The Issue The issue is whether the Department of Revenue (the "Department") may revoke the Certificate of Registration issued to Petitioner for failure to post a $10,000 cash deposit, surety bond, or irrevocable letter of credit.
Findings Of Fact The Department is the agency of the state of Florida charged with the duty to enforce the collection of taxes imposed pursuant to chapter 212, Florida Statutes, to issue warrants for the collection of taxes, interest, and penalties and, where necessary, to require a cash deposit, bond, or other security, as a condition to a person obtaining or retaining a dealer‘s certificate of registration under chapter 212. Petitioner is a Florida corporation with its principal and mailing address at 5800 Phillips Highway, Jacksonville, Florida 32216. Petitioner is a "dealer" as defined in section 212.06(2), Florida Statutes. Petitioner holds Dealer's Certificate of Registration No. 26-8015523525-2. As a dealer, Petitioner was required to collect sales and use taxes from customers and to submit monthly tax returns and collected taxes to the Department. Sales and use taxes for any given month are due on the first day of the succeeding month, and must be paid to the Department on or before the 20th day of that succeeding month. Petitioner failed to file the required sales and use tax returns for January through March 2011. In a delinquent tax warrant dated May 18, 2011, the Department assessed Petitioner estimated tax of $3,000 for the three months in question, along with $32.79 in interest, $300.00 in penalties, and fees in the amount of $20.00, for a total of $3,352.79. The Department estimated the tax due for the months of January through March 2011 based on historical data, i.e., Petitioner's previous sales and use tax returns. The Department issued the Notice on May 18, 2011. The Notice was served on Petitioner on May 20, 2011. The Notice required Petitioner to post a $10,000 cash deposit, surety bond, or irrevocable letter of credit as a condition to retaining its Certificate of Registration. The Notice further advised Petitioner of an informal conference, commonly referenced as a "bond hearing," to be conducted on June 21, 2011, for the purpose of affording the Petitioner an opportunity to resolve the delinquent tax issue. The Notice also stated as follows, in relevant part: This Notice of Intent to Revoke Registration will become final on the date of the informal conference if the required security has not been posted, or an agreement is not reached at the informal conference, or you fail to attend the informal conference.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order that declines to revoke Dealer's Certificate of Registration No. 26-8015523525-2 held by Jacksonville Entertainment Company, LLC, until such time as the Department fully complies with the requirements of subsection 212.18(3)(d), Florida Statutes by issuing an Administrative Complaint. DONE AND ENTERED this 19th day of March, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 March, 2012. COPIES FURNISHED: Marshall Stranburg, Esquire Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Tallahassee, Florida 32314-6668 Carrol Y. Cherry, Esquire Office of the Attorney General The Capitol, PL-01 Revenue Litigation Bureau Tallahassee, Florida 32399 carrol.cherry@myfloridalegal.com Bechara Richa Jacksonville Entertainment Company, LLC 8474 Papelon Way Jacksonville, Florida 32217 Nancy Terrel, Acting General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Vickers, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32314-6668
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
The Issue Whether Petitioner is entitled to recover attorney's fees and costs against Respondent and, if so, in what amount.
Findings Of Fact Petitioner, Eileen McGuire (Petitioner), is now and at all times material to this proceeding has been a member of the Town Council (Town Council or Council) of the Town of Welaka, Florida (Town or Town of Welaka). Petitioner was appointed to the Town Council in 1994, ran for election in 1995, and has continued on the Council since that time. Currently, Petitioner is president of the Town Council. Respondent, Caron Speas (Respondent), is and has been a resident of the Town of Welaka for two years. Respondent, who has practiced law since 1981, considers herself a "watchdog" of the actions of the Town's local government. She is chair of and has been active in a local "political committee" known as Concerned Citizens for Public Integrity, Inc. Respondent's brother, Rand Speas, is also a resident of the Town of Welaka. During January to March 1999, Mr. Speas was running for a position on the Town Council. Rand Speas lost his election campaign on March 3, 1999. During Mr. Speas' unsuccessfu1 1999 election campaign, Gordon Sands was the Mayor of Welaka and Petitioner was a member of the Town Council. Petitioner was not running for re-election in 1999, but she supported Mayor Sands who was running for re- election at that time. Respondent was opposed to Mayor Sands' re-election bid and had actively opposed many of the official actions taken by both Petitioner and Mayor Sands. Moreover, Respondent had expressed her dislike and dissatisfaction with the manner in which the Town of Welaka was governed and her opposition to the administration of Petitioner and Mayor Sands. During the 1999 election campaign, Petitioner received complaints from the code enforcement officer of the Town of Welaka regarding political signs that were on Town property. At the time Petitioner received the complaints, she also served as maintenance supervisor, having been appointed to that position by the Town Council. As maintenance supervisor, Petitioner was responsible for directing the day-to-day activities of Town employees, Charles Henderson and Charlie Yarbrough. Henderson was the wastewater treatment caretaker for the Town and Yarbrough was the Town's maintenance man. Soon after Petitioner received the complaints from the Town's code enforcement officer, she met Henderson and Yarbrough at Town Hall one morning when they reported for work. Petitioner gave Henderson and Yarbrough copies of the Town's applicable sign ordinance (ordinance). The ordinance prohibited the placement of signs in the Town's rights-of-way and on utility poles. Consistent with the provisions of the ordinance, Petitioner instructed Henderson and Yarbrough to remove non- conforming political signs from public rights-of-way. Moreover, Petitioner stressed that enforcement of the ordinance should apply to the signs of all candidates, including those of the