The Issue Whether Petitioners are entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Stipulated Facts On or about May 14, 2007, the Department filed an Administrative Complaint alleging that Respondents in the merits case held themselves out as interior designers. On or about August 15, 2007, Braxton filed an Election of Rights requesting a formal hearing. On October 15, 2007, Braxton filed a Motion for Attorney’s Fees and Costs. On or about October 18, 2007, the Department filed a Motion to Dismiss Formal Hearing based on the parties’ agreement that the case would be resubmitted to the Probable Cause Panel with the recommendation of dismissal. On or about October 19, 2007, the Division of Administrative Hearings entered an Order Closing File. On or about November 5, 2007, the case was presented to the Probable Cause Panel and a Closing Order was entered. On or about December 18, 2007, a letter was sent to Braxton’s attorney indicating the matter was closed and no further action was required. However, the letter did not enclose a copy of the Probable Cause Panel Closing Order. On March 3, 2008, Braxton sent a letter to the Department’s counsel asking for a copy of “any final action taken by the Probable Cause Panel.” On or about March 7, 2008, a copy of the closing order was faxed to counsel for Braxton. On or about April 7, 2008, Braxton filed a Supplemental Motion of Attorney’s Fees and Costs. Facts Based Upon the Evidence of Record In the Motion and Supplemental Motion, Braxton seeks relief under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes. There is no dispute that Braxton is a small business party for purposes of Subsection 57.111(4)(a), Florida Statutes. There is no dispute that Braxton is the prevailing party in the underlying merits case. There is no dispute that the fees and costs set forth in the April 7, 2008, affidavit filed with the Supplemental Motion for Attorney’s Fees and Costs are reasonable. The undersigned has reviewed the Supplemental Affidavit as to Attorney’s Fees and Costs filed on October 27, 2008, and the Second Supplemental Affidavit as to Attorney’s Fees and Costs filed on December 10, 2008, and finds the fees and costs contained therein to be reasonable. Dwight Chastain is an investigator for the Department and, while employed by a private law firm, investigates complaints concerning the Board of Architecture and Interior Design. In December 2006, Mr. Chastain received a complaint letter regarding Petitioner herein, Sheryl Lyn Braxton. The complaint letter was addressed to the law firm for which Mr. Chastain is employed. The letter alleged that Ms. Braxton represented herself to the public as an interior designer, and that the complainant could find no evidence that she held a license “specifically that of an interior designer as represented in attached CBS website, is held either by her personally or her company “Braxton Designs.” Attached to the complaint letter is a page purportedly from the website, CBS.com, specifically a link from the television show, “Big Brother 2.” Additionally, the complaint letter alleged that Ms. Braxton had verbally represented to "many individuals" that she had performed interior design work for Ivana and Donald Trump at the Plaza Hotel in Manhattan. While the letter contains a signature, it is impossible to decipher the writer’s last name, and Mr. Chastain considered the signature to be illegible. Further, the letter did not contain a return address or a telephone number. Because the writer’s name is illegible and there was no contact information in the letter, the complaint letter is essentially anonymous. The printed page attached to the complaint letter from the CBS website identifies a participant on the show as “Sheryl,” with no last name mentioned, from Ponte Vedre Beach, Florida. Under the heading “personal profile,” her occupation is listed as interior designer. The copyright date at the bottom of the page is “MMIII,” which is 2003, although Ms. Braxton participated in the Big Brother show in 2001. The name “Braxton Interiors” does not appear on the printout from the CBS website. Also attached to the complaint letter is a page purportedly from the myflorida.com website showing that Sheryl Lyn Braxton held a current real estate license and was employed by Florida Network LLC, a real estate corporation. Mr. Chastain could not decipher the signature on the letter and, therefore, did not attempt to contact the complainant. He did a fictitious name search of and did not find anything under the name of Braxton Designs, Braxton Designers or Sheryl Lyn Braxton. Mr. Chastain searched the Department's database and found that Sheryl Lyn Braxton was not licensed by the Board of Architecture and Interior Design. Mr. Chastain also went to the CBS website and found the page referencing “Sheryl” more fully described above in paragraph 18. There is nothing in the record to indicate that Mr. Chastain called CBS to seek any information which Ms. Braxton submitted to CBS