Conclusions Having reviewed the administrative complaint dated January 11, 2011, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Ex. 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. Respondent shall surrender the home health agency license that has an expiration date of 7/10/2011 and in addition, Respondent shall pay the full fine of $15,000.00 if any of the principles of Respondent applies for a home health agency in the future. 3. Each party shall bear its own costs and attorney’s fees. 4. The above-styled case is hereby closed. Filed May 11, 2011 2:54 PM Division of Administrative Hearings 4 DONE and ORDERED this _|! day of Meg ; 20__, in Tallahassee, Leon County, Florida. Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Nelson E. Rodney Andrea Dawes, Administrator Assistant General Counsel Swan Home Care Services Agency for Health Care 2500 Quantum Lakes Boulevard Administration Suite #203 8333 NW 53 Street, Suite 300 Boynton Beach, Florida 33426 Miami, Florida 33166 (U. S. Mail) (Interoffice Mail) Jan Mills Hon. Claude B. Arrington Agency for Health Care Administrative Law Judge Administration Division of Administrative Hearings 2727 Mahan Drive, Bldg #3, MS #3 The DeSoto Buildin g Tallahassee, Florida 32308 1230 Apalachee Parkway (Interoffice Mail) Tallahassee, Florida 32399-3060 Home Care Unit Agency for Health Care Administration 2727 Mahan Drive, MS #34 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named PP and entities by U.S. Mail, or the method designated, on this the ay of Qe , 20// . 7 Richard Shoop, Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
The Issue The issue presented for decision in this case is whether Petitioner, the School Board of Lee County (the "School Board"), has just cause to dismiss Respondent, an educational support employee of the Lee County School District, for theft of school property and smoking on school grounds.
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: Since October 1983, Respondent has been employed by the Lee County School District. He was initially employed as a trades helper, promoted to furniture repair, and finally to carpenter in the maintenance department of Facilities Management. He worked for the school district continuously until December 3, 1998, when he was suspended with pay and benefits. Following a predetermination conference and a petition by the Superintendent of Schools, the School Board voted to suspend Respondent without pay and benefits on April 20, 1999. Throughout his active employment with the school district, Respondent’s performance evaluations and assessments showed that he met or exceeded all performance criteria, aside from recurring criticism for overuse of leave time. Joe Vaughn, Respondent’s immediate supervisor, described his job performance as above average. On November 23, 1998, Mr. Vaughn teamed Respondent with Gary Stephans, another carpenter, to build bulletin boards and dry erase boards at Tropic Isles. The men were working outside the portables on the Tropic Isles campus. Annette Puckett works in the Title I department of the School Board. Title I is a federally funded program that provides take-home computers to students. Among Ms. Puckett’s duties is cleaning and reprogramming the computers. Ms. Puckett’s main office is at Suncoast Elementary School ("Suncoast"), but her job entails maintaining the computers at all of the Title I schools in the district. On November 23, 1998, Ms. Puckett was cleaning computers in the Family Learning Center portable at Tropic Isles. Ms. Puckett testified that she knew Respondent fairly well, and saw him outside working with Mr. Stephans, with whom she was less familiar. She had a brief conversation with Respondent, during which she told him that he and Mr. Stephans were welcome to come into the portable to get out of the heat when they finished their job. Respondent and Mr. Stephans went into the portable where Ms. Puckett was working and took a break in the air conditioning. With Ms. Puckett’s consent, they then moved their materials into the portable and used one of the inside tables as a work table to build bulletin boards. The portable contained audio-visual equipment, including a television, a stereo, and VCRs used to duplicate tapes for parent training classes. The VCRs were on a stand that also held several neatly stacked piles of blank VHS videotapes. Mr. Stephans recalled that the tapes were in white cardboard sleeves; Ms. Puckett recalled that the tapes had no covers. Because Tropic Isles also used this portable as its "Christmas store," the portable contained boxes of holiday materials, including decorative paper bags for gifts. Both Mr. Stephans and Ms. Puckett testified that as they worked on their respective tasks, Respondent wandered through the portable, looking through its contents. Respondent began looking into the holiday boxes. Ms. Puckett told him that those materials belonged to Tropic Isles, not her program, and that he should not touch those boxes. Ms. Puckett testified that Respondent next walked over to a closet. She told Respondent not to go in the closet. Ms. Puckett stated that Respondent told her that he wanted to see if he could use anything in the closet for his daughter’s upcoming birthday. Respondent’s employment file indicates that his daughter’s birthday is on November 30. Mr. Stephans and Ms. Puckett testified that Respondent took several of the decorative bags and at least two of the videotapes, and walked out of the portable with them. When Respondent returned into the portable shortly thereafter, he was empty-handed. Ms. Puckett testified that, while Respondent was outside the portable, Mr. Stephans said to her that they could all be blamed for Respondent’s theft, because they were the only three people in the portable. Mr. Stephans recalled telling Ms. Puckett that he found it "hard to believe" what Respondent had just done. Ms. Puckett testified that, when Respondent returned to the portable, she confronted him and asked him if he realized he could lose his job over two tapes. Mr. Stephans remembered her statement to Respondent, but recalled that she made it as Respondent was exiting the portable with the tapes and bags. Ms. Puckett testified that Respondent answered that she had given him the tapes. Ms. Puckett stated that she adamantly denied that she had given the tapes to Respondent, who then stated that Ms. Puckett’s Title I program had so much money it would never miss two tapes. Mr. Stephans testified that about ten minutes after returning to the portable, Respondent took at least two more tapes and walked out of the portable with them. Mr. Stephans stated that Ms. Puckett was working with her back turned to the two men, and thus he could not be sure that Ms. Puckett witnessed this second incident. Ms. Puckett confirmed that she saw only one such incident. Mr. Stephans testified that during a break from work in the portable, Respondent smoked a cigarette on the school grounds. Respondent admitted to smoking the cigarette. Shortly before 3 p.m., Mr. Stephans and Respondent packed their materials into the School Board van they had driven to the site, and returned to Maintenance headquarters to clock out for the day. Mr. Stephans testified that he saw a plastic grocery bag between the two front seats of the van, and he could see that the tapes were in the bag. Mr. Stephans testified that Respondent drove the van, and that Respondent mentioned a need for caution when driving into the Maintenance parking lot to avoid the security cameras. Respondent parked the van and each man carried his own tools to his own car, walking in opposite directions. Mr. Stephans testified that when he returned to the van after stowing his tools in his car, the plastic grocery bag containing the tapes was no longer in the van. Mr. Stephans testified that he told no one about the incident that afternoon because he thought that Respondent would think about what he had done and correct the situation. The next morning, November 24, 1998, Respondent and Mr. Stephans were again teamed as partners. Mr. Stephans testified that Respondent was concerned and on edge, worried about getting into trouble over what he had done. Mr. Stephans advised him to return the tapes and apologize to Ms. Puckett, and thus perhaps receive a lesser punishment for the theft. Mr. Stephans testified that Respondent answered that he could not return the tapes, as that would constitute an admission that he had taken them. The two men drove to another campus to work and did not discuss the situation again that day. Mr. Stephans did not discuss the matter with anyone else on November 24, 1998. On November 25, 1998, Mr. Stephans and Respondent had another conversation about the tapes. Respondent again voiced his concerns, Mr. Stephans again advised Respondent to return the tapes, and Respondent again declined the advice. Mr. Stephans testified that at this point, he became worried that he might be implicated in the matter if he maintained his silence about Respondent’s actions. Mr. Stephans wanted to discuss the matter with his supervisor, Joe Vaughn, but Mr. Vaughn was not at work that day. Mr. Stephans decided to talk the matter over with another carpenter, Joe Murphy. Mr. Murphy had been Mr. Stephans’ first partner when the latter began with the School Board, and Mr. Stephans still considered him a friend and confidant. Mr. Murphy told Mr. Stephans that, because Mr. Stephans witnessed the incident, he could