The Issue The issue is whether Respondent, Model 2000, Inc., a talent agency, violated Sections 468.402(1)(d), 468.402(1)(e), 468.402(1)(s), 468.402(t), 468.410(2), 468.410(3), 468.412(6) and 468.413(2)(e), Florida Statutes, through solicitation, fraud, misrepresentation, concealment, false promises, false pretenses, exploitation, trick, scheme, or device, exercise of undue influence, requiring photography services as a prerequisite condition of employment, and failure to provide contracts of representation as alleged in each of the 15 separate Administrative Complaints filed in this cause.
Findings Of Fact Petitioner is responsible for the licensing and regulation of talent agents in Florida. Authority for the licensure and regulation is set forth in Chapter 468, Florida Statutes, and associated provisions of the Florida Administrative Code. At all times relevant and material to this inquiry, Respondent, Model 2000, Inc., was owned and operated by Nancy Sniffen, a.k.a. Nancy Keogh (Sniffen), and was licensed in the State of Florida as a Talent Agency, having been issued license number TA 0000618. The last known address for Respondent is 4852 West Gandy Boulevard, Tampa, Florida. At all times relevant to this case, Sniffen advertised in print, served, operated, managed, and held herself out to the public as a Talent Agent by and through Model 2000, Inc. In the Tampa Tribune daily newspaper under the headings, Classified, Employment General Section, Sniffen published the following ad and variations thereof: ACT/MODEL NOW Kids! Teens! Adults! For TV commercials, print, catalogs, movies. Get started the right way now!! Call 837-5700 for interview. No fees Model 2000 Inc. TA#681. As a direct result of the above advertisement, Renee Donaldson, Irma Avery, Charlene Mars, Gina Hughes, and Robert Mikolajczak responded to the Tampa Tribune advertisement. In the Weekly Planet, a hiring ad, similar in content to the Tampa Tribune ad, containing "Call 837-5700" was published by Model 2000, Inc. As a direct result of this advertisement in the Weekly Planet, Athena Lopez and Lisa Menuto responded. During the initial meeting between Sniffen and the witnesses herein, she made promises, guarantees, and statements known to be false when made regarding each individual's looks and their latent talents. They were told that each had great employment opportunities as models, and with her connections with several department stores, J.C. Penny, Beall's, and Dillards, and her connections with their catalog companies, each model was assured of employment. Based upon their individual looks and ethnic differences, Sniffen stated to one or more of the witnesses who testified that there was: "a high demand for ethnic models" (non-whites), "lots of job for Hispanics," "abundance for work for people with your looks," "they are looking for someone your age," and "there is a demand and need for someone like you." Sniffen intended these statement to induce individuals to rely upon her assessment and expertise as a modeling agent to secure employment. At the time Sniffen made the above statements, she knew or should have known that employment opportunities for models required more than her one-look assessment. Sniffen assured each witness that "there was a lot of work in the area"; "companies were looking for people like [sic]"; "have so much work and not enough models to fill jobs"; "I'm affiliated with J.C. Penny, Burdines, and Dillards in their casting area for hiring for photo shots"; and "Florida is number one in hiring for print work." Based upon these representations or variations thereof, Athena Lopez, Irma Avery, Charlene Mars, Fiona West (for her daughter Christy West), Lisa Menuto, Robert Mikolajaczak, Gina Hughes (for her daughter Gabriella Hughes), Tom Stanton, and Nelita Parris agreed to have their photographs taken and agreed to engage Sniffen as their respective modeling agent and representative. The record contains no evidence that Sniffen presently had or had in the past "affiliations" with any of the major chain stores or their casting departments. During the initial meeting with these witnesses, Sniffen required them, as a condition precedent to beginning their modeling career, to have photographs made. These photographs were to be taken by Sniffen's staff photographers, and from those photographs each model was required to have composite cards printed at an additional cost. Based upon the representations made by Sniffen requiring each model to have composite card photography, each witness agreed and paid Sniffen a photograph and composite card fee. The witnesses below made payments either in cash and/or by credit card to have their photographs taken by Sniffen's photographers at a location she designated. Spencer Borisoff $934.07 Tom Stanton $855.00 Athena Lopez $466.94 Lisa Menuto $693.00 Gina Hughes $1,040.82 Robert Mikolijcak $347.00 Aaliyah Womack $603.92 Charlene Mars $261.15 Irma Avery $774.90 Nelita Parris $150.00 Christy West3 $855.00 Nelita Parris $150.00 No witness hereinabove secured employment with any company as a result of the composite card photographs. Sniffen's representation as their talent agent that composite cards were a pre-employment requirement in the modeling business was untrue and knowingly made with the intent to, and in fact did, cause each witnesses to reply thereon to their determinant. Sniffen hired Anthony Guagliardo, a Florida-licensed public service photographer since 1999, as one of her three photographers to take photographs of her clients. From November 1999 to April 2000, Guagliardo worked for Sniffen taking photographs of her clients. Sniffen called the Photo Hut were he worked seeking a photographer that would assist her with photographing her clients who came in to have their composite cards made. Sniffen's initial phone conversation at Photo Hut was with another person on duty who asked other employees if anyone was interested in part-time work. After a brief conversation, Guagliardo agreed to be a photographer and began working for Model 2000, Inc. According to his testimony, Guarliardo's daily employment hours were from 9:00 a.m. to 5/6:00 p.m. daily. He worked infrequently on Saturdays and Sundays. For his photography services, he was paid $25.00 per hour. During a routine day, Guagliardo testified that as many as 20 persons would arrive to have their pictures taken, and he would take 18 shots of each client in three different poses or positions. Mr. Guagliardo testified that a bulk purchase of film reduced cost of each roll of film to $2.00 per roll. The contact sheet cost $20.00 per sheet from which 72 photographs were made. A single roll of film was needed to photograph two clients. The cost to Sniffen for one hour of the photographer's time, a roll of film, and two contact sheets averaged $65. The average amount Sniffen charged each of the 11 clients listed above for their photo-shoot was $583.00 each. During the time he was on duty, Guagliardo testified that normally two additional photographers were also working doing photo shoots for Sniffen. The evidence clearly demonstrates that Sniffen advertised to attract customers, each of whom she required payment for photographs upon her representations that composite photograph cards were a pre-employment requirement for modeling. The evidence sufficiently demonstrates that Sniffen had no honest intent; her singular purpose was financial gain, and her means was the photography/composite card requirement. Once monies were paid, few of the witnesses were able to contact Sniffen and none secured modeling employment through Sniffen's efforts. The models, believing Sniffen's assurances that composite card photographs were necessary for securing employment in modeling, later came to realize Sniffen's intent was only to secure payment for the photo sessions. Sniffen's continued refusals to answer phone calls, to communicate with the witnesses after composite card payments were made, and the lack of leads and/or contacts from potential employers demonstrated her single-minded purpose not to assist them as their modeling agent. They were intentionally misled by Sniffen's false promises. The Agency proved the allegations in the following Administrative Complaints: DOAH 02-2982 - Spencer Borisoff DOAH 02-2983 - Tom Stanton DOAH 02-2984 - Athena Lopez DOAH 02-2985 - Lisa Menuto DOAH 02-2988 - Gina Hughes DOAH 02-2990 - Robert Mikolkczak DOAH 02-2992 - Aaliyah Womack DOAH 02-2993 - Charlene Mars DOAH 02-2994 - Irma Avery DOAH 02-2995 - Nelita Parris DOAH 02-2996 - Christy West The Agency presented no evidence concerning the administrative complaints below and have not met its required burden of proof. DOAH 02-2986 - Bilan Evans DOAH 02-2987 - Louis Kelbs DOAH 02-2989 - John Greene DOAH 02-2991 - Van Saint Meyer
Recommendation Upon consideration of the facts found, the evidence admitted, and the Conclusions of Law reached, it is hereby RECOMMENDED that: Petitioner enter a final order dismissing the following Administrative Complaints: DOAH Case No 02-2986; DOAH Case No. 02-2987; DOAH Case No. 02-2989; and DOAH Case No. 02-2991. It is further Recommended that: Petitioner enter a final order finding Respondent in violation of Section 468.413(2), (3) and (4), Florida Statutes, and impose the following penalties: Require Respondent to make restitution to the Complainants below within 60 days: Case Nos. Complainants Amount DOAH 02-2982 Spencer Borisoff $934.07 DOAH 02-2983 Tom Stanton $855.00 DOAH 02-2984 Athena Lopez $466.94 DOAH 02-2985 Lisa Menuto $693.02 DOAH 02-2988 Gina Hughes $1,040.82 DOAH 02-2990 Robert Mikolkczak $347.00 DOAH 02-2992 Aaliyah Womack $603.92 DOAH 02-2993 Charlene Mars $261.15 DOAH 02-2994 Irma Avery $774.90 DOAH 02-2995 Nelita Parris $150.00 DOAH 02-2996 Christy West $855.00 Impose a fine in the amount of $1,000 for each of the following Administrative Complaints: DOAH Case No. 02-2982; DOAH Case No. 02-2983; DOAH Case No. 02-2984; DOAH Case No. 02-2985; DOAH Case No. 02-2988; DOAH Case No. 02-2990; DOAH Case No. 02-2992; DOAH Case No. 02-2993; DOAH Case No. 02-2994; DOAH Case No. 02-2995; and DOAH Case No. 02-2996, for a total of $11,000 in fines. Permanent revocation of Respondent's license. Should Respondent fail to timely comply with full payment of the restitutions and the fines as herein ordered, the Agency pursue those sanctions as provided in Sections 468.413(2) and 468.413(4), Florida Statutes. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 10th day of January, 2003.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Helen Stahler, has filed a claim against the bond in the amount of $198.00 alleging that Passport failed to perform on certain contracted services. In response to an offer run in a local newspaper on an undisclosed date in early 1991, petitioner agreed to purchase a five-day, four-night trip for two to the Bahamas at a cost of $99.00 per person. For this, she wrote two checks payable to Passport, each in the amount of $99.00. Although Passport has no record of the transaction, it may be reasonably inferred that the advertisement was run by, and the package purchased directly from, Passport since petitioner's checks were endorsed by Passport and deposited in a bank used by that entity. After receiving a videotape, brochure and travel certificate, petitioner attempted by telephone to reserve certain dates for her trip. Because the certificate could not be used on a weekend, a fact not known at the time the certificate was purchased, petitioner became frustrated and requested a refund of her money by letter dated January 27, 1992. To date, she has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $198.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of January, 1995. COPIES FURNISHED: Helen Stahler 11200 Walsingham Road, Number 69 Largo, Florida 34648 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue This is a license discipline case in which the Respondent has been charged by Administrative Complaint with numerous violations of Part VII of Chapter 468, Florida Statutes (1989), which are the statutory provisions regulating the talent agency business.
