The Issue Whether Petitioner is entitled to costs and reasonable attorney’s fees pursuant to section 106.265(6), Florida Statutes (2016),1/ and Florida Administrative Code Rule 2B-1.0045.
Findings Of Fact Linda Yates is an elected member of the city commission for North Port, Florida. Ms. Yates was first elected to the North Port city commission in 2010, and was re-elected to the same office in 2014. On August 22, 2016, Kathy Schure, who at all times relevant hereto was a resident of the City of North Port, filed a Complaint with the Elections Commission alleging, in material part, the following: Sunshine Law and Ethics Violations by City of North Port Commissioner Linda M. Yates covering the period June 1, 2012 to July 20, 2016. * * * This writing is to bring a formal complaint and a request for investigation into illegal and unethical activity of Commissioner Linda M. Yates through the use [of] personal email servers, Tor Browsers, relay internet list servers, and intermediaries to knowingly violate FL 286 – Open Meetings Law and FL 119 – Florida Public Records Law. Additionally, Commissioner Jacqueline Moore appears to have participated in “secret meetings and communications” with Commissioner Yates as recipient of emails and texts directly and through intermediaries. On the complaint form, Ms. Schure identified Ms. Yates as a “candidate” for the city commission for the City of North Port. Although Ms. Yates was a member of the city commission on August 22, 2016, she was not a candidate for this office as noted by Ms. Schure in the Complaint. The complaint form used by Ms. Schure to assert her allegations against Ms. Yates directs the complainant (Ms. Schure) to “[p]lease list the provisions The Florida Elections Code that you believe the person named above may have violated [and that] [t]he Commission has jurisdiction only to investigation [sic] . . . Chapter 104, Chapter 106, and Section 105.071, Florida Statutes.” The Complaint filed by Ms. Schure makes no reference to chapter 104, chapter 106 or section 105.071. The Complaint does, however, reference chapters 286 and 119, Florida Statutes, and case law dealing with Florida’s open government laws.2/ By correspondence dated August 25, 2016, the Elections Commission informed Ms. Yates that Ms. Schure filed a complaint against her and that she had “14 days after receipt of the complaint to file an initial response,” and that the Elections Commission would “not determine the legal sufficiency of the complaint” until expiration of the referenced 14-day response period. On August 28, 2016, Ms. Yates hired Douglas A. Daniels, Esquire, an attorney in good standing with The Florida Bar, to represent her before the Elections Commission. Mr. Daniels charged Ms. Yates $400.00 per hour for work related to the Complaint filed by Ms. Schure. By correspondence dated October 20, 2016, the Elections Commission informed Ms. Schure of the following: The Florida Elections Commission has received your complaint alleging violations of Florida’s election laws. I have reviewed your complaint and find it to be legally insufficient. This complaint was received by the Florida Elections Commission on August 22, 2016. The cover page, which was an FEC complaint form, named Linda Yates as the Respondent. Attached to the complaint form was [a] second complaint form indicating a different Respondent (Jacqueline Moore), as well as a narrative of the allegations against Ms. Yates. You did not indicate anywhere in the documents that you intended to file two complaints, so the Commission accepted the entire document as a complaint against Respondent Linda Yates. The essential allegations of your complaint are that Respondent violated Florida’s open meetings and public records laws, Chapter 286 and 119, Florida Statutes, respectively. The jurisdiction of the Florida Elections Commission is limited to alleged violations of Chapter 104 and 106, Florida Statutes. As such, I find your complaint to be legally insufficient. If you have additional information to correct the stated grounds(s) of insufficiency, please submit it within 14 days of the date of this letter. If we do not receive additional information that corrects the stated grounds of insufficiency, this case will be closed. For your convenience, enclosed is a form for your use in submitting additional information. If you submit an additional statement containing facts, you must sign the statement and have your signature notarized. In addition, any additional facts you submit to the Commission must be based on either personal information or information other than hearsay. Ms. Schure offered no additional information in support of her allegations and the Elections Commission, by correspondence dated December 30, 2016, informed Ms. Yates that the Complaint was dismissed due to legal insufficiency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order denying the Petition for Costs and Attorney’s Fees. DONE AND ENTERED this 7th day of August, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 7th day of August, 2017.
The Issue The issue in this proceeding is whether Petitioner, Daniel James Bradley's, application for licensure as a resident life including variable annuity and health insurance agent should be denied for the reasons stated in Respondent, Department of Financial Services', Notice of Denial dated April 26, 2004.
