The Issue The issues are whether Respondent violated Sections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2001), and if so, what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Respondent was employed as a certified correctional officer at the Franklin County jail in Apalachicola, Florida. She held the rank of sergeant. On the evening of May 19, 2001, Respondent was not on duty. Instead, she was driving her vehicle around Apalachicola, Florida. Patricia Carroll was a passenger in Respondent's vehicle. Ms. Carroll was employed as the Finance Director for the Franklin County Sheriff's Office. At approximately 7:45 p.m., two females in another vehicle stopped in the street to talk to Respondent. The driver of the second vehicle, H.B., was 16 years old. The passenger in the second vehicle, C.B., was 18 years old. H.B. and C.B. asked Respondent if she would purchase some alcohol for them. Respondent agreed to make the purchase, telling H.B. and C.B. to meet her at the grocery store. Respondent and H.B. drove their vehicles to a grocery store parking lot. Respondent asked H.B. and C.B. if they wanted a six-pack of beer. Responding affirmatively, H.B. and C.B. asked Respondent to buy them a six-pack of Zima. H.B. and C.B. gave Respondent money to buy the alcohol. Respondent went into the grocery store and purchased a six-pack of Zima. She exited the store and gave the alcohol to H.B. and C.B. through passenger window of H.B.'s vehicle. The two vehicles then left the parking lot. Casey Nash, an employee at the Franklin County Courthouse, was sitting in a vehicle in the grocery store parking lot when Respondent and H.B. arrived there. Ms. Nash saw Respondent give the alcohol to H.B. and C.B. Ms. Nash knew H.B. was a minor. Subsequently that evening, Ms. Nash reported her observations to a deputy sheriff. On May 21, 2001, H.B. and C.B. gave sworn written statements regarding the incident to an investigator for the Franklin County Sheriff's Office. In the statements, H.B. and C.B. stated that Respondent had purchased beer from them. On May 29, 2001, Respondent gave a sworn written statement to an investigator for the Franklin County Sheriff's Office. Respondent's statement indicated that she purchased an alcoholic beverage for Ms. Carroll at the grocery store on the evening of May 19, 2001. She did not reveal her purchase of alcohol for H.B. and C.B. Respondent was charged in a criminal case with contributing to the delinquency of a minor. She subsequently pled nolo contendere to a lesser included charge of aiding and abetting possession of alcohol by an underaged person. On June 7, 2001, the judge accepted Respondent's plea, withheld adjudication of guilt, and ordered Respondent to pay a $195 fine. On June 20, 2001, Respondent made a second sworn statement to an investigator for the Franklin County Sheriff's Office. In the second sworn statement, Petitioner admitted that she had purchased the alcohol for H.B. and C.B. on May 19, 2001, and that she had avoided revealing all the facts in her May 29, 2001, sworn statement. According to the second sworn statement, Respondent did not tell the whole truth because she "was confused and scared about what had happened." As a result of her actions, Respondent's employer demoted her, taking away the rank of sergeant and placing her on probation for six months. Respondent's employment at the Franklin County jail subsequently was terminated for reasons unrelated to this case. The record does not reveal how long Respondent has been a certified correctional officer. There is no evidence that Respondent has a prior disciplinary history. Respondent currently is working as a painter. It was apparent at the hearing that Petitioner is remorseful for her misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order revoking Respondent's certification as a correctional officer. DONE AND ENTERED this 19th day of September, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 19th day of September, 2003. COPIES FURNISHED: Erika R. Bartley 215 Martin Luther King Avenue Apalachicola, Florida 32320 Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563 James Crosby, Jr., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-6563