mayor. Henderson and Yarbrough complied with McGuire's instructions concerning the removal of illegally placed political signs. The men drove around the Town of Welaka in a Town vehicle and began removing signs which they perceived to be in the public rights-of-way and those which were on utility poles. After Henderson and Yarbrough removed the signs, they placed them in the Town vehicle. Some of the signs retrieved by Henderson and Yarbrough were placed in the Town's maintenance yard. Respondent observed Henderson and Yarbrough as they were removing Rand Speas' political signs from what she perceived to be private property. Respondent became very upset and immediately proceeded to her brother's, Mr. Speas', place of business. Once there, Respondent told Mr. Speas that she had observed the Town employees remove his political signs and those of Virgil Posetti, a political opponent of Mayor Gordon Sands. Mr. Speas and Respondent then got in her car, located Henderson and Yarbrough who were still driving the Town vehicle and removing political signs, and began following them. Based on Respondent's observation, she believed that Henderson and Yarbrough were "stealing" political signs. Respondent eventually flagged down Henderson and Yarbrough and asked what they were doing. Henderson explained that they were taking down signs that were in the Town's rights- of-way. Because Respondent was not satisfied with Henderson's explanation, he told her to follow them to Petitioner's house. Respondent and Mr. Speas then followed Henderson and Yarbrough to McGuire's home (also her place of business, a beauty shop). When Henderson, Yarbrough, Mr. Speas, and Respondent arrived at Petitioner's house and place of business, Petitioner went outside to see what they wanted. By this time, Respondent was visibly angry and upset. Respondent began yelling and screaming at Petitioner and threatened to have the her arrested by the "federal marshal." Initially, Petitioner did not know why Respondent was so upset; however, after Petitioner understood Respondent's complaint, she gave Respondent a copy of the Town's political sign ordinance and explained that Rand Speas' political signs should not have been put in the Town's rights-of-way. Petitioner also talked to Rand Speas and gave him the same explanation. After Petitioner's explanation, she allowed Respondent and Mr. Speas to retrieve Rand Speas' signs from the trunk of the Town vehicle and from the Town's maintenance yard. However, Petitioner warned Respondent and her brother that if any of Mr. Speas' signs were found in the Town's rights-of-way, the signs would be removed again. When Respondent and Rand Speas retrieved the political signs of Mr. Speas, the only signs that they saw were those belonging to Mr. Speas and those of Virgil Posetti, the political opponent of Mayor Gordon Sands. Petitioner never indicated to Rand Speas or Respondent that she had told Henderson and Yarbrough to remove anything other than signs that were in the Town's rights-of-way or on utility poles. Moreover, the credible testimony of Rand Speas was that Henderson and Yarbrough told him that their instructions from Petitioner were only to remove signs that were in the way of traffic or placed illegally. Notwithstanding the explanation of Petitioner and that of the Town employees, Respondent remained convinced that Petitioner had instructed Henderson and Yarbrough to remove only the political signs of Rand Speas and Virgil Posetti. Respondent based her belief on her own observations. First, when Respondent observed Henderson and Yarbrough, they were removing only the political signs of Rand Speas and Posetti. Second, when Respondent and her brother were retrieving the political signs of Rand Speas, the only signs she saw in the trunk of the Town vehicle and at the Town storage yard were those of Rand Speas and Posetti. At some point after Henderson and Yarbrough removed the political signs, Rand Speas filed a complaint concerning the incident with the State Attorney's Office. After an investigation and/or review of the matter, the State Attorney's Office advised Mr. Speas that it would take no action on the complaint. Enclosed in the correspondence from the State Attorney's Office to Mr. Speas, advising him of its decision, was an Ethics Complaint form. Mr. Speas gave the Ethics Complaint form to Respondent. Several weeks after the incident involving removal of political signs and approximately two weeks after the 1999 election, Respondent signed an Ethics Commission Complaint (Complaint) against Petitioner on March 18, 1999. In the Complaint made against Petitioner, Respondent stated in pertinent part as follows: Eileen McGuire is a member of the town council for the Town of Welaka and a political supporter of the Mayor, Gordon Sands. Ms. McGuire used her position as town council member to obtain political benefit for the re-election efforts of Mayor Sands by directing two employees of the town to remove the political signs of Mayor Sands' political opponents in violation of Florida Statute 112.313(6). The statute cited by Respondent and the facts alleged in support of the charge made comprise a specific accusation by Respondent that Petitioner, a public officer of the Town of Welaka, corruptly used her official position to secure a special privilege or benefit for Mayor Sands by directing two employees of the Town to remove the political signs of the Mayor's political opponents. At the time Respondent completed and filed the Complaint, she knew that the Town of Welaka had an ordinance prohibiting the posting of political signs on public rights-of-way. Moreover, on the day of the incident, Petitioner explained to Respondent that she had directed the Town employees to take down all signs in the rights-of-way. However, Respondent did not believe Petitioner. Instead, Respondent believed that Petitioner had "ordered town employees to go around and take political signs of the opponent of Mayor Sands", and that the Town employees "were stealing [signs] from private property." Respondent's observations, standing alone, do not support her conclusion that Petitioner directed Town employees to "steal" the signs of Rand Speas and Virgil Posetti. However, the allegations set forth in the Complaint were based on Respondent's observations and perceptions and the inferences drawn therefrom. Notwithstanding Respondent's beliefs to the contrary, the evidence supports the conclusion that Petitioner instructed Henderson and Yarbrough to remove any and all signs that were illegally placed in the Town's rights-of-way. Henderson testified