The Issue The issues in this case are whether the Respondent has violated Sections 491.009(2)(h) and (u), Florida Statutes, by failing to timely comply with a prior Board Order and, if so, the determination of an appropriate penalty.
Findings Of Fact The Respondent, David Pesek, is a licensed Marriage and Family Therapist in the State of Florida, and has been so licensed at all times relevant and material to this proceeding. His license number is NT 192. On September 7, 1988, the Petitioner filed an earlier Administrative Complaint against the Respondent in DPR Case No. 0055334. On February 14, 1990, the Respondent signed a stipulation providing for a stipulated disposition of DPR Case No. 0055334. The Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling approved the stipulated disposition at a meeting on April 27, 1990, and on Nay 23, 1990, a Final Order was rendered in DPR Case No. 0055334. The Final Order in DPR Case No. 0055334 included the following pertinent language: Respondent shall pay an administrative fine of one thousand dollars ($1,000) to the Executive Director of the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling within sixty (60) days of the filing of the Final Order herein. Respondent shall be placed on probation for one (1) year, with the condition of probation that Respondent's billing records and documents be reviewed by a consulting practitioner. The one (1) year probation shall begin to run when consulting practitioner is approved. Such consultant shall submit a written report to the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling six (6) months following the rendition of the Final Order. The consulting practitioner shall be selected by Respondent, subject to approval of the Board. Pursuant to the terms of the Final Order in DPR Case No. 0055334, the deadline for paying the administrative fine was July 23, 1990. On November 27, 1990, the Department of Professional Regulation sent a letter to the Respondent reminding him that he had not complied with the Final Order in DPR Case No. 0055334. By letter dated December 6, 1990, and received on December 13, 1990, the Respondent transmitted his check in the amount of one thousand dollars in payment of the fine. 2/ The fine was paid approximately four and a half months after it was due. By letter dated January 23, 1991, the Respondent advised the Chairman of the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling of the name of a consulting practitioner who was willing to perform the review and reporting functions required by the Final Order in DPR Case No. 0055334. The letter of January 23, 1991, was two months after the deadline for the consultant's report. By letter dated April 1, 1991, the Respondent was advised by staff of the Department of Professional Regulation that his choice of a consulting practitioner had been approved, that the consultant's report would be due six months from the date of the letter, and that the Respondent's one-year probation period would begin as of the date of the letter. /3
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling enter a Final Order in this case to the following effect: Concluding that the Respondent did not violate Section 491.009(2)(h), Florida Statutes, and dismissing Count I of the Administrative Complaint. Concluding that the Respondent did violate Section 491.009(2)(u), Florida Statutes, and finding him guilty of the violation charged in Count II of the Administrative Complaint. Imposing a penalty consisting of: (1) an administra- tive fine in the amount of $500.00 (Five Hundred Dollars), (2) issuance of a public reprimand, and (3) a six-month period of probation, which period shall begin on the first day following the Respondent's current probation period and shall be subject to such reasonable conditions of probation as may seem appropriate to the Board. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 7th day of January, 1992. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1992.
The Issue Whether Petitioner's application for licensure as a health insurance agent should be granted.
Findings Of Fact By application dated December 18, 2001, Visser applied to the Department for a license as a health insurance agent. On the application, Visser 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? In March 1999, a three-count information was filed in the Circuit Court of the Tenth Judicial Circuit In and For Polk County, State of Florida, charging Visser with burglary of a dwelling, a second degree felony; grand theft dwelling $100 or more, a third degree felony; and possession of cannabis less than 20 grams, a first degree misdemeanor. On July 27, 1999, Visser pled nolo contendere to all three counts. Adjudication was withheld. Visser was placed on probation, required to reimburse the Lakeland Police Department $250 for the costs of investigation, assessed $500 in court costs, and required to perform 60 hours of community service. Visser completed her probation, and an Order Terminating Probation was entered on November 21, 2002. The Department denied her application for licensure by letter dated May 17, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.831(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 Naomi A. Visser for licensure as a health insurance agent. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 21st day of January, 2003. COPIES FURNISHED: Ladasiah Jackson, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Naomi A. Visser 1617 London Grove Port Road Grove City, Ohio 43123 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 The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 24 Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, the Amended Orders of Penalty Assessment, the Request for Administrative Hearing, the withdrawal of Petition, and the Order Relinquishing Jurisdiction and Closing File, and being otherwise fully advised in the premises, hereby finds that: 1. On March 14, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-083-1A to TRACY B. HINOTE, D/B/A T.H. PLASTERING. 