The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint issued August 25, 2000, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating insurance licenses and appointments pursuant to Chapter 626, Florida Statutes. At all times material to the allegations in this case, the Respondent has been licensed as a Life Health and Annuity Agent, Life Health and Variable Annuity Agent, and a Health Insurance Agent in this state. On March 7, 1982, the Respondent was celebrating her birthday, she turned 22 that day, and was returning home with her husband when the vehicle they were in was stopped for a minor traffic infraction (expired tag). Believing he had to perform a "pat down" for his safety, the officer felt the Respondent's purse and noticed a bulge in the shape of a small weapon. The small hand gun had been a birthday present to the Respondent. Upon discovering the weapon, the officer charged the Respondent with carrying a concealed firearm. Initially the Respondent entered a written plea of not guilty but subsequently changed the plea in open court to one of nolo contendere. In connection with the plea change, the court entered an Order Granting Probation and Fixing Terms Thereof. The fact that the Respondent was placed on probation is not disputed. Further, as the Court determined the Respondent was not likely to again engage in a criminal course of conduct, adjudication was withheld and probation set for a period of one year. The Respondent successfully completed that year of probation and has had no further incidents of criminal misconduct. The Respondent erroneously believed that the successful completion of the probationary period, and the fact that adjudication had been withheld, resulted in the expungement of the criminal record. As the Respondent later found out, criminal records are not automatically sealed or expunged. On November 2, 1999, the Respondent filed an application for licensure as a life health and variable annuity agent with the Petitioner. That application contained two questions dealing with the applicant's past criminal history. As to both questions, the Respondent erroneously entered "no" responses. Had the Respondent entered accurate answers, both responses would have been "yes" based upon the status of the Respondent's criminal record at the time the application was submitted to the Petitioner. The Respondent has a medical condition that she claims has damaged her long term-memory. According to the Respondent, she answered the questions as she did because she did not remember all the facts surrounding the criminal history at the time the application was completed but that, even if she had, she would have assumed the matter was sealed and fully resolved since adjudication was withheld. The Respondent's account in this regard has been deemed credible. The Respondent did not intend to mislead the Petitioner and acted more in ignorance of the law as to the prior arrest and probation than in willful disregard of her responsibility to disclose it. At the time Respondent completed her application for licensure she read the paragraph that appears at the bottom of the third page of said application in bold typeface that states: IT IS IMPORTANT THAT YOU HAVE READ ALL OF THE FOREGOING QUESTIONS CAREFULLY AND HAVE ANSWERED THEM FULLY. THIS IS ESPECIALLY IMPORTANT AS IT RELATES TO AN APPLICANT'S LAW ENFORCEMENT RECORDS. THE DEPARTMENT DEEMS ALL MATTERS THAT ARE PART OF AN APPLICANT'S LAW ENFORCEMENT RECORDS TO BE A SIGNIFICANT AND MATERIAL ELEMENT OF THE APPLICATION, THE OMISSION OF ANY PART OF THE LAW ENFORCEMENT RECORD IS A MATERIAL MISREPRESENTATION OR MATERIAL MISSTATEMENT IN AND OF ITSELF. YOUR FAILURE TO DIVULGE YOUR COMPLETE LAW ENFORCEMENT RECORD ON THIS APPLICATION CAN RESULT IN YOUR APPLICATION BEING DENIED. In addition to the foregoing, the application submitted by the Respondent provided the following statement: Under penalty of perjury, I declare that I have read the foregoing application for license and the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of The Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s). The answers provided by the Respondent to the two questions (application questions numbered 18 and 19) were incorrect, misleading, and were presumably used to support the issuance of the Respondent's licenses. Although the Respondent is eligible to have her criminal record sealed or expunged, as of the date of the hearing she had not completed that process. During the investigation of this matter, the Respondent fully cooperated with the Petitioner and obtained copies of documents as requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance impose an administrative fine against the Respondent in an amount sufficient to cover the costs of prosecuting this case. DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida. ________________________________ J. D. PARRISH 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 1st day of May, 2001. COPIES FURNISHED: Richard J. Santurri, Esquire Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph H. Fernandez, Esquire The Law Offices of Brand & Fernandez, P.A. 2 Northeast 40th Street Suite 403 Miami, Florida 33137 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In 1980 or 1981, records