The Issue Whether Petitioner meets the residency requirement prescribed by Section 458.347(7)(b)1.d., Florida Statutes, for certification as a physician assistant?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: From May, 1957, until her retirement 33 years later, Petitioner was employed as a physician by a government agency in India. Her first position was that of an Assistant Surgeon. When she retired, she was the Chief Superintendent of a 350-bed hospital. Petitioner is now, and has been since November 11, 1959, happily married to Dayaldas M. Punwani. Petitioner and her husband were married in Bombay, India. They lived together in India until March, 1981, when Dayaldas moved to the United States. Petitioner remained in India with the couple's two children. At the time of their physical separation, Petitioner and her husband enjoyed a congenial relationship, as they have throughout their marriage. Their plan was for Petitioner to eventually join Dayaldas in the United States and live with him in the same household, but only following her retirement from government service and after their children were married and settled in accordance with Indian custom and tradition. When Dayaldas arrived in the United States, he first went to Boston, Massachusetts. Sometime in late 1981 or in 1982, he settled in Broward County, Florida and has lived there since. Using a visitor's visa to enter the United States, Petitioner visited her husband on two occasions after he had settled in Florida: from May, 1983, to August, 1983, and from November, 1985, to March, 1986. During her first visit, Petitioner and Dayaldas decided that when Petitioner joined Dayaldas in the United States to once again live with him, they would make Florida their permanent home. On neither of her visits to her husband did Petitioner come with the intention of staying for an indefinite period of time. Rather, she fully intended both times to return to India to continue her employment with the government until she reached retirement age 1/ and to discharge her responsibilities to her children. On February 8, 1990, Dayaldas became a permanent resident of the United States under this country's immigration laws. By February, 1990, both of Petitioner's and Dayaldas' children were married and settled. In April, 1990, Petitioner began to dispose of household items and other personal belongings in anticipation of her retirement and her subsequent move to Florida to join her husband. On May 30, 1990, at the age of 58, Petitioner retired from government service. The retirement age for physicians in government service in India is They have the opportunity, however, to seek reappointment to their position and work two years beyond their 58th birthday. Petitioner opted not to seek reappointment and extend her employment an additional two years because she wanted to move to Florida to live with her husband. At the time of her retirement, Petitioner was living in the same government-owned apartment in Bombay that she had been living in since September, 1964. The apartment was provided to her by the Indian government as part of her compensation package. 2/ Petitioner had a maximum of eight months following her retirement to vacate the apartment. Petitioner used only approximately one half of the allotted time. She vacated the apartment in December, 1990. On December 31, 1990, Petitioner arrived in Florida and moved in with her husband, with whom she has been living since. She came only with a few clothes. She had disposed of her other possessions, including her automobile, before leaving India. During the time that Petitioner was living in India and Dayaldas was living in the United States, Petitioner had an Indian driver's license and voted in local Indian elections. In or around April, 1991, Petitioner and Dayaldas filed a joint 1990 U.S. tax return. They subsequently filed an amended return. On June 14, 1991, Petitioner became a permanent resident of the United States under this country's immigration laws. On or around June 29, 1991, Petitioner mailed to the Board her completed application for certification as a physician assistant. On her application, she "list[ed her] place of residence on July 1, 1990," as "Bombay, Maharashtra, India."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order finding that Petitioner is not qualified to be certified as a physician assistant pursuant to Section 458.347(7)(b)1., Florida Statutes, because she has not shown that she was a legal resident of Florida on July 1, 1990, or was licensed or certified in any state in the United States as a physician assistant on July 1, 1990. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of June, 1992. STUART M. LERNER 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 17th day of June, 1992. 1/ During both visits, she was on leave from her government position. 2/ The Indian government provides apartments to medical staff members regardless of their citizenship or immigration status. 3/ One may establish such a new residence in Florida without being a citizen of this country. See Pawley v. Pawley, 46 So.2d 464 (Fla. 1950); Perez v. Perez, 164 So.2d 561 (Fla. 3d DCA 1964). APPENDIX TO RECOMMENDED ORDER The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact 1-3. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To the extent that it suggests that Petitioner and her husband decided, during her 1983 visit, that they would both make Florida their permanent home from that moment on, rather than at some future date, this proposed finding has been rejected because it is not supported by persuasive competent substantial evidence. Otherwise, it has been accepted and incorporated in substance. Accepted and incorporated in substance. Rejected because it is more in the nature of a statement of the law than a finding of fact. 7-11. Accepted and incorporated in substance. The Board's Proposed Findings of Fact 1-4. Accepted and incorporated in substance. 5. First sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony; Second and third sentences: Accepted and incorporated in substance. 