Findings Of Fact Respondent is the state agency responsible for the licensure of insurance agents in the State of Florida pursuant to the authority granted in Chapter 626, Florida Statutes (2004). On January 3, 2004, Mr. Bradley filed an on-line application with the Department seeking licensure as a resident life including variable annuity and health insurance agent. The on-line application form included the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered?. Mr. Bradley answered "No," which was a false answer. The Department conducted an internal investigation during the application process, and the criminal history check obtained by the Department revealed that in 1995 Mr. Bradley was charged with two counts of Obtaining Property for Worthless Check(s) (one check in an amount over $150 and one check in an amount less than $150). On May 31, 1995, in State of Florida v. Daniel J. Bradley, Case No. 94-2473F, in the Circuit Court in and for Sarasota County, Florida, Mr. Bradley appeared before Judge Robert B. Bennett and entered a plea of nolo contendere to the charge of Obtaining Property For a Worthless Check (over $150), which is a third degree felony in violation of Subsection 832.05(4)(a), Florida Statutes (1995). Judge Bennett withheld adjudication of guilt and imposed a fine and court cost in the amount of $250 that was paid by Mr. Bradley. Mr. Bradley testified that during the 1995 period, he was in the midst of a domestic dispute that was finalized in a dissolution of marriage, when he wrote two checks to Sears. He explained further that at the time the checks were written, sufficient funds were in the joint checking account at the bank, but his then-estranged wife withdrew all bank funds without his knowledge or consent resulting in the overdrafts. Explaining his "no" response to the criminal history question on his on-line licensure application form, Mr. Bradley asserted a lack of fully understanding the (intended) meaning of the term "punishable by imprisonment of one (1) year or more." Mr. Bradley testified that he "did not know, and had no reason to know, [or be concerned] that the worthless check charge to which he pled nolo contendere was punishable by imprisonment of one year or more," even though he knew the crime was a third- degree felony. Continuing, Mr. Bradley explained in detail his ongoing domestic entanglement then, as well as his financial obligations now. Mr. Bradley explained that he has undertaken the obligation to care for his parent(s) and his need for income to pay for his children's education. In effect, Mr. Bradley offered an "excusable neglect and a lack of knowledge" explanation for the "no" answer on his on-line licensure application form. Mr. Bradley earnestly insisted that it was not his "intent" to mislead, conceal, or lie about the criminal background question. He explained in detail that he "did not understand nor was he advised by his attorney, Susan Maulucci, or the Sarasota County Circuit Court that any offense that he had been accused or pled guilty to was punishable by a term of incarceration of one or more years." In conclusion, Mr. Bradley stated, "[I]f I had previous knowledge of such information I would never have answered incorrectly. If the question had addressed a felony charge punishable by one or more years, I would have certainly answered yes based on the assumption of a felony being the subject of the question not the period of punishment." It appears from his post-hearing submittal that he was under the impression that the term "felony" is missing from the question and that by the omission, he was somehow misled. The blame-shifting inference Mr. Bradley sought is that it was the omission by the Department to include the word "felony" in its application form that misled him. This suggestion is rejected. Mr. Bradley's explanation becomes even more suspect when one considers: his knowledge and experience as a military police officer; at the time he signed the plea document, it was clear that he was facing up to five years in prison for the crime(s) with which he was charged; when arrested on both misdemeanor and felony check charges, he spent the night in jail; and finally, he signed two bonds, one for the misdemeanor charge and a separate bond for the felony charge before he was released from jail. Mr. Bradley was individually and personally responsible for the accuracy of his answer. His misrepresentation of the truth by answering "no," if not intentional, supports the inference of a reckless or careless disregard as to the truth of the matter asserted. At the time he answered "no" on his application form, Mr. Bradley knew, without a doubt, that he had pled "no contest" to a felony worthless check charge in the Sarasota County Circuit Court in Florida. During his court appearance, he was identified and was personally informed by the presiding judge that he faced a felony charge, and he agreed to enter his plea of nolo contendere to that felony charge. On May 31, 1995, in open court, Mr. Bradley signed an "Acknowledgement and Waiver of Rights" form that contained in paragraph 1, the following statement: "I am pleading to the charge of worthless check (2 counts), and I understand the maximum penalty provided by law is five (5) years prison." (Emphasis added.) After the court accepted his plea, sentenced him, and imposed court costs, Mr. Bradley signed the court's acknowledgement reflecting the disposition of the proceeding. Only after completion of the foregone process was Mr. Bradley free to leave the courtroom.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order dismissing the Petition herein filed by Petitioner, without prejudice, for Petitioner to reapply as provided in the Florida Administrative Code Rule 69B-211.042(4). DONE AND ENTERED this 31st day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2004.