about herself, i.e., whether she actually held herself out to be an interior designer to CBS. Mr. Chastain acknowledged at hearing that in his computer searches of Ms. Braxton’s name and “Braxton Designs,” he found nothing indicating that Ms. Braxton held herself out to anyone as an interior designer. There is nothing in the record to indicate that Mr. Chastain spoke to anyone who confirmed the allegations in the complaint letter that Ms. Braxton verbally held herself out to anyone that she was an interior designer. On January 5, 2007, Mr. Chastain wrote a letter to Ms. Braxton informing her that the Board of Architecture and Interior Design had initiated a complaint investigation as to allegations that she was using the title “interior designer," or words to that effect, without a valid license. The letter also informs her that “[y]ou have 20 days to respond in writing or you may contact me at (850) 402-1570. My email address is dwightc@stslaw.com.” Ms. Braxton called Mr. Chastain’s office and left two voice mail messages for him, neither of which he received. Regardless of the circumstances of Ms. Braxton’s response to the letter, Mr. Chastain proceeded with the belief that she had not responded to his letter.3/ Mr. Chastain wrote an Investigative Report which was provided to the Probable Cause Panel. The report read in pertinent part: Alleged Violation: FS481.223(1)(c) use of the name or title “interior designer”, or words to that effect, without a valid state license. Synopsis: This investigation was based on a consumer complaint in which it is alleged that subject appeared on the CBS television show Big Brother Show link, identifies her as an interior designer. Complainant alleges subject does business under the name Braxton Design and that she has verbally represented herself to “many individuals” that she has been involved in the interior design of many high-profile residential and commercial buildings. (Exhibit 1) Subject is not licensed as an interior designer in Florida, but is licensed as a real estate sales associate. Braxton design is not a registered corporation or fictitious name with the Florida Secretary of State. (Exhibit 2) Subject was notified of this investigation by letter dated January 5, 2007, but failed to respond. The letter was not returned undelivered. (Exhibit 3) Meeting of Probable Cause Panel The Probable Cause Panel met on May 14, 2007, during which the Braxton case was considered. The packet of materials which the panel members received regarding the Braxton case consists of a memorandum to the panel members from the prosecuting attorney regarding the case; another memorandum from the prosecuting attorney to someone named Emory Johnson regarding the case; a draft administrative complaint; a draft Notice and Order to Cease and Desist; the investigative report written by Mr. Chastain with three attachments: the complaint letter with the page from the CBS website and printout showing Ms. Braxton’s real estate licensure status; copies of licensing and corporate registration information found by Mr. Chastain; and the letter written by Mr. Chastain to Ms. Braxton notifying her of the complaint. The transcript of the Probable Cause Panel concerning the Braxton case reads as follows: MR. MINACCI: Tab A-6, Sheryl Lyn Braxton, Case Number 2007-000968. The subject is unlicensed and held herself out as an interior designer on the CBS television show “Big Brother.” The subject failed to respond to the investigation. Recommendation, notice of order to cease and desist, one count Administrative Complaint for using the title “interior designer” without a license. MR. WIRTZ: Motion to accept counsel’s recommendation for one count. THE CHAIR: Second. Discussion. Hearing none, all those in favor of the motion, signify by saying aye. (so signified by aye.) THE CHAIR: Opposed, like sign. (No response.) THE CHAIR: Hearing none, the motion carries unanimously. MR. WIRTZ: She’s a big star. She can afford 5,000 for the count plus costs. THE CHAIR: Second. Recommendation has been made and seconded. Discussion? Hearing none, all those in favor of the recommendation, signify by saying aye. (So signified by aye.) THE CHAIR: Opposed, like sign. (No response.) THE CHAIR: Hearing none, the recommendation carries. MR. HALL: Shall we send a copy of the complaint to CBS? THE CHAIR: If you would like to. THE [sic] HALL: We certainly can. MR. Wirtz: I think we should. An Administrative Complaint was filed against Sheryl Lyn Braxton and Braxton Designers with the Department’s clerk on May 21, 2007, which began the underlying merits case.
The Issue Whether Respondent, Arlene Schwartz, willfully violated Subsection 104.31(1)(a), Florida Statutes, which prohibits an officer or employee of the state, or of any county or municipality, from using his or her official authority or influence for the purpose of interfering with an election or a nomination of office, or coercing or influencing another person's vote or affecting the results thereof.
