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IN RE: EILEEN MCGUIRE vs *, 99-001490EC (1999)
Division of Administrative Hearings, Florida Filed:Palatka, Florida Mar. 30, 1999 Number: 99-001490EC Latest Update: Mar. 15, 2000

The Issue Whether respondent violated Section 112.3142(2)(b), Florida Statutes, with regard to her 1996 financial disclosure obligations, and, if so, what penalty is appropriate.

Findings Of Fact Respondent, Eileen McGuire, is now and at all times material to this proceeding has been a member of the Town Council of the Town of Welaka, Florida. As a public official, Respondent is subject to the applicable requirements of Chapter 112, Florida Statutes. Respondent was first appointed to the Welaka Town Council (Town Council) on October 24, 1995. Subsequently, she was elected to the Town Council in March 1996, and was re-elected in 1998. As an elected public official, Respondent was required to file an annual CE Form 1, Statement of Financial Interests (Statement of Financial Interests), for the year 1996 with the Supervisor of Elections Office of Putnam County, Florida (Putnam County Supervisor of Elections or Supervisor of Elections). The 1996 Statement of Financial Interests was required to be filed by July 1, 1997. On June 23, 1997, Respondent submitted her 1996 Statement of Financial Interests with the Putnam County Supervisor of Elections. However, Respondent failed to sign and date the 1996 Statement of Financial Interests she submitted to the Supervisor of Elections. Respondent's failure to sign and date her 1996 Statement of Financial Interests was inadvertent and unintentional. All the official records of the Putnam County Supervisor of Elections reflect that Respondent's 1996 Statement of Financial Interests was submitted to that office on June 23, 1997. Moreover, on that same day, Respondent's 1996 Statement of Financial Interests was accepted, received, stamped, and deemed filed by the Supervisor of Elections. The Putnam County Supervisor of Elections, deemed Respondent's 1996 Statement of Financial Interests filed on June 23, 1997, notwithstanding the fact that the form was not signed or dated. Respondent was not given any written notice of any alleged defect in or failure to properly file her 1996 Statement of Financial Interests either by the Putnam County Supervisor of Elections or any other government officer or agency. In October 1997, Respondent received a telephone call from an employee of the Putnam County Supervisor of Elections who advised that she needed to sign some documents that she had previously filed. Soon after Respondent received the aforementioned telephone call from the Supervisor of Elections Office, she went to that office and signed the document which was presented to her for her signature. The form that Respondent mistakenly signed was the CE Form 10, Annual Disclosure of Gifts From Governmental Entities and Direct Support Organizations and Honorarium Event Related Expenses (CE Form 10), which was attached to the Form 1 when it was presented for signature. Notwithstanding the voluntary mutual effort of the parties to correct the oversight relative to Respondent's failure to sign her 1996 Statement of Financial Interests, the original form was thereafter filed away unnoticed until the advent of this proceeding.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that the Florida Commission on Ethics determine that the public interest would not be served by proceeding further against Respondent, and dismiss the complaint. DONE AND ENTERED this 20th day of January, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 20th day of January, 2000. COPIES FURNISHED: Virlindia Doss, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Allen C.D. Scott, II, Esquire Scott & Scott 101 Orange Street St. Augustine, Florida 32084 Sheri L. Gerety, Complaint Coordinator Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Florida Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709

Florida Laws (7) 1.01112.3142112.3145112.317112.322120.57120.68 Florida Administrative Code (1) 34-5.0015
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TIMOTHY BOND TABER vs. DEPARTMENT OF INSURANCE AND TREASURER, 85-003354 (1985)
Division of Administrative Hearings, Florida Number: 85-003354 Latest Update: Jan. 21, 1986

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

Florida Laws (4) 626.611626.621626.785893.13
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IN RE: MARY MCCARTY vs *, 92-005168EC (1992)
Division of Administrative Hearings, Florida Filed:Palm Beach, Florida Aug. 27, 1992 Number: 92-005168EC Latest Update: Oct. 20, 1993

The Issue The issue for disposition is whether Mary McCarty, Respondent in a complaint to the Florida Commissions on Ethics, is entitled to costs and reasonable attorney's fees from the complainant, Leslie F. McDermott, pursuant to Section 112.317(8), F.S.

