The Issue As provided in an Order and Amended Notice of Hearing entered on July 18, 1996, the issue for disposition is whether Petitioner, Ms. Smith, knowingly and voluntarily, through settlement, waived her right to pursue her charge of discrimination.
Findings Of Fact Annie L. Smith is sixty-four years of age and has had formal education and training. At the relevant period she was employed at the Orange County Department of Corrections as a Corrections Officer/Licensed Practical Nurse. Sometime in 1990 and thereafter, Ms. Smith sustained a series of injuries at work, including a fall from a chair, a fall while working in a shower, some pain while climbing stairs, and a bump on her head on a glass door. She received medical benefits through Workers' Compensation, but some dispute over her further entitlement to compensation for her injuries still existed as of 1994. Ms. Smith retained counsel and the Workers' Compensation case went to mediation in December 1994. The parties reached an agreement during mediation, but Ms. Smith immediately expressed misgivings about the terms of the agreement. Throughout 1995, the parties continued to negotiate. During this process Ms. Smith discharged her original attorney and engaged another to represent her in her Workers' Compensation claim. Several settlement conferences were held before the Judge of Compensation Claims. In January 1995, Annie Smith filed a Charge of Discrimination with the Florida Commission on Human Relations and the Equal Employment Opportunity Commission. She alleged in the Charge, dated January 12, 1995, that on August 17, 1994 she was denied reasonable accommodations for her disability because of discrimination based on her race/Black and disability. On March 20, 1996, the Florida Commission on Human Relations entered its "Notice of Determination: No Cause" on Ms. Smith's Complaint, identified as FCHR Number 95-1153 and EEOC Number 15D950385. The Notice of Determination informed the Complainant that she could request an administrative hearing on the determination by filing a petition for relief within thirty-five days of the date of the notice. Ms. Smith's Petition for Relief is date-stamped received at the Florida Commission on Human Relations on April 15, 1996. The Petition for Relief, the Charge of Discrimination, and the Commission's Notice of Determination were transmitted to the Division of Administrative Hearings on April 19, 1996. In the meantime, on April 16, 1996, shortly after she prepared her petition for relief, Ms. Smith executed a Stipulation in Support of Joint Petition for Order Approving a Lump-Sum Settlement, and an affidavit that she settled her Workers' Compensation claim as well as American with Disability Act claims and charges of discrimination. The settlement documents, which Ms. Smith admits she signed after reading and discussing with her attorney, provide for a lump-sum disbursement of $50,000, from which $8,250 would be paid for legal services. The settlement documents specifically reference waiver and dismissal with prejudice of FCHR Charge Number 95-1153 and EEOC Charge Number 15D950380. The settlement documents are in simple, understandable terms. The affidavit executed by Ms. Smith plainly recites her understanding that she is under no compulsion to settle, that she is settling voluntarily and freely, and that she is waiving and giving up rights to pursue her claims. At the time that Ms. Smith signed the settlement documents she understood that her attorney did not represent her in the discrimination actions. In a letter dated March 28, 1996, he had referred her to another attorney who specializes in discrimination cases. Ms. Smith contacted the other attorney but did not retain other counsel as, according to Ms. Smith, she did not have the funds to pay up front. Ms. Smith signed the Settlement Agreement, even though she did not really want to waive all of her claims, because she understood that Orange County was only willing to settle everything in one lump-sum. In other words, she understood that she could not settle her Workers' Compensation case and receive that money unless she also waived all of her claims against the county. From the record in this proceeding, it is impossible to find that the $50,000 lump-sum was not consideration for Ms. Smith's waiver of all claims. The settlement documents describe how the sum was arrived as to the Workers' Compensation claim. At the time that she executed the settlement, Ms. Smith and the county were aware that the Florida Commission on Human Relations had found "no cause" after investigating her claim. While this does not mean she could never have prevailed after a full evidentiary hearing, the status of her claim at the time of settlement would impact the value of the claim for negotiation and settlement purposes. Ms. Smith received the lump-sum settlement amount and the attorney's fees were disbursed from the amount. Notwithstanding the disbursement, she states that if she were permitted now to repudiate the settlement and proceed with the claims, she would return all of the $50,000.