The Issue The issues presented for determination are whether Florida Housing Finance Corporation’s (FHFC) determinations regarding the applications responding to Request for Applications 2019-116 SAIL Financing of Affordable Multifamily Housing Development to Be Used In Conjunction With Tax-Exempt Bond Financing And Non-Competitive Housing Credits (the RFA), were clearly erroneous, contrary to competition, arbitrary, or capricious; and whether the award to Respondent Christian Manor Restoration, LLC (Christian Manor), is contrary to governing statutes, rules, or the solicitation specifications of the RFA.
Findings Of Fact Petitioner Parkwood is an applicant responding to the RFA. The Parkwood application, assigned number 2020-422BS, was deemed eligible but was not selected for funding under the terms of the RFA. Respondent Christian Manor is an applicant responding to the RFA. The Christian Manor application, assigned number 2020-405BS, was deemed eligible and was selected for funding under the terms of the RFA. FHFC is a public corporation created pursuant to section 420.504, Florida Statutes. The purpose of FHFC is to promote public welfare by administering the governmental function of financing affordable housing in Florida. FHFC is tasked with allocating a portion of the certain Disaster Recovery funding allocated by the U.S. Department of Housing and Urban Development pursuant to the State of Florida Action Plan for Disaster Recovery. Waterview was an applicant responding to the RFA. The Waterview application, assigned number 2020-424BSN, was deemed eligible but was not selected for funding under the terms of the RFA. FHFC is authorized to allocate housing credits and other funding by means of requests for proposals or other competitive solicitation. See § 420.507(48), Fla. Stat.; Fla. Admin. Code Ch. 67-60 (governing the competitive solicitation process). FHFC allocates its competitive funding pursuant to the bid protest provisions of section 120.57(3). Funding is made available through a competitive application process commenced by the issuance of a Request for Applications (RA). An RA is equivalent to a “request for proposal” as indicated in Florida Administrative Code Rule 67-60.009(4). The RFA was issued on November 6, 2019. It was modified several times, and the final RFA was issued on December 20, 2019. The application deadline was December 30, 2019. Sixty-five applications were submitted in response to the RFA. A Review Committee was appointed to review the applications and make recommendations to FHFC’s Board of Directors (the Board). The Review Committee found 57 applications eligible, seven applications ineligible, and one application withdrew from the selection process. Through the ranking and selection process outlined in the RFA, 13 applications were preliminarily recommended for funding, including Christian Manor. The Review Committee developed charts listing its eligibility and funding recommendations to be presented to the Board. On March 6, 2020, the Board met and considered the recommendations of the Review Committee for the RFA. At 9:35 a.m. that same day, all RFA applicants received notice that the Board determined whether applications were eligible or ineligible for funding consideration and that certain eligible applicants were preliminarily selected for funding, subject to satisfactory completion of the credit underwriting process. Such notice was provided by the posting of two spreadsheets on the FHFC website, www.floridahousing.org: (1) listing the Board-approved scoring results for the RFA, and (2) identifying the applications which FHFC proposed to fund. There is no dispute that Petitioner and Christian Manor received this notice. In the March 6, 2020, posting, FHFC announced its intention to award funding to 13 applications including Christian Manor. No challenges were made to the terms of the RFA. RANKING AND SELECTION PROCESS Through the RFA, FHFC seeks to award an estimated total of $71,360,000 in SAIL Financing, as well as tax-exempt bonds, to assist in financing the development of affordable rental housing for tenants who are either low-income or extremely low-income. The available SAIL financing was to be divided so that a certain amount was targeted both geographically, between Large, Medium, and Small Counties, and demographically, between applicants proposing housing for families and those proposing housing for the elderly. Applicants who are awarded tax-exempt bond financing are also entitled to an award of non-competitive federal low-income housing tax credits. FHFC made approximately $5,611,650 in National Housing Trust Fund (NHTF) funding available to applicants committing to build either new construction or rehabilitation of family or elderly housing for “Persons with Special Needs.” Applications in this RFA are scored in two categories for a possible total of ten points. Five points each can be awarded for Submission of Pre- Approved Principal Disclosure Form and Local Government Contributions. Because so many applicants achieve a perfect score of ten, the RFA establishes a series of tiebreakers referred to as a “sorting order,” designed to rank order applications for funding selection. The RFA set the following sorting order, after listing applications from highest score to lowest score: By eligibility for Proximity Funding Preference; then By eligibility for the Per Unit Construction Funding Preference; then By Leveraging Level number 1 through 5; then By eligibility for the Florida Job Creation Preference; then By randomly assigned lottery number. The RFA also established a series of funding goals. Those goals were: One New Construction Application in a Large County serving Elderly residents. Three New Construction Applications in a Large County serving Family residents, with a preference that at least two of such Applications being from “Self-Sourced” Applicants. One New Construction Application in a Medium County serving Elderly residents. Two New Construction Applications in a Medium County, with a preference that at least one such Application being from a self-sourced Applicant. The RFA designated each county in Florida as either Large, Medium, or Small. The RFA also allowed an applicant to designate itself as “Self- Sourced,” which requires applicants proposing new construction family projects to provide a portion of their development funding themselves, in an amount of at least half of its SAIL Request Amount (or $1 million, whichever is greater). The RFA provided that eligible applicants be assigned a Leveraging Level 1 through 5, with 1 being the best score, based on the total Corporation SAIL Funding amount relative to all other eligible applicants’ total Corporation SAIL Funding amount. The Leveraging Level is a comparative tool to rank applicants based on how much SAIL funding each applicant has requested per affordable housing unit (Set-Aside Unit) it proposes to construct. Calculation of the Leveraging Level includes adjusting the total amount of SAIL funds requested by an applicant based on a variety of factors, including development type, development location, construction method to be employed, and whether a Public Housing Authority is part of the applicant, then dividing that adjusted amount by the applicant’s proposed number of Set-Aside Units. For example, the SAIL Request per Set-Aside Unit is reduced by ten percent for applicants proposing a Mid-Rise Four-Story building, while applicants proposing Garden Apartments or Townhouses do not receive this adjustment, and applicants proposing Five-Story or Six-story Mid-Rises or High-Rises get a greater reduction. Applicants whose adjusted SAIL Request per Set-Aside Unit is among the lowest ten percent of all calculated SAIL Request amounts per Set-Aside Unit in this RFA are assigned Leveraging Level 1; the next 20 percent are Leveraging Level 2; the next 20 percent are Leveraging Level 3; the next 20 percent are Leveraging Level 4; and the highest 30 percent are Leveraging Level 5. The RFA employed a “funding test,” requiring that the full amount of an applicant’s SAIL request be available for award when that applicant is under consideration for funding; partial funding awards are not permitted. Sufficient SAIL funding must be available in both the county size group (Large, Medium, or Small), and the demographic category (elderly or family) for an applicant to be selected. Within the county size group, the RFA contains a pour-over provision for any unallocated Small County funding to be divided between the Medium and Large County funding availability; and any unallocated Medium County funding would be made available to Large County applicants. Further, in order to promote geographic distribution of funding awards, the RFA included a County Award Tally mechanism. If an applicant was selected in a particular county, a second applicant would not generally be selected from that same county if there was any eligible applicant available (even with a lower total application score) from any other county, from which an applicant had not already been selected for funding. The RFA set forth a very specific funding selection order, taking into consideration two specific counties (Miami-Dade and Broward), county size groups, development category (new construction or rehabilitation), demographic group (elderly or family), and self-sourced status. CHRISTIAN MANOR’S APPLICATION One of the criteria in the RFA for scoring and ranking applications involves proximity to certain services. The RFA provides in relevant part: e. Proximity The Application may earn proximity points based on the distance between the Development Location Point [(DLP)] and the Bus or Rail Transit Service (if Private Transportation is not selected at question 5.e.(2)(a) of Exhibit A) and the Community Services stated in Exhibit A. Proximity points are awarded according to the Transit and Community Service Scoring Charts outlined in Item 2 of Exhibit C. Proximity points will not be applied towards the total score. Proximity points will only be used to determine whether the Applicant meets the required minimum proximity eligibility requirements and the Proximity Funding Preference, as outlined in the chart below. Requirements and Funding Preference Qualifications All Large County Applications must achieve a minimum number of Transit Service Points and achieve a minimum number of total proximity points to be eligible for funding ... All Applications that achieve a higher number of total proximity points may also qualify for the Proximity Funding Preference as outlined below. Community Services (Maximum 4 Points for each service, up to 3 services) Applicants may provide the location information and distances for three of the following four Community Services on which to base the Application’s Community Services Score. The Community Service Scoring Charts, which reflect the methodology for calculating the points awarded based on the distances, are outlined in Exhibit C. Location of coordinates for Community Services Coordinates must represent a point that is on the doorway threshold of an exterior entrance that provides direct public access to the building where the service is located. * * * Eligible Community Services Grocery Store - This service is defined in Exhibit B and may be selected by all Applicants. Public School - This service is defined in Exhibit B and may be selected only if the Applicant selected the Family Demographic Commitment. Medical Facility - This service is defined in Exhibit B and may be selected by all Applicants. Pharmacy - This service is defined in Exhibit B and may be selected by all Applicants. Scoring Proximity to Services (Transit and Community) (b) Bus and Rail Transit Services and Community Services Applicants that wish to receive proximity points for Transit Services other than Private Transportation or points for any community service must provide latitude and longitude coordinates for that service, stated in decimal degrees, rounded to at least the sixth decimal place, and the distance between the [DLP] and the coordinates for the service. The distances between the DLP and the latitude and longitude coordinates for each service will be the basis for awarding proximity points. Failure to provide the distance for any service will result in zero points for that service. The Transit and Community Service Scoring Charts reflecting the methodology for calculating the points awarded based on the distances are in Exhibit C. (emphasis added). Applicants from a Large County, including Palm Beach County (where Christian Manor is located), must receive at least 10.5 Proximity Points (including at least 2.0 Transit Service points) to be eligible for consideration for funding, and at least 12.5 Proximity Points to receive the Proximity Funding Preference. In its Application, Christian Manor selected three public bus stops for its Transit Services, at claimed distances of .04 miles, .03 miles, and .51 miles from its proposed DLP. It was awarded 5 points for Transit Services. The validity of Christian Manor’s claimed Transit Services is not disputed. For its Community Services, Christian Manor identified the following services: Grocery Store - Aldi Food Market, 2481 Okeechobee Blvd., West Palm Beach, Florida 33409, at a distance of 0.73 miles Medical Facility - MD Now Urgent Care, 2007 Palm Beach Lakes Blvd., West Palm Beach, Florida 33409, at a distance of 0.82 miles Pharmacy - Target (CVS Pharmacy), 1760 Palm Beach Lakes Blvd., West Palm Beach, Florida 33401, at a distance of 0.70 miles. The Aldi Food Market meets the definition of a Grocery Store in the RFA. The MD Now Urgent Care meets the definition of a Medical Facility in the RFA. Christian Manor identified each service by latitude and longitude coordinates and by distance. These coordinates, however, did not accurately reflect the doorway threshold of either the Aldi Food Market or the MD Now Urgent Care Center. The latitude and longitude coordinates provided for the Grocery Store were erroneous. The listed coordinates identify a point over 0.9 miles away from the doorway threshold of the Aldi Food Market. The latitude and longitude