The Issue At issue is whether Respondent's Florida real estate license should be disciplined upon charges that: (1) Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes, as set forth in Count I of the Administrative Complaint; and (2) Respondent is guilty of having had a registration suspended, revoked, or otherwise acted against in any jurisdiction in violation of Section 475.225(1)(s), Florida Statutes, as set forth in Count II of the Administrative Complaint.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455, and 475, Florida Statutes. Respondent, Washington Moises Quinones, is and was at all times material to the Administrative Complaint a licensed Florida real estate salesperson, issued license number 0650737 in accordance with Chapter 475, Florida Statutes. Respondent, Washington Moises Quinones, was also a member of the Florida Bar. On or about August 29, 1997, the Florida Bar petitioned the Florida Supreme Court for an emergency suspension of Respondent's bar license. The petition filed with the Florida Supreme Court reflects that Respondent's "trust records reveal losses which approximate $350,000.00." On or about September 11, 1997, the Florida Supreme Court granted the petition for emergency suspension of Respondent's bar license, and suspended Respondent from the practice of law for the reasons set forth in the Petition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violation Section 475.25(1)(b), Florida Statutes, and 475.25(1)(s), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's real estate license be revoked in accordance with Section 475.25(1), Florida Statutes. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Washington Moises Quinones 5119 Agora Street Sebring, Florida 33872 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Petitioner's allegation of subjection to an unlawful employment practice is barred by Section 760.11(1), Florida Statutes.
Findings Of Fact Petitioner was previously employed by Respondent until her termination on November 15, 1996. Petitioner discussed the firing with her attorney in January of 1997. Petitioner was apprised by the attorney that she could file a complaint with the Florida Commission on Human Relations (FCHR) or the Equal Employment Opportunity Commission (EEOC). Prior to August of 1997, Petitioner's attorney informed her that he had filed a Charge of Discrimination on behalf of Petitioner with the EEOC. Petitioner was led to understand that an investigator for EEOC would contact her. Petitioner was never contacted by the EEOC. On April 14, 2000, Petitioner received a notice from her attorney that apprised Petitioner that the attorney had been suspended from the practice of law by the Supreme Court for a period of 10 days. Later in either May or June, Petitioner read a newspaper article that recounted the suspension of Petitioner's attorney from the practice of law. Petitioner then determined to consult her present counsel in this matter, David Glasser, Esquire, to handle the charge she believed had been filed with the EEOC. Petitioner learned through Glasser that her previous counsel had not filed a complaint or charge with the EEOC. On July 10, 2000, Petitioner filed her Charge of Discrimination with the FCHR. Petitioner has neither filed a complaint with the Florida Bar Association or filed a legal malpractice suit against her previous counsel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 17th day of September, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS 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, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 David Glasser, Esquire Glasser and Handel 150 South Palmetto Avenue Suite 100, Box N Daytona Beach, Florida 32114 Douglas Kreuzkamp, Esquire American Red Cross Blood Services King & Spalding 191 Peachtree Street Atlanta, Georgia 30303-1763 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue By its Administrative Complaint filed herein on approximately June 13, 1979, the Board of Real Estate (Board) seeks to discipline the Defendant/Licensee, John Edward I - Grim, Jr., based on conduct, set forth hereinafter In detail, which, according to the Board, is conduct involving fraudulent or dishonest dealing in violation of Subsection 475.25(1)(e) and Subsection 475.25(1)(b), Florida Statutes. 1/
Findings Of Fact Based upon my observation of the Respondent/Defendant and his demeanor while testifying, the documentary evidence received, the argument of counsel for the Board and the entire record compiled herein, the following relevant facts are found. During times material, the Defendant/Licensee, John Edward Grim, Jr., was a licensed/registered real estate salesman who held License No. 0034277. On December 7, 1976, the Respondent/Defendant was indicted in the Middle District of Florida, Orlando Division, for having violated Title XVIII of the United States Code, Sections 2, 371 and 472. On or about March 25, 1977, Respondent/Defendant Grim was found guilty by a jury of having violated Title XVIII of the United States Code, Sections 371 and 472 as charged in Counts 1,2 and 5 of the above referenced indictment. On or about May 5, 1977, the Middle District Court of Florida found Respondent/Defendant John Edward Grim, Jr., guilty of Counts 1, 2 and 5 of the indictment, to wit, that he knowingly, willfully and unlawfully conspired with other persons to bring counterfeit obligations of the United States into the United States from a foreign country, with the intent to defraud, and possessed, concealed, passed and uttered said counterfeit obligations, in violation of Title XVIII United States Code, Sections 371 and 472, as charged in Counts 1, 2 and 5 of the indictment. On May 5, 1977, Respondent/Defendant John Edward Grim, Jr., was sentenced to serve two (2) years of imprisonment for each count, with the sentence of imprisonment to run concurrently. On May 12, 1977, a Notice of Appeal was filed with the United States Court of Appeal for the Fifth Circuit for the Final Judgment of Conviction and sentence entered on May 5, .1977. On December 22, 1978, the United States Court of Appeal for the Fifth Circuit affirmed the Judgment of Conviction entered against Respondent/Defendant John Edward Grim, Jr. (Petitioner's Exhibits 1 and 2.) RESPONDENT'S DEFENSE The Respondent appeared and testified in his own behalf. Essentially, his defense is that he volunteered the information to the law enforcement officials and that he fully cooperated with the investigation of the above referenced charges; that he is presently the operator of a pawn shop where he is involved in the jewelry business and that he has been inactive in the selling of real estate since approximately 1975.