Findings Of Fact At all times material to this proceeding, Respondent Favret held public accounting license number 0001424 with the State of Florida. Respondent's license to practice public accounting reverted to inactive status by operation of law on January 1, 1980, due to his failure to demonstrate to the Department of Professional Regulation and the Board of Accountancy compliance with the continuing education requirements imposed on licensed public accountants pursuant to Section 473.312, Florida Statutes, and Chapter 21A-33, Florida Administrative Code. The Respondent was aware that his license reverted to inactive status on January 1, 1980, due to his failure to meet professional continuing education requirements. Respondent chose not to comply with the continuing education requirements because he did not wish to maintain an active license and did not feel that formal continuing education was of benefit to him. Between January 1, 1980, and August, 1981, Respondent continued to perform tax advisory services for approximately twenty-five (25 ) clients. His services included the preparation of personal federal income tax returns and all necessary supporting tax schedules. Respondent explained the tax services he provided as including the accumulation of raw data brought in by a client in categories, summarizing the information and then preparing the necessary tax forms. Although the Respondent signed all the tax forms as the preparer, he ceased using the professional designation, "C.P.A." when he received formal notice of the inactive status of his license. To prepare the income tax returns for his clients, knowledge of the present tax laws and regulations, tax accounting and arithmetic were utilized by the Respondent in the tax advisory and preparation services for which he received compensation. The preparation of personal income tax returns involves the use of accounting skills which includes the ability to make a determination of what items need to be recognized and included7 the reasonableness of the items, the proper categorization of the items and whether to apply certain accounting functions such as allocation to the items. 1/
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about October 25, 1988, a Felony Complaint was filed in Municipal Court, Mt. San Jacinto Judicial District, Riverside County, California (Case No. 884467) charging that Petitioner had committed a violation of Section 278.5, Subdivision (b) of the Penal Code, a felony, in that on or about September 1, 1988, in the County of Riverside, State of California, she, being a person having physical custody of a child pursuant to an order, judgment, and decree of court which granted to another person [her former husband] rights of physical custody and visitation, did willfully and unlawfully, with the intent to deprive such person of such rights to custody and visitation, detain, conceal, take, and entice away such child, to wit, JAMES H. RODEN [her son, who, according to court documents, was born on April 22, 1989]. An Amended Felony Complaint charging Petitioner with the same felony offense was filed on or about April 8, 1991. Subsequently, there were plea negotiations which resulted in Petitioner entering a guilty plea to a reduced, misdemeanor charge, which the court accepted. In June or July of 1993, Petitioner submitted to the Department an application for licensure as a general lines insurance agent. Among the questions on the application form that Petitioner filled out were the following: Have you ever been charged with or convicted of or pleaded guilty or no contest to a crime involving moral turpitude (yes or no), or a felony (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or con- viction has been entered? (yes or no) If yes, give date(s): What was the crime? Where and when were you charged? Did you plead guilty or nolo contendre? Were you convicted? Was adjudication withheld? Please provide a brief description of the nature of the offense charged If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. On this portion of the form, Petitioner wrote "no" in each of the first three blank spaces and made no further entries, notwithstanding that several years prior thereto, in Mt. San Jacinto Judicial District Municipal Court Case No. 884467, she had indeed been charged with (albeit not found guilty or convicted of) a felony punishable by imprisonment of one year or more. Petitioner, however, did not intend to misrepresent or conceal any information or to otherwise deceive the Department concerning her past. She mistakenly believed that, in this portion of the form, the Department was inquiring only about criminal offenses involving "moral turpitude." After looking up the term "moral turpitude" in the dictionary, she determined that the crime with which she was charged in Mt. San Jacinto Judicial District Municipal Court Case No. 884467 was not one involving "moral turpitude" inasmuch as her actions in abducting her son were intended to protect the child and were not in any way "wicked." After receiving Petitioner's application, the Department conducted a records check which revealed the felony charge that had been filed against Petitioner in Mt. San Jacinto Judicial District Municipal Court Case No. 884467. The Department thereupon advised Petitioner of its discovery and asked her to supply it with certain documnents that were filed in the case. Petitioner complied with the Department's request.