be found just as culpable as Respondent if he failed to come forward. Mr. Murphy advised Mr. Stephans that he had no choice but to report Respondent’s actions. Mr. Stephans asked Mr. Murphy to accompany him to the office of Donald Easterly, assistant director of maintenance and supervisor to the absent Mr. Vaughn. The two men went to Mr. Easterly’s office and told him the story. Mr. Easterly told them that Rick Gutknecht, the head of Facilities Management, was out that day but that he would discuss the matter with Mr. Gutknecht when he returned. After the men left his office, Mr. Easterly called Marilyn Strong, director of personnel for the School Board, who advised him to call the principal of Tropic Isles and confirm that items were missing from the portable. Cecelia Mattingly was the principal of Tropic Isles. Mr. Easterly phoned her and asked if anything had been reported missing at the school. Ms. Mattingly checked and confirmed that nothing was missing, though she did not check the Family Learning Center portable. Mr. Easterly subsequently suggested she check that portable. Ms. Mattingly spoke with the full-time Title I employee assigned there. The employee confirmed that tapes appeared to be missing from the neat stacks on the television stand. The employee estimated that it would take six tapes to fill the space in the stack. Ms. Mattingly sent Mr. Easterly an electronic mail message confirming that tapes were missing. After leaving Mr. Easterly’s office, Mr. Stephans returned to work, partnered again with Respondent. They drove together to Tropic Isles to continue work on the bulletin boards. Mr. Stephans testified that when they arrived at Tropic Isles, the building supervisor angrily confronted them, asking if they knew anything about tapes missing from the Family Learning Center. Respondent denied any knowledge about tapes. Mr. Stephans remained silent. Mr. Stephans testified that after the building supervisor walked away, Respondent told him to get in the van. Respondent drove the van to Suncoast in search of Ms. Puckett. Mr. Stephans stated that during the drive to Suncoast, Respondent poked him in the chest with his finger and said that if Mr. Stephans turned him in for stealing the tapes, Respondent would say either that Mr. Stephans stole them or that Ms. Puckett gave him the tapes. Mr. Stephans characterized Respondent as "in a frenzy." Mr. Stephans testified that Respondent searched the Suncoast campus for Ms. Puckett. Respondent went to the portable where she worked, but it was locked. Respondent persuaded the custodian to open the portable so that he could attempt to find Ms. Puckett’s home phone number inside. Respondent went inside while Mr. Stephans waited outside. Respondent soon emerged, empty-handed. Mr. Stephans testified that someone on the campus told them that Ms. Puckett had gone for the day. Respondent told Mr. Stephans he could get her phone number from someone at Maintenance who knew Ms. Puckett. Mr. Stephans testified that he and Respondent returned to Maintenance at about 3 p.m., and Respondent began asking around for Ms. Puckett’s phone number. Mr. Stephans went to Mr. Easterly’s office and briefed him on the events of the day, including Respondent’s threat to blame Mr. Stephans or Ms. Puckett if the incident were reported. Ms. Puckett heard from a Suncoast employee that Respondent had been looking for her, saying he had something very important to discuss with her. That evening, Ms. Puckett tried to find Respondent’s phone number. Failing that, she found Mr. Stephans’ number in the phone book and called him. Ms. Puckett testified that she became frustrated because Mr. Stephans would not tell her why Respondent was urgently trying to reach her. She refused to give Mr. Stephans her phone number because she did not want Respondent to know it. Mr. Stephans testified that he did not want to discuss the matter with Ms. Puckett because he wanted to leave the matter in Mr. Easterly’s office and not become further involved. He told Ms. Puckett about the confrontation with the Tropic Isles building supervisor, but not about his conversations that day with either Respondent or Mr. Easterly. Mr. Stephans gave Respondent’s home phone number to Ms. Puckett so that she could speak directly to Respondent. Ms. Puckett phoned Respondent, who also told her about the confrontation with the building supervisor, and that he had said to the supervisor that he knew nothing about the tapes. Ms. Puckett testified that Respondent told her that if he knew nothing about the tapes, and Mr. Stephans knew nothing about the tapes, and she knew nothing about the tapes, then they would all have the same story. Ms. Puckett testified that Respondent asked her if she was recording their conversation. She said she wasn’t. Respondent again asserted that Ms. Puckett had given him the tapes. Ms. Puckett again stated that she did no such thing. Respondent told her that he could lie about her and about Mr. Stephans, and suggested she do the same about what he had done. Ms. Puckett responded that she had no reason to lie. The next day, November 26, 1998, was Thanksgiving Day. Nothing of relevance to this case occurred over the Thanksgiving weekend. Both Mr. Stephans and Ms. Puckett testified that their most recent conversations with Respondent made them worried and apprehensive over the weekend, because they both feared that Respondent would attempt to convince school authorities that one or both of them stole the tapes. Ms. Puckett testified that she was still scared on the following Monday, November 30, 1998. She hesitated to come forward because she was afraid she would not be believed. On that morning, Mr. Easterly told Mr. Stephans to report to Mr. Gutknecht. Mr. Stephans reported to Mr. Gutknecht’s office and told him his version of events. Mr. Gutknecht requested that Mr. Stephans place his statement in writing. Mr. Stephans resisted producing a written statement. Mr. Stephans testified that, before writing a statement, he wanted assurances that he would not get into trouble. He testified that Mr. Gutknecht became angry at his refusal to write a statement, and refused to make any promises that he would not suspend either or both Mr. Stephans and Respondent. Mr. Gutknecht essentially confirmed Mr. Stephans’ testimony on this episode. Mr. Gutknecht observed that Mr. Stephans believed his obligation was over once he had informed management of the situation. Mr. Gutknecht testified that he told Mr. Stephans that the investigation would go forward whether or not Mr. Stephans gave a written statement. Mr. Gutknecht told Mr. Stephans that as of that moment, all he had were fingers pointing both ways regarding the tapes. Mr. Gutknecht would not rule out any course of action, depending on the facts revealed by his investigation. Mr. Stephans implored Mr. Easterly to intervene, but Mr. Easterly told Mr. Stephans that he should do the right thing and be honest about what happened. Mr. Stephans also talked to Mr. Vaughn, who told him that Mr. Gutknecht would eventually learn the facts and that Mr. Stephans would be wise to go along and provide a written statement. Mr. Vaughn agreed to write the statement at Mr. Stephans’ dictation, because of Mr. Stephans’ poor handwriting. Both Mr. Vaughn and Mr. Stephans testified that the latter was the sole author of the statement, and that Mr. Vaughn simply wrote down what he was told by Mr. Stephans. Three drafts of the statement were written. Messrs. Gutknecht, Stephans, and Vaughn all confirmed that when the first two drafts were discussed, additional information came up that caused Mr. Gutknecht to tell Mr. Stephans to rewrite the statements to include that information. Only the final draft was presented in evidence. On Tuesday, December 1, 1998, Ms. Puckett came forward and told her immediate supervisor about the events at Tropic Isles. The supervisor advised her to wait and see what Facilities Management was going to do about the situation, because the supervisor was aware that Respondent’s supervisor knew about the incident. On December 2, 1998, Ms. Puckett took it upon herself to call Mr. Vaughn, mainly to complain about Respondent’s trying to get her home phone number and having himself let into her office at Suncoast. Mr. Vaughn transferred the call to Mr. Gutknecht, who advised her to call him immediately if Respondent contacted her. Ms. Puckett testified that during the conversation she told Mr. Gutknecht that she had seen Respondent take some tapes out of the portable at Tropic Isles. Soon thereafter, Ms. Puckett went to Mr. Gutknecht’s office to meet him in person and give him the details of events. Ms. Puckett did not produce a written statement until she was contacted by Gail Williams, the School Board’s investigator. Ms. Puckett’s written statement was admitted into evidence. Respondent testified on his own behalf. He agreed that on November 23, 1998, he and Mr. Stephans were working outside at Tropic Isles and that Ms. Puckett invited them to work in the Family Learning Center portable. Respondent disputed the testimony that he loafed while Mr. Stephans worked, stating that he worked the entire time they were in the portable except during their afternoon break. Respondent admitted to admiring the audio-visual equipment in the portable, and testified that there were videotapes in white cardboard sleeves stacked on the video stand. Respondent denied taking any of the tapes or holiday bags in the portable