The Issue The issue is whether Petitioner should revoke, suspend or otherwise discipline Respondent’s certification as a law enforcement officer pursuant to Section 943.1395(7), Florida Statutes.
Findings Of Fact Petitioner issued Certificate Number 91034 to Respondent on August 24, 1984. At all times material to this matter, Respondent worked as a patrolman for the City of Chiefland Police Department. During the last couple months of his active duty service, he was training to become a K-9 officer. In 1993, Petitioner issued a letter of guidance to Respondent and placed him on one year of probation after Respondent admitted that he had engaged in sex while on duty. On March 17, 1994, Henry W. Nicholson became Chief of Police in the City of Chiefland. In the summer of 1994, Michelle Hallman (formerly Michelle King) worked at ABC Pizza. She was eighteen years old at that time. On days that she was not working, Michelle sometimes went to ABC Pizza to help the other employees close up. On one such evening, Ms. Hallman met Respondent and Officer Hicks in the ABC Pizza Parking lot. They had a casual conversation in which Ms. Hallman joked that she would tell the Chief that Respondent had pinched her on the butt. Respondent laughed and replied that he would tell the Chief that Ms. Hallman dropped on her knees and begged. Respondent also told Ms. Hallman that he did not need that kind of trouble again. The Chief pulled into the parking lot while Ms. Hallman was talking to Respondent and Officer Hicks. The Chief needed to let Respondent know that he was not planning to go to K-9 training with Respondent that evening. About a month later, on June 10, 1994, Respondent was patrolling near a community center known as the Pine Land Center. He saw Ms. Hallman riding by in her car. He and Ms. Hallman pulled their respective cars into the parking lot of the community center and had another casual conversation. During this conversation, Ms. Hallman asked Respondent if he ever messed around. Respondent replied that because of his past problems he never went out with anyone unless the girl asked him. The next evening, June 11, 1994, Respondent began his shift at 6:00 p.m. He was scheduled to work a twelve hour shift. Early in the evening, Respondent saw Deputy Meeks, a deputy with the sheriff’s office. They agreed to eat supper together at the Subway around 11:00 p.m. As the evening progressed, Respondent answered several calls. Between 8:30 and 9:00 p.m. Respondent responded to a call involving a dog bite. After completing the matter involving the dog bite, Respondent saw Ms. Hallman at or near the Circle K. She told him she wanted to talk to him. They agreed to meet at a small public park known as Delma Lock. The park was near a school and a football field. A baseball game was in progress at a baseball field located between the Circle K and the park. The area of the park in which Respondent and Ms. Hallman met was dimly lit. Even so, Ms. Hallman felt like there were too many people around the park or driving by that might recognize her. Respondent suggested they go to the police station. Respondent parked his patrol car in front of the police station. When Ms. Hallman arrived she parked on the side of the building. They went in the side door and into Respondent’s office. There was no other person present in the building. Ms. Hallman told Respondent that she had been a witness to an automobile accident earlier in the day. Respondent and Ms. Hallman had been in his office just a few minutes when Deputy Meeks knocked on the back door of the police station. Respondent opened the door for Deputy Meeks who was ready to go to the Subway for supper. While Respondent and Deputy Meeks were eating their sandwiches at the Subway, Ms. Hallman came in to get a sandwich for a friend of hers. She carried on a brief conversation with Respondent. Sometime around midnight, Respondent spent a few minutes at the Midtown Jiffy visiting with a friend of his, Joan Schubert. From 12:46 to 12:56 a.m., Respondent checked on the alarm at the Senior Citizens Center. Respondent next saw Ms. Hallman near the Circle K. They agreed to meet back at the Delma Lock park. Once again there were too many people at the park for Ms. Hallman to be comfortable. Respondent suggested they meet at the Department of Transportation building. He told Ms. Hallman how to find the building. Ms. Hallman arrived at the designated building first. Respondent pulled into the driveway and told her to follow him. They drove behind the building and parked. Both of them got out of their cars. The area was well lit, but cars from the highway in front could not see what was going on. Respondent took off his gun belt and dropped his pants. Ms. Hallman dropped her shorts. They had sexual intercourse standing up and leaning against the trunk of Ms. Hallman’s car. After having sex, Respondent heard a radio call for Deputy Meeks to respond to a disturbance at Levy Norris’s house. The call originated around 1:35 a.m. The dispatcher explained that the Norris residence was across the road from the Catholic church and down an unpaved road beside Thompson’s garage. Respondent knew that Deputy Meeks was making the final loop of his patrol before going off duty at 2:00 a.m. Respondent was out of breath when he got to his radio. He called Deputy Meeks on the radio and asked him where he was coming from. Deputy Meeks replied that he was in Rosewood which was at least ten miles away. Respondent said that he was “right here at the church.” Respondent asked Deputy Meeks whether he should wait or go on to the Norris residence. Deputy Meeks told Respondent to go ahead and gave Respondent directions. Respondent left Ms. Hallman in the parking lot of the Department of Transportation building. She did not see him again. Respondent was enroute to the Norris residence by 1:38 a.m. He arrived on the scene at 1:42 a.m. It took him four minutes to get there. The Catholic church was used as a landmark to identify the road on which Levy Norris lived. It is located in the same vicinity as the Department of Transportation building where Respondent met Ms. Hallman. Later in June of 1994, Ms. Hallman went to Chief Nicholson to complain that another of his officers made derogatory comments about her which caused her to lose a prior job. Ms. Hallman said the same officer was attempting to get her fired from her current job by making derogatory remarks about her to her employer. In the course of investigating this complaint, Chief Nicholson learned that Respondent may have had an affair with Ms. Hallman. Chief Nicholson called Ms. Hallman and requested that she come to his office. At that meeting, Ms. Hallman denied that she and Respondent had sex. A day or two