6-7. Accepted and incorporated in substance. First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony. Accepted and incorporated in substance. First and second sentences: Accepted and incorporated in substance; Third sentence: Rejected because it is a summary of testimony rather than a finding of fact based upon such testimony. COPIES FURNISHED: Julian Gonzalez, Esquire 150 Southeast 12th Street, Suite 401 Fort Lauderdale, Florida 33316 Edwin A. Bayo, Esquire Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McCray, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Shirley Holland was registered with Petitioner as a real estate salesman in January, 1976, associated with Vern Duncklee Real Estate and Insurance, Inc., Naples, Florida. He is presently registered as a real estate broker. (Stipulation) On January 5, 1976, W. H. Ragan gave the Duncklee firm a listing to sell real property consisting of approximately one and one-quarter acres located in Collier County, Florida, for a selling price of $7,500. Respondent was the listing salesman. (Testimony of Respondent, Ragan, Duncklee, Petitioner's Exhibit 6). Respondent also was a builder who operated as Holland Investment Company. It was his practice to purchase various properties, remodel existing structures on the same, and thereafter sell them at a profit. There was a two- room shed located on the Ragan property that had no inside finishing work, electricity, or septic tank. Respondent decided to take an option on the property in order to remodel it by adding a room and to place it in a habitable condition. He broached the subject to Ragan on January 6, 1976, and Ragan told him on January 7, that he was agreeable to such a contract. On January 8, Respondent and Ragan and his wife entered into a Sales Contract and Option to Buy for $7,500. The contract provided that closing would take place within twelve months and that the seller would give possession of the property to the purchaser on January 8, 1976. This was pursuant to an accompanying rental agreement dated January 8, 1976, between the parties for a period of twelve months which provided that Respondent could exercise his option at any time within the stated twelve-month period whereby all rents paid would be applied toward the down payment on the property of $1,900 which was to be made at closing of the sale. The rental agreement further provided that if Respondent did not exercise his option within the required time, any improvements made by him on the property during that period would be considered liquidated damages of the owner. Pursuant to these agreements, Respondent made a payment of $100 at the time they were executed, which represented an initial deposit on the contracts and as rent for first month of the term. The Option Agreement also gave Respondent authority to remodel the building on the property and it further reflected that Respondent was a registered real estate salesman and would be selling the property for profit. (Testimony of Respondent, Duncklee, Petitioner's Exhibits 5, 7) On January 5, 1976, Respondent showed Harold and Ruby Stacy several houses in the area that were for sale. On January 9, Respondent went by the Stacy residence to see if they were interested in any of the houses he had shown them. They were not interested in those houses and Respondent told them of property that he had recently acquired which was the Ragan property. He showed it to Mr. Stacy that night and the next day Mrs. Stacy went with him to look at the premises. During the course of their conversations, Respondent offered to rent the property to them for $100 for the period January 10 to February 1, 1976. It was his intention to rent it to them for $125 per month commencing in February on the condition that they clean and fix up the property. They also discussed the possibility of purchase at a later date. Respondent told them that he would sell to them for $13,000 if Harold Stacy would do the remodeling work on the shed with Respondent supplying the materials. Respondent quoted a possible sales price of $14,500 if he was obliged to provide both labor and materials for renovating the shed and providing for utility services. Respondent and the Stacys entered into a rental agreement on that day for the initial period of some three weeks and Ruby Stacy gave him a check dated January 10 for $100 with a notation thereon that it was a deposit on land. Respondent explained to Mrs. Stacy that he was merely renting the property at that time and added the word "rent" at the bottom of the check. (Testimony of Respondent, Petitioner's Exhibit 1, 2) Thereafter, the Stacys proceeded to clean the premises and commence installing a ceiling in the building located on the property. They also installed a septic tank. At some undisclosed date, Ragan came to the property to obtain some of his belongings and found the Stacys there. He learned that they supposedly had purchased the property from Respondent, Ragan was of the opinion that Respondent had purported to sell the property before he had obtained the option thereon and that he had therefore defrauded the Stacys. Ragan thereupon filed a complaint against Respondent with the local Board of Realtors in latter January, 1976. About the same time, Respondent had been in the process of obtaining local permits to install the septic tank and do the other work. He discovered that the Stacys had installed a septic tank without his authorization and without obtaining a permit. He thereupon, by letter of January 21, 1976, informed the Stacys that they had done work on the property without a building permit or approval of the County Health Department and therefore was refunding the rental payment of $100. He enclosed his check in that amount, dated January 21, 1976. Although Respondent later attempted to exercise his option to purchase the property, Ragan refused to fulfill the agreement and later sold the property to the Stacys himself for $7,500. (Testimony of Respondent, R. Stacy, Ragan, Petitioner's Exhibits 3,4) Mrs. Stacy testified at the hearing that she was under the impression that she and her husband had purchased the property in question on January 10, 1976, and that the $100 payment had been a deposit for such purchase. She was under the further impression that they were to make a $2,500 down payment in February to consummate the deal. She further testified that they made the improvements on the land because of their understanding that they were going to purchase it. Mrs. Stacy had never been involved in a prior purchase of real property and is unfamiliar with contract documents and terminology. It is found that Mrs. Stacy honestly believed that she and her husband had a valid agreement to purchase the property. Her testimony that she and her husband entered into the rental arrangement in January to enable them to work on the property until they could make the down payment in February is deemed credible. (Testimony of R. Stacy) Ragan and Respondent had been involved in a prior real estate transaction and Respondent testified that Ragan had not been satisfied with that transaction, but Ragan testified to the contrary. However, Ragan talked to Respondent's broker in January, 1976, about the Stacy situation, at which time Ragan stated that he had a chance to get even with Respondent for the prior transaction and that he was going to do so. (Testimony of Respondent, Ragan, Duncklee, D. Holland)