credibly that on the day of the alleged ethical violation, Petitioner gave him a copy of the Town ordinance prohibiting political signs in public rights-of-way and instructed him to remove all nonconforming political signs that were on public rights-of-way without preferential treatment for any candidate. Yarbrough corroborated the testimony of Henderson and confirmed that Petitioner's instructions to enforce the political sign ordinance of the Town of Welaka were non-preferential and included instructions to remove any offending signs of Mayor Sands as well. In defending herself against the allegations in the Complaint and in this proceeding, Petitioner has been represented by Allen C. D. Scott, II, Esquire. Mr. Scott's hourly rate is $125.00. Prior to the final hearing, Mr. Scott expended forty- three hours on this matter and a related case, Sands v. Speas, DOAH Case No. 00-0268FE. One-half of that time is attributable to the instant case. The hourly rate of $125.00 billed by Mr. Scott is reasonable. Likewise, the pretrial time of 21.80 hours expended in this matter is reasonable. Accordingly, the attorney fees of $2,725.00 incurred is reasonable. Judith Ginn, Esquire, an attorney who has practiced law in the state of Florida since 1974, testified as an expert witness in this case. Ms. Ginn's hourly rate of $150.00 is reasonable. The reasonable cost of Ms. Ginn's expert witness services in this case is $650.00.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that a Final Order be entered finding that Respondent, Caron Speas, is not liable for attorney's fees and costs and dismissing the Petition for Costs and Attorney's Fees. DONE AND ENTERED this 24th day of August, 2000, in Tallahassee, Leon County, Florida. 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 24th day of August, 2000. COPIES FURNISHED: Allen C. D. Scott, II, Esquire Scott & Scott 101 Orange Street St. Augustine, Florida 32084 Peter Ticktin, Esquire Scholl, Ticktin, Rosenberg, Glatter & Litz, P.A. Net First Plaza 5295 Town Center Road, Third Floor Boca Raton, Florida 33486-1080 Sheri L. Gerety, Complaint Coordinator and Clerk Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Philip C. Claypool, General Counsel Commission on Ethics 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation (Department), is a state government licensing and regulatory agency charged, inter alia, with the duty and responsibility to regulate the practice of community association management pursuant to the provisions of Sections 455.01 through 455.275, and Sections 468.431 through 468.431, Florida Statutes. Respondent, Hasnain Mehdi Hanif, is a licensed community association manager in the State of Florida, having been issued license number CAM 0020664. On or about March 26, 1997, Respondent filed an application (dated March 5, 1997) with the Department for licensure as a community association manager. Pertinent to this case, item (17)(c)2 on the application required that Respondent answer yes or no to the following question: 2. Have you ever been convicted or been found guilty of a felony or misdemeanor, entered a plea of guilty or nolo contendere (no contest) to a felony or misdemeanor? Yes ( ) No ( )* This question applies to any violation of the laws of any state, territory or country without regard to whether the matter is under appeal or you were placed on probation, had adjudication withheld, were paroled or pardoned. *If the answer is yes, you must provide the following information [date of offense, date of arrest, date of disposition, case number, charge, city, state, country, degree of felony or misdemeanor, plea, and disposition] for each offense and submit the following documents, as applicable: police arrest affidavit (need not be a certified true copy); the charges (a certified true copy); and plea, judgment and sentence (certified true copies). Attach separate sheets of paper using the same format or copy and complete this page if you have more than one offense. . . . Respondent responded to the question by checking the box marked "No." The application concluded with the applicant's signature immediately below the following affirmation: I hereby certify that all of the information provided in connection with this application is true and correct to the best of my knowledge and belief. Consistent with the requirement imposed by Subsection 468.433(1), Florida Statutes, Respondent included a complete set of fingerprints taken by an authorized law enforcement officer with his application. The fingerprint card identified Respondent, Hanif Hasnain Mehdi, as male, Asian, 5' 4" tall, 165 pounds, brown eyes, black hair, Social Security number 589-48-1476, and born in Bangladesh on October 16, 1966. Following the mandate of Subsection 468.433(1), Florida Statutes, the Department submitted the fingerprint card to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation (FBI) for federal processing. On June 23, 1997, the Department received a report from the FBI which revealed that, based on fingerprint comparisons, Respondent had failed to disclose a criminal history on his application. Specifically, the report revealed that Respondent failed to reveal that he was arrested on August 11, 1988, in Miami, Florida, on a charge of passport fraud, and that he had been convicted on November 17, 1988, of uttering a false statement in applying for a passport. By letter of July 16, 1997, the Department advised Respondent that, given the criminal history received from the FBI, his application was deficient, and requested that he furnish documentation pertinent to the incident reported by the FBI, as well as an explanation of why the incident was not disclosed on his application. The Respondent replied by letter of July 23, 1997, as follows: The undersigned asserts that he was never arrested and never charged with any crime; therefore, there was no reason to enclose any explanation. The undersigned is also waiving the 90-day time requirement for approval and denial of the application, but expects that as soon as a definite determination is made, the applicant is scheduled for the test. The undersigned sincerely expects the Department and the concerned agencies to check their records for accuracy. As far as the applicant is concerned, there is no reason why the Department of Business and Professional Regulation should not process his application. (Emphasis in original.) In August 1997, the Department made its first request that the Clerk, United States District Court, Southern District of Florida, provide it with certified copies of the documents related to the criminal