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order dismissing the Complaint and Petition for Relief in this case. DONE and ENTERED this 13th day of November, 1996, in Tallahassee, Florida. MARY CLARK 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 13th day of November, 1996. COPIES FURNISHED: Ms. Annie L. Smith 8603 Snowfire Drive Orlando, Florida 32818 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Jeffrey J. Newton Assistant County Attorney Post Office Box 1393 Orlando, Florida 32802-1393 Dana Baird General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Respondent Judy Louise Robinson is currently licensed by the Florida Department of Insurance as a general lines agent, a health agent, and a dental health agent and has been so licensed since November 21, 1984. At all times material, Respondent engaged in the business of insurance as Fleming Island Insurer. At all times material, Respondent maintained two business bank accounts in the name of Fleming Island Insurer: Account No. 1740043215 at Barnett Bank in Orange Park and Account No. 11630004614 at First Union Bank, Park Avenue Office. First Union Bank is currently First Performance Bank. All funds received by Respondent from or on behalf of consumers, representing premiums for insurance policies, were trust funds received in a fiduciary capacity and were to be accounted for and paid over to an insurer, insured, or other persons entitled thereto in the applicable regular course of business. Respondent solicited and procured an application for a workers' compensation insurance policy from Linda Smith on September 13, 1989, to be issued by CIGNA. Respondent quoted Ms. Smith an annual workers' compensation premium of two thousand six hundred four dollars and forty cents ($2,604.40). Linda Smith issued her check payable to Fleming Island Insurer in the amount quoted by Respondent on September 13, 1989, as premium payment for the CIGNA workers' compensation insurance coverage. On September 14, 1989, Respondent endorsed and deposited Linda Smith's $2,604.40 check into Fleming Island Insurer's business bank account No. 1740043215 at Barnett Bank, Orange Park, Florida. On September 17, 1989, Respondent forwarded her check in the amount of two thousand six hundred eighty nine dollars and forty cents ($2,689.40) to NCCI ATLANTIC for issuance of a workers' compensation policy with CIGNA for Linda Smith, Inc. The difference between the amount paid to Respondent by Linda Smith ($2,604.40) and the amount paid by Respondent to CIGNA via NCCI ATLANTIC ($2,689.40) amounts to $85.00 advanced by Respondent because she misquoted the premium amount to Linda Smith. On September 17, 1989, Respondent notified Linda Smith that another $85.00 was due. Linda Smith never paid this amount to Respondent. On September 19, 1989, CIGNA issued a workers' compensation policy for Linda Smith, Inc. Respondent's check was thereafter returned to CIGNA due to insufficient funds. On or about October 20, 1989, CIGNA notified Respondent that her agency check had been returned as unpayable and requested substitute payment within ten days to avoid interruption in Linda Smith, Inc.'s workers' compensation insurance coverage. Respondent asserted that she was injured in an automobile accident on October 1, 1989 and could not work through July of 1990 due to chronic dislocation of her right arm, but she also asserted that she never closed her insurance business and operated it out of her home. Respondent's home is the address at which CIGNA notified her on October 20, 1989 concerning Ms. Smith's policy. Respondent failed to timely submit substitute payment to CIGNA, and as a result, Linda Smith, Inc.'s policy was cancelled January 1, 1990. On January 4, 1990, Linda Smith forwarded her own check in the full amount of $2,689.40 directly to CIGNA and her policy was reinstated. Respondent did not begin to repay Linda Smith the $2,604.40 proceeds of Linda Smith's prior check paid to Respondent until May 1991. At formal hearing, Respondent maintained that she was never notified that Linda Smith paid for the policy a second time. Even if such a protestation were to be believed, it does not excuse Respondent's failure to account to either Linda Smith or CIGNA for the $2,604.40, which Respondent retained. Respondent also testified that Barnett Bank's failure to immediately make available to Respondent the funds from Linda Smith's check, which cleared, resulted in Barnett Bank reporting to CIGNA that there were insufficient funds to cover Respondent's check to CIGNA. From this testimony, it may be inferred that Respondent knew or should have known that she owed someone this money well before May 1991. On November 11, 1989, Lewis T. Morrison paid the Traveler's Insurance Company six thousand forty-three dollars ($6,043.00) as a renewal payment on a workers' compensation policy for Morrison's Concrete Finishers for the policy period December 30, 1988 through December 30, 1989. At the conclusion of the 1988-1989 policy period, Traveler's Insurance Company conducted an audit of Morrison's Concrete Finishers' account. This is a standard auditing and premium adjustment