of a criminal charge involving the petitioner Stephanie D. Grooms were ordered sealed. The attorney representing petitioner in that proceeding was Abe Rigau, now deceased. In late July of 198G, petitioner was charged by a two- count information with the crime of issuing worthless checks. She entered a plea of guilty to the charges and the County Courts in and for Hillsborough County withheld adjudication of guilt and imposed a fine of $35 on August 25, 1982. In the Fall of 1984, petitioner was a candidate for the Office of County Commission of Hillsborough County. During the campaign, a newspaper reporter contacted the petitioner in reference to a criminal charge involving worthless checks. Concerned about the election and the implications a criminal charge would have upon her political aspirations, petitioner telephoned Roger Rigau, an attorney and the son of deceased Abe Rigau, for advice. Roger Rigau recalls that petitioner telephoned his office between September and November of 1984. It was Mr. Rigau's impression that petitioner contacted him because she was concerned that information concerning her previous charges could be politically embarrassing, that she was under the impression that the record had been previously sealed by his father, Abe Rigau, and that she was confused as to how a reporter could have obtained information regarding the prior criminal record which had been sealed. At all times, it was the understanding of Roger Rigau that petitioner was referring to the case which his father had handled for her. He was not aware of any new charges beyond those which were the subject of the record sealed in 1980 or 1981. Roger Rigau expressed surprise to petitioner that a member of the press would be able to obtain information regarding a sealed record. His office file contained paper work indicating that petitioner's record had been sealed by Abe Rigau. Roger Rigau was concerned that something was incorrect, either as a result of his father's error or a court clerk's office error. He told petitioner that he would check into the matter, did so and learned that the case his father had handled had indeed been sealed in 1980 or 1981. He so advised petitioner and also advised her that when a record is sealed, she need not relate to anyone that she had been arrested for or convicted of a crime. Sometime after petitioner submitted her application for licensure as a mortgage solicitor in April of 1985, she again contacted Roger Rigau regarding sealed criminal charges. Roger Rigau again advised petitioner that when records are sealed or expunged, one may properly refuse to acknowledge or may deny the fact that one has been charged with or arrested for a crime. Roger Rigau is knowledgeable about the law concerning the sealing and/or expunction of criminal records. Had he understood that petitioner was, either in 1984 or 1985, ever inquiring about her 1982 charges or record, he would have advised her that it is legally impossible to have more than one criminal record sealed. As noted above, Roger Rigau never had any knowledge concerning the 1982 worthless check charges and his advice to petitioner was, at all times, with reference to her 1980 sealed record. Petitioner has a different recollection of her ., conversations with Roger Rigau. She remembers contacting Roger Rigau in 1984 around election time after a news reporter called her regarding some criminal charges. She states that she asked him if the 1982 charges and record could be expunged and that he replied that he would check into the matter. Sometime thereafter, she called his office and a secretary from his office, not identified or called as a witness in this proceeding, led petitioner to believe that the matter had been taken care of. In March of 1985, petitioner went to work for Cameron- Brown, Co. In April of 1985, she filled out an application to the Comptroller's Office for registration as a mortgage solicitor. The application form requires answers to 18 questions and the signature of the applicant in affirmation under penalty of perjury that the answers provided are true and correct. Question 5 of the application states: "Have you ever been arrested, or indicted for a crime?" Petitioner answered this question "NO." Petitioner recalls that, prior to submitting her application, she telephoned Roger Rigau or a secretary in his office, inquired as to how she should answer question 5 on the application and was advised that since her record had been sealed, she could fail to acknowledge or deny any charges which had been sealed. Petitioner recalls making the following statement to Roger Rigau: "My worthless check charges that your dad had expunged and that you had taken care of for me, can I legally put down there "no," or how can I answer that?" Roger Rigau does not specifically recall talking to petitioner prior to the time she submitted her application, but does recall talking to her either during the time of the respondent's investigation or after petitioner received notice of the respondent's intent to deny her application. In any event, he gave her the same advice he had given her in 1984 -- that she need not acknowledge and may deny a sealed criminal charge. Again, he was not aware that petitioner was involved in any