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)
Findings Of Fact 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. Respondent is now and was at all times material hereto a licensed real estate salesman in the State of Florida, having been issued license number 00390879. The last license issued to Respondent was in 1988 as a salesman with Atlantic Marketing Realty, Inc., 224 Commercial Boulevard, Fort Lauderdale, Florida 33308. On July 26, 1984, a Grand Jury indictment was filed against Respondent in the United States District Court for the Middle District of Florida and was assigned case number 84-67-CR-ORL-18. By Count Two of the indictment Respondent was charged with having sold, transferred, or delivered approximately 1,000 counterfeit Federal Reserve Notes in the denomination of $100 in violation of Title 18, United States Code, Section 473. On September 28, 1984, Respondent entered into a "Plea Agreement" in which he agreed to plead guilty to Count Two of the indictment filed in case number 84-67-CR-ORL-18. By this Plea Agreement, Respondent acknowledged that he entered into the agreement freely and voluntarily. Respondent acknowledged his understanding of the nature of the offense to which he agreed to plead guilty and the penalties therefor. The factual basis for his plea includes an admission that he knowingly delivered 1000 counterfeit $100 bills to two individuals at a motel in Daytona Beach, Florida, for which he received approximately $15,000. On November 19, 1984, Respondent entered a plea of guilty to Count Two of the indictment, a felony. He was adjudicated guilty of this felony offense and sentenced to three years in prison. Respondent served approximately ten months of the three year sentence at the Federal Correctional Institute in Lexington, Kentucky. Upon his release from federal prison, Respondent spent four months at a halfway house in Fort Lauderdale, Florida. Respondent was not incarcerated at the time the Administrative Complaint was filed or at the time of the formal hearing. Respondent contends that he thought that he was working for the federal government when he committed the acts which resulted in his incarceration. This contention is rejected as lacking credibility and as being contrary to the Respondent's Plea Agreement. There is a dispute in the record as to whether Respondent notified Petitioner in writing as to his criminal conviction or his subsequent incarceration within thirty days of those events. Respondent contends that he notified Petitioner verbally and in writing of these events, but he was unable to identify the person he contends he notified verbally, nor did he produce a copy of his alleged written notification. Petitioner's records reflect no written notification from Respondent or from anyone on his behalf. This dispute is resolved by finding that Respondent did not notify Petitioner in writing as to his criminal conviction or his subsequent incarceration.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order which finds that Respondent violated the provisions of Section 475.25(1)(b),(f), and (p), Florida Statutes, and which revokes all real estate licenses previously issued Respondent. It is further recommended that no administrative fines be entered against Respondent. RECOMMENDED this 13th day of September, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3568 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact contained in paragraph 2 are rejected as being contrary to the evidence. Respondent's licensure is as a real estate salesman, not as a real estate broker. Whether Respondent was licensed as a broker or as a salesman would make no difference in the recommendation made as to the penalty to be imposed. All other proposed findings of fact are adopted in material part by the Recommended Order. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Suite N-308 Post Office Box 1900 Orlando, Florida 32802 William Richard Rossmeyer 180 Isle of Venice, #125 Post Office Box 7412 Fort Lauderdale, Florida 33338 Darlene F. Keller Division Director Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner correctly calculated the penalty to be imposed on Respondent for failing to have a sufficient amount of workers’ compensation coverage during the time period in question.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Department is the state agency responsible for enforcing the requirement in chapter 440, Florida Statutes (2016),1/ that employers in Florida secure workers’ compensation coverage for their employees. While an exemption can be obtained for up to three corporate officers, any employer in the construction industry with at least one employee must have workers’ compensation coverage. § 440.02(15), Fla. Stat. The Department fulfills its enforcement duty by conducting compliance investigations, and a compliance investigation can begin with a Department investigator visiting a worksite. Robert Conrad, LLC, is a construction company based in Green Cove Springs, Florida. It has been an active corporation in Florida since September of 2014, and Robert Conrad is the sole corporate officer. Anne Johnson is employed in Jacksonville, Florida, as a compliance investigator for the Department. On June 5, 2017, Ms. Johnson visited a worksite at 213 Charlemagne Circle, Ponte Verde Beach, Florida, where a house was being remodeled. Ms. Johnson approached