The Issue Whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Effective July 1, 1997, the Department is the state agency charged with regulating the practice of medicine through the Board of Medicine ("Board"). Section 20.43, Florida Statutes; Chapters 456 and 458, Florida Statutes. Pursuant to the provisions of Section 20.43(3), Florida Statutes, the Department has contracted with the Agency for Health Care Administration ("AHCA") to provide consumer complaint, investigative, and prosecutorial services required by the Board of Medicine. Dr. Carida is, and was at all times material to this action, licensed to practice medicine in Florida, having been issued license number ME 0019622. Since January 1, 1996, Dr. Carida has practiced medicine as an employee of D.R.C. & Associates, Inc. ("D.R.C."), and he is paid an hourly wage by the company. D.R.C. is a medical management company owned by Diane Carida, Dr. Carida's daughter, who is the company's president. D.R.C. is not a professional association, and Dr. Carida has no ownership interest in the corporation. In November 1998, Dr. Carida was the only doctor employed by D.R.C.; the company's only other employees were an echo technician, a billing clerk, and a phlebotomist who also acted as Dr. Carida's medical assistant. In November 1998, the company's net worth was approximately $10,000.00. On October 30, 1998, the Board's Probable Cause Panel considered the results of an investigation into a complaint filed against Dr. Carida by the family of patient J.M. In accordance with its contract with the Department, the investigation was conducted by AHCA, and an attorney employed by AHCA presented the case against Dr. Carida to the Probable Cause Panel. The investigative file included the medical records of patient J.M. and the report of Leonard S. Williams, M.D., a physician employed by AHCA to render an expert opinion regarding Dr. Carida's care and treatment of the patient. AHCA's attorney also presented to the Probable Cause Panel a draft administrative complaint outlining the proposed charges against Dr. Carida, and AHCA's attorney recommended to the panel that the penalty of license revocation or suspension be sought as the maximum penalty against Dr. Carida. In his report, Dr. Williams presented a summary of the medical records he had reviewed and his conclusions regarding Dr. Carida's care and treatment of patient J.M. Dr. Williams stated in the report that it was his opinion that Dr. Carida had failed to meet the applicable standard of care in his care and treatment of patient J.M. and that the medical records maintained by Dr. Carida failed to document accurately and completely his care and treatment of the patient. Two members of the Probable Cause Panel, a physician and a lay member of the Board, were present and voting at the October 30, 1998, meeting. The Probable Cause Panel was represented by an attorney employed by the Florida Attorney General. Both members of the Probable Cause Panel present at the October 98, 2000, meeting acknowledged receiving the investigative file on Dr. Carida prior to the meeting, and both determined that probable cause existed to support AHCA's charges against Dr. Carida. On November 2, 1998, as a result of the decision of the Probable Cause Panel, AHCA served on Dr. Carida a two-count Administrative Complaint charging that, with respect to patient J.M., he had practiced medicine below an acceptable standard of care and that he had failed to maintain adequate written medical records relating to his care and treatment of the patient. Dr. Carida disputed the facts asserted in the Administrative Complaint, and AHCA sent the file to the Division of Administrative Hearings for assignment of an administrative law judge. A formal hearing was held, and a Recommended Order was entered, in which it was concluded, first, that AHCA had failed to prove by clear and convincing evidence that Dr. Carida practiced medicine below an acceptable standard of care with respect to the care and treatment of patient J.M. and, second, that AHCA had met its burden of proving that Dr. Carida failed to maintain adequate medical records regarding the care and treatment he provided to patient J.M. The Recommended Order was forwarded to the Board for final agency action, and, in its Final Order, the Board dismissed the charge that Dr. Carida practiced medicine below an acceptable standard of care and concluded that Dr. Carida was guilty of the charge that he had failed to maintain adequate written medical records related to patient J.M. On the basis of this violation, the Board imposed an administrative fine on Dr. Carida in the amount of $250.00 and required that he attend an approved course on proper maintenance of medical records. The evidence presented by Dr. Carida is sufficient to establish that he was the prevailing party in the proceeding styled Department of Health, Board of Medicine v. Robert V. Carida, M.D., DOAH Case No. 99-2997, DOH Case No. 95-03135. The more serious charge brought against Dr. Carida in the Administrative Complaint was that he had practiced medicine below an acceptable standard of care, and AHCA contended before the