The Issue The issue in the case is whether the Petitioner received appropriate compensation for telephone service interruptions and whether the Respondent and the Intervenor have acted appropriately under applicable statutes and administrative rules in resolving the Petitioner’s complaint.
Findings Of Fact Calvin "Bill" Wood resides on Schaefer Lane in Lake Wales, Florida, and receives local telephone service from GTE. GTE is a telecommunications service provider doing business in Florida and regulated by the PSC under the authority of Chapter 364, Florida Statutes, and Chapter 25, Florida Administrative Code. In May 1997, the Petitioner began to experience telephone service problems, including line static and service outages. According to GTE records reviewed by PSC personnel, GTE responded to the Petitioner’s reports of telephone service problems. GTE attempted to identify and repair the causes of the problems over an extended period of time. The GTE records, as reviewed by the PSC personnel, indicate that the Petitioner’s problems continued and that he frequently reported the trouble to GTE. GTE’s "trouble reports" and summaries characterize the Petitioner’s service problems as "miscellaneous" and "non-service affecting" at times when the Petitioner’s complaint was a lack of dial tone. The inability to obtain a dial tone is a service- affecting problem. A GTE installation and repair manager testified that technicians will identify a problem as "miscellaneous" and "non- service affecting" when they are unable to identify the cause of a problem, or when the problem is intermittent and is not active at the time the technician tests the line. Notations on records suggest that frequently the problems were not apparent at the time of testing. In any event, the Petitioner’s telephone service problems continued through the summer and fall of 1997. By the end of 1997, the Petitioner complained that one of his neighbors was often unable to call him. On December 30, 1997, the Petitioner filed a complaint with the PSC Consumer Affairs Division, alleging that his telephone service was inadequate, specifically that the neighbor could not call him, and that his phone did not ring. The Petitioner’s complaint was tracked in the PSC Consumer Affairs Division computer system. At the time the complaint was filed, the PSC complaint tracking systems were not integrated between PSC divisions, resulting in individual consumer complaints being routed to various PSC personnel who were unaware that the consumers problems were already being investigated by other PSC personnel. PSC consumer complaints are now handled by an integrated docketing system. Beginning after the filing of the complaint of December 30, 1997, the PSC began to inquire into the Petitioner’s telephone problems. In response to contact from the PSC, GTE acknowledged that service problems existed and indicated that lightning possibly damaged the Petitioner’s telephone service. GTE stated that the main cable providing service to the Petitioner would be replaced. By letter dated February 3, 1998, the Petitioner advised GTE and the PSC that he would withhold payment of his telephone bill until such time as his phone service was functioning and the neighbor could call him without problem. On February 11, 1998, GTE made repairs to the Petitioner’s "drop wire" and connection. GTE also examined the Petitioner’s owner-supplied telephone equipment and determined that it was defective. The Petitioner agreed to acquire another telephone. On February 12, 1998, GTE personnel visited the Petitioner’s home to determine whether the service had been restored. At that time, the Petitioner asked them to check with the neighbor whose calls were not being received by the Petitioner. On February 12, 1998, GTE personnel visited the neighbor and determined by observation that the neighbor’s calls to the Petitioner were being misdialed. On February 26, 1998, GTE installed new cable to serve the Petitioner but were unable to connect his telephone to the new cable because GTE’s "serving cable pairs" were defective. Weather-related problems prevented the company from correcting the defective "serving cable pair" problem on February 27, and apparently on any subsequent day prior to March 9, 1998. GTE provided a credit of $1.78 on the Petitioner’s February 1998 telephone bill for the time the phone was out of service. GTE also provided a $25 credit as part of GTE’s "Service Performance Guarantee." The "Service Performance Guarantee" provides a $25 credit to a GTE customer when the customer-reported service issue is not resolved within 24 hours. On March 9, 1998, GTE personnel visited the Petitioner and found that earlier in the day, the Petitioner’s home had been destroyed by a tornado. The GTE personnel testified that they advised the Petitioner to contact them when his electrical service was restored and the telephone would be reconnected. The Petitioner testified that he told the GTE personnel he intended to live in a camper trailer he would place next to his house and testified that the GTE personnel told him they would return to connect his phone service. The GTE personnel did not hear from the Petitioner and did not immediately return to connect phone service. The Petitioner did not contact GTE to advise that his electrical service had been restored. The next day, March 10, 1998, GTE notified the Petitioner that his telephone service would be disconnected for nonpayment of an outstanding balance in excess of $600. The GTE notice established a deadline of March 19, 1998, for payment. On March 11, 1998, the Petitioner requested that his calls be forwarded to his neighbor’s home. GTE complied with the request and began forwarding the Petitioner’s calls on March 13, 1998. On March 23, 1998, GTE personnel attempted to visit the Petitioner and ascertain the situation, but the Petitioner’s private drive was barricaded. The GTE representative assumed that the condition of the property was not suitable for reconnection of telephone service. By letter to the PSC dated March 25, 1998, the Petitioner complained that the phone service to his property had not been restored. On March 25, 1998, the Petitioner’s telephone service was disconnected for nonpayment of the outstanding balance on his account. On March 27, 1998, GTE advised the Petitioner that his telephone service would be "permanently" disconnected if the outstanding balance of $664.02 were not paid. GTE provided another $25 SPG credit on the Petitioner’s March 1998 bill. On April 2, 1998, the Petitioner informed the PSC that he had no telephone service and requested an informal conference to resolve the matter. The Petitioner offered to escrow his telephone payments until his service was repaired to his satisfaction. On the same day, GTE notified the PSC that the Petitioner had the outstanding unpaid balance. Because the Petitioner’s complaint was still pending and the PSC had not proposed a resolution, the Petitioner’s request for an informal conference was premature. In subsequent letters, the Petitioner continued to seek an informal conference prior to completion of the investigation. The PSC did not act on the requests. There is no evidence that the Petitioner disputed the amount due on his telephone bill. The Petitioner’s decision to withhold payment of the bill was service-related. The PSC does not have authority to prevent a service provider from disconnecting service for nonpayment of undisputed telephone service charges. On April 4, 1998, GTE "permanently" disconnected the Petitioner’s telephone service for nonpayment. By letter to the PSC dated April 6, 1998, the Petitioner requested assistance in obtaining telephone service, asserting that a heart condition required access to a telephone. There is no evidence that prior to April 6, 1998, the