Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: On January 27, 1986, the Petitioner, Gary J. Anthony, submitted an application for examination as a limited surety agent (bail bondsman) with the Department of Insurance and Treasurer. By letter dated August 27, 1986, the Respondent denied Anthony's application, stating in part that: your Application for Examination as a Limited Surety Agent must be denied because your history of arrests and charges indicates a person of untrustworthiness and lack of high character and approved integrity. On August 26, 1986, the Petitioner was arrested in Connecticut and charged with the felony offense of aggravated assault. The Petitioner was subsequently convicted of misdemeanor assault. In 1970, the Petitioner was arrested by civilian authorities and surrendered to military authorities for an alleged 5 day unauthorized absence. There was no evidence as to what action, if any, the military took with regard to this alleged offense. The Petitioner subsequently received an honorable discharge for his service with the United States Marine Corps. On June 27, 1972, the Petitioner was arrested in Connecticut and charged with the felony offense of assault in the first degree. The Petitioner was subsequently convicted of misdemeanor assault. On December 23, 1974, the Petitioner was arrested and charged with assault and battery in the Municipal Court of the City of Vero Beach, Florida. A nolle prosequi was entered by the City of Vero Beach in regard to this offense. On November 3, 1975, the Petitioner was charged by Information with disorderly intoxication in St. Lucie County, Florida. After a jury trial, the Petitioner was found not guilty. On July 18, 1980, the Petitioner was charged by Information with burglary, false imprisonment, aggravated battery and possession of a firearm while engaged in a felony offense in Broward County, Florida. A nolle prosequi was entered by the State Attorney's Office as to each charge. On June 17, 1981, the Petitioner was charged by Information with disorderly conduct by fighting in Indian River County, Florida. The Petitioner was subsequently convicted of the misdemeanor offense of disorderly conduct. On February 3, 1982, the Petitioner was arrested and charged with battery in Indian River County, Florida. The charges stemmed from a shoving match between the Petitioner and another customer at a Maryland Fried Chicken Store. Although the Petitioner entered a plea of no contest to the misdemeanor offense of battery, there was no evidence indicating whether or not the court entered an adjudication of guilt. On February 24, 1982, the Petitioner was charged by Information with obstruction of justice in Indian River County, Florida. A nolle prosequi was entered by the State Attorney's Office as to this charge. On May 20, 1982, the Petitioner was charged by Information with burglary of a structure while armed with intent to commit assault, shooting into an occupied dwelling, and aggravated assault with a deadly weapon in Indian River County, Florida. After a jury trial, the Petitioner was found not guilty of all charges. The Petitioner has never pled guilty or no contest to, and has never been convicted of a felony. The Petitioner has been convicted of 3 misdemeanor offenses, once of disorderly intoxication (1981) and twice of misdemeanor assault (1972 and 1968). The Petitioner indicated on his application for examination as a limited surety agent that he had been charged with a felony offense on 3 occasions. The Petitioner neglected to include the Connecticut felony charges which occurred in 1968 and 1972. The Petitioner's failure to include this information was an oversight and unintentional. The Petitioner resides in Vero Beach, Florida, and has lived there since 1973. The Petitioner is self-employed as a automobile dealer. Mark Gibbons, a fifteen-year veteran detective with the Indian River County Sheriff's Department has worked personally with the Petitioner for the past three years. Whenever the sheriff's office needs unmarked automobiles, Gibbons can rely on the Petitioner to loan vehicles from his car lot. The Petitioner has been familiar with some major undercover operations in Vero Beach and the operations have always remained secret. Gibbons' opinion is that the Petitioner is trustworthy and honest and has high moral character. Gibbons is familiar with the Petitioner's reputation in the community and among the detectives in the sheriff's office and the Petitioner's reputation is good. Richard P. Breen, the director of the City of Vero Beach Airport, has known the Petitioner for approximately four years on