and said he had no idea what happened to them. Respondent testified that, during their break, Mr. Stephans initiated a conversation with Ms. Puckett about the movie, "Armageddon." Mr. Stephans had just bought the tape on sale at Wal-Mart, and offered to lend her the tape or even make a copy of it for her. Ms. Puckett confirmed that this conversation occurred, though she could not definitely recall Mr. Stephans offering to copy the tape. However, Respondent also testified that he found the box full of holiday bags, took one of the bags from the box, and, as a joke, put two of the videotapes in the bag and handed it to Ms. Puckett, saying that now she had the blank tapes to copy "Armageddon." Respondent testified that Ms. Puckett and he laughed at his joke. Respondent stated this was the only time he placed his hands on the tapes or the bags. Having denied taking the tapes and bags, Respondent obviously also denied much of the testimony by Mr. Stephans and Ms. Puckett as to subsequent events. He agreed that the building supervisor at Tropic Isles approached them the next day about missing items from the portable. However, he testified that he and Mr. Stephans mutually agreed to drive to Suncoast and find Ms. Puckett, to find out what was going on. Respondent testified that he and Mr. Stephans made inquiries at Suncoast about her whereabouts and home phone number. Respondent agreed that he spoke to both Mr. Stephans and Ms. Puckett on the phone that evening. He testified that Mr. Stephans called him first, to tell him that Ms. Puckett had just called and was scared and nervous about the tapes. Respondent testified that Mr. Stephans stated, "If I know nothing, and you know nothing, then nobody knows nothing." Respondent stated that he really didn’t know anything, and didn’t want to know anything. Respondent testified that he was concerned, because he had been in the portable and had his hands on the tapes. In his written statement, Respondent admitted telling Ms. Puckett that they should all say they knew nothing, but also stated that he was merely repeating Mr. Stephans’ statement to him. Respondent testified that he did not know why Mr. Stephans and Ms. Puckett would accuse him of theft. He stated that it made no sense to steal with people there watching him, given all the opportunities he’d had over the years to steal unseen. He noted that he has keys to all the portables in the school system, that he has often been left alone to do work in classrooms, yet until now has never been credibly accused of theft. Several witnesses testified as to Respondent’s rocky relationships with fellow workers, including Mr. Stephans. Several years prior to the events of this case, Respondent blew the whistle on theft of materials in Maintenance, which ultimately resulted in the forced retirement of one employee. Since that time, Respondent has had a reputation as a "snitch" among some of his fellow workers. Respondent testified that there were strains in his working relationship with Mr. Stephans due to the ostracism Mr. Stephans felt from being partnered with Respondent. Respondent also encountered problems due to the fact that he was promoted to carpenter despite a lack of training in the field, but used his seniority to avoid certain jobs and resist taking orders from his more skilled equals. Respondent’s attitude led to resentment from fellow workers. Two years prior to these events, Respondent complained to his union about a policy enacted by Mr. Gutknecht regarding parking spaces at the Maintenance facility. Mr. Gutknecht made it clear to Respondent that he did not appreciate Respondent’s taking the complaint outside of the department before discussing it with him. Respondent testified that Mr. Gutknecht would not discuss the Tropic Isles incident with him or ask him about the written statement he submitted on December 3, 1998. Respondent stated that he learned Mr. Gutknecht was investigating the matter from a co-worker, not from Mr. Gutknecht himself. In summary, Respondent attempted to demonstrate that Mr. Gutknecht and those working for him had reason to seize upon these allegations as a pretext for firing him, despite the inconsistencies in the stories told by his two accusers and despite the fact that no accounting was ever made to demonstrate that any tapes were in fact missing from the Family Learning Center portable at Tropic Isles. There is no question that Mr. Stephans’ and Ms. Puckett’s testimony varied on some points. Mr. Stephans recalled that the tapes had white cardboard covers, while Ms. Puckett testified they had no covers. Mr. Easterly recalled that Mr. Stephans told him that Respondent took three tapes on each trip out of the portable, and that Mr. Stephans made no mention of holiday bags. Ms. Williams’ investigative report states that Mr. Stephans told her that Respondent took two tapes on each trip, and that Mr. Stephans discussed the theft of the bags. In his testimony at the hearing, Mr. Stephans could not say definitely how many tapes Respondent took. However, it is found that the testimony of Ms. Puckett and Mr. Stephans was essentially consistent and credible, considering that their statements were made at various times over a period of more than one year. The slight variations in details establishes that Ms. Puckett and Mr. Stephans plainly did not collaborate to concoct a story, but were providing their own honest, independent recollections of events. Respondent’s version of events was less credible than the version related by Ms. Puckett and Mr. Stephans. Respondent’s story regarding "Armageddon" appears less an honest recollection than an effort to anticipate an investigation and explain why his fingerprints were on the items in the portable. It also strains credulity that Respondent and Mr. Stephans would set off on a frantic search for Ms. Puckett at Suncoast simply out of curiosity, without any reason to believe Ms. Puckett knew more about the situation than they did. Mr. Stephans’ version of the trip to Suncoast is inherently more credible. Respondent is also correct that no inventory was taken of the tapes in the Family Learning Center portable to establish how many tapes were missing. However, Mr. Stephans and Ms. Puckett both testified that the tapes were neatly stacked in even rows, filling the video stand. Missing tapes would create an obvious space in the stacks, and that is precisely what the Title I employee reported to Ms. Mattingly, the principal of Tropic Isles. Given these facts, along with two eyewitnesses to the theft, there was no need to take an inventory to establish that Respondent took some number of tapes. It is not necessary to address Respondent’s argument that it made no sense for him to steal tapes and bags in front of witnesses, because the facts established that he did steal tapes and bags in front of witnesses. Respondent contends that over his 17 years as a School Board employee, he has had access to any number of buildings and all manner of opportunities to steal property unseen. Surely, he would not jeopardize his job by stealing such trifling items in front of two fellow employees. It would be as plausible to contend that the trifling nature of the items led Respondent to believe that no one would seriously pursue the matter. Ms. Puckett testified that Respondent nonchalantly told her that the tapes would not be missed. In any event, the facts established that Respondent took the items. His rationale or motive for doing so is irrelevant. It is also not necessary to address Respondent’s theory that Mr. Gutknecht and others disliked Respondent and wanted a reason to get rid of him. Even if this theory were accepted, Respondent’s own actions gave his perceived opponents sufficient justification to act against him. Finally, Respondent argues that he is being singled out for harsher punishment than his offense merits. He argues that the School Board has retained employees who admitted taking School Board property and paid restitution. This argument was borne out by the testimony of John Hennebery, the director of employee relations for the School Board. However, in this case, Respondent has neither admitted the theft nor offered restitution. Thus, the cited examples of more lenient treatment are inapplicable. In conclusion, it is found that Respondent stole School Board property, attempted to coerce witnesses to cover up the theft, and continued to deny the theft up to and including the final hearing in this matter.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order finding that Respondent committed theft of School Board property, and ordering that Respondent be dismissed from employment with the Lee County School Board. DONE AND ENTERED this 26th day of May, 2000, in Tallahassee, Leon County, Florida. 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 26th day of May, 2000. COPIES FURNISHED: Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3988 Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Dr. Bruce Harter, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901-3916 Honorable Tom Gallagher Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue The issue before the Florida Land and Water Adjudicatory Commission (FLWAC) in this proceeding is whether to grant the Petition to Establish the Tern Bay Community Development District (Petition), dated December 18, 2003. The local public hearing was conducted for the purpose of gathering information in anticipation of rulemaking by FLWAC.