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent, John Edward Grim, Jr.'s real estate salesman's license be REVOKED. RECOMMENDED this 9th day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1980.
The Issue Are the four notices of violation against Respondents valid, and if valid, may the Department of Transportation require that the allegedly offending signs be removed?
Findings Of Fact On or about September 21, 2000, DOT became aware that two trucks bearing written material were parked adjacent to DOT's right-of-way on the west side of Interstate 95 (I-95) in St. Johns County in such a manner that the written material was visible from the main-traveled way of I-95. DOT issued four Notices of Violation against the two trucks. Notice of Violation number 10B TS 2000 539 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.015 miles north of SR 207, at milepost 15.823. This violation notice became DOAH Case No. 00-4188T. Notice of Violation number 10B TS 2000 540 was issued to Café Erotica of Florida, Inc., d/b/a Café Erotica on September 21, 2000, against a truck located adjacent to I-95, 2.041 miles north of SR 207, at milepost 15.849. This violation notice became DOAH Case No. 00-4189T. Notice of Violation number 10B BB 2000 539 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.015 miles north of SR 207. This violation notice became DOAH Case No. 00-4423T. Notice of Violation number 10B BB 2000 540 was issued to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., c/o Gary Edinger, the registered agent for the corporation, on October 10, 2000, against the truck located adjacent to I-95, 2.041 miles north of SR 207. This violation notice became DOAH Case No. 00-4424T. All of the foregoing notices alleged that the trucks are in violation of Chapter 479, Florida Statutes, in that they are unpermitted signs. On October 24, 2000, DOT issued a letter to Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., advising it that the trucks which were issued the above- referenced notices of violation had been moved temporarily out of view and then returned to visibility at each other's previous milepost location. The letter advised that notwithstanding the movement of the trucks within their general location, the trucks remained illegal signs pursuant to Chapter 479, Florida Statutes. I-95 is part of the Interstate Highway System. The two trucks are located at times within 660 feet of the nearest edge of the right-of-way of I-95. The trucks can be seen without visual aid by motorists of normal visual acuity traveling on I-95. Admitted Fact Four of the parties' prehearing stipulation was that at the time the notices of violation were issued, the trucks displayed the words "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc." However, their Admitted Fact Five, incorporating photographs, and other photographs in evidence reveal that one truck had the foregoing display without the slashes and one truck juxtaposed the phrases "Great Food" and "Adult Toys," also without the slashes. The trucks were located within 15 feet of the right-of-way fence and were parked on raised mounds of dirt, elevating them above the surrounding terrain. Immediately adjacent to the trucks were light fixtures with halogen lights aimed at the sides of the trucks. If electricity had been available, the lights could have illuminated the vehicles. The trucks were intentionally placed at their locations. As of January 5, 2001, additional verbiage was added to the trucks which states, "Hunt & Fish Camp." As of the March 7, 2001, date of hearing, the trucks still contained this additional verbiage. On both trucks, the letters are all capitalized; the size of the letters and the paint colors used call the viewer's attention to the phrases, "CAFE? EROTICA," "WE DARE TO BARE," "ADULT TOYS," "GREAT FOOD," and "EXIT 94." The abbreviation "INC.," is the phrase smallest in size, located at the very bottom right, relatively inconspicuous, and the words, "hunt & fish camp," follow, vertical to the rest of the verbiage. There are no addresses, telephone numbers, arrows, or other identifying information. Respondent Cafe Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., is a Florida corporation. At all times material, Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., has been a corporation in good standing with the Florida Department of State, which has registered and approved its corporate name pursuant to Section 607.0401, Florida Statutes. Asher G. Sullivan, Jr., a/k/a Jerry Sullivan, is incorporator, President, shareholder, and Director of the corporation, which will hereafter be referred to as "Exit 94, Inc." Exit 94, Inc., owns, insures, and maintains the two trucks which are the subject of this proceeding. Exit 94, Inc., likewise owns the real property on which the trucks are located, which parcel consists of approximately 11 acres situated between I-95 exits 94 and 95. Exit 94, Inc., does not sell food or adult toys. It does not offer dancers for public viewing. The business of Exit 94, Inc., is developing a hunting and fishing camp at the property it owns, the property where its trucks were cited by DOT, between I-95 exits 94 and 