Conclusions UPON CONSIDERATION of the Administrative Complaint attached hereto as Exhibit “A”, the transcript of the corresponding Division of Administrative Hearings (DOAH) case, the exhibits received into evidence, ‘the Proposed Recommended Order filed by the Administrative Law Judge in this matter and attached hereto as Exhibit “B’, any exceptions to the Recommended Order filed by either party, and being otherwise fully advised of the premises, it is hereby, ORDERED AND ADJUDGED: 1. The Findings of Fact, Conclusions of Law, and recommended penalty as _ detailed in the Recommended Order are hereby adopted. 2. Respondent is not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. . 3. This Final Order shall become effective on the date of filing with the Agency Clerk of the Department of Business and Professional Regulation. DONE AND ORDERED this ogee, of (Octien. 2008. W. Drago, Secretary Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, FL 32399-0750
Appeal For This Case Unless expressly waived, any party adversely affected by this Final Order may seek judicial review by filing an original Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, and a copy of the notice, accompanied by the filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal within 30 days of the effective date of this order, in accordance with Rule 9.110, Florida Rules of Appellate Procedure, and Section 120.68, Florida Statutes. CERTIFICATE OF SERVICE | hereby certify that a true and correct copy of the foregoing Final Order has been provided via U.S. Mail to Respondent, Todd Boetzel and Boetzel Landscaping, Inc., c/o Gregory T. Elliott, Esquire, Elliott-Berger, P.A., 7310 Gulf Boulevard, St. Petersburg, Florida 33706, wie ny of CC 2008. SARAH WACHMAN, AGENCY CLERK By: Mush Ah Min Brandy Nichols, Deputy Clerk Copies furnished to: Reginald D. Dixon, Informal Hearing Officer Sorin Ardelean, Assistant General Counsel Division of Regulation, Bureau of Unlicensed Activity Daniel Manry, Administrative Law Judge, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060 Steven Petrozak, d/b/a Southern Cross Construction, 6435 92" Place #901, Pinellas Park, Florida 33782
The Issue Whether the Petitioner, Macia Poole, was subject to an unlawful employment practice by Respondent, Westminster Village of Pensacola, on account of her sex or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact On April 3, 2015, Petitioner’s Employment Complaint of Discrimination and Petition for Relief were transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations for a formal administrative hearing to be held in accordance with section 120.57, Florida Statutes. On April 10, 2015, a Notice of Hearing by Video Teleconference was entered which set the final hearing for June 1, 2015, at 9:00 a.m., Central Time, (10:00 a.m., Eastern Time), at video teleconference sites in Pensacola, at the Office of the Judges of Compensation Claims, Video Teleconferencing Room, 700 South Palafox Street, Suite 305, Pensacola, Florida, and in Tallahassee, at the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. On May 4, 2015, one Subpoena Duces Tecum and four Subpoenas Ad Testificandum were issued at the request of Petitioner. On May 14, 2015, Petitioner electronically filed her Notice of Appearance in this proceeding. On May 26, 2015, Petitioner filed a Request to Reschedule Video Hearing. The Request made no allegation of an inability to attend the hearing, only that her attendance would be an “inconvenience.” The Request was denied. The filing of the Request is convincing evidence that Petitioner knew that the final hearing was scheduled to be heard in accordance with the Notice of Hearing by Video Teleconference. On June 1, 2015, at the scheduled date, time, and place, the final hearing was convened. Mr. Moran, representing Respondent, Westminster Village of Pensacola, made his appearance. Petitioner did not appear. The final hearing was recessed for twenty minutes to allow Petitioner to appear. During the recess, the undersigned confirmed that the Division had not received any communication from Petitioner of exigent circumstances that may have interfered with her appearance at the final hearing. After twenty minutes had passed, the final hearing was re-convened. Petitioner was not in attendance. Respondent was prepared to proceed, and had its witnesses in attendance at the Pensacola video location. Mr. Moran confirmed that he had received no emails from Petitioner, that being their normal form of communication. At 9:25 a.m., Central Time, (10:25 a.m., Eastern Time), the final hearing was adjourned. There was no evidence presented at the final hearing in support of Petitioner’s Employment Complaint of Discrimination and Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Westminster Village of Pensacola, did not commit an unlawful employment practice as to Petitioner, Macia Poole, and dismissing the Petition for Relief filed in FCHR No. 2014-01235. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of June, 2015. COPIES FURNISHED: Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Brian J. Moran, Esquire Moran Kidd Lyons Johnson, P.A. 111 North Orange Avenue, Suite 900 Orlando, Florida 32801 (eServed) Macia Deanne Poole Apartment 176 6901A North 9th Avenue Pensacola, Florida 32504 (eServed) Christopher R. Parkinson, Esquire Moran, Kidd, Lyons, and Johnson, P.A. 111 North Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue is whether Respondent engaged in an unlawful employment practice by discharging Petitioner because of his age.