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent, Shirley L. Kundsen, is a real estate broker, having been issued License No. 0048550. The Respondent, Robert S. Kingsland, is a real estate broker, having been issued License No. 0047741. The Respondent, Kingsland-Henry and Associates, Inc., is a corporate real estate broker having been issued License No. 0047745. In 1972, Charles Pullen and Beverly Pullen owned Lots 84, 85, 86, 87 and 88, Kissimmee Heights Subdivision, in Osceola County, Florida. In 1972, Charles Pullen's sister, Myrtle Saulsbury, and her husband, Frank, owned lots 89, 90, 91, 133 and 134 in Kissimmee Heights Subdivision, Osceola County, Florida. Myrtle Saulsbury died on January 27, 1975, and Mr. Frank Saulsbury subsequently remarried to Mary E. Saulsbury. In 1972, the Respondent, Shirley L. Kundsen, then a salesperson for Kingsland-Henry and Associates, Inc., presented a contract to Mr. and Mrs. Pullen for the purchase of their five lots for a price of $12,500.00 At approximately the same time, the Respondent, Shirley L. Kundsen, presented a contract to the Pullens offering to purchase the lots owned by the Saulsburys. This contract was delivered to the Saulsburys by Mr. Pullen. Upon initially being presented the contract for purchase of their lots, the Pullens contend that they refused to accept the offer and asked that the purchase price be raised to $17,500.00, with no real estate commission payable by the seller. They contend that they offered any excess over that price to Shirley L. Kundsen and Kingsland-Henry and Associates, Inc., in lieu of a real estate commission. Shirley L. Kundsen subsequently crossed out the price of $12,500.00, and replaced it with the figure $17,500.00. With this change the contract was initialed by Mr. and Mrs. Pullen. The Saulsbury contract was drafted to indicate a purchase price of $17,500.00 as well. Mr. and Mrs. Pullen subsequently signed the contract, and contend that upon Shirley L. Kundsen's request, they placed the date "way over on the right hand side of the line", thereby leaving room for the later insertion of a commission percentage in the space to the left. The Saulsburys also subsequently signed their contract. At the time these contracts were executed by the Pullens and by the Saulsburys, they contend that there was no reference to any commission payable to Kingsland-Henry and Associates, Inc. The contracts with Mr. and Mrs. Pullen and with Mr. and Mrs. Saulsbury have been received in evidence as Petitioner's Exhibits 1 and 3. The language now appearing in these contracts requiring the payment of a 10 percent commission to Kingsland-Henry and Associates, Inc., was inserted after the signatures of the Sellers was placed on the contracts. This fact was established by evidence presented by a handwriting expert. The Pullens and the Saulsburys first learned of the addition of the real estate commission at the time of closing, and after learning of this addition they refused to close on the contracts. The Pullens and the Saulsburys never agreed to pay for any survey work performed for or by the prospective purchaser of the properties, and paragraph D on page 2 of the contracts obligated the buyer to bear this expense. When attempting to sell their property years later, in 1978, the Saulsburys, and subsequently the Pullens, learned that their property had been encumbered by recorded Affidavits prepared at the direction of Respondent, Robert S. Kingsland. Both Mr. and Mrs. Saulsbury's broker, and their title insurance agent, dealt directly and solely with the Respondents, Robert S. Kingsland and Kingsland-Henry and Associates, Inc., in attempting to obtain the release of the lots encumbered by these Affidavits. The Affidavits had been recorded in order to preclude sale of the lots in question to another purchaser without payment to Robert S. Kingsland for expenses incurred in having the subject properties surveyed. Robert S. Kingsland refused to release the lots encumbered by the Affidavits until he had been reimbursed for the expense of the surveys. The Saulsburys paid $1,100.00, or $220.00 per lot for their five lots, to Robert S. Kingsland. Thereupon, the property of the Saulsburys was released by Quit- Claim Deed. The Saulsburys have requested a refund of the $1,100.00 paid to Robert S. Kingsland and Kingsland-Henry and Associates, Inc., but this request has been refused. The Affidavit encumbering the property owned by the Pullens has never been released, although requests have been made by the Pullens, and the property remains encumbered to this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Shirley L. Kundsen, be found guilty of violating 475.25(1)(b), Florida Statutes; and that her license be suspended for six months. And it is further RECOMMENDED that the Respondents, Robert S. Kingsland and Kingsland-Henry and Associates, Inc., found guilty of Violation of 475.25(1)(b) and 475.25(1)(j), Florida Statutes; and that their licenses be revoked, and that an administrative fine of $1,000.00 be imposed upon these Respondents. THIS RECOMMENDED ORDER entered on this 12th day of March, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1982. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 A. Wayne Rich, Esquire Post Office Box 1911 Orlando, Florida 32802 Shirley L. Kundsen Post Office Box 1888 Kissimmee, Florida 32741
The Issue The question presented in this case is whether Petitioner is entitled to an award of costs and attorneys’ fees pursuant to Section 112.317(8), Florida Statutes, and Florida Administrative Code Rule 34-5.0291.