Recommendation That the Administrative complaint be dismissed. DONE and ENTERED this 8th day of March, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Ed R. Miller, Esquire Suite 212 - 1400 Gulf Shore Boulevard Naples, Florida 33940
Findings Of Fact From September 22, 1975, to December 24, 1975, Kopf was a registered real estate salesman in the employ of FAR, a registered corporate broker, located in Dade County, Florida. During that period of time, FAR was engaged in an enterprise whereby advanced fee listings were obtained from Florida property owners. Salesmen known as "fronters" or "qualifiers" were employed to place calls to Florida property owners whose names and phone numbers had been provided to the salesmen by FAR. The prospects were asked if they cared to list their real estate with FAR in anticipation of resale. It was explained that there would be a refundable fee to be paid by the property owner for the listing. The refund was to occur upon sale of the property. If the prospect was interested, then certain literature was mailed out to them. Other salesmen were employed as "drivers" who would make the second contact of the prospect who indicated an interest in listing his property. The driver would secure a signed listing agreement along with a check for $375.00 which constituted the refundable listing Fee. There was no evidence that any of the listings obtained by FAR were ever resold. There were, however, three parcels of land in negotiation for sale when the operations of FAR were terminated in June, 1976. There was to be a division separate and apart from the "fronters" and "drivers" to do the actual selling of the property. The listings were advertised in the Fort Lauderdale area but there was no evidence to establish whether or not other advertising occurred. In November of 1975, Kopf telephoned Mr. Harold E. Triplett, a resident of Pomeroy, Ohio. Mr. Triplett was the owner of two lots in the Cape Coral residential development. Kopf represented to Mr. Triplett that he, Kopf, had a buyer for the Triplett property which was a foreign company seeking tax advantages. Kopf guaranteed that the property would be sold by November 29, 1975. November 29 came and went without a closing on the Florida property. This, notwithstanding the fact that Kopf had advised Triplett that the property was already sold and that the $347.20 check that Triplett had sent to Kopf was for closing costs. Triplett tried unsuccessfully to contact Kopf but was advised that the telephone had been disconnected. Notwithstanding the fact that FAR had never resold any of its listings Kopf represented to Triplett that he had successfully concluded similar transactions. As to the remaining allegations numbered 1, 3 and 4 above, there was a total absence of evidence and, hence, a failure of proof as to misrepresentations of those facts. FREC introduced no evidence to establish that the prices for which the properties were listed were reasonable listing prices and further introduced no evidence to show that Kopf represented that the property would be advertised nationwide and in foreign countries, or that the company had foreign buyers wanting to purchase the property listed with FAR, with the exception of Kopf's property, or that such representations, if made, were false. However, the evidence establishes that Kopf represented that the property would be sold within 30 days of the listing, which representation was false, and that Kopf knew that the representation was false.
The Issue The issues in this case are as follows: Was Respondent Daniel Oldfather legally responsible for accounting and refund? Were the refund provisions of the receipt form printed in type as required by Rule 21V-10.15, Florida Administrative Code? Was Richard Vanicek due a 75 percent refund? Was Vanicek due a complete refund because of inaccurate information given him? Did Vanicek make written demand for a refund, and was a written demand for the refund necessary?
Findings Of Fact In September of 1979, Sun Rentals and Management, Inc., was a corporate real estate broker holding license number 0208997 and doing business at 2703 East Oakland Park Boulevard in Fort Lauderdale, Florida. At that time, Victor Stevens was a licensed real estate salesperson employed by Sun Rentals. Stevens, as an employee of Sun Rentals, interviewed Richard D. Vanicek concerning Vanicek's rental needs. Vanicek entered into a contract with Sun Rentals (Petitioner's Exhibit number 1) under which he paid Sun Rentals $45 and Sun Rentals was to provide him with rental information on available rentals. Vanicek received a receipt (Petitioner's Exhibit number 3) which provided in pertinent part as follows: ... Notice, pursuant to Florida Law: If the rental information provided under this contract is not current or accurate in any material aspect, you may demand within 30 days of this contract date a return of your full fee paid. If you do not obtain a rental you are entitled to receive a return of 75 percent of the fee paid, if you make demand within 30 days of this contract date. ... It was agreed that the receipt was printed totally in ten-point type. Vanicek attempted to visit one of the listings provided to him by Sun Rentals. He encountered difficulty in locating the listing; however, his lack of familiarity with Fort Lauderdale may have contributed to his difficulties. Vanicek found a rental through his own efforts and requested a refund of 75 percent of his $45 fee by telephone. He made his request first to Stevens, who referred him to Daniel Oldfather pursuant to office policy. As a result of this referral Vanicek spoke with a man at Sun Rentals, who may have been Oldfather, and restated his request for a refund. His request was denied. Daniel Oldfather was the licensed broker/salesman for Sun Rentals during September, 1979. He was the office manager of Sun Rentals at that time. Martin Katz was broker for Sun Rentals in September of 1979 (Transcript; Page 261, L 21). Oldfather was the next man in authority at the office under Katz (Transcript; Page 235, L 6). Katz delegated to Oldfather the authority to make refunds. The rental forms, including the rental receipt form (Petitioner's Exhibit number 3), were submitted to the Board of Real Estate.