The Issue The issue to be determined is whether Respondents, Pamela Sue and Karle Simmons, are guilty of violating section 475.25(1)(b), Florida Statutes (2007), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the responsibility to license and regulate real estate professionals pursuant to section 20.165 and chapters 120, 455, and 475, Florida Statutes. At all times relevant to the Administrative Complaint, Respondent Pamela Simmons was a licensed real estate sales associate issued license number 695141. The last license issued was as an active sales associate with Atlantic Partners Realty, LLC, 4116 3rd Street, Jacksonville Beach, Florida 32250. At all times material to the Administrative Complaint, Respondent Karle Simmons was a licensed real stated sales associate, issued license number 3106888. The last license issued to Karle Simmons was as an inactive sales associate at 4045 Lionheart Drive, Jacksonville, Florida. Sometime in 2005, Pamela Simmons sold a home to David and Patsy Bickel located at 1613 Rain Bird Court, Jacksonville, Florida. After living in the home for approximately a year, Mr. Bickel was offered a job in North Carolina, and the Bickels decided to sell the Rain Bird Court home. They were able to stay at a home owned by Ms. Bickel's father in North Carolina and planned to do so until the Rain Bird Court home sold. The listing agreement to sell the Rain Bird Court home lists Pamela Simmons as the listing sales agent for Prudential Network Realty, and the term for the listing was September 1, 2006, through March 1, 2007. The Bickels believed that their stay in Mrs. Bickel's father's home would be short, and they left their personal belongings, such as furniture, linens, china and kitchenware, intact at the Rain Bird home. The items remaining at the home included personal financial information, which the Bickels would not have left if someone else would be living in their home. While cable and phone had been disconnected, the Bickels continued to pay for water and electricity at the home. The house did not sell during the listing period. Mrs. Bickel kept in contact with the Simmons through phone calls and e-mails. Her primary contact was with Pamela Simmons. After several months, the Bickels discussed options for dealing with the home, including the possibility of a lease purchase arrangement. They were hesitant to go in this direction, however, because of the potential for damage to their home. Moreover, they never agreed to rent the home and never were presented with a lease of any kind for any tenant. On or about July 9, 2007, the Bickels returned to Jacksonville to check on their home and see how to proceed in terms of relisting it. When they arrived at the Rain Bird Court home, it was after midnight. Upon approaching the house, they could see lights on inside and it appeared that the house was occupied. Mr. Bickel got out of the car and approached the house. He saw that there was a missing pane on the garage door, and he could hear the washer and dryer running. At this point, Mr. Bickel called the police. The police verified that the Bickels owned the home and then spoke to the man and woman who were in the house. The man represented that the realtor, "Karle," had rented the house to him, but that while he had been in the home for approximately two weeks, he had paid no rent and had no lease agreement. The officer called Karle Simmons, who then spoke briefly to Mr. Bickel. Karle apparently attempted to remind Mr. Bickel that permission to obtain a renter had been obtained verbally, but Mr. Bickel was not interested in entertaining such a suggestion. The Bickels were very disturbed by finding someone in their home, among their belongings, and filed a complaint with the Northeast Florida Association of Realtors (NEFAR) and with the Department of Business and Professional Regulation. After a hearing which both the Bickels and the Simmons attended, NEFAR imposed a fine and required the Simmons to attend ethics classes. During DBPR's investigation into the Bickels' complaint, Karle and Pamela Simmons spoke to the investigator, Robert Krantz. They also submitted two joint, unsigned letters, one during the investigation and one in response to the Administrative Complaint. In both letters, consistent with their statements to Mr. Krantz, Respondents indicated that they had rented the Rain Bird Court home to Mr. Moffett, the man found there on July 9, 2007, on a month-to-month basis, but that they believed the Bickels had given them verbal authorization to do so. They acknowledged that they had no written authorization to rent the property; had collected no rent or security deposit; did not have a lease signed by Moffett or the Bickels; and had no property management agreement with the Bickels. Clear and convincing evidence indicates that the Bickels neither authorized the pursuit of having a tenant in their home, nor agreed to have this specific tenant. Clear and convincing evidence was also presented that the Bickels received no compensation for Mr. Moffett's use of their home.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding that Respondents, Pamela Sue Simmons and Karle Simmons, violated section 475.25(1)(b), imposing fines of $1,000 each and revoking each Respondent's license. DONE AND ENTERED this 14th day of April, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 14th day of April, 2011. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Pamela Sue Simmons Karle John Simmons 2417 Brook Parkway Jacksonville, Florida 32246 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether a proposed activity by Cayo Costa Island Partnership is exempt from permitting.
Findings Of Fact Cayo Costa Island is a bridgeless barrier island situated between Gasparilla Island to the north and Captiva Island to the south. East of Cayo Costa Island is Pine Island, and east of Pine Island is Cape Coral. In the 1960s, Travis Gresham subdivided and commenced development of a portion of Cayo Costa Island. Development included the dredging of canals. Eventually, one or more plat maps were recorded in the public records of Lee County, so that warranty deeds for residential lots referred to such recorded plat maps. There is also a subdivision sales plat map, which may not have been recorded. Not all of the land was subdivided into lots. The sales plat map reserves a considerable amount of land and canals for future development. One of the reserved areas is to the east of the subdivided lots. The location of the proposed dock is in the extreme southwest corner of this unplatted area. The dock would be located at the western end of a relatively wide manmade canal, which measures 2000 feet long and 105 feet wide. The east end of the canal terminates in Pine Island Sound. Petitioner and her late husband purchased from Mr. Gresham lot 16 in block 1 over 30 years ago, and they moved onto the island almost 20 years ago. The lot does not abut the canal, nor the upland adjacent to the subject dock. She has permanently resided on the island continuously since 1976. In 1984, she and her husband conveyed their property by warranty deed to the State of Florida, reserving a life estate. Petitioner's husband and some friends constructed the subject dock at the end of the canal in September 1978. A couple of years later, another nearby resident named Carl Noah substantially enlarged the dock. On March 16, 1993, Mr. Noah conveyed by warranty deed his real property to Paul Faust. At the same time, Mr. Noah gave Mr. Faust a quitclaim deed for "boat docks constructed by [Mr. Noah] to be used with the [residential] structure." After purchasing the property from Mr. Noah, Mr. Faust was contacted by Petitioner, who told him that she had previously owned the dock and that Mr. Noah had shared it with her. Mr. Faust agreed to share the dock with her, for as long as he owned it. There are no recorded easements concerning the use of the dock. On the sales plat map, the west end of the canal is clearly separated from the subdivided area by a road, which is named Harbor Drive. However, Harbor Drive was never constructed and there is no physical evidence of the proposed road. Petitioner's late husband and his friends who helped build the dock mistakenly believed that the west end of the canal terminated at Harbor Drive. Undoubtedly, other persons were similarly confused, including the property assessor, who had never assessed the property that separates the west end of the canal from Harbor Drive. However, in May 1993, Noel Andress, one of the partners of Cayo Costa Island Partnership, obtained a warranty deed from Mr. Gresham for a triangular- shaped piece of land running north just to the existing dock from the intersection of Harbor Drive and an actual road known as La Costa Drive. Mr. Andress quitclaimed the triangular-shaped parcel, which is described by metes and bounds, to Cayo Costa Island Partnership on January 13, 1994. After Mr. Andress acquired the triangular-shaped parcel, he directed his attorney to write Petitioner and Mr. Faust and inform them to remove their personal property from the real property that Mr. Andress had recently acquired. Mr. Faust is contesting this matter in court. Unfortunately, the record does not include the application or applications submitted by Cayo Costa Island Partnership. Mr. Andress testified that he submitted an application in February or March of 1993. The proposed dock, which would replace the dock built by Mr. Sellars and Mr. Noah, would serve a single family. The proposed dock would consist of two sections: a 5' by 92' main section and a 6' by 10' walkway to the upland area. Thus, the total area of the dock would be 520 square feet. The application reportedly provides that Cayo Costa Island Partnership would use turbidity barriers during construction. The location of a 92-foot dock running parallel to the end of a 2000- foot long undeveloped canal presents no impediment to navigation. There is no reason to infer an adverse impact to flood control or, as long as turbidity barriers are used, a violation of water quality standards. By letter dated June 15, 1994, the Department of Environmental Protection acknowledged receipt of the application, as well as additional drawings and documents submitted on April 8, 1994. Based on these materials, the letter states that the proposed project "appears to qualify as an activity which is exempt from the need for a Department wetland resource permit under Florida Administrative Code Rule 17-312.050(1)(h)."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of Petitioner. ENTERED on November 22, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on November 22, 1994. APPENDIX Rulings on Petitioner's Proposed Findings A-C: rejected as not findings of fact. A1: rejected as not finding of fact and irrelevant, except for last sentence, which is adopted or adopted in substance. A2-end: rejected as irrelevant, recitation of evidence, subordinate, and unsupported by the appropriate weight of the evidence. Rulings on Cayo Costa's Proposed Findings 1-10: adopted or adopted in substance. 