Findings Of Fact Adopted in subsentence in Finding of Fact 6. Adopted in subsentence in Finding of Fact 3 and 8. Adopted in subsentence in Finding of Fact 8. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rejected as unnecessary and/or subordinate. Rejected as unnecessary and/or subordinate. Rejected as a recitation of testimony and/or unnecessary. Rejected as a recitation of testimony and/or unnecessary. COPIES FURNISHED: Ruby Seymour-Campbell, Esquire 5739 Pembroke Road Hollywood, Florida 33023 Michael Mathis, Esquire Office of Licensure and Certification Post Office Box 210 Jacksonville, Florida 32231 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller Acting General Counsel 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Petitioner's application for re-licensure as an Adult Congregate Living Facility (ACLF) be dismissed as moot. DONE and ORDERED this 1st day of May 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of May 1987. APPENDIX TO RECOMMENDED ORDER FOR DOAH CASE #86-3671 The following my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the Proposed Findings of Fact submitted by the parties to this case.
The Issue This is a rule challenge proceeding in which the following specific issues are presented: Whether Florida Administrative Code Rule 61G4-12.006 is an invalid delegation of legislative authority, and Whether application of the provisions of Section 112.011(1)(b), Florida Statutes, by the Construction Industry Licensing Board in its quasi-judicial capacity constitutes an agency statement of general applicability that requires rulemaking by the agency.
Findings Of Fact Petitioner, Goode “Buddy” Yeoman, is 64 years of age, and is an individual who has applied to the CILB for an individual certified general contracting license. Petitioner Yeoman has a prior felony conviction and his civil rights have not been restored. Petitioner Yeoman's felony conviction was imposed approximately 20 years ago in 1985 and was unrelated to the contracting practice or trade. Petitioner Yeoman was required to, and did, submit a completed form DBPR CILB 4359. Petitioner’s application was denied by the Construction Industry Licensing Board (“CILB” or “Board”), and on June 14, 2004, the CILB entered its “Notice of Intent to Deny” Petitioner Yeoman’s application for initial certified general contractor. Petitioner Yeoman has separately filed a petition for administrative proceedings regarding the CILB's denial of his initial certified general contractor license. As such, by operation of law no final agency action has to date been taken on Petitioner Yeoman's application. The license denial proceeding has been continued. This will allow the parties in that case to have the benefit of the final order in this rule challenge case. The sole basis for the denial of Petitioner Yeoman’s application was that his civil rights had not been restored. The CILB’s “Notice of Intent to Deny” stated: “You have not provided proof to the Board that your civil rights have been fully restored subsequent to a previous felony conviction as required by Section 112.011(1)(b), Florida Statutes.” The requirement that a restoration of civil rights be obtained which is expressed in the challenged existing rule and the challenged agency statement defined as a rule negatively affect Petitioner Yeoman’s substantial interests by denying him a certified general contracting license. As such, Petitioner Yeoman has standing to bring his challenge to Florida Administrative Code Rule 61G4-12.006(2) and the agency statement defined as a rule (Form “DBPR CILB 4359"). Intervenor Smith's felony conviction was for a drug offense in 1989 and was unrelated to the contracting business or trade. Intervenor Smith filed an application with the CILB, including form “DBPR CILB 4359.” On May 4, 2004, the CILB refused to consider his application because his civil rights have not been restored. As such, Intervenor Smith has standing to bring his challenge to Florida Administrative Code Rule 61G4-12.006(2), and the agency statement defined as a rule (Form "DBPR CILB 4359"). Florida Administrative Code Rule 61G4-12.006 was adopted pursuant to Chapter 120, Florida Statutes, on January 6, 1980, and lists and incorporates by reference DBPR/CILB/025 (Rev. 01/01) entitled “Certifications: Certification Change of Status.” This agency form is applicable to applications for certified licenses and change of status applications, and requires individuals applying for initial contracting licenses to provide proof that their civil rights have been restored if they have been convicted of a felony. The form states in the “Financial Responsibility/Background Questions” section: “NOTE: IF YOU, THE APPLICANT/LICENSEE, HAVE HAD A FELONY CONVICTION, PROOF THAT YOUR CIVIL RIGHTS HAVE BEEN RESTORED WILL BE REQUIRED PRIOR TO LICENSURE.” Form “DBPR CILB 4359" has an effective date of March 24, 2004, but has not been adopted as a rule under Chapter 120, Florida Statutes. The form is available for download on the agency’s web-page as “Initial Issuance of Licensure for Certified Contractor Application Package.” Applicants for licensure as a contractor must submit form “DBPR CILB 4359" to the DBPR. Within the “DBPR CILB 4359" package is the form “DBPR CILB 4357 - Qualified Business (QB) License Application and Qualified Business Change of Status Application,” which requires an applicant previously convicted of a felony to provide proof that his/her civil