Findings Of Fact At all times material hereto, Respondent has been licensed as a talent agency in the State of Florida, having been issued license number TA 0000015. Respondent's last known address is 2803 East Commercial Boulevard, Suite #204, Fort Lauderdale, Florida 33308. At all times material hereto, Respondent has been married to Bill Daniels, a photographer, whose office is in the same building as the Respondent's agency. The Respondent and Bill Daniels share living quarters, expenses, profits from each other's incomes, and a joint personal checking account. At all times material hereto, Art Feldman (who is also sometimes known as "Art Field"), under the Respondent's direction, regularly spoke to, interviewed, and took money from artists who sought work through T.J. Norris Co., Inc. At all times material hereto, the Respondent and Art Feldman recommended only Bill Daniels as a photographer to the artists seeking to register with the Respondent. At all times material hereto, the Respondent, as well as Art Feldman and Ed Russell (who was another of Respondent's employees), were authorized by Bill Daniels to collect funds from and issue receipts to talent registered with the Respondent for photographic services and to obtain Bill Daniels picture releases from talent. The Bill Daniels receipts reflected that the Respondent "does not guarantee work or casting." At all times material hereto, Bill Daniels, at no charge to the Respondent, would make up photos from proofs of talent registered with the Respondent, a service Mr. Daniels did not provide to other talent agencies. Bill Daniels gave the Respondent the photography negatives of talent registered with Respondent. Facts regarding Counts One, Two, and Three -- Laurie Wells On or about February 2, 1988, Laurie Wells, after seeing Respondent's advertisement, took her daughter, Jena, to the Respondent's agency for the purpose of procuring modeling and/or acting work for her daughter, who was three years old at the time. The Respondent and Art Feldman told Ms. Wells that Jena would be perfect for an upcoming television series starring Zsa Zsa Gabor. The Respondent and Art Feldman both told Ms. Wells that she would not be able to use her own photographs of Jena, but would need to have a portfolio of photographs taken by Bill Daniels before Jena could be submitted for consideration for a role in the television series. Ms. Wells paid Mr. Feldman three hundred twenty- five dollars to register her daughter with the agency and to have photographs taken by Bill Daniels. Nevertheless, Jena was never called for casting for the television series and Jena never received any work through Respondent's agency. Ms. Wells never received a copy of the contract she signed with the Respondent's agency. At the time she was dealing with the Respondent's agency, Ms. Wells was a beginner in the talent industry. The photographs that Ms. Wells brought with her to her first meeting with the Respondent and Mr. Feldman were current photographs of Jena. The photographs that Ms. Wells brought with her to that first meeting were later used by other talent agencies from which Jena obtained work. Even though the Respondent and Mr. Feldman never guaranteed any work for Jena, they both made statements implying that there was lots of work available and that Jena would be perfect for some of that work. Facts regarding Counts Four, Five, and Six -- Donna Thomas On or about March 29, 1988, Donna Thomas, as a result of one of Respondent's advertisements, took her four-year-old granddaughter, Tami, to Respondent's agency to procure modeling work for Tami. Ms. Thomas spoke with both Art Feldman and with the Respondent. The Respondent told Ms. Thomas that her granddaughter was one of the most beautiful little girls they had had in the agency for a long time. The Respondent went on to state that she could definitely get Tami all kinds of work, but before they could do so Tami would have to have some pictures made. The Respondent also suggested that the pictures should be made as soon as possible. It was suggested to Ms. Thomas that she should have the photographs done by Bill Daniels. Ms. Thomas was not told of any other options for obtaining photographs. Ms. Thomas paid the Respondent two hundred fifty-five dollars to register Tami with the agency and to have photographs of Tami taken by Bill Daniels. The Respondent's agency never procured any work for Tami; the agency never even called about any work opportunities for Tami. At the time of her dealings with the Respondent's agency, Ms. Thomas was a beginner or novice to the talent industry. The evidence in this case is unclear as to whether the Respondent did or did not provide a copy of a contact to Ms. Thomas or to Tami's parents. Facts regarding Counts Sixteen, Seventeen, and Eighteen--Mr. and Mrs. Waldron On or about April 21, 1988, Mrs. Waldron, after seeing one of the Respondent's advertisements, took her son Richard to the Respondent to procure work for him in modeling or acting. Art Feldman told Mrs. Waldron that her son Richard was absolutely beautiful and was exactly what the agency was looking for. Feldman went on to say that he received calls every day from people who are looking for children just like Richard for movies, commercials, catalogs, and newspaper ads. Mr. Feldman went on to say that photographs had to be taken before the agency could do any work for Richard; that without a portfolio there was absolutely nothing the agency could do for Richard. Feldman urged Mrs. Waldron to use Bill Daniels for the photographs and described Bill Daniels as a "resident photographer" who did all of the agency's portfolios and who could get the photos done faster than other photographers. Mrs. Waldron signed a contract with the Respondent's agency and paid the Respondent three hundred fifty-five dollars to register Richard with the agency and have Richard's photographs taken by Bill Daniels. Mrs. Waldron never received a copy of the contract she signed with the Respondent. Richard did not procure work through the Respondent for over a year. When contacted about the lack of work, Art Feldman insisted that updated photographs be taken. When Mrs. Waldron refused new photographs until Richard obtained work, Richard was suddenly called for work as an extra on a movie called "Chains of Gold." Subsequently, Mrs. Waldron asked about other work for Richard, but Art Feldman said it was unavailable until more photographs were taken. At the time of her dealings with the Respondent, Mrs. Waldron was a beginner to the talent industry. Facts regarding Counts Twenty-two, Twenty-three, and Twenty-four--Marie Strong On or about July 11, 1988, Mrs. Marie Strong took her six-month-old son, Caleb, to Respondent's agency for the purpose of procuring work for Caleb in modeling and/or acting. Mrs. Strong met with Art Feldman who told her he could obtain work right away for Caleb, because there were several catalogs coming out within the next week or two that needed children Caleb's age. Feldman also told her that in order to do that she needed to get a professional portfolio taken right away by the agency's photographer, Bill Daniels. Feldman urged Mrs. Strong to pay a deposit on the photographs that very day and dissuaded her from taking time to discuss the matter with her husband. Mrs. Strong paid a deposit in the amount of one hundred thirty dollars the first day and returned the next day with the balance of one hundred ninety- five dollars. The photographs of her son Caleb were taken that day by Bill Daniels. Mrs. Strong was not told of any options to have the photographs taken by some other photographer. The Respondent's agency never procured any work for Mrs. Strong's son. The Respondent's agency never provided Mrs. Strong with a copy of a contract. At the time of their dealings with the Respondent, Mrs. Strong and her son were novices or beginners to the talent industry. Facts regarding Counts Twenty-five, Twenty-six, and Twenty-seven--Kory Bielski On or about September 8, 1988, after seeing Respondent's advertisement and calling for an appointment, Kory Bielski went to Respondent's agency for the purpose of procuring modeling and/or acting work. Mr. Bielski met with Art Feldman. Mr. Feldman told Mr. Bielski there was a lot of work he might be good for and that he wanted Mr. Bielski to sign up with the agency and get started. However, Mr. Feldman told Mr. Bielski that he had to have photographs taken before they would do anything. Mr. Feldman told Mr. Bielski that the agency had a photographer it worked with, and referred him to Bill Daniels. Mr. Feldman did not mention that Mr. Bielski could go to another photographer. Mr. Bielski paid Mr. Feldman a total of $425.00 to pay for the agency's registration fee and for photographs to be taken by Bill Daniels. The only work Mr. Bielski received through the Respondent's agency was two days of work as an extra in a movie. Mr. Bielski signed a contract with the Respondent's agency, but he was never given a copy of the contract. Facts regarding Counts Twenty-eight, Twenty-nine, and Thirty--Brian Cossack On or about October 14, 1988, in response to a newspaper advertisement, Brian Cossack went to Respondent's agency for the purpose of procuring voice-over work. Mr. Cossack met first with Art Feldman. Even though Mr. Cossack's primary interest was in obtaining voice-over work (in which the physical appearance of the artist is irrelevant), Mr. Feldman told him he would be perfect for a role in an upcoming horror film and that he would also be given TV commercial work. When Mr. Cossack said he had very little on-camera experience and did not feel prepared to take on a role of that type, Mr. Feldman continued to insist that he would be a shoe-in for the role. Mr. Feldman called the Respondent into the room and the Respondent also expressed assurances that Mr. Cossack would be perfect for movie and TV work. The Respondent went on to say that she would pay half of the cost of Mr. Cossack's photography session. After mentioning that he was relying on their assurances, Mr. Cossack paid $30.00 to register with the Respondent's agency and agreed to pay $300.00 for photographs to be taken by the photographer recommended by the Respondent. Mr. Cossack paid $100.00 towards the photographs on the first day. A few headshots were taken that day. A few days later, Mr. Cossack returned, paid the $200.00 balance, and some more photographs were taken. Mr. Cossack never received any of the photographs. Mr. Cossack gave both checks for the photographs to Mr. Feldman. The only work Mr. Cossack obtained through the Respondent's agency was work as an extra in a movie. He worked one day as an extra and declined an opportunity to work a second day as an extra. There is no clear and convincing evidence that the Respondent's agency failed to provide Mr. Cossack with a copy of a contract. Facts regarding Counts Thirty-three and Thirty-four--Chaim Kohl On or about December 28, 1988, Chaim Kohl took his four-year-old son, Roy, to Respondent's agency for the purpose of procuring modeling work for Roy. At that