the two men working on the house, Paul Zsizsek and Gary Day, and identified herself as a compliance investigator for the Department. When Ms. Johnson inquired about their employer, Mr. Day identified GLD Exclusive Home Renovation, LLC, and stated that he had an exemption from workers’ compensation coverage. Mr. Zsizsek stated that he worked for Robert Conrad, LLC, and gave Mr. Conrad’s phone number to Ms. Johnson. Ms. Johnson called Mr. Conrad, who stated that he did not have workers’ compensation coverage for Robert Conrad, LLC. Mr. Conrad also stated that he had an insurance agent and was in the process of attempting to acquire coverage. Ms. Johnson called the insurance agent identified by Mr. Conrad, and the agent reported that an application for workers’ compensation coverage had not yet been prepared and that Mr. Conrad had not remitted a down payment for coverage. After her conversations with Mr. Conrad and his insurance agent, Ms. Johnson looked for any records pertaining to Robert Conrad, LLC, within the Coverage and Compliance Automated System (“CCAS”) and the Division of Corporations. CCAS is a database maintained by the Department, and it houses all active workers’ compensation policies and exemptions. Insurance carriers in Florida are required by statute to report that information to the Department. CCAS indicated that Robert Conrad, LLC, had an exemption from workers’ compensation insurance that applied only to Mr. Conrad. There was no coverage for employees of Robert Conrad, LLC. After conferring with her supervisor, Ms. Johnson received authorization to issue a Stop-Work Order. Ms. Johnson served the Stop-Work Order and an Order of Penalty Assessment on Mr. Conrad via hand-delivery on June 5, 2017. The Stop-Work Order required Robert Conrad, LLC, to “cease all business operations for all worksites in the state” and was to remain in effect until lifted by the Department. A Stop-Work Order ceases a business’s operations until it obtains workers’ compensation coverage.2/ The Order of Penalty Assessment notified Robert Conrad, LLC, that it was required to pay an amount: [e]qual to 2 times the amount the employer would have paid in premium when applying approved manual rates to the employer’s payroll during periods for which it has failed to secure the payment of compensation within the preceding 2-year period. Employers who have not been previously issued a Stop-Work Order will receive a credit to be applied towards the penalty for: 1) the initial payment of the estimated annual workers’ compensation policy premium for coverage obtained subsequent to issuance of the Stop-Work Order, or 2) if coverage is secured through an employee leasing contract with a licensed employee leasing company, the dollar or percentage amount attributable to the initial payment of the estimated workers’ compensation expense for coverage obtained subsequent to issuance of the Stop-Work Order. On June 5, 2017, Ms. Johnson personally served on Robert Conrad, LLC, a “Request for Production of Business Records for Penalty Assessment Calculation” (“the Request for Production”).3/ Through the Request for Production, the Department sought various types of financial documents pertaining to Robert Conrad, LLC’s, payroll during the period between June 6, 2015, and June 5, 2017 (“the noncompliance period), so that it could calculate the penalty to be imposed on Robert Conrad, LLC. The business records requested by the Department consisted of payroll documents such as time sheets, check stubs, earnings records, and federal income tax documents; account documents such as all business check journals and statements, including cleared checks for all open and closed business accounts; check and cash disbursements; proof of any workers’ compensation insurance or exemptions; and subcontractor information. The Request for Production required Robert Conrad, LLC, to provide the aforementioned records within 10 business days of receiving the Request for Production. Along with the Request for Production, Ms. Johnson provided Mr. Conrad with a letter explaining how the penalty could be reduced. According to Ms. Johnson, the letter stated the following: There’s two ways to reduce a penalty. The first way is if they do a workers’ compensation policy, we give them credit towards the total penalty. The more down payment that they put towards the new policy, the better. We actually give them credit. If they give us proof of that credit – or proof of that down payment, we give them credit. And the second way is if they can get their business records to us within ten business days, we give them a 25-percent reduction towards the total penalty. On June 6, 2017, Mr. Conrad visited Ms. Johnson’s office and provided proof that he had acquired a new workers’ compensation policy for Robert Conrad, LLC. Mr. Conrad made a down payment of $1,416.40 on that policy, and the Department gave Robert Conrad, LLC, a dollar- for-dollar reduction on the penalty. As for the records that Mr. Conrad provided in response to the Request for Production, Ms. Johnson testified as follows: Q: What records did the Department receive from Mr. Conrad? A: We received partial records. There were a couple of items missing. We were missing check images. Q: Okay. And when the Department received these records from the employer, what date did it receive these records? A: On June 15th, the Department received the initial business records: bank statement, certificate of insurance, exemptions, 1099 proof, 1040 tax returns for 2015 and 2016, and there were several cash withdrawals. And we also needed to see the checks that were missing. Q: Okay. Was Mr. Conrad made aware of the missing checks and the case withdrawals? A: Yes.