The Issue The issues are whether the allegations set forth in the separate Amended Administrative Complaints filed by the Department of Financial Services (Petitioner) against the Respondents, A Cremation Center at Horizon Funeral Home (Horizon) and Mark E. Davis, are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged under Chapter 497, Florida Statutes (2006), with regulation of funeral establishments, director/embalmers, and the sale of preneed funeral service contracts. At all times material to this case, Horizon was a funeral establishment holding Florida license FH2372, located at 1605 Colonial Boulevard, Fort Myers, Florida. At all times material to this case, Mark E. Davis was a funeral director and embalmer holding Florida license FE4335 and was employed by Horizon in that capacity. From 1999 through October of 2005, the Respondents produced "Registration Forms" which were supplied to individuals seeking to make preneed direct cremation arrangements. A registrant would complete the form and return it to the Respondents with a non-refundable fee of $48.00. Registrants received no discount when services were eventually purchased, but "locked in" the price being charged at the time the registration form was completed and returned with the $48 fee. The prices on the registration forms were the same as those charged to customers in need of the services during the time registrants submitted the forms and fees. The $48 fee was not credited to the cost of the services chosen during registration. Although there was minor variation between some versions of the document, the "Registration Form" generally contained the following language: I, the undersigned [sic] request Horizon Funeral Home & Cremation Center to record the following information. Enclosed is the $48.00 Registration Fee which will cover registration expenses, place the following information on permanent file, and FREEZE THE PRICE of the services and merchandise selected below. The form included space for the registrant to set forth personal identifying information including name, address, date of birth, social security number, occupation, and next of kin. Following the personal identification information part of the document, the form listed the prices of available services and merchandise and directed a registrant to make choices as follows: DESIGNATE YOUR WISHES: CHECK THE ITEMS YOU WISH TO RECORD. Simple Cremation $495. Cremation with Memorial Service $795. Cremation with Rental Casket & Funeral Service $2380 ALTERNATIVE CONTAINERS (Required by law in lieu of a casket) Corrugated Cardboard $95. Pressed Wood $195. DISPOSITION OF CREMATED REMAINS Scatter @ Sea $150. Pack & Ship $65. Cardboard Container, No Charge Family To Select An Urn, (Price Range $65 to $1995) The above prices do not include the following: Medical Examiner Cremation Approval Fee, Certified Copies of death certificate, classified obituary. THE REGISTRATION FEE OF $48.00 IS NOT REFUNDABLE. The registrant made selections, and then signed and dated the document. The form contained no area for Mr. Davis or any other representative of Horizon to acknowledge receipt of the form or to document any agreement to provide the services selected by the registrant. There were approximately 500 forms completed and submitted to the Respondents with the $48 fee. At the hearing, Mr. Davis testified that although there was no signature from the Respondent on the form, by his act of accepting the registration form and fee, he was agreeing to provide the services at the prices set forth on the form in accordance with each registrant's wishes. At no time have the Respondents been licensed or authorized to sell preneed contracts for final disposition of cremated human remains. Mr. Davis, an experienced funeral director, was familiar with the requirements to sell preneed contracts. He did not believe that the "Registration Forms" were preneed contracts. There was no evidence that Mr. Davis made any attempt to conceal the registration process from state regulators at any time. The use of the registration forms was observed during an investigation of the Respondents in 2004. At that time, the investigator believed that the forms were preneed contracts and drafted a complaint related to alleged unlicensed preneed contract sales, but for reasons unknown, persons who reviewed his work apparently disagreed, and the complaint was not pursued. A second investigation was