time Mr. Kohl was a beginner to the talent industry. Mr. Kohl met with Art Feldman and told Mr. Feldman that he wanted the agency to teach his son how to be a model and to obtain work for his son as a model. Mr. Feldman told Mr. Kohl that Mr. Kohl would have to have photographs of his son taken by Bill Daniels if he wanted the Respondent's agency to represent him. Mr. Feldman also said that as soon as the photographs were ready there would be lots of castings because the agency had lots of work with huge clients. Mr. Kohl agreed to have the photographs taken and ultimately paid $30.00 to register his son with the Respondent's agency and $300.00 for the photography session with Bill Daniels. Mr. Kohl's son never received any work through the Respondent's agency; he was never even called for any castings. Facts regarding Counts Thirty-five and Thirty-six--Harriet and Jim Nabors During February of 1989, Jim and Harriet Nabors went to Respondent's agency for the purpose of procuring modeling and/or acting work. At that time Mr. and Mrs. Nabors were both beginners to the talent industry. They went to Respondent's agency more or less on a lark, in response to one of the Respondent's newspaper advertisements. Mr. and Mrs. Nabors met with Art Feldman. Mr. Feldman told them that before any work could be sought for them, they would have to have photographs taken by Bill Daniels, who he described as being the agency photographer. No other photographic options were given. Mr. and Mrs. Nabors paid $30.00 each to register with Respondent's agency. Mrs. Nabors paid an additional $395.00 for photographs. Mr. Nabors paid $410.00 for photographs and $300.00 for four acting lessons. All of the checks were delivered to Mr. Feldman. Neither Mr. Nabors nor Mrs. Nabors received any work through the Respondent's agency. They received very few calls advising them of work opportunities. When Mrs. Nabors called about opportunities, she was told that business was slow. Facts regarding Counts Thirty-nine and Forty--Michelle Barton On or about September 7, 1989, Michelle Barton took her son, Nicholas, to Respondent's agency for the purpose of procuring modeling work for Nicholas. At that time Nicholas was almost a year old and Ms. Barton was a beginner to the talent industry. Ms. Barton met with Art Feldman and told him she wanted to obtain modeling work for her son. The son had red hair. Mr. Feldman said there was a big need for children with red hair and specifically mentioned that there would be casting opportunities during the next month. Mr. Feldman also told Ms. Barton that she would have to have a portfolio of photographs of Nicholas taken by Bill Daniels, who was described to her as the agency photographer or as a photographer affiliated with the Respondent's agency. She was not told of any other photographic options. Ms. Barton paid $30.00 to register her son with the Respondent's agency and paid $295.00 to have photographs taken by Bill Daniels. She later paid an additional $25.00 to obtain two extra photographic prints. Ms. Barton delivered all of the checks to Mr. Feldman. Ms. Barton never received any work for her son through the Respondent's agency. Ms. Barton later registered her son with another agency. The only photographs she sent to that agency were snap shots. The second agency called her on several casting opportunities. Facts regarding Count Forty-one--Marilyn Moore On or about March 21, 1990, after seeing the Respondent's advertisement in the telephone book, Marilyn Moore took her thirteen-month-old daughter, Jaime, to Respondent's agency for the purpose of procuring modeling work for Jaime. At that time Ms. Moore was a beginner to the talent industry. Ms. Moore met with Art Feldman and told him she wanted to obtain modeling work for her daughter. She had with her a small color photograph of the child that had been taken approximately a month earlier by Olan Mills. Mr. Feldman told Ms. Moore that he definitely thought her daughter had potential as a model, but that first she would have to be registered with the agency and they would need more photographs of the child. Mr. Feldman also told her that he had a photographer who could take the photographs. Ms. Moore asked if they could use the photographer she already had, and Mr. Feldman replied that the agency really needed eight-by-ten black and white photographs and that the agency photographer was in the next room and could do the photographs right then and there for a fee. Ms. Moore asked Mr. Feldman if she could use another photographer and Mr. Feldman replied that it was best to use the agency's photographer because they had worked together before and the agency photographer knew exactly what they needed. Ms. Moore registered her daughter with the Respondent's agency and wrote a $30.00 check to pay the registration fee. She left the payee's name blank on the check and delivered the check to Mr. Feldman. Someone later stamped the check with the name Bill Daniels as payee. Ms. Moore did not agree to have the agency's photographer take any photographs of her child and she declined the request that she make another appointment with the Respondent's agency. Later that same day, Ms. Moore stopped payment on the $30.00 check she had delivered to Mr. Feldman. A couple of days later, before he knew that payment had been stopped on the check, Mr. Feldman called Ms. Moore on the telephone and told her she could use her own photographs. Facts regarding Counts Forty-two, Forty-three, and Forty-four--Sonia Watson On or about December 7, 1988, after seeing the Respondent's advertisement in a newspaper, Sonia Watson took her eight-month-old daughter, Jessica, to Respondent's agency for the purpose of procuring modeling work. At that time Mrs. Watson and her infant daughter were beginners to the talent industry. Because she was a beginner, Mrs. Watson went to the Respondent's agency primarily for the purpose of obtaining information. Mrs. Watson met with Art Feldman. Mr. Feldman was very encouraging about the modeling prospects for Mrs. Watson's child and he told Mrs. Watson the agency would have no problem finding jobs for her daughter and that Mrs. Watson should not worry about the money for the agency's service or for the photographs because she would be able to make it back easily. Mr. Feldman told Mrs. Watson she would have to pay a $30.00 registration fee, a $15.00 fee for a "portfolio" photograph, and a $300.00 fee for photographs and for hiring the agency to find jobs for her daughter. During the first visit Mrs. Watson paid the $30.00 registration fee and the $15.00 "portfolio" fee. She later made an appointment to have the photographs taken and paid half of the money for the photographs. Thereafter, half of the photographs were taken by Bill Daniels, who was described by Mr. Feldman as "our photographer." About two months later, Mrs. Watson returned and paid the remaining half of the money for the photographs and Bill Daniels took the other half of the photographs. Mrs. Watson paid all of the money to Mr. Feldman. Mrs. Watson was supposed to receive five 8 x 10 photographs of her child. The photographs were never provided to her. Mrs. Watson signed a contract after she paid all of the money. She did not receive a copy of the contract she signed. Before agreeing to have Bill Daniels take her child's photographs, Mrs. Watson had found a photographer who would do a photographic "portfolio" of her daughter for $90.00 or $95.00. When she told Mr. Feldman about that possibility, Mr. Feldman advised against it and told her she should use the agency's photographer because the photographer knew the companies the agency dealt with, knew the positions and things the companies were looking for, and, also, that the $300.00 fee included hiring him as her agent. Mrs. Watson's child never received any work through the Respondent's agency. Facts regarding Counts Fifty and Fifty-one--Mr. and Mrs. Trent On or about August 12, 1989, after seeing the Respondent's advertisement in a newspaper, Mr. V. G. Trent took his two daughters, Gayle and Shirene, to Respondent's agency for the purpose of procuring modeling work for Gayle and Shirene. At that time, Mr. Trent and his two daughters were all beginners to the talent industry. The Trents met with Art Feldman. Mr. Feldman said that, because of their tall and exotic looks, the two girls would be working in no time. Mr. Feldman told them that they would need photographs and that the agency would take the photographs for them. Mr. Trent was not advised of any other options regarding the photographs. Mr. Feldman told Mr. Trent it would be in the best interest of the girls for the agency to take the photographs because the agency would be representing the girls and the agency would know what pictures to select. Mr. Trent agreed to Mr. Feldman's suggestions regarding the photographs and agreed to pay $760.00 to have both girls registered with the Respondent's agency and to have both girls photographed by Bill Daniels. The registration was $30.00 for each girl and the photography was $350.00 for each girl. During the first visit Mr. Trent paid a down payment towards the $760.00 and the balance was paid by his wife during a subsequent visit. Neither of Mr. Trent's daughters ever received any work through the Respondent's agency. Facts regarding Counts Fifty-four and Fifty-five--Helena Jackson On or about February 25, 1988, Helena Jackson, also known as Helena Steiner-Hornsteyn, and her teenage daughter, Annika, went to Respondent's agency for the purpose of procuring modeling and/or acting work for Annika. Following conversations with Art Feldman and the Respondent, Mrs. Jackson and her daughter ultimately paid to register with the Respondent's agency and to have photographs taken by Bill Daniels. There is no clear and convincing evidence as to what representations were made to Mrs. Jackson and her daughter by Mr. Feldman or the Respondent. Facts regarding photography needs of beginners In the opinion of experts in the talent agency business, beginning talent should spend as little as possible for photographs until they learn more about the business, decide whether they like the business, or begin to receive regular bookings. In the case of infants and children up to the age of about 10 or 12 years of age, it is sufficient for beginning talent to use snapshots that have been enlarged up to about 5 x 7 inches. An adequate supply of such enlargements can be obtained for approximately $40.00. Everyone in the talent industry is aware of the fact that babies and young children change in appearance quite rapidly and they are not expected to submit professional photographs for castings. In the opinion of experts in the talent agency business, it is sufficient for beginning talent to limit their photography expense to obtaining an 8 x 10 glossy headshot. As one expert explained, ". . . to go beyond an 8 x 10 glossy headshot, to me, is ridiculous. And, I think is a waste of money." A photo session limited to headshots is available from Bill Daniels for $125.00 and is available for less from other photographers in