[4/] Q: Did Mr. Conrad – or were these records provided within the ten business day deadline to receive the 25-percent credit? A: No. Q: When was – so when it was time to calculate the penalty, had Mr. Conrad brought the checks in by that time frame? A: Not within the ten business days. Q: Were there any other times that the employer brought in additional records? A: On June 20th and June 23rd additional records were submitted. Q: Okay. And in order to be eligible for the 25-percent credit, when would the tenth business day – what day would that have fallen on? A: June 19th, 2017. Q: Okay. And after the employer brought more records in on June 20th and June 23rd, were the records complete then? A: The penalty auditor reviewed the records, and there were some missing checks and subcontractors. So I was asked to follow up [with] Mr. Conrad and ask him for that missing information. On September 15th, 2017, I contacted Mr. Conrad and Mr. Conrad said he would get that information that was missing. * * * A: I was going to say Mr. Conrad called on September 18th, 2017, and he said he was hopeful in getting the missing records and would get them to us as soon as possible. And then on the 20th, September 20th, 2017, he came into the office with the missing checks and spoke with the auditor. The checks missing from Mr. Conrad’s initial submission of business records on June 15, 2017, were significant because knowing the payees of those checks would enable the Department to ascertain if the payments were for payroll. While a bank statement would note that checks were issued during a particular month, a bank statement would not identify the payees and would be of no use in ascertaining whether the checks were for payroll. On September 15, 2017, Ms. Johnson conferred with Mr. Conrad about information that was still missing. Based on the documentation that had been provided by Robert Conrad, LLC, the Department issued an Amended Order of Penalty Assessment on October 25, 2017, stating that the Department would be seeking to impose a penalty of $103,369.58. On November 7, 2017, Mr. Conrad provided additional documents to the Department. The four missing checks may have been among those documents.5/ One check was for $2,800.00 to a cement company. Another was to a contractor for $350.00. A third check was to Lowe’s for $3,678.61, and a fourth was to the United States Treasury for $13,375.00. This new documentation resulted in the Department issuing on December 22, 2017, a 2nd Amended Order of Penalty Assessment indicating the Department was seeking to impose a penalty of $95,601.98. More information provided by Mr. Conrad led to the Department issuing a 3rd Amended Order of Penalty Assessment of $66,989.10. Chris Richardson, a penalty auditor employed by the Department, calculated the aforementioned penalty based on the business records provided by Mr. Conrad. For each person for whom Robert Conrad, LLC, failed to obtain workers’ compensation coverage during the noncompliance period, Mr. Richardson determined how much money Robert Conrad, LLC, paid each person during that period. The gross payroll amount for each person is divided by 100 in order to create a percentage, and the percentage associated with each person is then multiplied by an “approved manual rate.” An approved manual rate is associated with a particular class code. A class code describes an employee’s scope of work based on the type of work he or she performs on a daily basis. The National Council on Compensation Insurance publishes the Scopes Manual, and the Scopes Manual sets forth class codes for numerous types of work. Multiplying the gross payroll percentage by an approved manual rate results in a workers’ compensation insurance premium for a particular employee. As required by section 440.107(7)(d)1., Florida Statutes, each premium amount is multiplied by two in order to calculate a penalty associated with each employee for whom workers’ compensation insurance was not obtained. Mr. Richardson then added the individual penalties associated with each employee of Robert Conrad, LLC, in order to calculate the total penalty. The final penalty calculated by Mr. Richardson (and set forth in the 3rd Amended Order of Penalty Assessment) is $66,989.10. During the final hearing, Mr. Conrad did not dispute that Robert Conrad, LLC, did not have sufficient workers’ compensation coverage during the noncompliance period. Also, he did not dispute the method by which the Department calculated the penalty set forth in the 3rd Amended Order of Penalty Assessment. Mr. Conrad did take issue with the penalty being double the amount that he should have been paying in workers’ compensation premiums between June 6, 2015, and June 5, 2017.6/ Mr. Conrad also asserted that he was unaware that he was required to obtain workers’ compensation coverage for employees of Robert Conrad, LLC. In addition, Mr. Conrad asserted that the penalty should be reduced by 25 percent because he timely provided the Department with all of the required documentation except for four checks.