coordinates provided for the Medical Facility identify a point over 0.8 miles away from the doorway threshold of the MD Now Urgent Care Center. The actual distance between the Aldi Food Market and the DLP is .73 miles. The actual distance between the street address of the MD Now Urgent Care Center and the DLP is .82 miles. Based on these identified services, Christian Manor was awarded 3 points for the Grocery Store, 3 points for the Pharmacy, and 2.5 points for the Medical Facility. The points awarded for the Pharmacy are not disputed. Parkwood argues that Christian Manor should be awarded no proximity points for its identified Grocery Store or Medical Facility. Parkwood does not argue that the Aldi Food Market is not a Grocery Store as defined by the RFA, nor does it argue that the MD Now Urgent Care is not a Medical Facility as defined by the RFA. Parkwood does not question the identified addresses for the Community Services or contest that the distances between the identified Aldi Food Market and the MD Now Urgent Care and the DLP are .73 miles and .82 miles respectively. Rather, Parkwood’s argument is narrowly focused on the fact the erroneous longitude and latitude coordinates for the grocery and medical services are not at the doorway threshold. Parkwood would have FHFC ignore the actual addresses and distances because of the error in coordinates. Respondents argue the mistake in coordinates was a minor irregularity. The RFA specifically gives FHFC the right to waive minor irregularities. Rule 67-60.008 provides the criteria that FHFC is to consider when evaluating whether an error should be waived as a minor irregularity. Minor irregularities are those irregularities in an Application, such as computation, typographical, or other errors, that do not result in the omission of any material information; do not create any uncertainty that the terms and requirements of the competitive solicitation have been met; do not provide a competitive advantage or benefit not enjoyed by other Applicants; and do not adversely impact the interests of the Corporation or the public. Minor irregularities may be waived or corrected by the Corporation. Ms. Button testified that an evaluating FHFC Review Committee member does not use the latitude or longitude coordinates to confirm the accuracy of the distances provided. Rather, the inclusion of the requirement for such coordinates dates back to when measurements were done by surveyors, who would certify the distances on a special form. FHFC no longer requires the surveyor certification form. FHFC now requires an applicant to self-designate the community services and proximity requirements. FHFC considers the actual distances as the most relevant factors when evaluating points awarded for proximity from the DLP to a selected Community Service. Ms. Button also testified that listing the incorrect latitude and longitude coordinates could, in this particular case, be waived as a minor irregularity. She explained that because the proximity points are based on the distance between the DLP and the identified services, and because the distances claimed in Christian Manor’s application were correct, the proximity points awarded were also correct. Ms. Button opined that Christian Manor did not garner a competitive advantage from the coordinate errors in the application. The coordinates did not create any uncertainty in the application as to what Community Services were identified or how far they were from the DLP. Petitioner pointed to no evidence of any such advantage. Ms. Button also testified that the error in coordinates did not result in any harm to the public or to FHFC. Again, Petitioner provided no evidence of such harm. Rather, Petitioner relies on a different application in a different RA, where the scorer for FHFC had determined that an applicant should be found ineligible because that applicant had failed to list the proper coordinates for one of its listed Community Services. That applicant, however, never challenged FHFC’s finding, and therefore never presented evidence or argument contesting this finding of ineligibility. It is unclear whether the applicant in the other case was found ineligible for other reasons as well, where that applicant was ranked, and whether there were other circumstances that would have affected the scoring and ranking in that particular RA. Ms. Button testified that if the error in coordinates had been challenged, FHFC would then have examined the particular circumstances of the situation to determine whether or not the error should have been waived as a minor irregularity. There is no dispute that the Christian Manor application contained a similar error, and that if Christian Manor had not been able to demonstrate that the claimed distances to the grocery store and medical facility were accurate, that error would have resulted in the application being found ineligible. But there is insufficient evidence to determine whether Petitioner is comparing “apples to apples” when relying on this other situation. Any reference to this other applicant in the other RA is unreliable and unconvincing. Regardless, in this case, the undersigned examined the circumstances of Christian Manor’s application and finds based on the preponderance of the evidence (made up of the stipulated facts and Ms. Button’s unrefuted testimony) any inaccuracies in the longitude and latitude coordinates provided by Christian Manor constitute a minor irregularity that may be waived by FHFC. Based on the facts established, the award to Christian Manor is reasonable and neither erroneous, arbitrary, nor capricious. WATERVIEW’S APPLICATION One of the requirements of the RFA is that applicants demonstrate certain Ability to Proceed elements. One of those elements is as follows: Appropriate Zoning. Demonstrate that as of the Application Deadline the entire proposed Development site is appropriately zoned and consistent with local land use regulations regarding density and intended use or that the proposed Development site is legally non-conforming by providing, as Attachment 9 to Exhibit A, the applicable properly completed and executed verification form: The Florida Housing Finance Corporation Local Government Verification that Development is Consistent with Zoning and Land Use Regulations form (Form Rev. 08-18) [(Zoning Form)]. As part of its application, Waterview submitted a Zoning Form executed by Elisabeth Dang, a City Public Official. The Zoning Form states, among other requirements: The undersigned service provider confirms that, as of the date that this form was signed, the above referenced Development’s proposed number of units, density, and intended use are consistent with current land use regulations and zoning designation or, if the Development consists of rehabilitation, the intended use is allowed as a legally non-conforming use. To the best of my knowledge, there are no hearings or approvals required to obtain the appropriate zoning classification. Assuming compliance with the applicable land use regulations, there are no known conditions that would preclude construction or rehabilitation of the referenced Development on the proposed site. Once it receives the Zoning Form, FHFC does not require that an applicant demonstrate in its application that it will be capable of constructing the proposed development, nor does FHFC attempt to independently verify that an applicant will be capable of constructing the proposed development during the application process. FHFC does not require an applicant to submit engineering drawings or final site plans during the application process, nor does the RFA contain any restrictions or requirements concerning the height of any proposed buildings. All of the details and verifications concerning the actual construction of the proposed project are evaluated during the credit underwriting process. Based partially on its identification of Development Type in its application to FHFC as “Mid-rise 4 stories,” Waterview’s adjusted SAIL request per affordable unit resulted in it being assigned Leveraging Level 4. If it had instead identified a Development Type of “Garden Apartments,” it would have received Leveraging Level 5. Petitioner argues that Waterview will be unable to construct the four- story mid-rise building identified in its application while also meeting a 40- foot height limitation in the local zoning code. As explained above, for the same reasons the undersigned sustained the objections to Petitioner’s exhibits relating to zoning issues and feasibility of constructing the proposed development, the undersigned finds at this stage (eligibility, scoring, and ranking), FHFC was not required to independently verify that the proposed development would comply with all building and zoning regulations.4 The evidence established that Waterview submitted the required Zoning Form executed by a person with authority from the City to execute such a form. There was no evidence presented that Waterview’s Zoning Form was improperly completed, or that it was obtained through fraud or illegality. Moreover, there was no convincing evidence that the Zoning Form was improperly completed. FHFC did not make an independent determination as to whether a proposed project would comply with all local zoning requirements, but instead relied on the representation of the local official who executed the Zoning Form. Petitioner also argues Waterview should be deemed ineligible because it presented different information to the City than it presented to FHFC in its application. Specifically, Petitioner challenges use of the term “garden apartment” by Waterview in materials it submitted to the City, but not submitted to FHFC; and the impact of Waterview’s proposed development on wetlands. The undersigned rejects these arguments for multiple reasons. 4 Had Waterview been awarded funds, but its proposed development could not be built due to zoning restrictions, that would be addressed during the credit underwriting process. First, Petitioner alleges that the presentation of additional information to the City somehow conflicts with the Applicant Certification and Acknowledgement Form that applicants are required to sign which provides in relevant part: “In eliciting information from third parties required by and/or included in this Application, the Applicant has provided such parties information that accurately describes the Development as proposed in this Application.” Ms. Button, however, testified that providing more information to the local government than is presented to FHFC would not in itself conflict with this statement in this form. Second, Mr. Savino’s deposition testimony established he had a number of communications with the City regarding the proposed project and submitted numerous documents for the City to review. Mr. Savino testified he used the term “garden apartments” when discussing the project with the City to refer to apartment complexes, not to the FHFC definition of “garden apartments” as being three stories or less. There is no evidence rebutting Mr. Savino’s version of events, nor is there any indication what the City understood the term to mean. Third, Petitioner argues that Waterview’s proposed project might have impacted wetlands on the property, contrary to relevant regulations. However, Mr. Savino testified that Waterview could build the project without impacting wetlands. Waterview also included among the documents submitted to the City a Revised Preliminary Site Plan which indicated that the Waterview development would not impact wetlands. Regardless, even if it had been shown that the Waterview project would impact wetlands, this would only impact its ability to receive NHTF funds; it would not have any impact on whether FHFC deems an applicant eligible for funding under this RFA. Ms. Button testified that each applicant is required to check a box on the application indicating whether it is seeking this special funding, but none are required to take it. This special funding is not considered by FHFC when evaluating an applicant’s funding sources during the application review process, and FHFC does not even evaluate an applicant’s eligibility for the NHTF during the scoring process. Even if Petitioner could prove Waterview would not be able to qualify for the special funding, there would be no impact on the scoring of its application. Ultimately, Petitioner presented no evidence that the City had somehow been misled into signing the Zoning Form required by the RFA, or that it had not understood that the proposed project involved a four-story building. The fact that the Ms. Dang did sign the Zoning Form indicates that she believed the City had all the information it needed to do so. Based on the preponderance of the evidence, Waterview’s application is eligible for funding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Housing Finance Corporation, enter a final order consistent with its initial decisions: (1) finding the applications of Waterview Preserve, LLC, and Christian Manor Restoration, LLC, eligible for funding; (2) awarding the RFA funding to Christian Manor Restoration, LLC; and (3) dismissing the formal written protest of BDG Parkwood Lofts, LP. DONE AND ENTERED this 19th day of June, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 2020. COPIES FURNISHED: Hugh R. Brown, General Counsel Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Michael P. Donaldson, Esquire Carlton Fields Suite 500 215 South Monroe Street Tallahassee, Florida 32302 (eServed) Michael J. Glazer, Esquire Ausley McMullen 123 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32302 (eServed) Christopher Dale McGuire, Esquire Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed) Corporation Clerk Florida Housing Finance Corporation 227 North Bronough Street, Suite 5000 Tallahassee, Florida 32301-1329 (eServed)
The Issue The issues in this case are whether the Respondent, the Department of State, Division of Licensing, should grant the Petitioner’s application for a Class “C” Private Investigator license and the application he filed as President on behalf of Info, Inc., for a Class “A” Private Investigative Agency license.