Probable Cause Panel that the appropriate penalty to be imposed against Dr. Carida for this violation was the revocation or suspension of his license. This charge against Dr. Carida was, however, dismissed by the Board in its Final Order, and Dr. Carida was found guilty only of having failed to keep adequate medical records. The penalty imposed on Dr. Carida in the Board's Final Order for this violation clearly indicates that the Board considered the medical records charge to be a minor one. The evidence presented by Dr. Carida is not, however, sufficient to establish that he is entitled to an award of attorney's fees and costs as a small business party. Rather, at the time the action against Dr. Carida was initiated, he was an employee of a medical management corporation, which was not a party to the disciplinary proceeding.
The Issue The issues are as follows: (a) whether this case should be dismissed due to Petitioner's failure to file a timely Petition for Relief as required by Rule 60Y-5.008, Florida Administrative Code; and if not, (b) whether Respondent discriminated against Petitioner based on her handicap by creating a hostile work environment, failing to accommodate her disability, and causing Petitioner's constructive discharge contrary to Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a white female. She applied for a cashier's job at Respondent's store in Defuniak Springs, Florida, on March 30, 2000. Petitioner's job application indicated that she was available to work on any shift and any day of the week, including days, evenings, nights, Saturdays, and Sundays. As a general rule, Respondent hires people that are available to work on an as needed basis. However, there is no persuasive evidence that Respondent always refuses to hire people who are not available to work at all times. On April 13, 2000, Petitioner began working for Respondent as a part-time cashier. She only worked a few days before she suffered two heart attacks on the same day, neither of which occurred while she was at work. Her medical records indicate that she began having heart problems in 1996 and that a stent was implanted in an artery of her heart on April 21, 2000. On April 23, 2000, Petitioner requested a medical leave of absence, expecting to return to work on or about June 1, 2000. Respondent granted this request. On May 1, 2000, Petitioner's doctor certified that Petitioner had a diagnosis of "S/P Inferior Wall Myocardial Infarction." The doctor stated that Petitioner could return to work and resume normal activity pending a follow-up evaluation on May 30, 2000. On June 13, 2000, Petitioner's doctor certified that Petitioner could anticipate returning to work on July 17, 2000. Petitioner was scheduled to repeat a heart catheterization on July 14, 2000. Medical records indicate that Petitioner underwent a stent-implant in an artery of her heart at that time. On July 21, 2000, Petitioner tendered her resignation because she did not expect to return to work. Respondent accepted Petitioner's resignation, indicating on the exit interview form that she was eligible for rehire. The exit interview form also indicates that Petitioner had qualified for supplemental security income (SSI) benefits due to her heart condition. Petitioner recovered from the surgery and applied for re-employment with Respondent on September 9, 2000. Petitioner sought a full-time position, indicating on her second employment application that she was available to work at any time. She specifically requested as many hours as Respondent could give her. Petitioner confirmed her availability to work with no job restrictions during her job interview. On October 26, 2000, Petitioner completed a Form 8850, Pre-screening Notice and Certification Request for the Work Opportunity and Welfare-to-Work Credits. On this form Petitioner certified that she had advised Respondent of her receipt of SSI benefits for any month ending within the last 60 days. Respondent rehired Petitioner to work as a peak-time (part-time) cashier beginning on October 30, 2000. Petitioner accepted the position even though she knew that working as a cashier involved a lot of stress and would require her to lift items as heavy as 50 pounds. Shortly after being re-hired, Petitioner actively sought more work hours in addition to her regular schedule. Respondent accommodated Petitioner's request by letting her work on the floor as a stock clerk, as well as a cashier. Approximately two weeks after returning to work, Petitioner required hospitalization again due to a heart attack. She was discharged from the hospital on November 27, 2000. Petitioner's doctor instructed her to rest and limit her activity, including walking, heavy exercise, and/or lifting more than five pounds, resuming normal activity on the second day as "tolerated." On December 2, 2000, Petitioner was admitted to the emergency room again after work. Petitioner's doctor recommended that Petitioner not return to work until she was evaluated again on December 11, 2000. Petitioner's doctor released her to return to work on December 12, 2000. Respondent's employees and management were aware of Petitioner's heart condition