The Issue Whether the Respondent committed the violations alleged in the Order of Probable Cause entered March 4, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and on the entire record of these proceedings, the following findings of fact are made: The FEC is the statutory entity that is responsible for investigating complaints and enforcing Florida's election laws, Chapters 104 and 106, Florida Statutes. See § 106.25, Fla. Stat. Lieutenant Wills has been employed by the West Palm Beach Police Department for approximately 23 years and has served as a lieutenant for approximately three years. At the time he was promoted to lieutenant, Lieutenant Wills was serving as the president of the West Palm Beach Police Benevolent Association, Inc. ("PBA"), which is a police union for officers, sergeants, and lieutenants employed by the West Palm Beach Police Department. Lieutenant Wills resigned this position when he was promoted. In May 2004, the time material to this proceeding, Lieutenant Wills served as a representative to the PBA. In May 2004, Lieutenant Wills worked the night shift, from 5:00 p.m. to 6:30 a.m. He supervised a uniformed patrol squad of 10-to-12 police officers and two sergeants. The squad was divided into two units; the first night-shift unit began work at 5:00 p.m., and the second night-shift unit began work at 7:00 p.m. Sergeant Riddle supervised the first night-shift unit, and Sergeant Kapper supervised the second night-shift unit, under Lieutenant Wills's command. The police officers in Lieutenant Wills's squad were required to attend a briefing or "line-up" before they began their patrol or other duties. During the line-up, the officers were briefed on arrest information, bulletins, training, work assignments, and other employment-related matters. The briefings were conducted by Sergeant Kelly, an administrative sergeant who was not under the direct supervision of Lieutenant Wills. Lieutenant Wills often participated with Sergeant Kelly in conducting the briefings for his squad. Officers in the first night-shift unit went on duty at 5:00 p.m., and the briefing for this shift began promptly at 5:00 p.m.; an officer was considered late for work if he or she arrived in the briefing room after 5:00 p.m. The officers in Lieutenant Wills's first night-shift unit routinely began congregating in the briefing room 15 or 20 minutes before the 5:00 p.m. briefing began. They watched television; talked about many different topics, including politics; and generally interacted informally until briefings began at 5:00 p.m. When a police officer was on the police department premises, the officer was expected to obey a direct order from a superior officer, even if he or she was not on duty. If an officer was given an order by a superior officer to carry out work-related duties prior to the beginning of his or her shift, the officer was eligible for overtime pay for the time spent performing these work-related duties. An off-duty officer was not, however, expected to obey anything but a direct order from a superior officer. In an e-mail dated May 4, 2004, Sergeant Peneque, who was the president of the PBA, advised that the PBA planned to endorse Ric Bradshaw, a former chief of the West Palm Beach Police Department, as a candidate for Palm Beach County Sheriff and that the endorsement would be announced at a press conference to be held on May 25, 2004. Sergeant Peneque related in the e-mail that the "chief" was asking that the members of the police department support him by coming to the press conference. Sergeant Peneque sent this e-mail out on the West Palm Beach Police Department "Lotus notes" e-mail system, and it appeared on all of the police department computers. The PBA routinely sent e-mails regarding union business through the police department e-mail system, and the information was generally disseminated to the assembled police officers prior to the start of shift briefings. On May 10, 2004, about 10 or 15 minutes before the beginning of the briefing for the 5:00 p.m. shift, Sergeant Kelly read Sergeant Peneque's e-mail to the officers who had congregated in the briefing room. There were about five or six officers present at that time, and few of them indicated to Sergeant Kelly that they would attend the Bradshaw rally. Sergeant Kelly was upset by this lackluster response and made several remarks to the officers in the briefing room to the effect that they should support "Chief" Bradshaw, that Bradshaw had hired most of them, and that they should show their loyalty by supporting his candidacy for sheriff. Lieutenant Wills came into the briefing room in time to hear Sergeant Kelly's remarks about the lack of support for the Bradshaw candidacy, between 5 and 10 minutes before 5:00 p.m. By that time, more officers had assembled in the briefing room. Before the 5:00 p.m. briefing began, Lieutenant Wills read the PBA e-mail to the officers in the briefing room. Lieutenant Wills asked how many officers planned to attend the Bradshaw rally. Lieutenant Wills was disappointed when only a few officers indicated that they were going to attend the rally, and he said something to the effect that "Chief" Bradshaw had done a lot for the West Palm Beach Police Department.3 A police officer named Paul Creelman spoke up when Lieutenant Wills told the assembled officers about the Bradshaw rally, after one of the officers in the briefing room made a remark that a group of anti-Bradshaw officers were planning to show up for the rally. Officer Creelman remarked, "What time do they get there."4 Officer Creelman meant his remark as a joke. At the time he made the remark, Officer Creelman was sitting in the back of the briefing room; he was eavesdropping on the discussion between Lieutenant Wills and the officers at the front of the briefing room but was not one of the officers engaged in the discussion with Lieutenant Wills. Lieutenant Wills heard Officer Creelman's remark, but he did not respond to the remark. He went on to discuss other matters. In May 2004, Officer Creelman was assigned to the Neighborhood Enhancement Team ("NET"). Officer Creelman and the other NET officers were not members of Lieutenant Wills's squad and attended the 5:00 p.m. briefing as guests, primarily to gather officer safety information. Sergeant Luciano was the sergeant in charge of the night-shift NET officers, and Lieutenant Sargent supervised Sergeant Luciano and the NET officers. Lieutenant Wills had no direct supervisory authority over Officer Creelman. Officer Creelman was present at the 5:00 p.m. briefing for Lieutenant Wills's squad on May 17, 2004. During the briefing, Sergeant Kelly discussed problems that the squad was having with officers abusing sick leave by calling in sick when they wanted a few days off. Lieutenant Wills joined the discussion, and he was emphatic that he would not tolerate the abuse of sick leave by the officers in his squad because it left the squad short-handed and caused safety concerns. Lieutenant Wills discussed the police department's policies regarding sick leave, and, at one point, Lieutenant Wills stated that he had been the president of the PBA; that he knew how things worked; and that he would "fuck over" anyone who "fucked" with him about sick leave. Officer Creelman interjected a comment under his breath, saying "That's sad."5 Lieutenant Wills asked Officer Creelman to repeat his comment, and Officer Creelman did so. Lieutenant Wills demanded to know what Officer Creelman meant by the remark, and Officer Creelman told Lieutenant Wills that he considered his comment about using what he had learned as PBA president against his subordinate officers to be inappropriate. Lieutenant Wills was angry about Officer Creelman's remark and