Findings Of Fact On April 23, 2013, the undersigned entered an Order on Remand requiring Petitioner to submit any documentation, including supporting affidavits, within 20 days of said Order setting forth the amount of attorney’s fees Petitioner seeks in DCA Case No. 1D12-3557. Petitioner filed two Motions for Extension of Time in which to comply with the Order on Remand. The Motions were granted and on June 12, 2013, Petitioner filed Petitioner’s Request for Appellate Attorney’s Fees and Costs with the Division. The Order on Remand required Respondent to file its response to Petitioner’s Request for Attorney’s Fees and Costs within 20 days of Petitioner’s filing. To date, Respondent has not filed any response and has not requested an extension of time in which to file a response. The parties were further ordered to state whether or not either party believed that an evidentiary hearing was necessary. Petitioner requested an evidentiary hearing only in the event that the undersigned was inclined to reduce or deny Petitioner’s request for attorney’s fees or costs. Accordingly, no evidentiary hearing is necessary. Attorney's Fees and Costs Petitioner/Appellee requests attorney’s fees in the total amount of $47,170. This total includes attorney’s fees in the amount of $42,760 attributable to Proctor Appellate Law, PA, and attorney’s fees in the amount of $4,410 attributable to Avera & Smith, LLP. The hourly rate for Sharon H. Proctor of Proctor Appellate Law, PA, is $400 per hour; the hourly rate for Jennifer C. Biewend of Avera & Smith, LLP, is $350 per hour. Detailed billing records are attached to the attorneys’ affidavits as exhibits to the Motion for Attorney’s Fees and Costs. Ms. Proctor, who was retained to represent Petitioner/Appellee in the appeal of this case, served as primary counsel in all matters pertaining to the appeal and incurred 106.9 attorney hours. Ms. Biewend served as counsel of record in the underlying merits case and as co-counsel of record before the First District Court of Appeal and incurred 12.6 attorney hours on the appeal. Petitioner submitted the affidavit of attorney Paul Donnelly, Esquire, as an expert in support of Petitioner’s request for attorney’s fees and costs. The undersigned has read Mr. Donnelly’s affidavit and finds that it supports the number of hours expended and hourly rates charged. The undersigned reviewed the affidavits of the attorneys of record and the billing records, and finds Petitioner/Appellee's requests for attorney's fees to be reasonable. Petitioner requests appellate costs in the amount of $764.36. The undersigned reviewed the cost ledger submitted by Petitioner’s counsel. The appellate costs reflect travel expenses of counsel to attend the oral argument. The amount of costs is reasonable.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact Donald B. Parker was elected to the Gulf County Board of County Commission in November 1988, and served until April 1991. In 1990, Gulf County undertook improvements to county road C-30. It advertised for bids and awarded the contract to C.W. Roberts Contracting, Inc., the lowest bidder. The contract was entered in October 1990, and included resurfacing the road, replacement of culverts, installation of some guardrails and reworking the shoulders on the highway. Respondent Parker and the other commissioners reviewed the contract. C.W. Roberts Contracting, Inc., subcontracted with Capital Asphalt, Inc., to produce the asphalt and place it on the roadway. The subcontract is dated October 1990. On February 22, 1991, Respondent, Donald Parker, was hired by Capital Asphalt, Inc. to help get the company's operation set up in Gulf County. His tasks included answering the telephone, running errands, issuing chits for gas for the trucks, sending in company timesheets, and similar activities. He was a friend of Al Cross, the company owner's husband. Parker knew that the company was working on county road C-30 and was selling asphalt to C.W. Roberts. The company also had other customers for its asphalt. Payments to C.W. Roberts by Gulf County on the C-30 project and other projects were made after tasks were completed and draws were approved by the road inspector. The commissioners approved payments to the contractor after reviewing the invoices. Invoice or application for payment #8 for $14,158.88 was reviewed and approved by the Board of County Commissioners, upon motion of Respondent Parker, in the commission's regular session on March 12, 1991. This was one of several payments to C.W. Roberts approved on the county road and various other projects at the March 12th meeting. Attached to application for payment #8 is a detailed breakout of the items for payment, including a request for $2,180.88 for 83.88 tons of FDOT SAHM CSE. This was material provided by Capital Asphalt to C.W. Roberts for the resurfacing of C-30. This fact can only be determined, however, from a review of the invoice, the contract with C.W. Roberts, and the subcontract with Capital Asphalt. Those three documents reveal that all of the material, FDOT SAHM CSE, 13,475 tons, required for the C.W. Roberts job on C-30, came from Capital Asphalt. Respondent Parker testified credibly that he never saw the Capital Asphalt subcontract. He knew, of course, of the Gulf County contract with C.W. Roberts, and he knew that his temporary employer was providing material and work on that contract. He did not know that under the subcontract, payment by C.W. Roberts to Capital Asphalt was contingent upon C.W. Roberts being paid by the county. And, he did not know that the vote he took at the March 12th meeting was a vote for payment that would be passed on to Capital Asphalt. Although Donald Parker had experience in finance, having been a loan officer in a finance company for twenty-eight years, his duties for Capital Asphalt described in this proceeding did not necessarily expose him to the financial dealings between this subcontractor and the county's contractor, C.W. Roberts. He was employed by Capital Asphalt for only two or three months, just long enough to include his vote at the March 12 commission session, but not long enough to become involved in the affairs of the company.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics issue its final order and public report dismissing the complaint in this case. DONE AND RECOMMENDED this 25th day of August, 1993, in Tallahassee, Leon County, 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 25th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0314EC The following constitute specific rulings on the findings of fact proposed by the Advocate: 1. Adopted in paragraph 1. 2.-5. Adopted in paragraph 2. 6. Adopted in paragraph 3. 7. Adopted in paragraph 5. 8.-9. Adopted in substance in paragraph 8. 10.-13. Adopted in paragraph 4. 14. Adopted in paragraph 9. 15. Adopted in paragraph 6. 16.-20. Adopted in paragraph 7. 21. Rejected as based on an assumption unsupported by the weight of evidence. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Advocate for the Commission on Ethics The Capitol, Suite 1601 Tallahassee, Florida 32399-1050 Donald Parker HCO 1, Box 97 Port St. Joe, Florida 32456 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
The Issue The issue is whether Respondent should pay Petitioner's attorney's fees and costs, and, if so, the amount.