95. Respondent Café Erotica of Florida, Inc., d/b/a Café Erotica, is a Florida corporation which holds the license and owns the assets of the Café Erotica restaurant. Jerry Sullivan also is president, shareholder, and owner of Café Erotica of Florida, Inc., which will hereafter be referred-to as "Café Erotica." The St. Johns Management Company manages the Café Erotica restaurant. Jerry Sullivan also is the President and shareholder of the St. Johns Management Company. The Café Erotica restaurant is a 24-hour per day, full-service restaurant which features dancers clad in bathing suits and which sells adult toys. The Café Erotica restaurant is located at 2620 State Road 207 (SR-207), at the intersection of SR 207 and the exit 94 off-ramps from I-95. The real property owned by Café Erotica is not contiguous to the subject real property owned by Exit 94, Inc. The real property owned by Exit 94, Inc., which is the subject of DOT's notices of violation is approximately seven miles from the Café Erotica restaurant. The Café Erotica restaurant currently advertises on its premises and on a billboard at exit 94 of I-95. In the past, Café Erotica has advertised "we dare to bare," "adult toys," and "exit 94" on other billboards located adjacent to I- 95 in St. Johns County. Café Erotica no longer rents billboards in these locations. The advertisements of Café Erotica currently at exit 94 of I-95 include the words, "private dances," and "great food/adult toys." The advertising is specifically directed at motorists, including truck drivers, on I-95. In addition to the real property where its trucks were cited by DOT, which real property Exit 94, Inc., holds by warranty deed, Exit 94, Inc., leases property at the southeast corner of I-95's exit 93, where SR-206 intersects with I-95. At that location, Exit 94, Inc., displays a 14-foot by 25-foot permanent billboard sign reading "Café Erotica/We Dare to Bare/Great Food/Adult Toys/Exit 94, Inc." (Note juxtaposition of part of the corporate name). Below this billboard, on the same leased property, is a smaller sign stating "Fish Camp" with a telephone number (P-11; TR 66-64, 73- 74, 183-184). Exit 94, Inc., claims to maintain an office and a telephone on this leased property. Mr. Sullivan's primary business is that of renting billboards for advertising purposes, which he owns. He has advertised on leased signs and has knowledge of DOT's sign permit requirements. At one time, Mr. Sullivan intended to place a billboard on the property owned by Exit 94, Inc. He has not done so. Neither Café Erotica nor Exit 94, Inc., has applied to DOT for sign permits for the subject trucks, nor paid any sign permit fees for them. No sign permits have been issued to any entity for the subject trucks. When the Notices of Violation were issued, DOT inspectors did not enter on the real property owned by Exit 94, Inc., or pull any business licenses for the property. They viewed the trucks from I-95. No improvements were visible from I-95. DOT did not undertake any investigation to determine the owner(s) of the subject trucks or subject real property. Café Erotica does not own any interest in the subject trucks or real property, and no citizen testified that the trucks had caused him/her to patronize the Café Erotica. DOT witnesses acknowledged that the Notices of Violation issued to Café Erotica were essentially issued in error because DOT did not know the identity of the owner of the subject trucks and real property. Upon discovering that Café Erotica did not own any interest in the subject trucks or real property, DOT made no effort to dismiss the violations against Café Erotica. Jerry Sullivan has decision-making authority for both Respondents as a corporate officer of both corporations. Jerry Sullivan makes management decisions concerning Café Erotica, including whether, and how, to advertise. Jerry Sullivan has directed all activity on the Exit 94, Inc., property. He anticipates creating, maintaining, and charging people for the privilege of using the subject property as a fishing and hunting camp. He also intends to reward employees and clients of his various enterprises with free privileges at the camp. Ninety percent of the time, the subject trucks are parked on the subject property. However, from time to time, the trucks, one of which was burned out and one of which has a "for sale" sign painted on its windshield, are driven off the Exit 94, Inc., property to haul equipment and corn to the subject property, for "truck maintenance," and for incidental uses in connection with Exit 94, Inc., and Mr. Sullivan's other business entities, including Café Erotica. On some of these occasions, the trucks are parked in the parking lot of the Café Erotica restaurant. The trucks are used off the Exit 94, Inc., property only two or three times per month. Except when under repair, they can be driven on the roads and highways. Exit 94, Inc., paid approximately $35,000 for the subject property on or about April 9, 1999, well before the notices of violation. Eight months prior to hearing (approximately three months before the notices of violation), Exit 94, Inc. dug a pond in a naturally low spot and/or a natural basin where Mr. Sullivan believed a pond originally had been on the subject property. A solar panel pump was installed to put water into the excavation because getting electricity run to the property was prohibitively expensive. Inspection of the subject property by DOT personnel only occurred about two-and-one-half weeks before the disputed- fact hearing. At that time, the solar pump used to fill the pond with water was not working well, so that the possibility of fish living in the rather shallow pond was highly unlikely. The pond was not stocked with fish. The property was not stocked with game animals. There was also one very ramshackle deer blind on the property and a permanent metal, utility pole had been erected to support another deer blind. There