told Sergeant Luciano that he wanted to see him and Officer Creelman in his office after the briefing. When Officer Creelman and Sergeant Luciano came into his office, Lieutenant Wills expressed his anger about what he considered Officer Creelman's derogatory and disrespectful conduct towards him during the briefing. Lieutenant Wills told Officer Creelman that he did not want him "mouthing off" during his squad's briefing and that he thought Officer Creelman was a "smart aleck." To make the point that the incident on May 17, 2004, was not the first time Officer Creelman had "smarted off" to him, Lieutenant Wills told Officer Creelman that he had not forgotten his remark about the anti-Bradshaw rally. Lieutenant Wills then told Officer Creelman and Sergeant Luciano to leave his office. According to Officer Creelman, the reason Lieutenant Wills called him into his office was to address Officer Creelman's conduct in making inappropriate comments during the briefing of Lieutenant Wills's squad.6 Officer Creelman described Lieutenant Wills's manner during the time he was in Lieutenant Wills's office as "normal" and stated that Lieutenant Wills spoke in a low tone of voice.7 In a memorandum dated May 18, 2004, to Assistant Chief Van Reeth, Officer Creelman set out his version of the events that took place on May 10, 2004, regarding Lieutenant Wills's discussion of the Bradshaw rally; his version of Lieutenant Wills's conduct during the May 17, 2004, briefing; and his version of the meeting in Lieutenant Wills's office on May 17, 2004.8 In the May 18, 2004, memorandum, Officer Creelman requested permission to speak with Assistant Chief Van Reeth and the Chief of Police "so that we can all resolve this matter." On May 21, 2004, Officer Creelman filed a complaint against Lieutenant Wills regarding "the manner in which the Lieutenant spoke to officers in briefing." Officer Creelman's complaint was that Lieutenant Wills used "inappropriate language." A copy of Officer Creelman's May 18, 2004, memorandum was attached to the complaint form. Captain Olsen conducted the investigation of Officer Creelman's complaint against Lieutenant Wills, and she concluded that Lieutenant Wills used inappropriate language during the May 17, 2004, briefing when discussing the abuse of sick leave by members of his squad. Lieutenant Wills was disciplined for this misconduct with a verbal reprimand documented in his personnel file. Captain Olsen concluded after her investigation that Lieutenant Wills read the PBA e-mail before the May 10, 2004, briefing began, when Lieutenant Wills and the police officers he supervised were off duty. Because of this, Captain Olsen concluded that Lieutenant Wills did not violate any of the rules or policies of the West Palm Beach Police Department with respect to his remarks about the Bradshaw rally. Neither Lieutenant Wills nor any other member of the West Palm Beach Police Department is expected to enforce Florida's election laws as part of their duties as police officers, and no training with respect to the provisions of Florida's election laws is provided for police officers by the West Palm Beach Police Department or the Florida Department of Law Enforcement. Lieutenant Wills is not familiar with the provisions of Florida's election laws in his professional capacity as a law enforcement officer. Lieutenant Wills has never run for public office or served as a committee chair, a committee treasurer, or a campaign treasurer for a candidate in a municipal, county, or state political campaign. Lieutenant Wills is not familiar with the provisions of Florida's election laws in his personal, individual capacity. Lieutenant Wills was provided with a copy of the rules and regulations of the West Palm Beach Police Department, and he was aware in May 2004 that it was against the police department's rules and regulations for an officer to engage in or discuss political activities during work hours. Notwithstanding this policy, Bradshaw's candidacy for Palm Beach County Sheriff generated a lot of interest among the police officers and was a topic of general discussion at the police department, even when officers were on duty, because Bradshaw had been the Chief of the West Palm Beach Police Department until he retired in early 2004. Summary The evidence presented by the FEC is not sufficient to establish with the requisite degree of certainty that Lieutenant Wills willfully used his supervisory position, authority, or influence for the purpose of coercing or influencing the vote of any of the officers present during the discussion of Bradshaw's candidacy before the May 10, 2004, briefing or of affecting the result of the election for Palm Beach County Sheriff. The evidence presented reflects that none of the officers present in the briefing room prior to the May 10, 2004, briefing had a clear memory of the specific statements made by Lieutenant Wills, and the evidence is not sufficiently persuasive to support a finding of fact that Lieutenant Wills told the police officers assembled in the briefing room that they should support Bradshaw's candidacy for sheriff or that they should attend the Bradshaw rally. It cannot reasonably be inferred from the evidence presented that Lieutenant Wills's purpose in reading the PBA e-mail or in making the statement to the officers that Bradshaw had done a lot for the West Palm Beach Police Department was to coerce or influence anyone present in the briefing room to attend the Bradshaw rally, to vote for Bradshaw, or to effect the results of the election for sheriff.9 Even if the evidence were sufficient to support a finding that Lieutenant Wills's purpose was to coerce or influence the officers to attend the Bradshaw rally or to support or vote for Bradshaw for sheriff, the evidence presented by the FEC is not sufficient to support a finding that Lieutenant Wills was aware that his actions violated Florida's elections laws or that he acted in disregard of the law. Evidence that Lieutenant Wills knew that the West Palm Beach Police Department rules and regulations prohibited him from engaging in political activities while on duty is not sufficient to support an inference that Lieutenant Wills should have been on notice that he should consult Florida's election laws prior to reading the PBA e-mail or making any remarks about Bradshaw's candidacy for sheriff. Finally, the evidence presented by the FEC is not sufficient to support a finding that Lieutenant Wills's purpose in telling Officer Creelman on May 17, 2004, that he remembered his remark about the anti-Bradshaw rally was to coerce or influence Officer Creelman's vote for sheriff or the affect the result of the election for sheriff. It is uncontroverted that Lieutenant Wills's purpose in calling Officer Creelman and Sergeant Luciano into his office on May 17, 2004, was to talk to Officer Creelman about his making disrespectful comments during the briefings of Lieutenant Wills's squad, and it cannot reasonably be inferred from the evidence presented that Lieutenant Wills's purpose in reminding Officer Creelman of his remark was other than to illustrate Lieutenant Wills's point that Officer Creelman had been disrespectful during briefings on more than one occasion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order dismissing in its entirety the Order of Probable Cause entered against Thomas L. Wills on March 4, 2005. DONE AND ENTERED this 2nd day of December, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 2nd day of December, 2005.
The Issue Whether or not the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is entitled to relocate its employee, Perry Kirkland, from an assignment in Jacksonville, Florida, to an assignment in West Palm Beach, Florida.