2. On March 14, 2011, the Stop-Work Order and Order of Penalty Assessment was personally served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the Stop- Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 28, 2011, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-083-1A to TRACY B. HINOTE, D/B/A T.H. PLASTERING. The Amended Order of Penalty Assessment assessed a total penalty of $7,590.78 against TRACY B. HINOTE, D/B/A T.H. PLASTERING. . 4. On April 6, 2011, the Amended Order of Penalty Assessment was personally served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 28, 2011, the Department issued a 2" Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-083-1A to TRACY B. HINOTE, D/B/A T.H. PLASTERING. The 2" Amended Order of Penalty Assessment assessed a total penalty of $6,050.69 against TRACY B. HINOTE, D/B/A T.H. PLASTERING. 6. On May 3, 2011, the 2"4 Amended Order of Penalty Assessment was personally served on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the 2" Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On April 25, 2011, the Division received from TRACY B. HINOTE, D/B/A T.H. PLASTERING a request for an administrative hearing. The request for administrative hearing is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On June 28, 2011, the Department issued a 3rd Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-083-1A to TRACY B. HINOTE, D/B/A T.H. PLASTERING. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $2,618.57 against TRACY B. HINOTE, D/B/A T.H. PLASTERING. 9. On June 29, 2011, the 3rd Amended Order of Penalty Assessment was served by overnight mail delivery on TRACY B. HINOTE, D/B/A T.H. PLASTERING. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 10. On October 17, 2011, the Petition was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 11-5327. 11. On November 23, 2011, the Division received from TRACY B. HINOTE, D/B/A T.H. PLASTERING a withdrawal of the request for administrative hearing. The withdrawal of request for administrative hearing is attached hereto as “Exhibit F” and incorporated herein by reference. 12. On December 8, 2011, an Order Relinquishing Jurisdiction and Closing File was entered in Division of Administrative Hearings Case. No. 11-5327. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit G” and incorporated herein by reference.
Findings Of Fact Petitioner, Department of Professional Regulation, Division of Real Estate (Department), is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Jeffrey D. Ahl, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0155081. The last license issued was as a broker-salesperson, c/o Data Pak Systems & Services, Inc., 1050 South Federal Highway, Delray Beach, Florida 33483. On September 12, 1991, respondent was found guilty of eleven counts of lewd assault, a second degree felony, in violation of Section 800.04(1), Florida Statutes. The Circuit Court of Palm Beach County, Florida, adjudicated the respondent guilty on each count and committed the respondent to the Palm Beach County Jail for a term of 364 days, followed by a term of probation of 10 years. Notwithstanding his conviction on September 12, 1991, it was not until March 13, 1992, that respondent, through his attorney, informed petitioner of his conviction of the aforesaid felony. According to respondent, whose testimony is credited, the myriad of personal problems that befell him during this time period, including the remorse he was suffering, his divorce, a foreclosure, and his conviction, preoccupied his mind such that he overlooked his obligation to notify petitioner upon his conviction. Notably, respondent did not practice such profession following his conviction, and upon receipt of the renewal notice for his broker's license immediately recognized his oversight and had his attorney promptly inform petitioner of his conviction. Respondent served eight months and one week of his 364-day sentence in the Palm Beach County Jail, and was released from custody in May 1992. Currently, pursuant to the court's commitment order, respondent is on probation for a term of 10 years, the first year of which he is under community control. So controlled, respondent is required to report to his probation officer every Monday and secure approval of his weekly schedule of activities. Except for work, church and two hours of shopping each week, respondent is confined to his residence. Following successful completion of community control, respondent will be on a more relaxed form of probation, with monthly reporting to his probation officer. The court's commitment order further required that respondent continue psychological/psychiatric treatment, pay any medical expenses for his daughter's psychological/psychiatric treatment, and remain current on his child support payments. Respondent has duly abided by such obligations. The offense for which respondent stood convicted involved the touching and fondling of his daughter during times when he believed her to be asleep. Such activity occurred during the period of time she was 9 to 13 years of age, and ceased in approximately 1986, when respondent realized his daughter knew what was occurring. Disclosure of his activities apparently occurred in September 1990, during the course of his divorce proceedings. Upon disclosure of what had occurred, respondent was referred by the Department of Health and Rehabilitative Services to Helen Bush, a marriage, family and sex therapist, for counseling. Since such initial referral in September 1990, respondent has been regularly and responsibly counseled through Ms. Bush, except for that period of time in which he was incarcerated. In the opinion