The Issue The issue presented is whether Petitioner's application for licensure should be approved.
Findings Of Fact Petitioner filed an application with the Department requesting to be licensed as a credit life or credit disability agent, a credit property agent, and a credit agent. Petitioner answered in the negative to question numbered 3, which provides as follows: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Below that question is a warning advising that a criminal history can be cause for denying an application and that misrepresentations as to criminal history can be cause for suspending or revoking a license. Petitioner read that warning when he completed his application. Immediately above Petitioner's signature on his application for licensure is a section entitled "Final Statement" containing the following language: I do solemnly swear that all answers to the foregoing questions and statements are true and correct to the best of my knowledge and belief . . . . * * * Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of The Florida Insurance and Administrative Codes and may result in the denial of my application . . . . Petitioner read these statements when he completed his application for licensure. When Petitioner signed his application on April 9, 2003, he was aware that a truthful application was required. The Department obtained Petitioner's criminal history record that revealed that he had been arrested on February 12, 1981, in Lake County, Florida, for possession of marijuana, a controlled substance, in excess of 20 grams, a felony. The Department directed Petitioner to provide certified copies of the court documents related to that arrest. Those certified records reveal, and Petitioner so testified at the final hearing in this cause, that Petitioner was arrested, taken to jail, booked, and posted bail. An information was filed against him. He eventually pled guilty, adjudication was withheld, and he was sentenced to two years of probation, subject to certain conditions, and paid court costs. Petitioner satisfactorily completed the terms and obtained early release from probation. In addition to his court appearance the day after his arrest, Petitioner appeared before the circuit court judge on at least four occasions. Petitioner knowingly provided a false answer to the criminal history question on his application. Petitioner intended to misrepresent or conceal information regarding his criminal history. The Department classifies the crime Petitioner committed as a Class "A" crime.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a credit life or credit disability agent, as a credit property agent, and as a credit agent. DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2004. COPIES FURNISHED: Albert T. Escueta 1688 Pecan Court Orange Park, Florida 32073-3614 Dana M. Wiehle, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Tom Gallagher, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact Under the provisions of Chapter 494, Florida Statutes, the Department is charged with the responsibility and duty of administering and enforcing the provisions of said chapter, which includes the duty of granting or denying an application for a mortgage broker license, as set forth in Section 494.037, Florida Statutes. Applicant is a resident of the State of Florida and has a present address at 2400 North Ocean Boulevard, Fort Lauderdale, Florida 33305. On November 26, 1985, Applicant submitted a partially completed Application for Registration as a Mortgage Broker (hereinafter Application), under the provisions of Chapter 494, Florida Statutes. From the Application, Applicant was born March 19, 1935. He is a citizen of the United States and is a resident of the State of Florida. The files of the Department indicate that Applicant is not now and never has been granted a license as a mortgage broker by the Department. On February 28, 1986, the Department entered a Final Order Denying the Application for Registration as a Mortgage Broker and Notice of Rights against Applicant (hereinafter Denial Order). Applicant timely requested a hearing and William J. Kendrick, Hearing Officer, was assigned to preside over these proceedings. An administrative hearing was held on August 18, 1986, and on October 22, 1986, said Hearing Officer entered a Recommended Order recommending that Applicant's Application be approved. The Department has reviewed the Hearing Officer's Findings of Fact and adopts and incorporates them by reference with two minor exceptions which are discussed in the Conclusions of Law section herein.