a casual, social basis. Prior to becoming the director of the city airport, Mr. Breen worked for 20 years with the Federal Communications Commission in Washington, D.C., as an attorney. Breen's opinion is that the Petitioner is trustworthy and honest and has very good integrity. Edward Bogan, a certified public accountant, does accounting work for the Petitioner's automobile business and has known the Petitioner for about 10 years. Bogan's opinion is that the Petitioner is trustworthy and honest and a man of high integrity. Bogan has never known the Petitioner to do anything dishonest or illegal with regard to his business financial records. Richard Appell, Jr., is an assistant vice-president of the Barnett Bank in Indian River County and has known the Petitioner for about 3 years. Appell is a consumer lending officer in charge of indirect lending. In indirect lending, the bank sets up arrangements with car dealerships to do financing of cars that the dealerships sell to individuals. Appell has contact with the Petitioner on a weekly basis involving indirect lending. The Petitioner frequently takes credit applications completed by customers to Appell and requests financing or indirect lending. Appell's opinion is that the Petitioner is honest and trustworthy and of high character. Appell and the Barnett Bank have never had any problems with the Petitioner misrepresenting cars, down payments or amounts financed. When the bank approves an indirect lending transaction, it must rely on the integrity of the dealer because the bank does not see the car or the customer. Ben Russo, the owner of a Dodge automobile dealership in Vero Beach, has known the Petitioner for about 15 years. Russo first met the Petitioner through buying and selling used cars in the Vero Beach area. Because of their common business, Russo has contact with the Petitioner about every other day. In Russo's opinion, the Petitioner is trustworthy and honest and has high moral character. Terrence O'Brien, City Attorney for the City of Vero Beach, has known the Petitioner on a social basis for about six years. In O'Brien's opinion, the Petitioner is honest and trustworthy. Robert J. Vatland, president of Vatland Oldsmobile, Inc., in Vero Beach, has known the Petitioner for approximately 10 years. In all of their business transactions, the Petitioner has been honest and has always exercised good judgment. Casper W. Maier, sales manager for Ennessy Buick- Cadillac, Inc., in Vero Beach, has done business with the Petitioner since 1979. In all of their business transactions, the Petitioner has been honest and sincere. In Maier's opinion, the Petitioner is honest and trustworthy. Dennis Widenhoffer, assistant manager at Firestone Service Center in Vero Beach, has known the Petitioner on a business and social basis for about 10 years. The Petitioner has been honest and fair in all of his transactions with Widenhoffer. John Purdy, a superintendent for Reynolds, Stalls and McClain Drywall Company has known the Petitioner for about 20 years and is a close personal friend of the Petitioner. Purdy sees the Petitioner on a social basis about once each week. In Purdy's opinion, the Petitioner is honest and trustworthy and has high moral character. American Bankers, Inc., has entered into an agreement to write the bonds for the Petitioner if Petitioner becomes a licensed bail bondsman. The Petitioner is honest and trustworthy and has high moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Gary J. Anthony, be allowed to take the examination for limited surety agent and if he passes the examination, be eligible for licensure as a limited surety agent. DONE AND ENTERED this 14th day of January, 1987, at Tallahassee, Florida. W. MATTHEW STEVENSON 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 14th day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3620 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (Note: The Petitioner's first Finding of Fact was numbered 6.). Addressed in Procedural Background section of Recommended Order. Adopted in substance in Findings of Fact 17, 18, 19 20 and 26. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 24. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Addressed in Procedural Background section. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in substance in Findings of Fact 17, 18, 19, 20 and 26. Rejected as subordinate. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 4. Adopted in Finding of Fact 27. Partially adopted in Finding of Fact 14. Matters not contained therein are rejected as not supported by the weight of the evidence. Adopted in Findings of Fact 3 through 13. Adopted in Finding of Fact 15. Rulings on Proposed Findings of Fact submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Rejected as misleading and/or not supported by the weight of the evidence. 