rights have been restored. This form states: “IF YOU HAVE BEEN CONVICTED OF A FELONY, YOU MUST SUBMIT PROOF OF REINSTATEMENT OF CIVIL RIGHTS,” and also: “Note: If you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure.” Both the challenged Florida Administrative Code Rule 61G4-12.006(2) and the form “DBPR CILB 4359" are generally applicable to every individual applying for a contracting license from the CILB. The CILB has previously approved applications for initial licenses, and change of status licenses, to applicants who did not have their civil rights fully restored, subject to probation until the applicant's civil rights have been restored. Neither the type of crime for which a felony conviction has been imposed, the recency of the conviction, nor the completion of any punishment, have been a factor in the CILB’s denial of applications to individuals previously convicted of a felony crime but whose civil rights have not been fully restored. The sole reason for denial is the lack of civil rights. The lack of civil rights is the standard, expressed in Florida Administrative Code Rule 61G4-12.006(2) and in “DBPR CILB 4359," by which the CILB has denied contractor license applications, including Petitioner Yeoman’s application, and Intervenor Smith's application, under the CILB’s interpretation of Section 112.011(1)(b), Florida Statutes. The CILB has not revoked any previously granted licenses due solely to a subsequent felony conviction and lack of civil rights of any licensee. The CILB is a collegial body composed of 18 members, 16 of whom are professionals and two of whom are consumer members. Each member is limited to two 4-year terms, and no member may serve more than two consecutive 4-year terms. If a member is appointed to fill an unexpired vacancy, the new appointee may not serve for more than 11 years. The current members of the Board, and their terms, are as follows: Elizabeth Karcher; term 01/10/02-10/31/04 Barry Kalmanson; term 11/01/02-10/31/07 c. Lee-En Chung; term 09/01/99-10/31/06 Paul Del Vecchio; term 01-10-02-10-31-05 Michelle Kane; term 01-10-02-10/31/05 f. Joan Brown; term 03/14/00-10/31/07 Michael Blankenship; term 11/01/02-10/31/06 Carl Engelmeler; term 11/01/02-10/31/06 Jacqueline Watts; term 01/10/02-10/31/04 John Smith; term 11/01/02-10/31/06 (resigned effective 11/01/04) Raymond Holloway; term 01/10/02-10/31/05 Edward Weller; term 11/21/02-10/31/06 Thomas Thornton; term 08/16/04-10/31/07 Robert Stewart; term 08/16/04-10/31/07 o. Doris Bailey; term 08/16/04-10/31/05 A quorum (51 percent) of the appointed members of the Board is necessary for the Board to conduct official business. The CILB meets 11 times each year. On November 8, 1999, the CILB denied the application of Michael A. Helish for the certification examination on the grounds that his civil rights had not been restored. This decision was per curiam affirmed in Helish v. Department of Business and Professional Regulation, 766 So. 2d 1047 (Fla. 1st DCA 2000). The CILB has previously approved applications for initial licenses, and change of status licenses, to applicants whose civil rights had not been fully restored, at times subject to probation until the applicant’s civil rights have been restored, as follows: On June 14, 2004, the Respondent granted an initial contractor license to Robert F. Jones, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to William P. Campbell, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to Glenn Kasper, subject to probation until his civil rights are fully restored. On May 28, 2004, the Respondent granted an initial contractor license to Danny Mitchell, subject to probation until his civil rights are fully restored. On March 3, 2004, the Respondent granted an initial contractor license to Timothy Burke, subject to probation until his civil rights are fully restored. On February 9, 2004, the Respondent granted an initial contractor license to Anthony Nicholas, Jr., subject to probation and the condition that his civil rights be fully restored within two years. On June 25, 2003, the Respondent granted an initial contractor license to Andrew Dittenber, stating: “The Board permitted licensure with conditions in this case where applicant did not have his civil rights restored, because of the number of years that have passed since the conviction and evidence that application for restoration has been made.” On June 25, 2003, the Respondent granted an initial contractor license to Robert W. Fleming, stating: “The Board permitted licensure with conditions in this case where applicant did not have his civil rights restored, because of the number of years that have passed since the conviction and evidence that application for restoration has been made.” On December 1, 2003, the Respondent granted an initial contractor license to James D. Munroe, Jr., subject to probation until his civil rights are fully restored. On October 21, 2002, the Respondent granted an initial contractor license to Daryl F. Strickland subject to probation and the condition that his civil rights be fully restored within three years. On September 4, 2001, the Respondent granted an initial contractor license to John Richard Brown, subject to probation and the condition that his civil rights be fully restored within three years. On June 24, 2004, the Respondent amended its initial order and again placed John Richard Brown’s license on probation until such time as his civil rights are restored.