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order announcing its intention to continue to process Petitioner's application for licensure as a general lines insurance agent rather than denying the application on the ground stated in the Department's January 26, 1994, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of September, 1994. STUART M. LERNER 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 September, 1994. COPIES FURNISHED: Lisa Beth Weiner 572 Northeast 31st Street Pompano Beach, Florida 33064 James A. Bossart, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact ae On June 11, 2009, the staff of the Commission issued a Staff Recommendation, recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. 2. On September 1, 2009, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations: Count 1: Respondent violated Section 106.07(2)(b)1., Florida Statutes, when the Respondent failed to file with the candidate’s filing officer an addendum to the candidate’s 2008 Q1 incomplete campaign report due on April 10, 2008, after receiving notice from the filing officer. 3. On September 3, 2009, the Respondent was served by certified mail with a copy of the Order of Probable Cause. 4. The Respondent and the staff stipulate to the following facts: C_0 045 (12/08) 1 Consent Order at its next available meeting. 10. | The Respondent voluntarily waives the right to any further proceedings under Chapters 104, 106, and 120, Florida Statutes, and the right to appeal the Consent Order. 11. This Consent Order is enforceable under Sections 106.265 and 120.69, Florida Statutes. The Respondent expressly waives any venue privileges and agrees that if enforcement of this Consent Order is necessary, venue shall be in Leon County, Florida, and Respondent shall be responsible for all fees and costs associated with enforcement. 12. If the Commission does not receive the signed Consent Order within 20 days of the date Respondent receives this order, the staff withdraws this offer of settlement and will proceed with the case. 13. Payment of the civil penalty is a condition precedent to the Commission’s consideration of the Consent Order. PENALTY WHEREFORE, based upon the foregoing facts and conclusions of law, the Commission finds that the Respondent has violated Section 106.07(2)(b)1., Florida Statutes, and imposes a fine of $500 for the violation. Therefore it is ORDERED that the Respondent shall remit to the Commission a civil penalty in the amount of $500 inclusive of fees’ and costs. The civil penalty shall be paid to the Florida Elections Commission, 107 W. Gaines Street, Collins Building, Suite 224, Tallahassee, Florida, 32399-1050, The Respondent hereby agrees and consents to the terms of this Order on , 2009. C_o 045 (12/08) 3 a. The Respondent was a candidate for the Florida House of Representatives- District 115 in the 2008 election. b. Section 106.07(2)(b)1., Florida Statutes, requires a candidate to file an addendum to an incomplete campaign report within three days after receiving notice from the filing officer. c. Respondent filed his 2008 QI campaign treasurer’s report listing campaign contributions and expenditures between January 1, 2008 and March 31, 2008 on April 11, 2008. The report was incomplete, and the filing officer requested the Respondent to file an addendum to his report d. Respondent did not file an addendum to his 2008 QI report within three days.
The Issue The issue in this case is whether the allegations set forth in the Amended Administrative Complaint filed by the Department of Health (Petitioner), against Santana Lashonda Williams, L.P.N. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of nursing. At all times material to this case, the Respondent was licensed as a practical nurse in the State of Florida, holding license no. PN 5195962, with an address of record at 7255 Bucks Ford Drive, Riverview, Florida 33578. Between July 2012 and June 2013, the Respondent was employed as a licensed practical nurse by Armor Correctional Health Services, Inc. (Armor). At all times material to this case, persons employed by Armor, including the Respondent, provided health services to "patients" (inmates) incarcerated in detention facilities operated by the Hillsborough County Sheriff's Office (HCSO), including the Falkenburg Road Jail. The HCSO utilizes a computerized jail management system ("JAMS") that, in relevant part, stores personal and medical data for each inmate incarcerated in the HCSO detention facilities. Personal data stored in JAMS includes names, birthdates and social security numbers. The HCSO treats inmate social security numbers as confidential and private. The names and birthdates of inmates incarcerated in HCSO detention facilities are published online and are available to the public through the HCSO website. Medical