Recommendation Based on 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 imposing a penalty of $66,989.10 on Robert Conrad, LLC. DONE AND ENTERED this 14th day of May, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 14th day of May, 2017.
Findings Of Fact Respondent, Robert C. Akers, at all times relevant hereto, was a licensed real estate broker in Brooksville, Florida, having been issued license number 0000587 by Petitioner, Department of Professional Regulation. Victoria Weeks was employed by Respondent as a real estate salesperson. In May, 1978, Weeks negotiated the sale of a residence to be built on Lot 19, Block 7, Unit 2 of Hill 'N' Dale Subdivision in Hernando County, Florida, to Roseann Iannaccone. The sale was conditioned upon the buyer being approved by the Farmers Home Administration (FHA) for a mortgage loan of approximately $25,500. A part of the mortgage loan application was personally prepared by Iannaccone. Another part was prepared with the assistance of Akers' secretary. Respondent himself prepared or assisted in the preparation of two requests for verification of employment dated June 18, 1978, and April 3, 1979, respectively, which were a part of the application (Petitioner's Exhibit 1). Both verification sheets stated that Iannaccone was employed by Respondent in the position of secretary, that she earned approximately $30 to $40 per week, and that employment was considered to be "permanent". During the period of March, 1977, through August, 1980, Iannaccone was employed by Sam Sack, the developer of Ridge Manor, a subdivision in Hernando County. Sack shared office space with Akers' real estate firm, which handled sales within the subdivision. Although she worked for Sacks, Iannaccone also devoted a portion of her time to assist Akers and Weeks, who occupied the same office. She performed such jobs as typing, answering the telephone, sending out promotional letters, and cleaning the office. For this she was paid by Akers on a periodic basis, depending on the amount of work performed. Akers also advanced her money periodically which she "worked out" by performing various jobs in the office or at his home. The compensation averaged out to approximately $30 to $40 per week. This relationship continued until August, 1980, when Sam Sack left Brooksville; Iannaccone then moved from Brooksville to Seffner, Florida, where she now resides. During the time period in question, no payroll records were kept by Respondent, nor did he deduct her compensation for tax purposes. Similarly, Iannaccone did not report the money as income on her income tax return. When Iannaccone filed her application with the FHA, she was advised by the FHA to report all income on her application, regardless of whether it was for part-time employment, or whether it had been reported for income tax purposes (Respondent's Exhibit 2). For this reason, Akers filled out the verification of employment forms and reported that Iannaccone earned around $30 to $40 per week as his employee. Because her primary employer, Sam Sack, was expected to remain in the Brooksville area indefinitely, Akers also indicated that her employment with him would be permanent. Respondent has been a real estate broker-salesman in Brooksville for over 20 years. He has been president of the Hernando County Board of Realtors and is active in many civic and community affairs. He enjoys a reputation of honesty, integrity and fair dealing, and has never been the subject of any prior disciplinary proceedings. (Respondent's Exhibit 1).
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the complaint against Robert C. Akers be dismissed. DONE AND ENTERED this 13th day of May, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1981.
The Issue Whether Respondent filed frivolous motions to introduce additional evidence after the final hearing and after proposed recommended orders had been filed that needlessly increased the cost of litigation, justifying the imposition of sanctions under Section 120.569(2)(e), Florida Statutes (2007).