Findings Of Fact Robert Burgess (Burgess) was the Santa Rosa County Property Appraiser from 1984 until December 31, 2000. He continues to reside in Santa Rosa County. Leon Cooper (Cooper) is a former employee of Robert Burgess, and qualified as a candidate for the Property Appraiser of Santa Rosa County on April 12, 2004, to run against the incumbent, Greg Brown (Brown), the Petitioner in this case. Brown was elected and took office on January 1, 2001, and in 2004 was running for re-election for the first time. Burgess supported Cooper's candidacy and opposed Brown's re-election bid in 2004. On April 12, 2004, the day Cooper qualified to run, Burgess signed an ethics complaint to the Florida Commission on Ethics alleging that Brown had reinstated a religious tax exemption for the Spiritual Life and Healing Waters church on November 14, 2003, and deleted taxes assessed against said church for the tax years 2000 through 2003. Burgess alleged that Brown did this corruptly in return for the political support of the owner of the church, Ms. Lovie Grimes in the 2004 election. He further alleged that Brown also did this to garner the support of Grimes to have Cooper terminated as an employee of the Florida Department of Revenue. Burgess filed his complaint in concert with that of Hilton Kelly, who is the subject of a companion case considered at the same time as this case, but the subject of a separate order, involving alleged favors regarding another property owner. Both complaints were motivated by the desire to impugn Brown's character and the performance of his elected duties, i.e., to injure Browns reputation. The Burgess complaint was fully investigated by the Commission. The investigation revealed that, prior to Burgess' leaving office, a determination to eliminate the tax exemption for the Spiritual Life and Healing Waters Church was made. The investigation revealed that notice that the exemption was eliminated was not provided to the property owner, Grimes. The lack of proper notice occurred during Burgess' tenure in office. Taxes were assessed as a result of this action by Burgess and Brown, and after Brown came into office, Grimes was notified of the pending tax sale of tax liens against her property. Grimes protested, stating that she had not received notice of the assessment of taxes. Brown caused this matter to be investigated by a member of his staff, Chief Deputy Property Appraiser Lorenzo Law Drinkard (Drinkard). Drinkard looked into the matter and determined that notice had not been given, and visited the church where he found pews, religious materials, and a piano. Although services were not being conducted at the time he was there, Drinkard concluded that it was obviously being used as a church. Drinkard determined on November 14, 2003, that the exemption should be re-instated because it was being used as a church and the taxes assessed be eliminated because notice had not been provided. Burgess, as the former Property Appraiser, was uniquely aware of the legal necessities and requirements in granting and removing exemptions. His office failed to provide the required notice to the owner of the elimination of the exemption for property used for religious purposes. During his tenure as Property Appraiser, Burgess had no direct contact with the Spiritual Life and Healing Waters Church regarding the factual basis for removal of the religious tax exemption. Burgess did not examine the public records of his former office to determine the basis for re-instating the exemption. The record reflects that Brown did not write the Department of Revenue about Cooper improperly engaging in campaign activities on state time until February 13, 2004. Burgess knew that determination to re-instate the exemption in question was made on November 14, 2003, and he knew that Brown's letter of complaint to the Department of Revenue regarding Cooper's alleged improper campaigning was on February 13, 2004. Therefore, Brown's alleged motivation in granting the exemption as it might have related to any support for Grimes' support with the Cooper complaint is sequentially impossible. Burgess did make this complaint in concert with the complaint by Kelly for which he provided copies of the records of the Property Appraiser's office. It is clear from the timing that Burgess' motivation was to impugn Brown's reputation. Burgess lacked a factual predicate to assert that Brown's re-instating the religious exemption was done corruptly, was done to improperly influence Grimes and in return for her political support, or to garner her support for Brown's complaint against Cooper. Affidavits were presented in support of attorney fees and costs, and their reasonableness. The Proposed Recommended Order restated those amounts as 94.4 hours at a rate of $175 per hour. The total provided in the Proposed Order was $17,079.50; however, 94.4 times $175 equals $16,250. If one considers that the difference is attributable to law clerks, if one subtracts $16,250 from $17,079, the balance of $559.46, which divided by 8.1 hours for clerks, equals $69.06 per hour for law clerks, which is a reasonable rate. The costs incurred by the attorneys in defending the action and presenting this case were $5,366.56, which are reasonable.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter its final order awarding the Petitioner the amount of $17,079.50 in attorneys' fees and $5,366.56 in costs. DONE AND ENTERED this 31st day of January, 2006, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 31st day of January, 2006. COPIES FURNISHED: Albert T. Gimbel, Esquire Mark Herron, Esquire Messer, Caparello & Self, P.A. 215 South Monroe Street, Suite 701 Tallahassee, Florida 32301 Joseph Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Kaye Starling, Agency Clerk Commission of Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission of Ethics 3600 Macclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue in this case is whether Respondent is guilty of sex discrimination in employment.