Findings Of Fact Perry Kirkland, the Respondent, is employed as a beverage sergeant with the Petitioner, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. He has been employed with that division for sixteen years. Within that employment period, he has worked for one year in Orlando, two years in Miami, a period of time in Daytona Beach and then was assigned to Jacksonville, Florida, where he has remained as an employee with the exception of a period of time of 28 days beginning on September 19, 1977, when he was working for the same division in West Palm Beach, Florida. His service in the present type of classification began in 1968 when he was made an enforcement supervisor. His category was later changed to beverage sergeant in 1975. He is a permanent status employee. The underlying nature of the dispute between the Petitioner and Respondent concerns the Petitioner's effort to have the Respondent moved from Jacksonville, Florida, to West Palm Beach, Florida, on a permanent basis, as a condition of the Respondent's employment. The propriety or impropriety of such a requirement may be best understood by discussing the background facts which led to his proposed relocation. In the late fall or early winter of 1976, the Director of the Division of Alcoholic Beverages and Tobacco, Charles A. Nuzum, in conjunction with his subordinates, determined that it was necessary to transfer certain personnel from the Marianna office to the Panama City office. The purpose of such transfer was to promote more comprehensive enforcement in the Panama City area which was thought to be necessary, and had as its correlative purpose the removal of employees from the Marianna office, where the workload was not as substantial as that in Panama City. In essence, it has been decided that a full-fledged office would he opened in Panama City, in contrast to a sort of impromptu office that was in existence at the time. To make this change in personnel, it was necessary for the Director of the Division of Alcoholic Beverages and Tobacco to get the approval of the Department of Administration, Division of Budget. Mr. Nuzum and his chief of law enforcement met with representatives of the Department of Administration, Division of Budget, to include Elton Revell, a senior budget analyst. The purpose of this meeting was to present the request for changes in the Marianna and Panama City Offices. Revell advised the Division of Alcoholic Beverages and Tobacco that the Division of Budget could not go along with the "piecemeal" resolution of the problem of a disparity in the efforts of fulfilling the mission of the Division of Alcoholic Beverages and Tobacco. It was Revell's position that it would be necessary to consider the entire state in evaluating such realignment, before any approval could be granted. As an example of his position, Revell specifically mentioned that he thought that Live Oak and Jacksonville were offices that were overstaffed. At the insistence of the Division of Budget, and in keeping with his own analysis of the needs of the Division of Alcoholic Beverages and Tobacco, Mr. Nuzum undertook the task of analyzing the assignment status of the manpower of the division statewide, in an effort to achieve the mandate of his division's function more uniformly. The director had the benefit of certain weekly and monthly reports filed by the field agents in the categories of the division's overall mission. He also had the benefit of an overview of the conditions in the district offices, having made personal visits to the offices around the state. However, it was determined that a more specific study was necessary to get a true picture of the conditions in the district and sub-district offices for purposes of presenting the proposed realignment of personnel to the Department of Administration, Division of Budget. The principal task of doing the study was assigned to John Berry, an auditor with the Division of Alcoholic Beverages and Tobacco. Berry performed a workload study for a period in 1976, which was designed to determine the time that the agents within the district offices were spending in the primary agency functions, which are licensing and enforcement. The result of this study may he found in Petitioner's Exhibit No. 1, admitted into evidence. Berry in compiling his study, examined the various functions being performed in the Jacksonville District Office and the West Palm Peach District Office, which are Districts III and X respectively. It was determined, per his workload study, that although Jacksonville and West Palm Beach had a comparable number of licenses in their district, the number of manhours being spent in the performance of the licensing and enforcement functions of the division were significantly disproportionate. This is borne out by an examination of the Petitioner's Exhibit No. 1, which shows 2,067 licenses in Jacksonville and 2,015 licenses in West Palm Beach, for the various counties in the districts. Although this number is relatively close, manhours in the licensing function in Jacksonville was some 9,907 hours and the licensing manhours in West Palm Beach were 6,683. Likewise, the enforcement manhours in Jacksonville were 10,250, an even greater gap existed for enforcement in West Palm Beach in comparison to Jacksonville, in that the total manhours spent for that function in West Palm Beach was 3,355. These statistics were derived from an examination of the weekly and monthly reports from the personnel within the Jacksonville and Palm Beach offices. The statistics were also borne out by the testimony of the lieutenant in charge of the West Palm Beach office, who indicated that due to a shortage of manpower, the enforcement function in the West Palm Beach area was woefully inadequate. This discussion of the Jacksonville and West Palm Beach district offices leads to further consideration of the efforts made by the Division of Alcoholic Beverages and Tobacco to have their personnel realigned. After Director Nuzum had received the workload study, he had a further discussion of the authenticity of that study, with members of the staff, to include the district supervisors. His communication with the district supervisors had been by sending them a copy of the workload study to solicit their remarks. This study was forwarded to the district supervisors some time in March, 1977. After this discussion, the study was accepted. On June 7, 1977, the director forwarded the reorganization proposal to Mr. J. Jackson Walter, the Executive Director of the Department of Business Regulation, of which the Division of Alcoholic Beverages and Tobacco is a part. This reorganization proposal was forwarded in conjunction with a request made by Mr. Walter. Again, the contents of this proposal are found as Petitioner's Exhibit No. 1, which includes the workload study and a specific indication of how many persons would be reassigned to the various offices. It also includes a copy of the then present manning chart and a copy of the proposed manning chart after the changes. At that point in time, the exact persons who would be moved had not been determined. Moreover, the criteria for moving individuals from one location to another was still under discussion. Finally, it was determined that the basis for movement would be on the grounds of seniority, should there be two possible candidates for relocation and a decision become necessary for selecting one of those two persons. Sergeant Kirkland was in that category, because within the Jacksonville district there were two beverage sergeants and the other beverage sergeant was a more senior member of the division. Therefore, Kirkland was chosen to be relocated from Jacksonville to West Palm Beach. The purpose of this relocation was primarily to promote a more consistent enforcement pattern in terms of hours spent in that function statewide and between Jacksonville and West Palm Beach. A related reason was to allow some assistance to the lieutenant in charge of the West Palm Beach office, in terms of supervision of the field beverage officers of basic rank. A letter was forwarded to the district supervisors and district auditors from Mr. Nuzum, indicating that the realignment of personnel assignments would be on the basis of seniority. Petitioner's Exhibit No. 