the area of the Respondent's agency. In the opinion of experts in the talent agency business, inexperienced talent are very susceptible to suggestions made by talent agents and have a tendency to follow agents' suggestions due to their inexperience. Because of this tendency, it constitutes undue influence for a talent agent to recommend a specific photographer to a beginning talent without also advising the talent that there are other less expensive alternatives available. Allegations on which no evidence was submitted In DOAH Case No. 90-5328 there is no competent substantial evidence of the Respondent's conduct alleged in either Count One or Count Two, both concerning Elizabeth Kingsley. In DOAH Case No. 90-4799 there is no competent substantial evidence of the facts alleged in any of the following counts: Count Seven, concerning Sarah (Tina) Polansky Count Eight, concerning Sarah (Tina) Polansky Count Nine, concerning Sarah (Tina) Polansky Count Ten, concerning Tracy Wilson Count Eleven, concerning Tracy Wilson Count Twelve, concerning Tracy Wilson Count Thirteen, concerning Michael Pry Count Fourteen, concerning Michael Pry Count Fifteen, concerning Michael Pry Count Nineteen, concerning Julie Lane Count Twenty, concerning Julie Lane Count Twenty-one, concerning Julie Lane Count Thirty-one, concerning Michelle Morrill Count Thirty-two, concerning Michelle Morrill Count Thirty-seven, concerning Kathryn Bischoff Count Thirty-eight, concerning Kathryn Bischoff Count Forty-five, concerning Marilyn Abbey Count Forty-six, concerning Marilyn Abbey Count Forty-seven, concerning Gary Janis Count Forty-eight, concerning Gary Janis Count Forty-nine, concerning Carol Mulchay Count Fifty-two, concerning August Yamond Count Fifty-three, concerning August Yamond Count Fifty-six, concerning Marie Tortu Count Fifty-seven, concerning Marie Tortu Count Fifty-eight, concerning Ilandie Joseph Count Fifty-nine, concerning Marcia Burke Count Sixty, concerning Marcia Burke The Respondent has prior violations of Chapter 468, Florida Statutes. In DPR Case Number 102652, the Respondent entered a Settlement Stipulation agreeing to pay a fine in the amount of two hundred dollars for a violation of Section 468.412(6), Florida Statutes (1988), regarding advertising by a talent agency. In DPR Case Numbers 0110491 and 0106073, DOAH Case Number 89-5521, the Respondent was found to have violated Section 468.410(3), Florida Statutes, on three (3) counts and Section 468.402(1)(t), Florida Statues, on two (2) counts. The Respondent was ordered to pay a fine in the amount of two thousand dollars.
Recommendation Based on all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: In Case No. 90-5328, dismissing all charges in the Administrative Complaint for failure of proof. In Case No. 90-4799, dismissing the charges set forth in the following counts of the Administrative Complaint for failure of proof: Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Nineteen, Twenty, Twenty-one, Thirty, Thirty-one, Thirty-two, Thirty-seven, Thirty-eight, Forty-five, Forty-six, Forty-seven, Forty- eight, Forty-nine, Fifty-two, Fifty-three, Fifty-four, Fifty-five, Fifty-six, Fifty-seven, Fifty-eight, Fifty-nine, and Sixty. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(s), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts One, Four, Sixteen, Twenty-two, Twenty-five, Twenty-eight, Thirty-three, Thirty- five, Thirty-nine, Forty-one, Forty-two, and Fifty. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(t), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts Two, Five, Seventeen, Twenty-three, Twenty-six, Twenty-nine, Thirty-four, Thirty- six, Forty, Forty-three, and Fifty-one. In Case No. 90-4799, finding the Respondent guilty of the violations of Section 468.402(1)(b), Florida Statutes (1989), as charged in the following counts of the Administrative Complaint: Counts Three, Eighteen, Twenty- four, Twenty-seven, and Forty-four. In Case No. 90-4799, imposing the following penalties for the violations described above: An administrative fine in the amount of $400.00 for each of the 28 violations found above, for a total of administrative fines in the amount of $11,200.00. Revocation of the Respondent's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of March 1993. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March 1993. APPENDIX The following are my specific rulings on the proposed findings of fact submitted by all parties. The following general observations are made in order to facilitate an understanding on the basis for the findings of fact that have been made as well as the basis for the findings of fact that have been rejected. There is no great dispute about most of the basic facts in these cases. There is quite a bit of dispute about numerous details, as well as disputes about what inferences should be drawn from the facts. In resolving these differences I have, for the most part, been more persuaded by the versions described by the Petitioner's witnesses than by the versions described by the Respondent and her witnesses. In resolving such differences I have especially considered such matters as any motive or bias of each witness, the apparent candor or lack of candor of each witness, the extent to which the testimony of each witness appeared to be logical or illogical, and the extent to which the evidence of each witness appeared to be consistent or inconsistent with other evidence in these cases. Findings proposed by Petitioner: Paragraph 1: Rejected as constituting conclusions of law, rather than proposed findings of fact. Paragraphs 2, 3, 4, 5, 6, 7, 8, 9, and 10: Accepted. Paragraphs 11 and 12: Accepted in substance, but with some details corrected. Paragraphs 13, 14, 15, and 16: Accepted. Paragraph 17: Accepted in substance. Paragraph 18: First sentence accepted; second sentence rejected as not supported by clear and convincing evidence. Paragraph 19: Accepted. Paragraph 20: Accepted. Paragraphs 21 and 22: Accepted in substance. Paragraphs 23, 24 and 25: Accepted. Paragraph 26: First sentence rejected as unnecessary details. Second sentence accepted. Paragraph 27: Accepted. Paragraph 28: Accepted in substance. Paragraph 29: Accepted. Paragraph 30: Accepted. Paragraph 31: Rejected as containing numerous inaccurate details. Some somewhat similar findings have been made. Paragraph 32: Accepted in substance. Paragraphs 33 and 34: Accepted in substance. Paragraph 35 First sentence accepted. First half of second sentence rejected as not supported by clear and convincing evidence. Second half of second sentence accepted. Paragraphs 36, 37, and 38: Accepted in substance. Paragraphs 39 and 40: Accepted. Paragraph 41: Accepted in substance. Paragraph 42: Accepted. Paragraph 43: Accepted in substance. Paragraph 44: Accepted Paragraph 45: Accepted. Paragraph 46: Accepted in substance. Paragraph 47: Rejected as not fully supported by the evidence and as, in any event, subordinate and unnecessary details. Paragraph 48: Accepted in substance. Paragraphs 49, 50, 51, 52, 53, and 54: Accepted. Paragraph 55: Accepted in substance. Paragraphs 56 and 57: Accepted. Paragraphs 58 and 59: Accepted that Mrs. Jackson paid to register herself and her daughter and to have Bill Daniels photograph her and her daughter. The remainder of these paragraphs are rejected as irrelevant details or as not supported by clear and convincing evidence. Mrs. Jackson was a difficult witness, both on direct examination and on cross-examination. She was often argumentative, unresponsive, rambling, and disjointed during her testimony. Her testimony was far from clear and was not convincing. Paragraphs 60, 61, and 62: Accepted in substance. Paragraph 63: Rejected as not fully supported by the record and as, in any event, irrelevant to the issues in this case. Paragraph 64: Accepted in substance, with additional details. Findings proposed by Respondent: With regard to the proposed findings of fact submitted by the Respondent, it is first noted that the Respondent's proposals are virtually impossible to address with specificity because, for the most part, they are comprised of summaries of testimony (testimony both favorable and unfavorable to the Respondent), rather than being statements of the specific facts the Respondent wishes to have found. In this regard it is perhaps sufficient to note that most of the Respondent's summaries of the testimony are essentially accurate summaries of the testimony at hearing, even where the summaries contain assertions that conflict with each other. As noted above, I have resolved most of those conflicts in favor of the versions put forth by the Petitioner's witnesses. Inasmuch as the Respondent has chosen to summarize testimony rather than make proposals of specific facts to be found, it would serve no useful purpose to embark upon a line-by-line discussion of all of the summaries. COPIES FURNISHED: E. Renee Alsobrook, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles Tunnicliff, Esquire Department of Professional Regulation Northwood Centre Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Gregory F. Esposito, Esquire Suite 9 8000 Wiles Road Coral Springs, Florida 33065 Anna Polk, Executive Director Board of Talent Agencies Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, James R. Sherman, has filed a claim against the bond in the amount of $299.00 alleging that Passport failed to perform on certain contracted services. In response to a mail solicitation offer for a five-day, four-night cruise to the Bahamas, in May 1990 petitioner telephoned a Tampa, Florida telemarketeer then using the name of Euno Discount Distributors. After speaking with the telemarketeer, petitioner agreed to purchase the package for a price of $299.00. A charge in this amount was placed on his credit card. During the course of the telephone conversation, petitioner was never told that there were various restrictions on travel dates or that such dates had to be secured at least ninety days in advance. Euno Discount Distributors (or an affiliated entity) had purchased an undisclosed amount of travel certificates from Passport for resale to the public. Passport had agreed to honor and fulfill all travel certificates sold by the telemarketeer, and the certificates carried Passport's name, address and logo. After receiving his travel certificates, petitioner learned for the first time that he could not travel on a weekend when using his certificates and that other restrictions applied. Because of these restrictions, on January 7, 1991, petitioner requested a refund of his money. In response to his inquiry, Passport advised petitioner to contact "the sponsor from whom (he) purchased the package." By now, however, the telemarketeer was out of business. To date, petitioner has never received a refund of his money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $299.00. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of January, 1995. COPIES FURNISHED: James R. Sherman 3198 Bailey Road Dacula, Georgia 32114 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether just cause exists for Petitioner to suspend Respondent without pay and terminate his employment as a teacher.