).14/ Failure to Disclose Criminal History Respondent proposes to deny Petitioner's application on the basis that he did not disclose his entire criminal history, as required by the "Background Information" section of the occupational license application form. The evidence establishes that Petitioner did not disclose his entire criminal history on the application form filed on December 11, 2017, as supplemented on March 5, 2018. However, this is a de novo proceeding designed to formulate agency action, not review action taken earlier and preliminarily. As such, Petitioner was entitled to present, at the final hearing in this proceeding, information regarding his criminal history additional to that provided in his application. At the final hearing, in response to Respondent's questioning in its case in chief, Petitioner testified regarding each criminal offense he had committed. Petitioner's testimony regarding his complete criminal history at the de novo final hearing in this proceeding satisfies the requirement in the occupational license application Background Information section, that his complete criminal history be disclosed. Accordingly, failure to disclose his criminal history is not a basis for denying his application pursuant to section 559.791.
Conclusions For Petitioner: John A. Short, pro se 3701 Quantum Lakes Drive, Suite 109 West Palm Beach, Florida 33426 For Respondent: James A. Lewis, Esquire Department of Business and Professional Regulation 2601 Blair Stone Road Tallahassee, Florida 32399—2202
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's application for a pari-mutuel wagering occupational license. DONE AND ENTERED this 6th day of August, 2019, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 6th day of August, 2019.
The Issue Whether Petitioner committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against Respondent's Pari-Mutuel Wagering Occupational License?
Findings Of Fact Respondent submitted an application to Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division) on or about October 6, 2004, for a pari-mutuel wagering occupational license. The Division issued license number 7244830-1021, at Ocala Jai-Alai to Respondent. The nature of the license is an "owner's license" regarding owning racehorses. The Division is the state agency charged with regulation of pari-mutuel wagering pursuant to Chapter 550, Florida Statutes, and is responsible for licensing employees of pari-mutuel facilities. The following question appeared on Respondent's application for licensure: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. If an applicant answers "yes" to the above question, he or she is then required to complete form 0050-1. Respondent answered "yes" to the question and submitted form 0050-1 which contained the following explanation: Offense: Tax Evasion County: New York State: New York Penalty/ Disposition: Restitution misdemeanor-probation Date of offense: 1985 Have all sanctions been satisfied: yes Description: Sold property failed to pay tax liens-ultimately bank was money damaged so I had to pay restitution + serve 2y probation.[1/] In April 1995, the United State District Court for the Western District of New York issued a Judgment against Respondent finding him guilty of the crime of Bank Larceny and Theft. The Judgment lists the date the offense concluded as "03/03/89." Respondent was ordered to pay a special assessment of $25, restitution in the amount of $59,000 in installments to Empire of America, and was placed on one year probation. Steven Toner is an investigator for the Division. He was assigned Respondent's case and conducted an interview of Respondent. During cross-examination, Mr. Toner described part of the interview: Q: Did Mr. Paradelo in the course of your interview in my office indicate to you that the entire thing on his application for 1985 tax evasion, which he stated to you for the 1995 conviction, was all a single case? A: It was told to me that it was a run-on. Now, I'm not trying to be evasive, but it was a run-on between the criminal and the civil matters that were in the Landlord/Tenant things that were going, that were happening during that period of time. Respondent described the general chain of events leading up to the 1995 Judgment: in 1985, the Internal Revenue Service (IRS) filed a tax lien against Respondent; in 1988 Respondent applied to Empire of America Bank to refinance apartments which he owned; at the closing for the refinancing, the tax lien was revealed to the bank and to Respondent; the closing went forward; Respondent filed for bankruptcy in 1991; the bank failed and was taken over by a trust company; in 1991, the IRS commenced foreclosure proceedings based upon the 1985 tax lien; the matter was ultimately resolved in the criminal case which resulted in the Judgment wherein Respondent was required to pay $59,000 in restitution. Respondent considers the Judgment as a continuation of, and not distinct from, the tax lien matter that initially arose in the 1980's. The undersigned finds Respondent's testimony in this regard to be credible. The details of the events leading up to the 1995 judgment are important to the extent that they lend support to Respondent's position that he did not falsify the license application. Respondent answered "yes" to the question that he had a criminal conviction. He disclosed that he sold property, had to pay tax liens, had to pay restitution, and was placed on probation. While Respondent's description of his criminal conviction was imprecise, it was not false.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 10th day of July, 2006.