Findings Of Fact Petitioner was born in Puerto Rico and lived there 11 years. She speaks English fluently with a Spanish accent. Respondent is a wholesale distributor of building materials. Four- fifths of its customers are retail outlets, and the remainder are building contractors. Respondent is the largest such distributor in the Southeast and is a mid- to large- size corporation. Respondent is an employer within the meaning of Chapter 760. Answering a want ad in the newspaper, Petitioner sent David Russell, who is Respondent's controller, a resume and letter of recommendation. She had two interviews with Mr. Russell and was hired. It is unclear whether Petitioner's Puerto Rican background came up during the interview. Evidently unknown to Petitioner at the time, each of four other interviewees was offered the job and refused it before it was offered to Petitioner. Petitioner began work with Respondent on May 21, 1989, as an invoicing clerk. Her responsibilities included invoicing, copying, mailing, filing, and microfilming. Petitioner began work at an hourly rate of $5.50, which was raised after the completion of a 90-day probationary period to $6.00. After one year, she received a raise to $6.50 per hour, which remained her hourly rate through her date of termination. The raise resulted from the favorable recommendation of Mr. Russell to the president of Respondent. Mr. Russell earlier gave Petitioner preferential treatment when he recommended to the president that Respondent lend her over $1000 for surgery. Normal company policies did not authorize such loans to new employees, which Petitioner was at the time. The loan was made and later repaid. An important part of Petitioner's duties was to learn how to operate a Burroughs L-9000, which is a dedicated, automated ledger machine. The L-9000 dates back to the early days of office automation. Invoices are run through the L-9000, which performs simple mathematical functions to extend total costs based on number of units and price per unit, total costs per invoice, and total invoiced costs per day and per month. Inputting data into the L-9000 is a time-consuming process. Corrections take even more time, as each incorrect entry has to be deleted and the correct entry added. The machine has other problems, such as the loss of data during power outages. When Petitioner joined Respondent, she knew nothing about the L-9000. At the time, Shirley Rehrig, who had been employed by Respondent since October, 1985, was operating the machine. Ms. Rehrig had joined the company as an invoice operator on the L-9000 and was, by May, 1989, supervisor of the Invoicing Department. The Invoicing Department works closely with the Pricing Department, which are both part of the Accounting Department. At the time, employees in the Pricing Department manually took prices for invoiced items from books and entered them in handwriting on invoices. The process was prone to error through mistranscriptions of quantity, price, or cost. Pricing errors were only one source of invoicing errors. Additional errors could arise in invoicing, such as by misreading the handwritten information provided by the Pricing Department or misentering the data. In May, 1989, there were two persons working in the Pricing Department and, counting Petitioner, two persons working in the Invoicing Department. Speed and accuracy were important characteristics for the L-9000 operator. Petitioner's early experience with the machine was frustrating for her, Ms. Rehrig, and Mr. Russell, who was in charge of the Accounting Department. Despite repeated demands from Ms. Rehrig and Mr. Russell that she work more slowly, Petitioner continually tried to operate the machine as fast as Ms. Rehrig could operate it. The result was that Petitioner's error rate was unacceptably high and thus her processing of invoices was relatively slow. Ms. Rehrig became very upset with Petitioner and several times complained about her to Mr. Russell. Perhaps recalling the difficulty he had had filling the position, Mr. Russell tried to calm Ms. Rehrig and continually counselled Petitioner to work more slowly. Mr. Russell is a mild-mannered man, who showed great patience with his employees. He tolerated a longtime employee in the Pricing Department who, partly due to poor health, was often volatile and one time threw invoices at Ms. Rehrig. Petitioner gradually began to gain competence with the L-9000. However, she was unable to erase completely the perception of her coworkers, but not Mr. Russell, that she was the source of more invoicing errors than for which she was in fact responsible. Petitioner's high error rate gave her one advantage, though. She knew how to correct