of Ms. Bush, which is credited, respondent suffers from a psychological disorder, regressed pedophilia, which, precipitated by stress, was the cause for his misconduct towards his daughter. Such disorders are treatable and where, as here, the offender is genuinely remorseful about what occurred, has the motivation to rehabilitate himself, and the support of his family, the likelihood of respondent being successfully treated is great. Currently, respondent has remarried, and continues to fulfill his responsibilities to continue treatment and to remain current in his support obligations. It is respondent's desire to once again practice as a real estate broker so that he might reasonably support his new family, as well as remain current with his obligations, and he would like to associate himself with William W. Harris, another licensed real estate broker. Mr. Harris testified at hearing, is aware of respondent's conviction, and is most amenable to respondent being associated with his office. Considering the quality of proof offered in this case, it is found that, notwithstanding respondent's conviction of a crime involving moral turpitude, respondent possesses the requisite honesty, truthfulness, trustworthiness, good character and good reputation for fair dealing required for licensure as a real estate broker. In reaching such conclusion the seriousness of the offense with which respondent stands convicted has not been overlooked; however, neither has the fact that the conduct which precipitated such offense had its genesis in a psychiatric disorder that is treatable and that respondent is currently experiencing success in such treatment. Under such circumstances, respondent's conviction does not detract from the conclusion that he possesses those worthy attributes of honesty, trustworthiness and fair dealing the public is entitled to expect when dealing with a real estate broker.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of violating Section 475.25(1)(f) and (p), Florida Statutes, not guilty of violating Section 475.25(1)(n), Florida Statutes, and imposing the penalty set forth in paragraph 18, supra. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 8th day of September 1992. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September 1992.
Findings Of Fact The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on April 1, 2011, and the Amended Order of Penalty Assessment issued on April 19, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On April 1, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Section 120.569 and 120.57, Florida Statutes. 2. On April 1, 2011, the Stop-Work Order and Order of Penalty Assessment was personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On April 19, 2011, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-110-1A to LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. The Amended Order of Penalty Assessment assessed a total penalty of $12,985.36 against LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. 4. On April 29, 2011, the Amended Order of Penalty Assessment was. personally served on LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. LYNDA AGUAYO, DBA, LA FRAMING CONTRACTOR, INC., A DISSOLVED FLORIDA CORPORATION AND LA FRAMING CONTRACTOR, INC failed to answer the Stop-Work Order and Order of Penalty Assessment and the Amended Order of Penalty Assessment or request a proceeding in accordance with Sections 120.569 and 120.57, Florida Statutes.
The Issue As to DOAH Case No. 90-3698: Whether Howell Vinson Peavy's insurance licenses should be disciplined for violations of Sections 626.611(7) and (14) and 626.621(8) F.S., and As to DOAH Case No. 90-6615: Whether Howell Vinson Peavy should be licensed to represent Bankers and Shippers Insurance Company as a general lines insurance agent.
Findings Of Fact Mr. Peavy is currently licensed and eligible for licensure and appointment in Florida as a life and health and general lines agent. Mr. Peavy began work at the Citizens (formerly Ellis) Bank of Bunnell, Florida in 1952. A director of that bank owned an insurance agency in town. In 1964, the owner of the bank, Mr. Creal; his mother; the bank attorney; and Mr. Peavy bought the insurance agency. Mr. Peavy continued to work at the Citizens Bank in the mornings and at the insurance agency in the afternoons and evenings. Mr. Peavy has been licensed by the Department of Insurance since purchasing the agency in 1964 and has had no previous disciplinary complaints against his insurance license(s) in the ensuing 26 years. Approximately ten years ago, in 1980, during a stressful and transitional period of the Citizens Bank operation, a customer came into Mr. Peavy's office at the bank and sought to pay in excess of $10,000 in cash in connection with a land transaction. Mr. Peavy received the money and turned it over to a bank secretary to make the deposit. The secretary subsequently put the money in the bank's loan department cash drawer instead of taking it to the head teller, who was the bank employee responsible for filing the Currency Transaction Report required by the federal Internal Revenue Service for such cash transactions. Mr. Peavy did not initially know that a Currency Transaction Report had not been filed. Indeed, he had never personally filled out or filed such a report before, and doing so was not normally his responsibility. Mr. Peavy received no personal gain from the failure to file the report. On July 13, 1985, approximately five years after Mr. Peavy's failure to file the Currency Transaction Report and five years before the instant state disciplinary charges were filed, a seven-count indictment was filed against Mr. Peavy in U.S. District Court in and for the Middle District of Florida, Case No. 85-99CR-JAX-12. Approximately five years ago, on October 4, 1985, Mr. Peavy entered a plea of guilty