Findings Of Fact Mary McCarty has resided in Delray Beach, Florida for approximately twenty years. She is politically active as a Republican; she served as a Delray Beach city commissioner from 1987 until 1990, and now currently serves as chairperson of the Palm Beach County Commission. William (Bill) Andrews, also a Republican, was elected to the Delray Beach City Commission approximately one year after Ms. McCarty. The two worked together on certain issues, including an issue regarding the firing of the city manager, and more often than not, they voted on the same side. Leslie F. McDermott lives in Lake Worth, Palm Beach County, Florida. He has never resided in Delray Beach. He is employed as an engineer for a computer company and is well known and respected in the community as an active member of the NAACP. He served as president of the south county branch of the NAACP for seven or eight years until recently, and now serves on the executive board of that local branch. Jeanette (Jay) Slavin is a "grass roots" political activist in the south county area. As a Democrat she has been very involved in political campaigns and has openly supported candidates and issues in heated opposition to Mary McCarty. Malcolm Byrd, a Republican, served on the Delray Beach City Commission from 1979 until 1987, and was city manager from 1989-90. At first he supported Mary McCarty, but as city manager he had differing views of how the city should proceed and how the city manager should function. In early 1990, Malcolm Byrd learned that Bill Andrews had attended a Republican fund-raiser in Orlando, with transportation by chartered jet and limousine provided by a third party. Bill Andrews openly discussed the trip and how lavish it was. Andrews displayed a photograph of himself at the event with President Reagan or other noted Republicans. Malcolm Byrd became aware that Andrews had not reported that trip on his financial disclosure form, and shared that information with Jay Slavin. There was also some talk that Mary McCarty had attended the fund-raiser, as Andrews referred to "we" when discussing the trip. Mary McCarty's financial disclosure form for 1990 did not reflect the alleged gifts related to the trip. Jay Slavin had lunch with Leslie McDermott and urged him to file ethics complaints against both Andrews and McCarty. Ms. Slavin had obtained the requisite forms from the commission. She felt that Leslie McDermott's complaint would have more credibility as she, Slavin, was known to be politically opposed to Andrews and McCarty. Leslie McDermott was reluctant at first to file the complaint against McCarty, as the only basis that Jay Slavin gave him was that Bill Andrews said "we" went on the trip, and everyone knew that Mary McCarty frequently attended fund-raisers and political events. Leslie McDermott drafted the complaint based on information from Jay Slavin, and Ms. Slavin typed it for his signature, as he has a visual handicap. Before sending the complaint, McDermott spoke with Malcolm Byrd, who told him that he did not have the evidence on McCarty that he had on Andrews and that he could not encourage him to file on McCarty. McDermott heard rumors from other people who believed she had attended the function, but no one told him they had personal knowledge of the trip or had actually seen McCarty. At the hearing, and during the investigation by the commission, Leslie McDermott refused to divulge the names of those other persons who told him they believed Mary McCarty took the trip. After sending the complaints, McDermott gave Jay Slavin permission to give them to three newspapers which he specified: the Palm Beach Post, the Sun Times and the Fort Lauderdale Sentinel. He personally called the papers and told them that the matters in the complaints needed to be investigated. He also told the reporters that the complaints had no official connection with the NAACP. He considered the three papers to be responsible, non-sensational publications and he had experience in the past with issuing press releases. On February 6, 1992 the Sun-Sentinel published a story with the headline, "ETHICS COMPLAINTS FILED", stating that an NAACP official filed ethics complaints alleging that Mary McCarty and Bill Andrews attended a $1000 a plate fund-raiser paid for by a group of bond brokers, and failed to disclose the gifts. Mary McCarty contacted the NAACP, and Leslie McDermott was chastised for involving the organization. He did not call the newspaper to demand a corrective article as he did not want to "add fuel to the fire". He avowed distress, however, that people associated the issue with the NAACP. Meanwhile, the Ethics Commission conducted its investigation and found that, indeed, Mary McCarty did not attend the event. That was a conclusion that should have been reached by Mr. McDermott prior to his filing the complaint. Instead, on the complaint form, he signed the following statement under oath: COMPLAINT THAT THE COMMISSIONER NAMED ABOVE, THEN A DELRAY BEACH CITY COMMISSIONER DID VIOLATE FLORIDA STATUTE 112 IN THAT THE COMMISSIONER ACCEPTED GIFTS VALUED IN EXCESS OF $100.00 AND FAILED TO REPORT SAME IN ACCORDANCE WITH STATE LAW. THE GIFTS WERE PROVIDED BY MEMBERS OF A BOND UNDERWRITING GROUP HEADED BY SMITH BARNEY. THEY INCLUDED: ROUND TRIP TRANSPORTATION ON A CORPORATE JET FROM WEST PALM BEACH TO ORLANDO AND BACK; AND, ROUND TRIP LIMOUSINE SERVICE FROM THE ORLANDO AIRPORT TO THE ORANGE COUNTY CONVENTION AND CIVIC CENTER AND RETURN TO THE AIRPORT; AND, A TICKET TO ATTEND THE $1000 PER PERSON FUND RAISER DINNER BENEFITING GOV. MARTINEZ AND FEATURING PRESIDENT GEORGE BUSH. THE FOREGOING GIFTS HAVE AN ESTIMATED VALUE OF $1350 TO 1500 WELL IN EXCESS OF THE REPORTING REQUIREMENTS. THE COMMISSIONERS FINANCIAL DISCLOSURE FORM FOR THE CALENDAR YEAR 1990 WHICH COVERS THE DATE OF THE SUBJECT EVENT ON FRIDAY APRIL 20 1990 SHOWS NO GIFTS RECEIVED. IN ADDITION TO COMMENTS MADE TO VARIOUS INDIVIDUALS ABOUT THE DETAILS OF THE TRIP, INCLUDING THE FACT THAT ALL EXPENSES HAD BEEN PAID BY THE BOND BROKERS, THE COMMISSIONER WAS OBSERVED AT THE EVENT BY NUMEROUS LOCAL OFFICIALS AND RESIDENTS. (Exhibit 1, Complaint dated February 2, 1992) Leslie McDermott did not ask Bill Andrews or Mary McCarty whether she attended the function. He did not contact anyone, including the sponsor of the event, who would likely have personal knowledge of her attendance. Instead, he relied on rumors and indirect reports, all which he knew were based on these tenuous connections: Bill Andrews used the term "we" in bragging about the trip. Mary McCarty frequently attended political events and was politically active. Mary McCarty and Bill Andrews, both Republicans (but not the only Republicans on the city council), often voted alike. Some unnamed persons overheard conversations which made them believe that Bill Andrews and Mary McCarty were on the trip together. Leslie McDermott's explanation that he released the complaint to the press so that an investigation could be conducted is simply not persuasive. He is an educated, articulate and experienced individual. He knew or should have known that public exposure of his complaint would injure the reputation of Ms. McCarty. Despite his own initial misgivings, Mr. McDermott allowed himself to be used by individuals who could only benefit from that injury. His failure, due to hubris or extraordinarily bad judgment, to make a reasonable attempt to check the veracity of the rumors, constitutes the reckless disregard by which malicious intent may be proven. In defending against the complaint and in pursuing relief in this proceeding, Mary McCarty has incurred costs and attorneys fees in the total amount of $12,876.55. Exhibit #4a), b), and c) appropriately itemizes the 50.9 hours and $2696.55 costs incurred. The hourly rate of $200.00 was stipulated as reasonable. Leslie McDermott contests the reasonableness of any time spent and costs incurred after the commission's order finding no probable cause was issued. Based upon the unrefuted testimony of Robert V. Romani, Esquire, an experienced litigator, past-president of the Palm Beach County Bar Association and member of the Board of Governors of the Florida Bar; and after considering relevant case law discussed below, I find that the hours and costs both before and after dismissal of the complaint are reasonable.

Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Ethics issue its final order awarding fees and costs in the total amount $12,876.55 to Mary McCarty from Leslie McDermott. DONE AND RECOMMENDED this 23rd day of August, 1993, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5168EC The findings of fact proposed by both parties are substantially adopted here, with the exception of the following findings proposed by Leslie McDermott. Paragraph 13. The "reasonable" appearance or belief as to Ms. McCarty's guilt is rejected as unsupported by the weight of evidence. Paragraph 15. The reason Mr. McDermott presents for signing the complaint is rejected as not credible, in the face of his inconsistent action in presenting the complaint to the press. Paragraphs 16-18 are rejected as contrary to the weight of evidence. COPIES FURNISHED: Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Kenneth D. Stern, Esquire Post Office Box 3878 Boca Raton, Florida 33427-3878 James K. Green, Esquire One Clearlake Centre 250 South Australian Avenue West Palm Beach, Florida 33401

Florida Laws (4) 112.3148112.317120.57120.68
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RICHMOND HEALTHCARE, INC., D/B/A SUNRISE HEALTH CENTER vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES AND HOSPITAL CARE COST CONTAINMENT BOARD, 88-000826 (1988)
Division of Administrative Hearings, Florida Number: 88-000826 Latest Update: Jan. 19, 1989

Findings Of Fact Background Respondent, Department of Health and Rehabilitative Services (Department), is the designated state agency responsible for the administration of Medicaid funds under Title XIX of the Social Security Act. Rule 10C- 7.048(2)(a), Florida Administrative Code. Petitioner, Richmond Healthcare, Inc., d/b/a Sunrise Health Center, owns and operates a 240-bed nursing home in Broward County, Florida, and is a participant in the Florida Medicaid Program. As a participant, petitioner is required to submit annual cost reports to the Department. Based on these cost reports, the Department establishes a participant's reimbursement rate. Rules 10C-7.048(4)(a)5 and 10C-7.048, Florida Administrative Code. The annual cost reports are subject to audit at the discretion of the Department. If audited, a direct examination of the participant's books, records and accounts that support the amounts reported in the annual cost report is made to determine the correctness and propriety of the amounts claimed in the cost report. Rule 10C-7.0481, Florida Administrative Code. Pertinent to this case, the Department elected to audit petitioner's cost reports for the period of October 5, 1983, through December 31, 1984. Based on such audit, the Department issued an audit report that disallowed certain costs claimed by petitioner, and proposed to recoup the excess Medicaid payments made to petitioner as a consequence of such disallowance. Petitioner filed a timely protest to contest the Department's decision. The parties' joint stipulation At hearing, the parties stipulated as follows: The parties have recalculated the usual and customary charges at $65.72 per day. The Department of Health and Rehabilitative Services will reclassify costs of $8,282.00 from the capitalized minor equipment to the operating and patient care component. The Department of Health and Rehabilitative Services will reclassify construction period interest to start-up costs from the date of certificate of occupancy to the date of the admission of the first resident to the nursing home. Amortization of this amount for the 15 months ended December 31, 1984, cost reporting period totaled $27,677.00. The adjustment to indirect home office costs will remain as in the audit report. The parties agree that the property ceiling issue will be remanded to the Department of Health and Rehabilitative Services for an informal hearing. All arguments will be presented in writing to the informal hearing officer. Oral argument will be permitted at the request of either party. The parties further agree that the written arguments will be due on the same date that the Proposed Recommended Order is due in the companion rule challenge case. If the rule challenge is dismissed, the parties will file briefs and hold oral argument, if requested, within fifteen (15) days of its dismissal. The parties agree that the only remaining disputed issue in the Petition filed in this matter is the allowable expense for private airplane usage. The expenses for private airplane usage. In rendering its annual cost report, a participant, such as petitioner, is bound by the following provisions of law or contract: Rule 10C-7.48(4), Florida Administrative Code, which provides: (4) Provider Eligibility. (a) Nursing home providers participating in the Medicaid Nursing Home Program shall: * * * Have a Medicaid reimbursement rate established. The provider shall submit a cost report in compliance with the provisions of the Florida Title XIX Long Term Care Reimbursement Plan, as revised April 1, 1983, and subsequently amended January 1, 1984, adopted by reference. The cost report shall be analyzed and a reimbursement rate established in accordance with the Florida Title XIX Long Term Care Reimbursement Plan, as revised April 1, 1983, and subsequently amended effective January 1, 1984. The Florida Title XIX Long Term Care Reimbursement Plan, which provides: * * * Cost Finding and Cost Reporting All providers are required to detail all of their costs for their entire reporting period, making appropriate adjustments as required by this plan for determination of allowable costs. . . . The cost report must be prepared by the facility's independent Certified Public Account, on the forms prescribed by the Department, and on the accrual basis of accounting in accordance with generally accepted accounting principles as established by the American Institute of Certified Public Accountants (AICPA), the methods of reimbursement in accordance with Medicare (Title XVIII) Principles of Reimbursement, the Provider Reimbursement Manual (HIM-IS) except as modified by the Florida Title XIX Long Term Care Reimbursement Plan, and State of Florida Administrative Rules. * * * G. All providers are required to maintain financial and statistical records in accordance with 42 CFR 405.453(a), (b, (c), (e). The cost report is to be based on financial and statistical records maintained by the facility. Cost information must be current, accurate, and in sufficient detail to support costs set forth in the report. This includes all ledgers, books, records, original evidence of cost and other records in accordance with HIM-IS which pertain to the determination of reasonable costs, and must be capable of and available for auditing by State and Federal authorities. . . . (Emphasis added) * * * III. Allowable Costs * * * C. Implicit in any definition of allowable costs is that those costs should not exceed what a prudent and cost-conscious buyer pays for a given service or item. . . . HIM-IS, which provides: 2100. PRINCIPLE All payments to providers of services must be based on the "reasonable cost" of services covered . . . and related to the care of beneficiaries. . . . * * * 2102.1 Reasonable Costs... It is the intent of the program that providers will be reimbursed the actual cost of providing high quality care. Implicit in the intention that actual costs be paid to the extent they are reasonable is the expectation that the buyer seeks to minimize its costs and that its actual costs do not exceed what a prudent and cost-conscious buyer pays for a given item or service. . . . 