matter referenced in the FBI report. That request, as well as numerous subsequent requests, proved fruitless, since the Clerk experienced difficulty in retrieving or locating the records (which had apparently been archived), until on or about August 7, 1998, when certified copies of the records were ultimately provided. In the interim, the Respondent (by letter of April 13, 1998) essentially withdrew his waiver and demanded that his application be processed. In response, the Department (not being in receipt of any official documentation regarding the offense) processed Respondent's application and on May 28, 1998, following successful completion of the licensure examination, issued Respondent a community association manager license. Notwithstanding, the Department continued to pursue documentation related to the incident reflected by the FBI report.1 Ultimately, in August 1998, the Department received the documentation from the Clerk, United States District Court, Southern District of Florida. Those records revealed that Respondent was arrested on August 11, 1988, and charged by a three-count Indictment2 in the United States District Court, Southern District of Florida, Case No. 88-0576 CR-NESBITT, as follows: Count I On or about August 1, 1988, at Miami Beach, Dade County, in the Southern District of Florida, the defendant, HASNAIN MEHDI HANIF, in a matter with the jurisdiction of the United State Department of State, a department of the United States, did knowingly and willfully make and use false writings and documents knowing the same to contain false, fictitious, and fraudulent statements and entries to wit, a Baptismal Certificate from the Diocese of Wichita #B5135, and a letter from defendant's mother stating he was a United States citizen, when in truth and in fact, and as the defendant then and there well knew, he was not baptized in Wichita, Kansas, and he was not a United States citizen; in violation of Title 18, United States Code, Section 1001. Count II On or about June 27, 1988, at Miami Beach, Dade County, in the Southern District of Florida, the defendant, HASNAIN MEHDI HANIF, an alien, did falsely and willfully represent himself to be a citizen of the United States, in that he stated he was born in Wichita, Kansas, in violation of Title 18, United States Code, Section 911. Count III On or about June 27, 1988, at Miami Beach, Dade County, in the Southern District of Florida, the defendant, HASNAIN MEHDI HANIF, did knowingly and willfully make a false statement in an application for a passport with the intent to induce and secure the issuance of a passport under the authority of the United Stated, for his own use, contrary to the laws regulating the issuance of passports and the rules prescribed pursuant to such laws, in that the defendant stated in the application that he was born in Wichita, Kansas, when in truth and in fact, and as the defendant then and there well knew, he was not born in Wichita, Kansas, in violation of Title 18, United Stated Code, Section 1452. The information of record in the criminal case describes the Defendant, Hasnain Mehdi Hanif, as male, 5' 4" tall, 135 pounds, brown eyes, black hair, Social Security number 589-48-1476, and born in Bangladesh on October 16, 1966. Moreover, the Defendant there, Respondent here, were shown to possess identical home phone numbers (305-754-0008); their signatures were in all aspects similar; and their appearances, as evidenced by photographs, were (but for the passage of 10 years and a weight gain of 30 pounds) similar. In all, it cannot be subject to serious debate that the Defendant named in the criminal case and the Respondent in this case are the same person. The Respondent and the United States of America (Government) entered into a plea agreement pursuant to which Respondent agreed to plead guilty to Count III of the Indictment and the Government would dismiss the remaining counts. Subsequently, Respondent entered a plea of guilty to Count III, and was found guilty of such offense (making a false statement in obtaining a U.S. Passport). The judgment of the court was, as follows: IT IS THE JUDGMENT OF THIS COURT THAT: the defendant is hereby committed to the custody of the Attorney General of the United States or his authorized representative for confinement for a period of five (5) years and a fine of $1,000.00. IT IS FURTHER ADJUDGED that the execution of said sentence of confinement is hereby suspended and the defendant is placed on probation for a period of two (2) years. IT IS FURTHER ORDERED as a special condition of probation, that if deported, the defendant shall not re-enter the Untied States without the permission of the Attorney General. Counts I and II of the Indictment were dismissed on the motion of the Government. Following receipt of the documentation regarding the criminal conviction, the Department filed the Administrative Complaint at issue in this proceeding which, as amended, charged that Respondent violated Section 455.227(1)(h), Florida Statutes, by obtaining a license by fraudulent misrepresentation; Section 468.436(1)(b)4, Florida Statutes, by obtaining a license by means of fraud, misrepresentation, or concealment of material facts; Rule 61-20.001(4), Florida Administrative Code, and, therefore, Section 468.436(1)(b)2, Florida Statutes, by having failed to provide the Department with documentation regarding his criminal record; and Section 468.436(1)(b)3, Florida Statutes, by being convicted of a felony in any court in the United States. At hearing, the Department offered proof, without objection, that its costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled $1,344.94, as of February 24, 1999.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be rendered as follows: Finding the Respondent guilty of violating Sections 455.227(1)(h) and 468.436(1)(b)2, 3, and 4, Florida Statutes, as alleged in Counts I through IV of the Amended Administrative Complaint; Requiring that Respondent pay an administrative fine of $5,000.00; Revoking the Respondent's community association manager license number CAM 0020664; and Assessing costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $1,344.94. It is further RECOMMENDED that, if the foregoing recommendation is adopted, the Department refer a copy of the record in this case to the State Attorney, Dade County, Florida, for that office to resolve whether the record herein (Respondent's testimony at hearing and affirmation to the Department) supports a charge of perjury against Respondent. DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 21st day of April, 1999.