procedure for workers' compensation insurance policies. It is based on the insured's payroll and is common practice in the industry. This audit revealed that Morrison's Concrete Finishers was due a return premium of two thousand one hundred fifty-three dollars and eighty- seven cents ($2,153.87) from the insurer. On March 30, 1990, Traveler's Insurance Company issued its check for $2,153.87 payable to Fleming Island Insurer. This check represented the return premium due Morrison's Concrete Finishers from Traveler's Insurance Company. On April 6, 1990, Respondent endorsed and deposited Traveler's Insurance Company's return premium check into the Fleming Island Insurer's business bank account No. 11630004614 at First Union Bank. The standard industry procedure thereafter would have been for Respondent to pay two thousand two hundred forty-eight dollars ($2,248.00) via a Fleming Island Insurer check to Morrison's Concrete Finishers as a total returned premium payment comprised of $2,153.87 return gross premium from Traveler's Insurance Company and $94.13 representing her own unearned agent's commission. When Respondent did not issue him a check, Lewis T. Morrison sought out Respondent at her home where he requested payment of his full refund. In response, Respondent stated that she would attempt to pay him as soon as she could, that she was having medical and financial problems, and that the delay was a normal business practice. Respondent testified that on or about April 19, 1990, in an attempt to induce Mr. Morrison to renew Morrison's Concrete Finishers' workers' compensation policy through Fleming Island Insurer, she offered him a "credit" of the full $2,248.00 owed him. Pursuant to this offer of credit, Respondent intended to pay Traveler's Insurance Company or another insurance company for Morrison's Concrete Finisher's next year's premium in installments from Fleming Island Insurer's account. This "credit" represented the return premium Respondent had already received from Traveler's Insurance Company on behalf of Morrison's Concrete Finishers for 1988-1989 which she had already deposited into Fleming Island Insurer's business account. Whether or not Mr. Morrison formally declined Respondent's credit proposal is not clear, but it is clear that he did not affirmatively accept the credit proposal and that he declined to re-insure for 1989-1990 through Respondent agent or Traveler's Insurance Company. Respondent still failed to pay the return premium and commission which she legitimately owed to Morrison's Concrete Finishers. On June 28, 1990, the Traveler's Insurance Company issued a check directly to Mr. Morrison for the full amount of $2,248.00. Respondent did not begin repaying Traveler's Insurance Company concerning Mr. Morrison's premium until after intervention by the Petitioner agency. At formal hearing, Respondent offered several reasons for her failure to refund the money legitimately due Mr. Morrison. Her first reason was that the district insurance commissioner's office told her to try to "work it out" using the credit method outlined above and by the time she realized this method was unacceptable to Mr. Morrison, he had already been paid by Traveler's Insurance Company. However, Respondent presented no evidence to substantiate the bold, self-serving assertion that agency personnel encouraged her to proceed as she did. Respondent also testified that she did not know immediately that Traveler's Insurance Company had reimbursed Mr. Morrison directly. However, it is clear she knew of this payment well before she began to pay back Traveler's, and since Mr. Morrison did not reinsure through her or Traveler's she should have immediately known the "credit" arrangement was unacceptable to him. Respondent further testified that she did not want to repay Mr. Morrison until a claim on his policy was resolved. However, there is competent credible record evidence that the Traveler's Insurance Company 1988-1989 workers' compensation policy premium refund was governed solely by an audit based on payroll. Mr. Morrison's policy premium or refund consequently was not governed by "loss experience rating", and the refund of premium would not be affected by a claim, open or closed. Thus, the foregoing reasons given by Respondent for not refunding Mr. Morrison's money are contradictory or not credible on their face. They also are not credible because Respondent admitted to Mr. Morrison in the conversation at her home (see Finding of Fact 24) that she was having trouble paying him because of medical and financial difficulties. Further, they are not credible because Respondent testified credibly at formal hearing that she would have paid Mr. Morrison but for her bank account being wiped out by a fraudulent check given her by an unnamed third party. On August 10, 1992, Respondent was charged by Information with two counts of grand theft. See, Section 812.014(2)(c) F.S. The allegations in the Information charged Respondent with theft of insurance premiums from Linda Smith and Lewis T. Morrison, and arose out of the same facts as found herein. On December 17, 1992, Respondent entered a nolo contendere plea to only the first count of grand theft as to matters involving Linda Smith and the other count was "null prossed." Respondent secured a negotiated sentence on the first count. "Grand theft" is a felony punishable by imprisonment by one year or more. Adjudication was withheld pending satisfactory completion of probation, including community service and payment of restitution and court costs. Respondent has been complying with her probation, including restitution payments.