The Issue The issue is whether the Respondent has failed to maintain good moral character.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards Training Commission as a correctional officer on March 21, 1985, and issued Certificate No. 04-85-599-01. At the time of the events which form the basis for the Administrative Complaint, the Respondent was employed as a correctional officer at the Marion Correctional Institution, a correctional facility of the State Department of Corrections. Marion County Sheriff's Deputies, David F. Faircloth, Jr. and Art King, are veteran law enforcement officers who have received training in the detection and recognition of controlled substances, to include marijuana. Both officers have made numerous arrests for the possession of a controlled substance which they suspected was marijuana and which, upon being tested, proved to be marijuana On June 9, 1990, while on regular patrol in Marion County, Florida, Deputy David F. Faircloth, Jr. was directed to investigate an anonymous report of a male and female who had been observed fighting in a white Camaro automobile parked on U.S. Highway 27. While in that vicinity in response to that request, Officer Faircloth responded to a complaint of a disturbance at 1261 N.W. 56th Court, Ocala, Florida. When Deputy Faircloth arrived on the scene, he noticed a white, two-door Camaro. Deputy Faircloth determined upon investigation that the Respondent and Linda Altman, who lived at the address, had engaged in an altercation involving their respective vehicles which were both damaged and parked in the front yard. Both the Respondent and Ms. Altman had been drinking and both were upset. Deputy King was dispatched as a backup and arrived at the Altman residence. Upon his arrival, Deputy King was briefed by Deputy Faircloth, who advised him that both the Respondent and Ms. Altman had been drinking, both were angry with one another, both had engaged in some altercation involving their vehicles which had caused damage to both vehicles, and both were correctional officers. Pursuant to their standard operating procedure, the deputies separated and interviewed separately the Respondent and Ms. Altman. Deputy King talked to the Respondent and Deputy Faircloth talked to Ms. Altman. Deputies Faircloth and King determined that the white Camaro parked at the location belonged to the Respondent. Deputy King stated that he intended to permit the Respondent to leave the scene; however, he was concerned that the Respondent, being a corrections officer, might have a weapon in his vehicle and return to cause more trouble. This testimony is logically inconsistent because if the Respondent had a gun and was released, he could retrieve the gun and return. However, it was on this basis Deputy King asked the Respondent if he could search his vehicle. The Respondent consented to the search of his vehicle by Deputy King. Officer King began his search of the vehicle in the front driver's seat. As Deputy King was leaning into the vehicle, conducting his search, the Respondent leaned over his back into the rear of the automobile and removed a shaving kit from the back seat. The Respondent's unanticipated action startled deputy King, who turned and inquired of the Respondent what he was doing. The Respondent, through words and gestures, indicated to Deputy King that he did not want him to search the shaving kit. The Respondent told Deputy King that there were no guns in the kit; but when Deputy King persisted in being permitted to search the kit, the Respondent indicated that he would open the kit and show Deputy King its contents. When the Respondent unzipped and opened the kit, Deputy King observed at the top of the kit a plastic bag containing dried vegetable matter which Deputy King thought to be marijuana. Deputy King seized as contraband the contents of the plastic bag, and upon administration of a field test for controlled substances, he determined that the substance was marijuana. Deputy King arrested the Respondent, and conducted a search of the Respondent's vehicle where he found a portion of a partially-smoked marijuana cigarette and a device which appeared to be some type of smoking device. The bag of marijuana which Deputy King seized from the Respondent's shaving kit was sent to the Florida Department of Law Enforcement crime laboratory for analysis. The crime laboratory concluded that the plastic bag contained 4.7 grams of cannabis or marijuana. One cannot determine from the report whether the burnt cigarette was tested and determined to be marijuana. Although Deputy King filed charges against the Respondent, the charges were later dismissed by the prosecutor for reasons unknown to Deputies King and Faircloth.