later, Ms. Hallman returned to Chief Nicholson’s office. She admitted that she had sex with Respondent. Respondent never included his interaction with Ms. Hallman in his duty log. Respondent gave sworn statements to Chief Nicholson on June 24, 1994 and July 1, 1994. When questioned, Respondent knowingly made false statements to mislead Chief Nicholson about his relationship with Ms. Hallman. Chief Nicholson concluded his internal investigation and decided to terminate Respondent’s employment. Chief Nicholson advised Respondent of his decision in a memorandum dated July 6, 1994 and received by Respondent’s counsel on July 25, 1994. The Chiefland City Commission, sitting as the City Personnel Review Board, conducted a hearing on August 29, 1997. Respondent’s employment with the City of Chiefland was terminated effective September 6, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that Petitioner enter a Final Order revoking Respondent’s law enforcement certification. DONE AND ORDERED this 8th day of April, 1997, in Tallahassee, Florida. SUZANNE F. HOOD 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 8th day of April, 1997. COPIES FURNISHED: Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Joan Stewart, Esquire 300 East Brevard Street Tallahassee, FL 32301-1218 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302
Findings Of Fact Respondent Starla K. Rose, was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0046404. On February 25, 1985, an Information was filed in the Circuit Court of the Seventh Judicial Circuit, Broward County, Florida, charging Respondent with one count of grand theft, Sections 512.014(1)a and b and 512.014(2)b, Florida Statutes, two counts of insurance fraud by false or fraudulent claims Section 517.234(1)(a)1, Florida Statutes; and, one count of false report of the commission of a crime, Section 817.49, Florida Statutes. Respondent pled not guilty to the Information. On June 6, 1985, a verdict was rendered which found Respondent guilty of one count of grand theft, one count of insurance fraud by false or fraudulent claims and one count of false report of the commission of a crime. The court adjudged Respondent guilty of issuing a false report of the commission of a crime, withheld adjudication of guilt on the remaining counts, placed Respondent on probation for 3 years, and ordered her to pay costs. Respondent filed a timely motion for new trial following rendition of the verdict. At the time of final hearing in this case, no disposition had been made of Respondent's motion for new trial.
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint issued August 25, 2000, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating insurance licenses and appointments pursuant to Chapter 626, Florida Statutes. At all times material to the allegations in this case, the Respondent has been licensed as a Life Health and Annuity Agent, Life Health and Variable Annuity Agent, and a Health Insurance Agent in this state. On March 7, 1982, the Respondent was celebrating her birthday, she turned 22 that day, and was returning home with her husband when the vehicle they were in was stopped for a minor traffic infraction (expired tag). Believing he had to perform a "pat down" for his safety, the officer felt the Respondent's purse and noticed a bulge in the shape of a small weapon. The small hand gun had been a birthday present to the Respondent. Upon discovering the weapon, the officer charged the Respondent with carrying a concealed firearm. Initially the Respondent entered a written plea of not guilty but subsequently changed the plea in open court to one of nolo contendere. In connection with the plea change, the court entered an Order Granting Probation and Fixing Terms Thereof. The fact that the Respondent was placed on probation is not disputed. Further, as the Court determined the Respondent was not likely to again engage in a criminal course of conduct, adjudication was withheld and probation set for a period of one year. The Respondent successfully completed that year of probation and has had no further incidents of criminal misconduct. The Respondent erroneously believed that the successful completion of the probationary period, and the fact that adjudication had been withheld, resulted in the expungement of the criminal record. As the Respondent later found out, criminal records are not automatically sealed or expunged. On November 2, 1999, the Respondent filed an application for licensure as a life health and variable annuity agent with the Petitioner. That application contained two questions dealing with the applicant's past criminal history. As to both questions, the Respondent erroneously entered "no" responses. Had the Respondent entered accurate answers, both responses would have been "yes" based upon the status of the Respondent's criminal record at the time the application was submitted to the Petitioner. The Respondent has a medical condition that she claims has damaged her long term-memory. According to the Respondent, she answered the questions as she did because she did not remember all the facts surrounding the criminal history at the time the application was completed but that, even if she had, she would have assumed the matter was sealed and fully resolved since adjudication was withheld. The Respondent's account in this regard has been deemed credible. The Respondent did not intend to mislead the Petitioner and acted more in ignorance of the law as to the prior arrest and probation than in willful disregard of her responsibility to disclose it. At the time Respondent completed her application for licensure she read the paragraph that appears at the bottom of the third page of said application in bold typeface that states: IT IS IMPORTANT THAT YOU HAVE READ ALL OF THE FOREGOING QUESTIONS CAREFULLY AND HAVE ANSWERED THEM FULLY. THIS IS ESPECIALLY IMPORTANT AS IT RELATES TO AN APPLICANT'S LAW ENFORCEMENT RECORDS. THE DEPARTMENT DEEMS ALL MATTERS THAT ARE PART OF AN APPLICANT'S LAW ENFORCEMENT RECORDS TO BE A SIGNIFICANT AND MATERIAL ELEMENT OF THE APPLICATION, THE OMISSION OF ANY PART OF THE LAW ENFORCEMENT RECORD IS A MATERIAL MISREPRESENTATION OR MATERIAL MISSTATEMENT IN AND OF ITSELF. YOUR FAILURE TO DIVULGE YOUR COMPLETE LAW ENFORCEMENT RECORD ON THIS APPLICATION CAN RESULT IN YOUR APPLICATION BEING DENIED. In addition to the foregoing, the application submitted by the Respondent provided the following statement: Under penalty of perjury, I declare that I have read the foregoing application for license and the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of The Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s). The answers provided by the Respondent to the two questions (application questions