Petitioner had advised either GTE or the PSC of any existing heart condition. By rule, GTE is required to maintain customer access to an emergency 911 communications system except where telephone service is "permanently" disconnected. Other than after the "permanent" disconnection of his telephone service, there is no evidence that the Petitioner lacked access to the emergency 911 system. By letter to the PSC dated April 8, 1998, the Petitioner alleged to the PSC that several of his neighbors were having telephone problems and were, for a variety of reasons, unable to contact the PSC to complain. The Petitioner attempted to involve a number of his neighbors in his complaint, but none of the neighbors filed a complaint with the PSC, and there is no evidence that the neighbors complained to GTE about any service problems. There is no evidence that any resident of Schaefer Lane filed a telephone service complaint with the PSC. There is no evidence that the Petitioner is authorized to represent his neighbors or neighborhood in this matter. On April 17, 1998, GTE offered to reconnect the Petitioner’s local telephone service and block all toll calls if he would agree to arrange payment of the outstanding balance. The Petitioner apparently refused the offer, but on April 20, 1998, GTE reconnected the local service and activated the toll block. GTE waived the $55 reconnection charge and suspended collection procedures pending resolution of the complaint the Petitioner filed with the PSC. On May 9, 1998, the Petitioner made payment of the outstanding balance of his telephone bill. The toll block should have been removed from the Petitioner’s telephone service at that time, but it was not. On May 13, 1998, the Petitioner notified the PSC that the toll block remained on his phone. The PSC notified GTE that the toll block was still active. GTE apparently did not act on the information. On May 29, 1998, the PSC tested telephone lines at the Petitioner’s home and at the home of the calling neighbor. The technicians detected no telephone line problem in any location. The PSC technician attempted to complete numerous calls from the neighbor’s home to the Petitioner. The technician’s calls were completed without incident. The neighbor was asked to dial the Petitioner’s number. The PSC technician observed that the neighbor misdialed the Petitioner’s telephone number on each of three attempts. GTE eventually provided and installed a "big button" telephone for the neighbor. GTE also provided speed-dialing service at no charge to the neighbor and instructed him on use of the service. The Petitioner asserts that the PSC technician violated PSC administrative rules by traveling with GTE personnel to the Petitioner’s and neighbor’s homes on May 29. The evidence fails to establish that the transportation constituted a violation of any administrative rule. By June 1, 1998, with the toll block still activated, the Petitioner filed a complaint with the PSC concerning the service disconnection and the toll block. The June 1, 1998, complaint was assigned to the Telecommunications Division and the PSC again relayed the complaint to GTE. GTE removed the toll block on June 4, 1998. At this point, the PSC realized that the Petitioner had filed two separate complaints and the agency combined the investigations. It is unclear as to the reason GTE did not remove the toll block after the PSC relayed the matter to them on May 13, 1998; but there is no evidence that it was done to retaliate against the Petitioner. Despite the toll call block, the Petitioner was able to make long distance calls by using a calling card. After GTE removed the block, GTE credited the Petitioner with the difference between the cost of the calls made using his calling card and the cost of the calls that would have been made using the regular long distance carrier had the toll block not been in place. GTE issued service credits of $2.14 and $1.65 on the Petitioner’s June bill for out-of-service claims. The Petitioner asserted that there were times when callers were unable to reach him, but the evidence fails to establish that failed calls were the result of service problems. The Petitioner had numerous telecommunications and computer devices attached to the line. Use of devices, including computers and fax machines, can result in an incoming call not being completed. The Petitioner also acknowledges that he sometimes does not answer the telephone. The PSC technician testified that as of May 29, 1998, he considered the service problem resolved. Tests on the Petitioner’s telephone lines revealed the lines to be in working order. Numerous calls placed to the Petitioner from the neighbor’s house and other locations were completed without incident. In mid-June 1998, the technician recommended that the case be closed. By letter dated June 17, 1998, the PSC advised the Petitioner of the informal resolution of the case and advised him of his right to request an informal conference. On August 18, 1998, the Petitioner informed the PSC that the neighbor was able to complete calls to him and considered that matter resolved, but asked for an informal conference. The PSC staff, attempting to negotiate a settlement of the dispute, did not convene an informal conference until May 12, 1999. The matter was not resolved at the May 12, 1999, conference. On July 15, 1999, the PSC staff filed its recommendation for action at the PSC’s Agenda Conference on July 27, 1999, at which time the PSC referred the dispute to the Division of Administrative Hearings. The Petitioner has previously asserted that he is entitled the $25 SPG credit for each time he called GTE to complain about his telephone service. There is no evidence that the Petitioner is entitled to any SPG credits beyond those he has already received. The evidence establishes that the Petitioner’s service- related problems were intermittent, required extensive "troubleshooting" to locate, and were repaired as soon as was practicable. The Petitioner’s monthly local telephone service charge is $10.86, or approximately 36 cents per day. The PSC staff calculates that the Petitioner is due a maximum "out-of-service" credit of $16.46 allowing for a period of approximately 46 days of credit. GTE has issued total credits in the amount of $110.57, including two $25 SPG credits and waiver of the $55 reconnect fee. Subtracting the $105 attributable to the two SPG’s and the reconnect fee credit from the total of $110.57 leaves the remainder of $5.57, which is the total of the three "out-of-service" credits ($1.78, $1.65 and $2.14) the Petitioner has received. Based on the PSC staff determination that the Petitioner was due a maximum of $16.46 in "out-of-service" credit, it appears that the Petitioner should receive an additional credit of $10.89.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Public Service Commission enter a final order requiring GTE to provide a credit of $10.89 to the Petitioner. DONE AND ENTERED this 10th day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2000. COPIES FURNISHED: Calvin "Bill" Wood 10577 Schaefer Lane Lake Wales, Florida 33853 Kimberly Caswell, Esquire Post Office Box 110, MC FLTC0007 Tampa, Florida 33601-0110 Donna Clemons, Esquire Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Rob Vandiver, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Blanca Bayo Director of Records and Reporting Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue Whether on or about November 28, 1993, Petitioner committed an act of violence or used force on another person which was not for the lawful protection of himself or another and was sufficient grounds for denial of Petitioner's application for a Class "D" Security Officer and Class "G" Statewide Firearm Licenses, pursuant to Sections 493.6118(1)(j) and (2), Florida Statutes.