initiated in November 2006 based on a complaint related to signage. The signage complaint raised concerns related to proposed transfer of Horizon ownership to a hospice organization, which was a topic of some controversy. As an investigator (not the 2004 investigator) drove to Horizon, he received a call from his supervisor which directed him to review the registration issue while was at the facility. The signage issue was resolved without difficulty. When the investigator inquired about the registration process, Mr. Davis produced the registration forms for review. The investigator believed that the forms were preneed contracts and stated so in his investigative report. The Petitioner apparently agreed and initiated the disciplinary process at issue in these cases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that the Respondents committed the statutory violations identified herein and issuing a letter of reprimand. The final order should additionally require that the Respondents execute a document to be prepared by the Petitioner, which specifically obligates the Respondents to provide to each registrant the services selected at the prices stated on each registrant's form, and providing a mechanism for enforcement of the obligation. DONE AND ENTERED this 26th day of July, 2007, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2007. COPIES FURNISHED: Garvin B. Bowden, Esquire Gardner, Wadsworth, Duggar, Bist & Wiener, P.A. 1300 Thomaswood Drive Tallahassee, Florida 32308 Casia R. Sinco, Esquire Elizabeth Teegen, Esquire Department of Financial Services 200 East Gaines Street, Room 612 Tallahassee, Florida 32399-0333 Diana M. Evans, Director Bureau of Funeral and Cemetery Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0350 Robert Beitler, General Counsel Department of Financial Services 200 East Gaines Street, Suite 526 Tallahassee, Florida 32399-0350
The Issue Whether on or about November 28, 1993, Petitioner committed an act of violence or used force on another person which was not for the lawful protection of himself or another and was sufficient grounds for denial of Petitioner's application for a Class "D" Security Officer and Class "G" Statewide Firearm Licenses, pursuant to Sections 493.6118(1)(j) and (2), Florida Statutes.
Findings Of Fact By application dated February 10, 1994, Petitioner applied to Respondent for a Class "D" Security Officer license and a Class "G" Statewide Firearm license. The applications prepared by Petitioner were complete, and included the required photos and copy of a certificate evidencing successful completion of security officer training as required by statute. On November 28, 1993, the Petitioner met his estranged spouse in the Lakeland police station lobby to exchange custody of their baby daughter. This transfer of custody was videotaped, allegedly by the Petitioner's mother-in-law. As the transfer was ending, the Petitioner became agitated at the person holding the camera. Petitioner picked up the baby car seat and moved towards the camera. The Petitioner swung the baby car seat, while the baby was in it, in the direction of the camera. No competent evidence was produced which proved that the car seat, while being swung by Petitioner, struck another person or an object held by another person.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered approving Petitioner's application for a Class "D" Security Officers license and a Class "G" Statewide Firearm license as provided for in Section 493.6118, Florida Statutes (1993). DONE AND ENTERED this 11th day of January, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 11th day of January, 1995. APPENDIX Petitioner is eligible for licensure under either stand Petitioner did not submit proposed findings of fact. Respondent proposed finding of fact: Accepted in substance: paragraph 1, 2, 3, 4, 5, 6 (in part). Rejected as not supported by the greater weight of competent (non-hearsay) evidence: paragraphs 6 (in part), 7. COPIES FURNISHED: Angel E. Figueroa 5331 David Street Lakeland, Florida 33813 Richard R. Whidden, Jr., Esquire Department of State Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater, Esquire General Counsel The Capitol Tallahassee, Florida 32399-0250
The Issue The issue presented is whether Respondents are guilty of the allegations contained in the Administrative Complaint filed against them, and, if so, what disciplinary action should be taken, if any.