data stored in JAMS is confidential and includes screening information obtained by a registered nurse upon an inmate's initial arrival to a detention facility, as well as information about inmate health issues that are presented during incarceration. Licensed practical nurses working at the Falkenburg Road Jail can access JAMS through computer terminals at nursing stations placed in various locations in the facility. At all times material to this case, the Respondent had access to JAMS and to the relevant data contained therein. In May 2013, Anthony Collins, an undercover detective employed by the HCSO, engaged in an investigation of a tax fraud scheme based on information received from a confidential informant. Detective Collins testified persuasively at the hearing, and his testimony is fully credited. The scheme involved using the personal information (names, birthdates and social security numbers) of inmates incarcerated in HCSO detention facilities to file fraudulent federal tax returns and obtain refunds. On May 30, 2013, Detective Collins met with the Respondent's father. During the meeting, the Respondent's father showed Detective Collins a handwritten list of names, birthdates and apparent social security numbers (List #1). The reverse side of the document was a blank form titled, "Armor Correctional Health Services, Inc., Infirmary Shift Report." During the May 30 meeting, Detective Collins learned that the Respondent was employed at the Falkenburg Road Jail. With Detective Collins present, the Respondent's father telephoned someone he represented as the Respondent to discuss List #1 and its delivery to Detective Collins. Detective Collins believed the Respondent to be the source of List #1. HCSO Corporal Kristy Udugawa testified at the hearing that during the course of the undercover operation, she was directed to determine whether List #1 revealed personal data of inmates incarcerated in the Falkenburg Road Jail. Corporal Udugawa interviewed nine inmates and determined that List #1 disclosed their names, birthdates and social security numbers. Corporal Udugawa's testimony is fully credited. At the hearing, a witness who had been incarcerated in the Falkenburg Road Jail during the relevant period testified credibly that his name, birthdate, and social security number were on List #1, and that he had not given consent for the data to be used in filing a fraudulent tax return. The May 30 meeting ended with an agreement between Detective Collins and the Respondent's father to proceed with the scheme. On May 31, 2013, Detective Collins met with the Respondent after a series of telephone calls between Detective Collins, the Respondent, and the Respondent's father. Detective Collins had been directed to bring a computer and related equipment to the meeting so as to begin filing tax returns, and he complied with the instructions. During the May 31 meeting, the Respondent told Detective Collins that on a weekly basis, she would provide personal information for 20 to 30 individuals that could be used to file tax returns and that the proceeds of the tax refunds would be divided evenly between the Respondent and Detective Collins. She directed him to obtain a prepaid cell phone for use in arranging the weekly meeting. During the May 31 meeting, the Respondent advised Detective Collins that she had access to personal information for about 3,400 people. The Falkenburg Road Jail houses about 3,400 inmates. During the May 31 meeting, Detective Collins paid $500 to the Respondent, which she accepted. The Respondent provided Detective Collins a list of six handwritten names (List #2), with birthdates and apparent social security numbers. By deposition, a witness who had been incarcerated at the Falkenburg Road Jail during the relevant period testified that List #2 disclosed his name, birthdate, and social security number, and that he had not given consent for the data to be used in filing a fraudulent tax return. The testimony is credited. The interaction between the Respondent and Detective Collins was recorded through the use of electronic audio and video surveillance equipment. At the conclusion of the May 31 meeting, the Respondent was arrested by HCSO officers who had been monitoring the surveillance. Deputy Paul Baez, one of the officers participating in the surveillance monitoring, testified at the hearing that after having been advised of her "Miranda Rights," the Respondent admitted that she had obtained personal data of inmates at the jail and had sold the data. Deputy Baez further testified that the Respondent admitted "doing drops," which Deputy Baez explained involved obtaining the personal data of other people and selling it for use in fraudulent tax return filings. Deputy Baez's testimony was persuasive and is fully credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order finding the Respondent guilty of the violations set forth herein, revoking the Respondent's license as a practical nurse, and imposing a fine of $10,000. DONE AND ENTERED this 24th day of February, 2014, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 24th day of February, 2014.