Findings Of Fact The Petitioner’s Class “C” Application The Petitioner applied for his Class “C” Private Investigator license on April 29, 1996. The application included the Petitioner’s Affidavit of Experience, which represented the following qualifying experience: employment with Telephonic Collections, Inc., from 3/91 to 9/93, during which employment the Petitioner devoted himself full-time to: “credit and asset investigations for recovery of debts; did skip-tracing full-time to locate subjects for debt recovery; utilized collection network and data base information.” Joseph Apter, President of Telephonic Collections, Inc., was listed as the individual who could verify this employment. employment with Telephonic Info, Inc., from 9/93 to 2/96, during which employment the Petitioner devoted himself full-time to: “administrative processing of investigation files; computer data base research and information recovery; computer preparing or reports; administrative dutys [sic] in investigation agency.” Joseph Apter, President of Telephonic Info, Inc., was listed as the individual who could verify this employment. employment as an auxiliary policeman with the City of West Haven, Connecticut, from 1965 to 1967, during which employment the Petitioner devoted himself part-time as follows: “received police training and performed assignments as required.” The Petitioner did not specify how much time was devoted to those duties. Captain Stephen D. Rubelman was listed as the individual who could verify this employment. Processing of the Petitioner’s Applications The Respondent began the process of verifying the information in the Petitioner’s Class “C” application on May 8, 1996, when it had referred the Petitioner’s fingerprint card to the Florida Department of Law Enforcement (FDLE) for a criminal history. The Respondent subsequently began its own verification of the information in the application by telephoning Apter. On June 26, 1996, the Respondent telephoned Apter, who verified the representations in the Petitioner’s application as to his experience with Telephonic Collections. Specifically, Apter stated that Telephonic Collections was a collection agency and that, for two years and five months, “100% of the applicant’s job was skiptracing [sic] individuals with delinquent accounts for the purpose of collecting the money owed to creditor.” Since this experience exceeded minimum requirements, no further verification was considered necessary, and the Respondent awaited the criminal history report from the FDLE. While the Respondent was awaiting the criminal history report from the FDLE, the Petitioner telephoned the Respondent to inquire as to the status of his application. On August 2, 1996, after being told the status, the Petitioner filed an application as president on behalf of Info, Inc., for a Class “A” Private Investigative Agency license. Eventually, on August 27, 1996, the Respondent received the Petitioner’s criminal history report from the FLDE, and it showed no reason not to grant the Petitioner’s applications. But earlier in August, Garry Floyd, an investigator in the Respondent’s Tampa office, learned that the Petitioner had filed applications for licensure. From prior dealings with the Petitioner and Apter, Investigator Floyd was unaware that the Petitioner had any qualifying experience. To the contrary, during a June 1994, investigation Floyd was conducting into unlicensed activities by employees of Telephonic Info, a licensed private investigation agency, the Petitioner emphatically denied that he was conducting investigations for the company. The Petitioner told Floyd that the Petitioner did not know how to conduct an investigation and did not want to know how; he said his role in the company was strictly administrative. Investigator Floyd obtained a copy of the Petitioner’s applications and saw the Petitioner’s representations as to his experience with Telephonic Info as well as Telephonic Collections. Since those representations did not comport with statements the Petitioner made to Floyd in June 1994, and did not comport with Floyd’s understanding as to the nature of the Petitioner’s experience, Floyd recommended on August 13, 1997, that the Respondent allow him to investigate further before approving the Petitioner’s applications and issuing any licenses. During his investigation, Floyd obtained statements from three individuals thought to be former employees of Telephonic Collections to the effect that they had no knowledge of any skip- tracing or other investigative work being conducted by the Petitioner. All three—C.J. Bronstrup, Jason Gillard, and Duncan Tate—thought that the Petitioner’s role was strictly administrative. Investigator Floyd also was aware that Apter’s applications for renewal of his Class “C” and Class “A” licenses had been denied due to what Floyd understood to be a felony conviction. (Although Apter’s testimony on the criminal charges against him was confusing, it would appear that he entered a plea on the felony charge, and adjudication was withheld. There apparently also were unconnected charges of perjury against him, but the disposition of those charges is not clear from Apter’s testimony.) Finally, Investigator Floyd also recalled that Apter once told Floyd that Apter thought he might have the beginnings of Alzheimer’s disease. For these reasons, Investigator Floyd recommended that the Respondent not credit the Petitioner with any qualifying experience from his employment with Telephonic Collections and also recommended that the representations on the application regarding that employment experience be considered fraudulent misrepresentations. When the Petitioner’s experience with Telephonic Collections was called into question, the Respondent attempted to verify the Petitioner’s experience with the City of West Haven Police Department but was unable to contact Stephen Rubelman at the telephone number given in the application. (According to the Respondent’s witness, “the phone rang off the hook.”) Then, on September 26, 1996, the Respondent telephoned the City of West Haven Police Department but was informed that the Respondent’s employment there between 1965 and 1967 was too old to verify. For these reasons, on September 27, 1996, Investigator Floyd recommended that the Respondent deny the Petitioner’s applications. On October 7, 1996, the Respondent mailed the Petitioner a letter giving notice of intent to deny the Petitioner’s applications. The letter was addressed to the Petitioner as president of INFO, Inc., at “13575 - 58 Street North, Clearwater, Florida 34620.” This mailing was returned undelivered on October 14, 1996, and the letter was returned undelivered. On October 15, 1996, the letter was re-sent in another envelope to “Post Office Box 1241, Largo, Florida 34649,” the mailing address on the Class “A” application. But apparently this time the mailing was returned for postage. The envelope was meter-stamped on October 26, and was received by the Petitioner on October 29, 1996. Verification of Petitioner’s Qualifying Experience The Petitioner did not directly dispute the testimony of Investigator Floyd as to what the Petitioner told him during Floyd’s June 1994, investigation. See Finding 5, supra. Instead, the Petitioner testified essentially that he in fact knew how to do skip-tracing and conduct investigations, having been taught and trained by Apter, and that the Petitioner had extensive experience doing skip-tracing and conducting investigations working for Telephonic Collections, which was a debt collection agency. While not directly disputing Floyd’s testimony as to what the Petitioner said to Floyd, the Petitioner alleged that Floyd may have been biased against him (due to his association with Apter) and suggested that Floyd knew or should have known that the Petitioner knew how to do investigation work because Floyd once asked the Petitioner to get some information for him and watched as the Petitioner placed a pretext call. Regardless of Floyd’s alleged bias or pertinent knowledge, it is found that Floyd accurately related what the Petitioner said to him and that the Petitioner’s purpose in making those statements was to avoid any further investigation into whether the Petitioner also was participating in unlicensed investigative activities during his employment by Telephonic Info. Even assuming that the Petitioner did skip-tracing and investigations for Telephonic Collections, it is clear from the testimony that the Petitioner did not do skip-tracing and investigations full-time, 100 percent of the time, as represented in the Class “C” application and as verified by Apter upon telephone inquiry. At final hearing, Apter testified that, when he verified the Petitioner’s experience for the Respondent on June 26, 1996, he did not mean that the Petitioner had no other duties but rather that the Petitioner did no collection work— i.e., the collection employees would take the information the Petitioner developed from his skip-tracing and asset location efforts and telephone the debtors to try to get satisfaction of the debt. Apter conceded that the Petitioner also had administrative duties. It is the Respondent’s policy, when an applicant has employment experience in a full-time job that involves some investigative work or training in addition to other duties, to credit the applicant for a pro rata amount of qualifying experience based on the quantifiable percentage of time devoted to the investigative work or training. It could not be determined from the evidence what percentage of the Petitioner’s work at Telephonic Collections was devoted to skip-tracing and investigation work and how much was administrative. The Petitioner and Apter testified that Apter trained the Petitioner in skip-tracing and investigation work and that the Petitioner did a substantial amount of skip-tracing and investigation work from March 1991, through September 1993; but both conceded that the Petitioner also had administrative duties. Apter did not break down the Petitioner’s time spent between the two. The Petitioner made a rough approximation that 25 percent of his time was spent on administrative matters. Sharon Jones, who worked for both Telephone Collections and Telephone Info, testified that the Petitioner did some skip-tracing work, as well as other duties, between June through September 1993, but she also could not estimate the percentage of time spent between the two. Other witnesses, including Bronstrup and Tate, were not aware that the Petitioner was doing any skip-tracing at all during the times they were working for Telephonic Collections. (Bronstrup worked there for approximately ten weeks between March and June 1993; Tate worked there from February 1993, through the time it became Telephonic Info in September 1993.) In partial response to the testimony of Bronstrup and Tate, the Petitioner suggested that it was not surprising for them not to be aware of the Petitioner’s skip-tracing and other investigative work because much of it was done at the Petitioner’s home after hours and because most of the employees were treated on a “need to know” basis. (The Petitioner also contended that Bronstrup did not spend much time at work for Telephonic Collections, as he also had another part-time job and did some personal investigation work on the side.) But even if it is true that the Petitioner did much of his skip-tracing and other investigative work at home after hours, only the Petitioner and Apter even knew about it, and the amount of time the Petitioner spent doing investigative work at home clearly was not verified. The Petitioner continues to maintain that he stopped doing any skip-tracing or investigative work after Telephonic Collections, the debt collection agency, ceased doing business and became Telephonic Info, the private investigation agency. As for the Petitioner’s experience as a part-time auxiliary policeman with the City of West Haven police department, the application does not give any indication as to how much time, if any, the Petitioner spent doing investigation work or being trained in that work. The Rubelman affidavit introduced in evidence to verify his experience likewise does not give that kind of information. It only states generally that the Petitioner received training in and assisted in police work. It does not indicate that any of the training or work was in investigations. It also indicates that no records of the Petitioner’s employment exist and that Rubelman cannot reconstruct even the months the Petitioner worked, much less what the work consisted of. Although it is not clear, at final hearing it appeared that the Petitioner may have been claiming credit for work he did collecting Telephonic Info’s accounts receivable. However, the amount of any such work was not quantified. It also appeared at final hearing that the Petitioner also was claiming credit for doing background investigations on prospective employees of Telephonic Info. However, the Petitioner also did not quantify the amount of any of this work. Alleged Fraud or Willful Misrepresentation The Petitioner stated in the Affidavit of Experience in his Class “C” application that the “approximate percentage of time devoted to” the qualifying skip-tracing and investigation duties listed for his employment with Telephonic Collections from March 1991 to September 1993 was “full time.” This statement clearly was false. All of the witnesses confirmed that the Petitioner spent at least some time doing administrative work; several thought that was all the Petitioner was doing. The Petitioner conceded in his testimony at final hearing that at least 25 percent of his time was devoted to administrative work, and it is found that the actual percentage probably was much higher. Unlike Apter, the Petitioner made no attempt to explain his false representation, and it is found to be a fraudulent or willful misrepresentation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a final order denying both the Petitioner’s Class “C” license application and his Class “A” license application. RECOMMENDED this 22nd day of July, 1997, at Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of July, 1997. COPIES FURNISHED: Harry P. Schlenther 12155 Meadowbrook Lane Largo, Florida 33774 Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Sandra B. Mortham, Secretary Department of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issue in this cause is whether petitioners are entitled to either an agricultural classification of their land under F.S. 193.461 or a reduced assessment of their land under F.S. 193.011 for purposes of ad valorem taxation. More specifically, the issue is whether the change made by the Palm Beach County Board of Tax Adjustment in the property appraiser's assessment of petitioners' property lacked legal sufficiency or whether the evidence presented was insufficient to overcome the appraiser's presumption of correctness. In accordance with F.S. 193.122(1) and the case of Hollywood Jaycees v. State Department of Revenue, 306 So. 2d 109 (Fla. 1975), the evidence and argument adduced at the hearing was limited to the scope of the record established before the Palm Beach County Board of Tax Adjustment (BTA).
Findings Of Fact Upon consideration of the pleadings, evidence introduced at the hearing and the oral argument presented by the parties, the following pertinent facts are found: Petitioners are the owners of approximately 300 acres of real property located in Palm Beach County. As of January 1, 1974, the subject property was used for agricultural purposes and had been so used by petitioners or their predecessor for some fifty years prior to 1974. Prior to 1974, the subject land had been assessed at $600.00 per acre and had not been reassessed in approximately six years. Prior to and including 1974, petitioners did not file an application for agricultural classification of their land. For the year 1974, the property appraiser assessed the subject property at $3,000.00 per acre under the provisions of F.S. 193.011. Petitioners appealed to the Palm Beach County BTA which found that the appraiser's presumption of correctness had been overcome and that petitioners should be allowed to retain the prior years' assessment on the property ($600.00 per acre). In support of this decision, the BTA found that it had the authority to extend the time for filing an application for agricultural classification and that it had the authority "in light of AGO 71-81 dated April 28, 1971, to grant the continuance of a prior years assessment where the facts and circumstances surrounding the subject property have not changed and are not expected to change." The BTA notified the respondent of the change in assessment pursuant to F.S. 193.122. The respondent's staff recommended that the BTA's action in this case be invalidated on the ground that the evidence presented to the BTA was insufficient to overcome the property appraiser's presumption of correctness. The petitioners requested a hearing to review the staff recommendation, the respondent's Executive Director requested the Division of Administrative Hearings to conduct the hearing and the undersigned was assigned as the Hearing Officer. Due to the fact that there was no court reporter present at the hearing, the parties stipulated that their respective positions would be reduced to writing by the submission of written memoranda. To date, no such memorandum has been received from petitioners.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the Palm Beach County Board of Tax Adjustment in granting an agricultural classification and in reducing the assessment of petitioners' property for the tax year 1974 be invalidated. Respectfully submitted and entered this 3rd day of March, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1976.
The Issue The issue is whether Nevin Zimmerman violated the Florida Code of Ethics for Public Officers and Employees.