Recommendation Having found that Daniel Oldfather was not guilty of any of the allegations in the amended Administrative Complaint, it is recommended that Counts I, II and III against him be dismissed. Having found that Sun Rentals and Management, Inc., is not guilty of the allegations contained in Count III of the amended Administrative Complaint, it is recommended that Count III against Sun Rentals be dismissed. Having found that Sun Rentals is guilty of violating Sections 475.25(1)(d) and 475.453(1), Florida Statutes, it is recommended that the license of Sun Rentals be suspended for 60 days, during which time the officers and directors of said corporation may not engage in the practice of real estate sales or brokerage under their names or in any other corporate name. DONE and ORDERED this 4th day of May, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Post Office Box 14723 Fort Lauderdale, Florida 33302 James Curran, Esquire 200 SE Sixth Street, Suite 301 Fort Lauderdale, Florida 33301 C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Department is an agency of the executive branch of the State of Florida. Mr. Crowell, prior to February, 1990, was employed as a career service employee of the Department for approximately 19 years. Mr. Crowell has worked for the State of Florida for approximately 24 years. Immediately prior to and during part of February, 1990, Mr. Crowell was employed as a Community Assistance Consultant with the Department's Community Development Block Grant Program (hereinafter referred to as the "Grant Program"). Wanda A. Jones, Planning Manager of the Grant Program, was Mr. Crowell's immediate supervisor at all times relevant to this proceeding. The Department has incorporated the provisions of Rule 22A-8.011, Florida Administrative Code, governing the use of leave, in the Department's Policies and Procedures No. 1109.01. Pursuant to Policies and Procedures No. 1109.01, Department employees are required to notify their supervisor of any illness and obtain approval of the use of annual leave. Mr. Crowell was counseled by Ms. Jones in January or February, 1989, concerning his failure to obtain authorization for use of sick leave each day that Mr. Crowell was sick. Ms. Jones also explained this requirement at two or three staff meetings. Mr. Crowell was aware of the Department's requirements concerning the use of leave. Mr. Crowell was required to travel as a part of his employment. Mr. Crowell traveled an average of two times per month. Mr. Crowell submitted an Authorization to Incur Travel Expense dated December 7, 1989 (hereinafter referred to as the "December 7, 1989, Request"), to the Department requesting authorization to travel on State business on December 13, 14 and 15, 1989. The December 7, 1989, Request was approved by the Department. Mr. Crowell indicated in the December 7, 1989, Request that "[p]ersonal car will be used for entire trip." Mr. Crowell did not own a motor vehicle during the period of time at issue in this proceeding. Mr. Crowell intended to rent an automobile, pay the rental charges himself and claim reimbursement only for mileage incurred in travel on State business. Mr. Crowell had been issued a Budget Rent-A-Car (hereinafter referred to as "Budget"), credit card by the Department on October 6, 1989. Mr. Crowell signed a Department form at the time the Budget credit card was issued acknowledging the following: that on the date above I received the above-described credit card; that I, by my signature hereon have acknowledged that I understand all policies and procedures governing the use of said card; and that I have been advised that abuse of the use of this card may result in dismissal from employment with this Department and possible prosecution under the laws of Florida. On December 13, 1989, Mr. Crowell rented an automobile from Budget. Mr. Crowell was given a Lincoln Town Car (hereinafter referred to as the "Lincoln") because of the unavailability of a smaller automobile. Mr. Crowell signed a rental agreement (hereinafter referred to as the "Rental Agreement") for the Lincoln indicating that the rental fees were to be charged to the Department through the Budget credit card issued by the Department to Mr. Crowell. Pursuant to the Rental Agreement, Mr. Crowell was to rent the Lincoln for approximately three weeks, turning it in on January 3, 1990. The Rental Agreement listed the costs of renting the Lincoln for an hour, a day, a week or a month. Mr. Crowell submitted a Voucher for Reimbursement of Traveling Expenses dated December 19, 1989, to the Department for authorized travel on December 12-15, 1989. Mr. Crowell indicated that a "[p]ersonal car was used for entire trip" and he claimed reimbursement of $107.00 for mileage driven. During early January, 1990, Mr. Crowell went to a Budget office with the intent of returning the Lincoln he had rented on December 13, 1989. Mr. Crowell was told that he owed close to $600.00. Mr. Crowell had thought that he would owe approximately $375.00 and, therefore, had not brought enough money to pay the total rental charge. Mr. Crowell left without paying the rental charge or returning the Lincoln. On December 28, 1990, Mr. Crowell submitted three separate Authorization to Incur Travel Expense forms to the Department seeking approval of travel for State business in January and February, 1990. On the three forms "pov" was noted. Mr. Crowell used "pov" as an abbreviation for "privately owned vehicle." Mr. Crowell submitted a Voucher for Reimbursement of Traveling Expenses to the Department for two authorized trips for January, 1990. Mr. Crowell indicated that a "pov was used" on one of the vouchers and he claimed reimbursement for mileage driven on both forms. Mr. Crowell used the Lincoln he had rented on December 13, 1989, for the January, 1990, trips he was reimbursed for. Sometime during January, 1990, the Tallahassee branch manager of Budget, Russell Kennedy, became concerned that Mr. Crowell was late returning the Lincoln. Therefore, Mr. Kennedy contacted Mr. Crowell and inquired about when he intended to return the Lincoln. Mr. Crowell indicated that he would return the Lincoln on February 1, 1990. On January 30, 1990, the Department's personnel director, Mark Helms, was informed by the Director of the Housing and Community Development Division, the Division in which Mr. Crowell was employed, that he had been notified that Mr. Crowell had rented the Lincoln with his Department-issued credit card and that the