The Issue The issue is whether Petitioners, Judith C. Cleary and Charles B. Houck (Petitioners or Ms. Cleary and Mr. Houck), are entitled to an award of attorney's fees against Respondent, Department of Financial Services (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).1/
Findings Of Fact The underlying proceedings were initiated by Respondent on February 22, 2010, by the issuance of substantively identical Administrative Complaints against Petitioners. Petitioners timely requested administrative hearings to contest the charges against them, and the cases were forwarded to the Division of Administrative Hearings where they were consolidated for hearing. Count 1 of each Administrative Complaint charged Petitioners with willfully misrepresenting and or omitting material information in order to induce Mr. and Mrs. Nagle to cash in another annuity they held in order to purchase an annuity sold by Petitioners. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when in fact there would be a 15 percent surrender charge; falsely representing that the annuity would earn the Nagles ten to 20 percent returns; and (3) misrepresenting the suitability of the Nagles to purchase the annuity by misrepresenting the Nagles' net worth and by misrepresenting the Nagles' investment objective as long-term, in a form Petitioners submitted to the insurance company issuing the annuity. Count 2 of each Administrative Complaint charged Petitioners with similar conduct in order to induce the Nagles' son, Robert, to purchase an annuity. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when, in fact, there would be a 15 percent surrender charge; and falsely representing that the annuity would earn Robert Nagle ten to 20 percent annual returns. Petitioners do not dispute that if the allegations charged in the Administrative Complaint had been proven by clear and convincing evidence, then Respondent would have established the statutory violations alleged as the predicate for taking disciplinary action against Petitioners' insurance agent licenses. Petitioners also acknowledge that Respondent initiated the disciplinary actions against them on the basis of two complaint letters received by Mrs. Phyllis Nagle, the attestation of Mrs. Nagle to the material allegations in an affidavit, and a corroborating complaint letter by Mrs. Nagle's son, Robert Nagle. After a full evidentiary hearing, a Recommended Order issued in the underlying disciplinary actions determined that the more credible evidence failed to establish the allegations in the Administrative Complaints. In particular, the undersigned weighed the credibility of testimony by Robert Nagle and by Petitioners at the final hearing, as well as deposition testimony by both Mr. and Mrs. Nagle. The question posed in this case, however, is not whether credibility judgments caused the Department to ultimately not prevail in its charges against Petitioners. Instead, the question here is whether Respondent had a reasonable basis, in law and in fact, at the time it initiated the underlying disciplinary actions. In this regard, Petitioners contend that the Department's investigation file contained documents from the insurance company issuing the annuities that contradict the allegations in the Administrative Complaints. Petitioners point to three documents in particular. The first document was a customer survey response submitted by Mrs. Nagle to the insurance company after she purchased the annuity from Petitioners. Her completion of the survey form indicated that she knew that "[s]urrender charges are imposed on premature full withdrawal"; that she considered the "annuity to be a long-term investment"; that she did "not intend to use these funds to meet current expenses"; and that Petitioners reviewed her "financial status . . . and other pertinent information to determine whether this annuity purchase" was suitable to her. The other document claimed to contradict the allegations in the Administrative Complaints was the Nagles' annual statement showing a yield of 5.66 percent, which was different than the 2.6 percent yield claimed by Mrs. Nagle in her complaint letters or affidavit. Finally, Petitioners point to statements of understanding signed by the Nagles, showing the surrender charges that would be imposed for early withdrawals. None of these documents conclusively refute the charges in the Administrative Complaint. For example, with respect to surrender charges, the Nagles' complaints assert that Petitioners represented that there would be no surrender charges for a withdrawal after one year. Mrs. Nagle's survey form only acknowledged that there would be surrender charges for "premature" withdrawal. It certainly would have been possible to reconcile these two concepts in that Mrs. Nagle may have been thinking that "premature" withdrawal, as used in the survey form, was a withdrawal in less than one year. The response in the survey form to the "surrender charge" question does not conclusively contradict Mrs. Nagle's complaint and affidavit, nor does it conclusively contradict the allegations in the Administrative Complaint. Similarly, the responses in the survey form about suitability do not conclusively contradict the allegations in the Administrative Complaint. The annual statement likewise does not conclusively contradict the allegations in the Administrative Complaint, even though the yield shown is somewhat different from the yield Mrs. Nagle referred to in her complaint. Whether the yield was actually 2.6 percent or 5.66 percent, the material allegations in the Administrative Complaint were that Petitioners misrepresented that the yield would be 10 to 20 percent per year. These allegations and the complaints on which they were based, were not so plainly lacking in credibility that no reasonable agency would have proceeded with charges. Finally, the signed statements of understanding showing that surrender charges would be imposed for early withdrawals do not contradict the Nagles' complaints or the allegations in the Administrative Complaint. Although the undersigned ultimately found against the credibility of the Nagles' complaints, those complaints were that Petitioners made oral representations assuring the Nagles that there would be no surrender charges after one year, even though the policy forms themselves said otherwise. The ultimate lack of credibility of the complaining witnesses' testimony was not so clear that no reasonable agency would have prosecuted the claims. In short, Respondent had a reasonable basis in law and in fact, following a reasonable investigation, to make the allegations and to charge the statutory violations it did in the Administrative Complaints. The documentation gathered in the investigation did not conclusively contradict the factual allegations, and the credibility of the complainants was not so obviously lacking that no reasonable agency would have made the allegations in the Administrative Complaints. And it is beyond dispute that if those factual allegations had been proven, the charged statutory violations would have been established. Thus, it cannot be said that Respondent's action in initiating the disciplinary proceedings against Petitioners was unreasonable governmental action.