Findings Of Fact By application dated February 10, 1994, Petitioner applied to Respondent for a Class "D" Security Officer license and a Class "G" Statewide Firearm license. The applications prepared by Petitioner were complete, and included the required photos and copy of a certificate evidencing successful completion of security officer training as required by statute. On November 28, 1993, the Petitioner met his estranged spouse in the Lakeland police station lobby to exchange custody of their baby daughter. This transfer of custody was videotaped, allegedly by the Petitioner's mother-in-law. As the transfer was ending, the Petitioner became agitated at the person holding the camera. Petitioner picked up the baby car seat and moved towards the camera. The Petitioner swung the baby car seat, while the baby was in it, in the direction of the camera. No competent evidence was produced which proved that the car seat, while being swung by Petitioner, struck another person or an object held by another person.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered approving Petitioner's application for a Class "D" Security Officers license and a Class "G" Statewide Firearm license as provided for in Section 493.6118, Florida Statutes (1993). DONE AND ENTERED this 11th day of January, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of January, 1995. APPENDIX Petitioner is eligible for licensure under either stand Petitioner did not submit proposed findings of fact. Respondent proposed finding of fact: Accepted in substance: paragraph 1, 2, 3, 4, 5, 6 (in part). Rejected as not supported by the greater weight of competent (non-hearsay) evidence: paragraphs 6 (in part), 7. COPIES FURNISHED: Angel E. Figueroa 5331 David Street Lakeland, Florida 33813 Richard R. Whidden, Jr., Esquire Department of State Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel The Capitol Tallahassee, Florida 32399-0250
The Issue The issue in this case is whether Respondent, Peter N. Brawn, M.D., committed violations of Chapter 458, Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner, the Department of Health, on January 21, 2004, in DOH Case Number 2002-15991; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2005). Respondent, Peter N. Brawn, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 75202. Dr. Brawn is board-certified in pathology. Dr. Brawn has not previously been the subject of a disciplinary proceeding in Florida. Dr. Brawn's address at the times relevant to this proceeding was 525 Caroline Street, Key West, Florida 33040. His telephone number was (305) 292-1917. Dr. Brawn's Prescription Dispensing Log of May 14, 2002. Dr. Brawn's prescription dispensing log for May 14, 2002, indicates that Carisoprodol was dispensed to an individual whose initials are J.T. This individual's name is identical, except for the last letter of his last name, to Patient J.T., the patient at issue in the Administrative Complaint. The last letter of the individual listed in the log is "r" (hereinafter referred to as "J.Tr"), while the last letter of the patient in the Administrative Complaint is a "z" (hereinafter referred to as "J.Tz"). The Events of May 17, 2002. On or about May 17, 2002, Douglas Lee Howard, a police officer with the police department of the City of Tustin, Orange County, California, was serving as a resource officer at Tustin High School. Officer Howard was summoned to the assistant principal's office at approximately noon. When he arrived, he observed a student, J.Tz, who had been removed from his classroom, leaning against the wall, falling asleep. J.Tz is the same individual identified in the Administrative Complaint as Patient J.T. J.Tz was 16 years of age at the time of this incident. Officer Howard told J.Tz to go into the assistant principal's office and sit down. J.Tz complied, running into a lobby counter and the office doorjamb on the way. When he attempted to sit, he sat on the arm of the chair, nearly tipping the chair over. When asked if he had taken any drugs, J.Tz produced a white plastic medicine bottle (hereinafter referred to as the "Medicine Bottle"), from his pants pocket. The permanent manufacturer's label on the Medicine Bottle indicates that it contained 100 350 mg tablets of Carisoprodol, commonly referred to as "soma." This is the same medication which Dr. Brawn dispensed on May 14, 2002, to J.Tr. Carisoprodol is a legend drug which acts as a muscle relaxer and is used for muscle strains. Physiologically, it causes drowsiness, dizziness, and loss of coordination or ataxia, all symptoms that were exhibited by J.Tz on May 17, 2002. The Medicine Bottle also contained a printed label (hereinafter referred to as the "Added Label") which had been pasted onto it which included the following information: Peter Nelson Brawn, M.D. 525 Caroline St. Key West Florida 33040 305.292-1917 1-888-491-4545 Patient Name J[] T[] Date Dispensed 5/14/02 Name & Strength of Drug Directions for Use 1 tablet 4X/day The "Patient Name," "Date Dispensed," and "Directions for Use" had been written in ink on the Added Label. The last name of the patient name written on the Added Label can be read as either J.Tz or J.Tr. Officer Howard confiscated the Medicine Bottle from J.Tz. Officer Howard and a school nurse counted 84 pills remaining in the Medicine Bottle. Officer Howard, after asking J.Tz where he had obtained the pills, called the toll-free telephone number listed on the Added Label, a number listed next to Dr. Brawn's name and his address and phone number of record. He spoke to an individual who identified himself as Peter Brawn. The individual he spoke with indicated that, while he had no record of dispensing any medication to J.Tz, he did have a record of having dispensed Carisoprodol to J.Tr on the date in question. The individual Officer Howard spoke with also indicated that J.Tr had reported his age to be 18. The information disclosed to Officer Howard was medical information which would not have been generally known by anyone other than Dr. Brawn. Officer Howard had never spoken to Dr. Brawn and, therefore, could not have identified the individual he spoke to as Dr. Brawn through voice recognition. Based upon the fact that the phone number Officer Howard called was listed on the Added Label next to Dr. Brawn's name, address, and phone number, the fact that the individual identified himself as "Dr. Peter Brawn," and the fact that the individual disclosed medical information which Dr. Brawn was privy to, it is found that the individual Officer Howard spoke to was in fact Dr. Brawn. Dr. Brawn explained to Officer Howard that he had prescribed the Carisoprodol to J.Tr after being contacted by him through two e-mails. Dr. Brawn admitted that he had not spoken to J.Tr and that he had not confirmed any medical history. Having not spoken to J.Tr, it is found that he also did not perform any physical examination of J.Tr. Finally, given the foregoing, it is found that J.Tr and J.Tz are the same individual. It is, therefore, concluded that the J.Tr Dr. Brawn dispensed