The Issue The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller's license.
Findings Of Fact Petitioner, Stanley Sarentino, Jr. (Sarentino) is the owner and president of the The A/C Guy, Inc. (The A/C Guy) an air-conditioning service business based in Pompano Beach, Florida. The A/C Guy was incorporated in 1996, and serves residential and business customers in Broward and Palm Beach Counties. Respondent Department of Agriculture and Consumer Services (the Department) is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with the provisions of the Florida Telemarketing Act, Chapter 501, Part IV, Florida Statutes (2000) (the Telemarketing Act). Sarentino has worked in the air-conditioning business in South Florida for over ten years. Both as an employee of other companies and since he formed The A/C Guy, Sarentino works exclusively as an air-conditioning mechanic. Sarentino has no expertise in, and has never been involved with, the daily running of the business, nor in the marketing of services, at the A/C Guy. Neither has Sarentino worked in the business side of any of the prior companies in which he was employed. Sarentino is assisted in managing The A/C Guy by his wife of 10 years. The Sarentinos have three children, and the family is well regarded in the community. Prior to the marriage, Sarentino's life was less exemplary. In 1991, Sarentino was charged with felony transportation of stolen stock certificates. Close in time to the stock charges, Sarentino was charged with unlawfully purchasing cocaine. Both incidents were disposed of by plea agreements which spared Sarentino a jail sentence. Since then, Sarentino has devoted himself to “turning his life around” by attending church, providing for his growing family, and otherwise occupying himself with lawful pursuits. Recently, Sarentino has made efforts to grow his small business. Those efforts included hiring John Frank Aiello, Jr. (Aiello) as full-time General Manager of The A/C Guy in the spring of 2001. Sarentino and Aiello came to believe that The A/C Guy had grown about as much as it could via word of mouth and print media advertising. They desired to expand the customer base for the business through telemarketing. Under the provisions of the Telemarketing Act, individuals who wish to have their business engage in telemarketing are required to be licensed (the Department). Aiello prepared a telemarketing license application for Sarentino in accordance with the instructions contained in the application package provided by the Department. Before commencing to prepare the application, Sarentino and Aiello carefully reviewed the licensing criteria. They paid special attention to the requirement that any criminal background be disclosed, and acted in good faith to disclose Sarentino’s history with as much precision as Sarentino’s 10-year-old memory would allow. The Department’s independent investigation corroborated that Sarentino had truthfully provided all requested information. Since his successful completion of probation for the decade-old incidents revealed on his telemarketing application, Sarentino has been a law abiding citizen. All applications for a telemarketer's license must be accompanied by a non-refundable $1500 processing fee. Applicants must also provide proof that they have paid the premium and have otherwise fulfilled the requirements to obtain a $50,000 bond from a private bonding company. The bond premium in this case was $1000.00. It is also necessary for applicants to provide extensive information about the business in whose name telemarketing will be conducted, along with information about individuals affiliated with the business, so that the Department may investigate their backgrounds for the public’s protection. Sarentino spent in excess of $350.00 in accounting fees for the preparation of financial statements required for the application. Prior to investing the time and incurring the expense associated with the application process, both of which are considerable, Sarentino carefully considered the question of whether he had a realistic chance to obtain a license. At the time he submitted his application, Sarentino reasonably believed, based upon the information provided by the Department itself, that his application would not be automatically rejected on account of his decade-old legal difficulties. After Sarentino’s application was submitted, Aiello, in his capacity as The A/G Guy general manager, had telephone conversations with the Department’s Regulatory Consultant Tom Kenny (Kenny) to follow-up on the status of the application. During the course of such conversations, Kenny revealed that the plea to the stock charge as well as the plea to the cocaine charge---each, by itself---would trigger the denial of the license application once the Department had independently confirmed that Sarentino had indeed truthfully disclosed the pleas. The evidence established and the Department conceded that there is an informal, unwritten practice enforced by Kenny's supervisor, James R. Kelly (Kelly), the Department’s Director of the Division of Consumer Services, that a plea of guilty to a felony charge, no matter what the felony, no matter how remote in time, no matter whether the applicant was rehabilitated or not will automatically result in the denial of a license application. The Department has no written rules, policies, or guidelines to which a citizen may refer in order to be apprised that the applications of individuals like Sarentino, and those similarly situated, are, in fact, dead on arrival. The Department's interpretation of the law is directly contrary to the discretionary language of the statute, which plainly does not foreclose all possibility that mitigating factors would be taken into account by Department officials in evaluating an applicant's criminal history. Sarentino has fulfilled all the statutory criteria for licensure. The Department would have granted the license were it not for its unwritten policy that the statute requires that any plea to a criminal charge mandates automatic denial.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered by the Department granting a commercial telephone seller's license to Stanley Sarentino, Jr. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 28th day of September, 2001. COPIES FURNISHED: James Curran, Esquire 633 Southeast Third Avenue Suite 201 Fort Lauderdale, Florida 33301 William N. Graham, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether Petitioner's application for licensure as a general lines agent should be granted.