Findings Of Fact 1. The Petitioner, Department of Management Services, Division of Retirement ("Division") filed Petitioner’s Motion for Attorney’s Fees, on April 21, 2008. The Motion is as follows: The Department of Management Services, Division of Retirement, by and through its undersigned counsel, requests the Administrative Law Judge to enter an order awarding the agency reasonable attorney’s fees in this case and states: The case was originally referred to the Division of Administrative Hearings on June 20, 2007. Pursuant to the Order of Pre-hearing Instructions and after extensive discovery, the Parties filed their respective exhibit list.(1) The Final Hearing was held on January 16, 2008. At the Final Hearing, the Administrative Law Judge ruled certain evidence would not be considered because it was not timely filed. Counsel for Mr. Tamalavich, Ms. Jane Letwin, subsequent to the Final Hearing, filed three additional motions entitling the Division of Retirement to receive attorney’s fees and costs. These motions were frivolous. Jurisdiction was specifically reserved within the Proposed Recommended Order to “consider Respondent’s claim of entitlement to fees and costs.” Each motion sought to supplement the record by introducing exhibits not timely filed. (See: Exhibit-1, dated March 4, 2008; Exhibit-2, dated March 14, 2008; Exhibit 3, dated March 21, 2008.) The filing of the motions as described in paragraph two (2) above, constitute grounds for the imposition of attorney’s fees and costs as set forth in Section 120.569(2)(e), Florida Statutes (2007), which reads: All pleadings, motions, or other papers filed in the proceeding must be signed by the party, the party’s attorney, or the party’s qualified representative. The signature constitutes a certificate that the person has read the pleading, motion, or other paper and that, based upon reasonable inquiry, it is not interposed for any improper purposes, such as to harass or to cause unnecessary delay, or for frivolous purpose or needless increase in the cost of litigation. If a pleading, motion, or other paper is signed in violation of these requirements, the presiding officer shall impose upon the person who signed it, the represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee. An objection to each motion was filed by counsel for the agency, asserting the exhibits were outside the record in the case and would prejudice the agency. (See: Exhibit-4, dated March 5, 2008; Exhibit-5, dated March 14, 2008; Exhibit-6, dated March 24, 2008.) Counsel also requested attorney’s fees and costs. In support of this motion, counsel has attached affidavits as to attorney’s fees with an activity record for the time spent responding to the motions. The amount totals $915.00. Footnote: Respondent agreed to all of Petitioner's exhibits. In response to the Motion for Attorney's Fees, the Respondent filed Petitioner’s (sic) Response to Motion for Attorney’s Fees (in which references to the parties are based on their status in the original retirement case, not the current fees case), stating that: PETITIONER [sic] THROUGH UNDERSIGNED COUNSEL, files this Response to the Motion for Attorney’s Fees pursuant to Fla. Stat. 120.569 (2 © [sic], Fla. Stats. 2007, and would state: The initial Motion to Supplement the Record was filed in good faith as a response to the urging by the Administrative Law Judge who encouraged the efforts to locate the missing payroll record. The entire episode which occurred during the trial hearing is described in detail in the Motion and was filed in good faith. The goal was to ascertain the facts in the interests of justice, not for delay or bad faith. The Motion to Take Notice was also filed in good faith based on the existence in the record of the documents which were the subject of the motion. The Second Motion to Supplement the Record was also filed in good faith and in the interests of justice, as the very document found in another case with similar issues which involved the Respondent Division of Retirement was thought to be of great interest to the court. This document was probative of the very concepts proposed by Petitioner that the notice mandated by the governing rule had to be presented in writing to the employee upon his initial hiring in order to satisfy the requirements of the FRS’ own rules and regulations. This document was not prejudicial to the Respondent since it must have been aware of the document well before the hearing. Proposed Recommended Orders were filed in the retirement case, DOAH Case No. 07-2759, on February 25, 2008. Respondent filed the initial Motion to Supplement the Record on March 4, 2008. The Motion requested consideration of documents discovered by Mr. Tamalavich's wife after the hearing. Respondent's Counsel stated that questions raised at the hearing prompted the search for more documents and made her believe that she had been instructed to have her client do so. The specific questions related to whether or not Mr. Tamalavich worked during a certain month. The Division's witness testified that she had no way of knowing the answer from her records and that it would be best to ask Mr. Tamalavich. Respondent's Counsel did not explain her failure to ask her client to search for records to support his