Findings Of Fact Respondent produces flexible packaging, develops technology to fill that packaging with liquids, and provides services to incorporate its flexible packaging systems into its customers' facilities. Respondent primarily produces "bag-in- box" products and manufacturing systems for customers such as Pepsi-Cola and Wendy's, as well as various customers in the milk, juice, and chemical business. Respondent operates two manufacturing facilities, one located at its headquarters in Romeville, Illinois, and another located in Union City, California. Petitioner was born on April 24, 1946. In 1996, Respondent hired Petitioner as a sales representative, and he served in that position until he was discharged on April 19, 2004. Petitioner initially was assigned to service the Upper Midwest Region and was based in Chicago, Illinois. In 1999, Respondent reassigned Petitioner to the Southeast Region. After his reassignment to the Southeast Region, Petitioner continued to live in the Chicago area for several years. However, in December 2002 or January 2003, Petitioner and Respondent mutually agreed that Petitioner would relocate to Florida. Because the move resulted from a mutual decision between Petitioner and one of Respondent's founders, Respondent paid $25,000 towards Petitioner's moving expenses. After the move, Petitioner continued to be responsible for the same geographical territory and the same customers as before the move. Joe Pranckus is Respondent's vice president of sales. At the time of Petitioner's discharge, the sales department consisted of a customer service department and four geographical sales territories: the Central, Western, Eastern and Mexico Regions. The Central and Western Regions (where Respondent's manufacturing facilities are located) each were overseen by a regional manager. The Eastern and Mexico Regions did not have regional managers. As Petitioner was located in the Eastern Region, Mr. Pranckus served as his direct supervisor. From 1999 until his dismissal, Petitioner was Respondent’s only sales representative in the Southeast. His primary responsibility was to maintain and increase Respondent’s business in that region of the country. The Rapak sales department as a whole is generally responsible for maintaining and increasing Respondent’s overall sales. This involves not only selling products and services, but also following up with customers to help them solve problems and otherwise to ensure their happiness. Because his primary responsibility was maintaining and increasing sales, Mr. Pranckus judged Petitioner almost exclusively by his year-to-date sales numbers as compared to the same period in the previous year. These numbers were calculated by Mr. Pranckus on a fiscal-year basis, from May 1st through April 30th. For the 2003-2004 fiscal year, Mr. Pranckus established a goal for Petitioner of 15 percent growth in sales. The minimum expectation was that Petitioner maintain at least the same amount of sales he had the previous year. During the 2003-2004 fiscal year, Mr. Pranckus e- mailed Petitioner his sales-versus-last-year figures on almost a monthly basis. By the end of June 2003, Petitioner had sold only 84 percent as much as he had sold through June 2002; by the end of July, only 87 percent as much as he had sold through July 2002; by the end of August, 91 percent; September, 81 percent; October, 90 percent; November, 85 percent; December, 87 percent; and by the end of March 2004 (eleven months into the fiscal year), he had sold only 88 percent as much as he had sold through the first eleven months of the 2002-2003 fiscal year. In short, as the fiscal year drew to a close, it was clear that Petitioner was going to suffer a net loss of business for the year. In late October 2003, Petitioner suffered a heart attack and underwent triple bypass surgery. Petitioner was unable to work for approximately two months while recovering from surgery. However, Petitioner returned to work in January 2004, initially working on a limited basis. Petitioner's sales numbers suffered because he lost some certain accounts owing to factors beyond his control (such as product quality and price issues). Nonetheless, Petitioner concedes that it was his job to replace his lost sales, no matter what caused his customers to switch suppliers. Mr. Pranckus typically holds one sales meeting each year for his entire staff. In February 2004, Mr. Pranckus held one of those meetings. At that meeting, Mr. Pranckus informed Petitioner that "changes would be made if [his] numbers didn't improve." In his application for unemployment compensation, Petitioner stated that Mr. Pranckus also warned him on March 10, 2004, that he needed to improve his sales numbers. Finally, Mr. Pranckus sent an e-mail to Petitioner on March 27, 2004. In that e-mail, Mr. Pranckus delivered the following written warning: Your territory is at a critical state. We can not continue along this path. Sales must be improved immediately or we will need to change. We agreed at our sales meeting to get this back on track. It is not showing up in the numbers and activity. Call me and let me know how we can help. On April 19, 2004, Mr. Pranckus discharged Petitioner because of his poor performance. His year-to-date sales figures were unacceptably low, as compared to the previous year, and Mr. Pranckus saw no evidence of plans or activity designed to improve matters. After Petitioner was discharged, he filed an application for unemployment compensation. On the application, Petitioner stated that he was discharged “for failure to achieve sales goals.” Later in that same application, in response to a request to “briefly summarize your reason for separation from this employer,” Petitioner wrote: “I did not achieve my sales goals.” Petitioner did not assert anywhere in his application for unemployment benefits that he was discharged because of his age. At the time of his discharge, Petitioner was 57 years old (almost 58). Mr. Pranckus did not know Petitioner’s exact age, but he would have guessed (based on physical appearance) that Petitioner was in his mid-50s at the time. Mr. Pranckus did not consider this to be “old.” In fact, Petitioner is not much older than Mr. Pranckus. Mr. Pranckus interviewed three individuals to fill Petitioner’s position. He ultimately selected Jim Wulff. Mr. Pranckus did not know their ages at the time of the interviews, but he would have guessed (again, by appearance) that Mr. Wulff was in his mid-50s and that the other two interviewees were in their mid- to late 40s and mid- to late 50s, respectively. In fact, Mr. Wulff was born on May 26, 1948, so he was 55 years old (nearly 56) when Mr. Pranckus hired him. Sales analysis from June 2003 showed that eight Rapak employees or representatives did not meet the 100 percent sales goal. Those listed were either Rapak non-supervising employees with direct responsibility for sales, supervising employees, or non-employee independent brokers. However, none of these employees, whether younger or older, was similarly situated to Petitioner at the time of his discharge. As an initial matter, there were four other non- supervisory employees with direct responsibility for sales: Dennis Hayes, Marvin Groom, Donald Young, and Keith Martinez. The other individuals responsible for sales were either supervisory employees or non-employee independent brokers. Because the two supervisors have management responsibilities and are responsible for their entire regions and the individuals who report to them, they are not judged primarily by whether they personally meet the 100 percent or 115 percent sales-versus- last-year objectives. Brokers, meanwhile, are not employees. Rather, they are independent contractors paid on a straight commission, so Respondent receives value from their services regardless of how much they sell. Mr. Hayes was the only other employee who performed the exact same job as Petitioner, but he reported to Regional Manager Dan Petriekis in the Central Region, not directly to Mr. Pranckus. Moreover, as of March 2004, Mr. Hayes had sold 127 percent as much as he had during the same period the previous year.1 Mr. Hayes is almost ten years older than Petitioner. Mr. Young was also responsible for sales, but he