The Issue The issues to be determined in this case are whether Respondent, Judy K. Beardslee, violated state election laws by certifying the correctness of a campaign treasurer's report that was incorrect, false, or incomplete, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a member of the City Council of Edgewood, Florida. She ran successfully for this political office in 2004 and 2006. The alleged offense took place during the 2004 election campaign. The City of Edgewood has approximately 1,200 registered voters, and Respondent's 2004 campaign was very modest by any measure. She received only three direct campaign contributions, totaling $415, and $50 of this sum was from her personal funds. Respondent appointed her mother, Linda Boggs, as her deputy treasurer. Three treasurer's reports were filed for Respondent's 2004 campaign. Ms. Boggs relied on Respondent for the information about contributions and expenditures that appears in the three reports. The reports disclosed $415 in campaign contributions and $415 in campaign expenditures. The treasurer's reports were signed by Ms. Boggs and by Respondent. Respondent's signatures were placed under the following statement that appears on the official campaign treasurer's report form: "I certify that I have examined this report and it is true, correct and complete." It is undisputed that on March 2, 2004, Respondent's husband, Ronald Beardslee, paid $148.56 for the production of 25 yard signs that included the words "Elect Judy Beardslee." Mr. Beardslee paid for the yard signs using a check from a joint personal bank account he owned with Respondent. The yard signs were distributed and displayed before the vote for city council members held on March 9, 2004. Mr. Beardslee's purchase of the yard signs was not reported in Respondent's campaign treasurer's report that covered the period from February 14, 2004, to March 3, 2004, and the purchase was not shown in any subsequent report. In January 2005, the Commission received a confidential complaint, alleging that Respondent's campaign treasurer's reports did not disclose all contributions made to her 2004 campaign. Following the Commission's investigation of the complaint, it issued the December 2, 2005, Order of Probable Cause that is the subject of this case. In its Order of Probable Cause, the Commission charged Respondent with violating Subsection 106.07(5), Florida Statutes, "by certifying the correctness of her [campaign treasurer's report] covering the period from February 14, 2004 to March 3, 2004, when Respondent failed to report an in-kind contribution from her husband, Ron Beardslee, of $148.56 for yard signs." Respondent testified at the hearing that at the time she certified the accuracy of the treasurer's reports, she did not know her husband had purchased the yard signs. She claims she did not know her husband purchased the signs until more than a year after the election. Respondent's husband testified that he did not consult with, coordinate with, or otherwise inform Respondent that he had purchased the yard signs until long after the 2004 election. Respondent first saw the yard signs "a couple of days before election day." Respondent also saw her husband with the yard signs before the election, and she saw the city clerk talking to her husband about the signs on election day. Nevertheless, these events did not cause her to think her husband had paid for the signs. Respondent said she thought the signs had been procured by a homeowners association that supported her candidacy. Respondent made no inquiries to determine who had paid for the yard signs. The Commission argued that Respondent's testimony at the hearing was inconsistent with her testimony in a deposition taken two weeks earlier during which she said that she found out her husband had paid for the signs on "either election day or the night before." Respondent said she was confused by the deposition question and did not mean to say she knew before the election that her husband had paid for the signs. The transcript of the deposition supports Respondent. The question put to Respondent at her deposition about when she found out who paid for the signs followed questions about when she first noticed the signs. When Respondent answered "either election day or the night before," she apparently thought she had been asked again when she found out about the signs. That is indicated by her answer to the follow-up question about how she found out, which was, "I saw them." Seeing the signs is how Respondent could first notice them, not how she could find out her husband paid for them. See Petitioner's Exhibit 15, pp. 54-58. In addition to ordering and paying for the yard signs, Mr. Beardslee distributed the yard signs. When advised to do so by the city clerk, Mr. Beardslee prepared and attached a disclaimer label to the yard signs. He also did some door-to- door campaigning for Respondent. Mr. Beardslee's door-to-door campaigning was primarily for the benefit of another candidate, but Mr. Beardslee used the opportunity to urge people to vote for Respondent. On one or two occasions, Mr. Beardslee hand- delivered Respondent's campaign treasurer's report to the city clerk. When the yard signs were made, they did not identify who paid for them. On the day of the election, the city clerk, Faye Craig, told Mr. Beardslee that the yard signs did not comply with the election laws because they had no disclaimer statement. Mr. Beardslee immediately went home and made labels that contained a disclaimer statement and then attached the labels to the yard signs. It was established that the labels included the words "Paid Political Advertisement" (possibly in another form, such as "Pd. Political Ad"), but Mr. Beardslee testified he was not sure whether the label indicated that the advertisement was paid "for Judy Beardslee" or "by Judy Beardslee." On cross-examination, Mr. Beardslee stated that the disclaimer on the yard signs might have said "by Judy Beardslee." As set forth in the Conclusions of Law that follow, the election laws require a political advertisement to disclose who paid for the advertisement. The elections laws do not require an advertisement to disclose who the advertisement is for, since that would usually be obvious. Because Ms. Craig was very familiar with the election laws, a reasonable inference can be made that she advised Mr. Beardslee to add a disclaimer to the yard signs to indicate who paid for them. It is not credible that after being told to by the city clerk to put a disclaimer statement on the yard signs, and then making the labels himself, Mr. Beardslee would not remember what the labels said in this regard. The photograph of one of the yard signs in the record (Petitioner's Exhibit 4) is not large enough to show the wording of the label clearly. However, by use of a magnifying glass, it appears to the undersigned that the second line of the disclaimer reads "by Judy Beardslee." It is reasonably clear that the first word of the second line is a two-letter word and the second letter of the word is "y."3 Considering the record evidence and the demeanor of Mr. Beardslee during his testimony, it is found that the disclaimer label indicated that the yard signs were paid for "by Judy Beardslee." The labels did not include Mr. Beardslee's name and address or indicate that the signs were paid for by him, independently of Respondent. After the election, the yard signs were put in Respondent's garage where they remained for months.4 When Respondent submitted her qualifying papers for her candidacy for the City Council, she was provided copies of the 2004 Candidate and Campaign Treasurer Handbook (Handbook) and the Florida Election Law Book. Chapter 9 of the Handbook explains the meaning of "contribution" and "independent expenditure" and the reporting requirements associated with each. Respondent admitted that she did not read the Handbook because she was exhausted from campaigning and other responsibilities. Respondent understood that the Handbook was important, because "[she] had to sign for it." Respondent never asked the city clerk about any of her duties under the election laws. Even at the time of her deposition for this case in March 2006, when asked whether she had received a copy of Chapter 106, Florida Statutes, Respondent said she did not know what Chapter 106 was because "[she] was not a lawyer." Mr. Beardslee did not file a report with the Commission to disclose that he had made an independent expenditure during the 2004 Edgewood City Council election campaign. In a letter to a Commission investigator dated May 23, 2005, counsel for Respondent stated that "even including the yard sign expenditure, the total campaign expenses were under $500.00," and suggested that the omission of the yard signs from the treasurer's report was due to inadvertence, rather than because it did not have to be reported.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent, Judy K. Beardslee, willfully violated Subsection 106.07(5), Florida Statutes, and imposing a penalty of $1,000. DONE AND ENTERED this 8th day of May, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 8th day of May, 2006.
The Issue Whether Rule 22B-1.055(2)(d), Florida Administrative Code, is an invalid exercise of delegated legislative authority?
Findings Of Fact By letter dated April 17, 1985, A. J. McMullian III, State Retirement Director, advised C. H. Wigley, Jr., Acting Executive Director of the Escambia County Utilities Authority (ECUA) that the individual petitioners were eligible for inclusion in the Regular Class, but not the Elected State Officers' Class, of the Florida Retirement System. Respondent's Exhibit No. 8. "The major difference between the Elected State Officers' Class and the Regular Class is the ESOC members . . . receive a higher retirement benefit . . . for the same number of years of service." (T. 38) To finance higher benefits the public employer pays a higher amount, set on "an actuarily sound basis." Deposition of Andrew J. McMullian, III, page 19. A few years back, "Escambia County and the City of Pensacola, felt it was time . . . to combine . . . utilities' systems into one agency. The City had just completed construction of a twenty-million-gallon-a-day treatment plant and had excess capacity. [Unincorporated] Escambia County had the . . . customers but not the facilities . . ." (T. 74) "Escambia County was faced with extending or having to go to the bond market to borrow significant money to buil[d] treatment facilities . . . [but] it was more practical that the City and County get together." (T. 88) By special act the legislature created the ECUA to purchase and operate the water and sewer systems that had belonged to both City and County, and to exercise "all powers with respect to water and sewer, and such other additional utilities as may be hereafter designated . . . which are . . . could be, or could have been but for this act, exercised by the City of Pensacola or Escambia County, Florida." Ch. 81-376, Section 3, Laws of Florida (1981). The ECUA came into existence on October 1, 1981, (T. 90) and now provides natural gas service (T. 95) at least outside the franchised area of the City of Pensacola. Ch. 85-410, Section 5(r), Laws of Florida (1985). The ECUA is authorized to provide utility services to the extent of its capacity to do so even in areas outside Escambia County. Ch. 85-410, Section 5(q), Laws of Florida (1985). By passing a resolution and signing an agreement effective October 1, 1982, (T. 108), the ECUA joined the Florida Retirement System and "decided to purchase past service back to October, '81, for all employees who were employed as of October 1st, '82." (T. 107) See Respondent's Exhibit No. 5. Beginning with the 1984 elections, candidates for the ECUA Board had to meet the same qualifications as candidates for county office and had to live in the county commission district they sought to represent. Each of the five single-member districts has the same boundaries as the corresponding county commission district. Terms of ECUA board members are staggered just as county commissioners' terms are and, beginning in January 1987, all members will be elected for four-year terms, as county commissioners are. Each ECUA board candidate is subject to state election laws governing filing papers, qualifying fees and the like, to the same extent as candidates for county office are; and each takes an oath before entering upon the duties of the office. Petitioners' Exhibit No. 2. The "Florida Retirement System . . . is a statewide consolidated system that covers public programs and employee groups on all levels of government, state, county, school board, cities, special districts Deposition of Andrew J. McMullian, III, page 13. State retirement programs before the Florida Retirement System, which came into existence on December 1, 1970, did not distinguish between elected officials and regular employees. Deposition of Ruth Sansom, page 16. After the Elected State Officers' Class had been created, the law was again amended, effective July 1, 1981, to make "county elected officials, including any sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, school board member, or elected school board superintendent," Section 121.052(1)(g), Florida Statutes (1985), eligible for participation in the Elected State Officers' Class. Chapter 81-214, Laws of Florida (1981). Aside from holders of the offices named, the Comptrollers of Orange and Escambia Counties and the Mayor of Metropolitan Dade County are enrolled in the Elected State Officers' Class. (T. 40) Respondent viewed the Mayor of Metropolitan Dade County as differing in name only from a county commissioner and allowed participation in the Elected State Officers' Class on that account. (T. 50) With respect to the Orange and Escambia County Comptrollers, "the majority in one case of the duties of the Clerk were transferred to the Comptroller and in the other case, it seems like it gas about a 50/50 split of the prior duties being transferred over to the Comptroller." (T. 50) In these circumstances respondent decided that "based on the functions that they were performing, the duties of the office, that whether the title said Comptroller or Clerk, they essentially fit the definition." (T. 50) In response to a question from respondent's Assistant Director, Lew Dennard, respondent's chief legal officer, Augustus D. Aikens, Jr., wrote a memorandum dated October 20, 1981. Petitioners' Exhibit No. 1. As phrased by Mr. Aikens, the question was whether the statutory language "limits membership in the Elected State Officers' Class to those elected county officers who are enumerated in Section 121.052(1)(g)"? In the memorandum, Mr. Aikens declared himself of the opinion that the language "any county elected officer" was intended to establish the class of individuals eligible for participation in the Elected. State Officers' Class; and the term "including" followed by an enumeration of elected county officers was merely intended to be descriptive of the individuals eligible for inclusion in the Elected State Officers' Class as county elected officers. Accordingly, the class is not exhausted by the enumeration found in subsection (g). Other elected county officers are also includable in the Elected State Officers Class. Petitioner's Exhibit No. 1. On November 6, 1984, however, respondent promulgated Rule 22B-1.05, Florida Administrative Code, which did not make participation in the Elected State Officers' Class of the Florida Retirement System mandatory for any county officer and provided: Effective July 