Findings Of Fact Mayor Osborne was the Mayor of Beverly Beach, Florida, during 1999 through 2001. Dr. Milanick was a dentist who owned property immediately north of Beverly Beach, Florida. Dr. Milanick desired that the property be annexed into the town and initiated annexation proceedings before the City of Beverly Beach. Mayor Osborne did not facilitate the requested annexation during the time he served as Mayor of Beverly Beach. Dr. Milanick alleged to the Commission that Mayor Osborne opposed the annexation for personal, financial gain. In order to defend himself against these false allegations, Mayor Osborne retained Robert J. Riggio, Esquire, of the Riggio and Mitchell firm of Daytona Beach. The Original Award of Attorney's Fees An award of attorney's fees and costs in favor of Mayor Osborne was recommended in Division of Administrative Hearings Case No. 04-4110E. The Recommended Order stated that the amount of attorney's fees and costs for Mayor Osborne to defend against Dr. Milanick's allegations was $4,976.00. The Commission did not address the amount of attorney's fees and costs in its Final Order, but instead held that Mayor Osborne was not entitled to any award. Subsequently, the Fifth District Court of Appeal found the Commission's Final Order to be erroneous and remanded the matter ". . . for entry of an order making the awards recommended by the ALJ." A Mandate with regard to the Fifth District Court of Appeal issued April 11, 2007. The award recommended by the ALJ was, as stated above, $4,976.00, and that amount should be awarded by the Commission in a Final Order. Appellate Attorney's Fees Mayor Osborne filed a Motion for Petitioner's Appellate Attorneys' Fees and Costs before the Commission on May 10, 2007, noting the Fifth District Court of Appeal, in its Order dated February 16, 2007, stated that, "Appellant's Motion For Attorney's Fees, filed May 16, 2006, is granted and the above- styled cause is hereby remanded to the Commission . . . to determine and assess reasonable attorney's fees for this appeal." The Fifth District Court of Appeal addressed only attorney's fees. However, because Mayor Osborne's Motion sought both attorney's fees and costs, and because the Commission sent that Motion without special directions to the Division of Administrative Hearings for resolution, it is found that the Administrative Law Judge has jurisdiction to recommend awards of both attorney's fees and costs expended in prosecuting the appeal. David C. Robinson, an attorney in Daytona Beach, Florida, testified as an expert on attorney's fees in Volusia County, Florida. He has practiced law in Daytona Beach for 26 years and has testified in other attorney's fees cases. He is familiar with the fees charged by attorneys in the Daytona Beach and Volusia County area. He knows Attorney Robert Riggio, of Daytona Beach, Volusia County, and Attorney Martin Pedata, of Deland, a town that is also located in Volusia County. Mr. Robinson is found to be an expert on the subject of reasonable attorney's fees and costs in Volusia County. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne as to the appellate filings made by Mr. Riggio. In doing so he considered the Lodestar approach as described in Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Mr. Robinson opined that the services performed by Mr. Riggio in the appellate proceeding were provided in a manner that an attorney would be reasonably expected to provide. He reviewed the hourly rate charged by Mr. Riggio and stated that the reasonable rate should be $250.00 per hour, but that Mr. Riggio only charged $150.00 per hour. Mr. Riggio's law firm, Riggio and Mitchell, billed Mayor Osborne for 95 hours. A small portion of the work was accomplished by his partner Jerome D. Mitchell. Other work in the amount of 9.4 hours was billed for paralegal work at $40.00 per hour. The 95 hours of attorney work was billed at $150.00 per hour for a total of $14,250.00, and the paralegal work totaled $376.00. Costs amounted to $859.70. This resulted in a total of $14,626.00 for fees and $859.70 in costs. Mayor Osborne paid these charges in full. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. As a result of Mr. Riggio's efforts, Mayor Osborne prevailed in the appeal. It is found that Dr. Milanick caused Mayor Osborne to pay attorney's fees and costs in the amount of $15,485.70. Proving Entitlement to Fees and Costs Subsequent to Dr. Milanick's allegations of misconduct before the Commission, and after an investigation, the Commission, in a Public Report dated September 8, 2004, dismissed the complaint on a finding of no probable cause in the case of Mayor Osborne. Pursuant to Subsection 112.317(8), Florida Statutes, Mayor Osborne was entitled to be reimbursed for the attorney's fees and costs associated with defending himself against Dr. Milanick's allegations. Because Dr. Milanick did not voluntarily remit the fees and costs expended, a hearing was required. A hearing was held in this matter in Daytona Beach, Florida, on May 11, 2005. The hearing in Division of Administrative Hearings Case No. 04-4110FE, lasted an entire day. Prior to the hearing, Mayor Osborne engaged the services of Attorney Martin Pedata in addition to those provided by Mr. Riggio. The agreement for representation by Mr. Pedata was reduced to writing on April 6, 2005. The agreement provided that Mayor Osborne would pay Mr. Pedata $250.00 per hour for his services and $75.00 per hour for paralegal services. Mr. Robinson reviewed the bills and records relating to the fees charged to Mayor Osborne for the preparation for and the conduct of the hearing of May 11, 2005. Mr. Robinson stated that the hourly rate of $250.00 was a reasonable one for the type of services provided by Mr. Pedata. He stated that the number of