2 submitted into evidence is a copy of that notification. After determining that seniority would be the criterion for the relocation of personnel involved, the Division Director submitted his proposals through the Department of Business Regulation for transmittal to the Department of Administration for their approval. The Department of Administration approved the reorganization and J. Revell of the Department of Administration informed Floyd L. Dorn of the Department of Business Regulation's personnel office, that this approval had been granted. This approval came about in August, 1977. After receiving the notification of approval, Director Nuzum then began to advise the personnel who were affected by the reorganization in terms of any relocation. As stated before, Sergeant Kirkland was a person involved in the relocation question. Assistant Chief of Enforcement, Ken Ball, on the basis of the seniority standard, determined that Sergeant Kirkland should be transferred from Jacksonville to West Palm Beach. This was approved by Director Nuzum and this particular change was indicated on the reorganization position chart, which was Petitioner's Exhibit No. 3 submitted into evidence. His position number is 00092. The Respondent had filled the 00092 position while working in Jacksonville. His primary function was as supervisor of the enforcement section of the district, with the exception of the period of time in which he was acting in the dual capacity of enforcement supervisor and acting district supervisor. His duties during that latter period are described in Petitioner's Exhibit No. 4 admitted into evidence. This duty description was made by Sergeant Kirkland. When the present district supervisor, Captain Oganowski, took over the permanent job of district supervisor in Jacksonville, Sergeant Kirkland went back to filling the duties of enforcement supervisor. This function entailed the supervision of the enforcement division, as opposed to enforcement and licensing or licensing. Sergeant Kirkland continued to hold this position except for a short period of time in 1975 when he changed positions with the licensing supervisor. This is reflected in Respondent's Exhibit No. 5 admitted into evidence. Respondent's Exhibit No. 6 shows the reassignment of Kirkland back to the job 00092, (enforcement supervisor) in Jacksonville. During his tenure with the division, Sergeant Kirkland has maintained a high standard of performance in his various assignments. The current description of duties and responsibilities which the Respondent is expected to assume in the West Palm Beach office may be found as a part of Petitioner's Exhibit No. 4 admitted into evidence. This function includes the supervision of both enforcement and licensing personnel. When it was determined that Sergeant Kirkland would be sent to West Palm Beach, the Director of the Division of Alcoholic Beverages and Tobacco telephonically communicated the notice of this transfer. It was followed by a letter indicating the transfer, a copy of which is Respondent's Exhibit No. 1 admitted into evidence. The date of the written notification is August 25, 1977. The official report of personnel action setting the effective date of the relocation was dated September 15, 1977, and made the effective date September 19, 1977. A copy of this report of personnel action is Respondent's Exhibit No. 3 admitted into evidence. The type of action indicated on this form is original appointment, with the additional statement entered as "Continued." In fact, the relocation of Sergeant Kirkland is a reassignment within the meaning of Rule 22A-7.08, F.A.C. It is a reassignment because the appointment involved a move from one position in one class to a different position in the same class. The position move, is a move from the 00092 position in Jacksonville, which involves the supervision of enforcement personnel in Jacksonville, to the 00092 position in West Palm Beach, which involves the supervision of both enforcement and licensing personnel. Under the terms of Rule 22A-7.08, F.A.C., Kirkland may not appeal that reassignment. However, since it involves a geographic transfer of more than fifty miles the Respondent is entitled to appeal this decision to the Career Service Commission, in keeping with the authority of Rule 22A-7.09, F.A.C. The Respondent has challenged this relocation by his Career Service Appeal. That appeal has two principal contentions. The first contention concerns the assertion that the transfer does not fall within any of the types of enumerated appointments found in Rule 22A-7, F.A.C. As already shown, this position has been rejected, because the appointment has been determined to be a reassignment appointment. The second contention of the appeal is that any transfer from Jacksonville to West Palm Beach would cause irreparable financial harm and hardship on the Respondent and his wife. In connection with this assertion, Sergeant Kirkland produced evidence that the housing in the West Palm Beach area is more expensive than that in Jacksonville, and that, not withstanding the amount of equity which he might realize from the sale of his Jacksonville property, he still would incur approximately $15,000 additional cost for housing. This housing would not be comparable to his Jacksonville housing, due to the difference in the available amount of property and size of the home itself being smaller in West Palm Beach. The house that he is purchasing in Jacksonville is a four-bedroom, two-bath, two-carport home. The house being contemplated for purchase in West Palm Beach is a three-bedroom, two-bath home. Furthermore, the cost of the mortgage in Jacksonville is $165 and this cost would be exceeded in West Palm Beach even if the equity realized in the sale of Jacksonville home were put toward the down payment. It was also established that the restaurant cost in the West Palm Beach area is greater than that cost in Jacksonville. Sergeant Kirkland's wife testified that she is a hospital operating room nurse who has established a certain amount of seniority in her present employment. She is also only one year away from being able to retire with retirement benefits. If she is required to move, she would lose those benefits and also have to start at the bottom of the seniority list in any new employment in a hospital operating room in West Palm Beach. Finally, the Respondent demonstrated that to move from the Jacksonville community to West Palm Beach would cause him to lose church membership and other community activities in which he is involved. In spite of the degree of hardship which has been demonstrated by the Respondent in his presentation, a review of all the facts and circumstances would justify the Petitioner's action in its reassignment transfer of the Respondent. The action was not a punishment, it was a circumstance where the needs of the Petitioner in this instance, are more compelling than the hardship which will be caused Sergeant Kirkland and his family.
Recommendation It is recommended that the proposed reassignment appointment transfer of the Respondent from Jacksonville to West Palm Beach in the position 00092 he approved and that the appeal by the Respondent challenging this action by the Petitioner be denied. DONE and ENTERED this 30 day of December, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph M. Glickstein, Jr., Esquire 1205 Universal Marion Building Post Office Box 1086 Jacksonville, Florida 32201 Francis Bailey, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32201 Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact Based on the evidence received at the final hearing, the following findings of fact are made. At all times material to this case the Respondent, Willie Whittington, was licensed as a certified general contractor in the State of Florida, holding license number CG C006966. At all times material to this case the Respondent was the sole qualifying agent for Whittington & Sons Builders, Inc. On May 15, 1987, Edwin W. Brown and Sandra J. Brown, husband and wife, contacted Respondent, in response to Respondent's advertising, to discuss the construction of a log house and an outbuilding on a lot owned by the Browns in Palm Beach County, Florida. The outbuilding was to be used as a combination garage