errors, which were inevitable in the invoicing process, especially given the peculiarities of the L-9000. In July, 1990, Respondent hired Alice Sweet to work in the Invoicing Department. Petitioner trained Ms. Sweet in the use of the L-9000, and soon Petitioner and Ms. Sweet were alternating on the machine. Ms. Sweet was a very good worker who was able to concentrate on her work better than Petitioner could. However, she was more timid than Petitioner in trying to fix the mistakes that she did make and often required the assistance of Petitioner or Ms. Rehrig in making the corrections. When Ms. Sweet was hired, Ms. Rehrig was given a chance to learn pricing, while still supervising invoicing. The division between the Invoicing and Pricing Departments, which are really subdepartments, is not as clear as the line between Accounting and other true departments. When Ms. Rehrig told Mr. Russell in the summer of 1991 that she would be quitting, he asked her if Petitioner or Ms. Sweet should take Ms. Rehrig's position in pricing. Ms. Rehrig recommended Ms. Sweet because she was more focused and methodical than Petitioner, but also because Petitioner could handle the L-9000 on her own and Ms. Sweet could not. Mr. Russell made the changes that Ms. Rehrig had recommended after she left the company in November, 1991. Ms. Rehrig was not contacted subsequently about problems with the L-9000 as long as Petitioner remained with the company. In October, 1991, Felicia Jones, who is an African- American, was hired by Respondent through Kelly Temporary Services. Ms. Jones was assigned to the Invoicing Department where she reviewed invoices and Petitioner's output from the L-9000. After Ms. Rehrig's departure, Petitioner alone operated the L-9000. Although improved from her early days on the machine, Petitioner continued to make errors on the L-9000, and Mr. Russell continued to ask that she improve her performance on the machine. During this time, Respondent was undergoing difficult financial times. The depression in the construction industry sharply impacted Respondent's business. Total sales were down about 1 percent between fiscal years-end June 30, 1989, and June 30, 1990. Sales plummeted 14.4 percent between fiscal years- end 1990 and 1991, and slid 4.4 percent between fiscal years-end 1991 and 1992. Although still showing earnings, profits between fiscal years-end 1990 and 1991 were almost halved, and profits between fiscal years-end 1991 and 1992 slipped another 18 percent. By sometime in the first half of 1989, Respondent had been adopted cost-containment strategies to deal with poor market conditions. Examples of Respondent's efforts included controlling the purchasing of supplies, requiring bids on goods and services, and using inventory-control mechanisms. These strategies proved ineffective in the face of seriously deteriorating market conditions in 1991. Finally, Respondent turned to reductions in force. When voluntary attrition proved insufficient, Respondent implemented layoffs. Layoffs throughout the company in each of its offices throughout the state reduced employment from 131 persons to 94 persons from January, 1989, to December, 1992. The impact in the Accounting Department was a reduction in the average workforce of 12 persons from January, 1989, through January, 1992, to 10 persons in January, 1992, and 8 persons in December, 1992. After Ms. Rehrig's departure, the president of Respondent instructed Mr. Russell to identify an employee to layoff should the president decide to make layoffs. The most likely candidates were Petitioner and Ms. Sweet. Petitioner decided that he would lay off Petitioner because Ms. Sweet was trained in invoicing and pricing and could run the L-9000, even though she was less able to correct errors than could Petitioner. Mr. Russell decided not to lay off Ms. Jones, who remained employed with Respondent through Kelly Temporary Services. Even though Respondent paid Kelly Temporary Services $7.50 per hour for Ms. Jones, Respondent owed no benefits for her. Estimating that benefits cost $1.91 per hour, Mr. Russell figured that Petitioner, who was then receiving $6.50 per hour, was costing Respondent a total of about $8.41 per hour--almost one dollar more per hour than Ms. Jones cost. The Pricing and Invoicing Departments could withstand a reduction in force. After Ms. Rehrig's departure, there had been times that Petitioner had nothing to do in invoicing. When Petitioner was terminated in April, 1992, Ms. Sweet returned to operate the L-9000 for one year. During that time, she worked exclusively in the Invoicing Department, but only about four of five days a week were required for work on the L-9000. Ms. Sweet's