Recommendation This case cane before the undersigned Hearing Officer, Division of Administrative Hearings on the Administrative Complaint by the Florida Real Estate Commission against the Respondent, Joyce H. Clemenz, charging her with being guilty of dishonest dealing, trick, scheme, device or breach of trust in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. The charges in the Complaint stem out of allegations that the Respondent made personal long distance phone calls while employed as a real estate salesman. This case was noticed for hearing at the Offices of the Florida Real Estate Conssion, Coral Gables, Florida, and was heard on May 26, 1976. At that hearing the Respondent appeared and stated that she had not received Notice of Hearing, however, she waived the objection she might have had to that and agreed to proceed with the hearing. At that hearing the Real Estate Commission failed to present competent evidence which would support the statement of facts contained in the Information filed by the Real Estate Commission. One witness testified, Rose Marie George, an employee of the Magnuson Corporation, with whom the Respondent had been employee and to whom she is alleged to have charged these personal phone calls. Mrs. George stated that she receives the accounts payable for the Magnusom Corporation and that on several occasions makes note of unusually high telephone charges. She stated that she had been told that the Respondent had made some personal phone calls which were charged to the Magnusom Corporation. Mrs. George did not testify as to whether the Respondent made these telephone calls without permission or whether she had reimbursed the corporation for those calls. Furthermore, Mrs. George's testimony, except for that part which relates to her own responsibilities, was pure, unsubstantiated hearsay and cannot be the basis for any findings of fact relative thereto. See Subsection 120.58(1)(a), Florida Statutes. The only other item of evidence which the Real Estate Commission attempted to submit was a certified copy of the Judgment of the County Court for Dade County relating to the same transactions as described in the Administrative Complaint. The above exhibit was marked Petitioner's Exhibit No. 2 and was not admitted by this Hearing Officer for the reason that a Judgment in a civil action is not admissible in another proceeding to establish the truth of the allegations therein inasmuch as the Real Estate Commission produced no other evidence relative to this matter, it is the finding of this Hearing Officer that there was a complete absence of any substantial evidence which might support the truth of the allegations in the information filed by the Real Estate Commission and it is, therefore, RECOMMENDED that the Complaint issued in this matter be dismissed. DONE and ORDERED this 14th day of June, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 717 Ponce de Leon Boulevard Coral Gables, Florida 33134 Joyce H. Clemenz Post Office Box 431539 South Miami, Florida 33143
Findings Of Fact Beginning on July 9, 1973, up to and including the date of the hearing, the Respondent, Hal K. Johnson, was a registered real estate salesman under certificate no. 54569, held with the Florida Real Estate Commission. In the January 22, 1973 application which the Respondent, Hal K. Johnson, filed for registration as a real estate salesman, he answered the question no. 9 found therein. Question no. 9 says: "Have you ever been arrested for or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgement has been reversed or set aside or not, or pardon or parole granted. if yes, state details in full. The answer which was given by Hal K. Johnson was, "DWI, December, 1972 & June, 1976, Failure to yield, Dec. 1972". In addition to the offenses indicated in his answer to question no. 9, the Respondent, Hal K. Johnson, had been arrested for a number of other offenses. On September 20, 1955, the Respondent had been arrested for disorderly conduct/drunk. On August 20, 1957, the Respondent had been arrested for driving while intoxicated. On January 28, 1959, the Respondent had been arrested for driving while intoxicated. On February 27, 1959, the Respondent had been arrested for disorderly conduct/drunk. On March 6, 1959, the Respondent had been arrested for disorderly conduct/drunk. On July 1, 1959, the Respondent had been arrested for disorderly conduct/drunk. On August 12, 1961, the Respondent was arrested for disorderly conduct/drunk. On January 17, 1962, the Respondent was arrested for disorderly conduct/drunk. On November 10, 1962, the Respondent was arrested for disorderly conduct/drunk. On September 18, 1963, the Respondent was arrested for having no drivers license. On December 13, 1963, the Respondent was arrested for disorderly conduct/drunk. On March 23, 1967, the Respondent was charged with disorderly conduct/drunk and profane language. On July 30, 1967, the Respondent was charged with disorderly conduct/drunk. On September 4, 1967, the Respondent was charged with reckless operation of motor vehicle, driving while under the influence of intoxicating beverages. On June 5, 1968, the Respondent was charged with disorderly conduct/drunk. On July 19, 1968, the Respondent was charged with disorderly conduct/drunk. On April 18, 1972, the Respondent was charged with disorderly conduct/drunk.