Findings Of Fact Based on the testimony and demeanor of the witnesses, documentary evidence, entire Transcript of Proceedings, and the facts admitted in the Joint Pre-hearing Stipulation, the following findings of fact are made: Respondent, Arlene Schwartz, as Mayor of the City of Margate, Florida, was a municipal officer on October 27, 2000, when she wrote a letter signed by her as Mayor, Margate, Florida, on official City of Margate stationery, endorsing Howard Forman for Clerk of Court, Broward County, Florida. Respondent has 10 years of experience as a candidate, elected official or member of municipal boards. Eugene Steinfeld was City Attorney, City of Margate, for 24 years; as such he gave advice to the Mayor and Commissioners of the City of Margate about their responsibilities under the Florida Ethics Code and Elections Laws. In 1994, in his capacity as City Attorney, Mr. Steinfeld authored a City of Margate Resolution which authorized the Mayor, Vice Mayor and City Commissioners "to use a facsimile of the official seal of the City of Margate in correspondence, promotion, or advertising when they are promoting the City of Margate. " On January 24, 2000, in his capacity as City Attorney, Mr. Steinfeld sent an inter-office memorandum to Respondent and others advising "there is no prohibition for endorsing a candidate for City Commission by another candidate for City Commission . . . ; it is only where a candidate expends money for another candidate or contributes things of value to another candidate that is prohibited, pursuant to FS. 104.071." In September 2000, Mr. Steinfeld had a conversation with Respondent wherein she asked if she would be permitted to endorse a candidate for a board position in a development district. In advising her that she could, he recalled saying, "You do not lose your freedom of speech when you become an elected official." On October 23, 2000, Respondent attended a meeting of the Margate Democratic Club where Howard Forman, a candidate for Clerk of Court, Broward County, spoke. As a State Senator, Mr. Forman had assisted the City of Margate even though Margate was not in his Senate District. Respondent orally endorsed Mr. Forman at the meeting and offered her assistance. On October 25, 2000, Respondent's office received a telephone call from Iris Siple who worked in Mr. Forman's campaign. Respondent returned the call on October 26, 2000, and was asked to write a letter endorsing Mr. Forman on city stationery. The letter was written on October 27, 2000, and later faxed to Mr. Forman's campaign headquarters. Mr. Forman's campaign reproduced the letter and mailed approximately 700 copies to potential voters. Respondent received no remuneration or benefit for writing the endorsement letter. Respondent acknowledged that she had no specific discussion with the City Attorney regarding the appropriateness of using city stationery in the endorsement letter. Nevertheless, she believed that writing the endorsement letter was something that she could do without violating the law. Based on the evidence presented, including the resolution allowing the use of the seal in correspondence promoting the city, the memorandum and advice given by the City Attorney, and her reliance on the request made by Mr. Forman's campaign office for a letter on city stationery, the undersigned finds that Respondent's belief that she had done nothing inappropriate in writing the endorsement letter to be credible.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Respondent, Arlene Schwartz, did not violate Subsection 104.31(1)(a), Florida Statutes, as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 31st day of January, 2002, in Tallahassee, Leon County, Florida. JEFF B. 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2002. COPIES FURNISHED: J. David Bogenschutz, Esquire Bogenschutz & Dutko 600 South Andrews Avenue Suite 500 Fort Lauderdale, Florida 33301-2802 Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Barbara M. Linthicum, Executive Director Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission 107 West Gaines Street Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to the provisions of Section 57.111, Florida Statutes (2004), and, if so, in what amount.