numbered 18 and 19) were incorrect, misleading, and were presumably used to support the issuance of the Respondent's licenses. Although the Respondent is eligible to have her criminal record sealed or expunged, as of the date of the hearing she had not completed that process. During the investigation of this matter, the Respondent fully cooperated with the Petitioner and obtained copies of documents as requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance impose an administrative fine against the Respondent in an amount sufficient to cover the costs of prosecuting this case. DONE AND ENTERED this 1st day of May, 2001, 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 1st day of May, 2001. COPIES FURNISHED: Richard J. Santurri, Esquire Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph H. Fernandez, Esquire The Law Offices of Brand & Fernandez, P.A. 2 Northeast 40th Street Suite 403 Miami, Florida 33137 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issues in this case are whether Petitioner committed a public entity crime as that term is defined in Section 287.133, Florida Statutes (2000), and, if so, whether it is in the public interest to place Petitioner's name on the convicted vendor list maintained by the Department of Management Services (the "Department").
Findings Of Fact On March 22, 2000, Petitioner and White Construction Company, Inc., were charged by a twelve-count criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. Petitioner's indictment arose out of certain work he performed after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages and to testify regarding those matters in depositions and, if necessary, at trial. On August 30, 2000, Petitioner entered a plea agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Petitioner entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida, an amount equaling the fees that Petitioner was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One through Six and Nine through Twelve against Petitioner, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Petitioner "admits the facts of the charge." Counts Seven and Eight of the indictment charged Petitioner with two counts of Grand Theft, in the first degree, and both counts provided in relevant part the following: WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use, or endeavor to obtain or use U.S. Currency or other property with an equivalent value, to-wit: "delinquency days," with a value of $100,000 or more, the property of another, to-wit: Florida Department of Transportation, hereinafter: FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or a benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false or fraudulent claim(s) or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. . . . Count Seven related to Project No. 36210-3439 on Interstate 75 in Marion County, Florida, and to activities which allegedly occurred between January 8, 1996, and January 30, 1998. Count Eight related to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 in Marion County, Florida, and relates to activities which allegedly occurred between April 15, 1996, and January 30, 1998. At the hearing in this matter, Petitioner testified that he prepared damage and extension of time claims, based on information that was provided to him by the attorneys for White Construction Company. Petitioner testified that he did plead guilty to Counts Seven and Eight, which involved instances of billing the Florida Department of Transportation ("FDOT") for the same equipment at different locations on the same day. It is undisputed that first degree grand theft, pursuant to Subsection 812.014(2)(a)1., Florida Statutes (2000), in the context of doing business with a state agency, constitutes a "public entity crime" as defined by Subsection 287.133(1)(g), Florida Statutes. Petitioner did not notify the Department that he had been convicted of a public entity crime within 30 days of his conviction, as required by Subsection 287.133(3)(b), Florida Statutes (2000). Petitioner testified that, at the time of the plea, he was unaware of this statutory requirement. Petitioner was represented by counsel in the criminal proceedings, and testified that his lawyer did not mention Section 287.133, Florida Statutes (2000), in their discussions. Petitioner further testified that the statewide prosecutor did not mention the public entity crimes statute during plea negotiations. Section 287.133, Florida Statutes (2000), is not mentioned in the plea agreement. Petitioner further contends that the fact that adjudication was withheld as a result of his plea agreement establishes that he was never "convicted" of a public entity crime. Subsection 287.133(1)(b), Florida Statutes (2000), defines "conviction" as "a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere." (emphasis added) Petitioner's contention that he was not "convicted" is therefore without merit. However, Petitioner's belief that he had not been convicted of a crime is credited. Even if he had been aware of the requirements of Section 287.133, Florida Statutes (2000), Petitioner in all good faith would not have believed that he was under any obligation to report his conviction. In addition to requiring a person convicted of a public entity crime to inform the Department within 30 days of his conviction, Subsection 287.133(3)(b), Florida Statutes (2000), requires any public entity which receives information that a person has been convicted of a public entity crime to transmit that information to the Department in writing within 10 days. Subsection 287.133(1)(f), Florida Statutes (2000), defines "public entity" as "the State of Florida, any of its departments or agencies, or any political subdivision." The Office of Statewide Prosecution, which was the signatory party to Petitioner's plea agreement, never informed the Department of Petitioner's conviction. In 2002, the Florida Engineers Management Corporation on behalf of the Board of Professional Engineers issued a complaint against Petitioner, seeking to discipline his license as a professional engineer because of the acts alleged in the indictment and the crimes to which Petitioner pled guilty. Petitioner contested the proposed discipline and the matter went to a full evidentiary hearing before a judge of the Division of Administrative Hearings. See Florida Engineers Management Corporation v. Cooper, Case No. 02-3167PL (DOAH January 6, 2003). Neither the Florida Engineers Management Corporation nor the Board of Professional Engineers informed the Department that Petitioner had been convicted of a public entity crime. Petitioner presented documentary evidence indicating that Michael K. Bowen, an FDOT employee, filed the complaint that led to the