9. Rejected as subordinate. 10. Adopted in substance in Finding of Fact 3. 11. Adopted in substance in Finding of Fact 4. 12. Adopted in substance in Finding of Fact 5. 13. Adopted in substance in Finding of Fact 6. 14. Adopted in substance in Finding of Fact 7. 15. Adopted in substance in Finding of Fact 8. 16. Adopted in substance in Finding of Fact 9. 17. Adopted in substance in Finding of Fact 11. 18. Adopted in Substance in Finding of Fact 12. Partially adopted in Finding of Fact 14. Matters not contained therein are rejected as not supported by the weight of the evidence. Rejected as subordinate and/or a recitation of testimony. COPIES FURNISHED: Clifford M. Miller, Esquire Miller & Miller 601 21st Street, Suite 408 Vero Beach, Florida 32960 Lealand L. McCharen, Esquire 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301
Conclusions Ms. Jackson had a legal duty to yield the right-of-way to Claimant. Because Ms. Jackson was acting in the course and scope of her employment at the time of the crash, the Department shared that duty. Ms. Jackson breached the duty by turning in front of Claimant's vehicle and the breach was the proximate cause of the collision and the injuries to Claimant that resulted from the collision. Whether Ms. Jackson was impaired by drugs at the time of the crash was not an issue presented in the trial court because liability was admitted by the Department. I conclude that whether Ms. Jackson was impaired by prescription or other drugs at the time of the crash is also irrelevant in this claim bill proceeding and, even if it were relevant, the evidence is insufficient to make a finding on that issue. I am persuaded that Claimant was not dishonest in her application for Social Security disability benefits and, therefore, there is no basis to doubt her credibility regarding the injuries she suffered in the crash. However, I believe the jury award is too high in the context of this claim bill, even when Claimant's unique situation with muscular dystrophy is taken into account. Claimant's counsel argued before the trial court that the law in Florida is that a jury verdict should not be disturbed by the court unless "it is so inordinately large as obviously to exceed the maximum reasonable range within which the jury may reasonably operate," citing Kaine v. Government Employees Insurance Company, 735 So. 2d 599 (Fla. 3d DCA 1999). He also emphasized that it was not the role of the judge to "assume the role of the seventh juror." However, that law is applicable to a trial judge's review of a jury award on a defendant's motion to reject or reduce the award. This claim bill process, on the other hand, involves a de novo proceeding in which I am rightfully assuming the role of a new jury. Furthermore, the payment of a claim bill is a matter of legislative grace and the Senate, unlike the trial court judge, is free to deviate from the jury award. It is reasonable for the Senate, in determining whether to pay a claim in excess of the sovereign immunity cap, to consider whether the jury award deviates substantially above or below the usual award for similar injuries. Claimant's attorney presented a number of examples of jury awards in excess of $5 million, but almost all of the cases involved paraplegia or amputation. There might be cases involving severe leg fractures, like the one suffered by Claimant, in which the jury awarded $5 million or more to the plaintiff. However, while no calculation was attempted by the parties or by me to determine the average or median jury award in cases involving severe leg fractures, using the legal reference books that compile and discuss jury verdicts, it appears that the vast majority of jury awards for severe fractures are significantly less than $5 million and closer to $1 million. Claimant made much of her determination before the 1999 crash to not let her muscular dystrophy prevent her from enjoying life fully. If Claimant dedicates herself just as enthusiastically to making the most of her present physical predicament as she did in the past, I believe her future quality of life can be much better than the one she predicted for herself at the claim bill hearing. Although Claimant deserves to be compensated for the injuries she suffered through the negligence of the Department's employee, I think a more reasonable award, taking into account the more common jury awards for severe limb fractures and the special