The Issue The issues for disposition in this case are whether Respondent committed willful violations of section 106.07(7), Florida Statutes (2014), when its campaign treasurer failed to notify the filing officer that Respondent had not received funds, made contributions, or expended reportable funds during four 2014 reporting periods; and, if so, whether Respondent is subject to civil penalties in view of the holding in PAC for Equality v. Department of State, Florida Elections Commission, 542 So. 2d 459 (Fla. 2d DCA 1989).
Findings Of Fact Petitioner is the entity responsible for investigating complaints and enforcing Florida's election and campaign financing laws, chapters 104 and 106, Florida Statutes. § 106.25, Fla. Stat. Respondent is a political committee organized for the purpose of sponsoring and supporting a constitutional initiative to conserve and protect Florida’s scenic beauty, which is primarily directed to restrictions on billboards along Florida highways. Respondent has been a registered political committee since 2002. Prior to 2014, Respondent suspended its campaign to gather petitions to place the constitutional initiative on the ballot. Respondent has not abandoned the campaign, and the initiative remains legally active. Prior to 2014, Respondent’s most recent financial activity was an expenditure of $61.25 in the first quarter of 2011. Respondent’s assets during 2014 consisted of $157.50 held in a bank account. There were no contributions received or expenditures made by Respondent during the times pertinent to this proceeding. Respondent’s treasurer is Mr. Crescimbeni. Mr. Crescimbeni acknowledged his responsibility as treasurer to accurately report to the Division of Elections the contributions received and expenditures made by Respondent, and the dates of each. The reporting requirements were contained in a political committee handbook and copy of the Florida statutes that are provided by Petitioner to all political committees. Mr. Crescimbeni acknowledged having received and read both documents. Although some reporting requirements have changed since Mr. Crescimbeni’s receipt of the political committee handbook, Mr. Crescimbeni believed that he understood the reporting requirements. Mr. Crescimbeni understood that, since Respondent neither received contributions nor made expenditures, the requirement to submit a treasurer’s report was statutorily waived, though there was a requirement to notify the filing officer that a report was not being filed. In 2013, section 106.07 was amended, creating 33 reporting periods for calendar year 2014, significantly more than existed prior to the amendments. Ch. 2013-37, § 9, Laws of Fla.3/ Reports for the 33 reporting periods in 2014 were statutorily waived pursuant to section 107.07(7), inasmuch as there were no contributions or expenditures. Notifications of no activity were filed for each of the 33 reporting periods in 2014, all of which were timely, except the four identified in the Order of Probable Cause. The M5 Filing Period The notification of no activity for the 2014 M5 reporting period of May 1 through May 31, 2014, was due by midnight on June 10, 2014. The notification of no activity for the 2014 M5 reporting period was filed on Saturday, June 14, 2014, at 11:50:59 a.m. On the morning of Saturday, June 14, 2014, Mr. Crescimbeni picked up Respondent’s mail from the post office. He then traveled to his office, where he opened the mail. Among the items received was a notice from the Division of Elections advising Respondent that its M5 report had not been received by the filing deadline. The letter was dated June 11, 2014, and bore a postmark of June 12, 2014. When Mr. Crescimbeni realized his error, he immediately uploaded the report of no activity at 11:50 a.m. on the morning of June 14, 2014. Mr. Crescimbeni testified credibly that “[m]y delayed filing of the M5 notification of no activity was neither deliberate nor a repeated failure. It was simply an oversight and nothing more.” The P1 Report The notification of no activity for the 2014 P1 reporting period of June 1 through June 20, 2014, was due by midnight on Friday, June 27, 2014. The notification was filed on Saturday, June 28, 2014, at 9:34:11 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the PI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The G1 Report The notification of no activity for the 2014 G1 reporting period of August 23 through 29, 2014, was due by midnight on Friday, September 5, 2014. The notification was filed on Saturday, September 6, 2014, at 3:52:33 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the GI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The D2 Report The notification of no activity for the 2014 D2 reporting period of October 25, 2014, was due by midnight on Sunday, October 26, 2014. The notification was filed on Monday, October 27, 2014, at 10:12:15 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the D2 notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. As to each of the four notifications of no activity referenced above, Mr. Crescimbeni credibly testified that the delay was: [T]he result of my temporary inattention and each such delay was a simple and inadvertent omission on my part that was promptly remedied . . . . I was never indifferent to the required filings of notifications of no activity. Each such delay by me in making such filing of said notification was not intentional. Each such delay was not deliberate, purposeful, or with any intent or consciousness on my part to avoid the notification of “no” activity. Mr. Crescimbeni’ testimony is accepted. There was no evidence adduced at the hearing suggesting there to have been any financial or political advantage or benefit that could reasonably be derived from the late filing of the four notifications of no activity referenced above. The Commission does not investigate willfulness and does not make a finding of willfulness until after the determination of probable cause in a Probable Cause Hearing.