was semi-retired, serviced only one customer and received a base salary for his work. As of March 2004, however, Mr. Young had sold 115 percent as much as he had during the same period the previous year. Mr. Young is more than twelve years older than Petitioner. Finally, while Keith Martinez and Marvin Groom had some responsibility for sales, their positions were “radically different” from Petitioner’s. Whereas Petitioner could identify certain problems with Respondent’s machinery and products and would refer those problems to a service technician to assist his customers, Mr. Groom and Mr. Martinez were both originally hired as service technicians. Based on this experience, they could and did not only identify technical problems, but also performed the necessary maintenance and repair work on the spot, in addition to performing preventative maintenance. Petitioner, by contrast, has spent his entire working life as salesman. Accordingly, he was neither capable of, nor expected to, perform these additional maintenance and repair functions. As a result, Mr. Groom and Mr. Martinez received more leeway on their sales performance than Petitioner because they brought additional value to Respondent’s business that Petitioner could not offer. Nonetheless, as of March 2004, Mr. Groom was running at 100 percent versus the prior year and Mr. Martinez was running at 87 percent. Mr. Groom is roughly three years younger than Petitioner, and Mr. Martinez is 15 and one-half years younger than Petitioner. Respondent paid Petitioner $113,000 in salary and commissions during his last full calendar year of employment with Rapak. Petitioner was out of work for ten months after his dismissal. During that time, he received $8,000 in unemployment compensation from the State of Florida and $8,942.33 in severance pay from Respondent. In his new job, Petitioner projects that he will earn $100,000 in his first year but admits that he could make at least $113,000 because his compensation is once again dependent upon sales commissions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent committed no unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2006.
The Issue Petitioner's complaint and Petition for relief allege that she was discriminated against due to her handicap of multiple sclerosis when she was terminated by Respondents on March 9, 1990. The issue for disposition is whether that violation of Section 760.10, F.S., occurred, and if so, what relief is appropriate.
Findings Of Fact Leah Swenson-Davis was employed by Respondent, Orlando Partners, as a national sales manager from August 1989, until her termination on March 9, 1990. As sales manager she searched out new business for the hotel, maintained files and obtained repeat business from corporations and other customers. Her salary was $28,000.00 a year. Louis Evans was director of sales, and her supervisor. He hired Ms. Swenson-Davis to book conventions and also hired Barbara Hydechuk and Beth Darkshani as other sales staff. In his opinion Ms. Swenson-Davis was a "pro"; she generated substantial revenue for the hotel and her sales bookings were "much superior" to the other staff. At one point, the three women were promised new office chairs if they could generate 500 room/nights by Friday of the same week. They made their goal, with Ms. Swenson-Davis bringing in 437 out of the total, and the other women bringing in the remainder. In addition to booking hotel rooms, Ms. Swenson-Davis also was effective in selling other hotel services. She generated business from groups who had previously used the hotel but had not been reworked. Her booking packages were very detailed and thorough and she had few cancellations. In February 1990, Barbara Hydechuk was promoted to director of sales, and she took over the responsibility of national sales. Leah Swenson-Davis was hospitalized in February 1990, for what was originally thought to be a stroke. She was then diagnosed as having multiple sclerosis, a disease affecting functions in the nervous system. Hers is not a severe form of the disease and her physician released her to return to work half-time. At the hearing, no signs of illness were evident; that is, she moved and spoke in a perfectly normal manner. When she returned to work, however, Ms. Swenson-Davis was treated "like a leper". Bill Flynn and Barbara Hydechuk made her feel like she would infect them. She was kept at a physical distance. During her absence, Barbara Hydechuk had been promoted. When Ms. Swenson-Davis asked Bill Flynn why she was not informed of the promotion opportunity, he replied that he had worked with Barbara. The work atmosphere, and employees' attitudes toward Ms. Swenson-Davis were very different after her return to work. On March 9, 1990, the Friday before Ms. Swenson-Davis was to pick up her doctor's release to return to work full-time, she was informed by Barbara Hydechuk that she was "terminated immediately" due to lack of productivity in the sales department. Since her termination, Ms. Swenson-Davis has submitted approximately 300 applications with other hotels, and in other sales and marketing areas. She has been given interviews, but has not been hired as of the date of the hearing, although she is capable of working full-time. She received unemployment compensation from March until September 1990. She has accrued medical expenses in the amount of $12,602.00, in 1992, for herself and her son, which expenses would have been covered by her former employer's benefit package. She was insured through COBRA until December 1990, when the premiums went over $500.00 and she could no longer afford them.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter its final order requiring 1) Reinstatement of Petitioner in the same or equivalent position, 2) damages of back pay computed at the rate of $28,000.00 per year from the time of discharge until reinstatement or rejection of an offer of equivalent employment, less payments received for unemployment compensation; 3) damages in the amount of $12,602.00, representing medical benefits lost; and 4) reasonable costs and attorneys fees. DONE AND RECOMMENDED this 14th day of January, 1993, in Tallahassee, Leon County, Florida. MARY CLARK 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3920 The following constitute specific rulings on the findings of fact submitted by Petitioner: 1. Adopted in paragraph 1. 2.-3. Adopted in paragraphs 2, 3, and 4. 4. Rejected as irrelevant. 5.-6. Adopted in paragraph 6. 7. Adopted in paragraphs 2, 5, and 7. Rejected as contrary to the evidence. Petitioner asked why she was not told of the promotion opportunity. Adopted in paragraph 7. Adopted in paragraph 5. 11.-12. Adopted in paragraph 8. Rejected in part. The complaint in this case relates to wrongful termination, not failure to promote. Moreover, no competent evidence supports a finding that Petitioner would have applied for promotion or was denied promotion on account of her handicap. The other employee was promoted prior to Petitioner's return to work. Adopted in paragraph 9. Rejected as unsupported by the evidence. Basis for the computation is not apparent. Rejected as immaterial. Adopted in substance in paragraph 9, although the $200.00 expense incurred in 2/90 is rejected, as petitioner was still employed at that time. Rejected as unsupported by competent evidence. Rejected as unnecessary, although the recommendation for reinstatement is adopted. COPIES FURNISHED: James A. Kirkland Kirkland Management, Inc. 946 North Mills Avenue Orlando, Florida 32802 Percy Bell K. F. International Host, Inc. 1600 Lee Road Winter Park, Florida 32790 Raymond Rotella Kosto & Rotella, P.A. Post Ofice Box 113 Orlando, Florida 32802 Orlando Partners, Inc. d/b/a Quality Hotel Orlando Airport 3835 McCoy Road Orlando, Florida 32812-4199 Tobe Lev, Esquire Post Office Box 2231 Orlando, Florida 32802 Betsy Kushner, Claim Representative Cigna Property and Casualty Companies Post Office Box 30389 Tampa, Florida 33630-3389 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113
The Issue The issue is whether Respondent violated Section 475.25(1)(e) and (1)(m), Florida Statutes (2003),1 and Florida Administrative Code Rule 61J2-2.027(2), and if so, what discipline should be imposed.