Lincoln had not been returned or paid for. Mr. Helms contacted Mr. Kennedy. Mr. Kennedy informed Mr. Helms that Budget considered the Department to be liable for the rental of the Lincoln. Mr. Kennedy indicated that Mr. Crowell had agreed to return the Lincoln on February 1, 1990. Mr. Crowell did not return the Lincoln on February 1, 1990. Mr. Helms spoke with Mr. Kennedy on Monday, February 5, 1990, and was informed that Mr. Crowell had not returned the Lincoln. Mr. Helms informed the Division Director. On February 5, 1990, Ms. Jones was told by the Division Director to meet with Mr. Crowell and instruct him to resolve the problem he had created by renting the Lincoln with the Department-issued Budget credit card. Ms. Jones met with Mr. Crowell at approximately 3:00 p.m., Monday, February 5, 1990. Ms. Jones informed Mr. Crowell that the Department was concerned that he had rented the Lincoln using the Budget credit card issued to him by the Department because of the Department's potential liability for the rental. Ms. Jones informed Mr. Crowell that he had to resolve the problem he had created with Budget immediately. She suggested that, although she could not tell him how to use his leave time, he should consider taking time to take care of the matter. Mr. Crowell left the meeting and returned shortly thereafter with his time sheet. Mr. Crowell requested that Ms. Jones approve annual leave from 3:30 p.m. to 5:00 p.m., February 5, 1990, and all day Tuesday, February 6, 1990. Ms. Jones approved Mr. Crowell's request. Mr. Crowell left work at approximately 3:30 p.m., February 5, 1990. Mr. Crowell did not return to work on February 6, 1990. On Wednesday, February 7, 1990, and Thursday, February 8, 1990, Mr. Crowell spoke by telephone to an employee of the Department that worked in another section and got the employee to leave a "Post-It" note on his door both days indicating "O.C./SL". Mr. Crowell did not report to work on February 7 or 8, 1990. Ms. Jones treated Mr. Crowell as having used sick leave for these two days. On February 8, 1990, Ms. Jones sent a letter to Mr. Crowell informing him that his failure to resolve the matter with Budget was a serious disciplinary matter. Ms. Jones did not attempt to telephone Mr. Crowell because he did not have a telephone. Ms. Jones did, however, telephone Cheryl Jamison, whom Ms. Jones believed to be Mr. Crowell's daughter-in-law. Ms. Jones left a message on an answering machine to have Mr. Crowell call her immediately. On Friday, February 9, 1990, and Monday, February 12, 1990, through Thursday, February 15, 1990, Mr. Crowell did not come to work, call in sick or otherwise inform the Department of the reason for his absence or obtain approval for his absence. Mr. Crowell has not returned to work at the Department since February 5, 1990. At the formal hearing Mr. Crowell testified that he did not inform Ms. Jones that he would not be at work on February 9, 1990, or thereafter because she had instructed him to not come back until he resolved the problem with Budget over the rental of the Lincoln. This testimony is inconsistent with Ms. Jones' testimony and Mr. Crowell's actions on February 5, 1990, and February 7 and 8, 1990. If Mr. Crowell had in fact been instructed not to return until he resolved the Budget problem and that he did not have to worry about following established procedures for absences, Mr. Crowell would not have gotten approval for annual leave for February 5 and 6, 1990, or informed the Department that he would not be at work on February 7 and 8, 1990, because he was sick. On February 12, 1990, Ms. Jones telephoned and spoke with Nathan Crowell, Mr. Crowell's son. Ms. Jones indicated that she needed to speak with Mr. Crowell. She was told that Mr. Crowell had been told that she was trying to contact him. Mr. Crowell received the letter sent by Ms. Jones on February 8, 1990. Mr. Crowell was also aware that Ms. Jones had called his son's telephone number attempting to get in touch with him. Mr. Crowell made no effort, however, to respond to Ms. Jones. The Division Director was informed by Ms. Jones on February 15, 1990, that Mr. Crowell had been absent for five days without authorization. The same day Mr. Helms received a memorandum from the Division Director recommending that Mr. Crowell be treated as having abandoned his employment with the Department. Mr. Helms prepared a letter for the Secretary's signature informing Mr. Crowell that the Department was treating Mr. Crowell that he had abandoned his position. At the time that the Department decided to treat Mr. Crowell as having abandoned his position, the Department was aware of efforts by Budget to contact Mr. Crowell and obtain a return of the Lincoln. Budget had sent a certified letter to Mr. Crowell on February 7, 1990, informing Mr. Crowell that criminal charges would be brought against him if he did not return the Lincoln. The return receipt was returned on February 13, 1990, signed by Mr. Crowell. Mr. Crowell still did not return the Lincoln. Mr. Kennedy had also driven by Mr. Crowell's residence several times during early February, 1990, looking for the Lincoln. The Lincoln was not found. The letter from the Secretary was sent to Mr. Crowell by certified mail, return receipt requested, on February 15, 1990. Mr. Crowell received the letter on February 22, 1990. Mr. Crowell returned the Lincoln to Budget on Sunday, February 18, 1990. Mr. Crowell did not pay for the rental of the Lincoln at that time. On February 27, 1990, Mr. Crowell telephoned Mr. Helms. This was his first contact with the Department since February 5, 1990. Mr. Crowell did not indicate that he had not abandoned his position or offer any explanation. Mr. Crowell merely asked Mr. Helms about continued insurance coverage and the payment for his accrued sick and annual leave. Mr. Crowell sent a letter to the Department of Administration dated March 6, 1990, contesting the Department's determination that he had abandoned his employment. On March 7, 1990, Mr. Crowell met with Mr. Helms and Barbara Jo Finer, a Department Senior Attorney. Mr. Crowell discussed payment of the Budget rental charges he had incurred with the payment he was to receive for his unused annual leave as a result of his termination of employment. Budget was paid the rental charges incurred by Mr. Crowell for use of the Lincoln on April 16, 1990. Budget was paid $1,734.03 of Mr. Crowell's payment from the State of Florida for his unused leave. In addition to the inconsistencies in Mr. Crowell's testimony described in Finding of Fact 29, Mr. Crowell evidenced a lack of credibility while testifying on two other matters. First, Mr. Crowell testified at the formal hearing that he did not receive a telephone call from a representative of Budget. This testimony is contrary to Mr. Crowell's testimony during his deposition taken on June 18, 1990. Secondly, Mr. Crowell testified that he was not notified that his deposition was available to read until 5:00 p.m., Thursday, July 5, 1990. This testimony was contradicted by the office manager of Accurate Stenotype Reporters, the firm which had the deposition prepared.