allegations prior to filing the case or during discovery. She also maintained that, as used in her motion, "[t]he terminology 'supplementing the record' was meant to be the equivalent to a motion to reopen the record." See Petitioner’s Proposed Recommended Order on Respondent’s Motion for Attorney’s Fees, page 2. In the second post-hearing pleading, Respondent's Counsel filed a Motion to Take Notice. Respondent's Counsel argued that the exhibit that was the subject of the Motion had not been withdrawn during the hearing and that it was re- submitted after she checked the DOAH website and found that it had been logged in by the DOAH Clerk at 3:56 p.m. on the day before the hearing began. As explained in the Recommended Order: That [tender] was untimely under the requirements of the pre-hearing order [that required submission of a list of exhibits no later than ten days prior to the date of the hearing]. In addition, when an objection to the introduction of the exhibit was raised at the hearing, the record reflects, on page 47, line 20 of the transcript, that the tender was withdrawn. At the final hearing, Respondent's Counsel said she did not intend to have her words construed as withdrawing the tender of an exhibit because "I couldn't withdraw something that had been filed in the record." DOAH Case No. 08-1770F, transcript p. 12, lines 2 - 4. 5. The third pleading, the Second Motion to Supplement the Record, was filed to introduce an exhibit used in a DOAH case that was decided in January 2004. Respondent's Counsel conceded that she could have possibly requested and received the document while she was preparing her case, explaining,"[H]owever, notwithstanding, I certainly didn't file this motion to harass or delay." DOAH Case No. 08-1770F, transcript p. 23, lines 23 - Petitioner asserted that the only effect of the motion was "to harass my client and take up additional, take up my time." DOAH Case No. 08-1770F, transcript p. 23, lines 8 - 9. The Petitioner submitted an Affidavit As To Attorney's Fees from a 26-year member of The Florida Bar, attesting to the reasonableness of a fee of $150.00 an hour for a total of 6.1 hours, or a total fee of $915.00. According to the activity sheet, the attorney’s reviewed each motion, consulted with the client on each, and prepared the three responses. During the telephone final hearing, Respondent's Counsel suggested that the work performed should have taken no more than .5 hour because the responses to the three motions were essentially the same. She also asserted that the imposition of any sanction is improper due to her good faith, subjective belief that she was pursuing a just result for her client, and that the reasonable inquiry required, under Subsection 120.569(2)(e), was "not [whether] the motion is legally permissible," [b]ut whether or not the facts you are advancing in the motion are, indeed accurate." DOAH Case No. 08-1770F, transcript p. 44, lines 14 - 18. The Division established that there was no legal justification for the three post-hearing/post-proposed recommended order motions filed in DOAH Case Number 07-2759. There is no dispute that the three pleadings at issue were signed by Respondent's Counsel, not by the Respondent, nor by Respondent's co-counsel who entered a Notice of Appearance, but did not otherwise participate in the proceedings.
The Issue Whether Respondent failed to maintain adequate current fiscal records relating to the financial operations of the facility, in violation of Section 400.419 (3)(c), Florida Statutes and Rules 10A-5.021(1) and 10A-5.024, Florida Administrative Code.
Findings Of Fact At all times relevant, Respondent, doing business as Oakbridge, was licensed by Petitioner, HRS, as an Adult Congregate Living Facility (ACLF). During the inspection of the facility on July 19, 1990 and again on October 18, 1990, the date of the revisit of the facility, Respondent had no written accounting procedures. Therefore, they were not available for review and no expense records were maintained. Respondent resides on the premises and there were no residents of the ACLF on the date of the first inspection; one on the date of the second. Although Respondent acknowledged receipt of the HRS inspection report, she did not understand the need for preparing or maintaining the written accounting procedures or expense records until she had residents in the ACLF. A completed expense record was accepted by HRS in November, 1990, several months after the assigned date of compliance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 400.417(1) and 400.427, Florida Statutes and that a civil penalty be imposed in the amount of $100, pursuant to Section 400.419(3)(c), Florida Statutes. RECOMMENDED this 26th day of August, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of August, 1991. COPIES FURNISHED: Paula M. Kandel, Esq. Senior Attorney Department of Health and Rehabilitative Services Office of Licensure and Certification 7827 North Dale Mabry Hwy. Tampa, Florida Mildred H. Thompson Administrator, Oakbridge 5546 Ridge Road Seminole, Florida Sam Power Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue is whether Respondent committed the offenses alleged by the Administrative Complaint, and, if she did, the penalty that should be imposed.