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with operating, controlling, and supervising all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. In the timeframe relevant to this proceeding, the 2011- 2012 school year, Respondent was employed as the lead technology teacher, pursuant to an annual services contract, at Miami Norland High School ("Norland"), a public school in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent's employment with Petitioner was governed by Florida law, Petitioner's policies, and the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade. Events Giving Rise to This Proceeding Certification Examinations Norland offers courses in Adobe Photoshop ("Photoshop") and Adobe Dreamweaver ("Dreamweaver"). Each course offers an industry certification examination. The exams are provided by Certiport, an independent provider of educational, assessment, examination, and certification programs. To prepare for a certification exam, the student takes practice exams. Performance on the practice exams indicates readiness to take the certification exam, so it is important that the student perform well on the practice exams prior to taking the certification exam. Upon reaching a certain achievement level on the practice exams, indicating readiness to take the certification exam, the student goes to another classroom to take the certification exam. The exams are taken on a computer. Nothing but the computer is allowed on the desk during the exam. Students are informed of the rule that they are not allowed to have or use papers, notebooks, or any other materials when taking the exam. If the student passes the exam, he or she receives a certificate. In the 2011-2012 school year, the certification exams for Photoshop and Dreamweaver were administered more than once per school day at Norland. As part of his responsibility as lead technology teacher at Norland, Respondent proctored the certification exams for the Photoshop and Dreamweaver courses during the 2011-2012 school year. To be authorized to proctor the certification exams, Respondent entered into a Proctor Agreement with Certiport ("Agreement"). The Agreement required, among other things, that Respondent ensure the security of the exam and supervise certification candidates taking the exam to ensure that no notes containing the content of the test questions or answers were used during the exam. The Agreement provided that in the event of any evidence of improper conduct by the candidate or violation of the exam process, the proctor must terminate the exam, confiscate the exam materials, and immediately notify Certiport. Adherence to the Agreement was required for Respondent to be authorized to serve as a proctor for the certification exams. Alleged Cheating on Certification Exams D.J. was enrolled as a student in Mr. Halligan's Photoshop course at Norland during the 2011-2012 school year. Despite never having obtained a passing score on a practice exam, D.J. was taken out of Halligan's class to take the Photoshop certification exam.2/ D.J. took the Photoshop certification exam twice, and sat for it during her regularly scheduled Photoshop class.3/ D.J. took the certification exam for the second time on April 3, 2012, and passed it on her second sitting. Respondent proctored the Photoshop certification exam on April 3, 2012, during the period when D.J. took the exam and passed. D.J. testified, credibly, that Respondent allowed her to use a package containing the answers during the exam, and that he told the other students taking the exam during that period that they also could use assistance materials to take the exam. After finding out that she had passed the exam, D.J. returned to her Photoshop class and told Halligan that she had passed. She also told him that Respondent had allowed her and others to use materials to assist them while taking the exam. D.J. testified, credibly, that she had never been a student in Respondent's class, that he had never disciplined her, and that she had never had problems with him. Accordingly, she had no motivation to fabricate her statement that Respondent had allowed her to cheat on the exam. N.A. also attended Norland during the 2011-2012 school year and also took Halligan's Photoshop course. N.A. had never achieved the minimum passing score on the practice exams, but nonetheless was ordered to take the Photoshop certification exam.4/ She sat for the Photoshop certification exam three times and passed it on her third sitting, on April 3, 2012. N.A. credibly testified that Respondent had allowed her to use the practice exam package to take the certification exam.5/ After passing the exam, N.A. returned to Halligan's class and told him that she had passed. Halligan asked her how she had passed and she told him that Respondent had allowed her to use her practice exam package. Halligan asked her to provide a written statement regarding what had happened. She prepared a written statement but subsequently retracted it. Halligan and another technology teacher, Mr. Gant, contacted the Office of the Inspector General for Miami-Dade County Public Schools ("OIG") and reported that students who were not capable of passing the certification exams were, in fact, passing. The OIG conducted an investigation into alleged violations regarding the Adobe and Dreamweaver certification exam protocol at Norland. As part of this investigation, Ellen Roelofs, along with another OIG investigator, interviewed N.A. and asked her if she had cheated on the certification exam. N.A. initially denied having cheated but then confessed to having done so.6/ The OIG investigation ultimately substantiated allegations that Respondent had allowed students to cheat on the Photoshop and Dreamweaver certification exams. Following completion of the OIG investigation, a conference for the record ("CFR") was conducted between Respondent; Joyce Castro, a District Director for the Miami-Dade County Public Schools Office of Professional Standards; and others regarding charges that Respondent allowed students to cheat on the Photoshop and Dreamweaver certification exams, in violation of Petitioner's policies 3210, Standards of Ethical Conduct; 3210.01, Code of Ethics; and 2605, Research and Evaluation. Based on the OIG report findings, the Office of Professional Standards determined that Respondent could not be trusted in the future to proctor the certification exams. Following the CFR, the matter was presented to a disciplinary review team, which recommended that Respondent be terminated from his employment. On October 16, 2013, Petitioner took action to suspend Respondent without pay and terminate his employment. Respondent's Defenses Respondent verified that as part of his duties as lead technology teacher at Norland, he proctored the Photoshop and Dreamweaver certification exams in the 2011-2012 school year. Respondent denied having given students the answers to the exams or otherwise allowing them to cheat on the exams. The undersigned found Respondent's testimony less than forthcoming and not credible. Respondent also presented the testimony of Rhailyn Campbell, a student at Norland during the 2011-2012 school year. Campbell testified that he took the Dreamweaver certification exam on April 3, 2012, midday; that Respondent did not tell him or any other students that they could cheat on the exam; and that he did not observe any other students cheating or being allowed to cheat. Campbell denied having been interviewed by the OIG during its investigation of Respondent. However, Roelofs testified, credibly, that she did, in fact, interview Campbell during the OIG investigation. This testimony was substantiated by the Report of Interview she prepared memorializing that interview. Based on this evidence, Campbell's testimony is deemed not credible.7/ Respondent also presented the testimony of Haresh Seogopaul, T.O., and Dean Anthony Richards, students at Norland in the 2011-2012 school year. Seogopaul and T.O. testified that they took the Dreamweaver8/ certification exam on January 25, 2012. Richards took the Photoshop certification exam on January 25, 2012. Each testified that he did not cheat on the exam, that Respondent did not allow him to cheat on the exam, and that Respondent did not allow others to cheat on the exam. This testimony does not contradict D.J.'s and N.A.'s credible testimony that they were allowed to cheat on the Photoshop certification exams conducted on April 3, 2012; it merely shows that Respondent did not allow students to cheat on an entirely different day, January 25, 2012. Through the testimony of Roelofs, Respondent offered the Report of Interview ("Report") for K.E., D.C., and D.W., each of whom took the Photoshop certification exam on April 3, 2012, and each of whom were interviewed by Roelofs during the OIG investigation. Each Report was prepared by Roelofs and contained a summary of the statement made by the student being interviewed, at the time he was interviewed. Each summary reflects that the student stated that Respondent did not allow students taking the certification exam to cheat on the exam.9/ Clearly, Roelofs has no personal knowledge of the facts and events that are described in the summaries of these students' statements, and the statements themselves constitute unsubstantiated hearsay that does not supplement or explain other competent evidence in the record. As such, these reports and their contents do not constitute competent substantial evidence on which findings of fact may be based. Findings of Ultimate Fact In this proceeding, Petitioner seeks to suspend Respondent without pay and terminate his employment as a teacher on the basis of just cause——specifically, misconduct in office under Florida Administrative Code Rule 6A-5.056 and violation of Petitioner's policies 3210, 3210.01, and 2605. As more fully addressed below, Petitioner bears the burden of proof, by a preponderance of the evidence, to show that just cause exists, on these bases, to suspend Respondent without pay and terminate his employment. Whether Respondent committed the charged offenses is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Misconduct in Office Misconduct under rule 6A-5.056(3) requires violation of the Code of Ethics of the Education Profession, as adopted in rule 6B-1.001, and the Principles of Professional Conduct for the Education Profession in Florida, as adopted in rule 6B-1.006. Here, the evidence establishes that Respondent allowed students to cheat on the Photoshop certification exams administered on April 3, 2012. In doing so, Respondent failed to exercise the best professional judgment and integrity and failed to achieve and sustain the highest degree of ethical conduct, in violation of rule 6B-1.001. Respondent violated rule 6B-1.006 by failing to maintain honesty in all professional dealings. He also violated this rule by submitting fraudulent information on documents in connection with his professional activities, both in allowing or enabling students to cheat, and for his role in