The Issue Whether Petitioner's application for certification as a certified nursing assistant (CNA) should be approved or denied.
Findings Of Fact On or about October 15, 2013, Ms. Warren submitted to Respondent an application for certification as a CNA. On or about August 15, 2014, Respondent informed Ms. Warren that her Application was being denied for two reasons. The first reason offered for denial is that Ms. Warren violated sections 464.018(1)(a) and 456.072(1)(h), Florida Statutes (2014),1/ by checking the "no" box, instead of the "yes" box, when asked about her criminal history on the Application. The second reason offered for denial is that Ms. Warren is not eligible for licensure because she did not pass the criminal background screening required by section 400.215, Florida Statutes.2/ Criminal Background Screening On March 5, 2012, Ms. Warren entered a plea of nolo contendere to a single count of "resisting an officer with violence" in violation of section 843.01, Florida Statutes. The offense occurred during calendar year 2010. Section 843.01 provides, in part, that any person found to be in violation of this section "is guilty of a felony of the third degree." According to the Order of Probation for this charge, the court withheld adjudication, and Ms. Warren was placed on probation for a period of 30 days. On April 4, 2012, the Florida Department of Corrections sent Ms. Warren a notice of "Termination of Supervision" and noted therein that "[y]ou are hereby notified that you completed your term(s) of supervision on 4/4/12 . . . and are no longer under the supervision of the Department of Corrections." Section 464.203 provides, in part, that "[t]he board shall issue a certificate to practice as a CNA to any person who demonstrates a minimum competency to read and write and successfully passes the required background screening pursuant to s. 400.215." Section 400.215 provides, in part, that "[t]he agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e)," Florida Statutes. Section 408.809(1)(e) provides, in part, that individuals, like Ms. Warren, shall be subject to a level 2 background screening pursuant to chapter 435. Section 435.04(2), Florida Statutes, provides, in part, that "security background investigations under this section must ensure that no persons subject to the provisions of this section have . . . entered a plea of nolo contendere" to "[s]ection 843.01, relating to resisting arrest with violence." The preponderance of the evidence establishes that Ms. Warren failed her background screening test as a result of her plea of nolo contendere to the offense of resisting arrest with violence. Alleged Application Misrepresentation The Notice of Intent to Deny provides, in part, as follows: This matter came before the Board of Nursing at a duly-noticed public meeting on August 8, 2014, in Orlando, Florida. The applicant has applied for certification as a certified nursing assistant by examination. The applicant entered a plea of nolo contendere to a charge of resisting an officer with violence in 2012. The application includes the following question: Have you EVER been convicted of, or entered a plea of guilty, nolo contendere or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must include all misdemeanors and felonies, even if adjudication was withheld. The applicant answered the question NO. It is undisputed that Ms. Warren checked the "no" box in response to the question. It is also undisputed that Ms. Warren should have checked the "yes" box in response to the question given that on March 5, 2012, she entered a plea of nolo contendere to the felony charge of resisting an officer with violence. By correspondence dated August 15, 2014, the Board informed Ms. Warren that it was the Board's intent to deny her Application because she did not truthfully answer the question about her criminal background. In response to the Notice of Intent to Deny, Ms. Warren, by correspondence dated August 21, 2014, informed Respondent of the following: To the State of Florida Board of Nursing, I Ashley Warren made a mistake and checked off the wrong box. I was reading so fast and I was not aware of what I checked off in the box. I had checked off the wrong question. If possible, can I do another application because I would love to become a CNA, and I really hate I made [a] mistake in checking the wrong box. One of the sections of the Application submitted by Ms. Warren is titled, "Initial Licensure - Individual." This section asks multiple questions with subparts. Question 1 of this section directs that if the applicant "responded 'no,' skip to #2." Even though Ms. Warren answered "no" to the question, she, nevertheless, proceeded to answer questions 1.a., 1.b., 1.c., and 1.d. Question 3 of this section directs that if the applicant responds "[n]o, do not answer 3.a." Even though Ms. Warren answered "no" to question 3, she, nevertheless, proceeded to answer question 