hours expended by Mr. Riggio and Mr. Pedata in connection with this hearing was reasonable. In analyzing this claim he used the Lodestar approach set forth in Rowe. Mr. Riggio and his partner Mr. Mitchell, expended 160.6 hours proving entitlement to fees and costs. Mr. Pedata, as lead attorney in the entitlement case, expended 107 hours. In addition, 54.2 paralegal hours were expended in proving the entitlement case. These hours include the time up to the filing of the appeal with the Fifth District Court of Appeal. These hours also include the time spent before the Commission. As a result of the efforts of Mr. Riggio and Mr. Pedata, Mayor Osborne prevailed in the entitlement hearing, which resulted in a Recommended Order in his favor. Mayor Osborne paid Mr. Riggio and Mr. Pedata a total of $50,840.00 for their services in proving entitlement to attorney's fees. He also paid $2,168.00 for paralegal services. Total costs amounted to $3,764.73, which Mayor Osborne paid. The total fees and costs to Mayor Osborne was $56,772.73. Mr. Robinson opined that the rate charged and hours expended by Mr. Riggio in the appellate proceeding were appropriate, as were the costs incurred. His testimony is found to be credible. It is found that Dr. Milanick was responsible for Mayor Osborne having to pay attorney's fees and costs in the amount of $56,772.73. Additional fees and costs Mr. Riggio presented Mayor Osborne with an invoice in the amount of $2,370.00 for the cost of the current proceeding. However, the Administrative Law Judge is without jurisdiction to address this claim in this proceeding.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics award attorney's fees and costs as follows: The original award of attorney's fees in the amount of $4,976.00. Attorney's fees and costs for appellate attorney's fees and costs in the amount of $15,485.70. Attorney's fees and costs for proving entitlement to fees and costs in the amount of $56,772.73. DONE AND ENTERED this 14th day of November, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 14th day of November, 2007. COPIES FURNISHED: Robert J. Riggio, Esquire Riggio & Mitchell, P.A. 400 South Palmetto Avenue Daytona Beach, Florida 32114 Kaye Starling Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Dr. Alexander J. Milanick 7250 A1A South St. Augustine Shores, Florida 32080 Phillip C. Claypool, Executive Director and General Counsel Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James Peterson, Esquire Linzie Bogan, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue The issue in this proceeding is whether Petitioner, Daniel James Bradley's, application for licensure as a resident life including variable annuity and health insurance agent should be denied for the reasons stated in Respondent, Department of Financial Services', Notice of Denial dated April 26, 2004.
Findings Of Fact Respondent is the state agency responsible for the licensure of insurance agents in the State of Florida pursuant to the authority granted in Chapter 626, Florida Statutes (2004). On January 3, 2004, Mr. Bradley filed an on-line application with the Department seeking licensure as a resident life including variable annuity and health insurance agent. The on-line application form included the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered?. Mr. Bradley answered "No," which was a false answer. The Department conducted an internal investigation during the application process, and the criminal history check obtained by the Department revealed that in 1995 Mr. Bradley was charged with two counts of Obtaining Property for Worthless Check(s) (one check in an amount over $150 and one check in an amount less than $150). On May 31, 1995, in State of Florida v. Daniel J. Bradley, Case No. 94-2473F, in the Circuit Court in and for Sarasota County, Florida, Mr. Bradley appeared before Judge Robert B. Bennett and entered a plea of nolo contendere to the charge of Obtaining Property For a Worthless Check (over $150), which is a third degree felony in violation of Subsection 832.05(4)(a), Florida Statutes (1995). Judge Bennett withheld adjudication of guilt and imposed a fine and court cost in the amount of $250 that was paid by Mr. Bradley. Mr. Bradley testified that during the 1995 period, he was in the midst of a domestic dispute that was finalized in a dissolution of marriage, when he wrote two checks to Sears. He explained further that at the time the checks were written, sufficient funds were in the joint checking account at the bank, but his then-estranged wife withdrew all bank funds without his knowledge or consent resulting in the overdrafts. Explaining his "no" response to the criminal history question on his on-line licensure application form, Mr. Bradley asserted a lack of fully understanding the (intended) meaning of the term "punishable by imprisonment of one (1) year or more." Mr. Bradley testified that he "did not know, and had no reason to know, [or be concerned] that the worthless check charge to which he pled nolo contendere was punishable by imprisonment of one year or more," even though he knew the crime was a third- degree felony. Continuing, Mr. Bradley explained in detail his ongoing domestic entanglement then, as well as his financial obligations now. Mr. Bradley explained that he has undertaken the obligation to care for his parent(s) and his need for income to pay for his children's education. In effect, Mr. Bradley offered an "excusable neglect and a lack of knowledge" explanation for the "no" answer on his on-line licensure application form. Mr. Bradley earnestly insisted that it was not his "intent" to mislead, conceal, or lie about the criminal background question. He explained in detail that he "did not understand nor was he advised by his attorney, Susan Maulucci, or