Findings Of Fact Pursuant to Article II, Section 8, Florida Constitution, and Section 112.320, the Commission is empowered to serve as the guardian of the standards of conduct for the officers and employees of the state. Pursuant to Sections 112.324 and 112.317, the Commission is empowered to conduct investigations and to issue a Final Order and Public Report recommending penalties for violations of the Code of Ethics for Public Officers and Employees (Code of Ethics). Respondent Zimmerman is subject to the Code of Ethics. Mr. Zimmerman, during times pertinent, as a partner in the law firm of Burke and Blue, P.A., was the County Attorney, along with Les Burke, for Bay County, Florida, and was a reporting individual, as that term is used in the Code of Ethics. Mr. Zimmerman was required to file annual financial disclosures with the Bay County Supervisor of Elections, as provided by Section 112.3145(2)(c). He is currently an attorney in private practice. As County Attorney, Mr. Zimmerman was ultimately responsible for addressing Bay County's legal needs. He had associates in his firm that helped him in this regard. He became the primary contact in the Burke and Blue firm for Bay County in the middle 1980's. On or about August 31, 1999, the Bay County Commission was addressing the problem of inmate overcrowding in its county correctional facilities, which were operated by CCA. On or about that time, the County correctional facility exceeded capacity by about 352 inmates. The Bay County Commissioners decided to address the issue. The Bay County Commission directed County Manager Jonathan A. Mantay and his staff to study the problem and to recommend courses of action. As a result of the study, two possible courses of action were recommended. One possible course of action was the adoption of the "Lifeline" program operated by CCA in Nashville, Tennessee, which CCA claimed would reduce recidivism by teaching inmates life skills and addressing drug abuse, among other things. CCA's corporate headquarters is located in Nashville. The other possible course of action was to emulate the program operated by Sheriff Joe Arpaio, of Maricopa County, Arizona. Sheriff Arpaio's program consists of housing inmates in tents that are sufficiently primitive that inmates, after having had the tenting experience, avoid repeating it either by not committing crimes in Maricopa County, or by committing them elsewhere. In order to evaluate the two courses of action, the Bay County Commission decided that three commissioners and certain staff should travel to the two sites and evaluate the programs. Mr. Zimmerman, Chief of Emergency Services Majka, and County Manager Mantay, were among those who were designated to travel to Nashville and Phoenix. County Manager Mantay specifically desired that Mr. Zimmerman participate in the trip. Mr. Zimmerman believed that if he could convince CCA to pay travel expenses, he should do it so he could save the taxpayers' money. His "marching orders" for many years was that if there was an opportunity to require a third party to pay an expense, then the third party should pay rather than Bay County. That policy is reflected in a variety of Bay County ordinances including the requirement that developers pay for the cost of permitting. The third party payor policy was implemented in a 1997 trip where Westinghouse, a vendor, was required by the County Commissioners to pay for the commissioners' and County staff's trip to Vancouver, B.C., and Long Island, New York, to evaluate the transfer of the resource recovery facility to another vendor. In that instance, after researching the law surrounding the policy, Mr. Zimmerman prepared a written opinion which stated that it was legally permissible to require Westinghouse to fund the trip. This policy was set forth in a letter by Mr. Zimmerman dated October 30, 1997, which informed the County Commissioners that all expenses in connection with their travel, and with the travel of staff, would be funded by Westinghouse. He further stated that, "[it] is our opinion that the payment of these necessary expenses are not 'gifts,' as that term is defined in State law." It was Mr. Zimmerman's understanding that the County Commissioners desired that CCA pay for the trip. Prior to the trip Mr. Zimmerman called Brad Wiggins, the Director of Business Development for CCA, on February 6, 2000, and inquired if CCA would pay for the airline tickets to Nashville. Mr. Zimmerman told Mr. Wiggins, that having CCA pay the air fare, ". . . was the County's preferred way of doing things, and, in fact, that's when he recounted the story of the County taking some trips to New York and maybe some other places." Mr. Wiggins was not authorized by CCA to approve the payment of travel expenses for customers or others. He forwarded Mr. Zimmerman's request to James Ball, his supervisor. Subsequently, Mr. Wiggins happened upon the CEO of CCA, a Dr. Crants, while walking about the Nashville headquarters of CCA. Dr. Crants directed Mr. Wiggins to fund the trip. Ultimately, as a result of these conversations, CCA paid Trade Winds Travel, Inc., of Panama City, Florida, for the cost of the air travel for the entire Bay County contingent to Nashville, and thence to Phoenix, and back to Panama City. The evidence is not conclusive as to whether it was the intent of CCA to fund the trip beyond Nashville, but they paid for the cost of the airfare for the entire trip. Mr. Zimmerman did not learn that the airfare for the Phoenix trip was funded by CCA until the inception of the Commission's investigation. The request for the payment and the request to visit CCA in Nashville was driven by Bay County's needs, not by the needs of CCA. Bay County was one of CCA's most valued customers, however, and CCA was motivated to respond to their request. This was especially true because one of CCA's first contracts to provide correctional services was with Bay County. The Burke and Blue law firm made arrangements for the trip. Mr. Zimmerman did not involve himself in the detailed planning. His firm does not customarily use Trade Winds Travel, Inc., which indicates that the tickets were acquired directly by CCA. Someone from the Burke and Blue firm made hotel reservations in Phoenix. Their firm name appears on the San Carlos Hotel receipt, although the expense was charged directly to Bay County. Mr. Zimmerman was indubitably aware that CCA was paying for all of the expenses in connection with the Nashville leg of the trip. On Thursday, February 24, 2000, Messrs. Zimmerman, Majka, and Mantay, traveled with Bay County Commissioners Danny Sparks, Richard Stewart, and Carol Atkinson, and television reporter Carmen Coursey, by commercial air, to Nashville, Tennessee. On Saturday, February 26, 2000, they traveled to Phoenix, Arizona, and they returned to Panama City on Tuesday, February 29, 2000. The trip was authorized by the Bay County Commission subsequent to several public discussions concerning the need for an on-site visit to Nashville and Phoenix. There was a legitimate public purpose for the trip. As noted above, Channel 13 television news reporter, Carmen Coursey accompanied the officials. It is clear that there was nothing about the trip that was accomplished sub rosa. The airfare was paid by CCA directly to Trade Winds Travel, Inc. CCA did not ask for or receive reimbursement from either Bay County or the travelers. The cost of Mr. Zimmerman's airfare for the entire trip was $1,257. It was reasonable for Mr. Zimmerman to believe that a commercial air trip of that distance would exceed $100. Upon arrival in Nashville, Mr. Zimmerman, and the other travelers were greeted by Mr. Wiggins, who transported them to the Downtown Courtyard Marriott Hotel in a van. The cost of the transportation was paid by CCA and CCA neither asked for nor received reimbursement from Bay County or the travelers. The value was not established. Mr. Zimmerman did not know who paid for the ground transportation. The travelers ate dinner, February 24, 2000, as a group that evening. Someone paid for Mr. Zimmerman's dinner, but the record does not indicate that CCA paid for it. On Friday, February 25, 2000, Mr. Zimmerman and the other travelers toured the Davidson County (Tennessee) Correctional Facility from 9:00 a.m. until noon. They ate lunch provided by CCA, at the CCA corporate headquarters. That afternoon they met with Mr. Wiggins and other representatives of CCA. They discussed the possibility of CCA providing "Lifeline" and "Chances" programs operated by CCA, to Bay County. That evening, at CCA's expense, Mr. Zimmerman and the other travelers were transported by CCA to a dinner that was paid for by CCA. CCA neither asked for, nor received reimbursement from Bay County or the travelers. Mr. Zimmerman was aware that CCA paid for the food consumed that day. Mr. Zimmerman and the other travelers stayed two nights at the Marriott at a cost of $224.24. The cost of the hotel was paid by CCA, and CCA neither asked for nor received reimbursement from Bay County or the travelers. Mr. Zimmerman learned from Mr. Wiggins that CCA had paid the hotel bill, but there is no evidence of record that he knew the amount, or that it was an amount more than $100. However, it is found that Mr. Zimmerman reasonably believed that the aggregate cost of the flights, food, and lodging exceeded $100. On Saturday, February 26, 2000, Mr. Zimmerman and the other travelers departed for Phoenix by air and observed Sheriff Arpaio's program the following Monday morning. They also toured the Phoenix Fire Department. The travelers, with the exception of Mr. Zimmerman, stayed at the San Carlos Hotel. On Tuesday, February 29, 2000, they all returned to Panama City. Bay County originally contracted with CCA to operate their detention facilities on September 3, 1985. This contract had a term of 20 years; however, it was amended on September 16, 1996, to reflect an expiration date of September 24, 1999. Other extensions followed. An amendment dated June 18, 2000, provided that "CCA shall operate the 'Lifeline Program' through September 1, 2001." On May 15, 2001, the contract was extended to September 30, 2006. Mr. Zimmerman did not derive any person financial benefit as a result of CCA paying the lodging expenses in Nashville or as a result of CCA paying for his airfare, because Bay County would have reimbursed his expenses if CCA had not paid. At no time has he attempted to reimburse CCA for the cost of the trip. Mr. Zimmerman did not receive per diem or any amount in excess of the actual cost of the trip. The entity receiving a benefit from the trip was Bay County. It is found as a fact that the cost of the travel to Nashville and back to Panama City, and the cost of the food, transportation, and hotel in Nashville, totaled more than $100 and Mr. Zimmerman reasonably believed that the cost, when aggregated, was more than $100. Mr. Zimmerman did not file a CE form 9, Quarterly Gift Disclosure in conjunction with this trip. It was not uncommon for Mr. Wiggins and other CCA officials to appear before the Bay County Commissioners on behalf of CCA, or to otherwise interact with representatives of CCA. Brad Wiggins was a lobbyist, as that term is defined in Section 112.3148(1)(b)1., and others interacted with Bay County on behalf of CCA and they were lobbyists also. During times relevant, Bay County did not maintain a lobbyist registration system.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a Final Order and Public Report finding that Nevin Zimmerman did not violate Section 112.3148(4) or (8), Florida Statutes, and dismissing the complaint filed against him. DONE AND ENTERED this 17th day of August 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 17th day of August, 2006. COPIES FURNISHED: Linzie F. Bogan, Esquire Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Albert T. Gimbel, Esquire Gary E. Early, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Kaye Starling, Agency Clerk Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32319-5709 Philip C. Claypool, General Counsel Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32319-5709
The Issue Whether Michael Clay Bishop, d/b/a J and M Enterprises (“Respondent”), failed to secure the payment of workers’ compensation insurance coverage for its employees; and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (“Petitioner” or “Department”), correctly calculated the penalty to be assessed against Respondent.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent purports to be a “Private Common Law Non- Associated Unincorporated Business Trust Organization,” or “UBTO,” engaged in business in Florida.2/ Michael Clay Bishop is one of Respondent’s trustees. The nature of Respondent’s business was a disputed issue at the final hearing. Mr. Bishop testified that he performed handyman services, such as cleaning, yardwork, removal of old furniture, and repair of flood-damaged properties. The record contains Respondent’s business card, which Mr. Bishop provided to the Department’s Compliance Investigator, Carl Woodall, on January 31, 2017. The business card reads, “J & M Enterprises,” and advertises as follows: Quality repairs, restoration and remodels; paint interior/exterior, flooring, fencing, decks, crown molding, concrete. BIG OR SMALL WE DO IT ALL! The business card indicates the business is “Insured” and has “references available.” Mr. Bishop did not dispute that the business card belonged to Respondent, or that it accurately represented the services provided by Respondent. Respondent accepts monetary payments for work performed by check made out to J and M Enterprises.3/ Respondent maintains a business checking account in the name of J and M Enterprises to which Respondent deposits payments for services performed by Respondent. On January 31, 2017, Mr. Woodall encountered Mr. Bishop at a residence undergoing remodeling at 8623 Lagoon Drive in Panama City Beach. Mr. Woodall observed Mr. Bishop engaged in the act of filling cracks in a bar area of the residence with putty, presumably to prepare the surface for painting. Mr. Bishop testified that he was “cleaning some caulking that wasn’t done very well.” Mr. Bishop objected to characterization of his work as painting, or preparing the surface for painting. However, Mr. Bishop admitted that he was hired by Chris Roberts of Rainbow International as a subcontractor on the remodel. Mr. Woodall testified that he spoke with Chris Roberts on the date in question, who informed him that Mr. Bishop was hired to perform painting services on the remodel, and that he was compensating J and M Enterprises at the rate of $20 per hour for the painting services. Mr. Woodall’s notes, made on his Field Interview Worksheet, corroborate his testimony on these facts. Mr. Bishop’s testimony was neither credible nor reliable. It is inconceivable that Rainbow International hired Respondent to clean caulking at $20 per hour. The evidence supports a finding that Respondent is engaged in the business of residential painting, including preparation of surfaces for painting. It is uncontested that Respondent was not covered by workers’ compensation insurance at all times material hereto. Mr. Bishop testified that he was under a mistaken assumption that he was exempt from workers’ compensation insurance since he had no employees. However, at final hearing, he explained that he had been made aware that the requirement applies to any business in the construction industry with one or more employees. Mr. Woodall personally served Mr. Bishop with a Stop-Work Order and Request for Production of Business Records on January 31, 2017. At all times material hereto, Mr. Bishop maintained that Respondent’s business records were confidential, pursuant to the business trust agreement, and that to disclose those business records would violate his obligation to Respondent’s trustees. A document purported to be Respondent’s trust indenture was admitted in evidence as Respondent’s Exhibit R4. Article 29, Section 29.1, of the Indenture is titled, “Disclosure of Documents,” and provides as follows: NO document, record, bank account, or any other written information dealing with the internal affairs or the operations of this UBTO shall be disclosed to any third party, except upon formal written board approval of the Board of Trustees given at a regular or special meeting of the Board of Trustees as set forth above. Respondent did not comply with the Department’s request for business records, such as check stubs, bank statements, or tax returns, from which the Department could establish Respondent’s payroll for the audit period.4/ Department Penalty Auditor, Eunika Jackson, was assigned to calculate the penalty to be assessed against Respondent. Pursuant to section 440.107(7)(d), Florida Statutes, the Department’s audit period is the two-year period preceding the date of the Stop-Work Order. The audit period in this case is from February 1, 2015 through January 31, 2017. Respondent provided no evidence that Respondent was not engaged in business at any time during the audit period. Respondent’s trust indenture is dated January 19, 2012. Because Respondent provided no business records from which the Department could establish Respondent’s payroll for the audit period, Ms. Jackson imputed Respondent’s payroll, pursuant to section 440.112(2). Based upon Mr. Woodall’s observations of the work being performed at the jobsite, Ms. Jackson determined that the type of construction work performed was painting. Ms. Jackson consulted the Scopes Manual published by the National Council on Compensation Insurance (NCCI) and utilized classification code 5474, the general painting classification, for purposes of calculating the penalty. Ms. Jackson then applied the corresponding approved manual rates for classification code 5474 for the related periods of non-compliance. Ms. Jackson applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)1. and Florida Administrative Code Rules 69L-6.027 and 69L-6.028 to determine the penalty to be imposed. Because Respondent did not provide records sufficient to determine its payroll during the audit period, Ms. Jackson correctly assigned the statewide average weekly wage (AWW) to Mr. Bishop, the only employee identified on the jobsite on the date in question. § 440.107(7)(e), Fla. Stat. Ms. Jackson likewise correctly utilized the AWW multiplied by two when applying the statutory formula for calculating the penalty to be assessed. See § 440.107(7)(d)1., Fla. Stat. On April 18, 2017, by certified mail, the Department served Respondent with an Amended Order of Penalty Assessment assessing a penalty of $30,600.44, which was fully imputed. Respondent made a payment of $1,000 to the Department which has been applied to the imputed penalty. The Department’s Penalty Calculation worksheet notes a balance due of $29,600.44.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers’ Compensation, finding that Michael Clay Bishop, d/b/a J and M Enterprises, violated the workers’ compensation insurance law and assessing a penalty of $30,600.44. DONE AND ENTERED this 28th day of September, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2017.