2102.2 Costs Related to Patient Care.-- These include all necessary and proper costs which are appropriate and helpful in developing and maintaining the operation of patient care facilities and activities. Necessary and proper costs related to patient care are usually costs which are common and accepted occurrences in the field of the provider's activity. . . . * * * 2103. PRUDENT BUYER General.--The prudent and cost-conscious buyer not only refuses to pay more than the going price for an item or service, he also seeks to economize by minimizing cost. . . . * * * 2304. ADEQUACY OF COST INFORMATION Cost information as developed by the provider must be current, accurate, and in sufficient detail to support payments made for services rendered to beneficiaries. This includes all ledgers, books, records and original evidences of cost (purchase requisitions, purchase orders, vouchers, requisitions for materials, inventories, labor time cards, payrolls, bases for apportioning costs, etc.), which pertain to the determination of reasonable cost, capable of being audited. (Emphasis added) On audit, petitioner provided no books, records or accounts to support the amounts reported in its annual cost report for expenses associated with private airplane usage. Under the circumstances, the Department properly disallowed such costs since their propriety and correctness was not substantiated by petitioner. At hearing, petitioner offered no proof regarding the correctness or propriety of the subject costs, but relied upon the proof offered on behalf of intervenor, Thelma R. Allgood. Ms. Allgood was, at all times material hereto, an owner of 50% of petitioner's stock, and was, after its sale to third parties, contractually obligated to assist and cooperate with petitioner to document the subject claim. At hearing, the proof offered on behalf of intervenor demonstrated that during the period of October 5, 1983, through December 31, 1984, petitioner had contracted with Allgood Healthcare, Inc., which was located in Augusta, Georgia, to provide all of the customary and necessary management services for petitioner. During this period, Ms. Allgood, in addition to owning 50% of petitioner's stock, was, along with her husband, Thomas Allgood, the sole owner of Allgood Healthcare. In view of this community of interest, Allgood Healthcare was considered a home office of petitioner for cost reporting purposes. Between October 5, 1983, and December 31, 1984, Allgood Healthcare used its private plane on 42 occasions to fly Mr. and Mrs. Allgood, as well as other personnel of Allgood Healthcare, to or from petitioner's facility in Broward County, Florida, and the home office in Augusta, Georgia, as well as the cities of Savannah and Atlanta, Georgia. The expenses for these trips totaled $41,228.26, and included aircraft operation costs, pilot charges, pilot's expenses, and fuel. On average, the cost of each trip was approximately $940. 1/ During the same time-frame, the cost for a round trip economy fare ticket between Augusta and Fort Lauderdale by commercial airline was approximately $430. To demonstrate its entitlement to claim the expenses for private airplane usage on its costs report, it was incumbent upon petitioner to demonstrate that such costs were reasonable and related to patient care. Petitioner has failed to demonstrate either prerequisite. The only proof offered to demonstrate that the subject costs were related to patient care was through the testimony of Mr. Allgood. Mr. Allgood, admittedly a person with no knowledge of patient care or cost reporting, accompanied his wife on approximately one-half of the subject trips and opined that the purpose of those trips, as well as those on which he had no personal involvement, were related to patient care. Mr. Allgood was, however, unable to recall any specific trips he made; any dates he, his wife, or any other specific person were on the premises; or what precisely was done at any particular time that would demonstrate that the trip was related to patient care. Under the circumstances, Mr. Allgood's testimony is not persuasive, and his conclusion that the subject costs for private airplane usage were related to patient care is not credited. 2/ Regarding the reasonableness of the expenses incurred, the proof demonstrated that the cost per trip for use of the private plane was $940, while the cost for a round trip ticket by commercial airline was $430. To support the reasonableness of this expense, intervenor again offered the testimony of Mr. Allgood, who opined that where two passengers were on a trip, the cost was comparable to commercial travel. Mr. Allgood's testimony was, however, unpersuasive to demonstrate the reasonableness of the cost to patient care. Notably, Mr. Allgood, who admitted performing no services related to patient care, accompanied his wife on approximately one-half of the trips. Under such circumstances, his presence was unnecessary, and the costs for transporting Ms. Allgood by private plane, even assuming she performed services related to patient care, were unreasonable. With respect to the remaining trips, Mr. Allgood was shown to have no personal knowledge regarding those trips, and his testimony that at least two passengers were present on each of those trips is not credited. In fact, to the extent proof is available, it indicates that a number of trips were made with only one passenger, and that on several occasions the expense of a trip, ostensibly a round trip (Augusta-Fort Lauderdale- Augusta), were incurred to transport one or two passengers in one direction only.

Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that: Petitioner's protest of the Department's disallowance of the expenses associated with private airplane usage as Medicaid resident costs be dismissed, and Upon review of the property ceiling issue which is hereby remanded to the Department, that it enter a final order consistent with its findings on that issue, the parties' stipulation, and the recommendation contained in this order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of January, 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of January, 1989.

USC (1) 42 CFR 405.453(a) Florida Laws (1) 120.57
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MARY S. ALEXANDER vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 03-001716 (2003)
Division of Administrative Hearings, Florida Filed:Ocala, Florida May 12, 2003 Number: 03-001716 Latest Update: Jan. 20, 2004

Findings Of Fact 1. All findings of fact in the ALJ’s RO are adopted and incorporated herein by reference.

Conclusions THIS CAUSE is before me upon the attached Recommended Order (RO) that was issued by the Administrative Law Judge (ALJ) assigned to hear the case by the Division of Administrative Hearings. A Transcript of the hearing was not filed with the Agency Clerk. No exceptions to the Recommended Order were filed. The Recommended Order recommends that the department enter a Final Order denying the petitioner's application for a license to operate a group home for disabled adults.

Appeal For This Case A party who is adversely affected by this final order is entitled to judicial review. To initiate judicial review, the party seeking it must file one copy of a “Notice of Appeal” with the Agency Clerk. The party seeking judicial review must also file another copy of the “Notice of Appeal,” accompanied by the filing fee required by law, with the First District Court of Appeal in Tallahassee, Florida, or with the District Court of Appeal in the district where the party resides. The Notices must be filed within thirty (30) days of the rendition of this final order.’ The date of the “rendition” of this Final Order is the date that is stamped on its first page. The Notices of Appeal must be received on or before the thirtieth day after that date. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true copy of the foregoing FINAL ORDER has been sent by U.S. Mail or hand delivery to each of the persons named above on this 77% day of , 2004. al PAUL FLOUNLACKER, Agency Clerk Department of Children and Family Services 1317 Winewood Blvd. Bldg. 2 Room 204 Tallahassee, FL 32399-0700

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FLORIDA REAL ESTATE COMMISSION vs CECELIA M. SMILE DILLON, 91-004852 (1991)
Division of Administrative Hearings, Florida Filed:Miami, Florida Aug. 02, 1991 Number: 91-004852 Latest Update: Sep. 23, 1992

The Issue The issue for determination in this proceeding is whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, disciplinary action should be imposed.

Findings Of Fact Petitioner is the state licensing and regulatory agency charged with responsibility for prosecuting administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed real estate salesman in the state, holding license number 0189734. The license was last issued as a salesperson %Say Realty & Investments, Inc., 6306 Pembroke Road, Hollywood, Florida 33023. Respondent was employed as a salesperson with Sales Alvin, Inc. from June 28, 1990, to March 10, 1991. Respondent's license was placed with Say Realty and Investments, Inc. effective March 11, 1991. During the time Respondent was employed by Sales Alvin, Inc., she carried out a series of acts in connection with the listing for rent of a condominium without the knowledge and consent of her employing broker. While Respondent was a salesperson for Sales Alvin, Inc., on or about February 19, 1991, Respondent listed an unfurnished condominium for rent at a monthly rental price of $700. The condominium was owned by Mr. Roy Barrett. Respondent listed the rental unit, and Alon Granovsky, another salesperson employed by Sales Alvin, Inc., procured a tenant for the condominium. Respondent drafted a lease between the tenant and the owner of the condominium on or about February 21, 1991. Respondent collected a check from the tenant in the amount of $2,100 for payment of the initial rent and security deposit. Respondent then delivered the check to the owner of the condominium, and the owner gave Respondent a receipt for $2,100. Respondent gave Mr. Granovsky a personal check for $210 on or about February 21, 1991, as a commission for procuring the tenant for the condominium. Respondent did not inform her employing broker of the rental transaction or that she had given a commission check to Mr. Granovsky. Mr. Granovsky disclosed the transaction to his employing broker and delivered his commission check to his broker. Respondent's broker gained additional knowledge of the transaction when he received a money order from the tenant in the amount of $700 for the rent due for the month of March. Respondent's employing broker confronted Respondent regarding the transaction. Respondent provided her employing broker with a personal check for $350 as a portion of the commission due the employing broker and subsequently delivered the balance of the commission due. The entire commission was disbursed by the employing broker. While employed by Sales Alvin, Inc., on or about March 3, 1991, Respondent solicited and obtained a listing for the sale of a house. Respondent provided the owners of the house with a Sellers Net Sheet on the letter head and form used by Sales Alvin, Inc. The Sellers Net Sheet approximated the cash to seller at closing if the house sold at the listed price. Respondent became employed by Say Realty and Investment, Inc., on or about March 11, 1991. Respondent listed the house while she was employed by Sales Alvin, Inc. When Respondent placed the house in the multiple listing service ("MLS"), she showed Say Realty and Investment, Inc., as the listing broker. When the brokers at Sales Alvin, Inc. questioned the listing with Say Realty and Investment, Inc., the listing was transferred to Sales Alvin, Inc. Respondent has no history of prior disciplinary action against her license.

Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order suspending Respondent's license for 90 days, imposing an administrative fine of $1,000, and placing Respondent on probation for one year subject to such reasonable conditions as may be imposed by the Commission. DONE and ENTERED this 22nd day of January, 1992, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 23rd day of January, 1992.