investigation that culminated in Case No. 02-3167PL. The complaint was filed with the Board of Professional Engineers on September 13, 2001, more than one year after Petitioner's plea agreement was entered. In the Recommended Order in Case No. 02-3167PL, the Administrative Law Judge recommended that the charges against Petitioner be dismissed, based on the conclusion that the allegations did not directly relate to the practice of engineering or the ability to practice engineering. The Agency's Final Order, dated May 15, 2003, rejected the Administrative Law Judge's conclusion and imposed a six-month license suspension and a fine of $1,000.00 on Petitioner. On June 16, 2003, Petitioner filed a notice of appeal with the First District Court of Appeal. Petitioner and the Board of Professional Engineers settled the appeal, and Petitioner voluntarily dismissed the case on October 23, 2003. See Cooper v. State of Florida, Board of Professional Engineers, Case No. 1D03-2542. Petitioner testified that he believed the dismissal of his appeal would mark the end of his legal problems, some three and one-half years after the filing of the indictment. By letter to Steve Rumph, the Department's inspector general, dated March 15, 2005, Cecil T. Bragg, Jr., FDOT's inspector general, reported the "criminal conviction of Luther White, Jr., William Thomas Cooper, Jr., and White Construction Company, Inc. of Chiefland, Florida." The letter notes that Petitioner entered his guilty plea to two counts of grand theft and agreed to repay FDOT $84,000 in addition to permanent debarment from doing business with or associating with any business doing work with FDOT. The letter correctly states that the plea agreement was entered on August 30, 2000. It is notable that Mr. Bragg concludes the letter by directing any questions to "Investigations Manager Michael K. Bowen." Michael K. Bowen was the same FDOT employee who filed the complaint against Petitioner with the Board of Professional Engineers on September 13, 2001. Thus, the documents in this case establish that FDOT knew of Petitioner's conviction no later than September 13, 2001,1 yet waited nearly four years before notifying the Department of Petitioner's conviction. At the hearing, no plausible explanation was offered for FDOT's failure to comply with the requirements of Subsection 287.133(3)(b), Florida Statutes (2000). In his questioning of Petitioner, the Department's counsel implied that it was merely standard practice for FDOT to wait until everyone involved in the case had been convicted before notifying the Department. Even if this implication is accepted, it does not bring FDOT's actions within the terms of the statute. The letter itself states that the individual Whites and White Construction Company entered into a plea agreement on July 7, 2004, and that FDOT's inspector general concluded all investigation in the matter on December 23, 2004. Both those dates are months before the March 15, 2005, letter from FDOT to the Department. As noted above, Subsection 287.133(3)(b), Florida Statutes (2000), required the agency to provide notice of the convictions to the Department within 10 days of receiving the information. At the hearing, Petitioner testified that he believed that FDOT intentionally dragged out these matters due to simple vindictiveness. Given the facts noted above, Petitioner's explanation is as plausible as any offered by the Department. By letter dated March 21, 2005, Mr. Rumph attempted to notify Petitioner that the Department had received information that he had been found guilty of a public entity crime and that the Department was commencing an investigation of the matter. Because the letter was sent to an old address and apparently not forwarded, Petitioner never received it. For reasons again unexplained, another year passed before the Department made any further effort to contact Petitioner. By certified letter dated April 6, 2006, the Department notified Petitioner of its intent to place him on the convicted vendor list. This letter was sent to the old address, but was forwarded to Petitioner's current address. Petitioner testified, both at this hearing and the hearing in DOAH Case No. 02-3167PL, that he was retained to provide cost evaluations and calculate cost damages based entirely on information provided to him by engineering firms hired by the attorneys for White Construction Company, as well as information provided by White Construction Company and FDOT. He made only brief visits to the job sites, was not allowed to question the calculations performed by the engineers, and had no knowledge that the information provided to him was untrue. Petitioner did not submit the claims that later proved fraudulent. Petitioner testified that he pled guilty "to make the trial go away and save me about $150,000 at that time." He did not concede that he had actually committed any crime. Petitioner's plea agreement provided that his total aggregate sentence would be ten years of probation, with the possibility of an early termination "upon proof by Defendant to the court's satisfaction that: (a) all restitution, fines, and costs have been paid; (b) Defendant has satisfied in full all other conditions of his probation; and (c) the interests of justice are best served by early termination of probation. The Defendant understands that the State will not agree to an early termination of probation any sooner than one-half of his probationary period." At the hearing, Petitioner testified that the order terminating his probation was entered on February 10, 2006, more than four years early. The early termination of probation leads to the reasonable inference that Petitioner complied with all the terms of his plea agreement, including the following: Defendant agrees, when directed by the State, to appear and testify truthfully and fully and to provide information truthfully and fully at all interviews, hearings, depositions, and trials involving the above- captioned case and any related investigations. Defendant agrees to provide all interview statements and testimony in all depositions, hearings and trials voluntarily. . . . Petitioner has performed no work for White Construction Company or any of its principals since March 2000. Petitioner has performed no work for any state agency since March 2000. On November 8, 2000, the Federal Highway Administration suspended Petitioner from participating in federally funded projects, based on the March 23, 2000, indictment. The suspension was imposed for the duration of the criminal proceedings. By letter dated April 11, 2005, the Federal Highway Administration notified Petitioner that his suspension had been terminated, due to the conclusion of the criminal proceedings.