but they were not aware that Petitioner had a disability requiring accommodation. The doctor's release-to-work contained no medical restrictions. During December 2000, Petitioner worked as a cashier and on the customer service desk receiving items returned by customers. The latter job occasionally required Petitioner to handle heavy items. On January 9, 2001, Respondent gave Petitioner a performance appraisal. The appraisal indicated that Petitioner worked well with others, assisted in raising funds for charity, and participated in associate functions. Respondent's performance standards include "below," "meets," or "exceeds" expectations. Petitioner's performance appraisal indicates that she "met" performance expectations in all areas except one area of productivity. She received a "below" expectations rank as to the number of items she scanned per hour. Based on the overall appraisal, Petitioner received a pay raise commensurate with the "meets" expectation criteria. On February 6, 2001, Petitioner's doctor excused her from work for a week due to illness. The doctor indicated that Petitioner could return to work on February 9, 2001, if she was feeling well. Otherwise, Petitioner would need another medical evaluation before she returned to work. On February 12, 2001, Petitioner's doctor excused her from work until February 14, 2001. Petitioner's medical records indicate that Petitioner had bronchitis, asthma, and flu-like symptoms. Around the middle of February 2001, Petitioner requested that she be scheduled to work the night shift only two nights per week. Respondent's associate schedules, which were computer-generated weeks in advance of the scheduled work, show that Respondent granted her request. Petitioner was scheduled to work after 6:00 p.m. as follows: (a) two times from February 24, 2001, to March 2, 2001; (b) one time from March 3, 2001, to March 9, 2001; (c) one time from March 10, 2001, to March 16, 2001; and (d) two times from March 17, 2001, to March 23, 2001. Respondent posts daily or weekly schedules to make corrections to the computer-generated schedules. Two such undated handwritten schedules indicate that Petitioner was scheduled to work a day shift on two days. Petitioner actually worked after 6:00 p.m. as follows: one time from February 10, 2001, to February 23, 2001; one time from February 24, 2001, to March 9, 2001; and no times from March 10, 2001, to March 23, 2001. On or about February 20, 2001, Petitioner told her supervisor that she planned to resign on March 1, 2001. In a subsequent handwritten note dated February 27, 2001, Petitioner advised Respondent that she intended to quit work on March 23, 2001. The note states that she was leaving due to illness but wanted to return when she was well. On or about March 8, 2001, a customer in an express checkout lane, limited to 20 items, made a written complaint to Petitioner's supervisor that Petitioner had been rude. Specifically, the customer alleged that Petitioner had expressed her objections to the customer having more than 20 items when the customer had exactly 20 items. The customer claimed that Petitioner's comments were embarrassing. Petitioner's supervisor gave Petitioner a verbal coaching. The supervisor reminded Petitioner of Respondent's policy that the customer was always right. During the hearing, Petitioner stated that she agreed with this policy. Under protest, Petitioner complied with the supervisor's request for Petitioner to write an apology to the customer. The written apology stated that Petitioner was sorry if she hurt the customer's feelings and asked the customer to please go to Petitioner's checkout line again. The supervisor also wrote an apology to the customer. On March 12, 2001, Petitioner underwent a medical examination at Doctors Medical Center of Walton County due to chest pains radiating into her right arm. The medical history taken at that time indicates that Petitioner's medical history included two heart attacks and five stents in her heart arteries. Petitioner's doctor wrote an excuse for Petitioner missing work on March 13, 2001. The note states that Petitioner could return to work on the following Monday, March 19, 2001. On March 21, 2001, Petitioner had an altercation with a customer service manager. The incident occurred because Petitioner and another cashier were scheduled for breaks about the same time. The manager allowed the other cashier to go on break before Petitioner because the co-worker's line was empty and Petitioner had customers in her line. Raising her voice, Petitioner protested that she was due a break before her co-worker. The manager told Petitioner to stop harassing him. Petitioner subsequently complained to her supervisor. Petitioner admitted during the hearing that she got "sassy" with the customer service manager on March 21, 2001. The morning after the altercation with the customer service manager, Petitioner told her co-workers that she intended to have the store manager fired because she was having him investigated. As a result of her comments, Petitioner was invited to the rear office where she spoke to the regional personnel manager on the phone. During