generating fraudulent passing scores for students who cheated on the exams. Rule 6A-5.056(3)10/ requires, for a finding of misconduct, a showing that the violation is sufficiently serious to impair the individual's effectiveness in the school system. Here, the evidence establishes that as a result of his conduct, Respondent's effectiveness in the school system is impaired. Castro persuasively testified that Respondent could not be trusted in the future to proctor exams. Moreover, Respondent violated the Agreement with Certiport, so can no longer serve as proctor for the Photoshop and Dreamweaver certification exams. For these reasons, it is determined that Respondent's effectiveness in the school system is impaired. Accordingly, the preponderance of the evidence establishes that Respondent's conduct at issue in this proceeding constitutes misconduct in office pursuant to rule 6A-5.056(3). Violation of Petitioner's Policies Petitioner has charged Respondent with violating Policy 3210, Standards of Ethical Conduct, which requires that instructional staff maintain honesty in all professional dealings and not submit fraudulent information on any document in connection with professional activities. Here, the evidence establishes that Respondent did not maintain honesty in his professional dealings in connection with his proctoring duty to maintain the integrity of the Photoshop certification exams. Further, he submitted fraudulent information on documents in connection with his professional activities, in allowing or enabling students to cheat and for his role in generating fraudulent passing scores for students who cheated on the certification exams. Accordingly, it is determined that Respondent violated Policy 3210. Petitioner also has charged Respondent with violating Policy 3210.01, Code of Ethics. Here, the evidence establishes that Respondent did not abide by Petitioner's Code of Ethics. His actions in allowing cheating on the certification exams show that he did not make the well-being of the students and the honest performance of his professional duties his core guiding principles. Through his actions, he failed to protect and advance the Miami-Dade County Public School District and its students. Accordingly, it is determined that Respondent violated this policy. Additionally, Petitioner has charged Respondent with violating Policy 2605, Research and Evaluation. Policy 2605 incorporates the test administration and security standards set forth in the document titled "Miami-Dade County Public Schools: Standards, Guidelines, and Procedures for Test Administration and Test Security"(November 2007)(hereafter "Test Security Document"). These standards require, among other things, that all testing activities, including supervision and monitoring, be conducted in a manner that ensures the security of test content. The standards also require that all standardized tests be administered in accordance with established administration and test security procedures as outlined in program guides for each testing program; that students shall not be assisted in answering test questions by any means or by any person; and that test proctors must actively monitor students to discourage cheating and must record, and immediately notify the principal and test chairperson of, any test administration irregularity or security breach. Here, Respondent's professional duties included serving as proctor for the Photoshop and Dreamweaver certification exams for Norland. Respondent's conduct in allowing students to cheat on the Photoshop certification exams violated the foregoing test administration and security standards and, thus, violated Policy 2605.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order upholding its suspension of Respondent, Emmanuel Fleurantin, without pay and terminating his employment as a teacher. DONE AND ENTERED this 29th day of July, 2014, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 29th day of July, 2014.
The Issue The issue in this case is whether a contract on Florida Department of Law Enforcement Bid No. B-904 should be awarded to Petitioner, E. L. Cole Photography, Inc., as the only responsive bidder.
Findings Of Fact Respondent, the Florida Department of Law Enforcement (hereinafter referred to as the "Department"), issued an Invitation to Bid (hereinafter referred to as the "ITB"), designated Bid No. B-904, on May 5,1999. The ITB requested bids on photographic film and paper for use by is crime laboratories. No challenges to the specifications of the ITB were filed. Seventy-nine items of photographic film and paper were listed in the ITB. Bidders were requested to provide a unit price for each item. Bidders were also requested to provide a total price for the Department's amount of film and paper it estimated its laboratories would use. There was not a minimum or maximum amount the Department could purchase under the contact. The total quantities listed in the ITB were estimates only. The successful bidder was required to provide the items listed in the ITB for the costs listed in the winning bid for any amount of the items purchased by the Department. One of the 79 items for which bids were requested in the ITB was duplicated. The item was Catalog Number 171-6042, Kodak C.P.O. [contrast process ortho film] 4/5 (100sht/pkg) (hereinafter referred to as the "Duplicated Item"). The Duplicated Item was listed as item 3 on numbered page 10 and as item 16 on numbered page 12 of the ITM. On page 10, item 3 was listed as Catalog #171-6042 and a Description of Kodak C.P.O. 4X5 (100sht/pkg). The Estimated Quantity was 470 pkg. On page 12, item 16 was listed as Catalog #171-6042 and a Description of Contrast Process Ortho Film 100/4X5. The Estimated Quantity was 75 bx. The duplication was the result of a response to a 1996 ITB, Bid No. B-843 (hereinafter referred to as the 1996 ITB). In the 1996 ITB the Department had listed items similar to those listed in the instant ITB. The Duplicated Item was correctly described in one location in the 1996 ITB, but was also incorrectly described in the 1996 ITB. A bidder corrected the description in its response. This correction caused the Duplicated Item to be listed in two locations. When the ITB was prepared, the Department used the same list of items it had used in the 1996 ITB, as corrected. The Department failed to discover the Duplicated Item. The ITB included General Conditions used in most, if not all, invitations to bid. The ITB also included specific conditions. Among the specific conditions the ITB included the following: BID EVALUATION There are two (2) biddable categories for photographic supplies in this Invitation to Bid that are separated into Attachment "A" - Film, Black & White and Color and Attachment "B" - Paper, Black & White and Color. Vendors may bid on either one or both of the attachments, but vendors are to price the attachments separately. Vendors must price all the items listed on the attachment(s) unless there is a duplication of an item or, an item has been discontinued by the manufacturer. Bidder must indicate that information by entering "DISCONTINUED" or "DUPLICATION" by that item on the appropriate attachment(s). All items marked "Discontinued" will be verified. Bids which do not meet the requirements specified in this Invitation to Bid will be considered non- responsive. Responsive bids meeting the mandatory requirements will be evaluated. [Emphasis in original]. Another specific condition included in the ITB is titled "Mandatory Requirement." The Mandatory Requirement condition provides the following: The us of "shall", "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State. The Mandatory Requirement condition also provides that "[m]aterial deviations can not be waived." A "material deviation" is defined as follows: A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with the Invitation to Bid requirements, provides an advantage to one bidder over the quantity or quality of items bid, or on the cost to the State. . . . Several bids were received in response to the ITB. The bids were opened on June 15, 1999. Eddie L. Cole, majority stockholder of Petitioner, E. L. Cole Photography, Inc. (hereinafter referred to as "Cole Photography"), attended the opening. Seven bids were determined to be responsive, including Cole Photography and Mardel Enterprises, Inc. (hereinafter referred to as Mardel"). Cole Photography and Mardel are minority business enterprises. Pursuant to the ITB, minority business enterprises were entitled to a ten percent price preference. Cole Photography's and Mardel's bids were, therefore, reduced by ten percent before determining the lowest bid on the ITB. Initially the Department made adjustments to all of the responsive bids based upon "discrepancies" between the items listed in the ITB by the Department and the products actually available. The bid tabulation on the ITB was posted by the Department between July 6 and July 9, 1999. Mardel was determined to be the lowest bidder after the ten percent minority business enterprise preference was applied. Cole Photography protested this determination. Following Cole Photography's protest, the Department recalculated the responses to the ITB. Items previously excluded by the Department in its tabulation were included in the recalculation. The inclusion of those items in the recalculation are not at issue in this proceeding. In addition to including the previously excluded items, however, the Department also excluded the double inclusion of the Duplicated Item. Mardel had bid a unit price of $106.03 per package for the estimated quantity of 470 pkg for item 3 on page 10 of the ITB. The total price bid by Mardel was $49,834.10. Cole Photography bid a unit price of $102.15 for item 3 on page 10. The total price bid by Cole Photography was $48,010.50. Mardel bid a unit price of $106.03 per box for the estimated quantity of 75 boxes for item 16 on page 12 of the ITB. The total price bid by Mardel was $7,952.25. Mardel failed to indicate that item 16 on page 12 of the ITB was a duplication as required by the specific conditions of the ITB. Cole marked item 16 on page 12 as "Duplication." In its recalculation of the bid submittals, the Department excluded the $7,952.25 bid for item 16 on page 12 of the ITB submitted by Mardel. No adjustment of Cole Photography's bid was necessary. Mardel's total bid before the reduction for the Duplicated Item was $349,448.75. Cole Photography's total bid was $343,063.40. After the reduction for the Duplicated Item, Mardel's bid was $341,496.50. After the reduction for the ten percent minority business enterprise preference, Mardel's bid was $310,362.21 and Cole Photography's bid was $311,929.11. The Department indicated its intent to award the contract on the ITB to Mardel. Cole Photography was third lowest bidder. Mardel's bid on the Duplicated Item has no impact on the ultimate amount of costs the Department may incur as a result of awarding a contract on the ITB, since Mardel bid the same unit price for Item 3 on page 10 and Item 16 on page 12. Therefore, the Department may purchase any amount of the item for the unit price bid by Mardel. If Cole Photography had been the lowest bidder, the Department would have been able to purchase any amount of the Duplicated Item for the unit price Cole Photography bid. Including Mardel's two bids on the Duplicated Item results in an arbitrarily inflated bid. The failure of all of the responsive bidders except Cole Photography to indicate that the Duplicated Item constituted a duplication on the ITB as required in the specific conditions was a "deviation" from the ITB's requirements. Even with this deviation, the responsive bids are still "in substantial accord with the Invitation to Bid requirements," and they do not provide "an advantage to one bidder over the quantity or quality of items bid, or on the cost to the State." Therefore, the failure to indicate that the failure to note the Duplicated Item does not constitute a "material deviation" as defined in the ITB. Both parties have filed Motions for Costs and Charges in this case pursuant to Section 287.042(2)(c), Florida Statutes. Cole Photography has incurred costs, excluding attorney's fees, in the amount of $264.15. The Department has incurred costs, excluding attorney's fees, in the amount of $51.40.