3.a. The same pattern was repeated with respect to question 4 wherein Ms. Warren answered "no" and then disregarded the directive not to answer questions 4.a. and 4.b. The multiple errors made by Ms. Warren when completing the Application support her contention that she was rushing while completing the Application. During the formal hearing, Ms. Warren testified as follows: Q: Okay. Now, you were arrested again in 2010? A: Yes. * * * Q: And you were charged with resisting an officer with violence? A: Yes. * * * Q: Did they put you in jail? A: Yes. Q: And you went to court on that charge? A: Yes. Q: Okay. I'm looking at page 20 of the exhibit, your Honor. You had an order withholding adjudication; is that correct? A: Yes. Q: And you pled nolo contendere or no contest to that charge? A: Yes. Q: Were you put on probation? A: I was put on PYT. Q: All right. What is PYT? A: It's something like a probation that you complete and it will be off your record. * * * Q: Okay. Now, on the application the question concerning criminal history says "have you ever been convicted of or entered a plea of guilty, nolo contendere or no contest to a crime in any jurisdiction other than a minor traffic offense." What about that don't you understand? A: I really don't understand none of it. * * * Q: Yes. You testified earlier that in your 2010 charge you pled nolo contendere or no contest to resisting an officer with violence. You said that was correct. Is that correct? A: Yes. Q: So did you understand what a nolo contendere plea was in 2010? A: No. Q: Did your lawyer advise you to plead nolo contendere? A: Yes. Q: Did your lawyer explain to you what that kind of plea meant? A: No. Q: Did the judge explain to you what that kind of plea meant? A: Yes. Q: Once it was explained to you, you decided to plea nolo contendere? A: I didn't understand the question when I was reading over it. Formal hearing Transcript, pp. 17–21. Additionally, Ms. Warren also testified as follows: Q: In responding to the criminal history question, if you didn't understand it, why didn't you just leave it blank? A: Because I didn't know if I would have sent it off and leave it blank if I would have got my license, but, at the same time, when I had went through the probation office and everything, they told me that everything was going to be off my record, that I completed all my terms and everything because it was my first time on having adult charge. So I really didn't understand none of that. So I'm going by their word. So I'm thinking if I don't have it on my record, I completed it, I can put "no" on the answer. It's not on my record. Formal hearing Transcript, pp. 24-25. Ms. Warren's testimony that she believed it was proper to answer "no" to the criminal background question on the Application is credible. The fact that Ms. Warren made multiple mistakes on her Application, coupled with her genuine belief that the charge of resisting an officer with violence was no longer on her record, indicates that Ms. Warren acted honestly and did not intend to misrepresent her criminal history when completing her Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Board of Nursing, enter a final order denying Petitioner, Ashley Q. Warren's, Application for certification as a CNA due to her failure to pass the level 2 background screening. DONE AND ENTERED this 17th day of February, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2015.
The Issue The issue presented for decision herein is whether or not Respondent, Hazel Marie Bowling, is qualified to hold a Certificate as a law enforcement officer in Florida.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, stipulation of facts, and the entire record compiled herein, hereby make the following relevant factual findings. Respondent, Hazel Marie Bowling, was certified by the Criminal Justice Standards and Training Commission on July 3, 1979, and was issued Certificate Number 02-23702 as a law enforcement officer. On approximately December 17, 1981, Respondent was adjudicated guilty of the offense of filing a false report to law enforcement authorities, a misdemeanor involving perjury or false statement. (Stipulation of the parties) As mitigating factors, Respondent, through representative Henry C. Jones, pointed out that motions for a new trial and for an arrest of the judgment, referred to hereinabove, had been made but were "erroneously" decided, at least in the minds of Respondent and representative Jones. Respondent also points to the fact that she has been hired by the Hendry County Sheriffs" Department as a dispatcher and that to obtain that employment, she was subjected to a background check and was cleared by that agency for the dispatcher's position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent's certification as a law enforcement officer in Florida. RECOMMENDED this 7th of January, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 9th day of January, 1985.