Carisoprodol to on May 14, 2002, is the Patient J.T. of the Administrative Complaint. Medical Records. Based upon the admissions against interest made by Dr. Brawn to Officer Howard during the May 17, 2002, telephone conversation Officer Howard testified about, it is found that Dr. Brawn, not having taken any medical history of J.Tr and not having given him an examination, did not make any medical record to support his dispensing Carisoprodol to Patient J.T. Without Dr. Brawn's admissions against interest, the evidence failed to prove that Dr. Brawn did not have medical records relating to the medications he provided to J.Tr. No direct evidence, other than phone conversation, was presented that would support a finding that such records do not exist. On or about February 27, 2003, the Department had served a subpoena on Dr. Brawn, through counsel, requesting the following: All medical records and reports for J[] T[z], DOB . . . including but not limited to, patient histories, examination results, treatments, x-rays, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations. In the "Application Affidavit for Patient Records Subpoena Without Patient Release" which was used to get permission for serving the subpoena on Dr. Brawn, J.Tz is also referred to as "a/k/a Tr." Despite the Department's awareness of the possibility that J.Tz and J.Tr were the same individuals, the subpoena actually served on Dr. Brawn did not request any medical records or other information relating to J.Tr. By letter dated March 12, 2003, Dr. Brawn, through counsel, informed the Department that he had "no medical records responsive to th[e] subpoena." The Standard of Care. Keith Fisher, M.D., accepted as an expert, testified convincingly and credibly that a reasonably prudent physician, similarly situated to Dr. Brawn, would, before dispensing Carisoprodol, a legend drug: (a) obtain a complete medical history of the patient; (b) make a diagnosis, prepare a treatment plan for the patient, and keep a medical record for the patient; and (c) perform a physical examination of the patient to determine that the patient was truly in need of Carisoprodol. Dr. Brawn failed to take any of the steps Dr. Fisher opined were necessary before dispensing Carisoprodol. Dr. Brawn dispensed the Carisoprodol to Patient J.T. based upon two e-mails he received. He did not conduct any examination of Patient J.T. and he did not obtain a medical history of Patient J.T. These findings, again, are based upon the telephone conversation between Dr. Brawn and Officer Howard. Without those admissions, the evidence in this case failed to prove, however, that Dr. Brawn did not carry out the responsibilities described by Dr. Fisher when he dispensed Carisoprodol to who he believed was J.Tr, but was actually Patient J.T. The Admissibility of Officer Howard's Deposition. Officer Howard's deposition, Petitioner's Exhibit 1, was taken by telephone on July 12, 2002, just over two weeks before the final hearing. Officer Howard's deposition was taken by telephone because he works and resides in California. No order was obtained from this forum or any court to take the deposition by telephone. The Notice of Taking Deposition sent to Dr. Brawn scheduling Officer Howard's deposition indicates that it was to be taken by telephone. It also put counsel for Dr. Brawn on notice of the following: "This deposition is being taken for purposes of discovery, for use at an administrative hearing, or any other purpose for which it may be used under applicable laws of the State of Florida." [Emphasis added]. At no time before or during the deposition was any objection made by counsel for Dr. Brawn to the manner in which the deposition was taken. In particular, no objection was made to taking the deposition by telephone. By his silence, Dr. Brawn gave tacit agreement to the taking of Officer Howard's deposition by telephone. In addition to the foregoing, the Joint Pre-Hearing Stipulation filed by the parties only two days after Officer Howard's deposition was taken does not list Officer Howard as a witness, and the transcript of Officer Howard's deposition is listed as a potential Petitioner's exhibit. Given these facts and the fact that Dr. Brawn was aware that Officer Howard works and resides in California, it is inferred that Dr. Brawn knew or should have known that the deposition would be offered in lieu of Officer Howard's appearance and testimony at hearing. Yet, counsel for Dr. Brawn waited until hearing to raise any objection to the admissibility of Officer Howard's deposition testimony. While part of Officer Howard's testimony constitutes hearsay testimony, in particular, comments made to him by J.Tz, no finding of fact has been based upon such testimony. For example, while Officer Howard testified that J.Tz told him who he obtained the pills from and how, that testimony has not been relied upon to make a finding as to how J.Tz got the pills. During Officer Howard's testimony, he referred to seven photographs which he had taken of the Medicine Bottle. Those photographs were taken by Officer Howard on May 17, 2002. While Dr. Brawn objected during the deposition to their admissibility, he did not state the basis of his objection. At hearing, Dr. Brawn objected to the admissibility of not only the photographs, but also to the entire deposition, suggesting that he had not been able to effectively cross examine Officer Howard about the photographs because he did not have them before him while the deposition was being taken. Officer Howard, however, used the photographs to refresh his memory and described adequately what they depicted. His testimony alone, without regard to any consideration of the photographs, supports the findings made herein. Additionally, the Department's file on Dr. Brawn, which had been provided to Dr. Brawn, contained a single-page copy of an e-mail with all the photographs testified to by Officer Howard. Those smaller photographs, which were available during the deposition, and Officer Howard's description of the Medicine Bottle and its labels, were adequate to eliminate any prejudice to Dr. Brawn.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Peter N. Brawn, M.D., has violated Section 458.331(1)(m), (q), and (t), Florida Statutes (2001), as described in this Recommended Order; suspending his license for a period of two years from the date of the final order; and requiring that he pay an administrative fine of $15,000.00. DONE AND ENTERED this 2nd day of September, 2005, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 2005. COPIES FURNISHED: Patrick L. Butler Ephraim D. Livingston Assistants General Counsel Prosecution Services Unit Office of General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Sean M. Ellsworth, Esquire Ellsworth Law Firm, P.A. 404 Washington Avenue, Suite 750 Miami Beach, Florida 33139 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense; and, if so, whether the denial of her request for an exemption from disqualification from employment would constitute an abuse of discretion.