The Issue Whether Respondent committed the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint? If so, what disciplinary action should be taken against her?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a Florida-licensed real estate broker (holding License Number 0350383). She is also licensed in the State of New York. Respondent was first licensed in the State of Florida in July of 1983. Toward the latter part of the two-year licensure period ending March 31, 1995, the Department sent Respondent a Renewal Notice reminding her that her broker's license (which was then in "voluntary inactive" status) would expire on March 31, 1995, if she did not renew the license for another two-year period by signing the Renewal Notice and returning it to the Department along with a $75.00 renewal fee. Sometime prior to March 31, 1995, Respondent signed the Renewal Notice and returned it to the Department along with the $75.00 renewal fee. The signed Renewal Notice that Respondent submitted to the Department contained the following Affirmation of Eligibility for License Renewal: I hereby affirm that I have met all of the requirements for license renewal set forth by the Department of Business and Professional Regulation and/or the professional regulatory board indicated on the reverse side of this notice. I understand that, within the upcoming licensure period, if my license number is selected for audit by the Department and/or regulatory board, I may be required to submit proof that I have met all applicable license renewal requirements. I understand that proof may be required by the Department of Business and Professional Regulation and/or professional regulatory board at any time and that it is my responsibility to maintain all documentation supporting my affirmation of eligibility for license renewal. I affirm that these statements are true and correct and recognize that providing false information may result in disciplinary action on my license and/or criminal prosecution as provided in section 455.2275, Florida Statutes. At the time she signed and submitted the Renewal Notice, Respondent had not satisfactorily completed the minimum number of hours of continuing education required for license renewal, a requirement of which she was (at the time) aware. The Department renewed Respondent's license (for the two-year period ending March 31, 1997) based upon Respondent's misrepresentation (made in the signed Renewal Notice she returned to the Department) that she had "met all of the requirements for license renewal." On July 15, 1995, Respondent's residence in New York State (where she spends the summer months 2/ ) was damaged during a violent summer storm. Thereafter, Respondent received the following letter, dated August 8, 1995, from the Department: Your real estate license number has been selected for audit of the education required in compliance with Rule 61J2-3.015. In requesting renewal, you affirmed that you had completed the required education for the license period beginning 4/1/95. The course must have been completed prior to 3/31/95. Please submit to the address printed below, this letter along with the Commission approved course proof or equivalency education required at the time of your renewal, no later than 21 days from the date of this letter. All requests for equivalency for credit courses taken at universities, colleges and community colleges outside of Florida must be accompanied by an official transcript. An official transcript must contain the seal of the institution and the signature of the registrar. Failure to comply with this request within 21 days will result in an appropriate disciplinary action being initiated against your license. Your prompt attention and action will be appreciated. In response to the Department's request, Respondent sent the Department documentation concerning a correspondence course she had taken (from the Bert Rogers Schools of Real Estate) prior to March of 1993. The Department advised Respondent that such documentation was "unacceptable." On or about October 3, 1995, Respondent sent the following letter to the Department: After extensive searching through the records I have here in my possession in Florida, I am unable to provide you with documentation verifying my continuing ed requirements. I spend the summer in New York and many of my records are currently there as I am there two months of the year and I believe the documentation I need may be there. I am a broker in both New York and Florida and have always kept up-to-date with education requirements in the past, the last being in 1993 through Bert Rogers School which I have documentation for. I remember taking the cont. ed course through the mail, but I am unable to tell you exactly which one at the present time. Whatever disciplinary action you choose to apply, would it be possible to reverse same if upon my return to N.Y. in June, I'm able to provide the proof you require? Thank you in advance for your patience with regard to the matter while I have searched, and I'll await your decision. On January 29, 1996, Judy Smith, an Investigation Specialist with the Department, sent the following letter to Respondent: This letter is to serve as official notice to you in accordance with Section 455.225(1), FLORIDA STATUTES. that a complaint has been filed against you (copy attached) and that an investigation will be initiated regarding the subject matter of the complaint. I will be in contact with you at the earliest possible date to schedule a mutually convenient appointment to discuss the complaint in detail. You may submit a written response to the information contained in the complaint within 20 days after receipt of this letter. Any such response and/or contact with the agency regarding this matter prior to personal contact with me, should be directed to my attention at the address reflected below. Thank you for your cooperation and assistance in this matter. Smith later spoke with Respondent. Respondent told Smith that she believed that she had taken the required continuing education coursework (during the previous licensure period, April 1, 1993, through March 31, 1995), but was unable to recall the school that had provided the coursework, when the coursework had been taken and the grade she had received, nor was she able to produce documentation demonstrating that she had taken the required coursework. On February 2, 1996, Respondent sent the following letter to Smith: Pursuant to our conversation earlier today, this letter will serve to try and clear up what has transpired with regard to my continuing education requirement documentation proof. I believe I took the required continuing education requirements in order to renew my license and I normally attach a copy of the proof of passing grade directly to the license renewal form when I send same in for processing. As previously mentioned, all but my 1995 records are currently housed in New York and when I return I will look through financial and real estate records in order to determine which continuing ed course I may have utilized for the period in question. There is, however, a possibility that I have unintentionally and inadvertently failed to complete the continuing education requirement due to the fact that I may have missed a reminder notice from the school due to changing addresses since the last notice. I apologize for not being able to provide the burden of proof that you require at this time. On February 5, 1996, Respondent sent a second letter to Smith, which read as follows: Pursuant to our conversation last Friday February the 2nd . . , I just want to thank you again for your assistance in this matter. As discussed, I am now awaiting your response from the Board regarding this matter. As previously mentioned, I believe my records are in New York, however, I am more than willing to take another course or whatever is required 3at this time to remedy this situation. 3/ On August 23, 1996, the Department issued an Administrative Complaint alleging that Respondent had obtained the renewal of her license "by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." Thereafter, on or about November 15, 1996, Respondent sent a letter to the Department's counsel of record in the instant case, Christine Ryall, Esquire, which read, in part, as follows: I am also enclosing copies of what I believe may be the continuing education you require for the 93-95 period. The Accelerated School of Real Estate, Inc. has since been purchased by Goldcoast School of Real Estate and even though I have the yellow final test completed, they have no record of my being a student there as I have tried contacting them regarding same. They do not have records on computer for Accelerated Students. Instead they are in boxes which the girls have to look through and it's certainly conceivable that some of their records are missing due to the takeover and moving of records. I hope that you can [ac]cept the enclosed documentation as proof of taking the continuing education you require for the 9395 period. . . .
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a final order finding Respondent guilty of the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint and revoking her real estate license for having committed said violation. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of March, 1997. STUART M. LERNER 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 17th day of March, 1997.
The Issue Whether Petitioner meets the qualifications prescribed by Chapter 475, Florida Statutes, for licensure as a real estate salesman?