The Issue Whether the Respondent Terra Bella and Associates, Inc., owes the Petitioner $17,806.20 for sod purchased from Petitioner, Action Sod and Landscape, LLC.
Findings Of Fact Action Sod is a 25-year-old business that sells plants and sod for lawn and landscaping. Terra Bella is a construction landscape maintenance company that has been in existence since 2004. 2011. Great American was the surety for Terra Bella during In the latter part of 2011, Action Sod sold and invoiced Terra Bella the following sod orders: Invoice 114825 on November 16, 2011, for Vero Beach in the amount of $1,979.50; Invoice 114828 for Parkland Heron Bay on November 16, 2011, in the amount of $1,979.50; Invoice 114875 for Parkland on November 16, 2011, in the amount of $2,268.40; Invoice 115360 for Pickup at Okechobbe Farm on November 21, 2011, in the amount of 1,455.20; Invoice 116151 for Harron Beach on November 29, 2011, in the amount of 3,852.00; Invoice 116350 for Enin 5613480172 on December 1, 2011, in the amount of $3,852.00; and Invoice 116880 for Pickup at Okechobbe Farm on December 6, 2011, in the amount of $1,369.60. Action Sod expected payment of each invoice within 30 days from date of pick up or delivery. After Barbara Callado Lopez ("Lopez"), Action Sod's President and Director, did not receive payment for the outstanding November and December invoices totaling $26,396.90, she called Terra Bella repeatedly to request payment. On January 24, 2012, Terra Bella paid Action Sod $9,640.00 for Invoices 113134, 113750, 114132, and 114626, leaving an outstanding balance of $16,756.20. On February 22, 2012, Action Sod filed a claim against Terra Bella with the Department because $16,756.20 had not been paid. Action Sod ultimately amended the claim to $16,806.20 to include the remaining monies owed for sod purchased plus the $50.00 filing fee for a claim. On February 29, 2012, Lopez went to Terra Bella's office requesting payment. The parties had a heated argument about the sod and monies owed. Lopez requested payment in the amount of $16,756.20. Terra Bella provided a counter offer to Action Sod of $13,006.20, which was calculated by subtracting $750.00 for pallets returned and $3,000.00 for the sod that didn't pass inspection and had to be replaced. Even though Lopez was dissatisfied with the offered amount of $13,006.20, she accepted it. Terra Bella paid Action Sod $13,006.20 with check #5098, which stated in the memo section, "Final Payment of Agreed Upon Open Bal." During the meeting, Lopez also signed six Final Waiver and Release of Lien forms for the following properties: Vero Lago, LLC,; The Ranches at Cooper City, LLC; Parkland Reserve, LLC; Miami Dade Aviation Department; Heron Bay; and Monterra Clubhouse. The waivers neither provided invoice numbers nor identified and described the property locations as listed on the invoices. Each waiver provided in relevant part the following: The undersigned lienor, received FINAL payment and hereby waives and releases its lien and right to claim a lien for labor, services, equipment, or materials furnished to Terra Bella & Associated, Inc., though February 29, 2012, on the . . . project. . . to the following property. . . Action Sod cashed check #5098 and therefore Terra Bella is not indebted to Petitioner for any sod sold in November and December of 2011.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order dismissing the complaint of Action Sod and Landscape against Terra Bella and Associates. DONE AND ENTERED this 5th day of September, 2012, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2012. COPIES FURNISHED: Christopher E. Green, Esquire Department of Agriculture and Consumer Services Office of Citrus License and Bond Mayo Building, M-38 Tallahassee, Florida 32399-0800 Lorena Holley, General Counsel Department of Agriculture and Consumer Services Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Honorable Adam Putnam Commissioner of Agriculture Department of Agriculture and Consumer Services The Capital, Plaza Level 10 Tallahassee, Florida 32399-0810 Barbara Callado, President Action Sod and Landscape, LLC Post Office Box 833143 Miami, Florida 33283-3143 Dan Hurrelbrink Great American Insurance Company 580 Walnut Street Post Office Box 2119 Cincinnati, Ohio 45201-3180 Dennis Hall, President Terra Bella and Associates, Inc. PO Box 22397 Hialeah, Florida 33002
The Issue The issues are whether Respondent, John Marks, committed the following violations as alleged in the Ethics Commission's two Orders Finding Probable Cause, both dated June 20, 2012: As to DOAH Case No. 12-2508EC, whether Respondent violated section 112.3143(3)(a), Florida Statutes, by voting on September 15, 2010, on a measure that would inure to the special private gain or loss of the Alliance for Digital Equality ("ADE"), a principal by which Respondent was retained. As to DOAH Case No. 12-2509EC, whether Respondent violated s ection 112.3143(3)(a), Florida Statutes, by voting on March 28, 2007, September 19, 2007, June 13, 2007, and June 18, 2008, in connection with matters that inured to the special private gain or loss of Honeywell, a principal by which Respondent was retained.
Findings Of Fact At the time of the hearing, Respondent was serving as Mayor of the City, a position he has held since March 2003. The City has a commission/manager form of government. The City Manager is the chief executive officer in control of the day-to- day operations of the City government. The City Commission ("Commission") is the legislative arm of the government. The Mayor is a voting member of the Commission. He presides at Commission meetings, but otherwise has no more power than any other member of the Commission. As Mayor and a member of the Commission, Respondent is subject to the requirements of section 112.3143(3)(a), which, among other things, prohibits a local public officer from voting in an official capacity upon any measure that he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained. Facts as to DOAH Case No. 12-2508EC Pursuant to the American Recovery and Reinvestment Act of 2009, the BTOP was established as a grant program administered by the National Telecommunications and Information Administration ("NTIA") within the U.S. Department of Commerce. The BTOP funded projects to bring broadband internet infrastructure and service to underserved communities in both rural and urban areas. In 2009, the City made an application for a BTOP grant toward establishing the City as a hub for providing technology services to surrounding cities and counties. The City would establish a shared services platform to bring information technology services to smaller communities unable to obtain such services on their own. This application was turned down. The City's BTOP application had been prepared by Donald DeLoach, the City's chief information systems officer, and Carrie Blanchard, Respondent's chief of staff. After the grant application was rejected, Respondent suggested to Ms. Blanchard that ADE had experience in putting together such grants and that she "might want to consider them for something in the future." ADE is an Atlanta-based not-for-profit organization established to assist in the development and deployment of broadband technology to underserved communities. Between April 2007, and October 2010, Respondent served as a member of ADE's "Board of Advisors," a body separate from ADE's Board of Directors. Respondent advised ADE's staff on telecommunications and broadband technology issues but was not involved in the operational aspects of the company. For his continuing availability as a consultant, Respondent was paid $2,000 per month by ADE. Respondent's annual CE Form 1, Statement of Financial Interests, disclosed ADE as a primary source of income for the years 2007, 2008, 2009 and 2010. Ms. Blanchard passed Respondent's recommendation on to Mr. DeLoach, who testified that they took a look at the company and liked what they saw. They decided to involve ADE in the new project that was taking shape for the City's second BTOP application. Both Ms. Blanchard and Mr. DeLoach testified that Respondent was not involved in preparing the second BTOP application, and that they felt absolutely no pressure from Respondent to use ADE in the project. ADE was contacted and agreed to participate in the project. Claire Lawson of ADE spoke with Mr. DeLoach and Ms. Blanchard on numerous occasions to clarify points in the application regarding ADE's participation. In March 2010, the City submitted its BTOP grant application to the NTIA. The executive summary of the proposed project described its intent as follows: The Apalachee Ridge neighborhood and the Southside of Tallahassee have been historically underserved in terms of technology and access to broadband. Many of the area's residents are minority, low- income families with limited opportunities to access the wide variety of advantages offered by a high-speed internet connection. By enhancing the technological outreach and skills training at the existing Apalachee Ridge Technology Center in combination with targeting at-risk student populations throughout Leon County this project will expose and train a group of underserved individuals and thereby increase the adoption and utilization of broadband technology. The BTOP grant application identified three "partners" that would contribute products or services to the proposed project: Florida State University, the Go Beyond Foundation, and ADE. Throughout the application, ADE and its "Learning Without Walls" initiative are promoted as a central and essential part of the proposed project. The BTOP grant application included a letter to Ms. Blanchard from Julius H. Hollis, ADE's Chairman and CEO, expressing support for the application and confirming ADE's involvement in the project, including "an in-kind contribution of computers to support your application." If the grant were awarded and implemented as proposed, ADE would have been obligated to provide $36,109 worth of software and $40,000 worth of computer equipment. Mr. Hollis was the person who hired Respondent to work for ADE. On or about August 19, 2010, the NTIA awarded the grant to the City. The award documents stated that the grant required compliance with various federal regulations including 15 C.F.R. § 24.31(d), which provides, in relevant part: (d) Programmatic changes. Grantees or subgrantees must obtain the prior approval of the awarding agency whenever any of the following actions is anticipated: * * * (3) Changes in key persons in cases where specified in an application or a grant award.... On September 15, 2010, an agenda item was placed before the City Commission regarding this matter. The "recommended action" was to "[a]pprove the City's participation in the BTOP grant and allow the City Manager to execute the agreement with the [NTIA]." Respondent passed the presiding officer's gavel to Commissioner Lightsey so that he could make the motion that the Commission adopt the recommended action. In his comments, Respondent mentioned that he was familiar with ADE because he "had helped them out a little bit" and that ADE was a "solid non-profit organization." Respondent voted in favor of the motion, which passed unanimously. James English, the City Attorney,2/ testified that there is nothing in the City's charter or ordinances that required this matter to go before the City Commission for a vote. Other, smaller grants do not come before the Commission for a vote but are handled administratively by the City Manager. Mr. English stated that this item was put to a vote because it was a "good-news story and something you'd want to have on the agenda. It's a public meeting and it's on live television and we celebrate . . . [It was] totally non-controversial, a happy event, a unanimous vote." Mr. English stated that, while it is "customary" to bring such items to the Commission, it was not necessary to do so. He did concede that had the Commission voted not to accept the grant, the City Manager could not have moved forward in the contracting process. The September 15, 2010, Commission vote did not establish a contract between the City and any of its partners in the BTOP grant application. The purpose of the vote was simply to accept the grant from the NTIA. Before they could enter a contract with the City, the grant partners still had to demonstrate that they were in compliance with federal regulations and that they were financially able to fulfill their obligations as outlined in the