Recommendation At the hearing, the Respondent, Hal K. Johnson, did not challenge the facts as presented in the administrative complaint. His intention in appearing at the hearing was to offer mitigation. In the way of mitigation, Mr. Johnson said that he was only given one line to answer the question no. 9, which did not provide him enough room, notwithstanding the fact that he had read the instructions which said that additional information should be provided on a separate sheet. Moreover, Mr. Johnson said that the language of question no. 9, which says "commission of an offense . . .", only calls for just one offense to be listed and he in fact listed three. He also said that he did not put some of the drunk arrests down because now they don't even require you to be arrested, they just take you someplace." In addition, he indicated that he did not know where to get the records of these arrests that had been placed against him. He said he thought that the records of these matters were found in Tallahassee, Florida. The three indications of arrests were also felt, in the mind of the Respondent, to be a sufficient indication of the 20 arrests that had been made. Finally, the Respondent said that he wants to make it clear that he didn't intend to try to make misstatements, although he agrees that he failed to elaborate, which to him was an error of omission not intent. Having considered the explanation offered by Mr. Hal K. Johnson, the Respondent, in view of the facts, it is recommended that his certificate no. 54569, as a registered real estate salesman be revoked. DONE and ENTERED this 14th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Hal K. Johnson c/o Fowler Realty 8917 Atlantic Boulevard Jacksonville, Florida 32211
The Issue Whether Florida Administrative Code Rule 61G4-15.008, constitutes an invalid exercise of delegated legislative authority because it enlarges, modifies, or contravenes Section 489.129(1)(a), Florida Statutes, and because it exceeds Respondent’s rulemaking authority; and Whether an interpretation of Section 455.227(1)(h), Florida Statutes, constitutes an unpromulgated “rule.”
Findings Of Fact The first 12 findings of fact are facts contained in the Stipulation: Prior to June 2005, Petitioner, Juan Cuellar, Luis Garcia, and Gerardo Quintero, received what appeared to be a valid Miami-Dade Building Business Certificate of Competency. Upon receipt, Petitioners applied to the Department of Business and Professional Regulation (hereinafter referred to as the “Department”), to obtain a registered contractor’s license using the Certificates of Competency. Based on the Certificates of Competency, the Department issued each Petitioner a registered contractor’s license bearing license numbers RG291103667 (Mr. Cuellar), RF11067267 (Mr. Garcia), and RF11067268 (Mr. Quintero). Petitioners each applied for a certificate of authority for their respective businesses, Cuellar Construction and Drywall (Mr. Cuellar), A.P.A. Plumbing Corp. (Mr. Garcia), and Q Plumbing Services Corp. (Mr. Quintero). Based on the fact the Certificates of Competency and the registered contractor’s licenses had been granted, the Department issued a certificate of authority to Cuellar Construction and Drywall, QB 41342; APA Plumbing Corp., QB 42763; and Q Plumbing Services Corp., QB 42825. At the time the Department issued Petitioners their registered contractor’s licenses and subsequent certificates of authority, it did so based solely on the Miami-Dade Building Business Certificates of Competency presented by Petitioners and the only information submitted to it. The parties stipulate that Petitioners were not entitled to their registered contractor’s licenses and certificates of authority because the Miami-Dade Building Business Certificates of Competency were not valid certificates. At the time of their applications to the Department, Petitioners were not qualified by any local jurisdiction or any other method necessary to receive a registered contractor’s license from the Department. The Department filed Administrative Complaints against Petitioners for the suspension or revocation of their licenses based on violations of Sections 489.129(1)(a), 489.129(1)(d), 489.129(1)(m), and 455.227(1)(h), Florida Statutes (hereinafter collectively referred to as the “Administrative Complaints”). (All references to Sections of Chapter 489, Florida Statutes, as they relate to the Administrative Complaint are to the 2005 version. All other references to Florida Statutes are to the 2007 version). Each Petitioner challenged the Administrative Complaint filed against him in DOAH Case No. 07-2823PL (Mr. Cuellar), DOAH Case No. 07-2824PL (Mr. Garcia), and DOAH Case No. 07-2825PL (Mr. Quintero). On December 13, 2007, the undersigned, as the Administrative Law Judge to whom the cases had been assigned, issued a Recommended Order in DOAH Case No. 07-2823PL (Mr. Cuellar), DOAH Case No. 07-2824PL (Mr. Garcia), and DOAH Case No. 07-2825PL (Mr. Quintero), determining that Petitioners violated Sections 489.129(1)(a), 489.129(1)(m), and 455.227(1)(h), Florida Statutes (hereinafter referred collectively as the “Recommended Orders”). The “Recommendation” in each of the Recommended Orders was, except for the name of the Respondent, the same as the following: Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department finding that Luis Garcia violated the provisions of Sections 489.129(1)(a) and (m), and 455.227(1)(h), Florida Statutes, as alleged in Counts I, III, and IV of the Administrative Complaint; dismissing Count II of the Administrative Complaint; requiring that Respondent pay the costs incurred by the Department in investigating and prosecuting this matter; giving Respondent 30 days to voluntarily relinquish his license; and revoking Respondent’s license if he fails to voluntarily relinquish it within 30 days of the final order. Based upon the foregoing, and the fact that no final decision has been entered by the Construction Industry Licensing Board (hereinafter referred to as the “Board”), Petitioners are facing the possible revocation or voluntary relinquishment of their licenses (an adverse impact whether they are “entitled” to the licenses or not), continued defense against the Administrative Complaints, and the payment of the cost incurred by the Department in prosecuting the Administrative Complaints. Should the Board revoke Petitioners’ licenses, they will also be precluded from re-applying for licensure for a period of five years pursuant to Section 489.129(9), Florida Statutes. Petitioners face the same consequence even if they voluntarily relinquish their license pursuant to Florida Administrative Code Rule 61G4-12.017(3)(a). The adverse consequences of the possible final action on the Administrative Complaints which they face stem in part from a finding that they have violated Section 489.129(1)(a), Florida Statutes, which provides the following: The board may take any of the following actions against any certificateholder or registrant: place on probation or reprimand the licensee, revoke, suspend, or deny the issuance or renewal of the certificate, registration, or certificate of authority, require financial restitution to a consumer for financial harm directly related to a violation of a provision of this part, impose an administrative fine not to exceed $10,000 per violation, require continuing education, or assess costs associated with investigation and prosecution, if the contractor, financially responsible officer, or business organization for which the contractor is a primary qualifying agent, a financially responsible officer, or a secondary qualifying agent responsible under 489.1195 is found guilty of any of the following acts: Obtaining a certificate, registration, or certificate of authority by fraud or misrepresentation. . . . . Petitioners were found in the Recommended Orders to have violated Section 489.129(1)(a), Florida Statutes, based upon an interpretation of that statutory provision adopted by the Board in Florida Administrative Code Rule 61G4-15.008, an existing rule which Petitioners have challenged in this proceeding (hereinafter referred to as the “Challenged Existing Rule”), which provides: Material false statements or information submitted by an applicant for certification or registration, or submitted for renewal of certification or registration, or submitted for any reissuance of certification or registration, shall constitute a violation of Section 489.129(1)(a), F.S., and shall result in suspension or revocation of the certificate or registration. Essentially the same conclusions of law were reached in the Recommended Orders concerning the application of the Challenged Existing Rule (in paragraphs numbered “23” through “25” or “25” through 27” of the Recommended Orders): While Respondent has not been specifically charged with a violation of Florida Administrative Code Rule 61G4- 15.008, the Department cited the Rule, which contains the following interpretation of what constitutes "[o]btaining a certificate, registration, or certificate of authority by . . . misrepresentation" in violation of Section 489.129(1)(a), Florida Statutes, in support of Count I of the Administrative Complaint: . . . . It is the Department’s position, that despite the fact that Respondent did not commit “fraud” in obtaining his license and a certificate of authority for [the business] and, in fact, did not knowingly submit false information to the Department in obtaining his license and the certificate of competency, “[m]aterial false statements or information” were nonetheless submitted by Respondent in support thereof. Florida Administrative Code Rule 61G4- 15.008, in defining what constitutes the act of "[o]btaining a certificate, registration, or certificate of authority by . . . misrepresentation” eliminates the need for the Department to prove any knowledge on the part of Respondent that he has made a material