Findings Of Fact Because no evidence was offered at hearing in the instant case, the Hearing Officer is unable to make any findings of fact relating to Petitioner's qualifications for licensure.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a final order denying Petitioner's application for licensure as a real estate salesman. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of June, 1992. STUART M. LERNER 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 1st day of June, 1992. Copies furnished: William Franklin Glover 3331 Northwest 214th Street Miami, Florida 33056 Manuel E. Oliver, Esquire Assistant Attorney General Suite 107 South 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issues in this case are whether Respondent, Luis Garcia, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, on December 6, 2006, and, if so, what penalty should be imposed.
Findings Of Fact Prior to June 2005, Respondent received what appeared to be a valid Miami-Dade Building Business Certificate of Competency. Upon receipt, Respondent applied to the Department of Business and Professional Regulation (hereinafter referred to as the “Department”) to obtain a registered contractor’s license using the Certificate of Competency. Based on the Certificate of Competency, the Department issued Respondent a registered contractor’s license bearing license number RF11067267. Respondent also applied for a certificate of authority for his business, A.P.A. Plumbing Corporation (hereinafter referred to as “APA”). Based on the Certificate of Competency and the registered contractor’s license being granted, the Department issued a certificate of authority to APA, QB 42763. Subsequent to the Department’s issuance of both the registered contractor’s license to Respondent and the certificate of authority for APA, Respondent and the Department learned that the Miami-Dade Building Business Certificate of Competency (hereinafter referred to as the “BCCO”) obtained by Respondent was not a valid certificate. Respondent’s actions were not as a result of any fraud or intentional action on the part of Respondent; however, it is acknowledged by all parties that the Miami-Dade Building Business Certificate of Competency obtained by Respondent was not valid. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the Miami-Dade BCCO employees were engaged in a scheme to defraud the public. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent obtained the BCCO Competency Card in deviation of any state laws or rules, or local ordinances. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the BCCO Competency Card was not a valid certificate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that Respondent’s attestation on the application was inaccurate. At no time during the application process or upon attesting to the qualified business license application did Respondent have knowledge that the approved BCCO qualifying board did not approve the Competency Card. At no time did Respondent have knowledge that any documents Respondent submitted to the Department contained false, forged, or otherwise inaccurate information or material. At the time the Department issued the registered contractor’s license and subsequent certificate of authority on the sole basis of the Miami-Dade Building Business Certificate of Competency presented by Respondent, the Department properly issued the registered contractor’s license based on the information submitted to it. The parties stipulated that the Respondent was not entitled to the registered contractor’s license and certificate of authority because the Miami-Dade Building Business Certificate of Competency was not a valid certificate. At the time of application to the Department, Respondent was not qualified by any local jurisdiction or any other method necessary to receive a registered contractor’s license from the Department. Subsequent to Respondent’s initial application and receipt of registered contractor’s license RF11067267, Respondent has taken the competency test required to be properly licensed through the Department. Respondent asserts that he has passed the test. The Department will not dispute this if he is able to provide verification that he did receive a passing score.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Luis Garcia violated the provisions of Sections 489.129(1)(a) and (m), and 455.227(1)(h), Florida Statutes, as alleged in Counts I, III, and IV of the Administrative Complaint; dismissing Count II of the Administrative Complaint; requiring that Respondent pay the costs incurred by the Department in investigating and prosecuting this matter; giving Respondent 30 days to voluntarily relinquish his license; and revoking Respondent’s license if he fails to voluntarily relinquish it within 30 days of the final order. DONE AND ENTERED this 13th day of December, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2007. COPIES FURNISHED: Matthew D. Morton Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Timothy Atkinson, Esquire Oertel, Fernandez, Cole & Bryant Post Office Box 1110 Tallahassee, Florida 32302 Richard A. Alayon, Esquire Alayon & Associates, P.A. 4551 Ponce de Leon Boulevard Coral Gables, Florida 33146 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to the statutory provisions referenced herein.