Findings Of Fact Respondent is a licensed real estate sales associate. She was licensed in 2003. Her license number is 3061179. Respondent was working for Weichert Realty in the Orlando area at the time of the final hearing. She started working for that firm in October 2006, and prior to that, she “did not do a whole lot with [her] license as far as practicing real estate.” Respondent filled out and submitted her license application over the Internet. She submitted a signed notarized statement dated January 15, 2003, attesting that she answered the questions in the application “completely and truthfully to the best of [her] knowledge.” She also submitted a fingerprint card. The evidence clearly and convincingly establishes that there were at least three material misstatements and omissions in Respondent’s license application. First, Respondent did not provide a Social Security number (SSN) in her license application. The SSN that she subsequently provided to the Division, 378-72-0704, was incorrect. Respondent testified that her SSN is 378-62-0704. That is the SSN listed for Respondent in the driver’s license records maintained by the Florida Department of Highway Safety and Motor Vehicles (DHSMV). There is evidence suggesting that Respondent’s SSN may actually be 380-80-3178, but the evidence is not clear and convincing on that point.3 The document on which Respondent provided the incorrect SSN was not offered into evidence by the Division. Respondent denied providing an incorrect SSN, and she testified that if she did provide an incorrect SSN, it must have been typographical error. Second, the only name listed for Respondent in her license application was Yolanda Orr, which was Respondent’s married name and her legal name at the time she submitted her application. Respondent answered “no” to the question that asked whether she has ever “used, been known as or called by another name (example - maiden name . . .) or alias other than the name singed to the application.” (Emphasis supplied.) Respondent’s maiden name is Yolanda Small. She used that name until July 1998, when she was married. She was divorced in February 2006, and she is again using her maiden name. Respondent currently has two valid forms of identification issued by DHSMV: a Florida driver’s license in the name of Yolanda D. Small (No. S540-964-67-7491) and a Florida identification card in the name of Yolanda D. Orr (No. O600-964-57-7490). The driver’s license was issued in March 2006,4 and expires in July 2010; the identification card was issued in August 2002, and expires in July 2007. The birth date listed on the driver’s license is July 9, 1967, whereas the birth date listed on the identification card is July 9, 1957. Respondent testified that her middle name is Daniella, not Denise. She further testified that she has never used the name Yolanda Denise Orr. In response to a request to the state court in Michigan for records relating to Respondent, the Division was provided documentation of multiple traffic offenses committed in Flint, Michigan in 1999 and 2001 by Yolanda Denise Orr, as well as documentation of criminal offenses committed in Michigan by Yolanda Daniella Orr and Yolanda Danielle Orr. The traffic records do not list the defendant’s Social Security number, but the birth date listed in the records matches Respondent’s birth date. Respondent’s testimony that the traffic offenses did not involve her was not persuasive, nor was her claim there must be multiple Yolanda Orr’s in Flint, Michigan, with the same birth date as hers. Respondent admitted to being in Flint, Michigan at the time of the traffic offenses, and she admitted that she drove a Ford vehicle at the time of the ticket that was issued to Yolanda Denise Orr in October 2001 while driving a Ford. Moreover, the Michigan driver’s license number of Yolanda Denise Orr contained in the traffic records -- O600961139544 -- is identical (except for one number) to the Michigan driver’s license number -- O600961135544 -- that Respondent surrendered to DHSMV when she first applied for a Florida driver’s license. The evidence is clear and convincing that the Yolanda Denise Orr referred to in the traffic records is Respondent, and that Respondent failed to disclose that name (and her maiden name, Yolanda Small) in her license application. Third, Respondent only disclosed one criminal offense in response to the question in the application that asked whether she had “ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) . . . .” The criminal offense that Respondent disclosed was, according to the application, a 1987 offense in Louisiana which Respondent “used the wrong social security number” when “filling out [her] financial aid papers for the first time.” There is no evidence that Respondent was prosecuted for such an offense in Louisiana. Respondent was, however, prosecuted in federal court in Michigan in 1993 for using a false SSN on two separate student loan applications. Those offenses were prosecuted as part of an indictment that also included four counts of filing fraudulent tax returns with the Internal Revenue Service and two counts of using a false SSN on tax returns. In February 1995, Respondent pled guilty to one count of filing a fraudulent tax return, one count of using a false SSN on a tax return, and one count of using a false SSN on student loan applications. The other counts of the indictment were dismissed as part of her plea agreement. In September 1995, Respondent was adjudicated guilty of the offenses to which she pled guilty and was sentenced to six months in federal prison, followed by three years of probation. She was also required