the Sarasota County Circuit Court that any offense that he had been accused or pled guilty to was punishable by a term of incarceration of one or more years." In conclusion, Mr. Bradley stated, "[I]f I had previous knowledge of such information I would never have answered incorrectly. If the question had addressed a felony charge punishable by one or more years, I would have certainly answered yes based on the assumption of a felony being the subject of the question not the period of punishment." It appears from his post-hearing submittal that he was under the impression that the term "felony" is missing from the question and that by the omission, he was somehow misled. The blame-shifting inference Mr. Bradley sought is that it was the omission by the Department to include the word "felony" in its application form that misled him. This suggestion is rejected. Mr. Bradley's explanation becomes even more suspect when one considers: his knowledge and experience as a military police officer; at the time he signed the plea document, it was clear that he was facing up to five years in prison for the crime(s) with which he was charged; when arrested on both misdemeanor and felony check charges, he spent the night in jail; and finally, he signed two bonds, one for the misdemeanor charge and a separate bond for the felony charge before he was released from jail. Mr. Bradley was individually and personally responsible for the accuracy of his answer. His misrepresentation of the truth by answering "no," if not intentional, supports the inference of a reckless or careless disregard as to the truth of the matter asserted. At the time he answered "no" on his application form, Mr. Bradley knew, without a doubt, that he had pled "no contest" to a felony worthless check charge in the Sarasota County Circuit Court in Florida. During his court appearance, he was identified and was personally informed by the presiding judge that he faced a felony charge, and he agreed to enter his plea of nolo contendere to that felony charge. On May 31, 1995, in open court, Mr. Bradley signed an "Acknowledgement and Waiver of Rights" form that contained in paragraph 1, the following statement: "I am pleading to the charge of worthless check (2 counts), and I understand the maximum penalty provided by law is five (5) years prison." (Emphasis added.) After the court accepted his plea, sentenced him, and imposed court costs, Mr. Bradley signed the court's acknowledgement reflecting the disposition of the proceeding. Only after completion of the foregone process was Mr. Bradley free to leave the courtroom.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order dismissing the Petition herein filed by Petitioner, without prejudice, for Petitioner to reapply as provided in the Florida Administrative Code Rule 69B-211.042(4). DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2004.
The Issue Whether the Department of Financial Services should issue Petitioner, Alejandro Javier Friguls (“Petitioner”), a license as a resident personal lines insurance agent.
Findings Of Fact On September 11, 2015, the Department received an application from Petitioner seeking a license as a resident personal lines insurance agent. A personal lines insurance agent is an insurance agent who transacts business related to property insurance and casualty insurance sold to individuals and families for noncommercial purposes. See § 626.015(5) and (15), Fla. Stat. The Department has jurisdiction over licensing procedures for personal lines agents in the State of Florida. See § 626.016(1), Fla. Stat. On November 23, 2015, pursuant to its statutory responsibility, the Department issued a Notice of Denial notifying Petitioner of its intent to deny his application.2/ The Department denied Petitioner’s application based on his criminal history record. On January 19, 2012, in Seminole County Circuit Court, Petitioner pled nolo contendere to one charge of possession of Oxycodone, a third-degree felony under section 893.13(6)(a), Florida Statutes. The court accepted Petitioner’s plea but withheld adjudication of guilt for the crime. (The Notice of Denial states that Petitioner was “adjudicated guilty” of the felony. The Department conceded at the final hearing that this allegation in the Notice of Denial was incorrect and that Petitioner’s adjudication of guilt was withheld.) The court placed Petitioner on probation for one year. The court notified Petitioner that if he violated the terms of his probation, the court could revoke his probation and adjudicate him guilty. Petitioner served his probation without incident. He completed his probation on January 18, 2013. After receiving Petitioner’s application on November 12, 2015, the Department completed a form entitled Effect of Criminal History Record Worksheet (“Worksheet”). On this Worksheet, the Department classified Petitioner’s crime as a third-degree felony. Thereafter, citing to section 626.207, Florida Statutes, the Department determined that Petitioner’s felony subjected him to a 7-year disqualifying period from applying for a license. The Worksheet also recorded that the Department calculated that Petitioner would not become eligible to apply for an insurance license until January 18, 2021.3/ Based on the competent substantial evidence received in the record, Petitioner proved, by a preponderance of the evidence, that the Department should not have denied his application as a personal lines insurance agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order rescinding the Notice of Denial issued to Petitioner on November 23, 2015, and grant Petitioner’s application for licensure as a resident personal lines insurance agent. DONE AND ENTERED this 1st day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 1st day of June, 2016.