Findings Of Fact Jacquelyn Kendrick is the owner of the Club Ecstasy, an adult entertainment club with dancers and strippers, located in Fort Lauderdale. In August 1996 the Club had a contract for security services with Warrior, a security agency. Respondent Manuel Vernerette, as an employee of Warrior, provided security services at the Club. When Warrior's relationship with the Club ended, Kendrick approached Respondent Vernerette with regard to working for the Club. Although Vernerette was currently employed by Navarro during the day, he was able to work at the Club at night. Kendrick also asked him if he knew others who would work at the Club, and he referred several other Navarro employees to Kendrick, who interviewed them. One of the Club's employees would check identification and frisk the Club's customers for weapons outside the front door. The customer could then enter the Club, purchase a "ticket", and then pass through a second door into the "actual" Club portion of the premises. The customer's ticket was collected at the second door. Vernerette's duties were primarily to "collect the tickets" at the second door. He also helped stock the bar and collected money from customers who wanted to use the "VIP rooms". He also had some supervisory responsibilities over some of the Club's employees he had referred to Kendrick. Vernerette only worked inside the Club. On November 23, 1996, two of Petitioner's investigators appeared at the Club to check identification and licenses of any security officers working at the Club. When they arrived, Vernerette was outside with several other Club employees he had referred to Kendrick. Someone other than Vernerette was stationed at the door searching customers. Vernerette appeared to be overseeing the operation. Although all of those employees wore dark clothing, they were not in uniforms. At the request of the investigators, Vernerette produced his Class "D" security officer license and his Class "G" firearm license. At the time Vernerette, who also holds a concealed weapon or firearm license, was wearing a 9 mm. semi-automatic firearm in a gun belt which was covered by his jacket. He was also wearing a badge. He told the investigators how many security officers were working inside the Club and that they could come outside to have their licenses checked. Those persons were summoned. The investigators did not go into the Club that night. In response to the investigator's questions, Vernerette told them that all the security officers were employees of the Club. He specifically used the term "in-house" security. He was cooperative with the investigators. The investigators were told that "Jackie" was the person they needed to speak to regarding the employment status of the security officers but that she was not there. On January 30, 1997, the investigators returned to the Club since they had been unsuccessful in their attempts to contact Jackie. She was there that night. Vernerette was not since he had stopped working at the Club by January 3. Jackie denied that Vernerette and the other security officers were employees. She was unable to produce any documentation regarding her relationship with Vernerette or the other security officers. She had no contract, no payroll records, and no cancelled checks. She advised Petitioner's investigators that she paid Vernerette, sometimes by check and sometimes in cash, and that he then paid the others. After the investigators interviewed her, Kendrick began using deputies from the Broward County Sheriff's Office to provide security services at the Club. In February 1997 Vernerette received his Class "B" license, a security agency license. He visited Kendrick at the Club, gave her a proposal to provide security services at the Club, and gave her his new business card. The business card advertises Armstar Protective Services, lists Vernerette as the President and C.E.O., and includes his Class "B" license number. Vernerette did not conduct the business of a security agency without being so licensed when he worked at the Club. He worked there as an employee of the business and not as an independent contractor. Further, Vernerette did not perform security officer duties at the Club between November 23, 1996, and January 30, 1997.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondents not guilty of the allegations contained in Counts I, III, and V and dismissing the Administrative Complaint filed against them. DONE AND ENTERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998. Tallahassee, Florida 32399-0250 Yolanda Fox, Esquire Law Offices of C. Jean-Joseph Mercede Executive Park 1876 North University Drive, Suite 309C Plantation, Florida 33322 Don Bell, General Counsel Department of State The Capitol, Plaza Level 2 Tallahassee, Florida 32399-0250 Honorable Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issue is whether Petitioner is entitled to recover its attorneys' fees and costs, pursuant to section 57.111, Florida Statutes, incurred in the defense of a disciplinary proceeding styled Department of Financial Services, Division of Funeral, Cemetery, and Consumer Services v. Landmark Funeral Home, Inc., DOAH Case No. 11-3693.