to one count of violating Title 18, USC Sections 1001 and 1002 in that he knowingly and willfully concealed and covered up and caused to be concealed or covered up, material facts within the jurisdiction of the Department of the Treasurer of the United States to wit: knowingly and willfully failing to file a Currency Transaction Report for a transaction in excess of $10,000. It appears that a total of $50,000 cash somehow wound up in an escrow account at the bank, but there is no evidence or admission to show that either Mr. Peavy or the bank realized any profit or benefit from the transaction. The transaction also was unconnected to Mr. Peavy's insurance business. Mr. Peavy's federal guilty plea was accepted, and on December 4, 1985, he was adjudicated and convicted of the named felony. U.S. District Court Judge Howell Melton imposed a $5,000 fine and placed Mr. Peavy on three years' probation. Prior to entering his guilty plea, Mr. Peavy had executed a "Stipulated Factual Basis for the Plea of Guilty to Count One of the Indictment." This document was not offered in evidence at formal hearing, but upon Mr. Peavy's testimony, it is found that he had the opportunity to review and sign this document before entering his guilty plea and knew that it confirmed his willful failure to file the Currency Transaction Report and that his willful failure to file the Currency Transaction Report was for the purpose of concealing the $50,000 cash transaction from the Internal Revenue Service. At formal hearing, Mr. Peavy elaborated on his reasons for entering his plea of guilty in 1985 as being, in part, due to monetary reasons; his lawyer had advised him of the difference in cost of going to court and fighting the charges contained in seven counts as compared to working out a plea agreement to one count. There is no dispute that Mr. Peavy pleaded guilty and was convicted of a felony punishable by imprisonment of one year or more under the law of the United States of America. However, at the time Mr. Peavy entered his plea, Florida's insurance disciplinary statutes did not specifically address federal felonies. The material state statutes in effect at the time of Peavy's failure to file, at the time of his plea, and at the time of his conviction read: 626.611 Grounds for compulsory refusal, suspension, or revocation of agent's, solicitor's, or adjuster's license or service representative's, supervising or managing general agent's, or claims investigator's permit.--The department shall deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service representative, supervising, or managing general agent, or claims investigator, and it shall suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee any one or more of the applicable grounds exist: * * * (14) Having been found guilty or, or having pleaded guilty or nolo contendere to, a felony in this state or any other state which involves moral turpitude, without regard to whether a judgement of conviction has been entered by the court having jurisdiction of such cases. * * * 626.621 Grounds for discretionary refusal, suspension or revocation of agent's, solicitors, or adjuster's license or service representatives, supervising or managing general agent's, or claims investigator's permit.--The department may, in its discretion, deny, suspend, revoke, or refuse to renew or continue the license of any agent, solicitor, or adjuster or the permit of any service agent, solicitor, or adjuster or the permit of any service representative, supervising or managing general agent or claims investigator, and it may suspend or revoke the eligibility to hold a license or permit of any such person, if it finds that as to the applicant, licensee, or permittee any one or more of the following applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under Section 626.611: * * * (8) Having been found guilty of, or having pleaded guilty or nolo contendere to a felony in this state or any other state, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases. Mr. Peavy paid his fine, successfully completed his probation, and was granted restoration of his civil rights on January 13, 1989, pursuant to Article IV, Section 8, Constitution of the State of Florida. Robert Gayle Mercer is a Florida-licensed insurance agent in good standing. He was tendered and accepted over objection as an expert in the business of insurance. Mr. Mercer also has served for many years as a director of a state bank located in Kissimmeee, Florida. The bank of which Mr. Mercer is a director is substantially similar in all respects to the bank in Bunnell, Florida, where Mr. Peavy's legal difficulties arose. As a bank director, Mr. Mercer is familiar with the necessity that banks file Currency Transaction Reports. It was Mr. Mercer's expert professional opinion, rendered within his education, training, and experience as an insurance agent, that the failure to file a Currency Transaction Report is not directly related to the business of insurance and that such failure has not rendered Mr. Peavy unfit or untrustworthy to engage in the business of insurance. In assessing the weight and credibility to be assigned to Mr. Mercer's expert opinion, the undersigned is not unmindful that at some point in time the witness Mercer, and the accused, Peavy, practiced the insurance business together, but due to the lapse of time and the removal of Mr. Mercer from the immediate geographical community wherein Mr. Peavy resides and practices, Mr. Mercer's testimony is found to be credible in all respects. The agency offered no expert testimony/evidence to refute Mr. Mercer's opinion. Mr. Peavy was held in the highest esteem by business, professional, and community service colleagues at the time the federal charges arose, plea was entered, and conviction adjudged. At that time, Mr. Peavy attempted to resign as a member