Findings Of Fact Each Respondent holds a Class "B" Watchman, Guard, or patrol Agency License number BOO-00847 and has held such licensure at all relevant times. All references to Respondent are to Murrell security Patrol, Incorporated. All references to Respondent Murrell are to Alfred L. Murrell. Respondent's main office was at all relevant times in Melbourne, Florida. In August, 1986, Respondent leased office space for a branch office in Orlando, Florida. Respondent hired Lee Hayes as branch manager for the Orlando office. Mr. Hayes worked for Respondent from early September, 1986, until mid-January, 1987. Shortly after beginning to work for Respondent, Mr. Hayes and Respondent applied to Petitioner for, respectively, a Class "MB" branch manager's license and a Class "BB" branch office license, which were subsequently issued. Following Mr. Hayes' departure, the managerial duties of the Orlando branch office were in large part performed by Gerald Bellizzi, who supervised guards on patrol, solicited guard business, billed accounts, and collected receivables. Mr. Bellizzi had no Class "MB" license, nor any other license under Chapter 493 until he obtained, in late December, 1986, a Class "D" license, which allowed him to perform watchman, guard, or patrol duties. Respondent provided Mr. Hayes, while he served as manager of the Orlando branch office, business cards to be used in soliciting business. These cards stated that Respondent's business included investigations, in addition to guard and patrol duty. At the same time, Respondent placed an advertisement in the Southern Bell Yellow Pages in the Orlando area. The ad stated that Respondent's services included investigations. Although the Orlando branch office never performed any investigations, Mr. Hayes received two inquiries concerning the possibility of Respondent performing investigative services. In responding to the first inquiry, Mr. Hayes contacted Respondent Murrell and, with his permission, quoted an hourly rate for investigative work. In both cases, the prospective customers never asked Respondent to do any work. At all times since the incorporation of Respondent in 1976, Respondent Murrell has been its president and his son, Mike Murrell, has been Respondent's vice president.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondents Alfred L. Murrell and Murrell Security Patrol, Incorporated, not guilty of the charges contained in Count III of the Administrative Complaint, but guilty of the charges contained in Counts I and II. It is further recommended that the Final Order impose an administrative fine upon respondents, jointly and severally, in the amount of $500. DONE and RECOMMENDED this 15th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 15th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1760 Treatment Accorded Petitioner's Proposed Findings 1-3. Rejected as not finding of fact. 4a. Adopted. 4b,c. Rejected as irrelevant. First sentence adopted. Remainder rejected as recitation of testimony. Rejected as recitation of testimony and subordinate. Rejected as recitation of testimony and, in view of the nonspecificity of allegations in Count III, irrelevant. 8. Rejected as recitation of testimony and subordinate. COPIES FURNISHED: R. Timothy Jansen, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol Tallahassee, Florida 32399-0250 John C. Murphy, Esquire 1901 South Harbor City Boulevard Suite 805 Melbourne, Florida 32901 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State 181 The Capitol Tallahassee, Florida 32399-0250
The Issue Whether Petitioner is entitled to a legal expense insurance agent's license.
Findings Of Fact On October 17, 2001, Petitioner applied for licensure as a legal expense insurance agent. On December 20, 2001, the Department denied Petitioner's application for licensure based upon his unfitness and untrustworthiness due to Petitioner's guilty plea to conspiracy to engage in racketeering, for conduct which occurred while he was a sitting circuit court judge and which was related to his judicial duties. Petitioner had fully disclosed the plea and the details of the crime in his application to the Department. Petitioner received a juris doctorate degree in 1975 and a master's in criminal law in 1977. After being admitted to the Florida Bar, Petitioner worked as an assistant state attorney, as an associate with a private firm, as a practitioner in his own law firm, and finally was elected to a judgeship at the county court level. Petitioner served two years as a county court judge. In 1988, Petitioner was elected to the circuit court. As such, Petitioner was required to read, know, and abide by the Code of Judicial Conduct. He swore to uphold the Code of Judicial Conduct and voluntarily assumed an office that encompassed the highest level of responsibility and fiduciary duty to the public found in any public office in the United States of America. Petitioner was assigned to the criminal law division of the circuit court. Petitioner knowingly took bribes while he was a sitting circuit court judge. Because Petitioner was in debt, he approached an attorney named Raymond Takiff for a loan. Petitioner admitted that Mr. Takiff agreed to give him money in exchange for Petitioner's helping him out some time in the future. At that time, Mr. Takiff was being used by the Federal Bureau of Investigations (FBI) to set up an undercover bribery investigation. In return for Mr. Takiff's financial help, Petitioner ruled in favor of Mr. Takiff and ordered the return of some property that was the subject matter of one of the false criminal/forfeiture cases used by the FBI in their investigation. Petitioner knowingly helped Mr. Takiff establish a group of judges who would also take bribes. Petitioner stated that he introduced Mr. Takiff to ten other judges and that these instructions included Petitioner's saying that Mr. Takiff was trustworthy, that he could make it worth their while, and convincing the judges that Mr. Takiff was not working for the government. Petitioner continued to be involved in the on-going scheme to bribe multiple judges. One of the judges who received money from Mr. Takiff proceeded to send a portion of this bribe back to Respondent. Petitioner ultimately received $88,000.00 from Mr. Takiff in exchange for actions such as ruling for Mr. Takiff in one case and for knowingly establishing Mr. Takiff with other judges in an attempt to perpetuate the bribery scheme. Petitioner also accepted money from friends in exchange for setting them up with some appointments. Eventually, Petitioner was caught and arrested by the FBI. Petitioner agreed to help the FBI in the on-going investigation and multiple trials stemming from the FBI sting operation. As a result of the aforementioned acts on April 9, 1992, Petitioner pled guilty to conspiracy to engage in racketeering in Federal District Court in the Southern District of Florida and was sentenced to 12 years and seven months in federal prison. Petitioner's actions violated the fiduciary duty he had voluntarily assumed upon becoming a circuit court judge, and by introducing other judges to Mr. Takiff, he was promoting and causing a continuous and increasing breach of the judiciary's fiduciary duty to the public. The offense for which Petitioner was convicted did not have any relation either directly or indirectly upon the insurance business. Petitioner was disbarred