former duties in pricing were covered by another employee. Sometime in the second quarter of 1992, Mr. Russell discussed with Ms. Jones the possibility of her permanent employment with Respondent, rather than through Kelly Temporary Services. Because Petitioner had already filed her Charge of Discrimination, Mr. Russell decided not to pursue fulltime permanent employment with Ms. Jones until the discrimination charges were resolved. Following Petitioner's departure in April, 1992, Ms. Sweet encountered problems with the L-9000 that she could not solve. She and Mr. Russell several times contacted Ms. Rehrig, and at least once Ms. Rehrig came to the office after finishing her other work for the day to fix the problem. Mr. Russell offered her a consultation contract, which Ms. Rehrig declined. Mr. Russell and Ms. Rehrig discussed the possibility of her returning to work with Respondent, but they could not agree on acceptable conditions. Ms. Rehrig testified that, on one occasion immediately after interviewing Petitioner, Mr. Russell referred to her as a "Puerto Rican" and alluded to the excitability of Puerto Ricans. This testimony is not credited. Ms. Rehrig was displeased with Respondent for undisclosed reasons when she quit, and she became more displeased when, after being badgered by Ms. Sweet and Mr. Russell concerning the L-9000, she and Mr. Russell could not agree on adequate conditions for her reemployment with Respondent. Called as a witness by Petitioner, Ms. Rehrig initially omitted mention of her early dissatisfaction with Petitioner's work, although she admitted that she had recommended to Mr. Russell that he assign Ms. Sweet, rather than Petitioner, to the Pricing Department after Ms. Rehrig quit. The only other evidence concerning Petitioner's national origin involves Petitioner's testimony that Ms. Sweet angrily called her a "Puerto Rican" one time, that coworkers routinely assumed that Petitioner had made all errors in invoicing even when she had not, and that Mr. Russell treated her in a diffident manner. There are problems with each of these items of proof. First, Petitioner admitted that Mr. Russell did not know that Ms. Sweet had referred to Petitioner's national origin in a derogatory way. Petitioner never told Mr. Russell about this remark, nor is she aware that anyone else did. Second, the coworkers who wrongly assumed that Petitioner was responsible for invoicing errors when she was not were understandably basing their assumption on Petitioner's history of a high number of mistakes, not on her national origin. More importantly, Mr. Russell did not misperceive Petitioner's error rate. Third, Mr. Russell was not especially close with a number of employees, including but not limited to Petitioner. But he resisted Ms. Rehrig's requests to fire Petitioner, showed patience with her high error rate, and gave her one raise. Petitioner has proved a prima facie case of discrimination. She is Puerto Rican. She was generally qualified for the invoicing job. And she was replaced by Ms. Sweet, who is a white person whose national origin evidently does not place her in a protected class. However, Respondent has shown a legitimate business reason for Petitioner's layoff. Business was poor and getting worse. Petitioner's competence was marginal. Ms. Sweet, whom Ms. Rehrig herself had named over Petitioner for what appears to have been a promotion, was cross-trained and thus, for that reason alone, more useful to Respondent. And Respondent's president justifiably believed that the Invoicing and Pricing Departments could continue to operate effectively with one less employee. The quick offer of fulltime permanent employment to the less experienced Ms. Jones did not mean that she was intended to replace Petitioner. Following Petitioner's termination, Ms. Sweet worked for one year on the L-9000 before Ms. Jones, who was not even trained on the machine until August, 1992, replaced her in April, 1993. Respondent in effect gave Ms. Jones a raise when she began to operate the L-9000 by increasing the pay to Kelly Temporary Services to $8.55 per hour. However, competence in 1992 with the L-9000 was of increasingly limited utility to Respondent, which, by the time of the final hearing, had replaced the obsolete device with modern automated office equipment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on January 13, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 13, 1994 APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as unsupported by the appropriate weight of the evidence. Petitioner failed to prove that the matter of her national origin arose during the interview. 6 and 8: rejected as unsupported by the appropriate weight of the evidence. 