11-12: rejected as subordinate. 13-15: adopted or adopted in substance. 16-23: rejected as subordinate, recitation of testimony, and unnecessary. 24-31: adopted or adopted in substance. 32-33: rejected as irrelevant. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Mathews Trescott Pepper Law Firm 1505 S.E. 40th St. Cape Coral, FL 33904 Mary F. Smallwood Ruden, Barnett P.O. Box 10888 Tallahassee, FL 32302 John Chaves Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact The Respondent. The Respondent, Charles Polk, served as the President of Daytona Beach Community College from 1974 to 1990. [Stipulated Fact.] Mr. Polk resigned as President of Daytona Beach Community College in 1990. Mr. Polk's Purchase of Real Estate from Anargyros N. Xepapas. In November, 1985, Mr. Polk and his wife purchased a life estate and one-half interest in a condominium unit from Anargyros N. Xepapas. Mr. Xepapas owned the other one-half interest in the condominium unit. [Stipulated Fact.] The purchase price of the life estate and one-half interest in the condominium unit was $150,000.00. [Stipulated Fact.] The weight of the evidence failed to prove that this price was not the fair market value or that the transaction was not an arms-length transaction. Under the terms of the agreement, Mr. Polk and his wife were required to pay $30,000.00 immediately. They subsequently executed and delivered to Mr. Xepapas a note and mortgage for the remaining $120,000.00. [Stipulated Fact.] Mr. Polk was a mortgagor and Mr. Xepapas was a mortgagee. Under the terms of the agreement, Mr. Polk was required to pay maintenance fees of approximately $5,000.00 per year, taxes, insurance and all other expenses of the unit, which totaled approximately $14,000.00 per year. [Stipulated Fact.] Mr. Xepapas agreed to maintain the payments on the first mortgage. [Stipulated Fact.] Following the closing, Mr. Polk paid Mr. Xepapas an additional $60,000.00 on the mortgage, reducing the principal balance to $60,000.00. [Stipulated Fact.] A warranty deed was provided to Mr. Polk for the purchase of the property. [Stipulated Fact.] Neither the deed nor the mortgage were recorded. [Stipulated Fact.] Mr. Polk and his wife used the condominium as their residence. [Stipulated Fact.] Mr. Xepapas action in selling the condominium to Mr. Polk and his wife was a business transaction. Mr. Xepapas. Mr. Xepapas is an architect and developer who designs, builds, and sells property in the Daytona Beach area. [Stipulated Fact.] At the time Mr. Polk purchased the one-half interest in the condominium unit from Mr. Xepapas, Mr. Xepapas was the owner of the condominium building in which the unit was located. [Stipulated Fact.] In addition to being the owner of the condominium building at issue, Mr. Xepapas was the architect, developer and contractor for the condominium and for other condominium buildings in the areas. Mr. Xepapas was trying to sell the condominium units as part of his business because of cash-flow problems. [Stipulated Fact.] The condominium sales market was "soft" and Mr. Xepapas was trying to eliminate the carrying costs for unsold units. Mr. Xepapas sold a total of four condominium units pursuant to an arrangement similar to the arrangement by which he sold the condominium unit to Mr. Polk. Mr. Xepapas had made offers to sell one-half interests in condominium units to various other persons besides Mr. Polk. [Stipulated Fact.] Mr. Xepapas was a sole proprietor. He entered into his relationship with Mr. Polk in his capacity as a sole proprietor. Mr. Xepapas has known Mr. Polk for ten to fifteen years and considers himself a friend of Mr. Polk. [Stipulated Fact.] Mr. Xepapas' Business with Daytona Beach Community College. In 1987, the Board of Trustees of the Daytona Beach Community College decided to expand the College's educational facilities by obtaining a new center in the Deltona area. [Stipulated Fact.] In September, 1987, the Board of Trustees instructed staff to develop a request for proposal for the design and construction of the facility which would be leased to the College. [Stipulated Fact.] Mr. Polk was involved to some extent in the decision as to whether the new center should be purchased or constructed, and whether it should be acquired through a long-term lease/purchase agreement. In response to the advertisement of the request for proposal in September, 1988, Mr. Xepapas submitted a proposal. [Stipulated Fact.] There were a total of nine persons or businesses that responded to the request for proposal for the Deltona facility. Mr. Polk knew that Mr. Xepapas had picked up a bid proposal package and, therefore, believed that Mr. Xepapas would submit a proposal. Mr. Polk appointed the committee which reviewed the proposals. This committee ultimately narrowed the acceptable proposals to two, including Mr. Xepapas, and directed that those two proposers submit final proposals. In January, 1989, Mr. Xepapas, in his capacity as a sole proprietor, was the successful bidder on the contract; however, there is no evidence to indicate that Mr. Polk abused his position in order to ensure this result. [Stipulated Fact.] Mr. Xepapas and Mr. and Mrs. Polk were co-owners of the condominium prior to and at the time that Mr. Xepapas was awarded the Daytona Beach Community College contract. Ultimately, Mr. Xepapas was not able to fulfill his obligations under the contract with Daytona Beach Community College. Although the evidence failed to prove that Mr. Polk asserted any influence over the decision to award the contract to Mr. Xepapas, Mr. Polk was involved to some small degree in the award of the contract to Mr. Xepapas. The evidence failed to prove that Mr. Polk disclosed his co-ownership of the condominium with Mr. Xepapas to the Board of Trustees of the Daytona Beach Community College, that he refused to participate in any way in the bidding process or that he attempted to take the more drastic step of severing his relationship with Mr. Xepapas while the bidding process was going on. In May, 1989, Mr. and Mrs. Polk ultimately quit claim deeded the property to Mr. Xepapas. The evidence failed to prove why. They, therefore, lost their investment in the property. Mr. Polk also resigned as President of Daytona Beach Community College as a result of the allegations concerning his relationship with Mr. Xepapas.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Charles Polk, violated Section 112.313(7), Florida Statutes, as alleged in Complaint No. 89-80. It is further RECOMMENDED that Mr. Polk be subjected to public censure and reprimand. DONE and ENTERED this 13th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 3-11. 3 13. 4 14-16. 5 16 and 18. 6 4, 12 and 19-20. 7 Hereby accepted. 8 3, 21, 27-28 and 30. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 13. 3 3, 11 and 14. 4 20. 5 16. 6 4 and 17-18. 7 5 and 8-9. 8 6-7. 9 21. 10 22. 11 24. 12 26 and hereby accepted. See 23, 27 and 30. 13 27 and 30. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 David A. Monaco, Esquire Post Office Box 15200 Daytona Beach, Florida 32015 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
Findings Of Fact Petitioner is an adult black female. At all times material, she was employed by Respondent, School Board of Nassau County, as a Guidance Counselor at Fernandina Beach High School. Petitioner was initially employed by the Respondent in 1959 as a teacher of physical education, but she has been a guidance counselor in her present location since the 1972 school term. Her total tenure with the School Board is approximately 29 years. She is certified in Administration and Supervisory Guidance, Physical Education, Health Education, and Driver Education. On June 28, 1989, the Respondent posted/published an advertisement for the newly created position of "Assistant Principal-Student Services" (AP-Student Services) at Fernandina Beach High School. The new position had come about through a study commission. The membership of the commission included Fernandina Beach High School Principal William R. Fryar. The commission had been appointed by Respondent's Superintendent Craig Marsh. Over the course of a year, the commission had developed the criteria and threshold qualifications for the new position along with other proposed staffing changes. The method by which a person would be hired for any such position with Respondent would include meeting the threshold qualifications, passing successfully through an interview panel, interviewing with Principal Fryar, being recommended by Principal Fryar to Superintendent Marsh, and being recommended by Superintendent Marsh to the School Board. The School Board would do the ultimate hiring. The threshold qualifications for the position vacancy, as stated in Respondent's June 28, 1989 announcement included the following: a) three years counselling experience preferred at 9-12 level; b) hold or be eligible for Level I certificate; c) hold or be eligible for Florida Counselor certification; and d) experience in managing student data entry, Florida experience preferred. On July 24, 1989, Petitioner applied for the position vacancy. She was the only one of Respondent's employees who met the foregoing qualifications. Only one other person, a white male, submitted an application in response to the June 28, 1989 position vacancy announcement. The white male was from out of state but eligible for in-state certification. Both Petitioner and the sole other applicant met the published/posted threshold qualifications. Petitioner and the sole other applicant were individually interviewed by a three person interview panel made up of three state certified interviewers. Two interviewers were white females and one interviewer was a black male. All the interviewers were employed by the Respondent. The white male applicant received a slightly higher interview score than did Petitioner, but neither scored outside the average range. The interview scores were not passed on to Dr. Fryar, and the committee did not relay any recommendation to hire either applicant. Dr. Fryar did not interview either applicant because there were only two applicants and because neither applicant had been recommended by the interview panel. Consequently, neither Petitioner (a black female) nor the white male was selected to fill the vacancy. The Respondent had previously and consistently hired only from a field of three or more applicants. Page 3, Section II. C. 12. of the School Board of Nassau County Human Resource Management Manual (Adopted 12/11/86; Revised 6/22/89) provides, "The selection system includes the recommendation of three to five candidates to the superintendent." Superintendent Marsh's personal preference also was to not hire for any