Findings Of Fact The Petitioner is a prevailing small business party. In 2009, the Petitioner filed an application with the Respondent to transfer his Class B air conditioning contractor's license from one business entity to another. The application form required disclosure of an applicant's criminal history. The Petitioner responded to the inquiry with a cursory disclosure of prior criminal activity, indicating that he had been involved in such activity in the "late 1970's." As part of the application review process, the Respondent conducted a background investigation that revealed the Petitioner's criminal history had extended well beyond the 1970's. Rather than deny the Petitioner's transfer application, the Respondent issued a Notice that provided, in relevant part, as follows: NOTICE OF INTENT TO APPROVE WITH CONDITIONS You are hereby notified that the Construction Industry Licensing Board (Board) voted to permit, WITH CONDITIONS, your application for change of status from one business entity to another contractor's license. The Board reviewed and considered the application at a duly-noticed public meeting held on September 10, 2009 in Tampa, Florida. The Board determined that the application should be approved with conditions based on the following: The applicant failed to sufficiently demonstrate financial stability and responsibility, pursuant to section 489.115, Florida Statutes, and Rule 61G4-15.005, Florida Administrative Code. The Board had issues with applicant's moral character, pursuant to section 489.111, Florida Statutes. Pursuant to section 455.227(2)(f), Florida Statutes, Applicant shall hereby be placed on PROBATION for 6 years, with 12 satisfactory appearances, according to the following terms: Applicant shall be required to appear before the Probation Committee of the Board at such times as directed by the Board Office, approximately every six (6) months. Respondent's first probationary appearance requires a full day attendance at the Board meeting. In connection with each probation appearance, Applicant shall answer questions under oath. In addition, applicant shall provide such other information or documentation as is requested by the Department, the Board, or the Probation Committee. Applicant shall forward said documentation to the Board at least 30 days in advance of the probation appearance or as otherwise directed. The burden shall be solely upon Applicant to remember the requirement for said appearance and to take necessary steps in advance of said appearance to contact the Board office and ascertain the specific time, date, and place of said appearance. Applicant shall not rely on getting notice of said appearance from the Board or the Department. Should Applicant violate any condition of the probation, it shall be considered a violation of Section 489.129(1)(i), Florida Statutes, and shall result in further disciplinary action by the Board. Should Applicant fail to make a satisfactory appearance as determined by the Board, the term of the probationary period shall be automatically extended by six (6) months. If there occurs a second such failure then the term of the probationary period will be extended an additional year. Should the Board determine a third failure of Applicant to make a satisfactory appearance, the stay of suspension of the Applicant's license to practice contracting shall be lifted and the license shall remain in suspended status unless and until a further stay is granted by the Board. Should Applicant's license to practice contracting be suspended or otherwise placed on inactive status, the probation period shall be tolled and shall resume running at the time Applicant reactivates the license, and Applicant shall serve the time remaining in the term of probation. To ensure successful completion of probation, Applicant's license to practice contracting shall be suspended for the period of probation, with the suspension stayed for the period of probation. The time of the suspension and the stay shall run concurrently with the period of probation. If Applicant successfully completes probation, the suspension shall terminate. If Applicant fails to comply with the requirements set forth in the Final Order imposed in this case, or fails to make satisfactory appearances as determined by the Board, the stay shall be lifted. Once the stay is lifted, the license shall remain in suspended status unless and until a further stay is granted by the Board. The Petitioner challenged the imposition of the conditions in DOAH Case No. 10-9444. The Notice cited section 455.225, Florida Statutes, as providing authority for the imposition of the conditions to the Petitioner's license. The referenced statute identified the procedures through which the Respondent could commence a disciplinary action against a licensee. There was no evidence that the Respondent had commenced or concluded a disciplinary proceeding against the Petitioner prior to the proposed imposition of the license conditions. The Notice identified two reasons for the proposed imposition of license conditions. First, the Notice stated that the Respondent "had issues with the [Petitioner's] moral character." Second, the Notice stated that the Petitioner "failed to sufficiently demonstrate financial stability and responsibility pursuant to section 489.115, Florida Statutes and Rule 61G4-15.006, Florida Administrative Code." At the hearing on May 26, 2011, the Petitioner submitted evidence sufficient to demonstrate compliance with the cited provisions of statute and rule. A Recommended Order was issued on July 1, 2011, recommending that the Petitioner's application be approved. As set forth in the Recommended Order, the Administrative Law Judge had determined that the Respondent lacked authority to impose disciplinary conditions absent commencement of a disciplinary proceeding, and the Petitioner had complied with the requirements related to financial stability and responsibility at the hearing. By Final Order dated September 8, 2011, the Respondent granted the Petitioner's license transfer application. The Final Order adopted the Findings of Fact set forth in the Recommended Order. The Final Order rejected four paragraphs from the Conclusions of Law section of the Recommended Order that addressed the Respondent's authority to impose disciplinary conditions under the circumstances of this case. The remaining Conclusions of Law in the Recommended Order were accepted. The Petitioner is seeking an award of attorney's fees of $41,554.00 and costs of $1,702.96, for a total award of $43,256.96. The evidence fails to establish that the amount of the attorney's fees and costs sought by the Petitioner are reasonable, and there has been no stipulation by the parties thereto.
The Issue The issues in this case are whether the Respondent violated Subsections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2009),1 and, if so, what discipline should be imposed.