and barn. During this initial meeting, the Browns described the project to Respondent. At the conclusion of the meeting on May 15, 1987, the Browns gave Respondent a $2,000.00 deposit to get started on the project. Respondent was to use that deposit to have plans drawn for the two buildings and to secure the necessary building permits. On June 23, 1987, Whittington & Sons Builders, Inc. entered into two contracts with the Browns, one for the house and the other for the outbuilding. Respondent signed both contracts on behalf of Whittington & Sons Builders, Inc. Both contracts were clear and unambiguous as to the work that was to be performed, as to the price that was to be paid for the work, and as to the schedules by which the construction draws would be made. The price for the house was set at $73,506.00. The price of the outbuilding was set at $11,665.00. Both contracts provided that construction would be completed within 130 days. On June 23, 1987, the Browns paid to Respondent the sum of $6,871.60 as required by the two contracts. Sandra Brown began keeping a log of her contacts with Respondent as of August 4, 1987, because she had experienced difficulty reaching Respondent by telephone and because no progress was being made on the project. Around August 4, 1987, Respondent told the Browns that he needed an additional $175.00 to pay to the architect to complete the plans. Because this was not provided for by their contracts, the Browns refused Respondent's request for this additional sum of money. On August 7, 1987, the Browns paid to Respondent the sum of $3,822.90 that Respondent was to use to order the logs. The building permits were not obtained until October 9, 1987. The permits were not obtained earlier than that date because Respondent did not diligently pursue his obligation to get the permits. As of early November 1987, the only work that had been done was the preparation of the lot for the foundation. On November 7, 1987, Respondent requested that the Browns advance him $5,000.00 so he could proceed with the construction. Respondent was financially unable to proceed because the Internal Revenue Service had garnished the account in which Respondent had placed the Browns' deposits. The Browns refused to advance Respondent this additional sum of money, but they remained willing to pay Respondent according to the draw schedules of the contracts. In December 1987 the Browns received a notice to owner form from Rinker Materials. In response to this notice, the Browns paid to Rinker Materials the sum of $2,664.77 and asked that no further materials be delivered on a credit basis to the job site. The Browns received a release of lien from Rinker Materials on December 28, 1987, for the materials Respondent had previously ordered on credit. In the middle of December 1987, the Browns learned that Respondent had neither ordered the logs for the construction nor determined the quantity of logs that would be required. On or about December 18, 1987, the foundation for the house was poured. Little work was done on the project between that date and January 4, 1988, the date Respondent told the Browns that his back was hurt and he could not work. The Browns filed a written complaint with the Palm Beach County Contractors Certification Board on January 8, 1988. As of January 13, 1988, Respondent was unable to account for the funds the Browns had deposited with him. At a meeting on January 19, 1988, among Respondent, the Browns, and a representative of Palm Beach County Contractors Certification Board, Respondent agreed to furnish receipts and an accounting of the construction funds by the next meeting on January 27, 1988. Respondent also agreed, during the meeting of January 19, 1988, to perform certain work on the project before the next meeting. At the next meeting, Respondent did not provide the Browns with receipts or with an accounting of the construction funds. Instead Respondent submitted a non-itemized bill in the amount of $18,131.20 for labor and materials supposedly expended by Respondent through January 27, 1988. The Browns refused to pay this bill. Respondent had worked only approximately 16 hours on the project between January 19 and January 27 and had not completed the additional work he had promised to have done January 27, 1988. The Browns fired Respondent and his company on January 27, 1988. At that time, Respondent had completed approximately 10% of the project `whereas it should have been approximately 60-70% completed. The delays by Respondent throughout his association with this project were not justified. After the Browns fired Respondent, they were forced to pay a materialman, MacMichael Lumber Company, to prevent the foreclosure of a lien against the property. This lien resulted because Respondent did not pay for certain materials he had ordered on credit before the Browns fired him. On February 4, 1988, Respondent agreed to repay the Browns the sum of $4,200.00. As of the date of the final hearing, Respondent owed the Browns $1,400.00. A subsequent contractor completed the project without undue delay in June 1988 for an additional $74,000. This price reflects changes the Browns made after the subsequent contractor began his work. Petitioner is the state agency charged with the regulation of contractors in the State of Florida. The Administrative Complaint filed by Petitioner against Respondent alleges, in pertinent part, the following: Respondent failed to perform in a reasonably timely manner, and or abandoned said job(s), in violation of 489.129(1)(m),(k). There was financial mismanagement and/or misconduct in connection with this matter, attributable either to Respondent directly, or to Respondent's failure to properly supervise, in violation of Section 489.129(1)(h) & (m), as generally exhibited by, but not limited to, the following: Subject double billed Customer on several occasions; failure to pay subcontractors and suppliers; and failure to buy materials. There was no allegation in the Administrative Complaint or evidence presented at hearing that Respondent has been the subject of prior disciplinary action. Respondent has been licensed as a certified general contractor by the State of Florida since 1973. Following receipt of the Administrative Complaint, Respondent denied the violations and timely requested a formal administrative hearing.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which finds Respondent guilty of having violated Section 489.129(1)(h), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation and which further finds Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes and which imposes a fine against Respondent in the amount of $1,500 for such violation so that the total fine to be imposed against Respondent is $3,000. DONE and ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. CLAUDE ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1989. APPENDIX CASE NO. 89-0743 The proposed findings of fact submitted by Petitioner are addressed as follows. Addressed in paragraph 1. Addressed in paragraph 27. Addressed in paragraph 3. 4-5. Addressed in paragraph 4. Addressed in paragraph 5. Addressed in paragraph 6. Rejected as being unnecessary to result reached. Addressed in paragraph 7. Addressed in paragraph 8. Addressed in paragraph 9. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 10. 14-15. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 12. Addressed in paragraph 17. Rejected as being unnecessary to result reached. Addressed in paragraph 14. Addressed in paragraph 15. Addressed in paragraph 15. Addressed in paragraph 16. 22-26. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 17. Addressed in paragraph 19. Addressed in paragraph 23. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 24. Rejected as being subordinate to the conclusions reached. Addressed in paragraph 22. 34-35. Rejected as being recitation of testimony and as being subordinate to the conclusions reached. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Willie Whittington 342 Walker Street Greenacres City, Florida 34974 Fred Seely, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
The Issue The issues in this case are whether the Respondent committed violations alleged in an Administrative Complaint and, if so, what disciplinary action should be taken.