position unless there was a field of at least three applicants who had successfully passed the interview panel stage. On August 3, 1989, the position vacancy remained open and the Respondent published a readvertisement for the position. The threshold qualifications and the duties projected for this position remained identical to those published in the June 28, 1989 announcement. Respondent received only one application in response to the August 3, 1989 advertisement. That applicant subsequently withdrew. When he was not hired, the white male applicant had asked not to be notified of future advertisements. Petitioner did not apply in response to the August 3, 1989 readvertisement although she was still interested in the position, because she had not received the second advertisement. Petitioner discovered she had not received the second advertisement and was upset about it because Respondent had notified her that her first application would be kept on file for a year. After the second advertisement netted no applicants, the same consideration of not hiring from a field of applicants of less than three still obtained. Presumably, that consideration would have prevailed even if Petitioner had re-applied in response to the second advertisement. Originally, the belief had been that the AP-Student Services should be required to hold a counselling certificate because he or she would oversee three counsellors in addition to being required to devise, upgrade, and maintain student data bases on a computer. However, because Dr. Fryar and Superintendent Marsh and their advisers believed there was a greater need to develop a data base on the students than to have yet another counselor, Dr. Fryar and Superintendent Marsh incorporated the duties of the Fernandina Beach High School's data systems manager into the threshold qualifications for AP-Student Services. Also, in order to widen the potential field of applicants, they revised the requirement of counselor certification out of the threshold qualifications. Neither revision was done by running the idea through a committee again. On October 16, 1989, the Respondent advertised the AP-Student Services position for a third time. In an effort to get more and better applicants, this third advertisement was circulated differently than the two prior advertisements. Respondent devised a new distribution system for its third advertisement. Under the new system, the specific schools received the posting directly rather than having it funneled to them through the district. For the reasons indicated above, the threshold qualifications for the position as advertised the third time were different from those stated in the June 28, 1989 and August 3, 1989 postings in the following particulars: a) the requirement of guidance certification was eliminated; b) "three years counseling experience preferred at 9-12 level" was amended to read "three years counselling and/or other student services experience preferred at 9-12 level"; c) the requirement of "hold or be eligible for Florida Counselor certification" was deleted in its entirety; and d) the requirement of "experience in managing student data entry Florida experience preferred" was amended to read, "experience with computerized data systems: Florida experience preferred." In response to the October 16, 1989 vacancy posting, the Respondent received approximately 10 applications. Eight of the ten applicants were interviewed. Petitioner timely submitted her application in response to the October 16, 1989 vacancy posting. Petitioner met the changed threshold qualifications and was interviewed. On November 1, 1989, interviews were conducted with eight applicants, including Petitioner, all of whom met the threshold qualifications. The interviewees consisted of five white males, one white female, one black male, and Petitioner, a black female. The interviewers were all certified interviewers, and this time the interviewers were selected from outside the school district, so they were not Respondent's employees. The interviewer pool was racially mixed. Three interviewers interviewed each applicant. Not all interviewees were interviewed by the same interviewers. Petitioner was interviewed by Cathy Merritt, Bob Kuhn, and Doris Thornton. Ms. Thornton is black. At the conclusion of the interviews, the interviewers, through data integration, by consensus and not by averages, awarded a consensus score to each applicant in each of fourteen categories. The three applicants with the highest scores consisted of one black male and two white males. Petitioner's scores were lower than those of the top three applicants and in the average range. Principal Fryar interviewed the three highest scoring applicants without benefit of knowing their scores. However, the applicant ultimately appointed to the position did, indeed, have the highest scores among all the applicants. His scores were all above average. The procedure used to fill the new position is called "target selection," and is enumerated in the School Board's Human Resource Management Plan, which plan is mandated pursuant to Section 231.087, F.S. and approved by the Florida Council on Educational Management. Petitioner was not selected for the position of AP-Student Services. She was notified on November 10, 1989 of the selection of one of the three finalists, a white male, Richard Galloni. Prior to his promotion, Mr. Galloni was chairman of Fernandina Beach High School's mathematics department and served as the school's data systems manager. On December 28, 1989, Petitioner timely filed a charge of racial discrimination with the Florida Commission on Human Relations pursuant to Section 760.10, F.S. alleging that she had been discriminatorily denied promotion to the position of AP-Student Services. All of the administrators of Fernandina Beach High School are white. Approximately, 8% of the teaching faculty is black. Twenty-five per cent of the student body is black. Greater percentages of blacks in each category exist in other schools in the County.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Human Relations Commission enter a final order dismissing the Petition. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of April, 1992. ELLA JANE P. DAVIS, 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 2nd day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-4323 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-9, 11-21, and 23: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material. 10: Rejected as not supported by the record. Covered in Findings of Fact 13- 15. 22: Covered as modified to more correctly reflect the record in Findings of Fact 10-12. See also Conclusions of Law. Respondent's PFOF: 1-7, 10, 11-12, and 14: Accepted except as modified to eliminate subordinate, unnecessary, and cumulative material. 8, and 13: Rejected as subordinate and unnecessary. 9: Accepted in part and in part rejected as not supported, by the record as a whole, as covered in the recommended order. COPIES FURNISHED: Harry Lamb, Jr., Esquire Perry & Lamb, P.A. 605 E. Robinson Street Suite 630 Orlando, Florida 32801 Marshall E. Wood, Esquire 303 Centre Street Suite 200 Post Office P Fernandina Beach, Florida 32034 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Mr. Craig Marsh, Superintendent Nassau County School Board 1201 Atlantic Avenue Fernandina Beach, Florida 32034
The Issue Whether DOT has improperly excluded Western Waste Industries, Inc. from bidding by combining two Volusia County sites in a single invitation to bid?
Findings Of Fact A three-man maintenance crew works out of DOT's Daytona Beach construction office, which is 16 miles distant from DOT's principal Volusia County facility, the Deland maintenance yard. In the summer, when both mowing operations and littering are at their peak, 72 DOT field people and 14 convicts set out from the Deland yard daily to sweep the roadways, police, grade and seed the shoulders, cut the grass and do other bridge, pipe and concrete maintenance. At one time, as the work day ended, crews dropped litter and mown grass at the county dump on their way back to the sites at which they assembled mornings in Deland and Daytona Beach. The Daytona Beach crew still does. But somebody calculated that DOT could save 100 man hours a month by arranging for "dumpsters" at both its Volusia County yards. That way all workers can return to their work stations directly, and no side trip is required in order to dispose of litter and cut grass. On April 1, 1988, petitioner Western Waste Industries, Inc. (WWII) installed two dumpsters, each with a capacity of eight cubic yards, at DOT's Deland yard. Under a month to month agreement, WWII empties both containers twice weekly in exchange for $273 monthly. DOT is satisfied with its decision to use dumpsters, but is obliged to invite bids, because DOT cannot procure the services it needs for less than $3000 a year. Among the specifications set out in DOT's invitation to bid is the form of the contract the successful bidder is to sign, which includes the following: 1.00 The Department does hereby retain the Contractor to furnish certain services in connection with Central Point Refuse Pickup and Disposal Originating at the Department's Maintenance Office Located at 1655 North Kepler Road, Deland, Florida, with an Option to Include Similar Services for the Department's Construction Office Located at 915 South Clyde Morris Boulevard, Daytona Beach, Florida. DOT's Exhibit No. 1 (emphasis in original) In Exhibit A to the form contract, entitled "SCOPE OF SERVICES," the specifications call for "trash containment and removal of litter ... from specific offices located in the Department's District Five." Id. Exhibit A specifies both the Daytona Beach and the Deland offices by name and address. Attachment B indicates that the successful bidder is to remove 40 cubic yards of refuse weekly from DOT's maintenance yard in Deland and, at DOT's option, additional refuse from the Deland yard, from the Daytona Beach office, or from both. If DOT exercised both options, the contractor would haul ten percent of DOT's refuse from the Daytona Beach office, on an annual basis. In its letter of protest, dated June 14, 1988, WWII complains that it "operate[s] on the West Side [of Volusia County] only." But the two companies who submitted bids in response to DOT's invitation to bid are willing to collect refuse at both sites. No exclusive franchise or other legal impediment precluded WWII from bidding on collection at both sites By soliciting bids for service at both sites, DOT avoids the administrative costs of inviting and evaluating two sets of bids.
The Issue Whether Petitioner proved by clear and convincing evidence that Respondent committed a Class II violation as alleged in the Administrative Complaint, by failing to perform cardiopulmonary resuscitation (“CPR”) on a resident at its facility.