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Insurance enter a final order finding Respondent guilty of violations of Sections 626.561(1), 626.611(7), (9), (10), and (13); 626.621(2) and (6) F.S. under Count I, violations of Sections 626.561(1), 626.611(7), (9), (10), and (13), and 626.621(2) and (6) under Count II, and violations of Sections 626.611(14) and 626.621(8) F.S. under Count III, finding Respondent not guilty of all other charges under each count, and revoking Respondent's several insurance licenses. RECOMMENDED this 23rd day of June, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 23rd day of June, 1993. APPENDIX TO RECOMMENDED ORDER 92-2060 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: As modified to more correctly reflect the whole of the record evidence and avoid unnecessary, subordinate, or cumulative material, all of Petitioner's proposed findings of fact are accepted. Respondent's PFOF: Sentence 1 is accepted as a paraphrased allegation of the Second Amended Administrative Complaint. Sentence 2 is covered in Findings of Fact 4-18. Sentence 3 is accepted but subordinate and to dispositive. Sentence 4 is apparently Respondent's admission that she owed $2,604.40 to Linda Smith and paid her $500.00 of it. Accepted to that extent but not dispositive in that full payment was not made timely. Sentence 1 is accepted as a paraphrased allegation of the Second Amended Administrative Complaint but not dispositive. Sentence 2 is accepted but immaterial. Sentence 3 is rejected as argument and not dispositive. As stated, the proposal also is not supported by the record. Sentence 4 It is accepted that Mr. Morrison admitted he had a claim. However, the record does not support a finding that he requested Respondent to contact Traveler's Ins. Co. about it. Even if he had, that is subordinate and not dispositive of the ultimate material issues. Sentence 5 is rejected as not supported by the credible record evidence. Covered in Findings of Fact 23-28. Sentence 6 is rejected as not supported by the record and as argument. Sentence 7 Accepted. Sentence 8 Accepted. The "Descriptive Narrative" is accepted through page 4, but not dispositive. Beginning with the words "In summary" on page 5, the remainder of the proposal is not supported by the record in this cause which closed April 16. 1993. COPIES FURNISHED: Daniel T. Gross, Esquire Division of Legal Services Department of Insurance and Treasurer 412 Larson Building Tallahassee, FL 32399-0300 Judy Louise Robinson 4336 Shadowood Lane Orange Park, FL 32073-7726 Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, FL 32399-0300
Findings Of Fact The parties stipulated and it is found in (a) through (d) below: Respondent, Bruce Leazenby, is a licensed real estate broker having been issued License No. 0198529. Last known address is 130 Mandalay Road, Punta Gorda, Florida 33950. Respondent, M&M Realty, Inc., is a corporate broker having been issued License No. 0133397. Last known address is 301 West Marion Avenue, Punta Gorda, Florida 33950. At all times material herein, Respondent, M&M Realty, Inc., was a licensed real estate broker engaging in real estate activities at the address stated above. At all times material herein, Respondent, Bruce Leazenby, was the sole active broker of and for Respondent, M&M Realty, Inc., and responsible for his individual acts and of said corporation by being its active broker. On August 18, 1980, Mr. Orville S. Logsdon entered into a Management Compensation Agreement with M&M Realty, Inc. (See Petitioner's Exhibit 2). Under that agreement, Mr. Logsdon agreed to act as manager of M&M Realty and to supervise and organize the sales personnel. In exchange, Mr. Logsdon was to be compensated as follows: Manager shall receive ten percent of the commissions received, by Realtor, as a result of Real Estate transactions. Compensation shall begin with commissions received at closing as a result of Real Estate sales contracts written after August 18, 1980. Realtor shall make pay ments to Manager quarterly, beginning September 30, 1980, and at the end of each quarter thereafter, for the term of this agreement. Manager shall receive, on his individual transactions, a total of seventy percent (70 percent) of the commissions received by Realtor; Realtor shall receive thirty percent (30 percent). (See Petitioner's Exhibit 2). Mr. Logsdon continued as manager with M&M Realty, Inc. until August, 1981. His leaving resulted in part from an argument which arose after Mr. E. M. Leazenby, President of M&M Realty, informed Mr. Logsdon that they needed to discuss the