The Issue The basic issues in this case are whether Petitioner, Michael Addicott, is entitled to recover attorney’s fees and costs from Complainant/Respondent, Robert Nieman, as provided in Section 112.317(8) Florida Statutes, and, if so, the amount of such attorney's fees and costs.
Findings Of Fact Nieman's ethics complaints against Addicott On or about June 14, 2002, Robert Nieman ("Nieman") filed a complaint with the Florida Commission on Ethics ("Ethics Commission") against Michael Addicott ("Addicott"). At that time Nieman was a police officer of the Town of Golden Beach who was in a work status of suspended with pay, pending investigation of allegations that Nieman had engaged in some form of misconduct. At the time the subject complaint was filed, Addicott was the Mayor of the Town of Golden Beach. At all times material to this case, Addicott has been the Mayor of the Town of Golden Beach or has been a candidate for the office of Mayor. Nieman's June 14 complaint to the Ethics Commission contained four numbered paragraphs. Each numbered paragraph described a separate incident involving alleged conduct by Addicott that Nieman believed was inappropriate and that Nieman believed should be investigated by the Ethics Commission. The only one of those paragraphs that appears to be relevant and material to the issues in this case is paragraph 2, in which Nieman alleged the following: Mayor Addicott's son had a hit and run accident within the Town's jurisdiction; hitting and knocking down a concrete light pole. When the criminal accident was being investigated and the son approached about the crime, the Mayor's wife, who was a Councilperson at the time, badgered and tried to intimidate the officers (myself included. I was a sergeant at the time), raising her voice and stating that we were "picking on her son." She interfered with our investigation of the vehicle. The son later admitted to the incident and after discussions with the then Chief by Mr. and Mrs. Addicott, no further action was taken by the Golden Beach Police Department. On or about September 20, 2002, Nieman filed an amendment to his original Ethics Commission complaint against Addicott. The amendment appears to have been in response to a request by the Ethics Commission for additional information about the allegations in Nieman's June 14 complaint. The amendment to the complaint was also arranged in four separate numbered paragraphs, each providing additional information about essentially the same four events that were described in the original complaint of June 14. Two of the numbered paragraphs in the amended complaint appear to be relevant and material to the issues in this case. The primary subject matter of paragraph 1 concerns allegations that one of Addicott's sons, Aaron Addicott, received special treatment by being paid for hours when he did not report to work as a lifeguard. However, the last sentence of paragraph 1 of the amended complaint alleges the following new event not alleged in Nieman's original complaint: "The lifeguard [Addicott's son] was hired when the Mayor [Addicott] was in office." And paragraph 2 of Nieman's amended Ethics Commission complaint added the following allegations about the automobile accident episode. With regard to the auto accident, both the Mayor and the former Councilperson, his wife, used their position to have the accident ignored, Mrs. Addicott responded to the scene of the accident and Mrs. Addicott directly told the police department not to take any action and that they better let up on her son. Both the Mayor and Mrs. Addicott discussed the matter with the former Police Chief and told him not to interfere. The Chief was later forced to resign. As the Mayor was running for election at the time, it benefited him by his son not being arrested for leaving the scene of an accident. This is the same son who is the absentee lifeguard. Also, no reimbursement was received from the Mayor, his wife or son for the damage to the Town's property. The subject matter scope of the fee petition The Fee Petition in this case asserts, in general terms, that Nieman acted with malice by filing complaints against Addicott with knowledge that the complaints contained one or more false allegations, or with reckless disregard as to whether the complaints contained false allegations. The Fee Petition does not assert that all of the allegations in Nieman's complaints against Addicott were known to be false or were made with a reckless disregard as to whether the allegations were false. Rather, only two of the events alleged in Nieman's complaints are specified in the fee petition as being events about which Nieman knowingly made false allegations or about which Nieman made statements with a reckless disregard as to whether the allegations were false. The paragraphs of the Fee Petition which describe those two specific events appear at paragraphs 6, 7, 8, and 9 of the Fee Petition, which read as follows: One of the factual underpinnings of Nieman's Complaint is that Petitioner [Addicott] interfered with a police investigation into an automobile accident involving Aaron Addicott, Petitioner's son. Nieman admitted that he had no personal knowledge regarding this allegation, and that he was not personally involved in the investigation. Incredibly, Nieman admitted that the accident took place before Addicott was elected Mayor! *** This is certainly a reckless, if not knowing, false allegation which is material to a violation of the Florida Ethics Code. At the time of the alleged incident, Nieman was the Police Chief of the Town of Golden Beach, and certainly had access to all the necessary records to verify his allegations, and therefore knew or should have known that his allegations were false. Nieman also alleged that Mayor Addicott hired his son, Aaron Addicott, to be a Town of Golden Beach part-time lifeguard, which was in violation of the Florida Ethics Code. However, Nieman