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order concluding that Oscar Crowell abandoned his position of employment with the Department and dismissing the petition in this case with prejudice. DONE and ENTERED this 28th day of September, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 28th day of September, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Crowell's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Page I: 1st Paragraph 32. 2nd Paragraph Hereby accepted. 3rd Paragraph Not supported by the weight of the evidence. Page II: Not supported by the weight of the evidence. The first sentence is accepted. The rest of the paragraph is not supported by the weight of the evidence. The first sentence is accepted. The rest of the paragraph is not supported by the weight of the evidence. Page III: 1st paragraph Hereby accepted. Although the Department did take the position that it was not liable for the total rental charge incurred by Mr. Crowell for use of the Lincoln, Budget was taking the position that the Department was liable. Therefore, there remained a potential liability which the Department was concerned with. 2nd paragraph Not supported by the weight of the evidence. 3rd paragraph Not supported by the weight of the evidence. 4th paragraph Not supported by the weight of the evidence. 5th paragraph (including part of this paragraph which appears on page IV) Not supported by the weight of the evidence. Page IV: 1st full paragraph Not relevant to this proceeding and not supported by the weight of the evidence. 2nd paragraph The first sentence is not supported by the weight of the evidence. Even if Ms. Jones had told Mr. Crowell to resolve the problem before returning to work, it was unreasonable for Mr. Crowell to not return to work for almost two weeks without obtaining authorization for such an extended absence. The rest of the proposed findings of fact are not supported by the weight of the evidence. 3rd paragraph Not supported by the weight of the evidence. Not relevant or supported by the weight of the evidence. (including part of this paragraph which appears on page V) Not supported by the weight of the evidence. Page V: st paragraph Hereby accepted. nd paragraph The weight of the evidence failed to prove that Mr. Crowell was directed to leave and not return. The rest of this paragraph has been accepted in Finding of Fact 26. rd paragraph Not supported by the weight of the evidence. th paragraph Not supported by the weight of the evidence and argument. Page VI: 1st paragraph Not supported by the weight of the evidence. 2nd paragraph Not supported by the weight of the evidence. 3rd paragraph The first sentence is hereby accepted. The rest of the proposed findings of fact are not supported by the weight of the evidence. 4th paragraph 2. Except for the first sentence, these proposed findings of fact are not supported by the weight of the evidence. 5th paragraph This paragraph is Mr. Crowell's recommendation and not a finding of fact. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2, 27 and 32. 2 1-2. 3 4. 4 3. 5 7. 6 Hereby accepted. 7 5. 8 6. 9 Hereby accepted. 10 12, 23-24. 11 24. 26. The last four sentences are not relevant to this proceeding. The Department treated Mr. Crowell as having taken sick leave on February 7 and 8, 1990. The Department did not treat Mr. Crowell as being absent without authorization on those days. Hereby accepted. 14-15 27. 16 30. 17-18 28. 19 31. 20 Hereby accepted. 21 36. 22 32 and 34. The first two sentences are hereby accepted. The rest of this proposed finding of fact is not relevant to this proceeding. Mr. Crowell requested a formal hearing to contest the Department's decision by letter dated March 6, 1990. His failure to discuss the matter after that date, therefore, does not support a conclusion that Mr. Crowell was abandoning his employment. 38. The last sentence is not relevant to this proceeding for the same reasons the last part of proposed finding of fact 23 is not relevant. See 29. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. It is not clear what Mr. Crowell meant. See 5. Hereby accepted. Subparagraph (b) does not support a conclusion that Mr. Crowell abandoned his position. 29 12. 30 20. 31 23. 32 33. 33-34 33. 35 12, 14, 17-18 and 35. 36 Hereby accepted. 37-44 and 47 Mr. Crowell did make the statements referred to in these proposed findings of fact and they are not consistent. As the trier of fact, I do not find that Mr. Crowell's credibility was called into question by these inconsistencies. 45-46 40. COPIES FURNISHED: Oscar Crowell 1038 Preston Street Tallahassee, Florida 32304 G. Steven Pfeiffer General Counsel Barbara Jo Finer Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas G. Pelham, Secretary Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399
Findings Of Fact On June 30, 1983, Petitioner, Timothy Bond Taber, entered a plea of nolo contendere to the charge of sale, delivery, or possession of cannabis with intent to sell, which is defined as a third degree felony by Section 893.13, Florida Statutes, in the Circuit Court for Leon County, Florida. On the basis of his plea, he was found guilty as charged and, inter alia, placed on probation for three years. However, on August 29, 1983, upon Motion by Mr. Taber, the judge entered an Order deleting the adjudication of guilt and withholding adjudication. The probation and other aspects of the prior action were not disturbed. Petitioner explained the facts and circumstances leading up to his arrest which took place in Tallahassee on, January 28, 1983. At that time, Petitioner, who was a 19 year old high school graduate who had lived in Tallahassee for seven years, was working for U-Haul. His co-defendant in the criminal case was his U-Haul supervisor who, at the time, was on a work release program from the Leon County Jail. He was