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Law Enforcement finding that E. L. Cole Photography, Inc., failed to prove that the decision of the Department finding that Mardel Enterprises, Inc., submitted the lowest responsive bid to the ITB was "clearly erroneous, contrary to competition, arbitrary, or capricious" and dismissing the bid protest of E. L. Photography, Inc. DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 9th day of November, 1999. COPIES FURNISHED: Sherwood S. Coleman, Esquire Kwall, Showers, and Coleman, P.A. 133 North Fort Harrison Avenue Clearwater, Florida 33755 John P. Booth, Assistant General Counsel Karen Simmons, Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1498 Tallahassee, Florida 32302-1489 James T. Moore, Commissoner Florida Department of Law Enforcement Post Office box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Respondent, Stephen Philips Kilmon, is presently licensed as a professional surveyor and mapper, having been issued license number LS5439 on January 26, 1995. On or about November 4, 1994, the Respondent filed an application for licensure as a professional surveyor and mapper on a form provided by the Board of Professional Surveyors and Mappers. In order to be eligible for licensure as a professional surveyor and mapper, the Respondent had to be a high school graduate. The Respondent graduated high school in 1976 and included proof of his graduation with his license application.3 In order to be eligible for licensure as a professional surveyor and mapper, it was not necessary that the Respondent have any formal education beyond graduation from high school. Among other things, under the caption "EDUCATIONAL HISTORY" the application form requested the following information: "Name of School, College, or University Attended," "Year of Graduation," and "Degree." On his application form the Respondent wrote that he had attended the University of Maryland, that he graduated in 1980, and that his degree was "BSCE." At one time the Respondent studied civil engineering at the University of Maryland, but he never obtained a degree in civil engineering from the University of Maryland. During the course of a deposition taken on April 1, 1998, the Respondent described his education formal education following high school as follows: Q. Okay. And what was your major course of study while you were attending the University of Maryland? A. Civil engineering. Q. And did you obtain a degree? A. No, I did not. Q. What years did you attend the University of Maryland? A. I attended the University of Maryland between 1976 and 1979. Q. All right. Whay did you leave school without a degree; was there any particular reason why? A. No particular reason. * * * Q. Okay. What year did you leave the University of Maryland? A. In 1979. * * * Q. Okay. How many credit hours did you accumulate prior to leaving college? A. I don't recall what the final number really was. Q. How many was [sic] required for graduation? A. Because I never graduated, I don't really recall what was required. * * * Q. All right. I'm trying to determine, and perhaps you can help me, did you leave in your sophomore year, junior or senior year? A. It was in my sophomore year. Later, in a letter dated September 30, 2001, the Respondent wrote to the Board of Professional Surveyors and Mappers and explained his education after high school as follows: While being a "Fact" and "Expert" witness for a Plaintiff in Court, it has been brought to my attention by attorneys on our team that my University of Maryland Bachelor of Science Civil Engineering (BSCE) degree had become unaccredited over time due to University administrative circumstances beyond a student's (my) control. When I was at the age of 18, I was severely handicapped with chronic vision disorientation (Lazy Eyes). Following my freshman first semester I underwent major eye surgery to begin to correct my handicap. I transferred from UM, College Park Campus to become enrolled at the University of Maryland Baltimore County (UMBC) Campus in a specialized handicapped program for persons with various disabilities for nearly two and a half years completing my MSCE degree there. Within a few days of my graduation in May of 1979, my degree I received was taken back and held in limbo due to a program administration accreditation error (University Red Tape Error) which went on for years contested by several sets of parents, and by my father on my behalf. At this same time my mother pas[sed] away in a car accident and I left Maryland behind. I moved to Miami in late November of 1979 and began my career in Surveying with Zurwelle-Whittaker on Miami Beach. My father indicated to me in 1991 before he pas[sed] away from liver cancer, that after litigation settled the dispute, my degree was reinstated. After all this time had pas[sed] I never used or mentioned having a degree unaccredited or otherwise, because I knew technically I didn't keep it. Besides[,] my life went on without any need for a degree. In 1994 I applied to obtain a Surveyor and Mapper's license, which does not require a college degree, only a high school diploma. However, on my license application I did write that I received my Bachelor of Science Civil Engineering (BSCE) degree from the University of Maryland, which as I recall, my father said it became reinstated. Well here's an update - it wasn't. And in hindsight I should have checked out my degree status myself, but I didn't. I don't wish to misrepresent my credentials to anyone. Its [sic] hard enough to have done the time in school, and not be rewarded with the credit for it. Which brings me to this conclusion. I have learned over the past 25 years what really matters most. I acquired the discipline and knowledge to successfully open doors in life and move on, without regrets. If you have any further questions or need additional information please do not hesitate to contact me, directly.4 Item 4 of the application form required that the Respondent provide the following: Proof of employment in responsible charge as a photogrammetric mapper in the state for 24 months as of November 30, 1994, such proof to consist of five topographic or planimetric maps of areas in the state which maps were prepared by or under the supervision of the applicant using photogrammetric techniques, along with a verified, itemized report detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map. Item 5 of the application form required that the Respondent provide a sworn affidavit including the following: The name and address of the applicant. Certification that the applicant has been in responsible charge of photogrammetric mapping in the state for at least 24 months as of November 30, 1994, which mapping meets National Map Accuracy Standards. Certification that the submitted maps are of areas in the state, that they were prepared by or under the supervision of the applicant using photogrammetric techniques, and that they meet the requirements of National Map Accuracy Standards. A statement that the applicant has no criminal record related to fraudulent practices or directly related to the practice of surveying and mapping. In response to the foregoing requirement, the Respondent included information about six specific projects he had worked on while he was employed with Carr Smith Associates. Those specific projects were described as: Palmetto Expressway Improvement Project [From SW 16 St. to SW 2 St.]; Florida Board of Regents [FL Inter. Univ., University Park Campus]; Metro-Dade County, Port of Miami Authority [Port of Miami Landbase Model]; Florida Board of Regents [FL. Inter. Univ., North Miami Campus]; City of Coral Gables, FL. Public Works Dept. [City-Wide GIS]; Broward County Aviation Department [Ft. Lauderdale-Hollywood International Airport GIS Project and North Perry Airport GIS Project]. With regard to all six of the itemized projects mentioned immediately above, the Respondent submitted the maps and the verified, itemized reports "detailing methods, procedures, and amount of the applicant's personal involvement in the preparation of each map," as required by item 4 of the application form.5 Those maps and reports were sufficient to establish that the six projects described immediately above were all performed under the supervision of the Respondent. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates did not have the equipment necessary to do photogrammetry. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted photogrammetric services to Southern Resource Mapping of Miami, Inc. During the Respondent's employment with Carr Smith Associates, Carr Smith Associates subcontracted with Southern Resource Mapping of Miami, Inc., for photogrammetric services for the projects described in paragraph 9, above. The fact that these projects were subcontracted to Southern Resource Mapping of Miami, Inc., was disclosed in affidavits submitted with the Respondent's application.6 At all times material to this case, Joseph Bilu has been a certified aerial photogrammetrist, and has been a vice- president of Southern Resource Mapping of Miami, Inc. Joseph Bilu provided photogrammetric mapping services in the name of Southern Resource Mapping of Miami, Inc., on all of the projects itemized in paragraph 8, above. The photogrammetric mapping services provided by Joseph Bilu under his subcontracts with Carr Smith Associates for the projects itemized in paragraph 9, above, were all performed under the supervision of the Respondent. The Respondent was in responsible charge of the photogrammetric mapping projects itemized in paragraph 9, above.7
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order dismissing in its entirety the Administrative Complaint issued against the Respondent. DONE AND ENTERED this 25th day of January, 2006, 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 25th day of January, 2006.