that conversation, the personnel manager told Petitioner she could call him at home if she felt more comfortable doing so. The personnel manager excused Petitioner from work for the next two days with pay through March 23, 2001, the effective date of her resignation. Petitioner's final exit interview is dated March 22, 2001. On the exit interview form, Petitioner indicated that she quit her job because she did not like the way the store manager ran the store and due to her health. Petitioner indicated that the termination was voluntary due to her health. After Petitioner signed the exit interview form and left the store, Respondent's staff had further conversation with the regional personnel manager and completed a section on the form reserved for the employer. This section indicates that Petitioner had a bad attitude and, if she had not resigned, Respondent would have terminated Petitioner. Competent evidence shows that Petitioner did have a bad attitude after being rehired. She always took the position that she was right and did not want to communicate with certain managers. Petitioner understood that she could only work for six months without losing her SSI benefits. Her resignation on March 23, 2001, occurred just prior to the end of the six-month period. Due to her health problems, Petitioner has not worked since she resigned her job with Respondent. She has not looked for work and does not intend to do so because she continues to receive SSI. During the hearing, Petitioner discussed several incidents in support of her allegations of discrimination based on her disability. However, Petitioner admitted that her memory was bad and that she could not recall the specific dates involved. On several occasions, Petitioner complained to Respondent's district manager about the way the store manager ran the store. For example, Petitioner complained that someone was selling Avon products in a fitting room. The district manager determined that there was no merit to this allegation. On another occasion, Petitioner complained to Respondent's district manager that the store manager had made an inappropriate religious comment to Petitioner. Upon subsequent investigation, the district manager determined that the store manager had made one such comment to another employee but not to Petitioner. The store manager was advised to refrain from making such comments in the future. Petitioner testified that if an employee was not a member of the store manager's "holy roller" church, the employee was nothing in the opinion of the store manager. Petitioner's testimony that she was treated differently from other employees because she would not "suck up" to the store manager and because she was not a member of his clique is not persuasive. Petitioner told the district manager that she did not like the way the store manager criticized employees in the office. However, Respondent's policy is to provide praise in public and constructive criticism in private. Respondent has a policy to send employees flowers when they are hospitalized. Petitioner complained to Respondent's district manager that the store did not send her flowers when she was in the hospital. According to Petitioner, the store manager told her at some point in time that she was going to die and where she was going to be buried if she did not quit her job. The greater weight of the evidence indicates that the store manager did not make this statement. Petitioner presented testimony that Respondent's managers called her a whiner. Petitioner also presented testimony that the assistant store manager stated that she would not baby-sit dummies (retarded people). The most persuasive evidence indicates that Respondent's managers never made these comments. To the contrary, Respondent does not have a policy against hiring people with disabilities. In fact, at the time of the hearing, Respondent had another disabled person working at the store in Defuniak Springs, Florida. Sometime after Respondent rehired Petitioner in October 2000, she began to experience chest pains while she was working as a cashier. Petitioner's co-workers were aware of Petitioner's problem but there is no competent evidence that Respondent's managers were aware of her specific symptoms. In fact, none of Respondent's managers who testified at the hearing could remember Petitioner complaining of chest pains while she was working as a cashier. When Petitioner requested permission to leave work due to illness, she was told to wait for relief, then to close her register and go to the office to check out. The process took about 20 minutes. At the time in question, Petitioner drove herself to the doctor's office. She did not request anyone to drive her and no one offered to do so. After being examined by her doctor, Petitioner 's doctor recommended that she travel to the hospital by ambulance. Petitioner refused this recommendation and elected to call a friend to take her to the hospital in Defuniak Springs, Florida. Eventually, Petitioner was placed in intensive care and transferred to a hospital in Pensacola, Florida, where she underwent the replacement of a stent due to its collapse. There were times when