misrepresentation or any intent on the part of Respondent to rely upon a material misrepresentation. All that is required is proof that a material representation was made and that the representation was false. Petitioners have challenged the validity of the Challenged Existing Rule as being an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(b) and (c), Florida Statutes. Petitioners were also found in the Recommended Orders to have violated Section 455.227(1)(h), Florida Statutes, based upon an interpretation of that statutory provision advanced by the Department during the prosecution of the Administrative Complaints. Section 455.227(1)(h), Florida Statutes, provides that the following act constitutes grounds for which disciplinary action may be taken: (h) Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board. (Emphasis added). The Department’s argument concerning the appropriate interpretation and application of Section 455.227(1)(h), Florida Statutes, advanced in the prosecution of the Administrative Complaints, was advanced in paragraphs 24 through 26 of the Department’s Proposed Recommended Order: Obtaining a certificate or registration in error as a result of a misrepresentation made during the application process is conduct proscribed by Section 455.227(1)(h), Florida Statutes. Respondent was issued a registration by error of the Department. To be issued a registration by the Department, an applicant must submit along with an application for registration, a copy of the applicant’s validly issued competency card from a local government licensing board . . . . Respondent submitted a fake competency card that appeared to be validly issued by the Miami Compliance Office. . . . If the Department had known Respondent’s Competency Card was fake and Respondents’ answer to the attest statement was false, the Department would not have issued Respondent a registration. Thus, since the Department did not have truthful and accurate information, the registration issued to Respondent was in error. The Department’s interpretation was described and accepted in the Recommended Orders (in paragraphs numbered “29” through “31” or “31” through 33”, in the Recommended Orders), as follows: In support of this alleged violation, the Department has argued that Respondent obtained his license “through an error of the department . . . .” That “error” was the Department’s reliance upon an improperly issued Miami-Dade building business Certificate of Competency. The evidence proved clearly and convincingly that the Department issued the Respondent’s license in “error.” While it is true that Respondent did not intentionally cause or even know of the error, the Department reasonably takes the position that Respondent obtained his license nonetheless as a result of this error and that is all that Section 455.227(1)(h), Florida Statutes. The Department has proved clearly and convincingly that Respondent violated Section 455.227(1)(h), Florida Statutes [requires]. Although not specifically quoted in their Petition in this case, Petitioners have quoted what they believe is the unpromulgated rule of the Board which they are challenging in this case in paragraph 60 of Petitioner’s Proposed Final Order (hereinafter referred to as the “Challenged Language”): . . . . Essentially, the Board applies the following unadopted rule when applying Section 455.227(1)(h): Disciplinary action may be taken pursuant to Section 455.227(1)(h), Florida Statutes, where an individual attempts to obtain a license through an error of the department even if the individual did not have knowledge of the error. As of the date of the final hearing of this matter, the Board had taken no action on the Recommended Orders.
The Issue Pursuant to the order of the First District Court of Appeal dated October 18, 2005, the issue before the Division of Administrative Hearings is a determination of the amount of attorneys' fees and costs to be awarded for the administrative proceeding in Department of Health v. Anthony Glenn Rogers, M.D., DOAH Case No. 02-0080PL, and for the appellate proceeding styled Anthony Glenn Rogers, M.D. v. Department of Health, Case No. 1D04-1153 (Fla. 1st DCA Oct. 18, 2005).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with regulating the practice of medicine, and the Board of Medicine ("Board") within the Department is the entity responsible for entering final orders imposing disciplinary action for violations of the laws regulating the practice of medicine. See §§ 455.225 and 458.331(2), Fla. Stat. On January 4, 2002, the Department of Health filed an Administrative Complaint charging Dr. Rogers with violations of Section 458.331(1)(m), (q), and (t), Florida Statutes (1998).3 The matter was referred to the Division of Administrative Hearings, which assigned the matter DOAH Case No. 02-0080PL. The case was heard on May 7, 2002, by Administrative Law Judge Michael J. Parrish. Judge Parrish entered his Recommended Order on February 21, 