7: adopted or adopted in substance. 9-10: adopted or adopted in substance. 11: adopted or adopted in substance except that Petitioner continued to make a high rate of mistakes on the L-9000. 12: adopted or adopted in substance, although the reasons for Ms. Rehrig's recommendations go beyond those stated in the proposed finding. 13: rejected as subordinate. 14-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. (remainder): adopted or adopted in substance. (first two sentences): adopted or adopted in substance. 18 (remainder)-20: rejected as subordinate, irrelevant, and unsupported by the appropriate weight of the evidence. 21-22: rejected as unsupported by the appropriate weight of the evidence except for positions of Respondent. 23-25: rejected as unsupported by the appropriate weight of the evidence. Subsequent events led Mr. Russell to reassess his needs and the costs of meeting these needs. However, in April 1992, he did not have the advantage of this knowledge and made in good faith the personnel decisions that he made at the time. 26: adopted or adopted in substance, but see 23-25. 27: rejected as unsupported by the appropriate weight of the evidence. 28: adopted or adopted in substance. 29: rejected as unnecessary. 30: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-16: adopted or adopted in substance. 17: rejected as subordinate and recitation of evidence except that Ms. Rehrig unhappily left her job with Booker. 18-19: adopted or adopted in substance. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Craig P. Clendinen Stearns Weaver One Tampa City Center Suite 3300 Tampa, FL 33601 Michael D. Malfitano Macfarlane Ferguson 111 E. Madison St. Suite 2300 Tampa, FL 33601
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1995) (hereinafter, "Florida Statues"), by obtaining his real estate license by means of fraud, misrepresentation, or concealment.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of real estate. Respondent is licensed as a real estate sales person pursuant to license number 0626375. Respondent was last licensed as a sales person with a non- licensed owner located at 1510 Noble Street, Longwood, Florida 32750. Respondent submitted an application for license dated April 4, 1995. Question 9 on the application asked the applicant whether or not he or she has: . . . ever been convicted of a crime, found guilty, or entered a plea of nolo contendere . . ., even if adjudication was withheld. This question applies to any violation of the laws of any municipality, county, state, or nation. . . . Respondent answered "yes" to question 9. Under the section of question 9 that requires an applicant who answers yes to explain the answer, Respondent disclosed that he had been arrested for driving under the influence and that the matter was pending. Respondent did not disclose that he had any other criminal history. On August 20, 1987, Respondent pled nolo contendere to a charge of criminal mischief. He was placed on probation for one year. On May 11, 1979, Respondent was adjudicated guilty of the charge of indecent exposure. He was sentenced to jail for 15 days, ordered to attend counseling, and placed on probation. Respondent attested to the veracity of his answers to the questions in the application, including his responses to question 9. His signature was properly notarized. Respondent's failure to disclose his prior criminal history was a reckless or careless disregard of the truth of the matters asserted in Respondent's response to question 9. Respondent knew or should have known that his failure to disclose his prior criminal history was a material misstatement of fact. Petitioner relied on Respondent's sworn responses in his application when Petitioner issued a license to Respondent on June 16, 1995. One of the purposes of question 9 is to assist Respondent in assessing an applicant's propensity for honesty, trustworthiness, and good moral character. In relevant part, Section 475.17(1)(a) requires a licensee such as Respondent to be honest, truthful, trustworthy, and of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent guilty of violating Section 475.25(1)(m), revoking Respondent's license, and imposing an administrative fine in the amount of $1,000. DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1998. COPIES FURNISHED: Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geoffrey T. Kirk, Esquire Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jeffrey H. Stewart, pro se 1510 Noble Street Longwood, Florida 32750
The Issue Should Petitioner impose discipline on Respondent's correctional certificate for alleged violations set forth in the Administrative Complaint, Case No. 17450?