grant application. Ms. Blanchard testified that the City Commissioners were usually thorough in reviewing the details of proposed contracts. She testified that as of the September 15, 2010, vote no contractual details had been provided to the Commissioners because none had yet been outlined by staff. In her briefing of Commissioner Andrew Gillum prior to the vote, Ms. Blanchard confined herself to a general description of the roles to be played by each partner in the grant application.3/ Three of the Commissioners at the time of the September 15, 2010, vote, Mark Mustian, Gil Ziffer, and Debbie Lightsey, testified that they had made no commitments or decisions regarding contracts with any of the partners as of the time of their vote. Respondent proffered that Commissioner Gillum would have given the same testimony. The proffer was accepted without objection from the Advocate. Mr. English testified that none of Commissioners had indicated to him that they had decided to vote for any particular partner named in the grant application. Mr. English testified that about one month after the September 15 vote, he attended a meeting of city staff to commence contract negotiations with the partners named in the grant application. This was the first face-to-face meeting between City representatives and those from ADE's Atlanta home office. At this meeting, the ADE representatives advised Mr. English that ADE could not be the contracting party because it was a 501(c)(4) corporation engaged in a lobbying activities that rendered it ineligible to accept federal funds. Someone at the meeting mentioned Partners for Digital Equality ("PDE"), a separate 501(c)(3) corporation that was closely affiliated with ADE. As a 501(c)(3), PDE would be eligible to participate in the grant. Mr. English observed that all of the ADE people at the table during the meeting also appeared to be involved with PDE, and verified that PDE could step into the role envisioned for ADE in the BTOP grant application. Mr. English concluded that the City would be dealing with more or less the same people under a different corporate umbrella. The decision was made to replace ADE with PDE for purposes of the City's negotiating contracts with its partners for the BTOP grant. An item was placed on the agenda for the December 8, 2010, City Commission meeting recommending that the Commission "[p]rovide authority for the City Manager to negotiate and execute three year contracts with Go Beyond Foundation not to exceed $600,187, and [PDE] not to exceed $761,609, in accordance the provisions [sic] of the grant." Mr. English testified that shortly before the December 8, 2010, Commission meeting, Respondent advised him that he was affiliated with ADE. Mr. English described the conversation as follows: He approached me, as you commonly do on conflict questions, and said, “Look, Jim, I am on the Board of Advisors or Board-- on the Board of ADE.4/ This vote is coming up again, the December vote. Is that a problem, is that a conflict? It's a not-for profit.” And I advised him at that point I would say, yes, it's a conflict, don't vote. Mr. English understood that the vote would be to negotiate with PDE rather than ADE, but this understanding did not change his advice to Respondent that he should abstain from voting on the matter. Following Mr. English's advice, Respondent filed a Form 8B, Memorandum of Voting Conflict for County, Municipal, and Other Local Public Officers ("Memorandum of Conflict"), disclosing that the agenda item providing the City Manager authority to negotiate and execute contracts with the BTOP grant partners "inured to the special gain or loss of The Alliance for Digital Equality (ADE), by whom I am retained as a member of its Board of Directors."5/ Respondent also noted that "ADE is a 501C(3) non-profit [sic] entity and provides a stipend to its board members." It was a few weeks or a month after his conflict discussion with Respondent that Mr. English learned Respondent was being paid by ADE. Ms. Blanchard testified that she knew at the time of the application that Respondent served on a board of ADE, but she did not know that it was a paid position. At its December 8, 2010, meeting, the City Commission voted 4-0, with Respondent abstaining, to authorize the City Manager to negotiate contracts with the BTOP grant partners. Mr. English testified that any contracts negotiated by the City Manager would have had to come before the City Commission for another vote of ratification. No contract was ever entered into between the City and any of the partners. The partners were unable to demonstrate their financial ability to meet the commitments they undertook in the grant application. Respondent also pointed to the publicity after ethics complaints were filed against Respondent as having "soured" the partners on the project. The City eventually notified the NTIA that it was waiving its right to accept the grant. In summary, Respondent knew at the time of the September 15, 2010, vote that ADE was a named partner of the City in the BTOP grant application, and that he was being paid $2,000 per month by ADE to sit on its Board of Advisors. Respondent listed ADE as a primary source of income on his Statement of Financial Interests for the years 2007 through 2010. Respondent did not conceal his involvement with ADE, but the record discloses no affirmative efforts on his part to dispel what appeared to be the general impression that his work for ADE was gratis, until his expression of concern to Mr. English just before the December 8, 2010 vote. However, the facts also indicate that at the time of the September 15, 2010, vote there was no contractual relationship between ADE and the City, and that at least two more Commission votes would be required before ADE could enter a contract and participate in the BTOP grant. Of decisive significance is the fact that, as a 501(c)(4) organization engaged in lobbying activities, ADE could not accept the federal grant money sought by the BTOP application. 2 U.S.C. § 1611. Thus, a separately incorporated affiliated 501(c)(3) organization, PDE, was substituted as the entity proposed to contract with the City and to receive the BTOP grant funds.6/ No evidence was provided to show a relationship between Respondent and PDE. Facts as to DOAH Case No. 12-2509EC Respondent entered into a written employment agreement dated June 1, 2004, with the law firm Adorno & Yoss. The firm was based in Miami, and Respondent was to open the firm's Tallahassee office. Throughout his tenure at Adorno & Yoss, Respondent was the sole attorney in the Tallahassee office. The employment agreement provided that Respondent would be a "contract partner" paid at the rate of $12,500 per month. The contract made no provision for Respondent to share in the profits of the firm. Adorno & Yoss partner George Yoss, who was Respondent's main contact with the firm, confirmed that Respondent was never a "partner" or "shareholder" in the sense of having an ownership interest in the firm. Respondent confirmed that he had no ownership interest in Adorno & Yoss. He testified that the employment agreement used the term "managing partner" because Adorno & Yoss "wanted to make the office in Tallahassee look as though it was really an operation that people can depend on." Respondent stated that Adorno & Yoss exercised no control over his relationships with the clients he represented or over the cases he handled.7/ He never had access to the books and records of Adorno & Yoss, and the firm never requested access to Respondent's books.8/ On average, Respondent spent 20-to-25 hours per week on Adorno & Yoss work. By its terms, the employment agreement was to expire on December 31, 2008. Mr. Yoss testified that Respondent remained with the firm past the expiration of the written agreement, but that in March 2009, Respondent's status was changed to "of counsel" because his financial performance was insufficient for the amount of salary he was receiving. The "of counsel" arrangement based Respondent's compensation on the amount of work he generated for the firm, rather than paying him a fixed salary.9/ On September 22, 2004, Respondent abstained from a Commission vote to approve the award of a guaranteed energy savings contract to Johnson Controls, Inc. and Honeywell International, Inc. ("Honeywell"10/). In his Memorandum of Conflict dated September 24, 2004, Respondent stated that the measure in question "inured to the special gain or loss of Honeywell, Inc. and Johnson Controls, Inc., by whom I am retained." Respondent testified that when this vote came up, he was concerned that a law firm as large as Adorno & Yoss might have some involvement with the contracting entities. He called the Miami office for a client check. Respondent was told that the firm did not represent Honeywell, but that it did represent Bendix, a subsidiary of Honeywell. Respondent decided that it would be prudent to recuse himself from the vote. Respondent testified that he named Honeywell rather than Bendix on the Memorandum of Conflict because Honeywell was the entity with which the City was contracting. Respondent testified that in August 2006, another matter involving Honeywell was coming before the City Commission. By this time, he had met Bueno Prades, an account executive for Honeywell. Mr. Prades was involved in the sales of energy projects to entities such as the City, and introduced himself to Respondent in the course of pursuing an energy performance contract with the City in 2004. Mr. Prades made frequent sales calls on Respondent, but did not otherwise meet or socialize with Respondent. Respondent testified that in August 2006, he asked Mr. Prades to determine whether Honeywell or any of its subsidiaries was represented by Adorno & Yoss. Mr. Prades sent an email to his manager Steve Borden and Honeywell government relations manager Paul Boudreau asking them to "check into Honeywell's involvement with Adorno & Yoss and provide your input as to any potential conflict." Mr. Borden and Mr. Boudreau circulated the request to Honeywell's legal and accounting departments, which responded that there was no record of a relationship with or payment to Adorno & Yoss as to Honeywell or its subsidiaries. Mr. Prades relayed this information to Respondent. Respondent testified that the matter involving Honeywell never came to a vote in 2006 and that was the end of the matter for the time being. In an "urgent" email to Mr. Boudreau and Honeywell in- house attorney Jennifer Eastman, dated March 1, 2007, at 4:08 p.m., Mr. Prades wrote as follows, in relevant part: Need your prompt help . . . We're getting ready to go to the Commission with this project, but the Mayor recently indicated that he may have a potential conflict and may have to recuse himself on issues dealing with Honeywell. He also mentioned this last August, and Paul Boudreau conducted a search (see e-mail trail below) but found no record of Honeywell doing business with the Mayor's firm (Adorno & Yoss). We have contacted the Mayor's office to get some clarification regarding his concern, but would like your assistance in researching this matter from Honeywell's side.... Note that Mayor Marks is also on the Board of Directors of Fringe Benefits Management, a private financial services company headquartered in Tallahassee.... Does Honeywell International have any business relationship (either as a client or vendor) with Adorno & Yoss or Fringe Benefits Management? If so, to what extent are we connected-- with which A&Y office do we have a contract? Which Hwl business unit? Is the contract active? Also on March 1, 2007, at 11:35 p.m., Mr. Prades sent an email to: Kevin Madden, vice president of global sales; Vince Rydzewski, south region vice president and general manager; John Carter, national energy manager; Kent Anson, vice president in charge of Honeywell's utility business; Steve Smith, sales leader in the utility business; Kevin McDonough, a manager of the utility business; Kevin Colores, south region sales manager; Mr. Borden; and Frank Tsamoutales, an outside consultant. The email, with the subject line, "City of Tallahassee-- New issue may change strategy," stated as follows: The Mayor indicated he may have to recuse himself on a vote concerning Honeywell. In August and again yesterday,11/ a check of the Honeywell supply management system yielded no record of any business with the Mayor's law firm (Adorno & Yoss) or the firm he serves on the Board of Directors (Fringe