circumstance of Claimant's muscular dystrophy, would be $3,000,000. ATTORNEY’S FEES AND LOBBYIST’S FEES: Claimant's attorneys agree to limit their fees to 25 percent of any amount awarded by the Legislature as required by s. 768.28(8), F.S. They object to the provision of the bill that limits attorney’ fees, lobbying fees, and costs to 25 percent of the award. Claimant’s attorneys report costs of $51,866. They propose a lobbyist's fee that would be an additional 6 percent of the award. The Florida Supreme Court held in Gamble v. Wells, 450 So. 2d 850 (1984) that the Legislature allows compensation pursuant to a claim bill “as a matter of grace” and it can determine the conditions to be placed on the appropriation. The Court specifically held that parties cannot enter into contracts, such as fee agreements, that bind the state in the exercise of its sovereign immunity. LEGISLATIVE HISTORY: Claim bills for Laura Laporte were first filed in the 2003 Session and have been filed in each session thereafter. A hearing was held before a Senate Special Master in 2002, but no report was issued. RECOMMENDATIONS: The claim bill should be amended to reduce the claim to $3,000,000. For the reasons set forth above, I recommend that Senate Bill 34 (2008) be reported FAVORABLY, as amended. Respectfully submitted, cc: Senator Al Lawson Representative Stan Mayfield Faye Blanton, Secretary of the Senate Bram D. E. Canter Senate Special Master House Committee on Constitution and Civil Law Michael Kliner, House Special Master Counsel of Record
Conclusions The failure of the School Board to install metal detectors cannot be a basis for a finding of negligence. The legislative decision of the governmental entity to appropriate funds to build, expand or modernize a facility is immune from liability for negligence. Trianon Park Condominium Ass'n v. City of Hialeah, 468 So. 2d 912 (Fla. 1985). It was not foreseeable that Michael was dangerous because one teacher saw him viewing a website that she did not like, because one thought he was weird, because he talked too much in class sometimes, and because he once punched a girl. The failure of security personnel to effectively bar all access to the school prior to the official start of the school day, absent a showing of actual or constructive knowledge that the boys were sneaking in and that one of them was dangerous, also fails to constitute negligent supervision. The failure of the security guard to respond before the two boys returned to the bathroom, based on the boy's description of the time frame, also fails to demonstrate negligence. Guns, Violence, and Schools: The Results of School Violence--Litigation Against Educators And Students Shedding More Constitutional Rights at The School House Gate, 46 Loy.L.Rev. 389 (Summer 2000). ATTORNEY’S AND LOBBYIST’S FEES: Attorney's fees are set at 25 percent, in compliance with s. 768.28(8), F.S., or $250,000, for a $1,000,000 award. The lobbyist's fee is an additional 6 percent, or $60,000. Costs are not included in the fees. LEGISLATIVE HISTORY: This is the second year that a claim bill has been submitted for Maria Gough and Jorge Gough, as a result of the death of their son, Jaime Gough. RECOMMENDATIONS: For the reasons stated above, I recommend that Senate Bill 40 (2008) be reported UNFAVORABLY. Respectfully submitted, cc: Senator Frederica Wilson Representative Carlos Lopez-Cantera Faye Blanton, Secretary of the Senate Eleanor M. Hunter Senate Special Master House Committee on Constitution and Civil Law Tom Thomas, House Special Master Counsel of Record
Findings Of Fact Petitioner was initially interviewed for the purpose of establishing a presumptive parole release date ("PPRD") on December 14, 1981. Petitioner could not be interviewed prior to December 14, 1981, because he had been released from the custody of the Department of Corrections pursuant to a supersedes bond on July 16, 1979, and was not returned to the custody of the Department of Corrections until February 26, 1981. Petitioner received a two-year commitment for two counts of uttering a forged instrument, which commitment was imposed on February 17, 1981. Petitioner's two-year commitment for possession of a controlled substance which had been imposed on November 27, 1978, expired on July 29, 1981. Petitioner's current PPRD was established for November 11, 1991, by Commission action taken at a meeting held on January 13, 1982. Petitioner is scheduled for biennial review of his PPRD in October of 1983. Rules 23-21.11(3) and 23-21.02(2), Florida Administrative Code, were amended August 1, 1983, after the establishment of Petitioner's PPRD.