commissions he had been receiving. At the time Mr. Logsdon left M&M Realty, he had been paid all commissions due him on sales and listings in which he was personally involved as a real estate salesman. Prior to his leaving M&M Realty, a dispute had arisen between Mr. Logsdon and M&M Realty as to the compensation Mr. Logsdon was due under the Management Compensation Agreement. Mr. Logsdon's interpretation of the agreement was that his compensation would be 10 percent of all commissions coming to M&M Realty. Mr. Logsdon further contended that the 10 percent override applied to all transactions including his individual transactions where he received 70 percent of the commissions received by the realtor. This would essentially give Mr. Logsdon 80 percent of the commissions coming to the realtor in Mr. Logsdon's individual transactions. This interpretation of the Management Compensation Agreement conflicts with Paragraph 2 of the agreement which provides that M&M Realty would receive 30 percent of the commission coming to M&M Realty on Mr. Logsdon's individual transactions. At the time he left M&M Realty, Mr. Logsdon claimed he was owed approximately $4,070.00 based upon a work sheet he had been given by Bruce Leazenby sometime prior to his leaving. Mr. Logsdon had made no effort to independently determine what amount, if any, he was due as compensation. Shortly after Mr. Logsdon left M&M Realty, a final audit was performed by Deloris Leazenby of the year August, 1980, to August, 1981, to determine what amount was due Mr. Logsdon as compensation as manager. During the course of the audit, it was discovered that Mr. Logsdon had been overpaid during the year on several transactions. The numbers in Petitioner's Exhibit 3, the worksheet provided to Mr. Logsdon prior to his leaving, were also discovered to be inaccurate. The figures in Petitioner's Exhibit 3 do not comport with the percentages reflected in the contract. A copy of the spread sheet prepared by M&M Realty in the course of the final accounting was provided to Mr. Logsdon. This occurred within a short time after Mr. Logsdon left M&M Realty. Mr. Logsdon made no response whatsoever to the spread sheet which reflected that he was due some $271. There was no further discussion between the parties prior to a complaint being filed with DPR sometime after the spread sheet was provided to Mr. Logsdon. There was no further demand by Mr. Logsdon for any further accounting. There was also a dispute as to the terms of the contract itself. This dispute involved a question of whether the 10 percent override applied to transactions handled by the broker, Bruce Leazenby or his mother, Deloris Leazenby. Although Mr. Logsdon testified there had been no modifications to that agreement, there had been at least three modifications to the agreement subsequent to its execution. First, Mr. Logsdon had agreed to waive the requirement for regular quarterly payments in order to help M&M Realty through an extended period of cash flow problems. Secondly, Mr. Logsdon agreed to a deduction of $20.00 from each of his commissions to help M&M Realty defray the cost of a computer. Finally, there were deductions for insurance from commissions. These insurance deductions were not addressed in the Management Compensation Agreement. Additionally, Logsdon had been overpaid the 10 percent fee on numerous transactions prior to March 31, 1981, the earliest date on Petitioner's Exhibit 3, and had also been overpaid on certain commissions during the course of the year. In summary, it cannot be determined from this record the specific amount of compensation due Mr. Logsdon, if any. It is clear, however, that the amount due, if any, is substantially less than the $4,070 claimed by Mr. Logsdon at the time he left M&M Realty, Inc. Prior to and subsequent to Mr. Logsdon leaving M&M Realty, there was a good faith reasonable dispute between Mr. Logsdon and M&M Realty as to the amount of compensation Mr. Logsdon was due as manager under the contract. Prior to his leaving M&M Realty, Mr. Logsdon was made aware that there was a dispute as to how much compensation he was to receive for being manager. He had been paid all commissions he was due as a salesman. There was no evidence of any trick, scheme, device or other dishonest acts on the part of Respondents, Bruce Leazenby or M&M Realty, Inc.
Recommendation Based upon the foregoing facts and conclusions of law, it is, therefore: RECOMMENDED: That the Respondents be found not guilty of Counts I and II of the Administrative Complaint and that such complaint therefore be DISMISSED. DONE and ENTERED this 11th day of May, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS 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 11th day of May, 1983. COPIES FURNISHED: John Huskins, Esquire Department of Professional Regulation Post Office Box 1900 400 West Robinson Street Orlando, Florida 32801 John S. Dzurak, Esquire 306 East Olympia Avenue Post Office Box 400 Punta Gorda, Florida 33951 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Harold Huff Executive Director Post Office Box 1900 Orlando, Florida 32802