of the Flagler County Chamber of Commerce; his colleagues, knowledgable of the federal charges, refused to accept his resignation. Many prominent community leaders knowledgeable of the nature of the federal charges also wrote to Judge Melton extolling Mr. Peavy's virtues and urging that he be placed on probation. Mr. Peavy has lived in Bunnell, Florida, since 1939, except for a short period of military service. During the whole of that time, he has been a community leader and volunteer, serving at various times on the City Commission, the County School Board, the County Chamber of Commerce, and as a Governor- appointed member of the County Housing Authority. He is active in church and in service and charity organizations, particularly as a fund raiser for the Cystic Fibrosis Foundation, the March of Dimes, and the Humane Society. Mr. Peavy's current reputation in his community is one of trust, confidence, fair dealing, and a respect for the rights of others. Upon the direct testimony of Captain C. B. Eisenbach, a retired captain of the Flagler County Sheriff's Department, and Mrs. Etta Peterson, Flagler County Supervisor of Elections, each rendered by deposition, and upon the hearsay evidence which may legitimately be characterized as "explaining or supplementing" direct evidence pursuant to Section 120.58(1) F.S., it is found that Mr. Peavy has consistently maintained and currently maintains an exemplary reputation in the community for honesty, trustworthiness, and good moral character, as well as a reputation for truth and veracity. In making the foregoing finding of fact, the undersigned has considered the somewhat vague understanding Ms. Peterson expressed with regard to the nature of Mr. Peavy's very stale federal crime/conviction but does not find that her vagueness on that legal concept detracts from the credibility or significance of her testimony concerning Mr. Peavy's current reputation and good character.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a Final Order dismissing the administrative complaint in Case No. 90-3698 and granting Peavy a license to as a general lines agent for Bankers and Shippers Insurance in Case No. 90-6615. DONE and ENTERED this 4th day of February, 1991 at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Department of Insurance PFOF: 1, 2, 3, and 4 are all accepted. Peavy's PFOF: 1-5, 7-10, and 12 are accepted and adopted with minor modifications to better express the record as a whole and to eliminate legal conclusions. 6, and 11 are rejected as subordinate or unnecessary to the facts as found; admissible and reliable hearsay has been assessed within the RO. COPIES FURNISHED: Albert J. Datz, Esquire Datz, Jacobson and Lembcke Suite 2902 Independent Square Jacksonville, Florida 32202 W. Douglas Hall, Esquire R. Vincent Russo, Esquire Cynthia S. Tunnicliff, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 John C. Jordan, Esquire Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300
Findings Of Fact On March 23, 1992, Petitioner executed and subsequently submitted to Respondent agency his sworn application for licensure as a life and variable annuity and health insurance agent. On November 9, 1992, the Respondent notified Petitioner by Denial Letter that his application for licensure had been denied because his nondisclosure of past felony convictions and his representation that he had no such convictions was deemed a material misrepresentation and because the convictions themselves constituted a bar to licensure. The denial named the convictions and cited applicable statutes. On his application, Petitioner had been asked several questions in a run-on sentence. He filled in the answer NO to each element of the sentence as follows: "Have you ever been charged with or convicted of or pleaded guilty or no contest to a crime involving moral turpitude NO, or a felony NO or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or conviction has been entered? NO" However, on June 3, 1985, Petitioner was charged in the United States District Court for the Eastern District of Virginia with one count of Possession with Intent to Distribute Cocaine, a felony punishable by one year or more of imprisonment in violation of Title 21 U.S.C. Section 841(a)(1) and Title 18 U.S.C. Section 2, and one count of Travel in Interstate Commerce With Intent to Promote, Manage, Establish and Distribute Cocaine, a felony punishable by one year or more imprisonment in violation of Title 18 U.S.C. Sections 1952(a)(3) and (2). On August 23, 1985, Petitioner was found guilty and convicted of the foregoing felony charges and was sentenced to five years in federal prison followed by a special parole term of three years. At the time of formal hearing, Petitioner was serving his probationary term and was under parole supervision. On July 23, 1987, Petitioner was found guilty of criminal contempt of court in violation of Title 18 U.S.C. Section 401 and Rule 42 of the Federal Rules of Criminal Procedure and was sentenced to ninety days imprisonment. Petitioner has made significant amendment of life and life-style since his incarceration and during parole. He is gainfully employed, happily married, and the father of a seventeen month old child. He seeks employment in the insurance industry to further better himself and contribute to society. He testified that he answered the first part of the question as "no" because he did not consider his crimes to be crimes of moral turpitude, which, in his opinion, would be such crimes as fraud or child molestation. As to the rest of the question, he stated that he had no recollection of answering "no," but admitted he signed the application verifying the answer, "no" as true. He suggested that he may have been interpreting each successive element of the question as relating back to "crimes of moral turpitude," when he answered "no".