Petitioner was not allowed to leave her register before a break to take her medication; however, she was allowed to have water at her register so that she could take her medication at her workstation. On the one occasion that Petitioner could not locate her nitroglycerine prescription, she was told to finish with a customer before going to the store's pharmacy to obtain a new prescription. During the hearing, Petitioner testified that she was not allowed to operate machinery while taking some of her prescribed drugs. Therefore, Petitioner did not take those medications when she went to work. There is no evidence that Respondent was aware that Petitioner was not taking prescribed medications in order to work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether or not Petitioners are entitled to an award of attorney's fees and costs.
Findings Of Fact On October 21, 1983, Derek and Lucy Lea entered into a sales contract to purchase the Wal-Mar Hotel that was listed for sale with the Petitioners. The Leas retained an attorney and the transaction closed on December 15, 1983. Three months later, due to low revenues, the Leas defaulted on the mortgage and the seller foreclosed. The Leas filed a civil action in circuit court against Petitioners for misrepresenting the property, which action was dismissed. Petitioners denied the allegations filed by the Leas. On July 29, 1986, Respondent, Florida Real Estate Commission, received a complaint filed by the Leas which was investigated. Following Respondent's investigation, the Lea's complaint was forwarded to a probable cause panel and the panel determined that probable cause did not exist to believe that a violation of the real estate licensing law had occurred and a closing order was entered on February 18, 1987, dismissing the complaint. The Leas refiled their civil complaint and alleged that Petitioners misrepresented and overstated the per night room rate, the past occupancy rates, the gross income rates and future reservations; that Petitioners knew or should have known that the acts and statements were false and incomplete at the time made and that the Leas acted in reliance of Petitioners representations in purchasing the Wal-Mar Motel. On or about August 5, 1987, the Leas obtained a final judgment for $5,250.00 against Petitioners, Dynamic Realty, Inc. and Jay H. Miller, which judgment was satisfied. A copy of the judgment, and satisfaction thereof was refiled with the Respondent which evidenced that the Petitioners paid the judgment. The Leas refiled their complaint with Respondent and on September 20, 1988, the Leas complaint was again reviewed by the probable cause panel. The probable cause panel determined that probable cause existed to believe that based on the documentation presented, including the civil judgment entered against Petitioners which was satisfied, and a review of the investigative report, adequate facts existed to support a charge of fraud through breach of trust in a business transaction and Respondent filed Administrative Complaints on October 4, 1988, alleging that Petitioners engaged in fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction, in violation of Subsections 475.25(1)(b), (d) and (k), Florida Statutes, by virtue of Petitioners' misrepresentation in overstating the various financial data relative to the Leas purchase of the Wal-Mar Hotel. Petitioners incurred legal fees and costs in the amount of $4,058.00 to litigate the Administrative Complaint filed by Respondent. The amount expended by Petitioners for legal fees and costs was reasonable.
The Issue Whether the Petitioner, Patricia Smithwick Valz, is entitled to an award of attorney's fees as a "prevailing small business party" in the underlying administrative proceeding.
The Issue Whether Respondent violated Subsections 475.25(1)(b), (1)(d)1, and (1)(e), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate salesperson, issued license number 0530788 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was an involuntary inactive salesperson at 2156 Turnberry Drive, Oviedo, Florida 32764. On or about April 13, 2000, an Administrative Law Judge entered a Recommended Order finding Respondent guilty of violations of Subsections 721.11(4)(a), (h), (j), and (k), Florida Statutes (1995), by making oral misrepresentations in his sales pitch to timeshare purchasers. On or about June 15, 2000, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, issued a Final Order adopting the Findings of Fact and Conclusions of Law of the Administrative Law Judge and rejecting all of Respondent's exceptions. In the Final Order, the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, ordered Respondent to cease and desist from any further violations of Chapter 721, Florida Statutes, and ordered Respondent to pay a penalty of $28,000. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes. On or about July 22, 2000, a uniform disciplinary citation was issued to Respondent for failing to notify the Florida Real Estate Commission of his current mailing address or any change of the current mailing address in violation of Rule 61J2-10.038, Florida Administrative Code. Pursuant to proper authority, the Florida Real Estate Commission penalized Respondent $100 for the violation. At the time he received the uniform disciplinary citation, Respondent was advised as follows: "You have a total of 60 days from the date this citation was served upon you to pay the fine and costs specified. This citation automatically becomes a Final Order of the board if you do not dispute this citation within 30 days of the date this citation was served upon you. As a Final Order, the fine and costs shall be due to the board within 30 days of the date of the Final Order. After this citation has become a Final Order, failure to pay the fines and costs specified constitutes a violation of a Final Order of the board and may subject you to further disciplinary action." On or about August 22, 2002, the citation became a Final Order. As of September 24, 2002, Respondent had failed to pay the penalty pursuant to the terms of the Final Order of the Florida Real Estate Commission. Respondent had more than 20 years' experience selling timeshare units as a salesman, sales manager or sales director; he had worked in sales at various Central Florida timeshare resorts since 1979. Between July 1995 and March 1997, Respondent was employed as a salesman and sales director by Vocational Corporation, the owner/developer of Club Sevilla, a timeshare resort property. On October 24, 1995, Respondent participated in a sales presentation to Raymond and Charlene Sindel at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Sindels to purchase the timeshare: (1) the Sindels would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and/or utilize another timeshare for $79 or $99 a week 52 weeks per year; and (2) representatives of Tri Realty would sell their existing timeshare before the end of the year. On October 24, 1995, Respondent participated in a sales presentation to Clarence and Maxine Shelt at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statement which induced the Shelts to purchase the timeshare: the Shelts would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and or utilize another timeshare for $79 a week 52 weeks per year. On June 26, 1996, Respondent participated in a sales presentation to Eugene and Mildred Plotkin and their son, Daniel, at Club Sevilla, which resulted in the purchase by Eugene and Mildred Plotkin of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Plotkins to purchase the timeshare: (1) a timeshare owned by the Plotkins in Las Vegas, Nevada, would be sold within two months; (2) the Plotkins would receive a low-interest credit card with which they would finance the purchase of the Club Sevilla timeshare and that their Las Vegas timeshare would be sold quickly enough that they would not have to pay any interest on the credit card; and (3) the Plotkins would become members of Interval International, a timeshare exchange program, in which they could utilize another timeshare anywhere for $149 a week. On July 26, 1996, Respondent participated in a sales presentation to Robert and Susan Bailey at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Baileys to purchase the timeshare: (1) they would receive a low-interest credit card within ten days with a $20,000 credit limit with which they could finance the timeshare purchase; and (2) the Baileys would receive a prepaid 52-week membership in Interval International, a timeshare exchange program. In September 1996, Respondent participated in a sales presentation to Thomas and Betty Prussak at Club Sevilla, which resulted in the purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Prussaks to purchase the timeshare: (1) timeshares owned by the Prussaks in Westgate and Club Sevilla were valued at $12,000 each and that these timeshare units would be sold if the Prussaks purchased a new timeshare unit at Club Sevilla; (2) that the new Club Sevilla timeshare unit would be a "floating" unit (could be used anytime); and (3) that the new Club Sevilla timeshare would be rented and that the Prussaks or their daughter would be able to take "getaway" weeks and stay at any RCI timeshare for $149 per week. On December 11, 1996, Respondent participated in a sales presentation to Larry and Carla Eshleman at Club Sevilla, which resulted in their purchase of a timeshare. During the sales presentation, Respondent made the following false, deceptive and misleading statements which induced the Eshlemans to purchase the timeshare: (1) the Eshlemans would receive a low-interest credit card with which they could finance the timeshare purchase; (2) the Eshlemans would become members of Interval International, a timeshare exchange program, in which they could exchange their timeshare and utilize another timeshare for $149 a week; and (3) the timeshare the Eshlemans owned prior to their purchase of the Club Sevilla timeshare would be sold in three months or would be rented for $1,650 per week.