Florida Laws (3) 120.57475.25475.42
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CRUISES UNLIMITED TRAVEL AND TOURS, INC. vs DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, 94-002361 (1994)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Apr. 28, 1994 Number: 94-002361 Latest Update: Nov. 21, 1994

Findings Of Fact Cruises Unlimited Travel/Tours, Inc. (Petitioner), is a "seller of travel", as that term is defined by Section 559.927(1)(2), Florida Statutes. 2/ Elaine Scola is Petitioner's owner. As of 1988, sellers of travel were required to register with the Department of Agriculture and Consumer Services, Division of Consumer Services (Respondent), and it was a violation of Section 559.927, Florida Statutes, for any person to conduct business as a seller of travel without registering annually with Respondent. Any such violation subjected the offending party to civil and criminal penalties. Petitioner did not register with respondent and, in or around November 1993, Respondent notified Petitioner of its (Petitioner's) obligation to register with Respondent. Around or on February 23, 1994, Petitioner, by and through Ms. Scola, made application for registration as a seller of travel and requested Respondent to waive the annual performance bond requirement. Petitioner included with the application, among other things, a registration fee and a 1993 unaudited financial statement. Around or on March 16, 1994, Respondent requested additional information: an audited financial statement or latest income tax return, and documentation showing five or more consecutive years of business ownership experience as a seller of travel in Florida (occupational license or tax returns). Around or on March 21, 1994, Petitioner provided Respondent a copy of its occupational licenses for the past seven years and a copy of its 1992 income tax return. Petitioner indicated that its 1993 tax return was not, as yet, completed. Petitioner's occupational licenses dated back to 1986. For a brief period from September 30, 1988, to March 29, 1989, Petitioner did not have an occupational license. Around or on April 7, 1994, Respondent denied Petitioner's request for a waiver of the bond requirement, contending that Petitioner had failed to satisfy the waiver requirements of Section 559.925(10)(b), Florida Statutes, on two grounds. One was that Petitioner had failed to submit an audited financial statement. The second was that Petitioner had failed to show that it had "five or more consecutive years of experience as a seller of travel in Florida, while in compliance with the law." The second reason presented by Respondent is based upon its interpretation of Section 559.927(10)(b)5, Florida Statutes, to require that the "five or more consecutive years of experience as a seller of travel" must have been lawful, i.e. that it have occurred while the person was duly registered with Respondent, with appropriate security. By waiving the requirement for an annual performance bond, Respondent contends the statute was designed to reward sellers of travel who have complied with the registration and bond requirements. Respondent has not promulgated any rule evidencing its interpretation. However, it has begun the rulemaking process. Prior to Petitioner making application for registration as a seller of travel, it had never registered with Respondent as a seller of travel or posted a performance bond.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order DENYING Cruises Unlimited Travel/Tours, Inc.'s, request for a performance bond waiver. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of October 1994. ERROL H. POWELL 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 31st day of October 1994.

Florida Laws (3) 120.57501.201559.927
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DEPARTMENT OF FINANCIAL SERVICES vs MICHAEL CARROLL GAINER, 05-004158PL (2005)
Division of Administrative Hearings, Florida Filed:Jacksonville, Florida Nov. 14, 2005 Number: 05-004158PL Latest Update: Sep. 01, 2006

The Issue Should Petitioner impose discipline on Respondent's health agent (2-40), life agent (2-16), life and health agent (2-18), life including variable annuity and health agent (2-15), and life including variable annuity agent (2-14), licenses issued by Petitioner ?