Benefits Mgmt). Steve Borden has contacted [Respondent's aide] Alan Williams to determine why the Mayor feels there may be a conflict, and will find out by Monday [March 5]. On March 13, 2007, Mr. Borden sent an email to Messrs. Rydzewski, Tsamoultes and Prades, indicating that he had received a call from Respondent's office requesting information regarding the business relationship between Bendix and Honeywell. Mr. Borden also wrote that Ms. Eastman had informed Mr. Tsamoultes "that we have no record that the mayor's firm has any relationship with Bendix or Honeywell. I further understand that a plan is in place to deal with this issue directly with the mayor." Mr. Prades testified that his only direct meeting with Respondent concerning the Adorno & Yoss issue was in August 2006. In March 2007, he met with Respondent's aide, Alan Williams, to inform him that Honeywell had been unable to find any indication that it or any of its subsidiaries had a business relationship with Adorno & Yoss. Mr. Williams confirmed the substance of this conversation, and the fact that it occurred prior to the March 28, 2007, vote involving Honeywell. Mr. Williams passed on Mr. Prades' findings to Respondent. The City Commission's March 28, 2007, agenda included an item related to smart metering. One of the options before the Commission would be a staff recommendation to authorize City staff to negotiate a contract with Honeywell to provide contract management services for the full deployment of a smart metering network and smart thermostats for the City's utility system. This was the matter that was the subject of Mr. Prades' urgent inquiries. He believed it essential that Respondent vote on the motion. With the agenda item pending, Respondent sent Mr. English a short letter from Honeywell (no longer available and therefore not part of the record of this proceeding) stating that Honeywell "does not have any record of a conflict of interest with Adorno & Yoss." In an email sent on the afternoon of March 21, 2007, Respondent asked Mr. English whether he had seen the Honeywell letter and further requested, "Please advise." About a half-hour later, Mr. English replied: Yes-- and I did verify from the public records the sale by Honeywell of Bendix several years ago. Otherwise the letter isn't helpful. The issue isn't "conflict of interest with Adorno & Yoss" but representation by Adorno & Yoss. What you will need to do is the standard check by having your folks at Adorno & Yoss run the client check for Honeywell International and its wholly owned subsidiaries. I have the list per Honeywell's latest 10k filing and will forward it this afternoon. A few minutes later, Mr. English sent a follow-up email to Respondent: Sorry -- I should have added a time period for the check. Current plus within the last two years should be adequate. Let me know if you need any assistance or have any questions. On March 28, 2007, Respondent voted in favor of the motion to authorize the City's staff to negotiate a contract with Honeywell to provide contract management services for the full deployment of a smart metering network and smart thermostats for the City's utility system. The vote was 3-1 in favor of the motion, with then-Commissioner Allan Katz abstaining because his law firm represented Honeywell. The minutes of the March 28, 2007, Commission meeting provide as follows: Mayor Marks stated for the record that there had been some question at one point as to whether he had a conflict of interest on this issue; however, after extensive investigation and discussion with the City Attorney, a determination had been made that there was no conflict. Mr. English wrote a memorandum to Respondent, dated June 20, 2007, and titled, "Honeywell Conflict of Interest Check." The memorandum provided as follows: This will serve to confirm that several weeks prior to the March 28, 2007, vote on pursuing the City's automatic metering infrastructure project, you asked that I research the issue as [to] whether or not you had any conflict of interest in voting on that matter. In pursuance of that effort, I secured from the U.S. Securities and Exchange Commission website a list of all materially owned Honeywell subsidiaries and pursuant to receipt of that data, you had your law firm perform a client check to ensure that the firm did not represent, nor had it in recent years represented, any of the entities on that list. Additionally, prior to that time, you had advised me that in the past your law firm had represented Bendix. Prior to the specific conflict check research, I had inquired of that matter, checked the public information, and confirmed that Bendix previously had been a subsidiary of Honeywell but had been sold by Honeywell to a German company a number of years ago. In summary, I advised you at the time, and I can still confirm, that you have no prohibited conflict of interest with regard to any votes with regard to Honeywell. As always, I appreciate your apprising me of any potential conflicts that may arise from law firm representation. Mr. English testified that Respondent had "asked me to write him a memo confirming our previous discussions." Mr. English testified that his advice as to the Honeywell relationship was always based on the information that Respondent had provided. The only independent research performed by Mr. English was to confirm that Honeywell had sold Bendix and to find a list of Honeywell's subsidiaries in its 10-K filings with the S.E.C. Mr. English testified that the statement in his memo regarding the client check by Adorno & Yoss was "based on the Mayor advising me prior to the meeting that he had checked and that his law firm did not represent Honeywell." In fact, Respondent did not have Adorno & Yoss run a client check on Honeywell and its subsidiaries prior to the March 28, 2007 vote, despite the fact that his usual practice was to check with the law firm regarding conflicts. He relied solely on the information provided by Honeywell through Mr. Prades, as described above. At the hearing, Respondent explained his rationale as follows: Well, Honeywell had a lot of subsidiaries, quite a few subsidiaries that I was-- Jim English told me about and others, a lot of subsidiaries. So I thought it would be a lot more efficient and effective if I asked Honeywell if there are any conflicts where Adorno & Yoss was representing not only Honeywell, but any of the myriad of subsidiaries Honeywell had. Respondent testified that Honeywell was "really a reputable company" and that he had no reason to believe the company would "try and do anything untoward regarding this contract or any other contract." The testimony of Mr. Prades and the Honeywell emails introduced at the hearing support Respondent's belief that Honeywell made a good faith effort to discover whether it had a relationship with Adorno & Yoss. Despite the failure of Mr. Prades' inquiries to discover it, Honeywell was a client of Adorno & Yoss at the time of the March 28, 2007 vote. Anthony Upshaw, the Adorno & Yoss partner who brought Honeywell to the firm in 2003 or 2004, estimated that Honeywell was one of the firm's top fifteen clients. (Mr. Upshaw took Honeywell with him when he left Adorno & Yoss in late 2010.) Bob Kulpa, Adorno & Yoss's comptroller, testified that Honeywell was one of the firm's top ten clients. Julie Feigeles was one of the three Adorno & Yoss lawyers who worked on Honeywell matters. Ms. Feigeles testified that the firm's representation of Honeywell was limited to asbestos litigation related to Honeywell's ownership of Bendix, and that the work was handled exclusively in the Miami office. She recalled that she worked with Honeywell lawyers in the "Bendix litigation group" and that there were many defendants and many law firms involved in the litigation. Mr. Yoss, Mr. Kulpa, Mr. Upshaw, and Ms. Feigeles each testified that he or she never spoke with Respondent about Honeywell during the time frame relevant to this proceeding. Respondent testified that his contacts with Adorno & Yoss's Miami office were minimal. As noted above, Respondent's role was to provide Adorno & Yoss a presence in Tallahassee, but he mostly serviced his own clients and kept his own accounts. He estimated that he spoke to someone from Adorno & Yoss, usually Mr. Yoss, about twice per month. Respondent visited the firm's Miami office a few times. He recalled having spent a total of about 20 hours in the Miami office. The question naturally arises: why did Mr. Prades' efforts within Honeywell reveal no relationship with Adorno & Yoss, when everyone from Adorno & Yoss who testified stated that Honeywell was a major client of the firm? Mr. Prades testified that he learned later that Adorno & Yoss had been hired not by Honeywell but by the insurance company that was defending the asbestos litigation on Honeywell's behalf. This attenuation of the relationship apparently meant that Honeywell had no internal record of dealings with Adorno & Yoss, despite the fact that Ms. Feigeles recalled working with in-house Honeywell lawyers. Honeywell's accounts showed no payments to Adorno & Yoss because the payments were being made through the insurance company. From the perspective of the Adorno & Yoss lawyers, Honeywell was nonetheless their client. At the hearing, Mr. English was queried about his March 21, 2007, email advising Respondent to have Adorno & Yoss "run the client check" for Honeywell and his June 20, 2007, memo stating that Respondent had his law firm perform a client check. Mr. English did not testify that Respondent directly told him that he had run the client check with Adorno & Yoss. Rather, Respondent told Mr. English prior to the March 28, 2007 Commission meeting "that he had checked and that his law firm did not represent Honeywell." Mr. English assumed that Respondent ran a conflict check through his law firm, when in fact Respondent was relying on information obtained from Honeywell. Mr. English did not believe it mattered so long as the information was accurate. He knew of "no legal reason" why Respondent should check with Adorno & Yoss as opposed to Honeywell. He stated that, although the usual course is to check with one's law firm, "It would work either way." Mr. English noted that section 286.012, Florida Statutes, forbids a public official from abstaining to avoid a tough vote. The statute requires the official to vote unless there is a possible conflict of interest, and the presence of a conflict can constitute a "very difficult" judgment call. He testified that Respondent has "always been very, very conscientious . . . to the point of being a bit paranoid" about avoiding voting conflicts. At the time of the March 28, 2007, vote and the later votes at issue in this proceeding, Respondent did not know that Adorno & Yoss represented Honeywell. Honeywell's good faith in attempting to ascertain its relationship with Adorno & Yoss is not in doubt, and in most cases would have been sufficient to reveal the true state of affairs. With benefit of hindsight, Respondent may be criticized for failing to complete the circle of inquiry by asking Adorno & Yoss to perform a client check, a check that would have immediately informed Respondent of the representation. However, it cannot be found that Respondent's reliance on Honeywell was so unreasonable as to constitute an effort on his part to shield himself from knowledge of Adorno & Yoss's representation of the company.12/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a public report finding: That the evidence presented at the public hearing in this case was insufficient to establish clearly and convincingly that Respondent's vote on September 15, 2010, inured to the special private gain or loss of the Alliance for Digital Equality, a principal by which Respondent was retained, in violation of section 112.3143(3)(a); and That the evidence presented at the public hearing in this case was insufficient to establish clearly and convincingly that Respondent cast votes on March 28, 2007, September 19, 2007, June 13, 2007, and June 18, 2008, in connection with matters that inured to the special private gain or loss of Honeywell, a principal by which Respondent was retained, in violation of section 112.3143(3)(a). DONE AND ENTERED this 27th day of November, 2012, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 2012.
The Issue Whether or not Petitioner's response to Respondent's RFP 90 PY is responsive so as to be eligible for an award of "Wagner-Peyser 10% funds."