to pay restitution in the amount of $8,177 to the Internal Revenue Service and restitution in the amount of $2,761 to the U.S. Department of Education. Respondent testified that “the whole reason the [federal] case came about” was that she filed a tax return not knowing that one had already been filed on her behalf by H&R Block; that the investigation into the “double” filing of the tax return led to the charge involving the “student loan application that had the wrong social security number on it”; and that it was her understanding that the offenses related to the student loan application submitted to Grambling State University, not any colleges in Michigan. Respondent’s testimony regarding the circumstances giving rise to the federal offenses was not credible because, among other things, she was charged with filing false tax returns on three separate occasions -- in 1990, 1991, and 1992 - - not just one time. The background check conducted on Respondent based upon the fingerprint card that she submitted as part of her license application identified two additional criminal offenses that Respondent did not disclose in her application. The first undisclosed offense was a 1990 felony retail fraud offense prosecuted in state court in Michigan. Respondent pled guilty to the offense and was sentenced to one year of probation. The record does not reflect the circumstances surrounding the retail fraud offense, but Respondent described it as “basically a petty theft.” The second undisclosed offense was a 1991 bad check charge, which was also prosecuted in state court in Michigan. The case was not resolved until February 2001 because, according to Respondent, it involved a check she wrote prior to leaving for college and she was unaware that that a case was pending against her until she returned to Michigan after college. Respondent was required to disclose criminal traffic offenses in her license applications; she was not required to disclose traffic offenses such as “parking, speeding, inspection, or traffic signal violations.” The traffic records suggest that several of the offenses may have been criminal in nature (e.g., driving with a suspended license), but the evidence was not clear and convincing on that issue.5 Respondent testified that she did not disclose the state court offenses because she did not remember them at the time she submitted her license application. She testified that she considered the federal offenses to be related and that she thought that disclosing one of the offenses was adequate since the other offenses were related and prosecuted together. Respondent’s explanation as to why she did not disclose all of her federal offenses is not entirely unreasonable under the circumstances. The offenses were all prosecuted in a single criminal proceeding and, even though they involved offenses committed in Michigan between 1990 and 1992 (rather than in Louisiana in 1987), they did involve use of an incorrect SSN on a student loan application. Respondent’s explanation as to why she did not disclose the offenses prosecuted in state court was not plausible. It is understandable that Respondent might not recall all of the details of the retail fraud offense since it occurred more than 10 years before the date of her application, but her testimony that she did not even remember the existence of the offense at the time she filled out her application was not credible or reasonable. Respondent’s testimony that she did not remember the bad check offense at the time she filled out her license application was even less credible because the court records related to that offense reflect that the case was not finally resolved until February 2001, which only two years prior to the date of Respondent’s license application. Respondent testified that she was told by a Division employee that she did not need to disclose all of the counts of the federal case because the related offenses would be discovered as part of the background screening based upon the fingerprint card submitted by Respondent. Respondent offered no evidence to corroborate her unpersuasive, self-serving testimony on this point. Respondent testified that she was directed by the same Division employee to provide a supplemental letter to the Division explaining the federal offenses, and that she did so. However, there is no record of what, if anything, Respondent submitted to the Division. Respondent’s application did not go to the Florida Real Estate Commission (Commission) for approval even though a criminal history was disclosed in the application. The Commission policy in effect at the time authorized the Division to approve such applications on a case-by-case basis. The policy did not require an applicant such as Respondent to appear before the Commission, as is the case under current Commission policy. Respondent did not present any evidence of mitigation at the final hearing. However, in her post-hearing filing, she stated, “I am a single mother, and as such, I rely on my real estate business as my only source of income.”
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order that: finds Respondent guilty of violating Section 475.25(1)(m), Florida Statutes (Count I of the Administrative Complaint); finds Respondent guilty of violating Florida Administrative Code Rule 61J2-2.027(2) and, hence, Section 475.25(1)(e), Florida Statutes (Count II of the Administrative Complaint); revokes Respondent’s license; and imposes an administrative fine of $1,000 or the Division’s investigative costs, whichever is less. DONE AND ENTERED this 19th day of February, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of February, 2007.