Findings Of Fact On May 9, 2009, the Board issued to Petitioner an unconditional funeral establishment license. On April 6, 2010, a probable-cause panel of the Board authorized Respondent to file a two-count Administrative Complaint against Petitioner. On May 3, 2010, Respondent executed a two-count Administrative Complaint and served the complaint on Petitioner shortly thereafter. After Petitioner requested a formal hearing, Respondent transmitted the file to DOAH on July 25, 2011, thus commencing DOAH Case No. 11-3693. Count I of the Administrative Complaint alleged an advertising violation. Petitioner never disputed this allegation and did not expend significant time at or prior to the hearing defending this count. At the start of the hearing, the parties announced a stipulation in which Petitioner admitted the violation. The Recommended Order incorporated the stipulation and recommended a small fine, which was included in the Final Order. Count II of the Administrative Complaint alleged that a principal of Petitioner misrepresented to the Board that two individuals (Pancieras) would not be involved in the operations of Petitioner; that the Board issued the license in reliance on this misrepresentation, but erroneously failed to incorporate into the license a condition restricting the Pancieras from involvement with the operations of the licensee (Panciera Condition); and that, after starting operations, Petitioner failed to restrict the activities of the Pancieras. Petitioner defended Count II by disputing the contention that it induced the Board to issue the license with false representations or that the Board erroneously failed to attach the Panciera Condition (Main Defense). In the event that the Main Defense failed, Petitioner defended Count II by disputing that the Panciera Condition was violated (Backup Defense). Petitioner prevailed as to Count II due to the Main Defense. Although consideration of the Backup Defense was thus unnecessary, the Recommended Order addressed the Backup Defense for three reasons: 1) if the Final Order materially altered the portion of the Recommended Order addressing the Main Defense, the alternative findings on the Backup Defense might avoid the necessity of a remand; 2) the alternative findings would not take long to make; and 3) the alternative findings presented an opportunity for humor. All of the facts needed to adjudicate the Main Defense and this fee case are derived from the minutes of Board meetings. All of these meetings took place 11-16 months prior to the determination of probable cause, so the minutes were available to the probable-cause panel when it took action. On November 7, 2008, the Board received an application for a funeral establishment license from Presidential Circle, Inc. (PC Application I). Valerie Panciera-Rieth was the principal of the corporate applicant. Prior to the Board meeting on December 3, 2008, at which the Board was to take up PC Application I, the Division of Funeral, Cemetery, and Consumer Services (Division) recommended the issuance of the license, and Ms. Panciera-Rieth's brother, Mark Panciera, filed a complaint against the "applicant." This marked the start of two themes in the runup to the license eventually issued to Petitioner: 1) the ongoing disputes between the siblings, which arose (or sharpened) after their father gave one of them (Ms. Panciera-Rieth) the location at which he (or his corporation) had operated a funeral establishment for many years and gave the other of them (Mr. Panciera) the name of this establishment; and 2) a failure to differentiate between a corporate entity and its principal. At the December 3 Board meeting, the Board deferred action on PC Application I, so that the Division could conduct an investigation. The ensuing investigation uncovered some violations, probably not of Presidential Circle, Inc., as it had recently been incorporated. The Division concluded that the violations were not of such gravity as to justify denying the PC Application I, so it agreed that "the Respondent" would pay an administrative fine of $1000. It is unclear who or what "the Respondent" was. But the identity of "the Respondent" quickly became irrelevant. At its February 4, 2009, meeting, the Board rejected the settlement and denied PC Application I. Prior to the Board meeting on April 8, 2009, three events occurred. In order, Ms. Panciera-Rieth filed a request for a formal hearing on the denial of PC Application I; Ms. Panciera-Rieth conveyed her Presidential Circle stock to Jonathan Shaw; and Presidential Circle, Inc., filed a new application for the same license at the same location (PC Application II). At its April 8 meeting, the Board members appeared to treat PC Application II as "Mr. Shaw's application." More to the point, the Board members were also concerned that they could not act on PC Application II while PC Application I was pending. During the discussion, the advocate for Presidential Circle, Inc., told the Board that there was no relationship between Ms. Panciera-Rieth and Mr. Shaw, who owned businesses along Hollywood Boulevard in the vicinity of the proposed location of the funeral establishment to be operated by Presidential Circle, Inc. During the April 8 meeting, the Board considered the difficult questions of whether Presidential Circle, Inc., could withdraw the request for hearing that Ms. Panciera-Rieth had filed on its behalf or could withdraw PC Application I after the Board had denied it. There was some concern that, if Presidential Circle, Inc., could withdraw its request for hearing, but not PC Application I, then the Board's denial of PC Application I would become final and serve as a form of prior discipline that could impede the granting of PC Application II. Another advocate for Presidential Circle, Inc., repeated the earlier representation that Ms. Panciera-Rieth and Mr. Shaw had no relationship and added that Mr. Shaw did not intend to employ Ms. Panciera-Rieth in the new funeral operation. Mr. Shaw himself more or less joined in these assertions. The Board then voted not to allow Presidential Circle, Inc., to withdraw PC Application I. The advocate for Presidential Circle, Inc., responded by advising that Ms. Panciera-Rieth had authorized the withdrawal of the request for hearing that she had filed on behalf of Presidential Circle, Inc. The advocate for Mr. Panciera (or an entity with which Mr. Panciera was associated) had taken a prominent role in Board discussions about PC Applications I and II. At this point, Mr. Panciera's advocate declared her satisfaction with the resolution because her primary concern had been to ensure that Ms. Panciera-Rieth, her husband, and her father would not be able to control the new business in some way. But no one on the Board took up this point, so it remained the personal opinion of the advocate of Mr. Panciera. Instead, someone whose capacity is not disclosed in the minutes restated the concern that the denial of PC Application I would have a negative effect on PC Application II because, even if Mr. Shaw is a new principal, the applicant itself remains the same. The Division Director agreed, warning Mr. Shaw that, if the Board considered PC Application II, Presidential Circle, Inc., would have to reveal this past denial as a form of discipline. After his offer of a corporate name change understandably sparked no interest among the Board members, the advocate of Presidential Circle, Inc., asked whether "the applicant" should form a new corporation. Clearly, he did not mean a subsidiary; he was asking if the principal of Presidential Circle, Inc., Mr. Shaw, should form a new corporation. Liking this idea, the Division Director recommended that the Board table action on PC Application II to give Mr. Shaw time to form a new corporation. The Board did so, and this essentially concluded the April 8 Board meeting. Prior to the next Board meeting on May 6, 2009, Mr. Shaw caused the formation of Petitioner, and it filed an application for a funeral establishment license. All of the other details remain unchanged from PC Application II. At the May 6 meeting, the Board approved the license without conditions. The minutes erroneously refer to Petitioner as formerly Presidential Circle, Inc.; the application as PC Application II; and the new application as a resubmission of PC Application II. More importantly, though, nothing took place at the meeting that would suggest that the Board intended to attach the Panciera Condition to the license that it was issuing. The advocate of Mr. Panciera mentioned the representations at the preceding meeting that Ms. Panciera-Rieth would have no role with the business, but the Board completely ignored this comment. Any representations from Mr. Shaw or the advocate of Presidential Circle, Inc., during the Board meeting of April 8 attached to PC Application II, not the application that the Board granted unconditionally on May 6. Minor confusion concerning the entity or application that was before the Board on May 6 does not support even an inference of an intention to condition the resulting license. Clearly, the formation of a new corporation spared the Board members the necessity of considering prior discipline imposed on a prior applicant (that, at the time of the offense, was controlled by Ms. Panciera- Rieth, not Mr. Shaw). Over the continued protest of the advocate of Mr. Panciera, the Board granted the new application and issued the license to the new applicant, Petitioner. The probable-cause panel lacked substantial justification when it found probable cause to initiate the proceeding against Petitioner that ultimately took the form of Count II. It is irrelevant whether the moment for determining substantial justification is the date on which the Board's probable-cause panel voted or the later date on which Respondent filed the Administrative Complaint with the Division of Administrative Hearings, as nothing material took place between these two actions. It is difficult to find anything in the record on which the probable-cause panel may have relied in determining that probable-cause existed for Count II. Demands from Mr. Panciera's advocate for the Panciera Condition are strewn throughout the minutes, but the advocate was not a member of the Board, which increasingly tended to ignore her. The probable-cause panel discussed exclusively the advertising violation alleged in Count I and ignored the misrepresentation issue alleged in Count II. As for Count II, the panel relied on a presentation by the author of a memorandum from Respondent's Division of Legal Services. Her presentation disregarded the distinction between Presidential Circle, Inc., and Petitioner; misstated that the Board issued the license at the April 8 meeting; and failed to address the omission of the Panciera Condition from the license. Her memorandum states that the Board took up Petitioner's application at its April 8, 2009, meeting, even though Petitioner was not formed until after that meeting; that Mr. Shaw said that the Pancieras would not be involved with Petitioner, even though Petitioner was not formed until after that meeting; and that the Board approved Petitioner's application at its April 8, 2009, meeting, which is flatly untrue. Like the presentation, the memorandum also fails to address the omission of the Panciera Condition from the license. The probable-cause panel had copies of the Board minutes for its April 8 and May 6, 2009, meetings, but the minutes of April 8 meeting are incomplete. If anyone had read these minutes, they would have seen that they ended at the announcement of a ten-minute break for Presidential Circle, Inc., to explore other options; the omitted minutes documented the approach of forming a new corporation, as described above. Additionally, no special circumstances exist that would render an award of attorneys' fees and costs unjust.