1, 1981, participation in the Elected State Officers' Class of the Florida Retirement System shall be optional for the following elected county officers: sheriff, tax collector, property appraiser, supervisor of elections, clerk of the circuit court, county commissioner, district school board member, and elected district school board superintendent. The elected officer may transfer to and participate in the Elected State Officers' Class by submitting an application to the Administrator within one year from July 1, 1981 if already in office on that date, or within one year from the date of election if elected after July 1, 1981. Officers appointed to fill an unexpired term may join the Elected State Officers Class under this provision. An elected county officer who transfers to the Elected State Officers' Class and who fails to win reelection to an elected office shall cease to be a member of the class. If the member returns to a position covered under the Florida Retirement System he shall receive credit thereafter based on the class of membership of his position. 22B- 1.055(2)(d) In the substantial interest proceedings, Case No. 85-1718, respondent has taken the position that this rule provision, along with the statutory language it implements, preclude petitioners participation in the Elected State Officers' Class of the Florida Retirement System.
The Issue In separate cases arising out of the same incidents, the Florida Commission on Ethics found probable cause that Respondent Rice violated Section 112.3143(3), F.S. by voting in her official capacity on a measure which inured to her special private gain; that she violated Section 112.313(6), F.S. by having a memorandum of voting conflict falsified; and that Respondent Thomas violated Section 112.313(6), F.S. by falsifying a memorandum of voting conflict. The issue, therefore, is whether those violations did occur, and if so, what penalty is appropriate.
Findings Of Fact The incorporated municipality of Bunnell is a small community in Flagler County Florida. Opal Rice was a Bunnell City Commissioner for eight consecutive years ending in March 1992. Becky Thomas has been Bunnell City Clerk for "six years come June 1993". She is appointed annually by a majority vote of the City Commission. Earl Rice, as "everyone in Bunnell knows", is Opal Rice's husband. Back in 1989 he owned six or eight contiguous residential lots in Bunnell. Since everything around them except the back was business, he felt they would be a "good place for a little business" and he applied to the city for rezoning. He felt the property value would be enhanced and wanted the flexibility of developing the lots either as residential or business. The rezoning issue came before the commission for first reading on March 21, 1989. Mrs. Rice and three other commissioners voted for its approval, and one commissioner dissented, stating he felt the change was spot zoning. The issue came up for second reading at the April 4, 1989 commission meeting. City Attorney Taylor was asked if the amendment to the zoning ordinance would be spot zoning, and he opined that it would not. There was also some discussion about whether Mrs. Rice should sign a conflict of interest form. She said she did not think she had a conflict because the property was not in her name and she would not get a benefit. The City Clerk said she should file the form and Mrs. Rice agreed, just to be safe. Mrs. Rice then participated in the vote and the rezoning was approved 4-1. Sometime in 1991, a citizen came to the clerk's office and asked to see some records, including those related to the rezoning. Becky Thomas was on the phone and asked her to come back to pick them up later. When Ms. Thomas pulled the records she realized that the voting conflict forms had not been filed. In more recent months, Becky Thomas has become aware that the completion and filing of voting conflict forms is not her responsibility as Clerk, but rather is the responsibility of the individual commissioners. But in 1991, she was chagrined at her oversight on Mrs. Rice's forms and immediately filled them out. Ms. Thomas then called Mrs. Rice and asked her to come sign them. The two forms, styled "Form 8B Memorandum of Voting Conflict for County, Municipal and Other Local Public Officers", are comprised of two pages, including instructions. Becky Thomas prepared the forms to cover the two occasions described above, the first and second readings. Next to the signature line is a line, "Date Filed". On that line Becky Thomas typed the dates the votes were taken: March 21, 1989 and April 4, 1989, thinking that those were the relevant dates. Opal Rice signed each form on the space next to the dates. Mrs. Rice is a retired school teacher. She and her husband receive separate retirement checks. They pay their expenses from a joint account. Mrs. Rice believed that she was required to vote. During other meetings, she recalled, she heard other commissioners being told they had to vote and to file a notice of voting conflict later. She, herself, had previously filed voting conflict forms. She was not certain when the forms were supposed to be filed, but acknowledged that the filing should be rather soon after the vote. At hearing, Mrs. Rice was not particularly familiar with the details on the forms she signed, and she admitted that she did not read the instructions. Nor did she discuss the forms with Ms. Thomas. Although the dates next to her signature were not the dates she signed, she simply thought they were the dates the votes were taken. The printed forms bear the date, 1-91; and the forms in use in 1989 are not in evidence. The printed instructions include a plain prohibition against elected officers voting on measures which inure to their special private gain. The instructions also require that a conflict must be disclosed and abstension explained prior to the vote being taken, and again after the vote by filing the form within fifteen days. Clifford Allen Taylor has been Bunnell's City Attorney, part time, for seven years. He was present for the second reading, but not the first. He has some recollection of the discussion of Commissioner Rice's possible conflict but he did not participate in the discussion. The law, as he understood it back then, was that the commissioner was required to vote and make a disclosure.