Findings Of Fact The undersigned makes the following findings of relevant and material fact: Joint Statement of Admitted Facts Filed by the Parties on February 19, 2021 The Agency completed a complaint survey of Pelican Garden on or about December 4, 2020. The Agency is the regulatory authority responsible for licensure of assisted living facilities (“ALF”) and enforcement of applicable state statutes and rules governing ALFs pursuant to chapters 429, Part I, and 408, Part II, Florida Statutes, and Florida Administrative Code Chapter 59A-36. Pelican Garden was, at all times material hereto, an ALF under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. The Agency’s surveyor cited Pelican Garden with a Class II deficient practice on or about December 4, 2020. On or about July 24, 2019, R #1 was a resident at Pelican Garden’s facility. Pelican Garden’s procedure for honoring a resident’s Do Not Resuscitate (“DNR”) Order includes circling the “DNR” located on the face sheet (information sheet) if a copy of the DNR is received and is on file at the facility. Pelican Garden’s admission paperwork includes a “Memo” initialed by the resident or representative to acknowledge that the facility has requested a copy of the resident’s DNR Order, if one exists. Pelican Garden’s DNR policy requires that a resident or representative provide the facility with a copy of a DNR Order on yellow paper, and then the facility files the order and places the resident on the Do Not Resuscitate Order (“DNRO”) list. Pelican Garden’s DNR policy requires that if a resident has a DNR on file, the facility will place a “butterfly” on the back of the resident’s door in their room with the resident name on the butterfly to notify staff to not perform life saving measures including but not limited to CPR. R #1’s executed contract, dated November 2, 2018, revealed a DNR form was requested from the resident’s representative as shown by the representative’s initials on the DNR policy and procedure page. R #1’s resident face sheet (Information Sheet), dated November 2, 2018, did not have a circled DNR Order, indicating that the resident did not have a DNR on the date of R #1’s death. R #1 did not have a DNR Order on file with Respondent on the date of R #1’s death. On or about July 24, 2019, at approximately 7:24 a.m., R #1 was found unresponsive in the resident’s room, with half of the resident’s body off the side of the bed with her legs on the ground and her head between the grab bar (removeable side rail) and the mattress, by Pelican Garden’s staff members “A,” “B,” “C,” and “D.” On or about July 24, 2019, Pelican Garden’s staff member “C” was instructed by staff member “A” to take R #1’s roommate to the bathroom and then leave the room with the roommate. On or about July 24, 2019, at approximately 7:24 a.m., Pelican Garden’s staff members “A,” “B,” and “D” worked to reposition R #1 to begin performing CPR and staff member “A” checked the resident’s pulse, observed the resident was pale and the resident’s skin was cold to the touch and made the determination that the resident had already passed. On or about July 24, 2019, Pelican Garden’s staff member “D” helped reposition R #1 and then left the room. On or about July 24, 2019, Pelican Garden’s staff member “D” was certified in CPR. On or about July 24, 2019, Pelican Garden’s staff members “A,” “B,” “C,” or “D” did not perform CPR on R #1. On or about July 24, 2019, at approximately 7:36 a.m., Pelican Garden’s staff member “A” dialed 911 at approximately 7:38 a.m. and, at approximately 7:39 a.m., stated it’s too late for CPR for R #1. On or about July 24, 2019, at approximately 7:39 a.m., Pelican Garden’s staff member “A” called Pelican Garden’s Administrator who instructed staff member “A” not to administer CPR to R #1. On or about July 24, 2019, at approximately 7:39 a.m., Pelican Garden’s Administrator had no firsthand knowledge of the condition of R #1. On or about July 24, 2019, at approximately 7:42 a.m., the Emergency Medical Services (“EMS”) arrived at Pelican Garden’s facility. On or about June 24, 2019, at approximately 7:45 a.m., the Emergency Medical Technician (“EMT”) pronounced R #1 as dead. Pelican Garden’s staff member “A” received a basic life support CPR and automated external defibrillator (“AED”) certification dated October 5, 2017, with an expiration date of October 2019. Pelican Garden’s staff member “A” was certified to perform CPR at the time of R #1’s death. Pelican Garden submitted a Plan of Correction dated January 22, 2020. Before, during, and after July 24, 2019, Pelican Garden’s policy to respond to an unresponsive resident without a DNR was to start CPR. Pelican Garden retrained staff on the response to an unresponsive resident without a DNR after the December 4, 2019, AHCA survey. On or about July 24, 2019, to December 4, 2019, Pelican Garden had more than one resident who did not have a DNR. Other Material Facts Established at the Hearing Dalia Portugal (“Portugal”) had worked at Pelican Garden for eight years. Marie Andre (“Andre”) is a home health aide. She has worked as a caregiver at ALFs for more than a decade. Mimose Francois (“Francois”) is also a home health aide. Francois had been a caregiver at another facility for 13 years. On July 24, 2019, when Portugal first arrived at work, there had been a shift change of staff at 7:00 a.m. This incident involved a 96-year-old resident at Pelican Gardens ALF. The resident, R #1, had moved into the facility at Pelican Garden in November 2018. The documents revealed that she suffered from a variety of ailments and diseases including: dementia, hypertension, high cholesterol, gastro reflux disease, was a fall risk, had macular degeneration, and was hard of hearing. Pet. Ex.14, at 14b. Shortly after her arrival, at approximately 7:22 a.m., Portugal took a call from R #1’s roommate. She advised her that R #1 was on the floor and she didn’t know how long she had been on the floor. At 7:24 a.m., Pelican Garden’s staff members Portugal, Andre, Francois, and Kerri Conklin arrived at R #1’s room and found her unresponsive. She was positioned with half of her body off the side of her bed. Her legs were on the ground and her head was positioned between the horizontal bedrail and the mattress. Together, Portugal, Andre, and Francois took hold of R #1 and worked to reposition her up on to her bed in an effort to begin performing CPR. Immediately after getting her on the bed the staff made several close observations of R #1. One staff member, Francois, testified that R #1 had no pulse, was pale, was not breathing, her face was smashed, and her body temperature was cold--“cold like ice.” Portugal made similar observations. She stated that R #1’s body temperature was cold--freezing cold--she had no pulse, was pale, not breathing, her nose was tilted to one side, and there was blood on the bed. The other staff member who responded, Andre, testified in a similar fashion. She added that R #1’s face was “smooshed.” After placing her on the bed, Andre said no CPR was conducted because “she was already dead.” When Portugal, Andre, and Francois repositioned R #1 on the bed in order to start CPR, they were unable to lay R #1 flat because her legs were stiff and stuck in the bed side kneeling position in which they found her. The photographs admitted as part of Respondent’s Exhibit A were insightful and provided compelling evidence that when the staff discovered R #1 she was already dead.2 The evidence was overwhelming and without serious dispute that R #1 was dead when she was discovered by the staff on the morning of July 24, 2019. During the course of the hearing the parties and witnesses frequently used the term “unresponsive” to describe R #1’s condition when she was discovered. However, the common understanding and plain meaning of this term in a medical emergency context implies an individual who may be in 2 The photographs also supported the testimony of the aides concerning the condition in which they found R #1. medical distress, but is revivable, i.e., one who does not respond to questions, touch, or neurological or sensory stimulation. Sadly, however, R #1’s cold, pale, lifeless, and stiff body was more than just “unresponsive” when she was first discovered by the staff. The facts, and reasonable inferences from the facts, established that she could not have been revived. She was lifeless and dead. Additionally, the reasonable inferences from the location where she was found, the medical problems she had, and the fact that she had been observed sleeping in bed during a 5:23 a.m. bed check indicate that she had gotten out of bed, attempted to walk somewhere in the room, had fallen near her bed, and severely injured her face during the fall. Resp. Ex. 14, at 14D. She had been dead on the floor long enough when the staff discovered her to cause her body to go cold and begin to stiffen. The clear and convincing evidence established that she was dead and unrevivable when she was discovered by the staff at 7:24 a.m. No amount of cardiopulmonary resuscitation would have revived or aided R #1. Such efforts would have been futile, pointless, and of no use. After the staff called 911 and the facility administrator, EMS arrived at Pelican Garden at approximately 7:42 a.m. Notably, even the EMTs did not attempt to perform CPR on R #1. Approximately three minutes after arriving, the EMTs pronounced R #1 dead. Law enforcement arrived shortly after the EMTs and conducted an investigation. The officers questioned Pelican Garden staff and took several photos of R #1 as she appeared after Pelican Garden staff repositioned her on her bed. The officers noted “a large amount of bloody purge” coming from R #1’s mouth on the right side of the bed, and a small amount of bloody purge on the pillows and the bed on the left side of R #1’s head. Resp. Ex. A at 8.3 After receiving Pelican Garden’s report detailing the circumstances surrounding the death of R #1, the Agency conducted its own survey of the facility on December 4, 2019. The AHCA surveyor spoke to Portugal and Conklin. The AHCA surveyor spoke with R #1’s physician and learned that R #1 had died of a heart attack. The surveyor also spoke with someone at the Medical Examiner’s Office and learned that no autopsy had been performed. The AHCA surveyor did not speak with the EMTs or the police officers that responded to Pelican Garden. The AHCA surveyor completed the investigation and cited Pelican Garden for violating R #1’s resident’s rights by failing to perform CPR when R #1 was found “unresponsive” since R #1 did not have a DNR in place. According to the AHCA surveyor, there are circumstances where it would be inappropriate or unnecessary to perform CPR on a resident who was found unresponsive. Specifically, when staff cannot get to the resident or position the resident for some reason. The surveyor also agreed with counsel that it “wouldn’t make sense” to perform CPR on a resident who, for example, was found decapitated. AHCA’s professional witness, Michelle Dillehay (“Dillehay”), is a nurse consultant employed by AHCA. She was questioned about the general obligation to perform CPR when an individual is found unresponsive and does not have a DNR in place. 