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Insurance enter a final order ratifying its denial of Petitioner's application for licensure. RECOMMENDED this 21st day of May, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1993. APPENDIX TO RECOMMENDED ORDER 92-2060 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Petitioner's proposals are not numbered and constitute only admissions and argument. The admissions have been incorporated in the findings of fact as appropriate. The paragraphs of argument are rejected as argument and because they are not proposed findings of fact. Respondent's PFOF: Respondent's proposed findings of fact 1-9 are accepted in substance except where unnecessary, subordinate or cumulative. COPIES FURNISHED: Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, Esquire General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, FL 32399-0300 John R. Dunphy, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, FL 32399-0300 Carlos A. Salas 10150 Arrowhead Drive East Unit #5 Jacksonville, FL 32257
The Issue Whether Respondent, G and F Renovations, Inc. (Respondent), timely challenged Petitioner's proposed agency action; and, if not, whether pursuant to the doctrine of equitable tolling Respondent is entitled to an administrative hearing to challenge the proposed agency action.
Findings Of Fact Petitioner is the state agency charged with the responsibility of enforcing and ensuring employers meet the requirements of chapter 440, Florida Statutes. The law in Florida requires employers to maintain appropriate workers' compensation coverage for their employees. At all times material to this case, Respondent was doing business in Florida and was represented by Pedro Malaret, attorney at law. Prior to May 1, 2014, Michael Robinson, a compliance investigator employed by Petitioner, visited a job site wherein workers were engaged in the business of construction/roofing. Robinson was advised by the workers at the site that they were employed by Respondent. Robinson then investigated the matter to determine whether the persons at the job site were covered by Respondent's workers' compensation insurance. To do so, he spoke to the supervisor at the site and others to whom he was referred. After verifying the persons on the job site were not on the list of Respondent's covered employees, and consulting with his supervisor, Robinson posted a Stop-Work Order at the job site. The Stop-Work Order provided, in pertinent part: You have a right to administrative review of this action by the Department under sections 120.569 and 120.57, Florida Statutes. To obtain review, you must file a written petition requesting review. If you dispute a material fact contained in this action, you are entitled to a hearing under Sections 120.569 and 120.57(1), Florida Statutes, at which you may be represented by counsel, present evidence and argument on the issue(s), examine witnesses, submit a proposed recommended order, and file exceptions to the recommended order of the Administrative Law Judge. If you do not dispute a material fact contained in this action, you are entitled to a hearing under section 120.57(2), Florida Statutes, at which you may be represented by counsel, present documentary evidence, and present a written statement in opposition to this action. * * * You must file the petition for hearing so that it is received by the Department within twenty-one (21) days of your receipt of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399-0390. FAILURE TO FILE A PETITION WITH THE TWENTY-ONE(21) DAYS CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. The Stop-Work Order and an Order of Penalty Assessment was served on Respondent's corporate agent, or authorized agent, by a process server. Respondent did not timely file a petition challenging the agency's proposed action. Instead, by email only, Respondent's counsel directed a letter to Robinson that provided: This firm has the pleasure of representing G & F Renovations, Inc. All papers to be served on G & F should be mailed or delivered to this office. My client wishes to resolve all issues relating to the matter amicably and as quickly as possible. As such, please forward a list of all documents needed to my office so that I may get them to you as soon as possible. Should you require any further documentation, please feel free to contact me either at my office or on my cell . . . I look forward to working with your [sic] to resolve this matter. Contrary to the offer to provide documents to Petitioner, Respondent did not provide business records. Eventually, an Amended Order of Penalty Assessment was issued and provided by email to Respondent's counsel at his email address of record. The Amended Order of Penalty Assessment was sent to counsel on or about October 6, 2014. Respondent did not timely file a petition to challenge the proposed agency action. Respondent did not timely challenge the Stop-Work Order and did not timely challenge the Amended Order of Penalty Assessment. Respondent did not provide any assistance to resolve the issues presented by the Stop-Work Order. When Respondent failed to timely respond to the Petitioner's requests for information, refused certified mail addressed to its office or corporate representative, and failed to timely challenge Petitioner's proposed action, a final order was entered on or about July 8, 2015. Thereafter, Respondent filed an appeal claiming Petitioner had not properly served notice of its proposed action. This case was initiated in response