Findings Of Fact At all times material to this case, Respondent was employed by Petitioner as a school psychologist. At all times material to this case, Respondent was a member of the Classroom Teachers Association (CTA) Bargaining Unit. At all times material to this case, Respondent was receiving benefits under a valid claim for Workers' Compensation benefits arising from an accident on January 7, 2000. In conjunction with investigations as to Respondent's eligibility for Workers' Compensation benefits, video surveillance of Respondent's activities was conducted on several occasions. At the beginning of the 1999-2000 school year, Dr. Laakso worked for Petitioner as a school psychologist in Area 3, and was assigned to Palm Beach Lakes High School, Forest Hill High School, and Conniston Middle School. His immediate supervisor was Mary Kate Boyle, the Area 3 Exceptional Student Education (ESE) Team Leader. On January 7, 2000, Dr. Laakso was working in his car while parked in the Palm Beach Lakes High School parking lot, and when exiting the car, hit his head on the door jamb causing a compression of his spine. He then received a second injury to his back while pulling psychological testing kits out of his car. Dr. Laakso submitted this injury to Petitioner as a workers' compensation injury, and it was covered as such. Christopher Brown, M.D., an orthopedic surgeon and one of Dr. Laakso's workers' compensation physicians, treated Dr. Laakso. On February 8, 2000, Dr. Brown placed Dr. Laakso on a "no-work" status. Dr. Laakso suffers from cervical spinal stenosis, which is a narrowing of the spinal canal. Because Dr. Laakso had underlying spinal stenosis secondary to arthritis, combined with disc herniations, his orthopedic surgeon, Dr. Brown, diagnosed Dr. Laakso's stenosis as severe. Also on February 8, 2000, Ms. Boyle held an investigative meeting with Respondent and his then-attorney, Stephen Fried, to discuss Respondent's continued absences since January 7, 2000 (the date of Respondent's workers' compensation injury) and his work status. In a letter to Dr. Laakso dated February 9, 2000, Ms. Boyle explained what her expectations were with regard to Respondent's absence and work status. On February 9, 2000, Dr. Laakso requested unpaid sick leave for January 11, 2000 to May 31, 2000, which the School Board granted. In March of 2000, Dr. Laakso was released back to light duty work, with restrictions. Some of the physical restrictions placed on Dr. Laakso's activities included no overhead use of the right upper extremity and no heavy use of the right upper extremity greater than 5 pounds. In addition, Dr. Laakso was told to be careful and to try not to hurt himself. Dr. Brown also imposed a 10 mile driving restriction on Dr. Laakso because Dr. Brown believed Dr. Laakso's spinal stenosis placed him at increased risk if he hit his head or was in a car accident. Dr. Laakso argued against the driving restriction because he was capable of driving and believed that the restriction would "mess things up" if he was unable to use his car. Dr. Laakso neither asked for the driving restriction nor represented that he needed the restriction.4 Dr. Laakso conveyed the driving restrictions to both Ms. Boyle and Linda Meyers in Risk Management. On March 21, 2000, Dr. Laakso was given a light duty placement in which he was assigned to Atlantic High School watching the school's security cameras. This assignment was for Dr. Laakso's regularly scheduled 7.5 hours a day, and was within the physical and driving restrictions imposed by Dr. Brown. While on light duty assignment at Atlantic High School, Dr. Laakso reported to Assistant Principal, Marshall Bellin. Dr. Laakso also submitted his time sheets to Mr. Bellin for Mr. Bellin's verification and signature. After Mr. Bellin signed the light duty time sheets, Dr. Laakso faxed them to Ms. Boyle for payroll purposes. Around this time period, in approximately April of 2000, the third party administrator, FARA, who handles the School Board's Workers' Compensation claims, hired private investigator Richard Mains to conduct surveillance of Dr. Laakso. Mains observed Dr. Laakso at various times from April 3, 2000 through October 2, 2000. Mains documented Respondent's driving to and from his Matlacha home and the activities in which he engaged while there. Mains did not know whether Dr. Laakso was taking pain or anti-inflammatory medication, or whether Dr. Laakso was under the influence of these types of medications at the times Mains observed him. On May 17, 2000, Ms. Boyle held another investigative meeting regarding Respondent's absences while on light duty. The minutes from that meeting indicate that Ms. Boyle expressed her concern to Dr. Laakso regarding his absences, discussed his light duty assignment at Atlantic High School, and directed him to call her beeper if he was going to be absent. He was also directed to provide a doctor's note if he was absent. Dr. Laakso remained in the light duty assignment at Atlantic High School for the remainder of the 1999-2000 school year. On Wednesday, August 9, 2000, the first day of the 2000-2001 school year, Dr. Laakso again reported to Atlantic High School to resume his light duty placement. On August 15, 2000, Marshall Bellin signed Respondent's light duty sign-in sheet, which covered Dr. Laakso's work attendance for August 9, 10, 11, and 14, 2000. Around August 14 or 15, 2000, Dr. Laakso received verbal notification that because his driving restriction had been lifted, he was being taken off light duty assignment and was to report to Area 3. Prior to this verbal notification, Dr. Laakso had not been advised by his physicians that his driving restriction had been lifted. However, he subsequently learned through someone at the Risk Management Department that, in fact, the driving restriction had been lifted. Upon hearing the news, Dr. Laakso contacted Dr. Brown. When he went to see Dr. Brown, Dr. Brown explained to Respondent that the Board had sent him a questionnaire asking whether he believed that Dr. Laakso could drive a car as opposed to whether he should drive a car. Dr. Brown further explained that he responded that Dr. Laakso could drive a car, but felt he had made a mistake as he felt it was still dangerous for Dr. Laakso to drive. Accordingly, on August 17, 2000, Dr. Brown reinstated Dr. Laakso's driving restriction of no more than 10 minutes. On August 17, 2000, Dr. Laakso sent a memo to Ms. Boyle indicating that his driving restriction had been reinstated. A copy of the note from Dr. Brown was attached to this memo. Because of her continuing concern regarding Respondent's absences, on October 2, 2000, Ms. Boyle held another "investigative meeting" regarding Dr. Laakso's absences. This meeting resulted in Boyle's issuing Dr. Laakso a written reprimand for unacceptable and unexcused absences, failure to call in intended absences as required, and insubordination. The written reprimand specifically addressed Dr. Laakso's absences on August 9, 10, 11, 22, and September 20, 27, 28, and 29. Ms. Boyle believed her issuance of the written reprimand dated October 2, 2000, was consistent with the progressive discipline policy. At the time that Ms. Boyle wrote the reprimand, she also notified the District's Professional Standards Department and requested a formal investigation of Respondent's absences. Ms. Boyle then contacted Ray Miller in Professional Standards to be sure that she was following appropriate procedure. In October of 2000, Ray Miller received Respondent's case for investigation, and the investigation was assigned case number 101. Specifically, Miller investigated allegations involving Respondent's misuse of leave, unauthorized absence, failure to call in and report absences as required, and insubordination for the time period of January 2000 through December 2000. At the time of his interview with Respondent, Miller had a surveillance video and a report of Respondent's activities for April of 2000. Respondent neither denied that he was the subject of the video nor that he failed to report and call in his absences. Shortly before December 4, 2000, Miller signed off on the investigative report for case number 101, and on December 4, 2000, Paul Lachance issued a letter to Dr. Laakso