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order finding that Respondent violated Subsections 475.25(1)(b) and (e), Florida Statutes, and that Respondent's license as a real estate salesperson be revoked, that he be fined $2,000 and be required to pay the costs of the investigation and prosecution of the case. DONE AND ENTERED this 3rd day of December, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 3rd day of December, 2002. COPIES FURNISHED: Christopher J. Decosta, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Hurston Building, North Tower Orlando, Florida 32801 William S. Walsh 13079 South Taylor Creek Road Christmas, Florida 32709 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Buddy Johnson, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Nancy P. Campiglia, Chief Attorney Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is an agency of the State of Florida charged with the responsibility and duty of investigating and prosecuting complaints against real estate professionals in the State of Florida. Respondent is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been duly issued license numbers 0263586, 0261820, 0260480, and 0300938. The last license issued to Respondent was as a broker with the following entities: Avatar Realty, Inc., 4550 Poinciana Boulevard, Kissimmee, Florida; Avatar Communities, Inc., 201 Alhambra Circle, Coral Gables, Florida 33134; Golden Gate Realty, Inc., 4736C Golden Gate Parkway, Naples, Florida; and Avatar Condominium Management, Inc., 201 Alhambra Circle, Coral Gables, Florida. Prior to February 20, 1987, Respondent was the owner of a convenience store known as Hemispheres Food Mart, which was located in the Hemispheres condominium and office complex in Hollywood, Florida. On or about February 20, 1987, Respondent, as owner, entered into a three month exclusive right of sale listing agreement with South Florida Business Negotiators, Inc., for the sale of the Hemispheres Food Mart, at an asking price of $100,000. In connection with the foregoing listing agreement, the Respondent represented and warranted as true that the: "Business doing $286,000 yearly net $55,000 ambitious owner can improve potential to $350,000 yearly." On or about April 1, 1987, the Respondent, as seller, entered into a "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart" with Kenny Mohammed and Annie Mohammed, his wife, as purchasers, to sell the corporate stock of Hemispheres Food Mart, Inc. to the Mohammeds. This contract was executed by the Mohammeds on April 2, 1987. The first line of the contract reflects an erroneous date for the contract of May 5, 1987. Paragraph 12 of the "Contract for Purchase and Sale of Stock of Hemispheres Food Mart, Inc., D/B/A Hemispheres Mini Mart", provided as follows: 12. PURCHASER'S RIGHT TO INSPECTION OF SELLER'S RECORDS. The Purchaser, within 72 hours after the con- tract has been signed and executed by both parties, shall have the right, either by himself or through his accountant, to inspect the financial records and receipts of the Seller to verify the amount of sales of the Seller on a weekly basis. The Purchaser shall verify that the average gross sales on a weekly basis for the Seller, during the time period from January 1 through April 1 (the season) exceed the sum of $8,400.00 per week. If the Purchaser by himself or through his accountant determines that the gross sales for the Seller are less than $8,400.00 per week, the Purchaser shall have the unilateral right to terminate its obligations under the terms of this Contract. Seller shall supply Purchaser with copies of 1985 and 1986 tax returns. The Seller agrees to allow the Purchaser to sit in the place of business for a period of one week to observe and verify that the stated daily gross sales of the business exceed $1,200.00. If during the one-week observation period the daily gross sales do not meet $1,200.00, the Purchaser reserves the right to cancel this Agreement and the deposit held in escrow shall be refunded to them. On May 7, 1987, Respondent and the Mohammeds executed an addendum to their contract. Paragraph 23 of the addendum provides as follows: 23. INSPECTION OF RECORDS It is hereby agreed that both parties shall have complied with paragraph 12, PURCHASERS' RIGHT TO INSPECTION OF SELLER'S RECORDS, and therefore same shall be considered null and void. The representation contained in the contract relating to the level of sales was for sales made during the "season" between January 1 and April 1. Mr. Mohammed exercised his right to observe the sales during the week that began April 6, 1987. During the week long observation period, the sales for two of the days did not equal $1,200. Mr. Raymond provided various records and cash register tapes for the period January 1 - April 1, 1987, for inspection by Mr. Mohammed and Mr. Mohammed's financial adviser. Following the inspection of these records and the one-week observation period, Mr. Mohammed, against the advice of his attorney, elected to close the transaction. The transaction closed in May 1987. (The closing statement signed by Respondent and the Mohammeds does not reflect the day in May the transaction closed.) Subsequent to the closing, the Mohammeds sued Respondent in a civil action brought in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida. The "Final Judgment for Plaintiffs" entered September 19, 1989, by Circuit Judge J. Cail Lee provides, in pertinent