also engaged in repeated sales of marijuana and convinced Petitioner to allow him to store his stock of marijuana in Petitioner's car and to hold the money from the sales. Petitioner admits to being engaged in this activity but denies any sales himself. He now knows his actions were a big mistake and he deeply regrets his participation in them. He has no other criminal history. In addition to the probation, Petitioner was sentenced to community service the term of which was subsequently reduced due to his good behavior. There is some indication his probation officer will recommend termination of his probation one year early due to his good behavior. After leaving U-Haul, where he had worked for five years, Petitioner went to work as a trainee for Mr. Hudgins, District Manager in Tallahassee for Family Life Insurance Co. Mr. Hodgins observed Petitioner carefully during the training period. He found Petitioner epitomized the good qualities looked for by his company to represent it in insurance sales. Integrity is a watchword in the insurance industry and Mr. Hudgins does not see anything in Petitioner's past which would show he does not have this requisite integrity. In fact, Mr. Hudgins sees traits in Petitioner, such as honesty, drive, and a desire to help, which would lead to success in the field. When Petitioner made his application for employment with Mr. Hudgins' company, he answered "no" to the question regarding any prior convictions, since the question does not relate to arrests. Even knowing of Petitioner's misconduct, Mr. Hudgins does not consider Petitioner is disqualified. In his opinion, because Petitioner was young when he made a mistake he should not be perpetually tarred because of it. These sentiments are echoed in the statement of a co- worker of Petitioner's at U-Haul who has know him for six years and who has recently hired him to work at Ryder Truck Rental. Mr. Earlywine has had many compliments from customers and co- workers about Petitioner's outstanding work and business ethics. These qualities were also recognized by Joan O'Steen, a Deputy Sheriff in Hillsborough County, who is convinced that Petitioner is a strong and morally superior individual. On the basis of the above, it would appear, therefore, that Petitioner is neither unfit nor untrustworthy at this time. On June 28, 1985, Petitioner submitted to Respondent an application for filing for examination as an ordinary life, including health, agent. At question 11, he properly indicated he had been charged with a felony but not convicted. On the basis of his plea, however, on August 30, 1985, the chief, Bureau of Licensing for Respondent, denied Petitioner's application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Petitioner's application to sit the examination for licensing as an ordinary life, including health, agent be denied. RECOMMENDED in Tallahassee, Florida, this 21st day of January, 1986. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1986. COPIES FURNISHED: Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301j Bernard F. Daley, Jr., Esquire P. O. Box 1177 Tallahassee, Florida 32302 David G. Poucher, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301
The Issue Whether Petitioner forfeits his rights to benefits under the Florida Retirement System.
Findings Of Fact On May 5, 2011, Petitioner was mayor of North Miami Beach, Florida. During Petitioner’s employment as mayor with North Miami Beach, he was a member of the Florida Retirement System. On or about October 17, 2012, Petitioner was charged by Information with nine criminal counts in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. On February 24, 2016, pursuant to a written Plea Agreement, Rosner entered a plea of guilty to Count 11/ Unlawful Compensation [or] Reward for Official Behavior, in violation of section 838.016(2), in Eleventh Circuit case F12023663. That same day in the Eleventh Circuit case F12023663, Judge Martin Bidwill issued the following orders: an Order Ratifying Terms of Plea Agreement; a Disposition Order specifying Rosner’s plea to Count 1 Unlawful Compensation [or] Reward for Official Behavior; and a Finding of Guilt Order to Count 1 Compensation [or] Reward for Official Behav[ior]/Influence. The October 17, 2012, Information detailed the factual basis of Rosner’s plea and conviction in Count 1.2/ Petitioner illegally received unpaid campaign advertising from Martin Outdoor Media, which had a continuing contract with the City of North Miami Beach while Petitioner served as mayor. Count 1 provides in relevant part, the following: COUNT 1 MYRON JOEL ROSNER, on or about May 5, 2011, in the County and State aforesaid, being a public servant to wit: MAYOR OF NORTH MIAMI BEACH did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept any pecuniary or other benefit not authorized by law, to wit; UNPAID CAMPAIGN ADS, for the past, future, or future exertion of any influence upon or with any other public servant regarding any act or omission which said public servant represented as being within the official discretion of a public servant, to wit: CONTINUE ALL MARTIN OUTDOOR MEDIA CONTRACTS WITH THE CITY OF NORTH MIAMI BEACH, in violation of s. 838.016(2), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.3/ Rosner was notified by certified letter dated April 20, 2016, of the Division's proposed action to forfeit his Florida Retirement System rights and benefits pursuant to sections 112.3173 and 121.091(5)(f). The notice provided the following basis for the proposed action: . . . . as a result of your guilty plea in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, for acts committed in connection with your employment with the City of North Miami Beach. Specifically, on or about October 18, 2012, in Case Number F12-023663 (2012-CF_023663), you were charged by information, in relevant part, with unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, based on conduct which occurred on or about May 5, 2011. On or about February 24, 2016, you entered a guilty plea for one count of unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, and adjudication of guilt was withheld. By Petition dated May 9, 2016, Rosner contested the Notice and challenged the forfeiture.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, Florida Statutes, and directing the forfeiture of his Florida Retirement System rights and benefits. DONE AND ENTERED this 15th day of June, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 15th day of June, 2017.