Findings Of Fact In May 2003, Respondent filed an Amended Administrative Complaint against Petitioner. The Amended Administrative Complaint was brought before the Florida Real Estate Commission Probable Cause Panel (Probable Cause Panel) for a determination of probable cause. The Probable Cause Panel reviewed the entire record and found probable cause to file an Amended Administrative Complaint against Petitioner alleging various violations of Section 475.25, Florida Statutes (2004). On or about July 2, 2003, Petitioner served Respondent, through counsel, with Petitioner's response to the Amended Administrative Complaint. Petitioner did not dispute the essential allegations of material fact in the Amended Administrative Complaint, but raised affirmative defenses to the allegations. On or about November 19, 2003, at the Florida Real Estate Commission (FREC) meeting, Petitioner's counsel stated that they did not dispute the essential facts as alleged in the Amended Administrative Complaint and requested a formal hearing based on additional facts alleged by Petitioner, but not Respondent. Following a formal hearing, a Recommended Order was entered by the undersigned Administrative Law Judge on August 11, 2004, in the case of Department of Business and Professional Regulation, Division of Real Estate v. Nicholas Anthony Musashe and the Jander Group, Inc. (Petitioner herein). The case arose from allegations that Mr. Musashe and Petitioner violated various provisions of the Real Estate Practice Act, Chapter 475, Florida Statutes (2004), with respect to the handling of certain deposits. Petitioner is a Florida corporation owned by Mr. Musashe. Petitioner is licensed as a real estate broker under the provisions of Chapter 475, Florida Statutes (2004). Petitioner's sole business is managing rental properties. The gravamen of the complaint against Petitioner was that it failed to handle certain deposits as directed by provisions of Chapter 475, Florida Statutes (2004). Petitioner's defense was that it handled those deposits in accordance with the Residential Landlord and Tenant Act, Chapter 83, Part II, Florida Statutes (2004), specifically Section 83.40, Florida Statutes (2004). That provision provides that compliance therewith specifically exempts real estate licensees from having to comply with the provisions of Chapter 475, Florida Statutes (2004), concerning rental deposits. Furthermore, Petitioner's method of handling these types of deposits under the Residential Landlord and Tenant Act, rather than under Chapter 475, Florida Statutes (2004), had been earlier specifically approved of by Respondent. Prior to filing the underlying case and without notice to real estate brokers, Respondent reversed its position. It now required real estate licensees to comply with the provisions of Chapter 475, Florida Statutes (2004), instead of Chapter 83, Florida Statutes (2004), on how these types of deposits should be handled. Petitioner relied, to his detriment, upon the previously-held position of Respondent in handling the subject deposits. The Recommended Order found in Petitioner's favor and recommended dismissal of the charges. A final order essentially adopting the Recommended Order and dismissing the charges was filed by the FREC on January 7, 2005. However, the Final Order rejected the first sentence of the Conclusions of Law, paragraph 24, and the first two sentences of the Conclusions of Law, paragraph 29, in the Recommended Order and asserted that it has substantive jurisdiction over the provisions of Section 83.49, Florida Statutes (2004). Respondent holds that the alternative procedure for handling deposits set out in Section 83.49, Florida Statutes (2004), does not apply to deposits that are made by a person who is not entitled to occupy a property as part of an application that is not a rental agreement. Petitioner was the "prevailing party" in the underlying action, as that term is defined in Section 57.111, Florida Statutes (2004). At the time of commencement of the action, Petitioner was a "small business party" as that term is defined in Section 57.111, Florida Statutes (2004). A Petition for Costs and Attorney's Fees pursuant to Section 57.111, Florida Statutes (2004), was filed by Petitioner with Respondent agency on February 7, 2005. Respondent took no action on said Petition. The Petition was late-filed with DOAH on April 18, 2005. The attorney's fees of $49,610.00 and costs of $1,137.98 sought by Petitioner are reasonable for the defense of this action. The actions of the agency in bringing the initial proceeding were substantially justified. There are no circumstances which would make an award of costs and attorney's fees unjust.
Findings Of Fact 1. On September 15, 2009, the staff of the Commission issued a Staff Recommendation, recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. 2. On December 4, 2009, the Commission entered an Order of Probable Cause finding that there was probable cause to charge the Respondent with the following violations: Count 1: On January 19, 2008, Respondent violated Section 106.09(1), Florida Statutes, by accepting a contribution in cash in excess of $50, when the Respondent accepted a cash contribution for $250 from Joe Blanco on January 19, 2008. 3. On December 8, 2009, the Respondent was served by certified mail with a copy of the Order of Probable Cause. 4. The case was transmitted to the Division of Administrative Hearings on January C_0 045 (12/08) 1 8, 2010, however, the Respondent wishes to resolve the case by Consent Order. 5. The Respondent and the staff stipulate to the following facts: A. Respondent, Susan Valdes, was re-elected to the Hillsborough County School Board, District 1, on August 26, 2008. Respondent was first elected to the school board on November 2, 2004. B. Respondent reported receiving a $250 cash contribution from Joe Blanco on her 2008 Q1 report. : C. Effective January 1, 2008, Section, 106.09(1), Florida Statutes, prohibited cash contributions in excess of $50. D. The $250 was an excessive cash contribution to Respondent’s campaign.