Findings Of Fact Petitioner, Rodney G. Green and Charter Realty, Inc. (petitioners) are both small business parties within the meaning of Subsection 57.111(3)(d), Florida Statutes (Supp. 1984). This is not disputed by respondent. They are licensed real estate brokers actively engaged in the real estate business in Oveido, Florida. On February 1, 1985 respondent, Department of Professional Regulation Division of Real Estate (Division), filed an administrative complaint against petitioners alleging that they had violated certain provisions within Chapter 475, Florida Statutes, in connection with a real estate transaction that occurred in 1984. After hearing a Recommended Order was entered by the undersigned on July 3, 1985 dismissing the complaint with prejudice. The Recommended Order was adopted as a Final Order by the Division on August 20, 1985. There is no judicial review of that order. By adopting the Recommended Order, respondent's Final Order sustains petitioners' position that no impropriety or unlawful conduct occurred. The petition for attorney's fees and costs was filed on October 7, 1985 and is therefore timely. With leave of the undersigned an amended petition was later filed on October 25, 1985. Respondent filed its response on November 15, 1985. To defend against the Division's action, petitioners engaged the services of an attorney. According to an affidavit attached to the amended petition; petitioners have incurred $399.50 in costs and $2,287.50 in legal fees. These costs are found to be reasonable since respondent has not filed a counter-affidavit questioning their reasonableness. According to petitioners' affidavit, the disciplinary action in Case NO. 85-0735 was substantially unjustified because of the following reasons: The actions of the state agency in bringing this proceeding and prosecuting it through formal hearing were not substantially justi- fied and under the circumstances it would be just to award attorney's fees and costs to Respondents pursuant to Subsection 57.111, Florida Statutes. Respondent's affidavit responds in the following manner: The Petitioner acted within the scope of its judicatory responsibilities as prescribed in Chapter 475, Florida Statutes, when it initiated and advocated that administrative disciplinary action be taken against the licensees of Respondent's Rodney G. Green and Charter Realty, Inc. In accordance with the pre-existing statutory and regulatory re- quirements, petitioner's actions in this matter conformed to and were consistent with the aforementioned delegated authority. At all times relevant, the Petitioner's acts were "substantially justified" in that there was a reasonable basis in law and fact that the Respondents had violated Chapter 475, Florida Statutes. The administrative complaint in Case NO. 85-0735 generally alleged that petitioners had solicited and obtained a sales contract from certain prospective purchasers of property, that the purchasers had given respondents a $20,000.00 cash deposit to be held in escrow, and that when the transaction did not close petitioners failed to return the deposit to the purchasers until they complained to the Division. The complaint also charges petitioners with having failed to properly place the deposit in their escrow account, and with having failed to notify the Division when conflicting demands for the deposit were made. In an attempt to substantiate the charges, the agency presented the testimony of the principal purchaser and offered into evidence certain documentation concerning the transaction. The charges were ultimately determined to be without merit, and the complaint was dismissed.
The Issue Whether Respondent, a licensed all lines adjuster, committed the offenses alleged in the Amended Administrative Complaint; and, if so, what penalties should be imposed.