on September 26, 1991. While in prison, Petitioner continued to live up to his agreement to help the FBI in the prosecution of criminal cases stemming from the sting operation, even though he did not have to, and was in grave danger because of his continued help. Petitioner had numerous threats made on his life, including contracts to kill him. Petitioner was nearly beaten to death in the attempted execution of one of the contracts on his life. He continued to help the FBI and felt it was one way to make up for his absolute breach of conscience and faith in committing the crime for which he was imprisoned. Subsequent to an unusual Rule 35 hearing held on June 9, 1995, Petitioner's sentence was shortened to five years' incarceration followed by three years' supervised release. The Rule 35 hearing was unusual in that the FBI agents and prosecutors were strongly in favor of Petitioner's release from prison and testified in his favor. Petitioner has completed his supervision and has since tried to pick up the pieces of his life. As a result of his conduct, Petitioner lost everything--family, friends, reputation and property. He clearly has learned the value of integrity and trustworthiness. He helps in various community organizations and serves as a mentor to others who might follow a less than trustworthy life. Petitioner had his civil rights, except the specific authority to possess or own a firearm, restored by the Office of Executive Clemency on August 31, 2002. Petitioner did not lie, mislead, or attempt to conceal in any way his past felony conviction. Petitioner has shown remarkable achievements in rehabilitating himself. Multiple witnesses testified as to his many deeds and rehabilitative achievements in ameliorating his admitted misdeeds in the face of actual death threats and brutal physical attacks resulting in severe and permanent bodily injury. Given this rehabilitation, Petitioner is entitled to be licensed as a legal expense insurance agent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That a final order be entered granting Petitioner's application for licensure as a legal expense agent in the State of Florida. DONE AND ENTERED this 2nd day of December, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2002. COPIES FURNISHED: John R. Forbes, Esquire 8825 Perimeter Park Boulevard Suite 102 Jacksonville, Florida 32216 Matthew A. Nowels, Esquire Department of Insurance 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The Issue for consideration is this matter is whether the Respondent, Kinnett Dairies, Inc., should be placed on the State of Florida's convicted vendors list because of its conviction on January 9, 1990 for "making false statements to a federal agency."
Findings Of Fact The Department of General Services is the state agency required, pursuant to Section 287.133(3)(d), Florida Statutes, to maintain a list of the names and addresses of those persons who have been disqualified from the public contracting and purchasing process under that section. On May 16, 1991, Kinnett, pursuant to a plea agreement with the State of Georgia, entered a plea of nolo contendere to a one count felony charge brought under Section 16-10-22, Official Code of Georgia for conspiracy in restraint of trade. On July 31, 1991, Kinnett was convicted in federal court of a one count felony charge brought under Section 1 of the Sherman Antitrust Act, for a combination and conspiracy to suppress and eliminate competition by rigging bids. Pursuant to the requirements of the Florida statute in issue here, Kinnett made timely notification of those convictions to the Florida Department of General Services. Thereafter, based on those convictions, the Department concluded it was in the public interest to place Kinnett on the convicted vendors list. The parties have stipulated that concurrently with and as a part of the agreement for the entry of the plea of nolo contendere to the state charge, Kinnett entered into an agreement with the State of Georgia whereby it paid a fine of $10,000.00 and costs of an additional $10,000.00. It also cooperated fully with the investigation of the Attorney General of the State of Georgia which led up to the charge. On the same date, May 16, 1991, Kinnett also entered into an agreement with the United States Department of Justice whereby it plead guilt to one felony count, as alleged in the information, and agreed to pay criminal penalties of $300,000.00 over a four year period and $25,000.00 in civil damages to the United States. On July 19, 1989, Kinnett entered into a settlement agreement with the State of Florida regarding possible bid rigging of school requirements contracts in Florida by various dairies and paid settlement sums of $150,000.00. All penalties and civil liabilities due to the federal and state governments have been paid. Kinnett fully cooperated with both Florida and Georgia in connection with their investigations into its activities. It also cooperated with the federal Grand Jury investigating its activities, a matter which was confirmed in an October 8, 1991 letter from the federal prosecutor to the Department. No Kinnett employees were indicted as a result of the investigations by the federal and state governments as noted. No member of Kinnett's top management had knowledge of the alleged conduct of the four employees who were implicated in the misconduct involved herein. None of those four employees are still associated with Kinnett. Kinnett has implemented an active antitrust and ethics compliance program developed with the advice and assistance of experienced antitrust counsel. Inherent in this program is the adoption of a Code of Ethics and Standards of Conduct regarding antitrust matters; establishment of an ethics committee to monitor compliance; establishment of a reporting "hotline"; adoption of new bidding procedures bringing upper management into the pricing process; implementation of a training program for all personnel; and adoption of a policy and procedure review program to oversee both internal and external review of company ethics, policies and procedures. Going beyond the minimal requirements, Kinnett has arranged for outside accountants to perform a yearly, in-depth audit of all company books and accounting and pricing practices and has retained an expert in ethics to review existing policies and procedures and make recommendations for improvement. Kinnett has maintained its long-standing involvement in both civic and charitable activities in and around the Columbus, Georgia area and employs disabled veterans and military retirees, who currently make up 38% of its workers, when possible. It was recognized by the Georgia Department of Labor for its efforts in this area. Kinnett was one of the first companies in the Columbus, Georgia area to test both employees and job applicants for drug use, and has endorsed the Mayor's Task Force for Drug Free Columbus and consistent therewith has been instrumental in assisting other companies to establish programs to address substance abuse. Its officers are active as leaders in various civic organizations and it has given generously to numerous public, civic and charitable organizations. No matters in aggravation, other than the existence of the pleas, the convictions, and the penalties involved herein was presented by the Department. No evidence was presented relating to a conviction in January, 1990.