The Issue The issues to be determined are whether Respondent violated sections 475.25(1)(e), 475.42(1)(b), and 475.42(1)(d), Florida Statutes (2011), and Florida Administrative Code Rule 61J2- 14.009, as alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of the real estate industry in the state of Florida, pursuant to section 20.165 and chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate having been issued license number 3101946. During the time relevant to this case, Respondent was a sales associate affiliated with Bahia Real Estate ("Bahia"), a brokerage company owned by Raul and Ricardo Aleman, with offices located in Miami, Orlando, and Tampa, Florida. Respondent was employed in Bahia's Miami location. In 2010, Respondent acted as a sales associate on behalf of Michael Perricone for a real estate transaction involving the purchase of a condominium in the Blue Lagoon Towers ("Blue Lagoon") in Miami which was purchased as an investment. Mr. Perricone's sister, Francesca Palmeri, and her husband, Santo Palmeri, were present at the closing where they met Respondent for the first and only time. During the closing, which lasted approximately one hour, the Palmeris indicated to Respondent that they would be interested in making a similar purchase of investment property if another comparable condominium unit became available at Blue Lagoon. The Palmeris had no further interaction with Respondent until he contacted them at their home in Pueblo, Colorado, in 2011 to advise them of the availability of a condominium for sale at Blue Lagoon. On or about October 6, 2011, Respondent faxed a partially completed Bahia form "'AS IS' Residential Contract for Sale and Purchase" to Mrs. Palmeri for the Palmeris to use in making an offer on a condominium unit located at 5077 Northwest Seventh Street, Miami, Florida. Prior to forwarding the document to Mrs. Palmeri, Respondent wrote on the form the property description, the escrow agent name and address, the initial escrow deposit amount and additional deposit, the time for acceptance, the closing date, and listed himself as the "Cooperating Sales Associate" with "Bahia Realty Group, LLC." The Palmeris decided to offer a $125,000.00 purchase price. Respondent directed Mrs. Palmeri to complete the contract and provide a ten percent escrow deposit. Mrs. Palmeri entered a purchase price of $125,000.00, initialed each page, and signed the form as "Buyer." Respondent provided Mrs. Palmeri with instructions on how to wire the funds for the escrow deposit. On October 7, 2011, Mr. Palmeri wired $12,000.00 to J.P. Morgan Chase, which was then deposited in an account for Bonaventure Enterprises, LLC ("Bonaventure").1/ The Palmeris had no knowledge of Bonaventure, but, based upon the representations of Respondent, they understood the money they were asked to wire to the J.P. Morgan Chase account of Bonaventure was an escrow deposit for the property they intended to purchase at Blue Lagoon. The Palmeris had no discussion with Respondent regarding the reason for sending the escrow deposit to Bonaventure. They assumed that Bonaventure was somehow related to the seller or its title company. The condominium unit in question was bank owned; however, the Palmeris were not informed of this. No evidence was presented that Respondent had an ownership interest in Bonaventure. However, Bonaventure is owned by Respondent's brother and sister-in-law. At all times material hereto, Respondent was the managing member of Bonaventure. Bonaventure is not a licensed real estate broker. Bahia does not maintain an escrow account, and its sales associates are authorized to use title companies of their choice for receipt of escrow deposits. Respondent was aware that he was unable to accept the escrow deposit of the Palmeris in his own name, because, as a licensed real estate sales associate, he is prohibited from receiving the money associated with a real estate transaction in the name of anyone other than his broker or employer. In fact, Respondent was disciplined in 2010 for a similar violation.2/ Respondent claims that the Palmeris entrusted him with their $12,000.00 to hold for possible investments, not necessarily related to real estate transaction, and he was doing it as a favor for them as "friends." Respondent contradicted himself by stating his intention in directing the Palmeris to deposit their money into the Bonaventure account was to help them have cash on hand in Florida in order to meet the Blue Lagoon condominium seller's requirements to make the escrow deposit with the seller's title company within 24 hours after an offer was accepted. The Palmeris had no knowledge of the seller's unique restrictions on the escrow money. Further, Respondent's asserted motive in requesting the $12,000.00 to have cash on hand in Florida is undermined by the fact that, if the Palmeris could wire $12,000.00 to Bonaventure's bank account, they could also wire the funds directly to a title company chosen by the selling bank after acceptance of their offer. Shortly after returning the contract to Respondent and sending the escrow deposit, Mrs. Palmeri discussed increasing the purchase price by $1,000.00 for a total of $126,000.00. Based upon the language of the proposed contract, the Palmeris expected a response to their offer within 24 hours. Immediately thereafter, Respondent told the Palmeris that they were "in negotiations." However, almost a month passed before they heard from Respondent regarding the status of the purchase of the condominium. On or about November 4, 2011, Respondent contacted Mrs. Palmeri and stated that he had "good news." He indicated that the seller would be willing to sell the property for a price of $129,500.00. According to Respondent, the seller requested documentation from the Palmeris' bank indicating their ability to pay. Mrs. Palmeri indicated that this was not an acceptable counter-offer. Respondent suggested that he could negotiate a sales price of $129,000.00, but he needed the Palmeris to send an additional $9,000.00 to put into escrow. Mrs. Palmeri told Respondent that she was no longer interested in the property because their maximum offer was $126,000.00. During the same conversation, Mrs. Palmeri asked for the return of her deposit. Respondent expressed agitation that she was retreating from the possible purchase because he had done "so much work." Respondent clearly anticipated he would receive a commission if the deal was consummated. The Palmeris did not get an immediate return of their escrow deposit. Mrs. Palmeri called Respondent repeatedly and received no answer. She also sent an e-mail to J.P. Morgan Chase trying to find out the status of the deposit and received no reply. Mrs. Palmeri again attempted to contact Respondent on November 18, 2011, and left him a message that he needed to call her regarding the deposit. After receiving no response, she contacted Bahia and spoke with Ricardo Aleman. Mrs. Palmeri explained to Aleman that she had signed a real estate contract with Respondent on October 6, 2011. She no longer wanted to pursue this real estate transaction and wanted the escrow deposit returned. Aleman was unaware that Respondent was negotiating a real estate transaction for the Palmeris or had accepted their deposit money. Aleman contacted Respondent who confirmed by email that the Palmeris were no longer interested in purchasing the condominium at Blue Lagoon. Respondent wrote, "After a month of hard work . . . the client decided to drop. It was a little bit problematic. I lost time and money because the offer was already accepted and she had no reason to negotiate." Respondent assured Aleman he would return the deposit to the Palmeris. In accordance with Bahia's policies and procedures, its sales associates are required to complete a deposit form at the time of receipt of funds for escrow. No such receipt was received by Bahia from Respondent with regard to the transaction involving the Palmeris. However, it was not unusual for Bahia not to receive information regarding real estate transactions conducted by their sales associates until the time of closing. After discussing the matter with Aleman, Respondent advised the Palmeris that he could return their money within ten days. Respondent advised Mrs. Palmeri that he would send her two checks for the total amount--one check which she could cash immediately and a second check which would be postdated. In order to get a return of their deposit, Mrs. Palmeri agreed. On or about November 28, 2011, the Palmeris received two checks, each in the amount of $6,000.00, including one postdated for December 16, 2011. These checks were written on the account of Bonaventure and signed by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order imposing on Alfonso Miranda an administrative fine in the amount of $6,000.00 and suspending the real estate sales associate license of Alfonso Miranda for a period of two years. DONE AND ENTERED this 2nd day of April, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 2nd day of April, 2014.