Findings Of Fact Section 7(b)(2) of the Wagner-Peyser Act, 29 U.S.C. s. 49f. is a federal grant source which permits ten percent of the sums allotted by Congress to each state to be used to provide certain services and functions within the discretion of the governors of the respective states. Included among such services are job placement services for groups determined by the Governor of Florida to have special needs as set forth in Subsection 7(b)(2) of the Wagner- Peyser Act. Petitioner Goal Employment is a private-for-profit Florida corporation engaged in the business of finding gainful employment for offenders, i.e., those persons who have been convicted of a crime but who are now out of prison seeking employment. On January 26, 1990, the Respondent, Division of Labor, Employment and Training (LET) of the Florida Department of Labor and Employment Security (LES), published a request for proposals (RFP) soliciting competitive sealed proposals for job placement programs in accordance with Section 287.057(3) F.S. and the federal grant source, commonly referred to as "Wagner-Peyser 10% funds." The response date and time for this 1990 RFP, a/k/a RFP 90 PY, was 3:00 p.m., March 23, 1990. Petitioner, Goal Employment, filed a timely proposal with Respondent, but the agency found Goal Employment's proposal to be nonresponsive and notified Petitioner of this determination in a letter dated April 4, 1990. That letter set out the grounds of the Respondent agency's determination as follows: This nonresponsiveness is due to failure to have proposed program activities that are legal and allowable, i.e., private for profit entities are not eligible to apply for Wagner-Peyser 7(b) funds. Petitioner had 72 hours from that notification in which to protest. It has been stipulated that Goal Employment's proposal would have been found responsive but for the exclusion of private-for-profit organizations from eligibility. By letter dated April 9, 1990, Petitioner gave written notice of receipt of notification of nonresponsiveness on Saturday, April 7, 1990 "around 10:00 a.m." and of its intent to file formal written protest. Date and time of Respondent's receipt of this letter of intent are not clear, but Respondent has not asserted lack of timeliness. Interim negotiations failed, and on April 17, 1990 Petitioner timely filed a formal written protest, which was "fast-tracked" at the Division of Administrative Hearings, pursuant to Section 120.53(5) F.S. In the immediate past, the Respondent agency had, indeed, permitted contracting with private-for-profit organizations, and Petitioner corporation had been a successful bidder in Respondent's 1988 and 1989 letting of similar contracts. Therefore, Petitioner's principal and president, Ernest S. Urassa, was thoroughly familiar with how these types of contracts had been bid in the past. Mr. Urassa's familiarity with the earlier agency bid policy and procedure was also the result of his prior employment by the agency. The RFP for 1989 did not prohibit private-for- profit organizations from participating. Goal Employment's contract pursuant to that prior RFP had not been completed as of the date of formal hearing, and at all times material to the 1990 RFP which is at issue in this proceeding, Mr. Urassa and Goal Employment coordinated the 1989 contract's compliance through an agency contract manager, Dan Faughn. On November 8, 1989, before the final draft of the 1990 RFP was finalized, Mr. Faughn informed Mr. Urassa by telephone that for the next program year, that is for the 1990 RFP, the agency would no longer permit private-for-profit company participation in Wagner-Peyser contracting. In response to January 11, 1990 oral inquiries from Mr. Urassa, the Chief of Respondent's Bureau of Job Training, Shelton Kemp, sent Mr. Urassa a January 16, 1990 letter as follows: The program year 1990 Request for Proposals prohibits private-for-profit companies from participating in Wagner-Peyser 7(b) contracting. The Wagner-Peyser Act, Section 7(b)(2), allows the governor of each state to provide, "...services for groups with special needs, carried out pursuant to joint agreements between the employment service and the appropriate private industry council, and chief elected official or officials or other public agencies or private nonprofit organizations,..." [Emphasis supplied] Those involved in the agency RFP process had reached the foregoing position after receiving advice from their General Counsel who, in turn, had relied on legal advice from the Governor's legal staff. Roy Chilcote, Labor Employment and Training Specialist Supervisor in Respondent's Contract Section, participated in the draft of the 1990 Project Year Request for Proposal (RFP 90 PY) which is at issue in these proceedings. Prior to drafting the 1990 RFP, Mr. Chilcote was unable to locate any written issue papers or legal opinions interpreting the following language contained in the Wagner-Peyser legislation: ...the Governor of each such State to provide-- (2) services for groups with specific needs, carried out pursuant to joint agreements between the employment service and the appropriate private industry council and chief elected officials or other public agencies or private nonprofit organizations; [Emphasis supplied] Up until that time, the issue of whether private-for-profit organizations could compete had not resulted in any specific opinion from legal personnel, however it is fair to say that lay personnel of the agency, including Mr. Urassa, who had previously been employed there, had based agency policy and earlier RFP requirements on lay interpretations either of the foregoing statutory language or of the Job Training Partnership Act's (JTPA) pre-amendment language, and that the lay interpretations had always permitted private-for- profit organizations to bid for Wagner-Peyser 10% funds just as they had competed for JTPA funds. Upon his own review of the statutory language, Mr. Chilcote, also a layman, did not share his predecessor's opinion, and he requested legal advice from the agency's General Counsel, and, in turn, received the legal interpretation that private-for-profit organizations were ineligible. Mr. Chilcote received this legal advice in the fall of 1989, and he accordingly drafted the 1990 RFP to preclude private-for-profit entities as bidders for Wagner-Peyser funds. The actual language contained in the 1990 RFP published January 26, 1990, as found on page 2 thereof, is as follows: All governmental agencies and nongovernmental organizations (both for profit and not for profit entities) may apply for funds under the JTPA Title I Program. All governmental agencies and not for profit nongovernmental organizations (private for profit entities are not eligible) may apply for funds under the Wagner-Peyser 7(b) program. Documen- tation supporting the legal structure of the proposer must be on file with the Bureau of Job Training before any contract resulting from a response to the RFP can be executed. [Original emphasis] Under the next major heading of the 1990 RFP (page 5 thereof), all potential bidders, including Petitioner, were advised: The Bureau of Job Training conducts a two step proposal review process. The first step is a technical review to determine if a proposal is responsive to the requirements of the RFP and the second step is a programmatic review of the relative merit of that proposal. The following is a description of the specific criteria that the Bureau will use to determine the responsiveness of a proposal. Each of the criteria listed must be satisfactorily addressed for a proposal to be determined responsive. A proposal determined nonresponsive will be given no further consideration. The proposer will be notified in writing of the nonresponsive determination and the reason(s) for the determination. No exception will be made to these requirements. Although the "specific criteria" listed thereafter do not make reference to the ineligibility of for-profit organizations, that contract specification was clearly noted and emphasized under the preceding heading. See, Finding of Fact 14, supra. Before publication of the 1990 RFP, Mr. Chilcote circulated the draft within the agency for comments. It was at this point, November 8, 1989, approximately 10 weeks before the 1990 RFP was published, that Mr. Faughn orally notified Mr. Urassa of its contents, that Mr. Faughn and Mr. Urassa began inquiries concerning the reinterpretation, and that Mr. Faughn and Mr. Urassa commented unfavorably on the new draft RFP because it precluded private-for- profit bidders. See, Finding of Fact 9, supra. The agency's position allowing Wagner-Peyser 7(b) funding for private- for-profit organizations prior to Program Year 1990 was based in part upon its earlier layman's understanding of the Congressional intent underlying the language of Section 7(b)(2). See, Findings of Fact 12-13, supra. In 1990, the agency altered its position so as to begin excluding for-profit organizations from eligibility for Wagner-Peyser money solely due to its reinterpretation of the statute by legal counsel. This reinterpretation was applied to prohibit the agency from contracting for the delivery of services with all private-for-profit organizations and has not been formally adopted as a rule pursuant to Section 120.54 F.S. Petitioner has been aware of this reinterpretation since November 8, 1989 (actual oral notice), was notified of it in writing on January 16, 1990 (Shelton Kemp's letter), and was again notified of it in writing on January 26, 1990 (1990 RFP publication). Petitioner did not file a formal rule challenge directly with the Division of Administrative Hearings. Prior to the March 3, 1990 bid/proposal deadline, the agency held three RFP workshops: February 20, 22, and 23, 1990. At no time during this process was Petitioner led to believe that private-for-profit entities were to compete for the 1990 RFP. Nonetheless, Petitioner, a private-for-profit entity, submitted its proposal timely before the March 23, 1990 bid closing and was rejected as nonresponsive. It thereafter proceeded solely with a bid protest. See, Findings of Fact 3, 4, and 5, supra.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Labor and Employment Security enter a final order ratifying its previous decision that the Respondent's 1990 bid/proposal is nonresponsive. DONE and ENTERED this 29th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2667BID The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-2, 15 Accepted. Accepted except for what is unnecessary. Accepted except for what is subordinate or cumulative. 5-6 Subordinate and cumulative. 7-10, 19 Accepted. 11-14, 16, 18 Rejected as mere legal argument. 17 Rejected as subordinate. Respondent's PFOF: 1-5 Rejected as mere legal argument. Accepted. COPIES FURNISHED: Thomas W. Brooks, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32301 David J. Busch, Esquire Department of Labor and Employment Security Suite 131, The Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, General Counsel Department of Labor and Employment Security The Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-0657 =================================================================
The Issue Case No. 97-3049 Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes? Did Respondent perform the services of a private investigator during the period of January 1, 1997 through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes? Case No. 97-3096 Did Respondent conduct business as a private investigative agency during the period of January 1, 1997, through April 7, 1997, without a Class “A” Private Investigative Agency License in violation of Section 493.6118(1)(g), Florida Statutes? Did Respondent perform the services of a private investigator during the period of January 1, 1997, through April 7, 1997, without a Class “C” Private Investigator License in violation of Section 493.6118(1)(g), Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of investigating and enforcing the provisions of Chapter 493, Florida Statutes. Case Number 97-3049 Respondent Dormal Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding. Respondent Dormal Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding. During the period of January 1, 1997, to April 7, 1997, Respondent Dormal Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Geoffrey A. Foster, attorney-at-law and for Dwight M. Wells or Deborah Wells (Wells), attorneys at law. While performing private investigations for Foster and Wells during the period of January 1, 1997 to April 7, 1997, Respondent Dormal Cavilee was under contract and was not solely and exclusively employed by Foster or by Wells. Additionally, an employer-employee relationship did not exist between Foster or Wells and Respondent Dormal Cavilee in that neither Foster nor Wells deducted federal income tax or social security tax, or furnished any health or retirement benefits to Respondent Dormal Cavilee. Case Number 97-3096 Respondent Mary Cavilee was not licensed as a private investigator in the State of Florida and did not possess a State of Florida Class “C” Private Investigator license at any time material to this proceeding. Respondent Mary Cavilee was not licensed as a private investigative agency in the State of Florida and did not possess a State of Florida Class “A” Private Investigative Agency license at any time material to this proceeding. During the period of January 1, 1997, to April 7, 1997, Respondent Mary Cavilee performed private investigations, as defined in Section 493.6101(17), Florida Statutes, for Dwight M. Wells or Deborah Wells (Wells), attorneys at law. While performing private investigations for Wells during the period January 1, 1997, to April 7, 1997, Respondent Mary Cavilee was under contract and was not solely and exclusively employed by Wells. Additionally, an employer-employee relationship did not exist between Wells and Respondent Mary Cavilee in that Wells did not deduct federal income tax or social security tax, or furnish any health or retirement benefits to Respondent Mary Cavilee. Case Numbers 97-3049 and 97-3096 A billing statement from Respondent Dormal Cavilee and Respondent Mary Cavilee dated March 1, 1997, to Dwight M. Wells, shows the date of investigation, the person performing the investigation (either Dormal Cavilee or Mary Cavilee), the amount of time involved in performing the investigation, the hourly rate and the total amount charged. The billing statement shows that the investigations are related to the defense of Grady Wilson in Case Number CF93-5094-A1XX, a criminal case in Polk County, Florida. Nothing on the billing statement indicates that it is a statement for private investigations furnished by a private investigative agency referred to as Criminal Defense Investigations. The Motion for Payment of Costs filed by Dwight M. Bell in Case Number CF93-5094-A1XX provides in pertinent part: That the following expense was incurred during the investigation, discovery process, pre-trial preparation and trial of this cause: Criminal Defense Investigations $2,500.00 Both the Order Approving Additional Funds for Investigation Costs dated March 3, 1997, and the Order Approving Motion for Payment of Costs refer to the payments as payment for investigations performed by criminal defense investigations. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee advertised as providing, or engaged in the business of furnishing private investigations, notwithstanding language in the motion and orders referred to above which was apparently referring to the type of services being performed rather than private investigations being furnished by a private investigative agency. On April 7, 1997, a Cease and Desist Order was issued to both Respondent Dormal Cavilee and Respondent Mary Cavilee. The record indicates that both Respondent Dormal Cavilee and Respondent Mary Cavilee honored the Cease and Desist Order and cease performing any private investigations other than in an employer-employee relationship with Wells. Chapter 493, Florida Statutes, did not apply to such activity. See Section 493.6102, Florida Statutes. Neither Respondent Dormal Cavilee nor Respondent Mary Cavilee attempted to “cover-up” any of their activities when questioned by the investigator for the Department. Respondents knew or should have known that their activity in regards to investigations for Foster and Wells required that they be licensed under Chapter 493, Florida Statutes. However, there appeared to be some confusion on the part of the Respondents as to whether their relationship with the defense attorneys required that they be licensed under Chapter 493, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and review of Rule 1C-3.113, Florida Administrative Code, concerning disciplinary guidelines, range of penalties, and aggravating and mitigating circumstances, it is recommended that the Department in Case Number 97-3049 enter a final order: (a) dismissing Counts I, II, and IV of the Administrative Complaint; (b) finding Respondent Dormal Cavilee guilty of the violations charged in Count III and V of the Administrative Complaint, assess an administrative fine in the amount of $300.00 for each count for a total of $600.00. It is further recommended that the Department in Case Number 97-3096 enter a final order dismissing Counts I and III of the Administrative Complaint; and finding Respondent Mary Cavilee guilty of the violations charged in Count II of the Administrative Complaint, assess an administrative fine in the amount of $300.00. DONE AND ENTERED this 2nd day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1998. COPIES FURNISHED: Hon. Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel The Capitol, Plaza Level-02 Tallahassee, Florida 32399-0250 Kristi Reid Bronson, Esquire Department of State, Division of Licensing The Capital, Mail Station Four Tallahassee, Florida 32399-0250 Dormal Dean Cavilee 1900 Queens Terrace Southwest Winter Haven, Florida 33880 Mary Louise Cavilee 2768 Janie Trail Auburndale, Florida 33823