The Issue The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, 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 20th day of June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether Respondent, a pari-mutuel wagering occupational licensing holder, committed the offenses alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent held pari-mutuel wagering license number 0680747-1081. Prior to November 14, 1994, Kenneth Manness, a blacksmith who does business as Better Hooves, Inc., provided services and supplies at the request of Respondent for horses which Respondent kept and raced on the grounds of the Pompano Park Harness Track during the 1994 meet. Mr. Manness, d/b/a Better Hooves, Inc., made repeated demands for Respondent to pay the bills that had been submitted to him for these services and supplies. Respondent failed to pay this debt. This debt was for services and supplies that directly relate to racing at a pari-mutuel facility within the State of Florida. Mr. Manness, d/b/a Better Hooves, Inc., filed suit against Respondent based on this indebtedness in the County Court of Broward County, Florida where the proceeding was assigned Case Number CO-NO-94-001685. On November 14, 1994, a default judgment was entered against Respondent in the County Court proceeding. The Court found that Respondent was indebted to Mr. Manness, d/b/a Better Hooves, Inc., in the principal amount of $1,332.30 and ordered Respondent to pay that amount plus costs in the amount of $115.00, for a total of $1,437.30. Interest was to accrue at the rate of 12 percent per annum. As of the date of the formal hearing, Respondent had paid none of this indebtedness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Respondent's pari-mutuel wagering occupational license be revoked. It is further recommended that Respondent be given leave to apply for licensure after he submits proof that the judgment described in this Recommended Order has been fully satisfied. DONE AND ENTERED this 30th day of July, 1996, 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 30th day of July, 1996. COPIES FURNISHED: Thomas W. Darby, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mr. Claude D. Richards 10 Parkwood Road Westbury, New York 11590 Royal H. Logan, Acting Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The Respondent, Richard M. Woodley has two inactive contracting licenses numbered CB CA 17970 and CB CO 17970, and was so licensed in 1986. The Respondent's license CB CA 17970 qualified "Woodley Builders, Inc." with the Florida Construction Industry Licensing Board. At the time of the hearing, the Respondent was no longer in the construction contracting business as a licensed contractor. With respect to case number 87-2809, on December 15, 1985, the Respondent, on behalf of Woodley Builders, Inc., entered into a contract with Catherine M. Richardson and Jonathan P. Richardson to build a residence in or near Orlando, Florida. The contract price was $90,000, with $20,000 attributable to the land. The contract specified that payments would be made to Woodley Builders, Inc. "in accordance with the disbursement schedule set forth by the construction lender." P. Ex. 1, paragraph 7. Woodley Builders, Inc. also agreed in the contract to furnish to the Richardsons lien waivers as required by the construction lender for disbursements. The construction lender disbursed the following amounts on the indicated dates: $10,200 March 17, 1986 $10,200 March 19, 1986 $17,000 March 27, 1986 $17,000 April 24, 1986 To induce these disbursements, a total of $54,400, the Respondent signed lien waivers stating that all bills for labor and materials used had been paid in full. P. Ex. 5. At the time of signing, the Respondent told the construction lender that he had paid all bills due to that time, but had not paid bills not yet presented. T. 89. Thus, the lien waivers were intended to be a certification of the partial completion and payment for the work billed to the date of the waiver, and a promise to pay other bills for work already completed as such bills were presented. Six claims of liens were filed by subcontractors. The Richardsons hired a lawyer, and the lawyer was able to defend against two of the liens for failure to properly comply with procedures for mechanic's liens. Four liens for the following amounts and for work beginning on the dates indicated ultimately had to be satisfied by the Richardsons: $ 2,851.45 March 19, 1986 $13,462.34 March 7, 1986 $ 1,944.57 