The Issue Whether the registration of the Respondent, Betty Lou Haber, license #0034988 should be revoked or suspended, or whether Respondent should be otherwise disciplined.
Findings Of Fact An administrative complaint was filed by the Petitioner, Florida Real Estate Commission, on September 29, 1978, seeking to revoke or suspend or otherwise discipline Respondent Haber. The administrative complaint charged that the licensee was presently confined in a state prison. Respondent requested an administrative hearing. A stipulation was entered by Barry A. Cohen, Esquire, the attorney for Respondent, confirming that Respondent Haber was and had been continuously confined in the Broward Correctional Institution since August 16, 1977. Said stipulation is attached hereto and made a part hereof. Prior to the hearing a letter was received by the Petitioner, Florida Real Estate Commission, advising the Petitioner that Respondent did not intend to proceed to hearing and requesting Petitioner to close the matter. The Division of Administrative Hearings was not so notified. A copy of said letter is attached hereto and made a part hereof. Petitioner presented the aforesaid stipulation and aforesaid letter and a witness at the hearing. The witness, Martha Iglesias, Inmate Records Supervisor for the Broward Correctional Institution, testified that Respondent Haber was an inmate of said institution, having been found guilty by a jury of First Degree Murder in Case #75-518 in the Circuit Court in and for Hillsborough County, Florida, and sentenced to be imprisoned in the State Penitentiary for a period of her natural life.
Recommendation Revoke the non-active salesman license held by the Respondent, Betty Lou Haber. DONE and ORDERED this 18TH day of April, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Manuel E. Oliver, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barry A. Cohen, Esquire 100 Twiggs Street, Suite 4000 Tampa, Florida 33602 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
The Issue The issue is whether Respondent provided the Florida Real Estate Commission with false information in his application to take the broker's examination, in violation of Sections 475.25(1)(b)and (l), Florida Statutes, or whether he is guilty of misrepresentation, false promises, or dishonest dealing by trick, scheme or device in any business transaction, in violation of Section 457.25(1)(b), and, if so, what penalty should be imposed.
Findings Of Fact Respondent became a licensed real estate salesperson on September 27, 1993. On this date, he placed his license with Brokers Realty of Naples, Inc. Respondent has not pursued the real estate profession as his primary business. He has not bought or sold any real estate under his license and has not put any time into it. Respondent's profession is the ministry. He as been a minister for 20 years and has been the senior pastor of Gulf Shore Community Church for five years. Respondent is a member of the Christian Missionary Alliance. In June 1993, Respondent was assigned the responsibility of forming a church in Naples. Respondent's wife was more interested than Respondent in pursuing a real estate career, and Respondent took the course with her more for moral support. While in class, they met a broker with whom they agreed they would place their salesperson's licenses. After receiving their salesperson's licenses, Respondent and his wife placed their licenses under the broker, as they had agreed. However, the broker closed her office after a couple of months. In the meantime, Respondent's wife had met David Bayer of Century 21 Old Naples Realty, Inc. (Century 21). In November 1993, she decided to place her license with Century Respondent agreed that he would do the same. Busy with starting a church, Respondent did not attend to the details of transferring his license. He believed that someone else was doing this for him, but no one did. Respondent's inattention allowed his licensing status to lapse. Unknown to Respondent at the time, his salesperson's license became invalid on November 16, 1993, for lack of an employing broker, according to Petitioner's records. Respondent's license remained invalid until March 31, 1995, when it became inactive, according to Petitioner's records. Respondent's wife later decided to pursue her broker's license. Again for moral support and to help her with preparing for the examination, Respondent agreed that he would also apply for his broker's license. In attempting to obtain the necessary paperwork to take the broker's examination, Respondent discovered in late August 1995 that Petitioner's records had not been updated to reflect the transfer of his license to Century 21. It appears that Respondent was not yet aware of the other above-described impediments to licensure. Trying to update Petitioner's records, Respondent submitted the two forms that are the subject of the present disciplinary proceeding. The first form was a Request for License or Change of Status, which Respondent faxed to Petitioner. Respondent completed the top section of this form, which is to be completed by the licensee. He signed it beside a typed-in date of December 30, 1993, which was the effective date of the transfer of his license to Century 21. Petitioner has not objected to anything in this section. The next section is to be completed by the broker/employer or nonlicensed owner/employer. At the bottom of this section are the words, "Broker or Non-Licensed Owner Sign Here:". Respondent hand-wrote Mr. Bayer's name in what he described as printing, but, on a blurry fax, could be mistaken for a signature for someone unfamiliar with Mr. Bayer's signature. Beside Mr. Bayer's name "December 30, 1993" was typed in. Petitioner has objected to Respondent's undisclosed signing of Mr. Bayer's name on this form. On September 11, 1995, Petitioner received another Request for License or Change of Status form. The bottom section of this form was signed by Mr. Bayer at the bottom in script considerably different from that of the earlier form. The top section of this form is filled out exactly as the earlier form, with Respondent's signature beside the typed-in date of "December 30, 1993." Petitioner objected to the typed-in date because it was nearly two years prior to the date that the form was filed. As to the second objection, there is nothing in the record to suggest that Respondent was trying to file paperwork with Petitioner in 1995 that was misdated so as to suggest that it was filed two years earlier. The 1993 date was the effective date of the license transfer. The form does not state "Date Signed"--only "Date." There is no place on the form to show an earlier effective date. Not only was Respondent not trying to mislead Petitioner with the date on the form, but it is almost impossible to find that the date was misleading. There is no way to conceal that the forms were filed in September 1995, not December 1993. Respondent even sent the second form certified, return receipt requested, so as to document further that the form was sent in 1995. In the absence of another place on the form to show the effective date of the transfer, Respondent's use of the date line to