Findings Of Fact The Parties Petitioner is a 49-year-old female who has requested that Respondent grant her an exemption from disqualification from employment pursuant to section 435.07, Florida Statutes, so that she can become employed as a caretaker for developmentally disabled individuals. Respondent is the state agency charged under chapter 393, Florida Statutes, with meeting the needs of children and adults having developmental disabilities. These disabilities include intellectual disabilities, autism, Down syndrome, cerebral palsy, spinal bifida, Phelan-McDermid syndrome, and Prader-Willi syndrome. Developmentally disabled persons have cognitive impairments and physical limitations that render them extremely vulnerable and highly dependent on their caregivers. Respondent fulfills its mission, in part, through direct service providers, who provide nursing, personal care assistance, transportation, companionship, in-home support, and a range of other caregiving services to persons having developmental disabilities. Because developmentally disabled individuals are extremely vulnerable, they are susceptible to potential harm or exploitation by persons providing care or other services. Therefore, such service providers are subject to level 2 employment screening pursuant to chapter 435. See § 393.0655, Fla. Stat. Petitioner's Disqualifying Offense and Other Offenses Petitioner committed her disqualifying offense on or about March 11, 2001——over 17 years ago.3/ According to the complaint/arrest affidavit that was included as part of Respondent's Exhibit 2, the file on Petitioner's request for an exemption, Petitioner assaulted and battered a 14-year-old girl during an altercation that had escalated from verbal to physical. Petitioner was charged with aggravated child abuse. According to the Finding of Guilt and Order Withholding Adjudication/Special Conditions entered by the Circuit Court for the Eleventh Circuit in and for Miami-Dade County, Florida, Petitioner was found guilty of aggravated abuse of a child, a first-degree felony. Adjudication was withheld and Petitioner was sentenced to one year of probation. As a condition of her probation, Petitioner was required to participate in an anger management program. She completed this requirement. In December 2002, Petitioner violated her probation by using marijuana. For this violation, her probation was extended another six months. On or about October 11, 2011, Petitioner was detained for retail theft and was charged with petit theft. The only official document in the record, other than Petitioner's application, is a comprehensive case information system record entry stating that the court withheld adjudication on this charge.4/ The record does not show that Petitioner pled guilty or nolo contendere to this offense. Evidence Adduced at the Final Hearing Petitioner testified regarding her disqualifying offense. According to Petitioner, she had a disagreement with her neighbor and her neighbor's daughter. A few days later, when she went to the store, her neighbor and her neighbor's daughter accosted her in the parking lot and physically attacked her, so she defended herself. She acknowledged in her testimony at the final hearing that the physical altercation had occurred and that she had been arrested and charged with aggravated child abuse. However, she claimed that her public defender had agreed to a guilty plea without her concurrence, and that adjudication had been withheld for that charge. She insisted that had she understood that "withholding adjudication" entailed entering a guilty plea, she would not have agreed to that course of action. Due to having committed the disqualifying offense, Petitioner lost her employment. She testified that she became depressed and used marijuana. She acknowledged that in doing so, she had violated her probation. She testified, credibly, that she has not used drugs since 2003. There is no evidence to the contrary in the record. Petitioner acknowledged that she was arrested for petit theft in 2011, but she testified, credibly, that she did not steal anything. She explained, persuasively, that she had gone to the store with her neighbor and that when they arrived, they went their separate ways. As they left the store together, the store's security personnel detained them and accused them of shoplifting. Petitioner's neighbor, had, in fact, shoplifted items, and ultimately was required to pay restitution; however, Petitioner was not so required. The undersigned finds Petitioner's testimony regarding the 2011 petit theft incident credible. Petitioner has completed formal training in specialized types of medical care. She is a certified phlebotomist, a certified medical assistant, and a patient care technician. She is also certified or has taken courses in Basic First Aid/CPR/AED for adults and children, recognizing and reporting elder abuse, patients' rights, medical documentation, and American Heart Association Basic Life Support. In 2015, Petitioner received an exemption from disqualification from employment from the Agency for Health Care Administration ("AHCA"), and currently is eligible to be employed as a direct or indirect service provider for programs for vulnerable persons administered by that agency. However, she is seeking an exemption in this proceeding specifically so that she can be employed in a position working with disabled individuals. Petitioner testified, credibly, that she has not had any additional encounters with the criminal justice system since receiving the exemption from AHCA, and there is no evidence to the contrary in the record. Jacqueline Snyder testified regarding Petitioner's character, compassion, and competence in caring for her (Snyder). Snyder met Petitioner when she nursed Snyder's husband. After Snyder's husband passed away, Snyder was able to procure Petitioner's services through a home health agency, and then through a private contract arrangement. In that role, Petitioner helped care for Snyder during an illness, and assisted Snyder in performing a range of daily life activities, including bathing, cleaning house, and performing other life-related activities. Snyder spoke glowingly of Petitioner's character and compassion in caring for her. On cross-examination, Snyder acknowledged that she was aware of Petitioner's disqualifying offense, but testified that she believed Petitioner's version of the event and observed that, in any case, AHCA would not have granted Petitioner an exemption if she posed a threat to vulnerable individuals. Allison Scott, Petitioner's neighbor, also testified on her behalf. Scott testified, credibly, that Petitioner is actively engaged in community and church activities, such as conducting clothing drives for children, and that she has a passion for caring for the elderly and disabled. Scott was aware of Petitioner's disqualifying offense, but believes that she deserves a second chance, particularly since that offense happened so long ago. Petitioner's neighbor, Julia Mendez, also testified on Petitioner's behalf. Mendez has been Petitioner's neighbor for over eight years. Mendez testified, credibly, that Petitioner tries to counsel, and serve as a role model for, neighborhood children. She credibly testified that she had never seen Petitioner exhibit the type of behavior with which she was charged in 2001, and that, in her view, Petitioner deserves a second chance. As part of her application for the exemption, Petitioner submitted several letters of support which supplement, explain, and support the testimony presented by Snyder, Scott, and Mendez. The letters from persons for whom Petitioner has previously cared for described her as a competent, organized, compassionate, reliable, and trustworthy caregiver. A letter from Worldwide Support Services Corporation, a Medicaid waiver provider, through whom Petitioner provided services, described Petitioner as understanding, helpful, compassionate, caring, efficient, detail-oriented, extremely competent, and an asset to the industry. Tom Rice testified on behalf of Respondent. Rice has been employed by Respondent for approximately 15 years and currently serves as a program administrator over regional supports within Respondent's Division of Operations. In this position, he oversees, among other things, the processing of background screening exemption requests. Rice explained