The Issue The issue is whether Respondent properly denied Petitioner's application for licensure by endorsement to practice as a registered nurse in the state of Florida.
Findings Of Fact In June of 1980, Petitioner was vacationing in Escambia County, Florida. While he was there, he was arrested for Driving Under the Influence of Liquor (DUI). After his arrest, Petitioner was taken to a police station where he waived his right to an attorney and submitted to a Breathalyzer test. Petitioner was held at the police station until a family member picked him up several hours later. Petitioner posted a $100 bond to secure his release from police custody. Petitioner pled guilty and was convicted of DUI in July of 1980. Petitioner was ordered to pay a fine in the amount of $167.50. His driver's license was suspended for 90 days. He was nineteen years old at the time. Petitioner was in the United States Navy for 16 years, beginning in November of 1980. Initially, Petitioner received training as a urology technician and an operating room technician. Later he participated in the Medical Enlisted Commissioning Program, which allowed him to complete his bachelor's degree in nursing. Petitioner served as an ensign the last five years of his naval career, during which he received several security clearances. Petitioner routinely disclosed the existence of his previous DUI when questioned by the Navy. Petitioner was medically retired from the armed forces in September of 1996. He filed an application for licensure by endorsement as a nurse with Respondent in August of 1996. At that time, Petitioner was already licensed as a registered nurse in the state of Rhode Island. Since October of 1996, Petitioner has worked as the Director for Risk and Quality Management at Gulf South Health Plans in Louisiana. Petitioner is also licensed to practice nursing in the state of Louisiana. Question 6A of the Florida application for nursing licensure states as follows: 6A. ARREST HISTORY Have you ever been convicted or have you entered a no contest or guilty plea -- regardless of adjudication -- for any offense other than a minor traffic violation? Petitioner answered this question on his application by checking the block marked "NO." Petitioner filed his application with Respondent on August 2, 1996, without disclosing his arrest and conviction for DUI. Respondent's routine check with the Florida Department of Law Enforcement revealed Petitioner's 1980 arrest and conviction for Driving Under the Influence. Respondent subsequently requested additional information from Petitioner relating to his DUI. Respondent furnished Petitioner with all requested information. Petitioner did not knowingly or willfully fail to disclose his arrest and conviction for DUI. At the time he filed his application, Petitioner believed his 1980 DUI conviction constituted a "minor traffic offense." He did not understand the question on the licensure application to require the reporting of a DUI conviction. Question 6A on Petitioner's application does not state whether an applicant should disclose all misdemeanors as well as felonies. The question is confusing and misleading. From February 1992 through June 1997, Respondent denied 392 applicants for nursing licensure because they had a criminal conviction or failed to disclose one or more criminal convictions. Respondent was able to locate the files of 287 of those applicants. Of the 287 applicants, 183 failed to disclose crimes other than DUI or criminal traffic charges. Ninety-four applicants failed to disclose DUI or criminal traffic violations. After Petitioner filed his application, Respondent approved a revision to the language of Question 6A. The revised language for the question reads as follows: Have you ever been found guilty of, or pled guilty or no contest to, any charge other than a minor traffic offense? You must include all misdemeanors and felonies even if adjudication was withheld. Respondent decided to make this change due to the high percentage of applicants who failed to disclose convictions for DUI. Respondent wanted to make the question easier to understand. Respondent has never denied licensure to an applicant solely as a result of an applicant's previous DUI conviction.
The Issue An administrative complaint dated June 22, 1989, alleges that Respondents violated Sections 475.25(1)(e), 475.25(1)(o), 475.42(1)(a) and 475.42(1)(e), F.S., by failing to pay an administrative fine and by operating as a broker without a valid current license. The issue in this proceeding is whether those violations occurred, and, if so, what discipline is appropriate.