The Issue At issue in this proceeding is whether the Respondent, Brian Pitts, treasurer for Justice-2-Jesus, a political committee, willfully violated Section 106.07(1), Florida Statutes, by failing to file a Campaign Treasurer's Report for the first quarter of 2008 (referred to herein as the 2008 Q1 CTR).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent is the treasurer for Justice-2-Jesus, a political committee that registered with the Division of Elections (Division) on December 12, 2007. Justice-2-Jesus registered by filing an "Appointment of Campaign Treasurer and Designation of Campaign Depository for Political Committees and Electioneering Communication Organizations" form, or Form DS-DE-6. Justice-2-Jesus designated Respondent, Brian Pitts, as its treasurer. Respondent signed the document, giving as his address 1119 Newton Avenue South, St. Petersburg, Florida. Also on December 12, 2007, Justice-2-Jesus filed a "Registered Agent Statement of Appointment," Form DS-DE 41, naming Calvester Benjamin-Anderson as its registered agent. Respondent signed the document and gave 1119 Newton Avenue South, St. Petersburg, Florida as the address of the registered agent. The Division sent a letter, dated December 14, 2007, to Respondent acknowledging receipt of the Form DS-DE-6 and providing information about the Division's electronic filing system for CTRs. The letter informed Respondent that all political committees that file reports with the Division are required to do so by means of the electronic filing system. The Division's letter concluded with the following paragraph, set out in bold type: All of the Division's publications and reporting forms are available on the Division of Elections' web site at http://election.dos.state.fl.us. It is your responsibility to read, understand, and follow the requirements of Florida's election laws. Therefore, please print a copy of the following documents: Chapter 106, Florida Statutes, 2006 Committee and Campaign Treasurer Handbook, 2007-2008 Calendar of Reporting Dates, and Rule 1S- 2.017, Florida Administrative Code. The Division's letter also enclosed a sealed envelope containing PIN numbers to allow Respondent secure access to the Division's electronic filing system in order to submit CTRs for Justice-2-Jesus. A CTR lists all contributions received and expenditures made during a given reporting period. The 2008 Q1 CTR is the report that a campaign treasurer should have filed on behalf of his committee at the close of the first quarter of 2008. Respondent's 2008 Q1 CTR was due to be filed on or before April 10, 2008. Candidates and political committees have been required to file their CTRs electronically since 2004. § 106.0705(2), Fla. Stat. The CTR data may be uploaded using any of several proprietary programs that have been approved by the Division. These programs carry a fee for their use. As an alternative, the treasurer may enter the CTR information directly into the Division's electronic filing system at no cost. The Division has published an online "Electronic Filing System (EFS) User's Guide" (the Guide) to explain the use of the electronic filing system. The Guide contains help menus to assist the user in completing the data entry for a CTR. The Guide is available in a PDF format that can be read online or downloaded to the user's computer at no cost. A user may also make a public records request to the Division for a hard copy of the Guide. The Division will provide the hard copy at a cost of $0.20 per double-sided page, or approximately $4.80 for the 47-page Guide. On or about April 11, 2008, the Division sent Respondent a letter informing him that it had not received the 2008 Q1 CTR for Justice-2-Jesus, which had been due on April 10, 2008. On or about April 25, 2008, the Division sent Respondent a second letter informing him that it had not received the 2008 Q1 CTR for Justice-2-Jesus. Both letters were sent to 1119 Newton Avenue South, St. Petersburg, Florida, the address provided by Respondent on the Form DS-DE-6 for Justice-2-Jesus. Neither letter was returned to the Division as undeliverable or unclaimed. At the hearing, Respondent did not deny receiving these letters in April 2008. On or about July 10, 2008, the Division sent to Calvester Benjamin-Anderson, the registered agent for Justice-2- Jesus, a final notice that Respondent had failed to file the 2008 Q1 CTR for Justice-2-Jesus. The letter was sent certified mail, return receipt requested. Ms. Benjamin-Anderson signed for the letter on or about July 14, 2008. Respondent testified that he attempted to hand-deliver a paper copy of the 2008 Q1 CTR to the Division, but that a Division employee told him that he was required to file all reports for his committee electronically. The Division's records indicate that Respondent had filed Justice-2-Jesus' 2007 Q4 CTR and its 2007 SR2 report2/ electronically, prior to the due date for the 2008 Q1 CTR. Erin NeSmith, a supervisor in the Bureau of Election Records, testified that Respondent came into the Division's offices on November 20, 2008. Respondent asked Ms. NeSmith questions about the 2008 Q1 CTR. She told him that the matter had already been referred to the Commission because Respondent had not filed the report despite repeated notices, but that Respondent still needed to file the 2008 Q1 CTR. Respondent explained to Ms. NeSmith that he had not filed the report because he had been busy and had a lot of items to pull together for the report. As of August 10, 2009, Respondent had yet to file the 2008 Q1 CTR for Justice-2-Jesus. At the hearing, Respondent testified that he had at least 50 contributions and 80 to 100 expenditures to report for the first quarter of 2008. Respondent testified that the due date for the 2008 Q1 CTR fell during the legislative session, when Respondent was extremely busy at the Florida Capitol. The Division's offices are open only during normal business hours, when Respondent was unavailable, and thus