admitted that he had no personal knowledge regarding the Petitioner's involvement in the hiring of his son. *** In fact, Addicott had NO involvement in hiring his son, nor does the Golden Beach Town Charter recognize that the town Mayor need have any involvement in hiring lower level town employees, such as part-time life guards. At the time of the filing of the Complaint [with the Ethics Commission], Nieman's allegation that Petitioner hired his son was made with the knowledge that it was false, or at the very least with reckless disregard as to whether it was true, as is evidenced by Nieman's own admission that he had no personal knowledge of the alleged violation. Aaron's employment as a lifeguard Section 4.01 of Article IV of the charter of the Town of Golden Beach sets forth the powers and duties of the mayor. Subsection (b) of that section describes the "administrative duties" of the mayor, which include: The mayor shall nominate a town manager who shall be appointed by resolution of the council. The mayor, together with the town manager, shall carry out all administrative duties as provided by the charter, ordinance or resolution of the council. The mayor shall approve all written orders, administrative policies and acts of the town manager. The mayor shall upon recommendation of the manager appoint and when deemed necessary, discipline, suspend or remove town employees. (Emphasis added.) The mayor shall upon the recommendation of the manager appoint department heads to administer the government of Golden Beach. Appointments and terms of employment shall be approved by resolution of the council. Department heads shall carry out the administrative orders of the manager and the mayor and may be disciplined, suspended or removed by the mayor as may be recommended from time to time by the manager. A department head may appeal the decision of the mayor to the personnel board in the same manner as an employee. Prior to the date on which Addicott became mayor of the Town of Golden Beach, two of his sons (Benjamin and Aaron) sometimes worked for the Town in the capacity of "fill-in" lifeguards. During that same time period, a number of other people, most of whom had regular jobs as lifeguards in nearby communities, would also work for the Town of Golden Beach in the capacity of "fill-in" lifeguards. Although all of the people who worked for the Town as "fill-in" lifeguards were paid for the time they worked, none of those people were regular employees of the Town with regular scheduled work hours. Rather, all of the people who worked as "fill-in" lifeguards worked on an "as needed" basis. At some time in March of 1999, shortly after Addicott became the mayor of the Town, Aaron Addicott, was placed on the Town payroll in some sort of regular weekend part-time lifeguard position, in which his work as a lifeguard was primarily on Saturday and Sunday. This was a change in the terms and conditions under which Aaron Addicott performed lifeguard services for the Town. The specific nature of the change in March of 1999 is not contained in the record of this case, but it appears that following that change, Aaron Addicott was, essentially, the Town's weekend lifeguard, and another lifeguard worked the other five days of the week. Following the change in Aaron Addicott's terms and conditions of employment in March of 1999, Aaron Addicott's work as a lifeguard continued to be on Saturday and Sunday, with the exception of occasional days when he filled-in for the regular lifeguard when the regular lifeguard was unable to work. On or about August 26, 1999, at a time when Michael Addicott was serving as mayor of the Town of Golden Beach, an interoffice memo reading as follows was sent to him by Rosemary Wascura, who was then the Interim Town Manager: To: Mayor Michael Addicott From: Rosemary J. Wascura, Interim Town Manager Date: August 26, 1999 Re: Appointment of Lifeguards 102-99 Following our recent conversation regarding the appointment of Lifeguards, please see below the following recommendation: That effective September 1, 1999 John Fialowsky be hired as the Town's full-time Lifeguard. Compensation is $13.00 per hour and his hours are Monday and Tuesday 7:00 am. - 7:00 pm., and Wednesday, Thursday and Friday 7:00 am. - 2:00 pm. That effective September 1, 1999 Aaron Addicott be hired as the Town's part-time Lifeguard. Compensation is $9.25 per hour and his hours are Saturday and Sunday 7:00 am. - 7:00 pm., and Wednesday, Thursday and Friday 2:00 pm. - 7:00 pm. [_] APPROVED [_] NOT APPROVED Michael Addicott Mayor Mayor Addicott placed a check mark in the "approved" box and then signed the interoffice memo quoted above and returned it to Ms. Wascura on or before the effective date mentioned in the memo. By approving and signing the recommendation, Mayor Addicott hired his son as "the Town's part-time Lifeguard," which was a new position of employment that had not previously existed at the Town of Golden Beach. Notwithstanding the job title of "part-time lifeguard," the position Aaron Addicott was hired to fill in August of 1999 was a full-time position of employment in which he was scheduled to work a total of five days per week for a total of 39 hours per week. In both March of 1999 and in August of 1999, the effective hiring authority was vested in the mayor of the Town of Golden Beach. Such being the case, the final decision to hire Aaron Addicott on both of the occasions in 1999 described above was made by Mayor Addicott. Aaron's motor vehicle accident Very shortly before the election at which Addicott was elected mayor of the Town of Golden Beach, Aaron Addicott was involved in a one-vehicle motor vehicle accident in which the vehicle driven by Aaron Addicott struck a light pole and knocked the light pole down. The location of the accident was a block or less from the Addicott home. Shortly after the accident, Aaron Addicott left the scene of the accident and drove the short