The Issue The issue is whether Petitioner’s application for a real estate sales associate license should be granted.
Findings Of Fact Petitioner is 36 years old. He has a bachelor’s degree and a master’s degree in environmental science. He also has a Juris Doctorate degree. Petitioner was licensed to practice law in Illinois in May 2002. His license was suspended in August 2006 by the Illinois Supreme Court as a result of the October 2005 criminal offenses discussed below. See Findings 12-14. The suspension of Petitioner’s license to practice law is for a period of 18 months and “until further order of the Court.” Thus, the suspension runs through at least February 2008. Petitioner is currently working part-time at a Barnes & Nobles bookstore in Tampa. Before that, he worked as an executive recruiter for several months. Before coming to Florida, Petitioner worked as an inspection and enforcement officer for the United States Environmental Protection Agency (EPA) in Illinois, and as an attorney and manager for title insurance companies in Illinois and Colorado. Petitioner has been offered a sales associate job by the Keller Williams real estate firm in the Tampa area. The offer is contingent upon the approval of Petitioner’s license application. Petitioner has a long history of alcohol and substance abuse, which he freely acknowledged in his testimony at the final hearing. He has been using illegal substances since his high-school years.2 Petitioner has four criminal offenses in his background, each of which involved alcohol. In June 1991, Petitioner was arrested in Indiana for driving under the influence (DUI). He pled guilty to the offense and spent four days in jail. Petitioner was 20 years old and in college at the time. In February 2004, Petitioner was arrested in Colorado for DUI with a blood-alcohol level of 0.17 percent, which was more than twice the legal limit. He pled guilty to the lesser offense of “driving while ability impaired” and was sentenced to probation and community service. In July 2004, Petitioner was arrested again in Colorado for DUI. He pled guilty and was sentenced to probation and community service. In October 2005, Petitioner was arrested at a concert in Boca Raton for possession of cocaine, criminal mischief (two counts), resisting arrest with violence, and battery of a law enforcement officer (three counts). The offenses were felonies. Petitioner testified that he does not recall any of the circumstances surrounding the incident because he was “extremely intoxicated” at the time. The police report of the incident, which Petitioner does not dispute,3 states that Petitioner punched a patron at the concert, punched a police officer, kicked another police officer, spit on a paramedic, damaged handcuffs and a police car, and was in possession of 0.5 grams of cocaine. The report also indicates that Petitioner was yelling, cursing, and acting belligerently throughout the incident. In January 2006, Petitioner pled no contest to the charges, and adjudication was withheld by the court. He was sentenced to 24 months of probation and 50 hours of community service; he was required to undergo an anger management class; and he was required to successfully complete a substance abuse treatment program and undergo random drug testing. Petitioner successfully completed his probation without incident and without any positive drug tests. An Order formally terminating Petitioner's probation was entered on March 15, 2007. Petitioner’s criminal offenses were not acts of youthful indiscretion or the result of momentary lapses of judgment. All of the offenses, except for the first DUI, were committed when Petitioner was in his 30’s and working in a professional capacity. Petitioner credibly testified that he has taken steps to turn his life around. He is active in a church group in the Tampa area, and he testified that he has not had a drink of alcohol or used illegal drugs since December 31, 2005. Petitioner does not currently attend Alcoholics Anonymous (AA) meetings, although he has done so in the past. He testified that he continues to live by AA’s principles and that he has a support system in place to help him remain completely abstinent from alcohol and drugs. There is no evidence that Petitioner committed any acts of fraud or dishonest dealing in connection with his work with the EPA or the title insurance companies. In October 2006, Petitioner applied for a real estate sales associate license. He was still on probation at that time. Petitioner fully disclosed his criminal history and the suspension of his license to practice law in Illinois in his license application. Petitioner’s license application was considered by the Commission at its meeting on December 13, 2006. Petitioner appeared at the Commission meeting with his attorney and responded to questions from members of the Commission. The Commission voted at the meeting to deny Petitioner’s license application. The denial was memorialized in a Notice of Intent to Deny dated January 3, 2007. The grounds for denial listed in the Notice of Intent to Deny included Petitioner’s criminal record, as revealed in the license application; the recent nature of Petitioner’s criminal offenses; the fact that Petitioner’s criminal history “shows a pattern and practice of criminal behavior over an extended period of time”; the fact that Petitioner “has not had sufficient time free of government supervision to establish rehabilitation”; and the suspension of Petitioner’s license to practice law in Illinois.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying Petitioner’s application for a real estate sales associate license. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 8th day of May, 2007.