Findings Of Fact The Department is a licensing and regulatory agency of the State of Florida charged with, among other duties, the responsibility and duty to enforce the provisions of the Florida Insurance Code, which consists of Chapters 624-632, 634, 635, 641, 642, 648, and 651, Florida Statutes (2002). See § 624.307(1), Fla. Stat. (2002). Respondent has been continuously licensed in the State of Florida as an independent all lines adjuster authorized to transact insurance adjusting business since August 1986. On January 1, 1999, at approximately 11:55 p.m., Respondent was driving his Ford Bronco in Tampa, Florida. Hillsborough County Sheriff's Deputy White noticed that Respondent's license tag appeared to be expired. He followed Respondent for about a quarter of a mile, while he ran Respondent's tag number through the computer to determine whether it was, in fact, expired. Upon receiving an affirmative response, Deputy White pulled over Respondent's vehicle. Reserve Deputy McLaughlin was riding with Deputy White. Deputy McLaughlin approached Respondent's car and immediately detected a strong odor of burning marijuana. Deputy White then approached the car and confirmed the smell of marijuana smoke. The deputies asked Respondent for permission to search his vehicle. According to both deputies, Respondent not only gave them permission to search his car, but told them where they could find the marijuana, which was inside a black travel bag on the back seat of the car. Both deputies testified that Respondent told them he had received the marijuana as a Christmas gift. Respondent was arrested for possession of more than 20 grams of cannabis, a third-degree felony pursuant to Subsection 893.13(6)(a), Florida Statutes (1998). At the hearing, Respondent testified that the black travel bag containing the marijuana belonged to an acquaintance to whom he had earlier given a ride. Respondent testified that he did not know the marijuana was in the car until the deputies found it and denied having told the deputies where to find it or that it was a Christmas gift. Respondent's testimony on these points was not credible. On or about February 12, 1999, a one-count information was filed in the Circuit Court of the Thirteenth Judicial Circuit, Hillsborough County, charging Respondent with possession of cannabis in violation of Subsection 893.13(6)(a), Florida Statutes (1998), a third-degree felony. On September 30, 2002, Respondent entered a plea of nolo contendere to the charge, which was accepted. Adjudication of guilt was withheld, and Respondent was placed on probation for a period of six months and ordered to perform 50 hours of community service. Respondent successfully completed his probation, and an order terminating probation was entered on February 5, 2003. After Respondent's arrest, but before the disposition of his case, the Department received an unrelated complaint concerning the manner in which Respondent was handling claims. Ms. Raulerson, a Department investigator, performed an investigation. She discovered that the Department did not have a current resident address for Respondent and obtained the correct address through Respondent's father. On January 3, 2002, Ms. Raulerson issued a letter of guidance to Respondent regarding the subject matter of the investigation. Ms. Raulerson's letter also reminded Respondent of his obligation to notify the Department of changes in his principal business, residence, and mailing addresses. She enclosed a copy of the appropriate form on which to notify the Department of address changes. During her investigation of Respondent's claims handling, Ms. Raulerson had a telephone conversation with Respondent. Ms. Raulerson mentioned that, unrelated to her investigation, the Department had received information indicating that Respondent had been charged with a felony. Respondent told Ms. Raulerson that the charge had been dismissed. Ms. Raulerson responded that if the charges had been dismissed, Respondent would be prudent to forward the paperwork to the Department so that its records could be corrected. In October 2002, Mr. Wilds, a Department investigator, was assigned to investigate whether Respondent had been convicted of, or pled guilty or nolo contendere to a felony, and had failed to notify the Department of his conviction or plea. Mr. Wilds was unable to contact Respondent at the addresses in the Department's files, which indicated that Respondent did not take the advice in Ms. Raulerson's letter of guidance. Mr. Wilds added the failure to notify the Department of his address change to his investigator. Mr. Wilds contacted the Hillsborough County Circuit Court to request documentation regarding the outcome of Respondent's criminal case. In response, the Hillsborough County clerk's office provided Mr. Wilds with certified documents indicating that Respondent had pled nolo contendere and been placed on probation. Mr. Wilds next contacted the Department of Corrections to obtain information on Respondent's probationary status. By letter dated December 6, 2002, Respondent's probation officer, Robert Hughey, confirmed that Respondent was serving a probationary period of six months, commencing September 30, 2002, and scheduled to terminate on March 29, 2003. Subsection 626.621(11), Florida Statutes (2002), provides that the following constitutes grounds for the discretionary discipline of an agent's licensure: (11) Failure to inform the department or office in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony or a crime punishable by imprisonment of 1 year or more under the law of the United States or of any state thereof, or under the law of any other country without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case. Respondent failed to report to the Department, within 30 days of doing so, that he entered a plea of nolo contendere to a third-degree felony charge of possession of cannabis on September 30, 2002. Respondent testified that he did not inform the Department of his plea of nolo contendere to a felony because Mr. Hughey assured him that he had already notified the Department. The evidence establishes that Mr. Hughey contacted the Department only after Mr. Wilds requested information as to Respondent's probationary status and that this occurred more than 30 days after Respondent entered his plea. However, Respondent's reliance on Mr. Hughey militates against a finding that Respondent's failure to notify the Department was willful. As to the failure to notify the Department of his address changes, Respondent testified that he has always relied on his employers to notify the Department of his address when appointment papers are filed on his behalf and that there was never a problem until these investigations commenced. While Respondent's reliance on his employers does not absolve him of the personal responsibility envisioned by Section 626.551, Florida Statutes (2002), it does militate against a finding that Respondent's failure to notify the Department of his address changes was willful. Respondent's insurance license has not been previously disciplined in the State of Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of violating Subsection 626.621(8), Florida Statutes (2002), as alleged in Count I of the Amended Administrative Complaint; guilty of violating Subsection 626.621(11), Florida Statutes (2002), as alleged in Count II of the Amended Administrative Complaint; and guilty of violating Section 626.551, Florida Statutes (2002), as alleged in Count III of the Amended Administrative Complaint. It is further RECOMMENDED that Respondent's licensure as an all lines adjuster be suspended for three months for the violation of Count I, for three months for the violation of Count II, and for two months for the violation of Count III, with the suspensions for Counts II and III to run concurrently. DONE AND ENTERED this 30th day of April, 2004, 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 30th day of April, 2004.