Findings Of Fact Stipulated Facts Respondent is licensed by Petitioner as a health agent (2-40), a life agent (2-16), life and health agent (2-18), life including variable annuity and health agent (2-15), and life including variable annuity agent (2-14). Additional Facts Respondent has been licensed as a Florida insurance agent since 1979 and has worked in the insurance industry in Florida on a full-time basis beginning in 1988. At present, Respondent does business under his life and health license (2-18). While in business, Respondent formed a corporation with Steven Brown sometime in either 1989 or 1990. Mr. Brown was president of the corporation, and Respondent was the vice- president. It was a closely held corporation, an S corporation. Neither individual served as the supervisor for the other person. At times, they split sales and clients in conducting the business. In the past, Respondent was also licensed under Chapter 517, Florida Statutes, the "Florida Securities and Investor Protection Act" as an "associated person." While acting as an associated person, Respondent was affiliated with Tower Square Securities Inc. (Tower Square) between August 26, 1998, and June 22, 2000. Beyond that affiliation, Respondent was an associated person with Horner, Townsend & Kent (HTK) between June 23, 2000, and July 5, 2001. This license in relation to securities had been issued by the State of Florida, Department of Banking and Finance. The regulatory function for securities has since become the province of the State of Florida, Department of Financial Services, Office of Financial Regulation. Upon the entry of the final order in the case State of Florida, Department of Banking and Finance, Petitioner, vs. Michael Carroll Gainer, Respondent, DBF No. 0655-I-2/02, accepting a stipulation and consent agreement, Respondent's application for registration by the Department of Banking and Finance to become an associated person of High Mark Securities, Inc.(High Mark) was withdrawn by High Mark. As of February 25, 2002, through the stipulation and consent agreement, Respondent agreed that he would not apply for licensure or registration in any capacity pertaining to the Florida Securities and Investor Protection Act for a period of ten years from the date of the entry of the final order in that cause. The matters contemplated by the case before the Department of Banking and Finance were in relation to 21st Century, the company implicated in the present case, found to be involved with unregistered securities. To resolve the disciplinary action before the Department of Banking and Finance, Respondent, through the stipulation and consent agreement, neither admitted nor denied the allegations concerning the nature of the transactions involved with that prosecution; however, Respondent agreed to cease and desist all present and future violations of Chapter 517, Florida Statutes, and the administrative rules promulgated under that chapter. At the time Respondent worked with Tower Square as an associated person, the broker-dealer supervising Respondent and the company itself through other personnel made no mention of industry problems related to promissory notes. While employed at HTK in November 2000, Respondent attended a compliance meeting. This activity included the completion of a questionnaire. Among the questions was one concerning "notes." Respondent indicated that he had experience with "notes." This reference to "notes" made by Respondent was also reported to Tower Square. This episode in November 2000 came at a time outside the period contemplated by the present Amended Administrative Complaint involving "notes" related to 21st Century. Respondent first became aware of 21st Century when he received a telephone call sometime in 1997. A couple of people that Respondent knew told Respondent about the 21st Century business. In the beginning, Respondent was not interested in pursuing opportunities with 21st Century. About a year later, he changed his mind. He made an appointment to visit 21st Century offices sometime in 1998. Through his involvement, Respondent learned that the 21st Century program dealt with a note, a collateralized note. When Respondent went to Tampa, Florida, to check out 21st Century, he met with the company vice-president, Spencer Tyrrell. Respondent toured 21st Century facility, looked at equipment, and had an on-site engineer explain the nature of the 21st Century program. Mr. Tyrrell took Respondent and others to installation sites that 21st Century had completed. In his tour of the 21st Century facilities, Respondent also visited the billing department for the company. They appeared busy. During the trip, Respondent found out that 21st Century was engaged in the business of the sale, installation, maintenance, and servicing of what it referred to as Satellite Master Antenna Television (SMATV) systems to private property owners. To conduct this business, financing was needed for the necessary equipment and installations. As 21st Century put it, the funds loaned for the financing of equipment and installations would be derived from investors, whose investment would be secured by a collateral mortgage on the equipment and the income derived from its installation, as confirmed by a UCC-1 filing and corporate promissory note. It was anticipated that Respondent and others like him would be involved in the promotion and obtaining of funding for 21st Century to pursue its business through the investment vehicle that has been described. In addition to visiting the company and sites where the SMATV systems had been installed, Respondent spoke to an attorney associated with 21st Century. He also spoke with someone whom was responsible for holding investment money, qualified money, in an escrow account. Respondent spoke with someone whom he understood was performing an audit on the business as a member of an accounting firm. Respondent spoke to several other 21st Century company officers, not to include Mr. Tyrrell. The attorney that Respondent spoke to was Byron Nenos, who acted as a disbursement agent for 21st Century. Respondent discussed with Mr. Nenos any difficulties that the attorney was aware of that had been experienced in the provision of quarterly interest payments to the investors in the SMATV systems. At that time, no problems were revealed by Mr. Nenos on this topic. The escrow company responsible for maintaining the qualified money was Retirement Accounts, Incorporated, who acted as trustee of the investment funds. The trustee would release money to 21st Century to further its purposes. The investor would receive a quarterly statement concerning the investment and would be billed an administrative charge by the escrow firm. Respondent was familiar with Retirement Accounts, Incorporated by reputation, in that he understood that this was a nationwide firm. Respondent also checked with the Better Business Bureau to ascertain any complaints that had been made against 21st Century with that organization. He was told that complaints had not been received. Respondent invested $16,000.00 in the 21st Century SMATV systems for his own purposes under the terms that have been described. Respondent received subsequent memos from the company concerning the subscriber base for the 21st Century product. Respondent was introduced to S.R. around 1998. Respondent sold S.R. mutual funds and a tax sheltered annuity. The application for the tax sheltered annuity was made in May 1998 with the funds distribution to begin in August 1998. The investment in the mutual funds took place around September 1998. The subject of 21st Century as an investment for S.R. was brought up in the fall of 1998. S.R. told Respondent that she had a lot of money in CDs and would like to do something different with that money and wanted to know if Respondent had anything to offer other than mutual funds. Respondent suggested a government securities fund. S.R. remained interested in some other possible alternative investment opportunity. Respondent brought up the 21st Century investment. He provided material to S.R. for her review concerning 21st Century. S.R. made no decision concerning 21st Century until December 1998. In this connection, Respondent arranged for S.R. to visit the 21st Century headquarters and/or talk with persons at 21st Century by telephone. S.R. did not avail herself of those opportunities. To this point, Respondent was unaware of any problems with the 21st Century investment. Ultimately, S.R. decided to invest $50,000.00 in 21st Century and that was arranged by Respondent in December 1998. When S.R. invested her money in 21st Century, Respondent understood that this was extra money coming due from a CD or similar investment. In deciding upon an investment in 21st Century, Respondent and S.R. went through details concerning her financial position. S.R. was the first person that Respondent sold the 21st Century product. In his dealings with S.R., Respondent explained that the 21st Century investment was not secured. The risk would be that if S.R. needed the money she would invest within the five year period contemplated by the terms of her agreement with 21st Century, she would not be able to get the money. The inability to reacquire the