2003, in which he found that the Department had failed to prove violations of Section 458.331(1)(q) and (t), Florida Statutes (1998), and recommended dismissal of those charges. Judge Parrish found that the Department had proven a violation of Section 458.331(1)(m), Florida Statutes (1998), failing to keep medical records as required by rule, and he recommended that Dr. Rogers be required to pay a $1,000.00 administrative fine and attend a Florida Medical Association record-keeping course as the penalty for the violation. The Board entered its Final Order on February 17, 2004, in which it adopted its own findings of fact and conclusions of law; found Dr. Rogers guilty of all three charges in the Administrative Complaint; and imposed a penalty on Dr. Rogers consisting of a $10,000 administrative fine, completing of a drug course sponsored by the University of South Florida, completion of a Florida Medical Association record-keeping course, and two years' probation, during which he was not permitted to practice medicine unless his practice was monitored quarterly by a physician approved by the Board. Dr. Rogers appealed the Board's Final Order to the First District Court of Appeal, challenging the Board's determination that Dr. Rogers had violated Section 458.331(1)(q) and (t), Florida Statutes (1998). Dr. Rogers filed a motion for attorneys' fees and costs based on Section 120.595(5), Florida Statutes. In addition, Dr. Rogers filed a Motion for Stay of Final Order, which the Board opposed. The district court denied the motion for stay in an order entered April 2, 2004, and Dr. Rogers proceeded to comply with the terms of the two-year probationary period imposed by the Board, as well as fulfilling the other requirements set forth in the Board's Final Order of February 17, 2004. In an opinion issued on October 18, 2005, the First District Court of Appeal reversed the Board's Final Order with respect to its determination that Dr. Rogers had violated Section 458.331(1)(q) and (t), Florida Statutes (1998), and remanded the matter to the Board for entry of a Final Order consistent with its opinion. The district court held in its opinion that the Board had erroneously re-weighed the evidence and had rejected findings of fact in the administrative law judge's Recommended Order that were supported by competent substantial evidence. The district court also entered on October 18, 2005, the order granting Dr. Rogers's motion for attorneys' fees and costs that is the subject of this proceeding. The district court's mandate issued on February 23, 2006, and, on April 21, 2006, the Board entered a Final Order on Remand adopting the findings of fact and conclusions of law in Judge Parrish's Recommended Order, finding that Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes (1998), and imposing a $1,000.00 administrative fine on Dr. Rogers and requiring him to attend a medical record-keeping course. Based on the Amended Affidavit of C. William Berger filed August 24, 2006, the total number of hours Mr. Berger spent in representing Dr. Rogers in the administrative proceeding in DOAH Case No. 02-0080PL is 79.75, a total that the Department does not challenge. Mr. Berger's billing rate was $300.00 per hour, a rate that the Department accepts as reasonable. The total amount of attorney's fees paid to Mr. Berger for his representation of Dr. Rogers through the administrative proceedings before the Division of Administrative Hearings was, therefore, $23,925.00. Dr. Rogers was ultimately found to have violated one count of the three-count Administrative Complaint filed against him by the Department, the count in which the Department alleged that Dr. Rogers had violated Section 458.331(1)(m), Florida Statutes (1998), by failing to keep adequate medical records related to the patient that was the subject of the charges against him. Mr. Berger did not record in his billing statements the amount of time he spent researching this charge, preparing for hearing on this charge, or addressing this charge in the Proposed Recommended Order he filed in 02-0080PL. It is reasonable that Mr. Berger spent 10 percent of the hours included in his billing statements preparing Dr. Rogers's defense to the charge that he failed to keep adequate medical records.4 Accordingly, Mr. Berger's attorney's fees will be reduced by 10 percent, or by $2,392.50, for a total of $21,532.50. In reaching the percentage by which Mr. Berger's fees should be reduced, consideration has been given to the amount of the fees in relationship to the failure to prevail on the medical-records violation, to the seriousness of the alleged violations on which Dr. Rogers prevailed before both the administrative law judge and on appeal,5 and the penalty ranges that the Board could impose for the violations with which Dr. Rogers was charged.6 Based on the Supplemental Affidavit of Lisa Shearer Nelson Regarding Attorneys' Fees and Costs filed September 5, 2006, Ms. Nelson claimed that