indicating that the investigation was complete, and that a determination of probable cause had been made. The investigative report was then reviewed by the Case Management Review Committee to determine whether there was just cause to recommend discipline and, if so, provide a discipline recommendation. The Committee found just cause and recommended Dr. Laakso's termination. A number of meetings were held in December 2000 with representatives of Petitioner, Dr. Laakso, and his then- attorney, Mr. Fried. As a result of these meetings, an informal settlement was reached; Dr. Laakso's employment was not terminated, but rather he was transferred to the Area 1 ESE office. By a letter to the file dated January 8, 2001, Paul Lachance, Director of Professional Standards, administratively closed case number 01-101 against Dr. Laakso with "no action." While assigned to Area 1, Dr. Laakso was under the supervision of Area 1 ESE Team Leader, Paul Sayrs. As supervisor, Mr. Sayrs was responsible for keeping track of Respondent's attendance. Accordingly, Sayrs directed Respondent to call and notify secretary Judy Fabris if he was going to be absent, who in turn would notify Mr. Sayrs. While assigned to Area 1, Dr. Laakso missed work for several days in January and February 2001, and was also out for most of March and April 2001. On April 4, 2001, Mr. Sayrs sent Dr. Laakso a letter listing the dates of his absences and directing him to submit a doctor's note for the dates listed, as well as for any future absences. The next day, April 5, 2001, Mr. Sayrs sent another letter to Dr. Laakso advising him he was currently absent without approved leave. Mr. Sayrs advised Respondent further that due to an absence of correspondence from Respondent, Mr. Sayrs would assume Respondent had decided to discontinue working for Petitioner and Respondent's name would be submitted to the School Board for acceptance of Respondent's resignation. Dr. Laakso immediately contacted Dr. Sachs regarding Mr. Sayrs' request for medical documentation, but was unable to get an appointment with Dr. Sachs until April 20th. However, prior to his April 20th appointment, Dr. Laakso forwarded to Dr. Sachs a copy of the District's letter, which indicated he would be terminated if he did not provide the requested documentation prior to his appointment on April 20th. In response, Dr. Sachs accounted for Dr. Laakso's absences, noting they were due to his symptoms and cervical condition. Additionally, Dr. Laakso followed through by faxing his Request for Leave of Absence without Pay form with his signature, dated April 18, 2001, directly to Dr. Sachs for his signature. The leave was ultimately granted retroactive to March 8, 2001, prior to Dr. Laakso's being terminated by the District. On April 18, 2001, Dr. Laakso sent a handwritten note to Dan McGrath explaining his absences. Dr. Laakso attached to his note to Mr. McGrath two documents from Dr. Sachs, one dated April 15, 2001, and the other dated April 6, 2000. On May 18, 2001, Paul Sayrs evaluated Dr. Laakso's performance. The evaluation sheet indicated that Dr. Laakso was "presently on a medical leave of absence." Dr. Laakso has a second home in Matlacha, located on the other side of Cape Coral. Matlacha is located in the Fort Myers area and is approximately 150 miles from the West Palm Beach area, roughly a three-hour trip using country roads. Because he had not been feeling well, Dr. Laakso had not been taking care of his property in Matlacha. As a result, he received notices from the county telling him he needed to clear up the property or face a potential daily fine of $225. Specifically, the county informed Dr. Laakso that he needed to mow the grass, move a boat, register a pickup truck, and park the truck somewhere where it was not in open view. He asked for an extension in which to do these things, which was granted. However, the county advised Dr. Laakso that if he did not get the work done by the date established, the daily fine would be imposed. Although while at his Matlacha home Dr. Laakso did work outside of the restrictions imposed on him by his physician, he could work for 20 or 30 minutes and then go inside and rest, unlike when he was at work for the School Board, which required he work a full eight-hour day. While he was on his Matlacha property, he continued his daily swimming as part of his physical therapy, which he had discussed with, and received approval for, from Dr. Brown. At no time did Dr. Laakso attempt to hide the fact that he drove to the Matlacha property or that he worked in his yard while there. In fact, he disclosed this information when deposed in his workers' compensation case, and he discussed it with his doctor. While the doctor did not give Dr. Laakso permission for this type of conduct, Dr. Laakso did discuss it with him.5 Following the closing of the first investigation numbered 101, the office of Professional Standards received a memo from Diane Howard, Director of Risk Management, dated January 9, 2001. Ms. Howard was requesting a reinvestigation of Dr. Laakso's absences. In response to this memo, Miller did not interview Respondent, but instead viewed surveillance videotapes from August 11 through October 1 or 2, 2000. In addition to the videos, Miller reviewed memos from Nancy Patrick, Mary Kate Boyle, and Paul Sayrs. Miller testified that the difference between this investigation and the previous one was that it involved a different period of time, both for the videos and regarding issues of Respondent's attendance in January, February, and March of 2001. The allegations against Respondent for this investigation were that he was obtaining leave due to sickness or illness and that he was performing actions that were inconsistent with his alleged illness or sickness. This second investigation followed the same pattern as the first and was sent to the Committee for review. The Committee again recommended Dr. Laakso's termination. Dr. Laakso timely requested an administrative hearing, and these proceedings followed. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) . . . [e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in this case dismissing all charges in the Administrative Compliant, reinstating Respondent to his position of employment with the School Board, and providing Respondent with such back pay and attendant benefits as are authorized by law. DONE AND ENTERED this 21st day of November, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 2003.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings has entered an Order Closing File in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030 (b) (1) (C) AND 9.110. TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. FINAL ORDER NO. DCA10-GM-115 CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct copies have been furnished as indicated to each of the persons listed below on this DW say of , 2010. aula Ford Agency Clerk By U.S. Mail Amy Taylor Petrick, Assistant County Attorney Palm Beach County 300 North Dixie Highway, Suite 359 West Palm Beach, FL 33401 Tel.: (561) 355-2529 Fax.: (561) 255-4324 Email: apetrick@co.palm-beach.fl.us William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A. 215 S. Monroe Street, Suite 618 Tallahassee, FL 32301 Phone: (850) 521-1980 Facsimile: (850) 576-0902 Email: whyde@gunster.com James M. Crowley, Esquire Gunster, Yoakley & Stewart, P.A. 450 E. Las Olas Blvd., Suite 1400 Fort Lauderdale, FL 33301 Phone: (954) 713-6416 Facsimile: (954) 523-1722 Email: jcrowley@gunster.com FINAL ORDER NO. DCA10-GM-115 Claudia McKenna, City Attorney City of West Palm Beach 401 Clematis Street West Palm Beach, FL 33401 Phone: (561) 882-1350 Facsimile: (561) 822-1373 Email: cmckenna@wpb.org Keith W. Davis, Esquire Trela White, Esquire Attorney for Village of Royal Palm Beach Corbett & White, P.A. 1111 Hypoluxo Road, Suite 207 Lantana, FL 33462 Phone: (561) 586-7116 Facsimile: (561) 586-9611 Email: keith@corbettandwhite.com; trela@corbettandwhite.com By Hand Delivery Richard E. Shine Assistant General Counsel Department of Community Affairs By Interoffice Mail The Honorable Donald R. Alexander Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675
The Issue Should discipline be imposed against Respondent's Florida real estate sales associate license?