Respondent was unable to phone the Division for assistance in preparing the reports. Respondent defended his subsequent failure to file the report as something in the nature of a protest against the Division's electronic filing requirement and its alleged refusal to provide him with a paper copy of the Guide to facilitate his preparation of the report. Respondent complained that the vendors who provide Division-approved data uploading programs charge prohibitively expensive fees. He further complained that the alternative means of filing, direct entry of the data onto the Division's electronic filing system, is difficult and confusing without a paper copy of the Guide for assistance. Respondent acknowledged the availability of the Guide in printable PDF format, but asserted that purchasing printer cartridges and paper sufficient to print the Guide and other necessary Division handbooks would cost between $80.00 and $120.00. Respondent did not acknowledge the Division's willingness to print the Guide for $0.20 per double-sided page pursuant to a public records request. Respondent testified that he has assisted several other persons in preparing and filing their electronic reports to the Division. On behalf of Justice-2-Jesus, Respondent has electronically filed several reports to the Division subsequent to the due date for 2008 Q1 CTR. Willfulness is a question of fact. § 106.25(3), Fla. Stat. See Beardslee v. Fla. Elections Comm'n, 962 So. 2d 390, 393 (Fla. 5th DCA 2007); McGann v. Fla. Elections Comm'n, 803 So. 2d 763, 764 (Fla. 1st DCA 2001). Florida Administrative Code Rule 2B-1.002 provides: For purposes of imposing a civil penalty for violating Chapter 104 or 106, F.S, the following definitions shall apply: A person acts "willful" or "willfully" when he or she knew that, or showed reckless disregard for whether his or her conduct was prohibited or required by Chapter 104 or 106, F.S. "Knew" means that the person was aware of a provision of Chapter 104 or 106, F.S., understood the meaning of the provision, and then performed an act prohibited by the provision or failed to perform an act required by the provision. "Reckless disregard" means that the person disregarded the requirements of Chapter 104 or 106, F.S., or was plainly indifferent to its requirements, by failing to make any reasonable effort to determine whether his or her acts were prohibited by Chapter 104 or 106, F.S., or whether he or she failed to perform an act required by Chapter 104 or 106, F.S. The evidence established that Respondent was well aware of the requirement to file the 2008 Q1 CTR on behalf of Justice-2-Jesus. Shortly after Respondent filed the committee's initial paperwork, the Division sent him an acknowledgement letter directing him to the Division's website for information about the electronic filing of campaign treasurer's reports. Respondent could have downloaded the Guide or any other Division publication. At the hearing, Respondent claimed no lack of knowledge of the filing requirements. After he failed to file the 2008 Q1 CTR, Respondent received two letters from the Division notifying him of the failure. Despite these notices, Respondent never filed the report. The evidence established that Respondent electronically filed two reports with the Division prior to the due date of the 2008 Q1 CTR, and filed several electronic reports after the due date of the 2008 Q1 CTR. These facts demonstrate Respondent's knowledge of the filing requirements and ability to prepare an electronic report. Respondent has acted willfully in his failure to file the 2008 Q1 CTR for Justice-2-Jesus. At the hearing, Respondent asserted that Justice-2- Jesus was indigent, but offered no financial data to support the assertion.
The Issue Whether it is appropriate for Respondent to remove Petitioner from the rolls of eligible voters in Polk County, Florida.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is a registered voter in Polk County, Florida. Respondent is the elected public official in Polk County, who ensures that all voter registration and list maintenance procedures in Polk County are conducted in compliance with any applicable requirements of the Statewide Voter Registration System and acts as the official custodian of documents received related to the registration of electors and changes in voter registration status of electors in Polk County. On or about July 28, 2009, Respondent received notice from the Florida Department of State that Petitioner was a registered voter who was potentially ineligible to vote due to a felony conviction. On June 26, 2006, Respondent was convicted of a felony: Section 784.021, Florida Statutes--Aggravated Assault with a Deadly Weapon. The State of Florida, Office of Executive Clemency, has not restored Respondent's civil rights for his conviction for the felony listed in paragraph 4. Petitioner did not present any evidence that the information relative to his felony conviction was inaccurate or that he had been granted clemency and had his civil rights restored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Polk County Supervisor of Elections, make a final determination that Petitioner, Morgan Valez-Rosario, is ineligible to vote in the State of Florida and remove his name from the voter registration rolls. DONE AND ENTERED this 19th day of October, 2009, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 19th day of October, 2009. COPIES FURNISHED: Lori Edwards Polk County Supervisor of Elections 250 South Broadway Post Office Box 1460 Bartow, Florida 33831-1460 Morgan Velez-Rosario 3644 East Johnson Avenue Haines City, Florida 33844