distance to the Addicott home. Nieman saw the accident happen, and shortly thereafter, police officers of the Town of Golden Beach, including Sergeant Nieman, arrived at the Addicott home and attempted to conduct an investigation of the accident that Aaron Addicott had just been involved in. Mrs. Addicott, the wife of the soon-to-be mayor and the mother of Aaron, refused to cooperate with the efforts of the police officers to investigate the accident and ordered the police officers to leave the premises of the Addicott home. Mrs. Addicott also chastised the police officers for picking on her son and demanded that they leave her son alone. Although Aaron Addicott at first denied involvement in the motor vehicle accident, a few days after the accident he went to the police station in the Town of Golden Beach and acknowledged his involvement in the accident. Aaron Addicott was never charged with any civil or criminal violation arising from the accident or from his act of leaving the scene of the accident. Another police officer told Nieman that Mr. and Mrs. Addicott (Aaron's parents) had met with the Chief of Police of the Town of Golden Beach shortly after the accident. Nieman does not appear to have conducted any further inquiry to confirm the information that Mr. and Mrs. Addicott had met with the Chief. Nieman believed that Aaron should at least have been charged with the violation of leaving the scene of an accident. When no charges were forthcoming, Nieman formed the opinion that Mr. and Mrs. Addicott, during the meeting he believed they had with the Chief, had "used their position[s] to have the accident ignored" and had told the Chief "not to interfere." The Town of Golden Beach did not receive any reimbursement for the damage to the light pole caused by Aaron's motor vehicle accident from Aaron Addicott or from either of Aaron's parents.1 From time to time when Aaron Addicott was scheduled to be working as a Town lifeguard, he would be absent from work and the town manager would receive complaints that Aaron was not working when he should be working. This is the same Aaron Addicott who was involved in the motor vehicle accident described above. The actual knowledge issue With regard to the factual allegations at issue here, at the time of making those allegations Nieman did not have actual knowledge that any of those allegations were false.2 The reckless disregard issues With regard to the factual allegations at issue here, at the time of making those allegations Nieman did not make any of the subject allegations with a "reckless disregard" as to whether they were true or false. Quite to the contrary, Nieman did not at any time entertain any "serious doubts as to the truth" of his allegations. Similarly, Nieman did not at any time have any "high degree of awareness" of the "probable falsity" of the subject allegations.3 Attorney's fees and costs The real party in interest; i.e., the entity that will be the beneficiary of any award of attorney's fees and costs in this proceeding, is the Town of Golden Beach. That is because it is the Town that retained and agree to pay for legal representation of Mayor Addicott in both the defense of the underlying Ethics Commission complaint and in the prosecution of this fee petition. The Town retained the law offices of Stuart R. Michelson. As of June 17, 2004, the date on which the final hearing in this case began, Mr. Michelson's law offices had submitted three bills to the Town. Those bills cover costs and attorney's fees incurred from July 2, 2002, through June 4, 2004. Those bills itemize a total of 59.70 hours of attorney's services, for which the Town was billed $10,650.00. The three bills discussed immediately above also itemize a total of 5.60 hours of law clerk services, for which the Town was billed $420.00. The three bills discussed immediately above also itemize a total of $1,402.54 of costs. The types of costs itemized include such things as in-house photocopy costs, Fed-Ex and similar express mail charges, facsimile charges, postage charges, long distance telephone charges, and some miscellaneous travel-related charges such as car rental, parking, air fare, and gasoline. The itemized costs also include at least one "miscellaneous services charges/fee" in the amount of $12.50 and one in-house photocopying charge in the amount of $447.50. With regard to the three bills discussed above, there was no testimony under oath that any of the services itemized in the bills had actually been performed. There was no testimony under oath that the bills were accurate. There was no testimony under oath explaining any details about the nature of the services performed or explaining why, or whether, the services were reasonable, necessary, or appropriate. There was no testimony under oath stating whether all of the services and costs itemized in the three subject bills relate only to the fee petition and the underlying ethics complaint in this proceeding, or whether some of the itemized services and costs relate to other similar litigation matters in which the Town has a beneficial interest that were pending at the same time.4 An expert witness was retained to express legal opinions on two basic issues: (1) an opinion as to the issue of whether Addicott is entitled to an award of attorney's fees and costs against Nieman pursuant to Section 112.317(8), Florida Statutes, and, if entitled, (2) an opinion as to the reasonable amount of such an award. The Town agreed to pay the expert witness for his services in this case on an hourly basis. The agreed upon hourly rate for the services of the expert witness is either $200.00 per hour or $225.00 per hour.5 The expert witness does not know how many hours he spent preparing for and presenting his expert opinions in this case.6 The expert witness reviewed and testified about a few details of the costs itemized on the three bills discussed above, but he never clearly expressed any