Findings Of Fact Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including licensed real estate salesmen. At all times pertinent to this case, Respondent, America Canizales, was licensed by Petitioner as a real estate salesman. At the time of the hearing, however, Respondent's license was on inactive status. Respondent was the real estate salesman who represented Elvira Martinez when Ms. Martinez bought her apartment in the middle of 1987. As a result of her professional dealings with Ms. Martinez, Respondent learned that Ms. Martinez was interested in investing in real estate. On December 4, 1987, Respondent persuaded Ms. Martinez to enter into a real estate transaction with her. Respondent intended to purchase a house for the sum of $34,000, but she did not have the funds necessary to close the transaction. Respondent needed an additional $5,000 to apply toward the purchase price and to pay the costs of closing. The house was to be purchased by Respondent in her individual capacity in a transaction that was independent of her status as a real estate salesman. The agreement executed by Respondent and Ms. Martinez on December 4, 1987, provided for Ms. Martinez to give to Respondent the sum of $5,000. In exchange for this money, Respondent agreed that she would convey to Ms. Martinez one-half interest in the $34,000 house after she had acquired title to the property. In the event the transaction did net close and Respondent did not obtain title to the house, Respondent was to return to Ms. Martinez the sum of $5,000 without the payment of interest. Between December 4, 1987, and December 8, 1987, Ms. Martinez gave to Respondent a check made payable to America Canizales in the amount of $5,000. This check, dated December 9, 1987, was to be held in trust by Respondent until the closing on the purchase of the $34,000 house. At no time did Respondent deposit the check in a bank account. There was no evidence that Respondent took any action to safeguard Ms. Martinez's check or the funds represented by the check. Although the check was dated December 9, 1987, the check was cashed on December 8, 1987, at the bank used by Ms. Martinez. The person who cashed the check endorsed it in the name of America Canizales. On or about December 10, 1987, Respondent told Ms. Martinez that Respondent's husband had stolen all of Respondent's money and that he had also stolen Ms. Martinez's check. Respondent also told Ms. Martinez that because of the theft, she would be unable to close their contemplated transaction and promised to repay the $5,000. Respondent offered no further explanation or accounting for the funds. Respondent made repeated promises to repay Ms. Martinez the sum of $5,000 on the occasions Ms. Martinez was able to contact her. Thereafter, Respondent moved from the State of Florida without letting Ms. Martinez know where she could be reached. When Ms. Martinez located Respondent in Chicago, Illinois, Respondent again promised to repay Ms. Martinez. As of the time of the formal hearing, Respondent had returned to Dade County, Florida, but she had made no effort to repay Ms. Martinez the sum of $5,000. Respondent repeatedly misled Ms. Martinez as to her intentions to repay her. The factual allegations of the Administrative Complaint filed by Petitioner to "initiate this case were denied by Respondent. The request for a formal hearing was timely filed by Respondent.
Recommendation Based on the foregoing Findings of `Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a final order which finds that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further recommended that the final order revoke the real estate salesman's license issued to Respondent, America Canizales. DONE and ORDERED this 30th day of January, 1990, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1990. COPIES FURNISHED: John R. Alexander, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 America Canizales 158 West 10th Street Hialeah, Florida 33010 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Darlene Keller, Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact On or about September 24, 1982, the Petitioner, Donald Ray Shelton, submitted his application to the Department of Insurance in order to become licensed as an Ordinary Life including Disability agent in the State of Florida. On January 21, 1983, the Department of Insurance, by letter, notified Petitioner that his application for examination and licensure as an Ordinary Life including Disability agent had been denied. That letter, in summarizing the grounds for denial, stated: The reason for the denial is because on your application for license you failed to note that you had been charged with a felony, your record of issuing worth- less checks and your record of traffic offenses. Additionally, on a previous application for license processed by the Department of Insurance for examination, you gave false information, i.e., social security number, birthplace, residence address, employment history and license history as insurance agent. One of the grounds for denial related to an application filed with the Department by American Republic Insurance Company in March, 1981. (See Respondent's Exhibit 1.) The social security number, birthplace, residence address, employment history, and license history as an insurance agent were all false. This information had been entered on the application by the Petitioner during a job interview with American Republic. The petitioner signed the application but did not sign in the presence of a notary. Petitioner also signed an additional application form titled Application for State and County License as Life/Disability Agent. (See Joint Exhibit No. 2.) This form did not require a notary. The interview with American Republic had been arranged by a close friend and the Petitioner gave the false information in order to not appear disinterested. He, however, did not want his friends, relatives, and business associates being bothered by a background investigation for a job he was not going to accept. The Petitioner had not intended for the March, 1981, application to be filed with the Department of Insurance, because he had no intention of going to work