were no utilities, restrooms, offices, or facilities to clean game on the premises. No fishing equipment was available for purchase. This situation was memorialized by photographs in evidence. The Exit 94, Inc., property has only one entrance which is not directly accessible from a public roadway. To reach Exit 94, Inc.'s, only entrance, a car gets off I-95 at exit 94, where Café Erotica is located, and proceeds to a private dirt road created and owned by Georgia-Pacific timber company, and then drives approximately one mile along that dirt road over the timber company's land. Thousands of acres of scrub pine belonging to the timber company surround Exit 94, Inc.'s property. Entrance to the timber company land is through a fence/gate. The timber company gate is "posted," warning that hunting is not permitted on its land and that violators will be prosecuted. The Exit 94, Inc., property is also "posted," and therefore not open to the general public. There is a "Café Erotica/We Dare to Bare/Adult Toys/Great Food/Exit 94, Inc., Hunt & Fish Camp" sign at its entrance. It cannot be inferred, as urged by DOT, that if a real property owner "posts" its property so the owner may subsequently prosecute trespassers and poachers, the owner also cannot charge a fee to customers, invited guests, or business invitees who hunt or fish on its property with its permission. Travelling as described above, there are approximately nine and one-half miles between exit 94 of I-95 and the Exit 94, Inc., property. There are no signs advertising a "hunt and fish camp" on this stretch of land, but Exit 94, Inc., has its billboard and other sign at Exit 93. (See Finding of Fact 22.) Exit 94, Inc., presented accounts showing it spent over $7,003 maintaining its signs since 1999 and over $12,000 on the subject trucks. Exit 94, Inc., lists addresses and locations other than the subject property as its business address(es) for various purposes. It maintains no office or telephone on the subject property. The only building on the subject property is a very small storage shack, placed there by Exit 94, Inc. The shack is not habitable as overnight lodging. It was designed to hold repair equipment and corn for seeding the pond for waterfowl and seeding the woods for deer. There is no evidence whether this method of luring game from the surrounding area is legal or illegal, but it is certainly feasible, given the location of the subject property. (See Finding of Fact 38.) Russell Market is General Manager for the Café Erotica restaurant. He was directed by Mr. Sullivan to check on Exit 94, Inc.'s, subject property, and he did so once a week and scattered corn for nine months. He saw wild turkeys on the subject property. Bill King is affiliated with Mr. Sullivan's companies. He has not hunted the subject property, but he sighted one of the deer stands. No witness testified to having camped overnight on the subject property. Bill Harry, who is employed by Mr. Sullivan, has hunted the subject property three or four times without success, despite once seeing a deer. Jerry Sullivan killed a deer on the subject property. There is no parking lot on the subject property. Respondents' witnesses testified that the subject trucks are parked on raised mounds of earth because the subject property is swampy. Only several hundred-by-60 feet have been cleared of brush. There is no telephone service to the subject property. If someone dials the telephone number listed for Exit 94, Inc. on its application to be a fish farm (see Finding of Fact 55) which is the same number on its sign at I-95's exit number 93 (see Finding of Fact 22), a recorded message relays the caller to a telephone number for the cell phone Mr. Sullivan carries on his person. No utilities are currently available on the subject property, but the solar pump is in use at the pond. Bill Harry repaired the pond pump a few days after showing DOT personnel around the subject property. (See Finding of Fact 36.) At hearing, he testified that the pond is now filling well with water. When the pond is full, Mr. Sullivan intends to stock it with fish. Exit 94, Inc., holds an occupational license from St. Johns County as a "fish camp." In issuing this license, the County accepted Exit 94, Inc.'s, designation of its business without further inquiry. Exit 94, Inc., has applied for a "fish farm" license from the Florida Game and Freshwater Fish Commission. Exit 94, Inc., produced invoices sent to clients for hunting and fishing privileges on the subject property, corresponding checks in payment, and tax returns. Patricia Doorbar, bookkeeper for Exit 94, Inc. and all of Mr. Sullivan's other business entities, testified that she had drafted all of the invoices, and had prepared the tax returns. She further testified that she maintained Exit 94, Inc.'s corporate financial books in accord with generally accepted accounting principles. The invoices and payments reflect that other business entities controlled by Mr. Sullivan or his family members were billed and paid for use of the Exit 94, Inc., property. Exit 94, Inc., currently operates at a loss, made up as necessary by Mr. Sullivan. No legitimate reason was demonstrated to pierce the corporate veil of any of Mr. Sullivan's corporations. Approximately two weeks before the disputed-fact hearing, Exit 94, Inc., made improvements to the subject property. These included laying out feed corn on the ground, repairing a deer stand so it could support one or more hunters, and repairing the solar pump. See supra. These improvements were memorialized by photographs in evidence. Respondents asserted that DOT has selectively enforced the sign law against them on the basis of many photographs of trucks bearing written material which were admitted in evidence. The trucks typically carry a business name, address and telephone number. Some carried only a business name. DOT rarely issues notices of violations for trucks. Within