The Issue The issue is whether Petitioners, Judith C. Cleary and Charles B. Houck (Petitioners or Ms. Cleary and Mr. Houck), are entitled to an award of attorney's fees against Respondent, Department of Financial Services (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).1/
Findings Of Fact The underlying proceedings were initiated by Respondent on February 22, 2010, by the issuance of substantively identical Administrative Complaints against Petitioners. Petitioners timely requested administrative hearings to contest the charges against them, and the cases were forwarded to the Division of Administrative Hearings where they were consolidated for hearing. Count 1 of each Administrative Complaint charged Petitioners with willfully misrepresenting and or omitting material information in order to induce Mr. and Mrs. Nagle to cash in another annuity they held in order to purchase an annuity sold by Petitioners. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when in fact there would be a 15 percent surrender charge; falsely representing that the annuity would earn the Nagles ten to 20 percent returns; and (3) misrepresenting the suitability of the Nagles to purchase the annuity by misrepresenting the Nagles' net worth and by misrepresenting the Nagles' investment objective as long-term, in a form Petitioners submitted to the insurance company issuing the annuity. Count 2 of each Administrative Complaint charged Petitioners with similar conduct in order to induce the Nagles' son, Robert, to purchase an annuity. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when, in fact, there would be a 15 percent surrender charge; and falsely representing that the annuity would earn Robert Nagle ten to 20 percent annual returns. Petitioners do not dispute that if the allegations charged in the Administrative Complaint had been proven by clear and convincing evidence, then Respondent would have established the statutory violations alleged as the predicate for taking disciplinary action against Petitioners' insurance agent licenses. Petitioners also acknowledge that Respondent initiated the disciplinary actions against them on the basis of two complaint letters received by Mrs. Phyllis Nagle, the attestation of Mrs. Nagle to the material allegations in an affidavit, and a corroborating complaint letter by Mrs. Nagle's son, Robert Nagle. After a full evidentiary hearing, a Recommended Order issued in the underlying disciplinary actions determined that the more credible evidence failed to establish the allegations in the Administrative Complaints. In particular, the undersigned weighed the credibility of testimony by Robert Nagle and by Petitioners at the final hearing, as well as deposition testimony by both Mr. and Mrs. Nagle. The question posed in this case, however, is not whether credibility judgments caused the Department to ultimately not prevail in its charges against Petitioners. Instead, the question here is whether Respondent had a reasonable basis, in law and in fact, at the time it initiated the underlying disciplinary actions. In this regard, Petitioners contend that the Department's investigation file contained documents from the insurance company issuing the annuities that contradict the allegations in the Administrative Complaints. Petitioners point to three documents in particular. The first document was a customer survey response submitted by Mrs. Nagle to the insurance company after she purchased the annuity from Petitioners. Her completion of the survey form indicated that she knew that "[s]urrender charges are imposed on premature full withdrawal"; that she considered the "annuity to be a long-term investment"; that she did "not intend to use these funds to meet current expenses"; and that Petitioners reviewed her "financial status . . . and other pertinent information to determine whether this annuity purchase" was suitable to her. The other document claimed to contradict the allegations in the Administrative Complaints was the Nagles' annual statement showing a yield of 5.66 percent, which was different than the 2.6 percent yield claimed by Mrs. Nagle in her complaint letters or affidavit. Finally, Petitioners point to statements of understanding signed by the Nagles, showing the surrender charges that would be imposed for early withdrawals. None of these documents conclusively refute the charges in the Administrative Complaint. For example, with respect to surrender charges, the Nagles' complaints assert that Petitioners represented that there would be no surrender charges for a withdrawal after one year. Mrs. Nagle's survey form only acknowledged that there would be surrender charges for "premature" withdrawal. It certainly would have been possible to reconcile these two concepts in that Mrs. Nagle may have been thinking that "premature" withdrawal, as used in the survey form, was a withdrawal in less than one year. The response in the survey form to the "surrender charge" question does not conclusively contradict