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
Conclusions For Petitioners: Eric M. Lipman, Esquire Florida Elections Commission 107 West Gaines Street Tallahassee, FL 323999-1050 For Respondent: Robin Gibson, Esquire Gibson, Valenti & Ashley 212 East Stuart Avenue Lake Wales, Florida 33853 THE FEC STAFF’S EXCEPTIONS 1. Staff Exception #1 is approved. As the FEC has consistently held, FEC v. Morroni, Case No. FEC 97-060; FEC v. Bosezar, Case No. FEC 95-053; Division of Elections v. 2the FEC has reviewed the entire record and heard arguments of counsel. De La Portilla, Case No. FEC 93-045; FEC v. Harris, Case No. FEC 98-087; FEC v. De La Portilla, Case No. FEC 00-006; FEC v. Proctor, Case No. FEC 99-065; the burden of proof in cases involving alleged violations of Chapter 106 is by a “preponderance of the evidence.” For this reason, the FEC rejects the ALJ's characterization (COL @ § 17) of the burden as being “clear and convincing.” That being said, the Commission finds that the facts as found by the ALJ support the conclusions in the Recommended Order as modified by the FEC’s conclusions herein under either burden. 2. The Commission rejects Staff Exception #2. The FEC fully supports the Division of Elections’ position that parties required to submit information to the Division should do so using the appropriate forms. However, the evidence as found by the ALJ showed that Respondents did notify the Division that a new Deputy Treasurer for the political committee involved had been appointed prior to the submission of the Quarterly Report at issue even though the form used was that designated for candidates not for committees. Given the facts of this case, the Commission cannot say that the Respondents’ use of the incorrect form made their Quarterly Report so inaccurate as to make their certification of the Report “inaccurate or untrue” in violation of Section 106.07(5), Fla. Stat. While the FEC does not agree with the ALJ’s conclusion (COL @ 4§ 23-25) that using an incorrect form cannot form the underlying basis of a finding that a report violates Section 106.07(5), it agrees with his conclusion that no violation occurred here. . WHEREFORE, based upon the foregoing and as amended by the Commission’s rulings on the exceptions filed herein, the FEC hereby accepts the Findings of Fact, Conclusions of Law and Recommendation of the ALJ and DISMISSES the charges against the Respondents. nd > DONE and ORDERED this Q2 day of Cgurt 2003. Chanee Qnroins Chance Irvine, Chairman Florida Elections Commission CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to counsel for Respondents, Robin Gibson, Esquire, Gibson, Valenti & Ashley, 212 East Stuart Avenue, Lake Wales, Florida, 33853, by U.S. mail, and by hand delivery to Clerk, Florida Elections Commission, 107 West Gaines nd Street, Suite 224, Tallahassee mail this 22 day of — luge 2003. y; by
The Issue The ultimate issues in this case are whether the Respondent has violated Section 458.331(1)(B), Florida Statutes, and the appropriate penalty to be assessed for said violation pursuant to Rule 21M-20.001, Florida Administrative Code.