Findings Of Fact Based upon the election of rights and proof identifying Respondent's employment with the Florida Department of Corrections, it is inferred that Respondent is certified as a corrections officer by Petitioner. It is perceived that Respondent, in his contest of material facts, disagrees with the allegations in paragraph two to the Administrative Complaint, as those facts might reveal a violation of statutes and rules referred to in the Administrative Complaint in its latter provisions. Respondent rented an acoustic guitar and an item referred to as a "gig-bag" from Guitar Renters in its Gainesville, Florida store. The amount of rental was $30.74 for the period November 16, 1999, through December 11, 1999. The overdue rate for the rental was $2.97 per day. The retail value of the instrument and bag was identified in the rental agreement as $345.00. The rental contract was executed by Respondent agreeing to those terms. The contract made clear that the arrangement was for rental only and not for sale. There was a specific reminder that any rental over 10 days past due would be reported to the police department as a stolen item. Respondent did not timely return the guitar and bag consistent with the contract terms. As a consequence, the proprietors at Guitar Renters sent letters in the ordinary mail to remind Respondent that he was late in returning the items. No response was made to those letters. A certified letter was sent to Respondent reminding him of his obligation to return the equipment. Again Respondent failed to respond. Scott Tennyson, who managed the Gainesville store, telephoned Respondent about the overdue items. Respondent replied that he could not return the instrument. When asked why, Respondent indicated that he had pawned the instrument. Mr. Tennyson told Respondent that if the matter were not resolved in some fashion, namely for Respondent to go back and get the guitar from the pawnshop and bring it to the owner, then criminal charges would be filed. Consistent with that statement, a complaint was made and criminal charges were filed in the Circuit Court in and for Alachua County, Florida, Court No. 01-2000-01573-CFA, C.R. No. 007601, Division One. This case was pursuant to a sworn complaint from the Gainesville Police Department charging Respondent with grand theft. The case was subsequently nolle prosequi/no information, based upon what is referred to in that dismissal, as an appropriate administrative action deemed sufficient in lieu of prosecution. On June 25, 2001, the matter was resolved to the satisfaction of Guitar Renters when Respondent made payment in full on the items that he had rented. In effect, the items were sold by way of restitution at their stated value when the rental contract was made.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking Respondent's correctional certificate. DONE AND ENTERED this 20th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 20th day of August, 2003. COPIES FURNISHED: Kevin Dannunzio 1718 Spring Street Lake City, Florida 32025 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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 Terry G. Jewell is the sole proprietor of an unincorporated business, wherein Jewell engages in business as a real estate broker-salesman. His net worth is less than $2,000,000. In DOAH Case No. 87-2192, the Division filed an Administrative Complaint dated April 20, 1987, wherein the Division essentially alleged that Jewell was co-owner and agent for Sun Country Homes of North Florida, Inc., a corporation engaged in the business of constructing homes; that Jewell, as vice- president and agent for Sun Country Homes, entered into a contract with the Koblinskis to build their house; that Sun Country Homes received approximately $74,900.00 to build the home; that Sun Country Homes did not pay certain materialmen and contractors; and that Jewell did not pay the outstanding liens. The Division sought revocation and other penalties against Jewell's license as a real estate broker-salesman, alleging that Jewell was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction. After hearing, a Recommended Order was entered by the undersigned on September 25, 1987, recommending dismissal of the Administrative Complaint. The recommendation was based on findings that Jewell's contacts with the Koblinskis were solely as an officer, co-owner and agent for Sun Country Homes of North Florida, Inc.; that all sums paid by the Koblinskis were to Sun Country Homes and were deposited to its corporate account; that the president of Sun Country Homes mismanaged the corporate funds and did not pay some of the subcontractors on Koblinskis' home, that Jewell quit the corporation then he found out about this; that Jewell did all he could to assist the Koblinskis once he had resigned from the corporation; that the president of the corporation disappeared with the Koblinskis' money; and that Jewell did not benefit from the funds paid by the Koblinskis to Sun Country Homes of North Florida, Inc. The recommendation was based on conclusions of law that the contract was between the Koblinskis and Sun Country Homes of North Florida, Inc.; that Jewell had no intent to deceive the Koblinskis; that it is well settled law that disciplinary action cannot be taken against a real estate broker's license for conduct not connected with the licensee's business as a broker; and that Jewell did not violate Section 475.25(1)(b), Florida Statutes, as alleged. The Final Order of the Division, through the Florida Real Estate Commission, adopted the Findings of Fact, Conclusions of Law and Recommendation in the Recommended Order and dismissed the Administrative Complaint. The affidavit which initiated this action was filed on February 5, 1988, and was later supplemented by the Petition for Small Business Party's Attorney's Fees and Costs. The affidavit, which was an application for an award of fees and costs, was timely, having been filed within 60 days after the date on which Jewell became a prevailing small business party. In this case, the 60 days is calculated from the date on the Certificate of Service showing mailing of the Final Order to the parties. See Section 57.111(4)(b)2, Florida Statutes. According to the affidavit of William C. Andrews, and the statements of account attached thereto, Jewell incurred legal fees of $3,252.50 and costs of $957.21. These fees and costs are found to be reasonable since the Division has not filed a counter affidavit or response questioning their reasonableness. According to the Petition, the disciplinary action in DOAH Case No. 87- 2192 was substantially unjustified at the time it was initiated: because the Administrative Complaint was an attempted disciplinary action taken against Petitioner's real estate broker-salesman's license for conduct not connected with the licensee's business as a broker-salesman, and there was a complete absence of evidence to show any wrong doing on the part of the Petitioner.
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.