Findings Of Fact Respondent, Jeffrey Robert Horne, is currently licensed as a real estate broker in the State of Florida, having been issued license number 0433763 in accordance with Chapter 475, F.S. Respondent, the People's Realty, Inc., is now and was at all times material hereto, a corporation registered as a real estate broker in the State of Florida having been issued license number 0253302 in accordance with Chapter 475, F.S. Jeffrey Robert Horne is licensed and operating as the qualifying broker for The People's Realty, Inc., at 1125 U.S. Highway One, Sebastian, Florida 32958. On December 6, 1988, the Florida Real Estate Commission issued its Final Order in Department of Professional Regulation, Division of Real Estate v. Jeffrey Robert Horne, Case #0156666, DOAH #88-2547, finding Respondent Horne guilty of violations of Section 475.25(1)(a), (b) and (k), F.S., reprimanding him, and assessing a fine of $500.00 for each of the three violations, for a total of $1,500.00. The order was filed, and was sent to counsel for Respondent, on December 13, 1988. The order does not, on its face, designate a deadline for payment of the fine. Jeffrey Horne sent a check dated 1/26/88 to the Department of Professional Regulation, (DPR) in the amount of $500.00, for one-third of his fine. The check was dishonored for insufficient funds and was returned to DPR. A form letter was sent to Jeffrey Horne notifying him of the nonpayment and assessing a $25.00 service charge. On or about April 7, 1989, Jeffrey Horne submitted a cashier's check to DPR in the amount of $525.00. Jeffrey Horne's April 7, 1989, submittal immediately followed his receipt of this form letter: (Note: some portions of letter are handwritten) Records Section 4-5-89 Jeffrey R. Horne 414 Quarry Lane Sebastian FL 32958 Dear I refer you to D. KELLER'S letter dated 2-24-89 , a copy of which is enclosed for your convenience, regarding your check(s) in the amount(s) of $500_ being dishonored by your bank, said check(s) being applicable to your request(s) for fine by Real Estate Commission. Since you have not complied with the above, this is to advise that I have cancelled your ( )salesman, (X)broker, (X)corporate license(s) No.(s) 0433763 & 0253302 effective 1-26-89 , and request the immediate return of said license(s) to this office. Accordingly, if you are operating as a ( )salesman, (X)broker, and/or (X)corporation, you are doing so without being the holder of valid license(s) and in violation of Chapter 475, of the Florida Statutes. For your information, the above license(s) cannot be reacti- vated unless the required amounts of $500 and $25 service charge are submitted by certified check or money order and license applied for on proper form to the undersigned. If within 10 days from the date of this letter, you still have not complied, this matter will be turned over to our Investigation Section. Sincerely, P.S. Both licenses also expired 3-31-89. No renewal shows as processed DJP: Enclosure D. Janet Puckey, Records Administrative Assistant II cc: DPR-Tallahassee - Finance & Accounting People's Realty Inc., 9516 Fellsmere Hwy, Sebastian 329 (Petitioner's exhibit #10) Nothing in the record of this proceeding explains how an effective date of 1/26/89 was established, or by what authority an Administrative Assistant II could cancel a license. In anticipation of license expiration, Jeffrey Horne had sent two renewal fee checks, dated March 27, 1989 and March 28, 1989, in the amount of $57.00 each, to DPR. These checks were dishonored for insufficient funds. Form letters dated April 26, 1989, were sent to Jeffrey Horne and to People's Realty, Inc., informing them that the checks were dishonored and requesting payment of the full amount, plus $10.00 service charge for each check. The letters also included this warning: * * * If you do not comply with the above, your license will be cancelled fifteen days from the receipt of this notice and immediate return of your license will be requested. Accordingly, any real estate business conducted subsequent to the expiration of your old license will be in violation of Chapter 475, Florida Statute. Your license cannot be reactivated unless the dishonored check is paid in full and a $10.00 service charge is paid. * * * (Petitioner's Exhibit #5) Jeffrey Horne received the notices approximately April 28, 1989, and on May 22, 1989, he sent a money order to DPR for $132.00, intending to cover the two $57.00 renewals and $10.00 service charges. He was later informed that he was $2.00 short, and he eventually sent that amount. Larry Whitten was an Investigative Specialist II, assigned to the Division of Real Estate Palm Beach office, between January 1988 and September 1989. In response to a memo from Attorney Steven Johnson, Investigator Whitten contacted Jeffrey Horne to determine whether