April 8, 1986 $ 785.01 April 9, 1986 These liens were for work commenced before the last lien waiver was signed on April 24, 1986. Thus, the Respondent failed to comply with the oral representations he made at the time of signing the lien waivers. The Richardsons were forced to execute a second mortgage in excess of $17,000 to pay off the unpaid liens. The Richardsons terminated the contract with Woodley Builders, Inc. when subcontractors quit working for lack of payment by Woodley Builders, Inc. Some money was obtained from family loans. It cost the Richardsons about $30,000 to have the house finished, which has added about $325 per month to their mortgage obligations. The Respondent and Woodley Builders, Inc. have not paid anything on these liens. Woodley Builders, Inc. filed bankruptcy. The Richardsons sued the Respondent as trustee for Woodley Builders, Inc. and obtained a default judgment for $149,839, which was a judgment of $32,380 in compensatory damages, trebled, plus costs, interest, and attorney's fees. With respect to case number 87-2810, on June 11, 1986, Woodley Builders, Inc. entered into a contract with Tom Jamieson to construct an addition to his residence in Orlando, Florida. The price of the work was $18,500. The contract specified that the price was a cash price, and that draws were to be made according to a schedule stated in the contract. Mr. Jamieson paid to Woodley Builders, Inc. about $11,700 of the contract price. At some time before completion of the addition, the owner, Mr. Jamieson, evidently became dissatisfied with the Respondent's work. Mr. Jamieson was given the Respondent's copy of the contract and refused to return it to the Respondent. Mr. Jamieson then owed the Respondent a draw of $3500, but refused to give it to him, and refused to have it put in escrow for the payment of subcontractors. The date that this occurred is not in evidence. T. 35-36, 39. Since Mr. Jamieson had taken back the contract, the Respondent thought that he (the Respondent) no longer had any legal proof of the contract (either scope of work or amount due), and thus had no contract to complete the work. He also did not receive the draw that was due. The Respondent thus ceased work on the addition for fear that he would not be paid without a copy of his contract. T. 36-37. The Respondent offered to complete the work. T. 51. The drywall contractor, Rick's Drywall, Inc., filed a lien for $465 for work done from August 12, 1986 and August 20, 1986. The Respondent would have paid this lien had Mr. Jamieson not terminated the contract and refused to give the Respondent a draw still due of $3500. T. 49-50. There may be a claim for unpaid electrical work in July, 1986, see P. Ex. 15, but it is impossible to tell if this occurred before or after Mr. Jamieson terminated the contract, or whether the Respondent had received draw money that should have paid this claim. The only evidence is that the Respondent had an agreement with the electrical subcontractor to pay that subcontractor at the time of the final draw, a draw never received as discussed above. T. 53. P. Ex. 11 is insufficient evidence that there were unpaid claims for roof trusses. Moreover, it cannot be determined whether the Respondent received a draw before contract termination which should have been used to pay for roof trusses. The Respondent had been a contractor for eight years before he began to have financial difficulties resulting in the problems with the Richardson's residence. There is no evidence of any prior discipline.
Recommendation It is recommended that the Construction Industry Licensing Board enter its final order finding in case number 87-2809 that the Respondent, Richard M. Woodley, violated sections 489.129(1)(m), 489.129(1)(j), and 489.119, Fla. Stat. (1986), misconduct in contracting by diversion of funds, and failure to supervise as a qualifying agent, and in case number 87-2810, dismissing the administrative complaint for failure of proof by clear and convincing evidence. It is further recommended for the violation set forth above that the license of the Respondent be suspended for one year. DONE and ENTERED this 22nd day of July, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1988. COPIES FURNISHED: Richard M. Woodley 2521 Tuscaloosa Trail Maitland, Florida 32751 David Bryant, Esquire 1107 East Jackson, Suite 104 Tampa, Florida 33602 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Nonroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