the last three-and-one-half years, trucks constituted approximately five such notices out of 3500 sign violation notices of all kinds, not just off-premises signs. The notices to these two Respondents constitute four of the five notices. DOT has promulgated no rules or policies specifying the factors to be considered when evaluating whether an operational truck constitutes an "off-premises sign" worthy of a violation notice. In the normal course of business, DOT inspectors determine whether trucks constitute "on-premises signs" on a case-by-case analysis which weighs content of the sign, usage of the truck, location and length of time the truck is in a single location, and whether the sign content advertises the business at the location where the truck is parked, advertises another business, or advertises anything at all. Inspectors have wide discretion in issuing notices of violation. With respect to the majority of Respondents' photographs presented at hearing, DOT representatives gave reasonable explanations why the truck owners had not been notified of violations, usually because the truck was being operated on the highway, was not parked over-long away from the business premises which it named, or was parked on the property of the business to which it belonged or which it named. In one instance, a contractor's truck was not charged with a violation because it was parked at a construction site which also bore a sign proclaiming that the construction work was being done by that contractor. Sometimes the reason a truck had not been cited was because the truck had not been located. DOT does not research which corporations or persons own or operate trucks painted with business names, and apparently, precision in painting a business name on other operable trucks had no effect on DOT's decision to treat other operable trucks as "on-premises signs" so that no notices of violation were issued against them. Similar photographs of trucks which Mr. Sullivan had sent to DOT were personally evaluated by DOT's Assistant Right- of-Way Manager for Operations, but this measure was only in response to the Respondents' allegations of selective enforcement in the instant case. The Assistant Right-of-Way Manager directed DOT district personnel to take either further investigative or regulatory action as she instructed on a case- by-case basis. One truck for "Smiley's" was subsequently issued a violation notice.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is
The Issue One issue posed for decision herein is whether or not the Petitioners are entitled to a transfer of License No. 16-1333 SRX (4-COP), an alcoholic beverage license which currently allows Jacob's Ladder, Inc., to serve liquor, wine and beer as Part of its restaurant business pursuant to Sections 561.32 and 561.321, Florida Statutes. Also at issue is whether or not the Petitioners are entitled to have a default judgment for removal of tenant," issued by the Seventeenth Judicial Circuit in Broward County, against Jacob's Ladder, Inc., recorded by Respondent as a lien pursuant to Chapter 561.65, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received including a stipulation by the parties, the following relevant facts are found. License No. 16-1333 SRX (4-COP) is issued to the premises at 1480 South Ocean Boulevard, Pompano Beach, Florida. Petitioners are owners in fee simple to this property. Petitioners leased this property to the past licensee, Jacob's Ladder, Inc. (Petitioners' Exhibit No. 1). Petitioners transferred the subject license to the lessee, Jacob's Ladder, Inc., for use while they operated a restaurant at the subject location (1480 South Ocean Boulevard, Pompano Beach, Florida). The transfer of the license was not a subject of the lease agreement and the record does not reflect that any consideration was exchanged for the license. Petitioner and Jacob's Ladder, Inc., subsequently executed a transfer application transferring the subject license back to Petitioners. The transfer application was then placed in escrow for the stated purpose of facilitating a license transfer in the event that the lessee defaulted on the lease agreement. (Petitioners' Exhibit Nos. 2 and 12.) Petitioners later learned that the property had been converted to a bar instead of a "family type restaurant." Thus, Petitioners concluded that the "conversion" resulted in a use of the premises in a function inconsistent with the lease and Florida's alcoholic beverage laws. Petitioners, therefore, sought and obtained a court order evicting Jacob's Ladder, Inc., from the premises (Petitioners' Exhibit No. 3). Respondent had notice that the Petitioners were lessors and owners of the property to which the subject license was issued both when Petitioners transferred the license to Jacob's Ladder, Inc., and when the Petitioners' attorneys informed Respondent of Petitioners' status as lessors and owners of the subject property. (Petitioners' Exhibit No. 4.) On January 22, 1979, Respondent, through its District Supervisor, filed charges and prepared an Administrative Complaint for Rule violations against Jacob's Ladder occurring in June of 1978. On February 1, 1979, Petitioners' attorneys met for an office conference with Respondent's Director and other staff personnel concerning the subject license. During this meeting, Respondent, in addition to being advised that Petitioners were the lessors of the subject premises, was also advised that Petitioners had taken possession and was seeking transfer of the license to Petitioners. During this meeting, Petitioners were advised by Respondent that Jacob's Ladder had continuously violated rules governing the special restaurant license which was issued; that Respondent intended to revoke the license and was presently proceeding to that end. On February 5, 1979, Petitioners signed a letter of agreement, stipulating to their future conduct and to the conduct of any future lessee. (Petitioners' Exhibit