Findings Of Fact By application dated July 12, 2002, Ms. Baskinger applied to the Department for a license as a general lines agent. On the application, Ms. Baskinger answered affirmatively to the following question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? On December 27, 2000, a one-count information was filed in the Circuit Court of the Twentieth Judicial Circuit In and For Charlotte County, State of Florida, charging Ms. Baskinger with welfare fraud in violation of Section 414.39, Florida Statutes, a third degree felony. On June 27, 2001, Ms. Baskinger entered a plea of guilty to the crime. Adjudication of guilt was withheld and Ms. Baskinger was placed on probation for a period of four years and ordered to pay restitution in the amount of $4,869.14. Ms. Baskinger was also required to perform 75 hours of community service. Ms. Baskinger made full restitution, and an Order Terminating Probation was entered on July 3, 2002. On July 12, 2002, Ms. Baskinger applied for licensure as a general lines agent. The Department denied her application for licensure by letter dated August 22, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.731(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of Teresa M. Baskinger for licensure as a general lines agent. DONE AND ENTERED this 4th day of March, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 4th day of March, 2003. COPIES FURNISHED: Teresa M. Baskinger 4461 Ewing Circle Port Charlotte, Florida 33948 Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1994.
Findings Of Fact Based upon the joint stipulation of counsel and the pleadings filed in this cause, the following findings of fact are determined: Government Service Supply Corporation (GSSC) was a Florida corporation engaged in the business of supplying federal agencies with office supplies and related items. It was wholly owned by Krista Peterson. On an undisclosed date, Krista Peterson incorporated Aerotek Resources Corporation in the State of Virginia, and that entity became involved in supplying agencies in the State of Florida with general office supplies and computer equipment. Because an unrelated company claimed that the name "Aerotek" infringed on its trademark, on an undisclosed date, Aerotek Resources Corporation changed its name to Tekresources Services Corporation, the petitioner in this cause. David Peterson was formerly the vice-president of GSSC. His relationship to Krista Peterson, if any, is not of record. During the period from July 1, 1991, to November 30, 1993, David Peterson used United States General Services Administration (GSA) supplier contract numbers without authorization. He concealed the lack of authorization to use the numbers by making representations to government purchasing agents that he was authorized to use the GSA supplier numbers. On August 9, 1994, the United States Attorney for the Northern District of Florida filed an information charging David Peterson and GSSC with making a false statement in violation of Title 18, United States Code, Section 1001, a public entity crime. Thereafter, GSSC and Peterson pled guilty to the charge. Judgments of conviction were rendered by the United States District Court for the Northern District of Florida on November 4, 1994. As required by law, on June 12, 1995, Aerotek Resource Corporation made timely notification to respondent, Department of Management Services (DMS), and provided details of the convictions. After conducting an investigation, on July 26, 1996, DMS gave its notice of intent to place petitioner on the convicted vendor list on the theory that petitioner was "related" to GSSC through Krista Peterson's ownership of both corporations. Placement on the list forbids petitioner from doing business with the State of Florida. In mitigation, the parties have agreed that the federal government suffered no loss as a result of these illicit actions, and there was no intent to cause any loss or to sell or provide inferior products to the government. In addition, David Peterson paid a $16,000 fine, petitioner fully cooperated with both the federal government and the DMS in their respective investigations, and petitioner promptly notified DMS of the convictions. Finally, procedures have been implemented which are designed to prevent the recurrence of this conduct. Given these mitigating factors, the parties have agreed that it is not in the public interest to place petitioner on the convicted vendor list. Therefore, the petition should be approved.