Findings Of Fact The Division of Real Estate is the state agency responsible for the regulation of the real estate sales profession in Florida, including licensure of real estate sales associates and enforcement of the statutory provisions within its charge. Ms. Friels is a real estate sales associate who first obtained her license in 2005. Ms. Friels has never had any prior disciplinary action taken against her. Ms. Friels received a renewal notice from the Department of Business and Professional Regulation (the Department), notifying her that her sales associate license was due to expire on March 31, 2009. The notice touted in bold print that the "Department Provides Instant Online Renewal," while also offering a Renewal Notice card to detach and mail in to the Department. The Renewal card option required nothing to be filled in by the licensee unless an address update were necessary (in which case a box could be checked and the address updated on the back of the card), or unless the licensee wanted to opt for inactive status, which could be done by checking a different box. Otherwise, the card could simply be sent in with payment of the $85.00 renewal fee. The card included the following statement in small print: IMPORTANT: SUBMITTING YOUR RENEWAL REQUEST TO THE DEPARTMENT AFFIRMS COMPLIANCE WITH ALL REQUIREMENTS FOR RENEWAL. Ms. Friels had been undergoing a period of great personal challenges and stress in the two-year period leading up to the licensure expiration date and nearly missed the renewal deadline. On the day before her license was to expire, she utilized the "Instant Online Renewal" option after contacting a Department customer representative to make sure that her online renewal payment would be credited immediately so that it would be timely before the March 31, 2009, expiration date. As alleged in the Administrative Complaint, "[o]n . . . March 30, 2009 Respondent paid the renewal fee of $85.00 to renew her real estate license." The Department receipt showed the online payment of the $85.00 fee on March 30, 2009, for the renewal of real estate sales associate License No. SL3141119 held by Marsha Evans Friels. At the time Ms. Friels processed her online license renewal, she had not completed the 14 hours of continuing education she was required to complete during the two-year licensure period ending on March 30, 2009, but Ms. Friels did not realize at that time that she had not complied with the continuing education requirements. Ms. Friels explained that although she was generally aware of the continuing education requirement for licensure renewal, the reason she did not realize that she had not taken the required coursework during this particular two-year period was because she was coping with a series of tragic, personal challenges. The circumstances were compelling, as she explained: In May 2007, Ms. Friels' older sister died of breast cancer; then, in October 2007, Ms. Friels' father died, and Ms. Friels assumed the responsibilities for arranging for his funeral and then probating his estate; and finally, Ms. Friels' youngest sister, who was diagnosed with paranoid schizophrenia and had lived with her father, was left without care, and the responsibilities for caring for her sister and making decisions about her placement fell on Ms. Friels' shoulders. While these circumstances do not excuse a failure to comply with the continuing education requirements during the two-year period, the totality of the circumstances make the oversight understandable and mitigate against Ms. Friels' culpability. Ms. Friels was under the impression that having accessed the Department's "Instant Online Renewal" and successfully remitted payment of the renewal fee in time, she had done all that was needed to renew her license. She received no notice to the contrary. Apparently, however, at some point after Ms. Friels thought she had successfully renewed her license via the Department's Instant Online Renewal service, the Department's records re-characterized the status of Ms. Friels' license as involuntarily inactive, effective on March 31, 2009, "due to non[-]renewal of her real estate sales associate license." Neither Ms. Friels, nor the licensed broker with whom Ms. Friels was associated, received notice that her real estate sales associate license had been changed to inactive status, that Ms. Friels had not satisfied the continuing education requirements at license renewal, or that her "Instant Online Renewal" and payment were ineffective to renew her license. Ms. Friels presented evidence of the Department's practice to issue a Notice of Deficiency or a Continuing Education Deficiency letter, when a real estate sales associate renews a license without having completed the required continuing education hours. No evidence was offered to explain why this practice would not have applied in this case or why no such notice was given to Ms. Friels. Operating under the impression that she had successfully renewed her license and receiving no notice to the contrary, on one occasion, on approximately June 1, 2009, Ms. Friels participated as a real estate sales associate working on a real estate sales contract under the supervision of Ms. Williams, the licensed broker with whom Ms. Friels was associated, who remained actively involved in the transaction. Mr. Brissenden is a real estate appraiser who was asked to perform an appraisal on the property that was the subject of the same contract, which is how he came to learn that Ms. Friels was operating as a sales associate. Mr. Brissenden testified that he happened to be online on the Department's licensing portal checking on some other things when he looked up Ms. Friels' license out of curiosity. He saw that her license was shown to be inactive, and, so, he filed a complaint. Ms. Friels first learned that she had not completed the required continuing education hours in the two-year period before renewal when she received a letter advising her that she was being investigated for operating as a sales associate without an active license. Immediately upon learning that she had a continuing education deficiency, Ms. Friels took the 14-hour continuing education course and successfully completed the required hours. This course included the "Real Estate Core Law" component required by Florida Administrative Code Rule 61J2-3.009(2)(a). The course material, which according to rule, must be submitted to the Florida Real Estate Commission for review and approval, included the following: In the event a license is renewed without the required continuing education course having been completed, the licensee will be sent a deficiency letter. This letter will inform the licensee that the required continuing education was not completed prior to renewal. Ms. Friels' license was reinstated to "active" status on October 16, 2009, following her completion of the 14-hour course credited to her prior renewal cycle. Ms. Friels cooperated with the investigation and submitted a letter with supporting documentation explaining that she did not realize she had not completed the continuing education course during the prior two years and detailing her personal circumstances that led to her oversight. At the completion of the investigation, the investigator contacted Ms. Friels to deliver a Uniform Disciplinary Citation, on December 11, 2009. By this document, the investigator sets forth her determination that there was probable cause to believe Ms. Friels had violated Subsection 475.42(1)(b), Florida Statutes, and that the Department had set the penalty at a $500.00 fine (plus no additional amount for costs). Ms. Friels had the choice of accepting the citation, in which case it would become a final order, or disputing the citation, in which case the charges would be prosecuted as a disciplinary action pursuant to Section 455.225, Florida Statutes. Ms. Friels testified that while she accepted responsibility for not completing the required continuing education and was willing to resolve this matter by paying the $500 fine in December 