No. 6.) On February 9, 1979, Petitioners executed an application for transfer of License No. 16-1333 SRX (4-COP)(Petitioners Exhibit No. 12). Also on February 9, 1979, Respondent executed and forwarded two documents captioned a Notice to Show Cause/Notice of Informal Conference and a Notice of Informal Conference both of which were received at two locations by J. Epsimos, President of Jacob's Ladder, Inc., on February 13 and 15, 1979. (Petitioners' Exhibit No. 7.) Petitioners' letter of agreement, application for transfer and request for lien filing were mailed to Respondent on February 16, 1979. On March 8, 1979, Respondent returned Petitioners' transfer application, request for lien recording and letter of agreement. (Petitioners' Exhibit No. 5.) In May, 1979, Respondent drafted a revocation order which was not executed, at least in Part, due to Petitioners application for and receipt of a temporary injunction enjoining Respondent from executing the revocation order. The file on the revocation proceedings was closed on May 29, 1979. (Respondent's Exhibit No. 3.) Following the March 8, 1979, letter wherein Respondent returned Petitioners' application and advised that a revocation proceeding was Pending, Respondent proceeded with this effort to suspend or revoke License No. 16-1333 SRX (4-COP). (DOAH Case No. 79-898.) The licensee, Jacob's Ladder, Inc., communicated to Respondent that it did not contest the charges in the Notice to Show Cause filed February 9, 1979, and therefore, did not want a hearing. The matter was, therefore, closed by this Division on May 29, 1979. (See Respondent's Exhibit Nos. 2 and 3.) The licensed premises is one unit of a 57-unit condominium. The remaining 56 units are all residential. There are currently 41 Parking spaces which serve the condominium. According to the Director of Building and Zoning Enforcement for Broward County, the 41 Parking spaces are inadequate to serve the condominium units and are "clearly inadequate to serve 56 residential units in addition to the subject restaurant. Since the Premises were first licensed to serve alcoholic beverages in 1974, condominium residents have complained to the Director of the Respondent about problems they perceived were being created by the service of alcoholic beverages at the restaurant. (Testimony of Nuzum and Nerzig.) Respondent's Director denied the license transfer for two reasons. First, the premises could never serve as a legitimate restaurant but would continue to operate as a bar due to inadequate parking facilities and thus, would be unable to comply with pertinent rules, regulations and statutes governing special restaurant licenses. (Chapter 561, Florida Statutes.) This is so due to the inadequacy of the parking facilities. Secondly, the licensee bad been in violation of the beverage law in 1977 for the same type of violations charged in the subject complaint when the transfer application was submitted. 2/ The Department (Respondent) has an ongoing policy of refusing to record documents pursuant to Section 561.65, Florida Statutes, when the license against which the document is to be recorded is in a revocation proceeding. (Testimony of C. L. Ivey, Regional Supervisor, Barry Schoenfield, Bureau Chief of Licensing, and C. Nuzum, Respondent's Director.) Also, Chief Schoenfield testified to Respondent's policy of only recording liens from lenders that are licensed by the State. This policy appears to be sanctioned by Chapter 561.65, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the action of Respondent in refusing to transfer License No. 16-1333 SRX (4-COP), and refusing to record Petitioners' judgement and lien filings be SUSTAINED. RECOMMENDED this 27th day of May, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, 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 27th day of May, 1981.
Findings Of Fact Petitioner Albert Heisler is a residential air conditioning contractor licensed by Respondent Department of Professional Regulation, Construction Industry Licensing Board, an agency of the State of Florida. Petitioner is the qualifying agent for Residential Air Conditioning Corporation, which had fewer than 25 full-time employees and a net worth of less than two million dollars when charges were brought against Petitioner by Respondent. Further, at the time charges were brought, Petitioner's principal and only office was in Miami, Dade County, Florida, and his net worth was less than two million dollars. Petitioner had no employees who were not employees of the corporation. On July 24, 1986, Respondent filed an Administrative Complaint against Petitioner, seeking to take disciplinary action against Petitioner and his certified air conditioning contractor's license for alleged statutory violations arising from air conditioning work performed for June Davidson. On November 10, 1986, the Administrative Complaint was forwarded by Respondent to the Division of Administrative Hearings, pursuant to Petitioner's request for a formal hearing. The Administrative Complaint was assigned DOAH Case No. 86-4431. In compliance with the parties' request for hearing dates, on January 21, 1987, that case was scheduled for final hearing on February 16, 1987. On February 11, 1987, Petitioner filed with the Division of Administrative Hearings its Notice of Voluntary Dismissal Without Prejudice. On August 25, 1987, Respondent issued what it called an Amended Administrative Complaint against the Petitioner based upon the same facts related to the job performed for June Davidson. Although the Amended Administrative Complaint alleged additional statutory violations based upon the same set of facts, the Amended Administrative Complaint is the same "cause of action" as the Administrative Complaint previously dismissed by Respondent. The Amended Administrative Complaint was forwarded by Respondent to the Division of Administrative Hearings on October 9, 1987, and was assigned