that in reviewing an application for exemption to determine whether the applicant is rehabilitated, Respondent considers the applicant's version of events and considers whether the applicant has accepted responsibility for, and is remorseful, honest, and forthright regarding, the disqualifying offense and any subsequent offenses; and whether, since the disqualifying offense, the applicant has been a good, law-abiding citizen. Respondent also reviews the applicant's arrest reports, court records, letters of recommendation, confidential investigative summaries prepared by the Department of Children and Families investigators ("CIS reports"), and traffic records. After reviewing Petitioner's application, Respondent determined that Petitioner's request for an exemption should be denied. Rice explained that Respondent's decision was based on several factors. First, Respondent was concerned about the nature of the disqualifying offense because it entailed a crime of physical violence.5/ Rice noted that many of Respondent's clients may be prone to physically violent behavior, or may themselves be vulnerable to physically violent caretakers. Second, Rice testified that in Respondent's view, Petitioner's versions of her disqualifying offense and the 2011 petit theft offense,6/ as described in the application, were different from the descriptions in the complaint/arrest affidavits in her criminal record. Rice testified that in Respondent's view, these differences indicated that Petitioner did not take responsibility for her actions in having committed these offenses. Rice also noted the existence of "multiple" CIS reports discovered during the background screening of Petitioner, including one CIS report that showed "some indicator" of financial exploitation of vulnerable adults.7/ Rice stated that these reports caused Respondent concern that Petitioner may be physically violent toward, or exploitive of, Respondent's developmentally disabled clients. Rice noted that Petitioner's background screening also showed that Petitioner had a traffic infraction involving driving on a suspended license, which, in Respondent's view, indicated Petitioner's failure to abide by the law. Rice stated that Respondent did not give any significant weight to the letters of reference that Petitioner submitted as part of her exemption application because none of those letters was from an employer, and all of them were from friends or family members. However, on redirect examination, Rice acknowledged that the record did, in fact, contain letters of reference from persons and entities other than friends and family. He did not testify, however, that Respondent duly considered these letters of reference in evaluating Petitioner's application for an exemption. In response to a question from Respondent's counsel, Rice testified that he was concerned about Petitioner's behavior exhibited during the final hearing——specifically, that Petitioner vehemently denied having voluntarily pled guilty to the disqualifying offense, vehemently denied having engaged in any kind of abusive behavior giving rise to the CIS reports, and vehemently denied that she herself had engaged in shoplifting that led to the petit theft charge. Rice noted that dealing with developmentally disabled persons is often stressful and that he would be concerned that because of her display of emotion at the final hearing, Petitioner would not be able to exhibit a calm demeanor when dealing with developmentally disabled clients. Findings of Ultimate Fact Upon a careful and considered review of the competent substantial evidence in the record of this proceeding, the undersigned determines that Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense. The undersigned recognizes that Petitioner's disqualifying offense was a crime involving physical violence. However, as noted above, over 17 years have elapsed since Petitioner committed her disqualifying offense, and she has not been arrested for, or charged with, any crimes involving physical violence since that time. The undersigned finds that Petitioner's non-violent conduct for the past 17-plus years——which included periods during which she cared for elderly persons who were limited in their life activities——constitutes strong evidence that she can be trusted to deal with vulnerable persons in a non-violent manner. The undersigned does not find Petitioner's version of the disqualifying offense presented at the final hearing inconsistent with the applicable complaint/arrest affidavit in the exemption application file. To the contrary, Petitioner acknowledged that she had engaged in a physical altercation with her neighbor's daughter and expressed regret at having done so. However, as she was entitled to do, she also sought to explain the circumstances surrounding her disqualifying offense and to further explain that she did not intend to plead guilty and would not have done so had she understood that such plea was being entered by her attorney. Additionally, as noted above, the undersigned finds credible Petitioner's version of the circumstances surrounding her arrest in 2011 for petit theft. The undersigned does not agree that Petitioner's attempt to explain the circumstances surrounding this arrest as failing to take responsibility for her actions. To this point, as discussed above, the "police report" to which Rice referred in his testimony was not part of Petitioner's application file. Rather, the document to which Rice referred concerned an arrest that occurred on July 28, 1989.8/ That document does not support the position that Petitioner failed to take responsibility for her 2011 offense. The undersigned finds Petitioner's explanation of her 2011 offense credible, and finds Rice's testimony unpersuasive because it is not supported by other evidence in the record. Additionally, the CIS reports in Respondent's Exhibit 2 do not constitute competent substantial evidence of Petitioner's lack of rehabilitation in this proceeding. Those reports are hearsay that does not fall within any exception to the hearsay rule, so they cannot be used as the sole basis for finding that any of the events specifically addressed in the reports happened or that any of the statements contained in those reports is true.9/ § 120.57(1)(c), Fla. Stat. Because Respondent did not present any other evidence independently establishing the occurrence or truth of any of the matters addressed in the CIS reports included in Respondent's Exhibit 2, neither they nor Rice's testimony about them are afforded any weight in this proceeding. It is further noted that in 2015, Petitioner received an exemption from AHCA, which also conducts level 2 background screening to determine whether an applicant would constitute a danger to children and vulnerable adults. AHCA's determination that Petitioner would not pose a danger to such vulnerable persons, while not determinative in this case, is probative and is persuasive evidence that Petitioner is rehabilitated from her disqualifying offense. Finally, it is noted that at the final hearing, Petitioner vehemently denied that she had engaged in any conduct addressed in the CIS reports, and she displayed strong emotion while explaining the circumstances surrounding her disqualifying offense and the 2011 petit theft arrest. The undersigned does not find Petitioner's conduct at the final hearing indicates that she would engage in physically or emotionally violent conduct while working with Respondent's clients. Rather, the undersigned finds Petitioner's non-violent conduct over the past 17-plus years to be far more indicative of her future behavior than her emotional responses to cross-examination10/ during the final hearing. In sum, the competent, substantial, and persuasive evidence in the record of this proceeding establishes that Petitioner is rehabilitated from her disqualifying offense, and that she will not present a danger to developmentally disabled individuals if her request for an exemption from disqualification from employment is granted. Because the evidence establishes that Petitioner is rehabilitated from her disqualifying offense, the undersigned determines that denial of her request for an exemption would constitute an abuse of Respondent's discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 30th day of May, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2018.