The Issue The issue is whether Jonathan A. Mantay, violated the Florida Code of Ethics for Public Officers and Employees.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Respondent Mantay is subject to the Code of Ethics. Mr. Mantay, during times pertinent, was County Manager of Bay County, Florida, and is a reporting individual, as that term is used in the Code of Ethics, and is required to file annual financial disclosures with the Bay County Supervisor of Elections, as provided by Section 112.3145(2)(c). In 2001, Mr. Mantay left his position and moved to metropolitan Portland, Oregon. On or about August 31, 1999, the Bay County Commission was addressing the problem of inmate overcrowding in its county correctional facilities, which were operated by CCA. On or about that time, the county correctional facility exceeded capacity by about 352 inmates. The Bay County Commissioners decided to address the issue. The Bay County Commission directed Mr. Mantay and his staff to study the problem and to recommend courses of action. As a result of the study, two possible courses of action were recommended. One possible course of action was the adoption of the "Lifeline" program operated by CCA in Nashville, Tennessee, which CCA claimed would reduce recidivism by teaching inmates life skills and addressing drug abuse, among other things. CCA's corporate headquarters is located in Nashville. The other possible course of action was to emulate the program operated by Sheriff Joe Arpaio, of Maricopa County, Arizona. Sheriff Arpaio's program consists of housing inmates in tents that are sufficiently primitive that inmates, after having had the tenting experience, avoid repeating it either by not committing crimes in Maricopa County, or by committing them elsewhere. In order to evaluate the two courses of action, the Bay County Commission decided that three commissioners and certain staff should travel to the two sites and evaluate the programs. Mr. Mantay, Chief of Emergency Services Majka, Jr., and County Attorney Zimmerman, were among those who were designated to travel to Nashville and Phoenix. Mr. Mantay was not involved in planning the trip. He relied on the County Attorney's Office to coordinate the event. County Attorney Zimmerman called Mr. Wiggins on February 6, 2000, and inquired if CCA would pay for the airline tickets to Nashville. Mr. Zimmerman told Mr. Wiggins, when he asked CCA to pay for the trip, that having CCA pay the airfare, ". . . was the County's preferred way of doing things, and, in fact, that's when he recounted the story of the County taking some trips to New York and maybe some other places." Mr. Wiggins was not authorized by CCA to approve the payment of travel expenses for customers or others. He forwarded County Attorney Zimmerman's request to James Ball, his supervisor. Subsequently, Mr. Wiggins happened upon the CEO of CCA, a Dr. Crants, while walking about the Nashville headquarters of CCA. Dr. Crants directed Mr. Wiggins to fund the trip. Ultimately, as a result of these conversations, CCA paid Trade Winds Travel, Inc., of Panama City, Florida, for the cost of the air travel for the entire Bay County contingent to Nashville, and thence to Phoenix, and back to Panama City. The evidence is not conclusive as to whether it was the intent of CCA to fund the trip beyond Nashville, but they paid for the cost of the airfare for the entire trip. The request for the payment and the request to visit CCA in Nashville was driven by Bay County's needs, not by the needs of CCA. Bay County was one of CCA's most valued customers, however, and CCA was motivated to respond to their request. This was especially true because one of CCA's first contracts to provide correctional services was with Bay County. County Attorney Zimmerman's "marching orders" for many years was that if there was an opportunity to require a third party to pay an expense, then the third party should pay rather than Bay County. That policy is reflected in a variety of Bay County ordinances including the requirement that developers pay for the cost of permitting. The third party payor policy was also reflected in a 1997 trip where Westinghouse was required by the County Commissioners to pay for the commissioners' and County staff's trip to Vancouver, B.C., and Long Island, New York, to evaluate the transfer of the resource recovery facility to another vendor. This was the trip that County Attorney Zimmerman discussed with Mr. Wiggins. This policy was set forth in a letter by County Attorney Zimmerman dated October 30, 1997, which informed the County Commissioners that all expenses in connection with their travel, and with the travel of staff, would be funded by Westinghouse. He further stated that, "[it] is our opinion that the payment of these necessary expenses are not 'gifts,' as that term is defined in State law." Prior to the trip to Nashville, Mr. Mantay had a discussion with County Attorney Zimmerman with regard to whether the fact-finding trip would be "legal." One of the reasons he asked that question was that County Commissioners would be traveling together and he was concerned about "sunshine" issues. County Attorney Zimmerman said that the trip was legal. Mr. Mantay also recognized that this trip, like the trip to New York and British Columbia, was different from attending a seminar alone. Mr. Mantay received his airline ticket when a courier from Trade Winds Travel brought it to him, along with an invoice that he sent to Mr. Zimmerman. On Thursday, February 24, 2000, Messrs. Zimmerman, Majka, and Mantay, traveled with Bay County Commissioners Danny Sparks, Richard Stewart, and Carol Atkinson, and a television reporter, Carmen Coursey, by commercial air, to Nashville, Tennessee. On Saturday, February 26, 2000, they traveled to Phoenix, Arizona, and they returned to Panama City on