2009, she was unwilling to accept the citation's charge of violating Subsection 475.42(1)(b), Florida Statutes. That subsection establishes the following as a violation: A person licensed as a sales associate may not operate as a broker or operate as a sales associate for any person not registered as her or his employer. Ms. Friels perceived this charge as more serious, in effect, charging her with operating outside the scope of her sales associate license by operating in a broker capacity. Throughout this proceeding, Ms. Friels remained sensitive to the suggestion that she had operated as more than a real estate sales associate and went to great pains to establish that she did not exceed the bounds of a licensed real estate sales associate and that she was acting under the supervision of the licensed broker with whom she was associated. The subsequently-issued Administrative Complaint charged Ms. Friels with a violation of Subsection 475.42(1)(a), Florida Statutes, not Subsection 475.42(1)(b), Florida Statutes, as charged in the Uniform Disciplinary Citation. By this time, however, when Ms. Friels attempted to resolve the dispute, the Division of Real Estate would not agree to the penalty originally proposed in the Citation (with the incorrect statutory charge), but instead proposed additional terms, including payment of $521.40 in investigation costs on top of the $500 fine, plus attendance at two meetings of the Florida Real Estate Commission. Ms. Friels objected to the increased financial consequences since in her view, the reason why the dispute was not resolved by the citation was because the wrong statutory violation was charged. Before the evidentiary hearing, counsel for the Division of Real Estate acknowledged that this case involves, at most, a "minor violation of licensing law." After the evidentiary portion of the hearing, counsel reiterated the Division's position that "this is a minor licensing violation and we're looking for a very minor penalty." Inexplicably, the Proposed Recommended Order submitted by the Petitioner proposed a significantly elevated recommended penalty. The Petitioner proposed an increased fine of $1,000, plus a 30-day suspension, plus costs of investigation, plus "fees pursuant to Section 455.227(3), Florida Statutes,"3 despite assurances at the close of the hearing that the Petitioner was only looking for a "very minor penalty" consistent with what had been previously offered. The appropriate penalty for a violation of licensing law cannot be determined without first reviewing the record evidence on mitigating and aggravating circumstances in accordance with Florida Administrative Code Rule 61J2-24.001(4). Here, no aggravating circumstances were established or even argued while there are multiple mitigating circumstances. There was no evidence of any harm to the consumers or public as a result of Ms. Friels' oversight in not completing her continuing education by her license renewal date or as a result of her participating as a real estate sales associate in a transaction in June 2009. The fact that there was only one count in the Administrative Complaint is a mitigating circumstance to be considered. Likewise, the fact that Ms. Friels has no disciplinary history is another mitigating circumstance weighing in favor of leniency below the normal penalty ranges established in rule. Consideration of the financial hardship to the Respondent as a result of imposition of a fine or suspension of a license, adds to the weight of mitigating circumstances. Ms. Friels testified to the hardship she has endured as a result of personal circumstances beyond her control. Ms. Friels was forthright and sincere in accepting responsibility for her oversight and acted immediately to rectify the continuing education deficiency as soon as she received notice of it. Under the circumstances, imposition of a fine or suspension of her license would result in unnecessary financial hardship. Finally, under the catch-all language in Florida Administrative Code Rule 61J2-24.001(4)(b) ("mitigating circumstances may include, but are not limited to . . ."), consideration must be given to the Respondent's compelling personal circumstances that make her oversight understandable and mitigate further against imposing a penalty in the normal range. The circumstances here were far from normal, and imposing a penalty as if they were normal would be unduly harsh.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, finding that the Respondent, Marsha Evans Friels, violated Subsection 475.42(1)(a), Florida Statutes (and, thereby, Subsection 475.25(1)(e), Florida Statutes); issuing a reprimand as the sole penalty; and waiving the permissive assessment of costs allowed by Subsection 455.227(3)(a), Florida Statutes. DONE AND ENTERED this 24th day of September, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 2010.
The Issue Whether Petitioner's license to practice clinical social work was lawfully annulled.
Findings Of Fact Petitioner, Patricia Katz, was licensed as a clinical social worker in Florida, license number SW 0002228, on March 31, 1989. Thereafter, Petitioner intended to remain fully licensed. The Respondent is the state agency charged with the responsibility of regulating and licensing clinical social workers within the State of Florida. Based upon the testimony of Petitioner and documentary evidence received in this cause, it is undisputed that Petitioner remained actively licensed until January 31, 1995. Prior to the expiration of her license in January 1995, the Respondent was required to send Petitioner a license renewal notice. Renewal notices are typically computer generated and the Respondent does not maintain copies of the notices to verify that they are sent to, or received by, its licensees. In this case, there is no direct evidence to establish Petitioner received the renewal notice; however, the computer records maintained by the Respondent reflect that the renewal notice was sent to Petitioner's Miami address on or about September 20, 1994. The address the Respondent maintained for Petitioner for the 1995 renewal time frame was accurate: 9720 Southwest 159th Street, Miami, Florida. In June 1995, Petitioner acquired a new residence in Broward County, Florida. She has remained at the Broward residence, 762 Heritage Drive, Weston, Fort Lauderdale, Florida, continuously since that time. In August 1995, Petitioner sold her old residence in Miami. Between this sale and the acquisition of the Broward residence, Petitioner maintains she notified the Respondent, in writing, of the address change. For some unexplained reason, the Respondent did not change its records regarding Petitioner's address. It continued to carry Petitioner's address as the Miami residence. For some unexplained reason, Petitioner did not contact the Respondent, in writing, to question why she did not receive a renewal notice for the 1995-97 period. Petitioner knew or should have known that her license renewals were due every two years. In addition to renewal forms, license fees are due and payable to the Respondent at renewal time. Had Petitioner renewed her license for the 1995-97 period, it would have expired at the end of January 1997. In October 1996, Respondent, again by way of the computer-generated form, sent Petitioner a notice of license nullification. According to the computer records, this notice was also sent to the Petitioner's old Miami address. Respondent does not have a copy of the notice or