Findings Of Fact The Department of Professional Regulation is the state agency responsible for regulating the licensure of physicians and the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Vincent John Rodriguez, M.D., the Respondent, is and was at all times material to this case a licensed physician in the state of Florida holding licensing no. ME0053547. The Respondent was also licensed to practice medicine in Colorado on August 7, 1987. See Petitioner's Exhibit 1, page 3. It is uncontroverted that the Respondent has had a long history of abusing various substances. The Respondent has on more than one occasion sought professional assistance in rehabilitation for his addiction. On February 6, 1990, the Board of Medicine of the State of Florida served an emergency suspension order on the Respondent. This emergency suspension order was followed up by an administration complaint (DPR No. 89- 100890) on March 1, 1990, charging the Respondent with failure to comply with the conditions of a drug treatment program resulting in his inability to practice medicine with skill and safety by reason of use of drugs, especially cocaine; and prescribing, dispensing or administering cocaine, a schedule II controlled substance contrary to Section 458.331(1)(s) and (r), Florida Statutes. See Petitioner's Exhibit 4. The original administrative complaint in DPR Case No. 89-100890 alleged the Respondent had been arrested for the attempted purchase of 1/8 ounce of cocaine in Tallahassee, Florida, contrary to Section 458.331(1)(r), Florida Statutes. Subsequently, an amended administrative complaint was filed by the Board of Medicine of the State of Florida which dropped the factual allegations of purchasing 1/8 of an ounce of cocaine in Tallahassee, Florida. See the amended administrative complaint to DPR Case No. 89-100890 dated October 25, 1990 in Petitioner's Exhibit 4. On February 19, 1991, the Respondent entered into a stipulation with the Department of Professional Regulation of the State of Florida to settle DPR Case No. 89-10080 and to submit the stipulation to the Board of Medicine of the State of Florida. The Respondent and his counsel attended a meeting of the Board of Medicine of the State of Florida on April 13, 1991, in which the proposed stipulation was presented to the Board. At that meeting, the Respondent revealed and discussed his arrest in Tallahassee for attempting to purchase 1/8 of an ounce of cocaine and his arrest for possessing a concealed weapon in Tallahassee, Florida which occurred during the same period of time as the Respondent's arrest for attempting to purchase the cocaine. These arrests and the circumstances surrounding them were presented to the Board and were discussed and in their deliberations on whether the proposed stipulation settling DPR Case No. 89-10080 should be accepted. The Respondent did not discuss with the Board his arrest in Texas for terrorist threats, a charge which was subsequently dismissed. From the Florida Board's deliberations, it is clear that they did not feel that the Respondent could practice medicine safely and that approval of the stipulation would halt his practice in Florida immediately. The Florida Medical Board accepted the stipulation settling DPR Case No. 89-100890 which alleged the Respondent could not practice with skill and safety by reason of his use of drugs, and suspended the Respondent's license until he demonstrated he was current in his medical knowledge and possessed the requisite skills to safely resume practice. By Order dated April 4, 1990, the Board of Medical Examiners of the State of Colorado summarily adjudicated the Respondent and suspended his license to practice medicine in the State of Colorado for violating 12-36-117(1)(s), C.R.S. A hearing on the Board's complaint was held on November 7 and 8, 1990. Although the Respondent received notice, he did not appear and was not represented at those proceedings. A copy of the Colorado administrative complaint was not introduced. A copy of the order entered by the Colorado Administrative Law Judge indicates that the charges against the Respondent were limited to 1) Respondent's alleged violation of Section 12-36-117(1)(f), C.R.S. (1985), by pleading nolo contendere to carrying a concealed firearm in contravention of Florida Statutes, and 2) the penalty to be assessed for violation of the aforestated statute and the summary judgment finding the Respondent guilty of 12-36-117(1)(s), C.R.S. See Page 1 of Preliminary Matters, Petitioner's Exhibit 4. The Respondent's arrest in Texas relating to purchasing controlled substances with a fraudulent prescription and his being charged with terrorists threats was dismissed by the Texas authorities; however, the Colorado Administrative Law Judge determined that consideration of the evidence of the arrests and acts of the Respondent in Texas was unnecessary because her recommendation was not affected by the Texas incident. The Colorado Administrative Law Judge discussed within her order the allegations that the Respondent was habitually intemperate. The Colorado Board had initially charged the Respondent with this violation, and had subsequently dismissed that charge only to request that the Administrative Law Judge find that the Respondent was habitually intemperate at the conclusion of the hearing. The Administrative Law Judge found the Board's request to discipline the Respondent on this charge "somewhat troublesome." The Administrative Law Judge concluded that she did not need to reach a legal conclusion regarding "habitual intemperance" because the evidence regarding alcohol use was sufficient to determine an appropriate discipline without categorizing the Respondent's use of alcohol in terms of habitual intemperance. Concerning the Respondent's plea of nolo contendere to the