for American Republic. He learned that the application had been filed when he received notification that he had been approved for taking the examination. He did not take the examination. He did not notify the Department of Insurance that the application was filed without his knowledge or authorization. In October, 1982, Petitioner sent a letter of explanation to the Department after inquiry was made about the March, 1981, application in connection with the processing of the current application. (See Petitioner's Exhibit No. 1.) Another ground for denial by the Department was the Petitioner's failure to disclose he had been arrested for a felony, auto theft. Petitioner unequivocally denied ever having been arrested or charged with auto theft or any other felony. The evidence offered by the Department did not establish that the Petitioner had ever been arrested for larceny of an auto or that larceny of an auto as set forth in the Index to Criminal Records (Respondent's Exhibit 3) was a felony. petitioner did not fail to disclose an arrest for or charge of larceny of an auto. The application form does not ask for nor provide a space for the disclosure of traffic, bad check offenses, or other non-felony offenses. On October 29, 1980, the Petitioner pled guilty and was found guilty of the crime of worthless checks. The offense arose out of a check written to the Army Store on June 8, 1980, in the amount of $149.46, and returned due to the account being closed. The check was signed by Petitioner and was check number 126. The face of the check reveals that the account was in the name of "Donald R. Shelton" and "Vickie Shelton". Petitioner was sentenced to six months imprisonment which was suspended for two years, two years probation, and payment of restitution, and court costs. This conviction occurred in Case Number 80 Cr 4469, 30th District Court, Baywood County, North Carolina. Also, on October 29, 1980, Petitioner pled guilty to six other worthless check charges. Court records reveal the following information with regard to those convictions. Case No. 3205 involved Check No. 107 written to Bilo in the amount of $60.57 on March 1, 1980, and returned not paid because of insufficient funds. Case No. 80 Cr 2639 arose out of Check No. 3 written to Ingles on February 22, 1980, in the amount of $37.49 and returned not paid because of insufficient funds;. This check is a counter check without the name and address of Petitioner and Vickie Shelton printed on it. The check number is written on the check rather than pre-printed. Case No. 80 Cr 4053 arose out of Check No. 108 written on March 4, 1980, to Gas & Groceries in the amount of $21.30 and returned not paid because of insufficient funds. Case No. 80 Cr 4054 involved Check No. 105 written on March 1, 1980, to Gas & Groceries in the amount of $23.60 and returned not paid because of insufficient funds. Case No. 80 Cr 6027 involved Check No. 120 written to Potts Texaco on June 7, 1980, in the amount of $25.50 and returned not paid because of account closed. Case Nos. 80 Cr 2639, 80 Cr 4053, 80 Cr 4054, and 80 Cr 6027 were consolidated and for the conviction in these four cases, Petitioner was sentenced 30 days imprisonment suspended for two years with two years probation and restitution on each check and court costs in each case. This sentence was to begin following completion of the sentence in Case No. 80 Cr 4469 discussed in Paragraph 7 above. In Case No. 3205, Petitioner was sentenced to six months imprisonment, suspended for two years with two years probation and payment of restitution and court costs. All of the checks in these cases were written on the same account. This account was a joint account with Petitioner and his ex-wife as signatures on the account. On January 9, 1981, the Petitioner pled guilty and was convicted of worthless checks. That charge arose out of Check No. 109 written on March 4, 1980, to John Graham's in the amount of $259.98 and returned not paid because of insufficient funds. He was sentenced to pay court costs plus restitution. On February 16, 1981, the Petitioner pled guilty to the crime of worthless checks. The charge involved Check No. 101 written to Sky City on February 28, 1980, in the amount of $33.58 and returned not paid because of insufficient funds. Petitioner was convicted and sentenced to pay court costs plus restitution. On February 25, 1981, after making full restitution, the two year probation was terminated by the Court. Each of the worthless checks discussed above was written in February, March, or June, 1980. During the period August, 1979, to July, 1980, the Petitioner was unemployed. During this period, Petitioner was also going through a hotly contested divorce and checks were being written on the joint account by his now ex-wife without his knowledge. During this time, Petitioner did not make an effort to determine the balance in his checking account. The Petitioner has been convicted of the following traffic offenses: September 24, 1970: Speeding. September 18, 1970: Violation of quiet zone ordinance. September 23, 1971: Expired inspection sticker. October 19, 1972: Driving under the influence. Petitioner was 17, 18, and 19 years old when the offenses occurred. From April, 1977, to August, 1979, the Petitioner was employed by Globe Life Insurance Company in the State of North Carolina. Until August 1, 1979, Petitioner was a licensed Life and Accident and Health Agent in the State of North Carolina. The Petitioner is an agent in good standing with the Department of Insurance of the State of North Carolina. He had no complaints made against him or his license while selling insurance for Globe Life. He was a good, reliable agent while with Globe Life.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner's application for licensure be granted conditioned upon passing the required examination and payment of the necessary fees. DONE and ENTERED this 15th day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1983. COPIES FURNISHED: Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32301 Donald Ray Shelton Post Office Box 155 Grand Island, Florida 32735 Ruth Gokel, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