The Issue The issue is whether Respondent, Simpro Homes, Inc., conducted business operations in the State of Florida without obtaining workers’ compensation coverage meeting the requirements of Chapter 440, Florida Statutes, and, if so, whether the penalty in the amount of $326,861.58, was properly assessed by Petitioner, State of Florida, Department of Financial Services, Division of Workers’ Compensation, pursuant to Section 440.107, Florida Statutes, and Florida Administrative Code Chapter 69L.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. Insurers are required by law to report all workers’ compensation policies to Petitioner. Respondent is a corporation domiciled in Georgia. Respondent is engaged in the business of framing, which is a construction activity, pursuant to Chapter 440, Florida Statutes, and Florida Administrative Code Rule 69L-6. On August 10, 2005, Petitioner's investigator, Allen DiMaria, visited 4307 Edgewater Drive, Jacksonville, Florida, on a random site visit, and interviewed a number of workers at the work site. Mr. DiMaria documented his investigation in the narrative of his Initial Investigative Report. Based upon these field interviews, Petitioner determined that the workers were employed by Respondent. Mr. DiMaria asked the superintendent on site whether Respondent had provided him with a certificate of liability insurance indicating workers’ compensation coverage, and was informed that Respondent had provided one. Mr. DiMaria was subsequently provided with the Certificate of Insurance by the general contractor on the work site. Mr. DiMaria also obtained a copy of Respondent’s workers’ compensation insurance policy which had a policy period of October 30, 2004, to October 30, 2005. The policy and the information contained in the Certificate of Insurance were consistent. Subsequent to the site visit, Mr. DiMaria continued the investigation of Respondent utilizing the Department’s Compliance and Coverage Automated System (“CCAS”) database that contains information on all workers' compensation insurance policy information from the carrier to an insured, and determined that Respondent did not have a State of Florida workers' compensation insurance policy. Petitioner, which maintains a database of all workers’ compensation exemptions in the State of Florida, also did not find any current, valid exemptions for Respondent. The St. Paul Travelers insurance policy held by Respondent at the time of Petitioner's site visit on August 10, 2005, did not contain an endorsement which utilizes Florida class codes, rates, rules, and manuals that comply with Chapter 440, Florida Statutes, and the Florida Insurance Code, satisfy the standard. Specifically, the insurance policy did not have Florida listed as a covered state under Section 3A. There is also no evidence that Respondent secured Section 3C coverage for Florida. The premium was based on a rate that was not the Florida premium rate and on a class code that was not indicative of the actual work being performed by Respondent. The policy shows that Respondent was insured for operations under National Council on Compensation Insurance (NCCI) class code 5645 at a premium utilizing Georgia premium rates. Class code 5645 refers to framing of one- or two- family homes. Mr. DiMaria utilized class code 5651 in his review of Respondent because Respondent was framing a dwelling that consisted of more than a two-family dwelling, pursuant to Florida Administrative Code Rule 69L-6.021(1). On August 11, 2006, after consulting with his supervisor, Mr. DiMaria issued and served on Respondent a stop- work order and order of penalty assessment for failure to comply with the requirements of Chapter 440, Florida Statutes, and more specifically on the grounds that Respondent did not secure the payment of workers’ compensation based on Florida class codes, rates, rules, and manuals. Employers on job sites in Florida are required to keep business records that enable Respondent to determine whether the employer is in compliance with the workers' compensation law. Mr. DiMaria issued a request for production of business records to Respondent on August 11, 2006. The request asked the employer to produce, for the preceding three years, documents that reflected payroll and proof of insurance. Respondent produced check stubs for a number of employees who were not on the investigated work site, and an affidavit that stated the employees on the work site were performing framing work for Respondent. Respondent failed to produce the requested records for the employees working in Florida. Hans Prosser, Respondent's president, testified that he had provided the records to his attorney who was charged with reviewing the records and turning them over to Petitioner. Apparently, the attorney never delivered the records to Petitioner. Once Respondent failed to provide the requested information, Petitioner imputed the payroll of the employees and calculated a penalty for the time period of August 11, 2002, through August 11, 2005. Mr. DiMaria assigned a class code to the type of work performed by Respondent utilizing the SCOPES Manual, multiplied the class code’s assigned approved manual rate by the imputed payroll per one hundred dollars, and then multiplied that by 1.5. The payroll was imputed back to October 1, 2003. Pursuant to Florida Administrative Code Rule 69L-6.028(4), for the period prior to October 1, 2003, Petitioner assessed a penalty of $100 per day for each calendar day of noncompliance. The Amended Order of Penalty Assessment ("Amended Order") which assessed a penalty of $327,969.47, was served on Respondent on September 1, 2005. The Department issued and served a second Amended Order of Penalty Assessment (“Second Amended Order”) with an assessed penalty of $326,861.58, via a Motion to Amend Order of Penalty Assessment to Respondent on January 6, 2006. The reduction was the result of an error in the calculation of the penalty in the Amended Order. The motion was granted by this Administrative Law Judge on March 20, 2006. Respondent contends that it had been dissolved as a corporation on February 24, 2001, and was reinstated as a corporation on January 23, 2003, and thus should not be penalized for any time prior to that date. In support of this contention, Respondent offered into evidence a certified copy of a document entitled "Certificate of Reinstatement," demonstrating that Respondent had been administratively dissolved on February 24, 2001, "for failure to comply with the requirements of Title 14 of the Official Code of Georgia Annotated." The document further explains that all taxes have been paid and that Respondent "may resume its business as if the administrative dissolution had never occurred." This document was not presented to counsel for Petitioner prior to the final hearing as required by the Order of Pre-hearing Instructions issued in this matter.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Assessment Order assessing a penalty of $326,861.58. DONE AND ENTERED this 4th day of August, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2006. COPIES FURNISHED: Colin M. Roopnarine, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Hans Prosser Simpro Homes, Inc. 5055 Old Winder Highway Braselton, Georgia Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muñiz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