he was currently operating. Investigator Whitten cannot recall the exact dates of his one office and two telephone contacts, but they were sometime between May 24, 1989 (the date of the memo), and June 16, 1989. The telephone was answered, "People's Realty", and the office was open and staffed by Jeffrey Horne and another person. On June 12, 1990, Darlene F. Keller, Director of the DPR Division of Real Estate, executed a "Certification of Absence of Public Record", stating: I HEREBY CERTIFY that a search of the records of the Florida Real Estate Commission has revealed that as of June 19, 1989, $1,000.00 of the fine owed by Jeffrey Robert Horne had not been received, nor had the renewal fee of $67.00 been paid. The licenses of both Respondents were invalid from April 1, 1989 to June 14, 1989. WITNESS my hand and seal this 12th day of June, 1990. (Petitioner's Exhibit #6) Paragraph 10 of the Administrative Complaint which initiated this proceeding states: "On or before June 14, 1989, Respondent made good the renewal fee checks previously returned NSF." This statement is consistent with Respondents' exhibit #1, which includes the DPR letters acknowledging payments. However, this conflicts with the statement in paragraph 10, above, that as of June 19, 1989, the renewal fee of $67.00 had not been paid. The same claim is also repeated in paragraph 11 of the Administrative Complaint. The complaint alleges that both Respondents are licensed, and that from January 13, 1989 to March 31, 1989, Respondent Horne was licensed and operating as the qualifying broker for the People's Realty, Inc., but that from April 1, 1989 to June 14, 1989, they were operating without valid and current licenses. (Paragraphs #1-4, Administrative Complaint dated June 22, 1989.) It is apparent from the above that it is Petitioner's position that Respondents' licenses expired on March 31, 1989, for nonpayment of a renewal fee, and were reinstated on June 14, 1989, when (according to one version of DPR's account) the renewal fees were properly paid. The retroactive "cancellation" of Jeffrey Horne's license by D. Janet Puckey is either given no effect, or his license was retroactively reinstated when he sent the $525.00. Jeffrey Horne has been licensed as a real estate broker since 1987. Prior to that he was licensed in Florida as a real estate salesman. The incident which led to his discipline in 1988 occurred when he was a salesman and is his only infraction of record. At the time that his checks were dishonored in 1989, he was in financial straits, having incurred legal expenses due to the disciplinary proceedings, and having recently started over with his own business. He does not consider his financial situation a threat to his clients as he refuses to accept or hold funds in escrow. Rather, he has an arrangement with a title company to maintain the escrow account. When the DPR checks were written, he thought that they would be covered by commission checks he had deposited. When he was notified that the checks were bad, he provided restitution as soon as he could. The payment of $132.00 rather than $134.00, to cover the two $57.00 renewal fees and $20.00 in service charges was a mathematical error. Jeffrey Horne concedes that he continued to operate as a broker and to operate the People's Realty, without pause, during the relevant period. He denies that he was given a deadline for payment of his fine, and he was attempting to pay it in installments. Until he was contacted by the investigator, he did not believe that his license had been revoked and would have stopped operating if he had been clearly instructed. He also attempted to pay his renewal fees and, until he was informed otherwise by DPR, he believed the fees were paid. The notice, described in paragraph 7, above, is ambiguous, but appears to provide a 15-day grace period when a check has been dishonored. Horne received the notices on April 28, 1989, but did not send the money order until May 22, 1989. He is guilty, at most, of knowingly practicing with an expired license for nine days (May 13th until May 22nd). At the time of hearing, the entire $1,500.00 administrative fine had been paid, as had the renewal fees.
Recommendation Based on the foregoing, it is hereby, recommended that a Final Order be entered finding that Respondents violated Section 475.42(1)(a), F.S., reprimanding them, and assessing a fine of $100.00, to be paid in full 30 days from the date of the Final Order. RECOMMENDED this 18th day of July, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire DPR-Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Gregory J. Gore, P.A. P.O. Box 780384 Sebastian, FL 32978-0384 Kenneth E. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Darlene F. Keller, Division Director DPR-Division of Real Estate P.O. Box 1900 Orlando, FL 32801