principal within the period of the investment was not a concern to S.R., as she remarked to Respondent. The investment by S.R. was, as Respondent describes it, "collateralized." By this he meant that the investment was in association with one facility or community, in which there were sufficient numbers of investors within a subscriber base for the equipment to make the site profitable. The UCC-1 reference meant that the state-maintained website would allow confirmation that the client's name was listed in relation to the property that was being invested in. S.R.'s name was on the property she invested in, according to the Secretary of State's records under the UCC-1. In connection with the UCC-1 filing, Respondent had financed another business on his own and filed the UCC-1 for equipment. With the experience in mind, Respondent perceived the UCC-1 filing as being associated with collateral related to the equipment involved with 21st Century. Respondent eventually found out that there was a limit on the value of equipment as collateral, in that it was over-collateralized limiting the return on investment. Respondent understood that he was selling a promissory note to S.R. for 60 months. Respondent proceeded with the assumption that it was exempt from the requirement to be registered as a security based upon conversations with attorney Nenos, the disbursement agent for 21st Century. This was not the true status of the promissory note. Respondent told S.R. that her investment with 21st Century was a relatively low risk. S.R. considered that her investment was a capital investment. As Respondent recalls, problems began with 21st Century when it was late on its interest payment for the third quarter 2000. This was in relation to the five-year loan agreement program that S.R. participated in, calling for a monthly fixed and guaranteed interest payment of 13 percent, plus an additional 25 percent of the annual profits generated by installation of the SMATV systems, both disbursements paid in quarterly installments. When the problems commenced, Respondent told S.R. that he was available if she needed his assistance and committed himself to provide information to her that he received concerning the difficulties experienced by 21st Century. Later Respondent also offered to assist S.R. in relation to bankruptcy proceedings that had been commenced in relation to 21st Century and its creditors that are ongoing. In a deposition, S.R. explained her understanding of the transaction with 21st Century through Respondent. She understood it as an opportunity in which four times a year she would receive a check, which represented interest payments and at the end of five years the principal investment would be returned. S.R. expected to receive 13 percent annual return on the investment. Respondent told S.R. that he had also invested in 21st Century. S.R. recalls Respondent arranging for an on-site visit at the 21st Century business location which she was unable to meet because of her schedule. Respondent told S.R. about his visit to the facility and that by its appearance it seemed very solid, a growing opportunity. S.R. never spoke directly with anyone in management or otherwise at 21st Century. As she explained, S.R.'s investment came from an inheritance left to her by her mother, who had died in 1998. The $50,000.00 investment by S.R. constituted about 25 percent of her available cash. Petitioner's Exhibit numbered 8 is a copy of the brochure Respondent provided to S.R. explaining 21st Century and the investment opportunity. The brochure describes the nature of the sale, installation, maintenance and servicing of SMATV systems to private owners and the need for financing of the equipment and installations. The brochure highlights the investment opportunity where it states: Real Opportunities in Communications 21st Century Satellite Communications, Inc. is offering on a limited and selected basis, the following opportunity to participate in its SMATV installation programs. For both qualified and non-qualified funds, the Company is offering a 5 year Loan Agreement program, whereby individuals can receive an attractive income on funds loaned to the Company. Loan repayments consist of a monthly fixed and guaranteed interest payment of 13 percent, plus an additional 25 percent of the annual profits generated by a spread of installations, all payable in quarterly installments. (Important Note: Profits are a direct result of the number of subscribers per installation, hence profits are calculated over a series of installations, rather than any one location). For qualified monies, accumulations would grow on a tax deferred basis, providing interest on the principal, together with interest on the accumulating interest! Each Loan Agreement is backed up by the Uniform Commercial Code, which provides a lien on both the equipment and income derived therefrom. . All Lenders receive a Promissory Note backed by the assets of 21st Century Satellite Communications, Inc. . Each installation will be subject to an annual accounting.. The average installation is between 500 to 600. Companies are currently offering $1,000 to $1,500 to purchase a subscriber. Even a small installation of 400 subscribers could be sold for $400,000 (twice the original investment). It is anticipated that installations will average between 400 to 1,000 subscribers. Consistent with its obligation 21st Century paid S.R. four checks for interest due and then it ceased making payments. On October 12, 2000, through its vice-president and CFO, Gabe Panepinto, 21st Century wrote to S.R. restating the status of the account pertaining to the note and the interest rate. S.R. confirmed by her signature the status of the account on the form at the bottom of the letter for return to the company. On October 12, 2000, a letter was generally written to the men and women who invested with 21st Century by its chairman Robert S. Byrch, explaining the financial problems experienced by that company. It described several options to the investors, to include S.R., where it said: As a noteholder, your choices are simple. You may either do nothing and retain your promissory note, or you may tender your note to the Company and request that your note be converted into equity in accordance with the instructions and subject to the conditions set forth in the Exchange Offer Memorandum. The terms of the preferred stock are not yet finalized but will be specified in the Exchange Offer Memorandum. On November 13, 2000, in correspondence from Mr. Byrch as chairman of the board for 21st Satellite, directed to the investors, S.R. among them, the investors were told that the company was in default on its obligation under its note program to make quarterly interest payments. The letter referred to the intent to change the nature of the investment opportunity from one of a noteholder to a stockholder in the company. On November 14, 2000, S.R., among other investors, received a letter from Mr. Nenos pertaining to 21st Century. The correspondence referred to an October 27, 2000, letter sent to 21st Century notifying the company of the default status of the promissory notes held by S.R. and other investors and a demand for payment made by Mr. Nenos. The correspondence from Mr. Nenos told the investors that 21st Century had not paid its obligation and advised the investors that they should seek legal counsel to enforce the terms of the promissory notes and to protect their interest in the collateral. On December 7, 2000, in a letter by Spencer G. Tyrrell, Director, and Robert S. Byrch, Chairman for 21st Century, they asked the investors to communicate: Whether you would be willing to convert your note, or a portion of your note, to preferred stock; or Whether you would be willing to modify the terms of the original note; or Whether you are unwilling to convert your note or modify the terms of the existing note. On September 20, 2001, Respondent wrote S.R. with an enclosure from a Glenn Liberatore that was being submitted to the creditors committee, taken to be in relation to 21st Century. It gave a telephone number for S.R. to call and comment to Mr. Liberatore on this topic. A personal handwritten note was attached to this correspondence which said, "S. please call me or write to let me know you are o.k. - I haven't heard from you in a while." In what appears to be correspondence dated November 30, 2001, Respondent again wrote S.R. on the subject of having received official notice regarding 21st Century's reorganization through Chapter 11, offering to assist S.R. in processing her claim in that proceeding. Respondent indicated that he was filing a claim and encouraged S.R. to do the same. To that end, S.R. has retained counsel to protect her interest in the bankruptcy proceedings.

Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding violations of Section 621.611 (7) and (13), Florida Statutes (1997), dismissing the other alleged violations and suspending Respondent's insurance licenses for six months. DONE AND ENTERED this 2nd day of June, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2006.

Florida Laws (9) 120.569120.57517.021517.051517.061517.07626.611626.62190.203
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