charge of carrying a concealed weapon in Florida, the State of Colorado specifically alleged that the Respondent engaged in unprofessional conduct by pleading nolo contendere to the charge. The Colorado Administrative Law Judge's discussion of the Colorado law reveals that the Colorado Supreme Court has ruled that a felony conviction alone is insufficient to warrant the denial or revocation of a license. Colorado requires that the circumstances be considered to determine whether the acts of the accused constitute unprofessional conduct. Discussing the circumstances, the Colorado Administrative Law Judge concluded that the Respondent had engaged in unprofessional conduct by pleading nolo contendere to the felony of carrying a concealed weapon. Based on the foregoing and her prior judgment on his emergency suspension that the Respondent had engaged in unprofessional conduct by excessive use of habit forming drugs, the Administrative Law Judge recommended to the Colorado Board that it revoke the Respondent's license. Petitioner's Exhibit 3, the final board order of the Colorado Board, reflects that the Colorado Board of Medicine adopted without change the findings of fact, conclusions of law and recommendation of the Administrative Law Judge. After the Colorado Board revoked the Respondent's license to practice in the State of Colorado, the Board of Medicine with the State of Florida brought this case to revoke the Respondent's Florida license on the basis that the Colorado Board had revoked or limited the Respondent's medical practice contrary to Section 458.331(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Florida Board of Medicine take no action on the instant Administrative Complaint and maintain its suspension of the Respondent pursuant to the stipulated settlement of DPR Case No. 89-01180. DONE and ENTERED this 2nd day of April, 1993, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1993. APPENDIX A Both the Respondent and the Petitioner submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Proposed Findings: Recommended Order Paragraphs 1-5 Paragraphs 1-3,5. Paragraphs 6a-6m Irrelevant as stated. Summarized in Paragraph 12-18. Unnumbered Paragraphs Treated as argument. Paragraph 7 et seq. unnumbered Paragraphs 5-11. Respondent's Proposed Findings: Recommended Order Paragraphs 1-7 Paragraphs 1-3,5-7 Paragraphs 8-12 Paragraphs 12-18. Paragraph 13 Irrelevant. Paragraph 14-20 Paragraph 7-11. COPIES FURNISHED: Barbara Whalin Makant, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dean R. LeBoeuf, Esquire Brooks & LeBoeuf, P. A. 863 East Park Avenue Tallahassee, FL 32301 Jack McRay, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth, Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue What is the appropriate fine for Respondent's 17 violations of Chapter 106, Florida Statutes (1999)?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent is an elected public official, a State of Florida State Senator; violations of the Florida Elections Law during his election to that high office triggered this case. He has been a state legislator for more than a decade. The Third District Court of Appeal remanded the original case for reconsideration of the penalty after affirming Respondent's 17 violations of Chapter 106, Florida Statutes (1999). The 17 violations affirmed by the Third District Court of Appeal are: two violations of Subsection 106.07(5), Florida Statutes (1999), for certifying as correct, an incorrect campaign treasurer's report; four violations of Subsection 106.19(1)(b), Florida Statutes, for failing to report four personal loans (contributions) to his campaign; five violations of Subsection 106.143(1), Florida Statutes, for advertisements without disclaimers; five violations of Subsection 106.132(2), Florida Statutes, for advertisements that did not contain a party affiliation; one violation of Subsection 106.143(4)(a), Florida Statutes, for failure to state that the candidate approved the campaign advertisement. Respondent's current employment is that of a Florida state senator. His direct income from that employment is $29,916. He receives additional payments from the State of Florida in the form of reimbursements for travel, per diem, and other approved expenses related to his official position. Respondent enjoys a remarkable lifestyle. He owns two homes, one in Miami and the other in Tallahassee. Recently married, the Tallahassee home is jointly-owned with his wife and was purchased for $795,000. While the Miami home was owned by Respondent, individually, prior to the marriage, it is now jointly-owned. The change in title to the Miami home may be the result of refinancing subsequent to his marriage. Respondent leases a Lexus automobile; the monthly lease cost is $755. Respondent maintains a Schwab investment account to which he contributes $150 monthly. In August 2005, the account had a value of approximately $7,200. Respondent maintains an American Express credit card account, jointly with his wife, that had a balance due of $61,000 during the time of the hearings. In September 2004, Respondent loaned his legislative aide $15,000, which at the time of the hearings remained un- repaid. In May 2005, Respondent refinanced his Miami home, which he valued at $210,000 on his 2004 Form 6, for $384,300. At the time of the hearings, Respondent had funds on deposit in Sunshine State Credit Union and Washington Mutual Bank of approximately $3,800. Respondent's personal living expenses exceed his stated income. No reasonable explanation has been offered for his ability to maintain his lifestyle. Respondent's net worth will allow him to pay any fine appropriate for the 17 violations of law affirmed by the Third District Court of Appeal. Respondent had previously violated Subsection 106.57(5), Florida Statutes (1999).