DOAH Case No. 87- 4452. The formal hearing on the Amended Administrative Complaint was conducted by the' undersigned on January 14, 1988, and a Recommended Order was issued by the undersigned on March 10, 1988. The Recommended Order entered in DOAH Case No. 87-4452 recommended dismissal of the Amended Administrative Complaint for three distinct reasons. First, the Construction Industry Licensing Board failed to determine probable cause prior to the filing of the Amended Administrative Complaint in accordance with the mandates of Kibler v. Department of Professional Regulation, 418 So.2d 1081 (Fla. 1982). Second, the Department of Professional Regulation failed to prove that the person signing the Amended Administrative Complaint had been delegated the authority to do so by the agency head who was statutorily authorized to do so. Third, the allegations contained within the Amended Administrative Complaint were not well-founded and were not proven. Thirty-three days later, on April 13, 1988, the Department filed Exceptions to that Recommended Order. On May 12, 1988, the Construction Industry Licensing Board met and adopted the Recommended Order entered in DOAH Case No. 87-4452. The Board failed to enter a Final Order at that time. On July 8, 1988, Petitioner Albert Heisler filed with the Division of Administrative Hearings his Application for Award of Attorneys Fees and Costs. That Application was filed pursuant to the Florida Equal Access to Justice Act and contained the allegations required by that statute. The Application also alleged that the Board had failed to enter a Final Order within 90 days of the entry of the Recommended Order as required by Section 120.59, Florida Statutes. Thirty-eight days later, the undersigned entered an Order holding that the time by which the Department of Professional Regulation, Construction Industry Licensing Board, was required to respond in order to dispute the allegations contained in the Application as mandated by Rule 22I-6.035, Florida Administrative Code, had passed and, therefore, the allegations contained within the Application and its supporting documentation were deemed uncontroverted. That Order further noted that no final order had yet been filed. That Order further permitted Petitioner Albert Heisler 60 days in which to file a copy of the final order in order to complete the record in this cause. Ten days later, on August 25, 1988, Respondent Department of Professional Regulation, Construction Industry Licensing Board, filed a Motion for Reconsideration and/or Motion to Dismiss alleging that Petitioner Albert Heisler was not yet a "prevailing party" since no final order had yet been issued by the Construction Industry Licensing Board and no final order was attached to the Application for Award of Attorneys Fees and Costs. The Motion further alleged that the final order resulting from the Board's meeting of May 12, 1988, was incorrect on some matter and was rescinded by the Board. This allegation appears to have been false. On September 13, 1988, the Motion for Reconsideration and/or Motion to Dismiss was denied. Despite the efforts of Petitioner's attorneys and Respondent's attorneys in this cause to obtain a copy of the final order, their efforts were thwarted by the fact that the Construction Industry Licensing Board failed to enter a Final Order in DOAH Case No. 87-4452 until October 26, 1988. Petitioner Albert Heisler filed a copy of that Final Order in this cause on November 1, 1988. The Final Order entered by the Board on October 26, 1988, does not purport to be an amended final order nor does it represent that a previous final order was entered and vacated. Rather, the Final Order adopted the Findings of Fact contained in the Recommended Order, adopted the Conclusions of Law contained within the Recommended Order except where they were in contradiction with the Exceptions filed by the Department of Professional Regulation, adopted in toto the Exceptions filed by the Department, and dismissed the Administrative Complaint filed against Albert Heisler. The Exceptions state that the Department of Professional Regulation did not take exception to the recommendation that the case against Albert Heisler be dismissed, but that the Department was objecting to certain findings and conclusions of facts and law "as a matter of principle." The Recommended Order concluded, in accordance with general rules of statutory construction (an area in which the Construction Industry Licensing' Board has no special expertise), failure to prove a violation of a specific provision precludes finding a violation of a general provision for conduct prohibited by the specific provision. The Exceptions argue that a violation of a specific provision can also be a violation of a general provision, an argument which is legally correct, but irrelevant to the Recommended Order. Second, the Exceptions objected to the findings and conclusions in the Recommended Order that the probable cause proceedings were deficient and that the person signing the Amended Administrative Complaint had no authority to execute that document. While the Exceptions clothed those deficiencies as technical niceties, those deficiencies are jurisdictional, and the law related to them is not within the special expertise of the Construction Industry Licensing Board. The Prehearing Stipulation filed in DOAH Case No. 87-4452 raised as an issue the failure of the Construction Industry Licensing Board to determine probable cause before it filed the Amended Administrative Complaint in that cause. At the final hearing, the transcript of the probable cause panel was introduced in evidence by Albert Heisler. The Recommended Order contained findings of fact that the probable cause panel "rubber-stamped" the prosecutor's recommendation and failed to consider the presence or absence of probable cause. The Recommended Order further found that the Department of Professional