she spent a total of 187.1 hours "from the issuance of the final order of the Board of Medicine through the appeal and remand and initial preparation of the petition for attorney's fees and costs." Ms. Nelson's billing statements reflect that she represented Dr. Rogers during the appellate proceedings before the First District Court of Appeal in Case No. 1D04-1153 and before the Board on remand from the district court. Ms. Nelson's billing rate was $250.00 per hour, a rate that the Department accepts as reasonable. The total amount of attorney's fees paid by Dr. Rogers to Ms. Nelson for her representation was, therefore, $46,775.00. A review of the billing statements attached to Ms. Nelson's supplemental affidavit reveals that the final billing statement, dated June 9, 2006, was for "preparation of petition for fees and costs; preparation of affidavit re same." Dr. Rogers was billed for 1.9 hours in this billing statement, for a total of $475.00. Because the work done by Ms. Nelson reflected in this billing statement did not involve the appellate proceeding arising out of the Board's Final Order of February 17, 2004, the hours claimed by Ms. Nelson are reduced by 1.9 hours, for a total of 185.2 hours. Accordingly, Ms. Nelson's attorney's fees for her representation of Dr. Rogers on appeal total $46,300.00. The total costs identified in Mr. Berger's Amended Affidavit and in the billing statements attached to the Amended Affidavit is $4,462.55. This amount is reduced by $1,000.00 attributable to a retainer paid to a Dr. Spanos, who was initially retained as an expert witness but who ultimately did not testify on Dr. Rogers's behalf. The total allowable costs for the administrative proceeding, therefore, are $3,462.55. The total costs identified by Ms. Nelson in her Supplemental Affidavit and in the billing statements attached to the Supplemental Affidavit is $1,005.01. The total costs for both the administrative and the appellate proceedings are, therefore, $4,467.56. Dr. Rogers submitted an affidavit in which he claimed that he expended total costs of $154,807.23 in fulfilling the terms of the penalty assessed against him in the Board's Final Order of February 17, 2004, which was reversed by the district court.
Conclusions For Petitioner: C. William Berger, Esquire One Boca Place, Suite 337W 2255 Glades Road Boca Raton, Florida 33486 For Respondent: John E. Terrel, Esquire Michael D. Milnes, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue The issue for disposition is whether Petitioner, Mr. Franqui, is entitled to licensure as a real estate salesperson in the State of Florida.
Findings Of Fact Jose C. Franqui, a resident of Kissimmee, Florida, was previously licensed as a real estate broker in the State of New York until 1979. When the economy and interest rates slowed real estate sales, he moved back to his native Puerto Rico. Later, he returned to live in Florida and, on March 3, 1997, he applied to the Florida Real Estate Commission for licensure as a real estate salesperson. The application, signed by an affidavit by Mr. Franqui, includes question no. 9 which inquires whether the applicant " . . . [Has] ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. . . ." In boldface print, the question on the application form warns that the answer will be checked against local, state, and federal records and that failure to answer accurately could cause denial of licensure. Mr. Franqui answered "no" to question No.9. In 1966 in New York, Mr. Franqui was charged and convicted of carrying concealed tear gas. He was fined $200. On May 14, 1978, also in New York, after an altercation with his wife, Mr. Franqui was arrested for assault. He spent a night in jail and was released. On August 11, 1978, he pled guilty to the lesser offense of harassment and received a "conditional discharge." Neither of these incidents was disclosed by Mr. Franqui on his application for licensure. Instead, he claims he did not remember the disposition of the assault charge and that he considered the tear gas charge too remote in time to be of any consequence. The explanations do not excuse Mr. Franqui's patent disregard of the terms of the question at issue. Nor does the testimony of Mr. Umpierre, a co-worker, that ". . . Franqui is a nice, honest person . . ." obviate the fact of Mr. Franqui's falsehood.
Recommendation Based on the foregoing, it is recommended that the agency enter its final order denying Jose C. Franqui's application for licensure as a real estate salesperson. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 8th day of October, 1998. COPIES FURNISHED: Jose C. Franqui, pro se 3511 Bonaire Boulevard Apartment 2401 Kissimmee, Florida 34741 Manuel E. Oliver, Assistant Attorney General Department of Legal Affairs Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Henry M. Solares, Director Division of Real estate Department of Business and Professional regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