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Commission on Ethics enter its final order and public report finding no violation of Section 112.313(6), F.S. by either Opal Rice or Becky Thomas; finding violations of Section 112.3143, F.S. by Opal Rice when she voted on rezoning her husband's property and neglected to file memoranda of the conflict within fifteen days; and recommending that a civil penalty be assessed in the amount of $100.00. DONE AND RECOMMENDED this 26th day of March, 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 26th day of March, 1993. COPIES FURNISHED: Craig Willis, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1502 Tallahassee, Florida 32399 Opal Rice Post Office Box 696 Bunnell, Florida 32110 Becky Thomas Post Office Box 756 Bunnell, Florida 32110 Bonnie Williams Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact On September 30, 2010, Petitioner submitted an online application for a tax registration as a new business entity. Respondent began the process of creating an internal "account" for Petitioner on October 1, 2010. On October 2, 2010, Respondent's database system created a delinquency notice advising Petitioner that sales and use tax returns for calendar years 2007, 2008, and 2009 had not been received. On October 4, 2010, Respondent received an envelope from Petitioner containing sales and use tax returns for calendar years 2007, 2008, 2009, and 2010, as well as Petitioner's signed Tax Amnesty Agreement. No remittance accompanied the tax returns (or the remittance check was misplaced), so the Department's system generated a billing notice to Petitioner dated December 10, 2010, and a Notice of Final Assessment dated January 25, 2011. Petitioner advised Respondent that a check had been sent along with the tax returns. Discussions between the parties ensued, and Petitioner was asked to provide a replacement check. On or about March 11, 2011, Respondent received a replacement payment from Petitioner. Petitioner, by way of his replacement check, paid the Department the sum of one thousand eighty-nine dollars and forty-three cents ($1,089.43) in full settlement of all amounts due and owing under Petitioner's sales and use tax returns for calendar years 2007, 2008, 2009, and, although not included in the initial petitions, 2010. Respondent accepted the payment made by Petitioner in full settlement of the sales and use taxes owed for the years in question. Petitioner is not liable for any further penalties, interest, or other payments on the aforementioned tax returns.
Recommendation Based on the foregoing Findings of Fact, it is RECOMMENDED that the petitions for administrative hearing in this case be dismissed, as there are no further disputed issues of material fact. DONE AND ENTERED this 15th day of April, 2011, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 15th day of April, 2011. COPIES FURNISHED: Lisa Vickers, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32399-0100 Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Patrick John McGinley, Esquire Law Office of Patrick John McGinley, P.A. 2265 Lee Road, Suite 100 Winter Park, Florida 32789 John Mika, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been licensed as a certified public accountant in the State of Florida, having been issued license number 0018740. Eileen and Robert Organ engaged Respondent's services to prepare income tax returns for Ma's Kitchen, Inc., and Respondent prepared several years of returns for them. In a letter dated March 19, 1999, the Organs advised Respondent that his services were no longer required. Thereafter, Respondent gave his file on Ma's Kitchen to his attorney to collect Respondent's outstanding bill for services rendered to the Organs in the amount of $6,000. On July 6, 1999, the Organs sent Respondent a letter stating that their new accountant needed the ledger books and files of Ma's Kitchen, that the Organs would pick up those records from Respondent, that Respondent's attorney had sent them letters, and that they would file a complaint against Respondent if they did not hear from Respondent. Respondent thereafter made unsuccessful attempts to contact the Organs. The Organs did not contact Respondent after their July 6 letter to make arrangements to pick up their file. Further, the Organs' new accountant did not contact Respondent to obtain copies of Respondent's records although he contacted someone in Respondent's attorney's office who told him he could come there to look at the file. The new accountant never went to Respondent's attorney's office to look at the records for Ma's Kitchen, Inc. Respondent had told his attorney to give the Organs any documents they asked for if they contacted him as long as they paid any copying charges. Respondent's attorney and the Organs' attorney wrote letters to each other, containing their interpretations of their clients' positions. Respondent's attorney took the position that all records provided by the Organs had been returned and that Respondent's work product was not needed by the Organ's new accountant but would be released when Respondent's bill was paid. The Organs' attorney demanded that Respondent return all records in his possession and suggested that Respondent owed money to his clients. The Organs had provided to Respondent check stubs, bank statements, payroll tax returns, and other financial information to be used to prepare tax returns for them. Using those documents, Respondent had entered the data in his computer and had created a computer-generated general ledger. He had returned to the Organs all records they gave him long before they terminated his services, and their attorney's demand that he return records already returned was non-productive. The demand of the Organs' attorney that Respondent return all corporate books and records was also non-productive. Respondent had never possessed Ma's Kitchens' articles of incorporation, corporate seal, by-laws, or minutes of meetings, those items commonly referred to as corporate books and records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 1st day of November, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 1st day of November, 2001. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Samuel Francis May, Jr. 20283 State Road 7, Suite 300 Boca Raton, Florida 33498 Martha Willis, Division Director Division of Public Accounting Department of Business and Professional Regulation 240 Northwest 76 Drive, Suite A Gainesville, Florida 32607 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