Regulation failed to offer any evidence to controvert Heisler's evidence that the probable cause proceeding was of no legal effect. Based upon those findings of fact, the Recommended Order concluded that case law required dismissal of the Amended Administrative Complaint. Similarly, the Recommended Order contained factual findings that the Amended Administrative Complaint was signed by someone other than the agency head. Although that issue was set forth in the prehearing stipulation, the Department which has the burden of proof in any disciplinary proceeding, failed to offer any evidence indicating that authority to issue administrative complaints had been delegated by the Secretary of the Department of Professional Regulation to anyone else. The Exceptions which were legally incorrect were incorporated in the Final Order entered in DOAH Case No. 87-4452. Yet, the Final Order adopted the Findings of Fact contained in the Recommended Order without reservation, and none were modified to form a basis for approving the Exceptions. After the Final Order entered in DOAH Case No. 87-4452 was filed in this cause by Petitioner Albert Heisler on November 1, 1988, the undersigned requested a telephonic prehearing conference to address the status of this cause and the course of future proceedings in this cause. That telephonic conference call was conducted on November 18, 1988. Pursuant to the agreements and arguments of the parties during that telephonic conference, an Order was entered on November 21, 1988, establishing a deadline of December 9 for the submittal of proposed final orders in this cause. Both Petitioner and Respondent filed proposed final orders in this cause on December 9, 1988. On December 15, 1988, Attorney Stockwell on behalf of Petitioner Heisler filed correspondence with the Division of Administrative Hearings which reads, substantially, as follows: This office has received a copy of Respondent's Proposed Final Order in the above-referenced matter. Respondent raises therein for the first time an objection to the manner in which proof was adduced on the value of services rendered. Even during our phone conference on the future proceedings desired by the parties, Respondent did not raise any objection to the proof on the amount of attorney fees or request a hearing on the award. Nevertheless, Petitioner is agreeable to presenting live testimony directed to the value of the legal representation, if you wish to allow Respondent this opportunity. Accordingly, by Notice of Hearing dated January 9, 1989, this cause was scheduled for formal hearing on March 20, 1989, on the sole issue of the reasonableness of attorney's fees and costs sought by Petitioner Albert Heisler. At the final hearing, Petitioner Heisler appeared with documentary evidence and witnesses to testify as to the reasonableness of an award of attorney's fees and costs in this matter. The Department of Professional Regulation appeared with no witnesses and no evidence to offer. Rather, the Department stipulated that the services rendered and itemized in Petitioner's Exhibit numbered 1 in this cause were necessary and reasonable, that Heisler's attorneys' hourly rates are reasonable, that the fees were incurred by Heisler and Heisler is responsible for payment of those fees, and that the costs sought to be reimbursed by Heisler were reasonably and necessarily incurred. Petitioner Albert Heisler's arrangement with his attorneys calls for Heisler to pay his attorneys based upon an hourly rate, as a minimum, but further provides that his attorneys would be paid any amount awarded to them as a reasonable attorney's fee. No evidence of any appeal from the Final Order entered in DOAH Case No. 87-4452 has been submitted, and the time for appeal has expired. There is no circumstance which would make the award sought herein unjust. The disciplinary actions of the Department of Professional Regulation and the Construction Industry Licensing Board initiated and prosecuted against Petitioner were substantially unjustified. Petitioner Albert Heisler is a prevailing small business party. According to the itemized affidavit of Petitioner's attorneys which reveals the nature and extent of the services rendered as well as the costs incurred, Attorney Turner has expended 58.75 hours for which Petitioner Heisler has agreed to pay him $150 per hour. Forty-three and one-half of those hours were for services performed after August 25, 1987. Attorney Stockwell has expended 70.05 hours on behalf of Petitioner Heisler for which he has agreed to pay to her the sum of $100 per hour. Of the 70.05 hours, 61.3 hours were for services performed after August 25, 1987. Although 74.05 total hours were claimed on behalf of Attorney Stockwell, an examination of the itemized breakdown of services rendered shows that four of those hours for services performed after August 25, 1987, are not reimbursable, since 1.5 hours of Stockwell's time was clearly related to a different matter involving Petitioner Heisler and since 2.5 hours reflect the initials of persons other than Attorneys Turner and Stockwell, and no evidence was presented to indicate that DKM or CAB are attorneys who rendered legal services. A computation of the number of hours of legal services subsequent to August 25, 1987, times the hourly rate produces the sum of $12,655. Additionally, Petitioner's Exhibit numbered 1 reveals costs in the amount of $686.90 as of May of 1988, and costs in the additional amount of $122.90 as of the time of the final hearing in this cause. No evidence was offered in support of the criteria established by case law and embodied in Rule 4-1.5(B), Rules Regulating the Florida Bar, for establishing an award of reasonable attorney's fees. Accordingly, a reasonable amount for attorney's fees and costs in this matter is $13,464.80, which is based upon the hourly rate for services rendered after August 25, 1987, plus the total of the costs incurred.