The Issue The issues are whether Respondent, Hollywood Construction of Northwest Florida, LLC (Hollywood Construction), failed to secure workers’ compensation insurance as required by chapter 440, Florida Statutes (2014); and if so, what penalty should be imposed.
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, that employers in Florida secure workers’ compensation coverage for their employees. An employer can satisfy that requirement by purchasing a workers’ compensation insurance policy or by leasing employees through an employee leasing company with a workers’ compensation insurance policy. With regard to the latter, the employer pays the employee leasing company, and the employee leasing company then compensates the leased employees for their labor. Donald Hurst is employed as a workers’ compensation investigator for the Department. He works out of a district office in Pensacola, Florida, and his territory covers Bay, Gulf, Franklin, and Liberty Counties. Hollywood Construction is a construction business with its principal office in Panama City, Florida. On approximately August 6, 2014, Mr. Hurst received a phone call from Barry Hutchinson, who claimed to be an injured employee of Hollywood Construction. That phone call prompted Mr. Hurst to access a website managed by the Florida Department of State, Division of Corporations, where he learned of Hollywood Construction’s address and that R. Gage Golden was responsible for the business operations. Mr. Hurst also accessed the Coverage and Compliance Automated System (CCAS), which is a Department-maintained database that records whether a particular employer has workers’ compensation coverage. CCAS indicated that Hollywood Construction had workers’ compensation coverage through an employee leasing company in lieu of procuring its own workers’ compensation insurance policy. Because Mr. Hutchinson alleged that he was a Hollywood Construction employee who had no workers’ compensation coverage, Mr. Hurst decided that further investigation was warranted and visited the job site where Mr. Hutchinson stated he had been working. The purpose of this visit was to verify whether any workers at the job site had coverage. After finding no one at the reported job site, Mr. Hurst served Hollywood Construction with a Request for Production of Business Records on August 14, 2014, seeking various types of business records that would reveal whether Hollywood Construction had been directly paying employees or subcontractors between May 6, 2014, and August 6, 2014. The business records produced by Hollywood Construction indicated that Hollywood Construction had made direct payments to Mr. Hutchinson. Accordingly, and because Hollywood Construction had no workers’ compensation coverage outside its employee leasing arrangement, Mr. Hurst concluded that Hollywood Construction had failed to procure all necessary workers’ compensation coverage. Next, Mr. Hurst hand-delivered to Hollywood Construction on September 3, 2014, a document entitled “Request for Production of Business Records for Penalty Assessment Calculation.” The aforementioned document sought additional records pertaining to the period from August 7, 2012, through August 6, 2014 (i.e., the audit period), that would enable the Department to ascertain how much money Hollywood Construction had paid directly to employees and/or subcontractors. The requested records corresponded to the two-year period established by section 440.107(7)(d) for penalty calculations. After reviewing those records, the Department concluded that multiple individuals were receiving direct payments from Hollywood Construction, rather than from Hollywood Construction’s employee leasing company. As a result, Mr. Hurst personally served on January 22, 2015, an Order of Penalty Assessment requiring Hollywood Construction to pay a penalty of $100,326.46. At some point thereafter, Hollywood Construction produced additional records to the Department, and the Department issued a 2nd Amended Order of Penalty Assessment on May 11, 2015, imposing a penalty of $89,886.28. Ultimately, the Department issued a 3rd Amended Order of Penalty Assessment on September 21, 2015, requiring Hollywood Construction to pay a penalty of $21,853.80. The $21,853.80 penalty sought by the Department is based on Hollywood Construction’s payroll during the audit period and the premium Hollywood Construction would have paid if it had obtained all of the necessary workers’ compensation coverage during the audit period. In order to calculate Hollywood Construction’s payroll during the audit period and the resulting premium, the Department relied on information provided by Hollywood Construction to ascertain the nature of its employees’ work and assigned each employee a classification code from the Scopes® Manual, which has been adopted by the Department through Florida Administrative Code Rule 69L-6.021. Classification codes pertain to various occupations or types of work, and each one has an approved manual rate used by insurance companies to assist in the calculation of workers’ compensation insurance premiums. An approved manual rate corresponds to the risk associated with a particular occupation or type of work. Therefore, the manual rate corresponding to a roofer will be higher than the manual rate corresponding to secretarial work. The Department’s review also indicated that some of the payments at issue were non-wage expenses. For example, Hollywood Construction was reimbursing individuals for procuring items such as building materials and gasoline. Payments intended to reimburse employees for procuring such items are non-wage expenses that do not count towards an employer’s workers’ compensation obligation because those payments are not payroll. However, the Department was of the opinion that Hollywood Construction’s records were insufficiently detailed to enable the Department to ascertain whether all the payments at issue were wages or non-wage payments. Accordingly, and pursuant to rule 69L-6.035(1)(i), the Department presumed that 80 percent of the payments at issue were payroll that would count toward calculating a business’ workers’ compensation premium. Using the approved manual rates and the wages paid during the audit period (adjusted as described immediately above), the Department determined the individual insurance premiums Hollywood Construction would have paid for the employees in question if Hollywood Construction had procured workers’ compensation coverage during the audit period. Then, and as required by section 440.107(d)(1), the Department multiplied each individual premium by two in order to calculate the penalty associated with each employee, and those individual amounts totaled $21,853.80. R. Gage Golden (Hollywood Construction’s representative/owner) credibly testified during the final hearing that none of the payments used to calculate the $21,853.80 penalty were wages. Instead, those payments were non-wage expenses that should not influence Hollywood Construction’s workers’ compensation obligation. Furthermore, Mr. Golden argued that there is insufficient guidance in the relevant statutes and rules as to how business records must be maintained. The undersigned finds (as a matter of ultimate fact) that the Department failed to carry its burden of proving that $21,853.80 is the appropriate penalty and/or that the Department utilized the correct methodology in calculating that penalty. Hollywood Construction’s records sufficiently demonstrate that certain categories of payments were expenses, and a review of Hollywood Construction’s business records in Exhibit 10 indicates that the Department erroneously deemed certain payments to be wages rather than expenses. Specifically, Hollywood Construction’s Transaction Listing on pages 89 through 92 of the Department’s exhibits indicates that James Franklin (a Hollywood Construction employee) received eight payments between January 3, 2013, and May 2, 2013, totaling $1,239.00. If $1,239.00 is reduced by 20%, then the resulting figure is $991.20, and the Department’s penalty calculation worksheet alleges that James Franklin received $991.20 worth of payments directly from Hollywood Construction between January 1, 2013, and June 30, 2013. However, Hollywood Construction’s General Ledger on pages 176 and 177 of the Department’s exhibits indicates that the payments made to Mr. Franklin between January 3, 2013, and May 2, 2013, were travel reimbursements rather than wages. Because travel reimbursements are not payroll, the aforementioned payments should not have been used in calculating Hollywood Construction’s penalty. Further review of Hollywood Construction’s business records suggests that other payments identified in the General Ledger as expenses may have been treated as wages for purposes of calculating the $21,853.80 penalty. For example, the General Ledger notes that several payments were made to Hollywood Construction employees and characterizes those payments as “Purchases/Materials” (pages 137 through 140 of the Department’s exhibits); Employee Travel Reimbursement (pages 140 through 143 and 176 through 181 of the Department’s exhibits); “Sales/Estimating Exp” (pages 146, 147, 182 and 183 of the Department’s exhibits); “Auto/Truck” (pages 149, 150, and 189 of the Department’s exhibits); “Purchases/Job Costs” (pages 168 through 176 of the Department’s exhibits); and “Maintenance/Repairs” (page 185 of the Department’s exhibits). To whatever extent that the Department’s proposed penalty of $21,853.80 includes any payments identified by Hollywood Construction’s General Ledger as “Purchases/Materials,” Employee Travel Reimbursement, “Sales/Estimating Exp,” “Auto/Truck,” “Purchases/Job Costs,” or “Maintenance/Repairs,” those payments must be excluded from the penalty calculation. The undersigned also finds (as a matter of ultimate fact) that there is no evidence that Mr. Golden or anyone associated with Hollywood Construction intentionally understated Hollywood Construction’s payroll so as to lessen its workers’ compensation obligation. Furthermore, the Department has not alleged that the business records provided by Hollywood Construction are inaccurate or untrustworthy.
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, recalculate the proposed penalty by excluding payments listed in Hollywood Construction’s General Ledger as “Purchases/Materials,” Employee Travel Reimbursement, “Sales/Estimating Exp,” “Auto/Truck,” “Purchases/Job Costs,” or “Maintenance/Repairs.” If the recalculated penalty is greater than $0.00, then it is further RECOMMENDED that the Department enter a final order finding that Hollywood Construction of Northwest Florida, LLC, failed to secure the payment of workers’ compensation insurance coverage at certain times between August 7, 2012, and August 6, 2014, in violation of section 440.107. DONE AND ENTERED this 3rd day of December, 2015, 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 3rd day of December, 2015. COPIES FURNISHED: R. Gage Golden Hollywood Construction of Northwest Florida, LLC 3003 State Avenue Panama City, Florida 32405 Trevor S. Suter, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