verification that Petitioner received it. In February 1997, the Respondent declared Petitioner's license null and void. Petitioner chose not to renew her license in January 1995, but believed it had automatically gone into an "inactive" status which would continue indefinitely. During this time Petitioner encountered several personal challenges which rightfully preempted her interest in her license status. Among these crises were two close relatives with cancer who required her assistance. Nevertheless, because she desired to maintain her license for the 1995-1997 time frame, Petitioner took the required continuing education courses. Such course work, completed during calendar year 1996, is fully documented in Petitioner's Exhibit 3. Petitioner did not pay any fees associated with her license status for the period 1995-1997. Sometime in 1997, Petitioner became concerned regarding her license status and contacted the Respondent by telephone. She spoke with Lucy Gee, the former executive director for Respondent, and sought clarification as to her license. When Ms. Gee advised Petitioner that her license had been annulled as a matter of law, Petitioner immediately sought to challenge such decision. In August 1997, the Respondent advised Petitioner that she would have to re-apply for licensure as a new licensee. Other options were not suggested. Petitioner did not receive notice that her license would be annulled prior to the agency action in February 1997. Petitioner was not afforded a point of entry to challenge the agency decision until March 1998. Thereafter, the Petitioner's challenge was forwarded to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's request for reinstatement to an inactive license status with leave to reactivate her license upon the payment of fees and demonstrated compliance with continuing education be denied. DONE AND ENTERED this 13th day of January, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1999. COPIES FURNISHED: Susan Foster, Executive Director Department of Health Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792 Pete Peterson, General Counsel Department of Health BIN A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health BIN A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 E. Renee Alsobrook, Esquire Alsobrook & Dove, P.A. Post Office Box 10426 Tallahassee, Florida 32302-2426 Edward Tellechea, Esquire Department of Legal Affairs Attorney General's Office The Capitol, Plaza 01 Tallahassee, Florida 32399-1050
Findings Of Fact At all times pertinent to the issues presented, Respondent was a registered residential contractor under license number RR 0024559, issued to Kenneth Rowland qualifying Phoenix Construction Services, Inc., issued in April 1975. On May 12, 1977, Angela Close entered into a contract with C & C Roofing Company of Longwood, Florida, to enclose and make a room of the carport on her home located at 215 Ulysses Drive, Apopka, Florida. The contract, which detailed the work to be done, called for a contract price of $2,500 and stipulated the work was to be completed in approximately three weeks from start date. The amount of $1,150 was to be paid when the job was started, and the balance was to be paid upon completion and acceptance. This agreement was signed by Angela Close and J. D. Carver. Ms. Close had given the contract to Carver because she worked with his wife at Seminole Community College and had been advised by her that Carver was in financial difficulty and needed the work. The contract was signed at Close's house, where Carver came with his wife, bringing the contract to be signed. Carver did the preliminary measuring work, but when actual construction began, Respondent was present and accomplished the majority of the work. On May 26, 1977, 14 days after the contract was signed, Respondent pulled a building permit #99146 to accomplish the work called for in the contract, from the Orange County Building Department. Several weeks after the work was started, Respondent asked Ms. Close for some additional progress payments on the job. Since she had already paid Carver in full according to the terms of the contract with him, she refused to pay Respondent, telling him she had paid all that was called for under the terms of her contract with Carver. When she said this, Respondent appeared quite surprised to learn of the contract and angry as well. On June 30, 1977, Respondent wrote a letter to the Orange County Building Department notifying that office that he had stopped work on that project because of nonpayment and requesting his name and license number be removed from the permit. As a result, the permit was cancelled on July 7, 1977. In an interview with Bobby J. Hunter, Sr., an investigator for the Department of Professional Regulation (DPR) several years later, Respondent indicated he agreed to do the job in question for Ms. Close, a friend of Carver, for $3,500. He pulled the permit and commenced work without ever talking to Ms. Close or without having a contract from her to do it, relying on the word of Carver that it was proper to do so. He received several payments from Ms. Close, transmitted through Carver. Two were in cash, and one was a check. When Respondent found out that Ms. Close had a contract with Carver for $2,500 and had paid him in full, he realized he would not receive funds to satisfy the work he had put in on the job, and he ceased work. The investigative report prepared by Mr. Hunter includes summaries of the interviews with both Carver and Respondent which state that Carver and Respondent were partners. Rowland, in his testimony at the hearing, denied any partnership relation. In light of the fact that these summaries are second-hand hearsay, contradicted by sworn testimony of the Respondent that he was not a partner of Carver, I resolve that dispute in favor of the Respondent and find that he was not a partner of Carver. Respondent contends under oath, and I so find, that he pulled the permit to do the work without knowledge of the prior contract between Close and Carver, as a favor to Carver who was reportedly a friend of Close. It was his understanding that, though Carver made the arrangements, it was his, Respondent's contract with Close for the figure he had quoted to Carver after his first survey of the job site, $3,500. He had been told by Carver not to talk with Close, as she did not speak English well, and he admitted to having made a grand mistake in proceeding without a contract from the owner Close. Carver's reliability is not the best. Mr. Hunter, investigator for DPR, indicated that Carver made some false statements to him in other cases. As a result, though Carver alleges he and Respondent were partners, and even Respondent's statement to Hunter seems to so indicate, there was, in reality, no partnership requiring Respondent to qualify C & C Roofing on his license, though there was plans to do so in the future.
Recommendation Based on the foregoing, it is RECOMMENDED That Petitioner enter a final order dismissing the Administrative Complaint. RECOMMENDED this 19th day of August, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1983 COPIES FURNISHED: Douglas A. Shropshire, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Kenneth Rowland 4403 North Powers Drive Orlando, Florida 32808 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan, Executive Director Construction Industry Licensing Board Department of professional Regulation Post Office Box 2 Jacksonville, Florida 32202