3 The contents of the Sebastian police report and photographs are reliable, relevant, and supplement or explain other evidence. As a result, they were admitted and have been considered by the undersigned. See generally §§ 120.569(2)(g) and 120.57(1)(c), Fla. Stat. In her opinion, based on the application of recognized standards within the community, CPR must be initiated on an “unresponsive” individual except in limited circumstances not applicable to this case. She was not questioned, however, using hypothetical questions about the specific circumstances of this case. Likewise, the undersigned was unable to conclude that she was knowledgeable about R #1’s pre-existing medical problems or physical condition, or her appearance at the time of her discovery, or when she was photographed by the police on the bed. More to the point, there was no persuasive evidence that Dillehay had seen or reviewed the police report or pictures of R #1 taken by the Sebastian Police Department. Resp. Ex. A. In short, Dillehay gave a broad opinion without being specifically or thoroughly questioned or briefed about the unique circumstances of this case, or how that might affect her view of the actions taken by the Pelican Garden staff on July 24, 2019. The scope of her opinion was limited and not necessarily specific to the facts of this case. She opined that in those instances where a person does not have a DNR, they must be given CPR when found in an unresponsive state. She went so far as to state that CPR must be initiated even on a dead person. While her testimony was instructive in a very general sense and no doubt sincere, the undersigned affords little weight to it because a broad application of the CPR/DNR requirement explained by Dillehay cannot, or should not, be applied in all cases--especially when a person is discovered dead and in a stiffened, cold, and lifeless state with no pulse or respiration. Otherwise, such a requirement would be unreasonable and lead to absurd results. To the extent Dillehay’s opinion means or suggests that the Pelican Garden staff was required to initiate CPR on R #1 under the facts of this case, it is rejected as unsupported by a reasonable and correct interpretation of the law. Further, it is up to the undersigned to determine the weight and credibility given to an expert’s testimony. Behm v. Div. of Admin., State Dept. of Transp. 336 So. 2d 579 (Fla. 1976).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that due to the unique circumstances of this particular case the Agency dismiss the Administrative Complaint filed against Pelican Garden and find that no violation occurred. DONE AND ENTERED this 19th day of May, 2021, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2021. COPIES FURNISHED: Dwight Oneal Slater, Esquire Cohn Slater, P.A. 3689 Coolidge Court, Unit 3 Tallahassee, Florida 32311 Gisela Iglesias, Esquire Agency for Health Care Administration 525 Lake Mirror Drive North, Suite 330B St. Petersburg, Florida 33701 Richard J. Shoop, Agency Clerk Agency for Healthcare Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Simone Marstiller, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Elizabeth Anne Hathaway DeMarco Agency for Health Care Administration 525 Mirror Lake Drive North, Suite 330C St. Petersburg, Florida 33701 Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 James D. Varnado, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Shena L. Grantham, Esquire Agency for Healthcare Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Respondent, a licensed yacht broker, committed the offenses set forth in the Notice to Show Cause dated June 20, 1994, and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility to administer and to enforce the Florida Yacht and Ship Brokers' Act, Chapter 326, Florida Statutes. At all times pertinent to this proceeding, Respondent has been a licensed Yacht and Ship Broker pursuant to the provisions of Chapter 326, Florida Statutes. Respondent resides in and has his principal place of business in Martin County, Florida. Respondent's corporation, Rampage of Stuart, Inc., has been licensed by Petitioner at all times pertinent to this proceeding. The parties stipulated that Respondent's corporation was, at times pertinent to this proceeding, doing business as Stuart Cay Marina, a fictitious name that had not been registered with the Petitioner. The parties stipulated that Respondent was guilty of violating the provisions of Section 326.004(2), Florida Statutes, as alleged in the Notice to Show Cause dated June 20, 1994. The parties also stipulated that the appropriate penalty for this violation is an administrative fine in the amount of $500.00. James Withers began working for Respondent at Stuart Cay Marina in January 1994. At the time he began working at Stuart Cay Marina, Mr. Withers was not licensed under the Yacht and Ship Brokers' Act. Respondent knew or should have known that Mr. Withers was not licensed when he first became employed at Stuart Cay Marina. On January 27, 1994, Mr. Withers attended an educational seminar sponsored by Petitioner where the attendees received instruction as to the requirements for licensure as a salesman or a broker under the Yacht and Ship Brokers' Act. The successful applicant must submit a completed application form, a completed fingerprint card, the proper application fee, and a surety bond. The Petitioner's processing of the application includes having the Federal Bureau of Investigation (FBI) run a fingerprint check on the applicant. The attendees of the educational seminar were told that the application fee had increased from $538.00 to $539.00 as of December 20, 1993, due to a $1.00 increase in the fee charged by the FBI to process fingerprint cards. Mr. Withers and the Respondent knew, or should have known, that Mr. Withers could not act as a salesman until after his license had been issued. In late January 1994, Mr. Withers applied for licensure as a salesman pursuant to the Yacht and Ship Brokers' Act. Because the application form used by Mr. Withers reflected the old application fee, Mr. Withers submitted a check in the amount of $538.00 with his application and fingerprint card. There was no evidence as to where Mr. Withers had obtained this application form. Mr. Wither's application package was received by Petitioner's Finance and Accounting Office on February 4, 1994. The check for the application was deposited and the application forwarded for further processing. On February 7, 1995, Mr. Withers was advised by mail that his application was deficient since the application fee was short by $1.00. This letter, from the Petitioner's Yacht and Ship Section, advised Mr. Withers that the $1.00 was needed to continue the application process. Mr. Withers forwarded his $1.00 check, dated February 9, 1994, to the Petitioner to correct this deficiency. This check was received and deposited by Petitioner's Finance and Accounting Office, which is located in the John's Building in Tallahassee, on February 17, 1994. The Finance and Accounting Office released the application package for further processing on February 18, 1994. From the Finance and Accounting Office, the application package went to the Division Director's Office located in the Warren Building in Tallahassee. From that office the application package was sent to the Yacht and Ship Section located in the Bloxham Building in Tallahassee, where it was received February 21, 1994. Licenses are not completely processed until after the Yacht and Ship Section receives notification that the entire application fee has been paid. Processing of Mr. Withers' application was completed by the Yacht and Ship Section and his license was issued on February 21, 1994. Mr. Withers and the Respondent knew, or should have known, that Mr. Withers had not received his license from the Petitioner as of February 18, 1994. 1/ There was no evidence that either man had reason to believe as of February 18, 1994, that the license had been issued and was being forwarded by mail. Both men correctly believed that Mr. Withers had substantially complied with the licensure requirements as of February 18, 1994, and that the license would be issued at some juncture since the only deficiency had been corrected. Mr. Withers represented Respondent at the Sixth Annual Miami Brokerage Yacht Show on February 18, 1994, where he acted as a salesman within the meaning of the Yacht and Ship Brokers's Act. Respondent permitted Mr. Withers to use his company name at this show. On Friday, February 18, 1994, James Courchaine and Peter Butler, in their official capacities as employees of the Petitioner, located Mr. Withers at the boat show and inquired as to whether he was licensed. Mr. Withers told them that he had completed his application package and was merely waiting to receive his license in the mail. Mr. Butler thereafter called his office in Tallahassee and learned that Mr. Withers' check for $1.00 may have been received, but that the application had not been received by the Yacht and Ship Section and that the license had not been issued. Mr. Butler informed Mr. Withers that the earliest his license could be issued was Monday, February 21, 1994.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the findings and conclusions contained herein, that imposes an administrative fine in the amount of $500.00 against Respondent for the violation of Section 326.004(2), Florida Statutes, and that imposes an additional administrative fine in the amount of $500.00 against Respondent for the violation of Section 326.06(2)(e)7, Florida Statutes. DONE AND ENTERED this 8th day of January 1996 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, 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 8th day of January 1996.