Mrs. Nagle's complaint and affidavit, nor does it conclusively contradict the allegations in the Administrative Complaint. Similarly, the responses in the survey form about suitability do not conclusively contradict the allegations in the Administrative Complaint. The annual statement likewise does not conclusively contradict the allegations in the Administrative Complaint, even though the yield shown is somewhat different from the yield Mrs. Nagle referred to in her complaint. Whether the yield was actually 2.6 percent or 5.66 percent, the material allegations in the Administrative Complaint were that Petitioners misrepresented that the yield would be 10 to 20 percent per year. These allegations and the complaints on which they were based, were not so plainly lacking in credibility that no reasonable agency would have proceeded with charges. Finally, the signed statements of understanding showing that surrender charges would be imposed for early withdrawals do not contradict the Nagles' complaints or the allegations in the Administrative Complaint. Although the undersigned ultimately found against the credibility of the Nagles' complaints, those complaints were that Petitioners made oral representations assuring the Nagles that there would be no surrender charges after one year, even though the policy forms themselves said otherwise. The ultimate lack of credibility of the complaining witnesses' testimony was not so clear that no reasonable agency would have prosecuted the claims. In short, Respondent had a reasonable basis in law and in fact, following a reasonable investigation, to make the allegations and to charge the statutory violations it did in the Administrative Complaints. The documentation gathered in the investigation did not conclusively contradict the factual allegations, and the credibility of the complainants was not so obviously lacking that no reasonable agency would have made the allegations in the Administrative Complaints. And it is beyond dispute that if those factual allegations had been proven, the charged statutory violations would have been established. Thus, it cannot be said that Respondent's action in initiating the disciplinary proceedings against Petitioners was unreasonable governmental action.
The Issue An administrative complaint and first amended administrative complaint allege that Respondent violated Section 496.405, F.S. (1991) by soliciting contributions as a charitable organization on several occasions prior to approval of its registration statement by the Division of Consumer Services. The parties have stipulated that the violations occurred and further stipulated that the remaining issue for resolution is an appropriate penalty.
Findings Of Fact Petitioner, United Rainbow Foundation, Inc. (URF) is a Florida not- for-profit corporation with its principal office in Tarpon Springs, Pinellas County, Florida. The following facts, comprising the parties' stipulation filed on February 12, 1993, are adopted: Prior to being registered on July 17, 1992, under Chapter 496, Florida Statutes, United Rainbow solicited contributions in the State of Florida for a total of thirty-two (32) days; Solicitations for charitable contributions were made by United Rainbow in the calendar year 1992 on or about the following dates: April 10, 13 May 12, 13, 15, 22, 26, 28, 29 June 1, 2, 3, 8, 9, 10, 11, 12, 16, 18, 22, 23, 25, 26, 29 July 1, 2, 3, 6, 7, 9, 10, 14 These solicitations were made in several locations in Florida as follows: Bradenton New Port Richey Orlando Gainesville Lecanto Venice As a result of the aforementioned activities, United Rainbow received charitable contributions between April 10, 1992 and July 14, 1992 totalling approximately $15,446.74; and United Rainbow incurred attorney's fees and costs totalling $12,876.87 (as of December 31, 1992) in connection with administrative proceedings in both this action and in a related action wherein United Rainbow successfully challenged the denial of its registration under Chapter 496 (DOAH Case No. 92-4817). However, the Department objects to the relevancy of attorney's fees incurred by United Rainbow and does not waive its objection by execution of this Stipulation. The findings of fact reflected in the recommended order dated August 17, 1992 in DOAH case #92-4817, as adopted in the agency's final order entered August 19, 1992 are adopted herein. The recommended and final orders are appended hereto.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the agency enter its final order finding that the Respondent, United Rainbow Foundation, Inc. violated Section 496.405(1)(c), F.S. and assessing a penalty of $32,000.00. DONE AND ENTERED this 26th day of April, 1993, in Tallahassee, 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 day of April, 1993. COPIES FURNISHED: John P. Holsonback, Esquire Melendi, Gibbons & Holsonback, P.A. 408 East Madison Tampa, Florida 33602 Robert G. Worley, Esquire Room 515, Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