Findings Of Fact Stipulated Facts: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165 and Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate sales associate, issued license number 3015177, in accordance with Chapter 475 of the Florida Statutes. The last license issued was as a sales associate with Diane Lynne Severino, P. O. Box 354491, Palm Coast, Florida 32135-4991. On or about August 6, 2004, Joaquin Torres and Marine Hopson (Torres) entered into a purchase and sale agreement for the real property located at 9 Rockwell Lane, Palm Coast, Florida. Respondent was the sales associate on the above transaction. The closing did not occur on the above transaction. Additional Facts: According to Petitioner's records, the following constitutes the history of Respondent's sales associate license: Francis Anthony Severino, Sr., Sales Associate, License #SL-3015177 From January 1, 2004 to October 4, 2004, he was a sales associate affiliated with Team Real Estate, Inc. doing business as Realty Executives Fun Coast Team license number CQ 1008966, a brokerage corporation located at 185 Cypress Point Parkway, suite 4, Palm Coast, Florida 32164; From October 4, 2004 to March 31, 2005 said licensee was invalid due to no employing broker or no filing of a request to remain a sales associate under another broker. From March 31, 2005 to the Present he is a sales associate affiliated with Diane Lynne Severino license number BK 666867, a brokerage sole proprietorship doing business as Severino Realty located at 170 North Beach Street, Daytona Beach, Florida 32114. Petitioner's Exhibit numbered 1. In his testimony Respondent indicated that his affiliation with Team Real Estate, Inc. ended on September 13, 2004, when he became inactive with that firm. Respondent's Exhibit numbered 2 is a copy of a DBPR RE-2050-1 Request for Change of Status form intended to establish the separation from that business. Mark Vost the real estate broker for Team Real Estate, Inc. filled out, signed, and sent it in. It has a fax stamp of September 13, 2004. The request by Mark Vost to inactivate Respondent as a sales associate with Team Real Estate, Inc., through the form DBPR RE-2050, was dated September 13, 2004, and officially received by the Department of Business and Professional Regulation on October 4, 2004. More significantly, Respondent testified that he filled out a DBPR RE-2050-1 a Request for Change of Status to be affiliated with Severino Realty whose broker was Diane L. Severino. At that time, Ms. Severino was Respondent's wife. A copy of the Request for Change of Status is found as Respondent's Exhibit numbered 3. It is dated September 13, 2004. Unlike Respondent's Exhibit numbered 2, Respondent's Exhibit numbered 3 does not have a fax stamp showing the date of transmission. Respondent indicated that he personally went to the fax machine in the office of Severino Realty and transferred his license to Petitioner by fax machine. On September 13, 2004, the date reflected on the form, Petitioner did not confirm the fax receipt by Petitioner. Respondent's explanation is that the fax machine upon which the transfer to Severino Realty of his sales associate license "did not have a receipt that prints out." Respondent in his testimony stated " . . . When I dialed the phone I got the dial tone, it rang, it answered, it made that beeping noise, and it never came and said anything that it did not go through and that it was an error. So I just assumed that it was accepted, because normally when a fax machine answers you, that beeping sound and it means that it is acknowledged and if it does not answer it’s a busy signal and you try dialing again." According to Respondent, from that point forward he assumed that his sales associate license had been transferred from Team Real Estate, Inc. to Severino Realty. It had not. Petitioner had evidence of the change of status of Respondent's license to inactive with Team Real Estate, Inc. It did not have evidence of the activation of Respondent's sales associates license with Severino Realty, even should one accept Respondent's testimony that he tried to fax the DBPR RE-2050-1 form designating a change in his broker to Diane L. Severino of Severino Realty on September 13, 2004. Ultimately the portrayal of Respondent's license history established in Petitioner's Exhibit numbered 1 is accepted where Respondent is recognized as being affiliated with Severino Realty commencing March 31, 2005. Respondent was involved with the Torres in a number of real estate transactions. One involved a purchase of a residence at 98 Ulysses Trail in Palm Coast, Florida, through a contract between Joaquine Torres and Holiday Builders, Inc. On July 21, 2004, the parties signed the contract. The total purchase price was $180,190.00. Respondent was named in the Sales/Forms FHA-VA- Std. in the portion of the forms described as "Realtor Referral" and Realty Executive is written next to his name. This is understood to refer to Team Real Estate, Inc. where Respondent was employed as a sales associate. The real estate commission involved with the purchase was 6 percent. Petitioner's Exhibit numbered 2. The real estate commission due Realty Executives (Team Real Estate, Inc.) was $8,129.00 in Respondent's name. Petitioner's Exhibit numbered 2. On September 24, 2004, when the purchase was settled at closing, the $8,1029.00 was paid, in relation to the property at 98 Ulysses Trail. Petitioner's Exhibit numbered 3. On September 24, 2004, the Torres as seller, with Severino Realty being reflected as the broker signed an Exclusive Right of Sale Listing Agreement for the 98 Ulysses Trail property. The price reflected was $229,800.00 with a broker's commission of 5.5 percent. The listing agreement bore one signature, that of the seller. The form did not name the authorized listing associate or broker. It referred to the brokerage firm name as Severino Realty. Petitioner's Exhibit numbered 4. Earlier, Mr. Torres entered into a "Showcase Home Purchase Completed Field Model Agreement" with Holiday Builders, Inc. for a residence at 9 Rockwell Lane, Palm Coast, Florida. On August 6, 2004, the parties signed the agreement. Petitioner's Exhibit numbered 5. On September 24, 2004, an Exclusive Rights of Sale Listing Agreement form was prepared between the Torres and Severino Realty on 9 Rockwell Lane, listing the sales price as $164,900.00. At the time, the Torres did not own the home. The brokerage commission was 5.5 percent. A seller's signature was attached. No other signature was provided. No one was listed as associate or broker. Petitioner's Exhibit numbered 6. The Torres' contract on 9 Rockwell Lane never closed due to the inability of the Torres to provide sufficient funds to conclude the purchase. On October 7, 2004, the Torres executed a Promissory Note to pay Respondent $5,000.00 upon the first sale of homes at 98 Ulysses Trail, 9 Rockwell Lane and 14 Ethel Lane. The amount was to be paid in 180 days from the date of the note payable at PO Box 354491, Palm Coast, Florida 32135 or "at such other place as payee or holder may specify in writing or in person." Petitioner's Exhibit numbered 7. On October 7, 2004, Mark Vost, broker/manager for Realty Executives Fun Coast Team Real Estate, Inc., wrote the title company that would be handling the closing on the 9 Rockwell Lane Property to advise that $5,000.00 of commission should be credited to the buyer with the balance of $879.00 being paid to Realty Executives the Fun Coast Team. Respondent's Exhibit numbered 8. This coincides with the settlement charges in the settlement statement for the 9 Rockwell Lane property that did not close on the anticipated date. October 12, 2004, was the scheduled closing date. Petitioner's Exhibit numbered 9. After the Torres purchase of 9 Rockwell Lane did not close, Respondent telephoned Ms. Torres and said that she would have to pay him $6,000 because of the percentage (commission) he was losing. He made more than one call. Respondent told Ms. Torres that the failure to close on the 9 Rockwell Lane property was not his problem. Respondent told Ms. Torres that she had to pay because she did not buy the property at 9 Rockwell Lane, that he lost his time and lost his commission and that it was her fault. Respondent told Ms. Torres to give him a check. Eventually, Respondent came to the Torres home to get money from the Torres that he said was due. Based upon the demand for money, Ms. Torres wrote a check payable to Frank Severino in the amount of $6,000.00. The face of the check stated the purpose for the check as "9 Rockwell Lane." The check was written on October 12, 2004, the date Respondent went to the Torres' home. The payment was not intended as any form of gift or gratuity to Respondent. Respondent deposited and cashed the check. A replica of the check and its execution is found as Petitioner's Exhibit numbered 10.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Sections 455.227(1)(n) and 475.25(1)(b), (d) and (e), Florida Statutes (2004), and revoking Respondent's sales associate license.1/ DONE AND ENTERED this 30th day of March, 2007, 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 30th day of March, 2007