The Issue The issue is whether Robert J. Majka, Jr., 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 Majka is subject to the Code of Ethics. Mr. Majka, during times pertinent, was Chief of Emergency Services for 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). On February 7, 2006, long after the events involved with this case, he was promoted to the position of Assistant County Manager. As Chief of Emergency Services, Mr. Majka was in charge of the County's corrections program. During times pertinent he employed a staff member named Ann Cahall, whose duties included interacting routinely with the County's privatized corrections provider, CCA. 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 County Manager Jonathan A. 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. Majka, County Manager Mantay, and County Attorney Zimmerman, were among those who were designated to travel to Nashville and Phoenix. Mr. Majka's role, in giving that plan effect, was to contact CCA and Maricopa County and determine dates that they could support a visit from persons from Bay County. He contacted Brad Wiggins, the Director of Business Development for CCA, and also talked to the public information officer with the Maricopa County sheriff's office, in order to determine convenient dates. This was Mr. Majka's only involvement with the planning phase of the proposed trip. 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. Majka was present during a conversation between the County Manager and County Attorney. The discussion concerned whether Bay County or CCA would fund all or part of the trip. Mr. Majka could not have learned from this discussion that CCA would fund all or part of the trip, and nothing occurred which would have required him to make further inquiry. He specifically heard County Attorney Zimmerman opine during this conversation, that the trip was "legal." Subsequently, Mr. Majka was contacted by a Ms. Rogers in the County Manager's Office. He was directed to go to the County Manager's office to obtain an airline ticket for the trip. He does not recall if he received that information directly from Ms. Rogers or whether it was relayed to him by Ms. Cahall, but it was clear to him that the County Manager was requiring him to participate in the travel. He picked up the ticket as directed. The ticket did not indicate how payment was made. On Thursday, February 24, 2000, Messrs. Zimmerman, Majka, and Mantay, traveled with Bay County Commissioners Danny Sparks, Richard Stewart, and Carol Atkinson, and 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. Majka's airfare for the entire trip was $1,257. Mr. Majka did not learn that CCA paid for the airfare until three or more years after the trip was completed. Mr. Majka 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. Majka, 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. Majka did not know who paid for the ground transportation. The travelers ate dinner, February 24, 2000, as a group that evening. Someone paid for Mr. Majka's dinner, but the record does not indicate that CCA paid for it. On Friday, February 25, 2000, Mr. Majka 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. Majka and the other travelers were transported by CCA to a dinner that was paid for by CCA. CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Majka was not aware of either the cost of the dinner or who paid for it. Mr. Majka 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. Majka learned after checking out from the Marriott, on February 26, 2000, through talking with others, 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. Majka reasonably believed at that time that it was of a value of more than $100. On Saturday, February 26, 2000, Mr. Majka 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. Majka's hotel bill in Phoenix was paid with a credit card issued to County Manager Mantay 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. Majka 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. Majka 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. Majka had a County credit card in his possession but by County policy he was not allowed to charge meals on it. 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 travel to Nashville and back to Panama City, and the cost of the hotel in Nashville, totaled more than $100 and Mr. Majka ultimately knew that the cost, when aggregated, was more than $100. Mr. Majka could not have acquired this belief, 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 Robert J. Majka, Jr. 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 Gary E. Early, Esquire Mark Herron, 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 32317-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters alleged in the Administrative complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Division of Real Estate was the state agency responsible for the licensing of real estate salespersons and the regulation of the real estate sales profession in Florida. Respondent, Mark T. West, was licensed by the Division as a real estate salesperson on March 3, 1997, upon passage of the salesperson examination, and held license number SL-0647923. Notwithstanding Respondent's testimony that he has not been actively engaged in the practice of real estate, licensure records maintained by the Division reflect that from March 11, 1997 through the present, he has been active as a salesperson with two broker corporations, TRI W Group, Inc., from March 11, 1997 through September 17, 2000, and TRI-W Brokerage Inc., from September 18, 2000 to the date of certification, February 22, 2001. On December 15, 1995, Respondent submitted an application for licensure to the Department of Business and Professional Regulation, Division of Real Estate. His application reflected he was born in St. Petersburg, Florida, on September 20, 1961. Question 9 on the application asks whether the applicant has ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. The question indicates it's applicability to any violation of the law of any municipality, county, state, or nation, including traffic offenses other than minor traffic offenses, and requires the applicant to provide details, including dates and outcomes, in full, on a separate sheet of paper. The time period of applicability is not limited. On his application, Respondent, in answer to question 9, indicated "Yes" and listed a violation of failure to yield to a fire engine. No other offenses were reflected on the form, nor was any separate sheet listing other offenses found in the records of the Division. After the application was filed, consistent with its usual practice, the Division conducted a criminal records background check on Respondent which revealed other offenses had been charged against him. On January 17, 1980, Respondent was charged with DWI in Pinellas County. His driver's license was suspended for 90 days, and he was fined. On September 11, 1982, Respondent was charged with a misdemeanor charge of obstructing a police officer in the performance of his duties. Though Respondent claims he did nothing wrong and the police officer was reprimanded for charging him, the fact remains that Respondent pleaded guilty to the charge on December 2, 1982, and adjudication was withheld. On January 13, 1986, Respondent was charged, in two separate cases, with obtaining property by worthless check. Both checks were for $81.90 and, according to Respondent, were given in payment for paint which he purchased to paint someone's home. He claims he was not paid for the job and, therefore, had no funds with which to satisfy the checks he wrote. Respondent pleaded guilty in both cases and was placed on probation in each case along with a requirement to make restitution and pay costs. He was discharged from probation after nine months. Respondent claims that as to all offenses to which he pleaded guilty, he did so upon advice of counsel. Respondent was interviewed regarding his application on January 13, 2000, by an investigator with the Division to whom he indicated at the time that he did not believe he was required to list any offense over ten years in the past. At hearing, however, Respondent modified that answer by indicating his belief the ten-year limitation related only to traffic offenses. Once the Administrative Complaint was served upon Respondent, in his election of rights, he claimed he had listed all the prior disciplinary actions on a separate sheet of paper which he enclosed with the application when it was submitted. He reiterated that claim in a letter to the Division on November 15, 2000, and he persists in that claim as of the date of this hearing. Review of the application in question reveals that Respondent had previously submitted application for licensure in September, 1994, and had failed the examination for licensure on November 11, 1994, and on January 1, April 3, and June 12, 1995. A review of Respondent's investigative file failed to disclose the prior application or whether Respondent had listed his other offenses on that application. He claims he did so, however. Respondent attended real estate school in preparation for taking the licensure exam. He cannot recall, however, whether, at the school, he was taught how to fill out the application and what was required to be on it. However, he admits to having read the application and realizes it had to be accurate and complete. He contends he believed he had complied with the disclosure requirements and signed the affidavit of completeness which appears on the application. Respondent admits that all his difficulties with the law are not listed on the application form itself. He also admits that there is no time limit listed on the application and that the application form, as he submitted it, does not reflect there is an attachment or continuation in any form. No explanation was given by the counsel for the Commission for the almost five-year delay between the filing of the application for examination by Respondent and the filing of the Administrative Complaint by the state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order finding Respondent guilty of a violation of Subsections 475.25(1)(e) and (m), Florida Statutes, placing his license as a real estate sales person on probation for one year under such terms and conditions as the Commission may prescribe, and imposing an administrative fine of $1,000. DONE AND ENTERED this 24th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2001. COPIES FURNISHED: Juana C. Watkins, Esquire Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Mark T. West 222 145th Avenue, East Madeira Beach, Florida 33708 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner, Robert J. Bopp, Jr.'s, application for licensure as a resident independent all lines insurance adjuster should be approved or denied by Respondent, Department of Financial Services.