part, as follows: ... [T]he Court having heard the testimony of all witnesses and having examined the proofs offered by the respective parties, the court finds that he testimony of the two witnesses was to the effect the defendant, Warren Raymond, falsified sales during the sales verification period to induce the plaintiffs, Kenny Mohammed and Annie Mohammed, to complete the purchase of the Hemispheres Mini Mart, and that constituted fraud, and that constituted a basis not only for compensatory damages but punitive damages as well. It is therefore, ORDERED AND ADJUDGED that the plaintiffs have a judgment against the defendant for fraud in the sum of $750.00 compensatory damages and $15,000.00 punitive damages ... Respondent appealed the judgment entered against him by Judge Lee. While the case was on appeal, Respondent and the Mohammeds settled the civil suit. Respondent did not admit any wrongdoing in the Settlement Agreement. Thereafter, on March 26, 1990, Judge Lee entered a "Final Judgment of Settlement" in the civil action which vacated the "Final Judgment for Plaintiffs" that he had entered September 19, 1989, and which dismissed with prejudice the civil action the Mohammeds had brought against Respondent. There was no competent evidence presented at the formal administrative hearing that Respondent had (a) misrepresented the value of the premises or potential of the business, (b) generated false sales during the observation period, (c) falsified cash register receipts, (d) conspired with his friends to falsify sales, or (e) otherwise engaged in fraud during the course of his business dealings with the Mohammeds.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint brought against Respondent in this proceeding. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5320 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1-5, 7 and 11 (the first of the two paragraphs that are numbered 11) are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order. The use of the term "induced" is rejected as being contrary to the findings made or to the conclusions reached. The proposed findings of fact in the first sentence of paragraph 9 are rejected as being unsubstantiated by the record. The last sentence is rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 10 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 11 (the second of the two paragraphs that are numbered 11) are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 12 are adopted in part by the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-5, 7-14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in part by the Recommended Order. The proposed finding that the contract was dated May 5, 1987, is rejected as being contrary to the finding that the contract was dated April 1, 1987. The proposed findings of fact in paragraphs 15 and 16 are rejected as being unnecessary to the conclusions reached. COPIES FURNISHED: James Gillis, Esquire Department of Professional Regulation Senior Attorney 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802-1900 Norman Segall, Esquire Bentata Hoet & Associates & Zamora, Segall, Lacasa & Schere 3191 Coral Way - Third Floor Miami, Florida 33145 Darlene F. Keller Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact On December 22, 1987, the undersigned held a formal hearing in the underlying case, (DOAH Case No. 87-3084), and on February 4, 1988, issued a Recommended Order to the Florida Real Estate Commission in which it was concluded that the Petitioners had violated various provisions of the Florida Statutes and that disciplinary action was appropriate. Specific disciplinary action was recommended as to each Petitioner. In its Final Order, predicated upon the above mentioned Recommended Order, the Commission adopted the undersigned's Findings of Fact and Conclusions of Law but found the recommendation for punishment as to both Petitioners was inadequate. The Commission increased each period of suspension, rejected the recommendation for stay and automatic remission as to the suspensions, and imposed an administrative fine on each Petitioner. Thereafter, Petitioners appealed the Final Order to the Second District Court of Appeal which, in an opinion filed February 17, 1989 affirmed the Commission's findings of guilt but reversed the penalties imposed by the Commission and remanded with instructions to approve the Hearing Officer's recommended penalties. It is on the basis of this appellate action that Petitioners, claiming to be prevailing small business parties, initiated the instant action. Petitioners are requesting attorney's fees in the amount of $5,261.28 for the appellate action which resulted in the District Court of Appeals reducing the penalty imposed by the Commission to that recommended by the Hearing Officer. This fee and cost figure is the cumulative of charges incurred and represented on 11 monthly billing statements starting 06-01-88 and extending through 04-01-89. Only the last eight, starting with the 09-01-88 billing, state the hours spent providing service. The Florida Legislature has defined a "prevailing small business party" at Section 57.111(3)(c), Florida Statutes.