opinion as to whether the costs itemized on the three bills are reasonable or unreasonable.7 The expert witness testified to several expert legal opinions regarding the manner in which the present language of Section 112.317(8), Florida Statutes, should be construed, interpreted, and applied. He also opined as to the extent to which cases decided under the old language of Section 112.317(8), Florida Statutes, were useful in determining entitlement to attorney's fees and costs under the current version of Section 112.317(8), Florida Statutes.8 The expert witness also testified about how many hours it would have been reasonable for the attorneys for Addicott to have worked from June 4, 2004, through the end of the first day of the final hearing in this case, which was June 17, 2004. There is not, however, any testimony as to how many hours of attorney services were actually performed during the period from June 4 through June 17, 2004. In both the defense of the underlying ethics complaints against Addicott and in the preparation and the prosecution of the fee petition in this case, services billed at an hourly rate have been performed by three lawyers in the law firm representing Addicott; specifically, Mr. Michelson (a partner), Mrs. Michelson (a partner), and Mr. Birch (an associate attorney). Reasonable and typical hourly rates that are charged for the types of attorney services that were performed in the course of the subject cases are as follows: Mr. Michelson $200.00 per hour Mrs. Michelson $200.00 per hour Mr. Birch $135.00 per hour In both the defense of the underlying ethics complaints against Addicott and in the preparation and the prosecution of the fee petition in this case, services billed at an hourly rate also have been performed by law clerks employed by the law firm representing Addicott. A reasonable and typical hourly rate that is charged for services of a legal nature performed by law clerks in cases of this nature is $75.00 per hour.9 Following the conclusion of the administrative hearing before the Division of Administrative Hearings in this case, in the normal course of events, the attorneys representing Addicott will need to spend a number of additional hours before their work on this matter is finished. Post-hearing tasks include such matters as preparation of proposed recommended orders, preparation of exceptions to the recommended order or preparation of responses to exceptions filed by an opposing party, preparation of memorandums related to exceptions, and perhaps an appearance before the Ethics Commission to present oral argument prior to issuance of the Final Order.10
Recommendation On the basis of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Petition in this case and denying all relief sought by the fee Petitioner, Michael Addicott. DONE AND ENTERED this 4th day of November, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. 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 4th day of November, 2004.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes (2007); Chapters 120, 455, and 475, Florida Statutes (2007); and the rules promulgated pursuant thereto. Respondent is now, and was at all times material hereto, a licensed real estate associate in the State of Florida, having been issued License No. SL-3144440. On or about May 5, 2005, Respondent filed an application with Petitioner for licensure as a real estate sales associate. Pertinent to this case, Item 1 on the Background Information section of the application required that Respondent answer "Yes" or "No" (by checking the appropriate box) to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." "YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Respondent answered the question by checking the box marked "No." The application concluded with Respondent's Attest Statement before a Notary Public of the State of Florida as follows: I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. * * * I understand the types of misconduct for which disciplinary proceedings may be initiated. On October 7, 2005, Respondent passed the sales associate examination. From October 7, 2005, to November 14, 2005, her license was in inactive status. From November 14, 2005, through the date of hearing, Respondent has been licensed as an active sales associate with Perfect Gulf Properties, Inc., doing business as Century 21 Sunshine Realty. Following approval of Respondent's application and her licensure as a real estate associate, Petitioner received the results of a state and federal records search which revealed a criminal history not disclosed on Respondent's application. That records search revealed a criminal conviction in the Circuit Court, Eighteenth Judicial Circuit, Brevard County, Florida. On January 24, 1991, Respondent was convicted of robbery with a weapon, not deadly, a first-degree felony, and sentenced to three and a half years' incarceration. Respondent maintains that based on a telephone conversation with someone at the Brevard County Courthouse and the fact that she is/was a notary, registered voter, served on a jury, and is a licensed minister, that the record of her criminal activity had been expunged. This is not credible. Respondent did not initiate any action to cause her criminal record to have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, nor did she make any reasonably, prudent inquiry regarding the status of her criminal record prior to answering questions regarding same and affirming to accuracy of her application for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered adopting the foregoing Findings of Fact and Conclusions of Law, and which, for the violations found, Respondent's license be revoked and that she be charged fees in accordance with Subsection 455.227(3), Florida Statutes. DONE AND ENTERED this 15th day of July, 2008, in Tallahassee, Leon County, Florida. S 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 15th day of July, 2008.