Conclusions Mr. Klein had a duty to operate the van he was driving on the day of the accident with reasonable care. See ss. 316.183(1), 316.1925(1), F.S. Mr. Klein breached that duty when he was distracted by a cellular phone call at or around the time of the accident or otherwise not paying full attention to the road at the time of the accident. Mr. Klein’s negligent operation of the van was a proximate cause of the accident that resulted in Angelica’s death. Mr. Klein was acting within the course and scope of his employment at the time of the accident. Therefore, the County is responsible for Mr. Klein’s negligence. Angelica violated s. 316.130(10) and/or (11), F.S., when she attempted to run across SR 436 in the middle of the block rather than at a cross-walk and, as a result, Angelica’s own negligence contributed to her death. The percentage of fault allocated to Angelica by the jury -- 39 percent -- is reasonable under the circumstances. Ms. Wagner’s failure to supervise Angelica on the night of the accident was, in my view, irresponsible and unreasonable. Ms. Wagner knew or should have known that Angelica might cross SR 436 based upon prior instances of her crossing the road without permission. Furthermore, it is irresponsible and unreasonable for Ms. Wagner to allow an 11-year-old child to be unsupervised and to stay out on her own until 9:00 p.m., which was after dark. Ms. Wagner’s negligent supervision of Angelica contributed to her death because if she had been supervised she would not have gone across SR 436 in the first place. Thus, notwithstanding the jury verdict on this issue, I find that a portion of the fault for Angelica’s death should be apportioned to Ms. Wagner and, in my view, a figure of 10 percent is reasonable. In summary, I conclude that liability for Angelica’s death should be apportioned as follows: 51 percent to the County; 39 percent to Angelica; and 10 percent to Ms. Wagner. As to the damages, I find the amounts awarded by the jury -- $8,000 in funeral expenses and $1.4 million in non-economic damages -- to be reasonable. The amount of the claim bill should be reduced to reflect a set-off of the $8,000 received by Ms. Wagner from another source (i.e., Angelica’s uncle) to pay the funeral expenses and to reflect the allocation of a portion of the fault to Ms. Wagner. As adjusted, the claim bill should be for $652,080, which is calculated as follows: $1,408,000 (verdict) x 51% (County’s revised share of liability) = $718,080 + $42,000 (taxable costs) - $100,000 (partial satisfaction by County) - $8,000 (set-off for funeral expenses paid by uncle). ATTORNEY’S FEES AND LOBBYIST’S FEES: The claimant’s attorney provided an affidavit stating that that attorney’s fees will be capped at 25 percent in accordance with s. 768.28(8), F.S. The attorney’s fees will be $163,020 if the bill is approved at the amount recommended. The lobbyist’s fees are in excess of the 25 percent attorney’s fee, and according to the contract between the claimant’s attorney and the lobbying firm, the lobbyist’s fees will be an additional 5 percent of the final claim. Thus, the lobbyist’s fees will be approximately $32,604 if the bill is approved at the amount recommended. The bill, as filed, provides that payment of attorney’s fees, costs, and lobbyist’s fees are limited to 25 percent of the final claim. If that language remains in the bill and the claim is paid in the amount recommended, the claimant will receive $489,060 and the balance of $163,020 will go towards attorney’s fees, costs, and lobbyist’s fees. If that language was not in the bill, the claimant would receive only $456,456. LEGISLATIVE HISTORY: This is the second year that this claim has been presented to the Legislature. Last year’s bill, SB 62 (2007), was not referred to committee. RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 26 (2008) be reported FAVORABLY, as amended. Respectfully submitted, T. Kent Wetherell Senate Special Master cc: Senator Gary Siplin Faye Blanton, Secretary of the Senate House Committee on Constitution and Civil Law Counsel of Record
Findings Of Fact Respondent is licensed by Petitioner to operate its business at 13 S. E. Sixth Street, Fort Lauderdale, Florida. Although Respondent has attempted to qualify to operate a branch office, Petitioner has neither approved nor licensed Respondent to operate a place of business other than at the aforestated address. The 1979-80 edition of the Yellow Pages telephone directory published by Southern Bell Telephone and Telegraph Company for the Hollywood, Florida, area carried a listing for Checkmate lnternational Detective Agency, which listing recites 9481 S. W. 49th Street, Cooper City, Florida, as the Respondent's address, and 434-1926 as the Respondent's telephone number. The listing does not include the address at which Respondent is licensed. The identical advertisement appears in the 1980-81 Yellow Pages directory published by Southern Bell Telephone and Telegraph Company for the Hollywood, Florida, area. The address in Cooper City listed as the business address for Checkmate International Detective Agency is the home of Mr. Mutnich and his employee, Cyndee Heyl. Although Mr. Mutnich insists he did nothing to cause the erroneous listing and even spoke to some unidentified person at some unidentified time regarding the error, he presented no evidence to show any specific efforts on behalf of Respondent to correct the erroneous listing or to prevent the advertised telephone number from being provided to callers by Directory Assistance or to disconnect the telephone number after the listing first appeared. Additionally, no evidence was presented to show efforts made to either delete the advertisement from the following year's directory or to change or disconnect the telephone number. Respondent has further failed to present any testimony or documentation showing any definitive action to prevent this same "erroneous" listing from appearing in any editions of the telephone directory to be printed in the future. In accordance with Petitioner's policy, the fine assessed against the Respondent in the amount of $100 is the amount normally levied by the Division for a first offense.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A final order be entered requiring Respondent to pay to the Petitioner the amount of $100 by a date certain. RECOMMENDED this 26th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Steven T. Barnes, Chief Bureau of License Issuance Department of State The Capitol Tallahassee, Florida 32301 Mr. Thomas Mutnich Checkmate International 13 South East Sixth Street Fort Lauderdale, Florida The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