The Issue The issues are whether the allegations set forth in the separate Amended Administrative Complaints filed by the Department of Financial Services (Petitioner) against the Respondents, A Cremation Center at Horizon Funeral Home (Horizon) and Mark E. Davis, are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged under Chapter 497, Florida Statutes (2006), with regulation of funeral establishments, director/embalmers, and the sale of preneed funeral service contracts. At all times material to this case, Horizon was a funeral establishment holding Florida license FH2372, located at 1605 Colonial Boulevard, Fort Myers, Florida. At all times material to this case, Mark E. Davis was a funeral director and embalmer holding Florida license FE4335 and was employed by Horizon in that capacity. From 1999 through October of 2005, the Respondents produced "Registration Forms" which were supplied to individuals seeking to make preneed direct cremation arrangements. A registrant would complete the form and return it to the Respondents with a non-refundable fee of $48.00. Registrants received no discount when services were eventually purchased, but "locked in" the price being charged at the time the registration form was completed and returned with the $48 fee. The prices on the registration forms were the same as those charged to customers in need of the services during the time registrants submitted the forms and fees. The $48 fee was not credited to the cost of the services chosen during registration. Although there was minor variation between some versions of the document, the "Registration Form" generally contained the following language: I, the undersigned [sic] request Horizon Funeral Home & Cremation Center to record the following information. Enclosed is the $48.00 Registration Fee which will cover registration expenses, place the following information on permanent file, and FREEZE THE PRICE of the services and merchandise selected below. The form included space for the registrant to set forth personal identifying information including name, address, date of birth, social security number, occupation, and next of kin. Following the personal identification information part of the document, the form listed the prices of available services and merchandise and directed a registrant to make choices as follows: DESIGNATE YOUR WISHES: CHECK THE ITEMS YOU WISH TO RECORD. Simple Cremation $495. Cremation with Memorial Service $795. Cremation with Rental Casket & Funeral Service $2380 ALTERNATIVE CONTAINERS (Required by law in lieu of a casket) Corrugated Cardboard $95. Pressed Wood $195. DISPOSITION OF CREMATED REMAINS Scatter @ Sea $150. Pack & Ship $65. Cardboard Container, No Charge Family To Select An Urn, (Price Range $65 to $1995) The above prices do not include the following: Medical Examiner Cremation Approval Fee, Certified Copies of death certificate, classified obituary. THE REGISTRATION FEE OF $48.00 IS NOT REFUNDABLE. The registrant made selections, and then signed and dated the document. The form contained no area for Mr. Davis or any other representative of Horizon to acknowledge receipt of the form or to document any agreement to provide the services selected by the registrant. There were approximately 500 forms completed and submitted to the Respondents with the $48 fee. At the hearing, Mr. Davis testified that although there was no signature from the Respondent on the form, by his act of accepting the registration form and fee, he was agreeing to provide the services at the prices set forth on the form in accordance with each registrant's wishes. At no time have the Respondents been licensed or authorized to sell preneed contracts for final disposition of cremated human remains. Mr. Davis, an experienced funeral director, was familiar with the requirements to sell preneed contracts. He did not believe that the "Registration Forms" were preneed contracts. There was no evidence that Mr. Davis made any attempt to conceal the registration process from state regulators at any time. The use of the registration forms was observed during an investigation of the Respondents in 2004. At that time, the investigator believed that the forms were preneed contracts and drafted a complaint related to alleged unlicensed preneed contract sales, but for reasons unknown, persons who reviewed his work apparently disagreed, and the complaint was not pursued. A second investigation was initiated in November 2006 based on a complaint related to signage. The signage complaint raised concerns related to proposed transfer of Horizon ownership to a hospice organization, which was a topic of some controversy. As an investigator (not the 2004 investigator) drove to Horizon, he received a call from his supervisor which directed him to review the registration issue while was at the facility. The signage issue was resolved without difficulty. When the investigator inquired about the registration process, Mr. Davis produced the registration forms for review. The investigator believed that the forms were preneed contracts and stated so in his investigative report. The Petitioner apparently agreed and initiated the disciplinary process at issue in these cases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that the Respondents committed the statutory violations identified herein and issuing a letter of reprimand. The final order should additionally require that the Respondents execute a document to be prepared by the Petitioner, which specifically obligates the Respondents to provide to each registrant the services selected at the prices stated on each registrant's form, and providing a mechanism for enforcement of the obligation. DONE AND ENTERED this 26th day of July, 2007, in Tallahassee, Leon County, Florida. S 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 26th day of July, 2007. COPIES FURNISHED: Garvin B. Bowden, Esquire Gardner, Wadsworth, Duggar, Bist & Wiener, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308 Casia R. Sinco, Esquire Elizabeth Teegen, Esquire Department of Financial Services 200 East Gaines Street, Room 612 Tallahassee, Florida 32399-0333 Diana M. Evans, Director Bureau of Funeral and Cemetery Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Financial Services 200 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350