show the effective date was reasonable and not misleading. Thus, Respondent did not intend to mislead with this date entry, and no one could reasonably have claimed to have been misled by this date entry. Interestingly, Petitioner did not claim that Respondent's first form, which had a similar date entry, was misleading as to the date. As to the first form, Petitioner's objection is more substantial: Respondent signed Mr. Bayer's name without disclosing that he was doing so. Mr. Bayer testified that he would have signed the form in December 1993 or September 1995 because Respondent in fact had transferred his license to Century 21 in December 1993. The record does not establish that Mr. Bayer authorized Respondent to sign the form before he did so, but the record clearly established that he ratified the signature. A few days after the first form was faxed, Mr. Bayer signed a form and sent it to Petitioner. Clearly, Respondent's handling of the signature of Mr. Bayer does not rise to misrepresentation, false promises, or dishonest dealing by trick, scheme, or device. There was not fraudulent intent. The question is closer as to whether Respondent's handling of the signature rises to the level of making or filing a false report or record which the licensee knows to be false. Given the standard of evidence imposed upon Petitioner, there is considerable doubt whether the factual basis supporting a finding that Respondent signed as the agent of Mr. Bayer, who immediately ratified the act to eliminate any doubt as to its authorization, is sufficient to find that Petitioner has proved by clear and convincing evidence that Respondent knowingly made or filed a false report or record. However, the parties stipulated to a violation of at least one count, and the administrative law judge accepted the stipulation.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order either dismissing the Administrative Complaint or finding Respondent guilty of knowingly making or filing a false record or report and issuing a notice of noncompliance. DONE AND ENTERED this 27th day of October, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1998. COPIES FURNISHED: Steven D. Fieldman, Chief Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jeanette Martinez Porter, Wright, Morris & Arthur 4501 Tamiami Trail North, Suite 400 Naples, Florida 34103 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The central issue in this case is whether Respondent's yacht and ship salesman's license should be disciplined for the reasons set forth in the notice of intent to revoke license dated June 14, 1994.
Findings Of Fact The Department is the state agency charged with the responsibility to regulate persons pursuant to Chapter 326, Florida Statutes. On April 30, 1993, the Department received an application for a yacht and ship broker or salesman license (the application) submitted by Respondent, Thomas I. Davis, Jr. The application provided, in pertinent part: LICENSES AND CERTIFICATES: Have you now or have you ever been licensed or certified in any other profession such as real estate, insurance, or securities in Florida or any other state? Yes No If you answered yes, please describe: Profession License # First Obtained Status of License (a)Has any license, certification, registration or permit to practice any regulated profession or occupation been revoked, annulled or suspended in this or any other state, or is any proceeding now pending? Yes No (b) Have you ever resigned or withdrawn from, or surrendered any license, registration or permit to practice any regulated profession, occupation or vocation which such charges were pending? Yes No If your answer to questions (a) or (b) is Yes, attach a complete, signed statement giving the name and address of the officer, board, commission, court or governmental agency or department before whom the matter was, or is now, pending and give the nature of the charges and relate the facts. In response to the application questions identified above, Respondent entered the following answers: "No" as to questions 11, 12(a), and 12(b). As a result of the foregoing, Respondent was issued a yacht and ship salesman's license on May 10, 1993. Thereafter, the Department learned that Respondent had been censured by the NASD. In a decision entered by that body accepting Respondent's offer of settlement, Respondent was given a censure, a fine of $20,000.00, and a suspension in all capacities from association with any member for a period of two (2) years with the requirement that at the conclusion of such suspension that he requalify by examination for any and all licenses with the Association. The censure also provided a specific payment plan for the $20,000 fine which was assessed. To date, Respondent has not complied with that provision of the settlement. From 1973 through 1991, Respondent was registered with several different firms pursuant to Chapter 517, Florida Statutes. Additionally, Respondent has been licensed to sell securities in the following states: California, Colorado, Connecticut, Delaware, Idaho, Illinois, Louisiana, Maine, Maryland, Nevada, and New York. Respondent has also been licensed in Washington, D.C. and Puerto Rico. Respondent has been a licensed stock broker with the Securities and Exchange Commission since 1971. Respondent answered questions 11 and 12 (a) and (b) falsely. Respondent knew he was licensed to sell securities and knew of the sanction from the NASD at all times material to the entry of the answers. Pursuant to Rule 61B-60.003, when the Department receives an application for licensure which is in the acceptable form, it is required to issue a temporary license. Had the Respondent correctly answered questions 11 and 12 on the application, the Department would not have issued Respondent's license.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, enter a final order dismissing Respondent's challenge to the notice of intent and revoking his license. DONE AND RECOMMENDED this 13th day of March, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 13th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4258 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1 through 9, 11, 13, and 15 through 17 are accepted. Paragraph 10 is rejected as repetitive. Except as to findings reached above, paragraphs 12 and 14 are rejected as irrelevant. It is found that Respondent falsely answered question 11. Rulings on the proposed findings of fact submitted by the Respondent: Respondent's proposed findings of fact are rejected as they do not comply with Rule 60Q-2.031(3), Florida Administrative Code. However, to the extent findings do not conflict with the findings of fact above, they have been accepted. Such proposed findings of fact are paragraphs: 1, 7 and 8. The remaining paragraphs are rejected as they are not supported by the record cited (none), irrelevant, argument, or contrary to the weight of the credible evidence. COPIES FURNISHED: Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 E. Harper Field Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 David M. Goldstein LAW OFFICE OF DAVID M. GOLDSTEIN 100 S.E. 2nd Street Suite 2750 International Place Miami, Florida 33131