to the appeal to address the issue of whether the Petitioner lulled the Respondent into inaction and thereby tolled the time within which to file an administrative challenge to the proposed agency action. At no time did Respondent deny allegations pertinent to the instant case, including whether the workers at the construction job site were employed by Respondent. If the workers at the construction job site were appropriately covered by workers' compensation insurance or were exempt from coverage, Respondent did not assert such defense. In fact, Respondent did not cooperate to provide any information to Petitioner that would "resolve all issues relating to the matter amicably and as quickly as possible." Petitioner provided notice to Respondent of the procedural requirements to challenge the agency action and did not lull Respondent into a false sense of security or inaction. To the contrary, Respondent attempted to circumvent its legal responsibilities by refusing certified mail and failing to provide business records in a timely manner. Respondent seeks to benefit from its inaction. Had Respondent provided documents to support any defense to the Stop-Work Order and initial assessment of administrative fine, the issues could have been resolved. The weight of the credible evidence supports the finding that Respondent did not timely challenge the proposed agency action within the 21 days allowed by law. In short, Respondent ignored the Stop-Work Order and the legal claims it presented.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order determining that Respondent failed to timely file a petition to challenge the agency's proposed action and its failure to do so was not the result of equitable tolling. DONE AND ENTERED this 6th day of December, 2016, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 6th day of December, 2016. COPIES FURNISHED: Michael Joseph Gordon, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Kelli B. Hastings, Esquire Law Office of Kelli B. Hastings, PLLC 4005 North Orange Blossom Trail Orlando, Florida 32804 (eServed) Pedro Malaret, Esquire Malaret Law Firm, PLC 732 North Thorton Avenue Orlando, Florida 32803 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue The issue in this case is whether Elite Restoration and Construction, LLC (Respondent), violated the provisions of chapter 440, Florida Statutes,1/ by failing to secure the payment of workers’ compensation, as alleged in the Stop-Work Order and Second Amended Order of Penalty Assessment; and, if so, what is the appropriate penalty.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and corporate officers. Respondent is an active Florida corporation that was formed on August 28, 2009, with a principal address of 7185 West Village Drive, Homosassa, Florida 34446. Respondent was engaged in business operations in the state of Florida during the entire period of November 2, 2014, to November 1, 2016. Brian Johnson (Respondent’s owner or Mr. Johnson) is Respondent's sole shareholder, owning 100 percent of the stock. The Department's investigator, Michael Robinson, commenced a random worksite compliance investigation on November 1, 2016, at a gas station at 970 Atlantic Boulevard, Jacksonville, Florida 32225. He observed Respondent's owner, Mr. Johnson, and three others, Tim Neeld, Derrick Windier, and James Ingash, painting a metal canopy covering the gas pumps. Mr. Johnson told the investigator that his company, Elite Restoration & Construction, LLC, was a subcontractor for Aluminum Plus of DeLand, Florida. By searching the Division's Coverage and Compliance Automated System, the investigator determined that Brian Johnson obtained a workers' compensation exemption on October 12, 2016, or 20 days prior to the investigation, and further determined that an employee leasing contract previously held by Respondent terminated on January 15, 2015, which is more than nine months prior to the investigation. Mr. Johnson confirmed that Respondent had an exemption for himself, effective October 12, 2016, but did not have any workers' compensation insurance for its employees. On November 1, 2016, after consulting with a supervisor, the Department's investigator issued the Stop-Work Order, which was posted at Respondent's worksite and personally served upon Respondent’s owner. On the same day, the investigator also personally served the Request for Production, which requested business records to determine Respondent's payroll during the two-year penalty period proscribed by section 440.107(7)(d)1., which in this case is from November 2, 2014, to November 1, 2016. The Request for Production explicitly states that the requested records must be provided within 10 business days from receipt of the request. Respondent obtained an Agreed Order of Conditional Release from the Stop-Work Order on November 8, 2016, by terminating the three workers observed during the compliance investigation who did not have workers’ compensation coverage and paying the Department a $1,000 down payment toward the penalty that would be calculated in this case. Respondent produced business records for penalty calculation on November 17, 2016, and February 28, 2017, which is beyond the 10-day time period required by the Request for Production.2/ The Department's penalty auditor, Lynne Murcia, used those records to calculate a $21,475.30 penalty for failing to comply with the workers' compensation insurance requirements of chapter 440. On April 20, 2017, when Respondent’s owner came to the Department’s Jacksonville