Findings Of Fact Respondent is the state agency responsible for the licensure of insurance agents in the State of Florida pursuant to Chapter 626, Florida Statutes (2005).1/ On May 18, 2005, Petitioner filed an on-line application with Respondent seeking licensure as a resident independent all lines insurance adjuster. Petitioner had recently completed all prerequisites for an adjuster's license. The on-line application form, filled out by Petitioner, included the following screening question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or 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 judgment of conviction was entered? Petitioner answered in the negative. The criminal history records obtained by Respondent during the application review process revealed that on or about March 29, 1994, Petitioner was charged, via Information, with "Fraudulently Making Application for a Florida Driver's License or Identification Card," a third-degree felony, in violation of Subsection 322.212(5), Florida Statutes (1993), in the Circuit Court of the Fifth Judicial Circuit of the State of Florida in and for Lake County, Florida, Case No. 94-362-CFA-DS. On or about May 31, 1994, Petitioner pled guilty to the charge, as set forth in the Information. Subsequently, a judgment was entered placing Petitioner on probation for a period of 30 months supervised by the Department of Corrections, ordering Petitioner to perform 50 hours of Community Service, pay $250 in court costs, as well as $250 into the Fine and Forfeiture Fund of Lake County, and withholding adjudication of guilt. Petitioner successfully completed probation, which was then terminated. The criminal charges in question arose when Petitioner, then age 25, supplied a friend, Patrick C. Ruddell, then age 20, with Petitioner's Social Security card and Birth Certificate for the purpose of obtaining a false identification card for Ruddell to enable Ruddell to gain access to bars. In explaining his "No" response to the criminal history question on his license application, Petitioner asserts that he inadvertently provided a negative response because he had to submit the on-line application approximately eight times because of a problem with the programming and/or transmission. In addition, he testified that he had not realized that the charge was a felony, but assumed that it was a misdemeanor. At the time, he did not realize the seriousness of the charge. Petitioner also testified that at the time he was signing up for the adjustor's course, he asked the instructor whether his prior conviction would prevent him from obtaining a license and was informed that it would not. He relied on that statement and completed the course. Petitioner and his witness testified that he is of good moral character, is fit, and can be trusted to hold this license. He has learned from his mistake. No additional criminal charges have been filed against Petitioner. Petitioner has failed to meet his burden to demonstrate that he is fit and trustworthy to engage in the business of insurance.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final ordered be entered: 1) finding Petitioner has not met his burden to prove entitlement to a license; 2) denying the application for licensure of Petitioner as a resident independent all lines insurance adjuster (Code 05-20); and 3) finding that the 16-year waiting period from Petitioner's trigger date should not be reduced. DONE AND ENTERED this 9th day of January, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2006.
The Issue The issue in this case is whether Respondent, a noninstructional employee of Petitioner's, should be fired for theft.
Findings Of Fact At all times material to this case, Respondent Osmel Gonzalez-Escalona ("Gonzalez") was a custodian in the Palm Beach County School District ("District"), assigned to work at Berkshire Elementary School ("Berkshire"). Petitioner Palm Beach County School Board ("School Board") operates the schools within the District and has authority over all District personnel, including Gonzalez. As a noninstructional employee of the District, Gonzalez was subject to the collective bargaining agreement entered into between the School Board and the Service Employment International Union, Florida Public Services Union ("SEIU"). Elsa Ramon was a teacher at Berkshire during the 2007- 08 school year. Gonzalez cleaned her classroom as part of his regular duties. Some time in May 2008, Mrs. Ramon realized that she had not seen her cellular phone since using it on May 6 to call her husband. She recalled having placed a call to her husband that morning and leaving the phone on a table in her classroom. Because Mrs. Ramon did not use her phone frequently, she initially thought she had simply lost or misplaced it. When the phone did not turn up after a diligent search, Mrs. Ramon and her husband obtained a replacement phone from their carrier, T-Mobile. Mrs. Ramon's existing number was assigned to the replacement cell phone. Mrs. Ramon immediately began receiving calls on the new phone for a woman whose name she did not recognize. The frequency of these calls caused Mrs. Ramon to suspect that someone was using her old phone. She and her husband went to the T-Mobile store to report their concern about this possibility. They learned that a huge bill of approximately $3,300 had been run up on Mrs. Ramon's account, the result of numerous phone calls, including many international calls to persons in Cuba. T-Mobile promptly deactivated the phone number; it had been used without Mrs. Ramon's permission for about two weeks. Although Mrs. Ramon had not placed the many, expensive phone calls that produced the charges totaling several thousand dollars, T-Mobile nevertheless demanded that she pay the bill, pursuant to the contract between them. After some negotiation, T-Mobile reduced the charges to about $2,600, which Mrs. Ramon paid. Meantime, on June 2, 2008, Mrs. Ramon reported the theft of her cell phone to the School Police Department, because she believed that the phone had been taken from her classroom. After an investigation that lasted several months, the school police identified Gonzalez as the culprit. On October 3, 2008, Gonzalez was arrested on a charge of grand theft. On January 23, 2009, Gonzalez pleaded guilty, in the Circuit Court in and for Palm Beach County, to grand theft, a third-degree felony. He was sentenced to 12 months' probation and ordered to make restitution to Mrs. Ramon. As of the final hearing in this case, Gonzalez had reimbursed Mrs. Ramon for the loss she had incurred as a result of his unlawful use of her cell phone. At the hearing, Gonzalez admitted using Mrs. Ramon's phone, without her permission, to call friends and family in Cuba and other places. He denied having stolen the phone, however, claiming that he had found it in a store. The undersigned rejects this claim, which is not really exculpatory in any event, as being too implausible to believe. The simplest and best explanation for Gonzalez's having come into unauthorized possession of the cell phone of a teacher whose classroom he regularly entered for work related reasons, which phone was last seen and used by its rightful owner in said classroom, is that Gonzalez himself took the phone from the classroom. This, the undersigned finds, is almost certainly what occurred. Assuming Gonzalez's testimony about finding the phone were credible, however, which it was not, the undisputed fact remains that Gonzalez stole lots of expensive airtime, running up a bill of more than three thousand dollars in just two weeks by making numerous international phone calls, among others, for which Mrs. Ramon was liable. Thus, even in Gonzalez's telling, he committed a crime (to which he pleaded guilty), albeit one whose victim was a stranger rather than a co-worker. Ultimate Factual Determinations Gonzalez stole property from a teacher in whose classroom he worked as a custodian. As a result of this criminal behavior, he was arrested and accused of committing felony grand theft, a charge to which he eventually pleaded guilty. Having admitted to the commission of a felony that victimized an employee of the District, Gonzalez has given the School Board just cause to terminate his employment. Therefore, it is determined that the School Board has sustained its burden of proving, by clear and convincing evidence, the allegations forming the basis for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing Gonzalez from his position as a custodian in the Palm Beach County School District. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 3rd day of December, 2009.