The Issue Whether Petitioner's application for licensure as a general lines agent should be granted.
Findings Of Fact By application dated July 12, 2002, Ms. Baskinger applied to the Department for a license as a general lines agent. On the application, Ms. Baskinger answered affirmatively to the following question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? On December 27, 2000, a one-count information was filed in the Circuit Court of the Twentieth Judicial Circuit In and For Charlotte County, State of Florida, charging Ms. Baskinger with welfare fraud in violation of Section 414.39, Florida Statutes, a third degree felony. On June 27, 2001, Ms. Baskinger entered a plea of guilty to the crime. Adjudication of guilt was withheld and Ms. Baskinger was placed on probation for a period of four years and ordered to pay restitution in the amount of $4,869.14. Ms. Baskinger was also required to perform 75 hours of community service. Ms. Baskinger made full restitution, and an Order Terminating Probation was entered on July 3, 2002. On July 12, 2002, Ms. Baskinger applied for licensure as a general lines agent. The Department denied her application for licensure by letter dated August 22, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.731(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of Teresa M. Baskinger for licensure as a general lines agent. DONE AND ENTERED this 4th day of March, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 March, 2003. COPIES FURNISHED: Teresa M. Baskinger 4461 Ewing Circle Port Charlotte, Florida 33948 Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact On or about December 14, 1988, the Department of Health and Rehabilitative Services ("DHRS") began an investigation of M.E.R.'s treatment of her aged mother, E.C. An investigation of the treatment of E.C. by M.E.R. was conducted by an investigator of DHRS during December, 1988 and January, 1989. An investigative summary was prepared by the DHRS investigator, who recommended that M.E.R.'s name be placed in the abuse registry. The investigative report was reviewed by the appropriate authorities, and M.E.R.'s name was placed in the adult abuse registry. M.E.R. was notified of her right to request expunction of her name. She requested expunction. Her request was denied, and she was advised of her right to a hearing on the denial. M.E.R. made a timely request for hearing. The matter was referred to the Division of Administrative Hearings, where the parties were directed to file a pleading stating the factual allegations upon which they relied. In response to that order, the DHRS filed a pleading alleging that: M.E.R. did not fill a prescription for Dilantin for E.C. for five days; and M.E.R. did not feed E.C. sufficient food. Review of the investigative summary, which was prepared at the conclusion of the investigation, reveals that the DHRS investigator had been told by M.E.R. that she (M.E.R.) did not have money to purchase the prescription for E.C. but had requested assistance from Catholic Social Services ("CSS"). The investigative summary reflects that the pharmacist advised the investigator that he was contacted by CSS, that CSS did take care of the bill, and that M.E.R. obtained the prescription as soon as CSS acted on her request. See the second page of investigative summary, Exhibit No. 1 to deposition. The investigator, the investigator's supervisors, and the Department's attorney knew or should have known that M.E.R. had a valid reason for not immediately filling the Dilantin prescription when they put her name in the registry and denied expunction, and when the pleading was filed asserting this was a grounds for placing her name in the registry. The DHRS failed to delete this charge although it had evidence from the first that M.E.R. had a valid reason for not having filled the prescription. The DHRS asserted that the other reason that M.E.R. was charged was the failure to feed E.C. This charge related primarily to E.C.'s weight loss. There was evidence to substantiate an allegation that E.C. had lost weight. The investigative summary reveals that the investigator knew that E.C. was getting meals on wheels; however, the records and interviews which she conducted revealed that E.C. suffered a weight loss. Only upon cross- examination at final hearing were the facts fully brought out. This charge was the only one of the two raised in the pleadings based upon substantive fact. Reasonable expenses for legal fees in this case were $15,150.00, based upon the records of the attorney's time records and the testimony of David Dunlop, an attorney practicing in northwest Florida. The record shows 90 hours of time by attorneys and 103 hours by paralegals. The rate for an attorney per hour for this type of litigation is $125.00, and $50.00 for a paralegal.