office, he was personally served with the Amended Penalty and advised of his right to seek administrative review of the Stop-Work Order and Amended Penalty. Mr. Johnson filed a petition for hearing on behalf of Respondent on May 5, 2017, stating that the penalty calculated was wrong because it included income earned in states other than Florida. Respondent produced additional business records on May 17, August 21, and August 31, 2017, for the purpose of demonstrating that a portion of his company’s payroll was derived from work completed at worksites outside of Florida, and arguing that the out-of-state payroll should not be included in the penalty calculation. The invoices showed $182,056.78 in total income, consisting of $77,268 from 14 jobs in Florida, and $104,788.60 for 14 jobs outside of the State of Florida. Upon initial review, the Department’s auditor declined to make any adjustments because the invoices did not provide information showing earnings of specific employees for jobs outside of Florida. Thereafter, Mr. Johnson produced additional records that allowed the Department’s auditor to trace out-of-state employment to transactions in Respondent’s general ledger. The Department's auditor reviewed Respondent's additional records and removed out-of-state payroll and per diem payments. In accordance with that review, the Department issued the 2nd Amended Penalty which reduced the penalty to $16,671.14. The 2nd Amended Penalty also reduced the 2016 payroll attributed to Respondent's owner. Respondent was an "employer" in the state of Florida, as that term is defined in section 440.02(16), from November 2, 2014, to November 1, 2016. Respondent did not secure the payment of workers' compensation insurance coverage, nor have others secured the payment of workers' compensation insurance coverage for the employees listed on the penalty worksheet of the 2nd Amended Penalty during the periods of noncompliance listed on the penalty worksheet. None of the employees listed on the penalty worksheet of the 2nd Amended Penalty had a valid Florida workers' compensation coverage exemption during the periods of noncompliance listed on the penalty worksheet. In the past, Respondent had an employee leasing contract with Southeast Personnel Leasing, Inc. That contract was terminated on January 15, 2015, due to the leasing company’s concerns about out-of-state employment that would not be covered by the leasing company's workers' compensation insurance. None of the employees listed on the penalty worksheet of the 2nd Amended Penalty were "independent contractors" as that term is defined in section 440.02(15)(d)1. None of the employees listed on the penalty worksheet of the 2nd Amended Penalty were employees of a temporary labor company. Employees on the penalty worksheet of the 2nd Amended Penalty are correctly classified under Class Code 5474, painting, as defined in the "Scopes Manual" published by the National Council on Compensation Insurance, Inc. (NCCI), and adopted in Florida Administrative Code Rule 69L-6.021(2)(jj). The approved manual rates used in the penalty worksheet of the 2nd Amended Penalty, as defined by the NCCI Scopes Manual and adopted by the Office of Insurance Regulation, are the correct manual rates for the corresponding periods of noncompliance listed on the penalty worksheet. In calculating the 2nd Amended Penalty, the Department’s auditor used the worksheet required by rule 69L-6.027, along with Respondent’s bank statements, check images, general ledger, and tax returns filed with the Internal Revenue Service. The auditor capped Respondent’s owner’s pay for that portion of 2014 falling within the penalty period because his salary and dividend totaling $73,484 in 2014 exceeded the statewide average of $862.51 per week or $44,850.52 per year. She also adjusted the period of noncompliance for Mr. Johnson, pursuant to rule 69L-6.028(2), because he obtained an exemption from Florida’s Workers’ Compensation Law on October 12, 2016. The auditor explained that she used Respondent’s tax returns for 2014 and 2015 because she believed they were the most reliable indication of salaries and wages, officer compensation, and payroll for outside services and subcontractors. She further explained that she used Respondent’s tax returns and general ledger as the most accurate sources for determining payroll for 2016. The auditor’s explanation is reasonable and credited. Mr. Johnson questioned the auditor’s method of determining payroll and offered alternative methods using spreadsheets he created to identify what he called “member draws” and other summaries. The invoices provided by Respondent to the Department, however, do not match the summaries; and Respondent’s method of determining payroll, when compared to the method utilized by the Department, is not accurate or reliable. The auditor’s method reflected in the 2nd Amended Penalty appropriately applied approved manual rates corresponding to Class Code 5474, painting, to determine the evaded workers’ compensation insurance premium. Then, the evaded premium was properly multiplied by two in accordance with section 440.107(7)(d)1.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order, consistent with this Recommended Order, upholding the Stop-Work Order and imposing the penalty set forth in the 2nd Amended Order of Penalty Assessment against Elite Restoration and Construction, LLC. DONE AND ENTERED this 20th day of February, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 20th day of February, 2018.