Tuesday, February 29, 2000. The trip was authorized by the Bay County Commission subsequent to several public discussions concerning the need for an on-site visit to Nashville and Phoenix. There was a legitimate public purpose for the trip. Channel 13 television news reporter, Carmen Coursey accompanied the officials. It is clear that there was nothing about the trip that was accomplished sub rosa. The airfare was paid by CCA directly to Trade Winds Travel, Inc. CCA did not ask for or receive reimbursement from either Bay County or the travelers. The cost of Mr. Mantay's airfare for the entire trip was $1,257. Mr. Mantay did not learn that CCA paid for the airfare until 2003 when he was notified of the ethics investigation. Mr. Mantay at the time of the trip had no reason to contemplate the cost. After learning that CCA paid the tariff, he also learned that the cost of the trip exceeded $100. Upon arrival in Nashville, Mr. Mantay, and the other travelers were greeted by Mr. Wiggins, who transported them to the Downtown Courtyard Marriott Hotel in a van. The cost of the transportation was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. The value was not established. Mr. Mantay did not know who paid for the ground transportation. The travelers ate the evening meal, February 24, 2000, as a group. Someone paid for Mr. Mantay's dinner, but the record does not indicate that CCA paid for it. On Friday, February 25, 2000, Mr. Mantay and the other travelers toured the Davidson County (Tennessee) Correctional Facility from 9:00 a.m. until noon. They ate lunch at the CCA corporate headquarters provided by CCA. That afternoon they met with Mr. Wiggins and other representatives of CCA. They discussed the possibility of CCA providing "Lifeline" and "Chances" programs operated by CCA, to Bay County. That evening, at CCA's expense, Mr. Mantay and the other travelers were transported to a dinner that was paid for by CCA. The cost of the transportation and dinner was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Mantay was not aware of either the cost of the dinner or who paid for it. Mr. Mantay and the other travelers stayed two nights at the Marriott at a cost of $224.24. The cost of the hotel was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Mantay learned after checking out from the Marriott, on February 26, 2000, when he attempted to pay a personal telephone bill, that CCA had paid the hotel bill, but there is no evidence of record that he knew the amount, or that it was an amount more than $100. No evidence was adduced proving that Mr. Mantay reasonably believed at that time that it was of a value of more than $100. Mr. Mantay paid cash for his personal telephone call during the check-out process. On Saturday, February 26, 2000, Mr. Mantay and the other travelers departed for Phoenix by air and observed Sheriff Arpaio's program the following Monday morning. They also toured the Phoenix Fire Department. The travelers, with the exception of County Attorney Zimmerman, stayed at the San Carlos Hotel. Mr. Mantay 's hotel bill in Phoenix was paid with a credit card issued to him by Bay County. On Tuesday February 29, 2000, they all returned to Panama City. Bay County originally contracted with CCA to operate their detention facilities on September 3, 1985. This contract had a term of 20 years; however, it was amended on September 16, 1996, to reflect an expiration date of September 24, 1999. Other extensions followed. An amendment dated June 18, 2000, provided that "CCA shall operate the 'Lifeline Program' through September 1, 2001." On May 15, 2001, the contract was extended to September 30, 2006. Mr. Mantay did not derive any person financial benefit as a result of CCA paying the lodging expenses in Nashville or as a result of CCA paying for his airfare. At no time has he attempted to reimburse CCA for the cost of the trip. Mr. Mantay did not receive per diem or any amount in excess of the actual cost of the trip. The entity receiving a benefit from the trip was Bay County. Mr. Mantay had a County credit card in his possession but by County policy he was not allowed to charge meals on it. He did, as noted, use it to pay the hotel bill in Phoenix. His usual practice, when traveling on behalf of the County, is to obtain receipts and file an expense report at the conclusion of the trip. He would thereafter be reimbursed for his travel expenses. He did not file an expense report subsequent to this travel. It is found as a fact that the cost of the airfare to Nashville and back to Panama City and the cost of the hotel in Nashville totaled more than $100 and Mr. Mantay became aware that the cost, when aggregated, was more than $100. Mr. Mantay could not have learned this, however, until more than three years after the trip because that is when he learned that CCA had paid for the airfare. It was not uncommon for Mr. Wiggins and other CCA officials to appear before the Bay County Commissioners on behalf of CCA, or to otherwise interact with representatives of CCA. Brad Wiggins was a lobbyist, as that term is defined in Section 112.3148(1)(b)1., and others interacted with Bay County on behalf of CCA and they were lobbyists also. During times relevant, Bay County did not maintain a lobbyist registration system.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a Final Order and Public Report finding that Jonathan A. Mantay did not violate Section 112.3148(4), Florida Statutes, and dismissing the complaint filed against him. DONE AND ENTERED this 17th day of August, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 17th day of August, 2006. COPIES FURNISHED: Linzie F. Bogan, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Albert T. Gimbel, Esquire E. Gary Early, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32319-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32319-5709