Conclusions For Petitioner: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 For Respondent: Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Benedict P. Kuehne, Esquire Sale & Kuehne, P.A. BankAmerica Tower, Suite 3550 100 Southeast Second Street Miami, Florida 33131-2154
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Election Commission impose a penalty of $8,750 on Respondent, Senator Alex Diaz de la Portilla. DONE AND ENTERED this 6th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2006. COPIES FURNISHED: Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Benedict P. Kuehne, Esquire Sale & Kuehne, P.A. BankAmerica Tower, Suite 3550 100 Southeast Second Street Miami, Florida 33131-2154 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050
The Issue The issue is whether Respondent committed the violations alleged in the Orders of Probable Cause, and, if so, what penalty should be imposed.
Findings Of Fact Respondent was a candidate for election to the Florida House of Representatives in 2006. The Division of Elections (Division) was the filing office for that election. On March 27, 2006, the Division sent a letter to Respondent acknowledging his candidacy and informing him of the filing deadline for the first campaign treasurer’s report. The letter also informed Respondent that all of the Division’s publications, including the “2006 Calendar of Reporting Dates,” were available on the Division’s website. The filing deadline for the campaign treasurer’s report covering the second quarter of 2006 (hereafter “Q2 report”) was July 10, 2006. Respondent did not file his Q2 report by that deadline. On July 12, 2006, the Division sent Respondent a letter informing him that his Q2 report had not been received. The Division sent a second letter (by certified mail) on October 17, 2006, and the Commission sent several additional follow-up certified letters in November and December 2006. Respondent filed his Q2 report on February 9, 2007, which is 214 days after the deadline. Respondent was a candidate for election to the Alachua City Council in 2007. The City Clerk was the filing officer for that election. Respondent submitted his campaign paperwork to the City Clerk on February 23, 2007.2/ The paperwork included a “Statement of Candidate” form signed by Respondent stating that he “received, read, and understand[s] the requirements of Chapter 106, Florida Statutes.” On February 23, 2007, the City Clerk’s office provided Respondent a copy of Chapters 104 and 106, Florida Statutes, a copy of the “2006 Candidate and Campaign Treasurer’s Handbook,” and a calendar of the election dates. The handbook contained the applicable filing deadlines for the campaign treasurer’s reports that Respondent was required to file. The first report was due on March 14, 2007, and covered the period between the candidate’s filing date and March 14. The second report was due on March 23, 2007, and covered the period of March 15 to March 23. The third report was due on April 6, 2007, and covered the period of March 24 to April 6. Respondent did not file the first report even though he had contributions and expenditures during the period covered by the report. On March 15, 2007, the City Manager sent a certified letter to Respondent informing him that his first campaign treasurer’s report had not been received. The letter advised Respondent that fines had started to accrue. Respondent did not file the second report, nor did he file a “waiver report” reflecting that he did not have any contributions or expenditures during the period covered by the report. On March 27, 2007, the City Manager sent a certified letter to Respondent informing him that his second campaign treasurer’s report had not been received. The letter advised Respondent that fines were accruing. On April 9, 2007, Respondent filed an untimely and incomplete report for the third reporting period. The report included only the itemized contribution page and the itemized expenditure page; it did not include the required summary page that contains the candidate’s certification of the report’s truth, correctness, and completeness. On April 9, 2007, the City Manager sent a certified letter to Respondent informing him that his third campaign treasurer’s report was incomplete. The letter gave Respondent three days to submit a complete report. To date, Respondent has not filed the first or second reports or a complete third report. In each of the circumstances described above, Respondent was aware of the requirement to file a complete campaign treasurer’s report as well as the deadline for doing so by virtue of having been provided copies of the applicable laws and the candidate’s handbook. Respondent’s failure to file complete and timely reports was clearly more than an oversight. Indeed, even though Respondent was sent certified letters by the filing officer on each occasion advising him that the reports had not been received, he did not make any subsequent filings with the City Clerk and it took him over six months to file his Q2 report with the Division. Respondent was provided notice of the date, time, and location of the final hearing, through a Notice of Hearing mailed to his address of record. Respondent failed to appear at the final hearing despite having been provided proper notice of the hearing.