criminal charges beyond that 0th which his father was involved in 1980 or 1981. After the submittal of the petitioner's application, respondent's financial examiner/analyst, Jana Synatschk. conducted a routine investigation, which included a review of Court files. It was discovered that petitioner was the subject of two criminal actions - one in 1980 and one in 1982. The 1980 file was sealed, but the 1982 file was open for review. Ms. Synatschk telephoned petitioner on May 30, 1985, told her she had found two cases against a Stephanie Grooms for worthless check writing and asked petitioner if she was aware of this. Petitioner responded that she had no knowledge of such charges, and Ms. Synatschk required petitioner to submit an affidavit to that effect. After reviewing the notarized affidavit stating "I, Stephanie Grooms, have no knowledge of a record on a check charge mentioned by Jana Synatschk," Ms. Synatschk determined that the social security numbers, driver's license numbers and birth dates of the person involved in the 1982 worthless check charges and the petitioner/applicant were identical. She thereupon turned the case over to her supervisor, Arthur M. James. Petitioner recalls speaking with Roger Rigau prior to submitting the affidavit to the respondent and again receiving the advice that she could properly deny a sealed criminal charge. Mr. Rigau does not recall speaking to the petitioner about the affidavit she was required to submit during the application process. He does recall that petitioner requested him to sign an affidavit after she received notice that her application had been denied. Supervisor Art James telephoned petitioner on June 20, 1985, and asked her specific questions relating to the 1982 criminal charges. After denying that she had written the bad checks, Mr. James told her that the signatures on the checks appeared to be similar to her signatures on the affidavit and on her application. He invited her to come to his office to discuss the matter. She responded that her attorney would get in touch with him. Mr. James waited three or four days and, when he did not hear from petitioner's attorney, the petitioner's file was forwarded to Tallahassee. On July 22 1985, the respondent denied petitioner's application for a mortgage solicitor's license based upon her lack of integrity, truthfulness and honesty as evidenced by her false statement in response to Question 5 on the application. On or about the time of the respondent's denial order, but prior to petitioner's knowledge of the denial, petitioner telephoned the respondent's Tallahassee office to inquire about the status of her application. Joseph Ehrlich, the Assistant Director for the respondent's Division of Finance, informed petitioner that her application was being investigated and asked her about her arrest record. Petitioner denied any such record. It was not until after the respondent's order of denial dated July 22, 1985, that she explained to respondent's personnel that she denied the 1982 worthless check charges because she thought that case had been sealed or expunged and that she accordingly had a legal right to deny all charges in connection with that case.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of Stephanie D. Grooms for licensure as a mortgage solicitor be DENIED. Respectfully submitted and entered this 8th day of January, 1986, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1986. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol Tallahassee, Florida 32301 Dick Greco, Jr., Esquire Molloy, James & Greco, P.A. Suite 910 501 East Kennedy Blvd. Tampa, Florida 33602 Wendy M. Mitchler, Esquire Greg Cummings, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 APPENDIX The proposed findings of fact submitted by the petitioner and the respondent have been accepted and/or incorporated in this Recommended Order, except as noted, below. Petitioner 2 - 3. Rejected to the extent that it implies that petitioner informed Mr. Rigau that she was referring to the 1982 charges. 3. Last sentence rejected as irrelevant and immaterial. 10. . First sentence rejected as to the time petitioner consulted with Mr. Rigau or his office not supported by competent substantial evidence. 15. Rejected, not supported by competent, substantial evidence. 17. Rejected, not supported by competent, substantial evidence. Respondent 13. Rejected, not relevant or dispositive of any issue in this proceeding. 15. Last sentence rejected, not relevant or dispositive of any issue in this proceeding.
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
The Issue The issue in this case is whether petitioner's application for contractor qualification should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: On or about June 21, 1995, petitioner, E. Smalis Painting Company, Inc., filed its application for contractor qualification with respondent, Department of Transportation (DOT). If approved by DOT, the qualification would enable petitioner to bid for the performance of road, bridge, or public transportation construction contracts in excess of $250,000.00. In the footnote section of the financial statements attached to the application, petitioner's certified public accountant listed the following "Contingencies": The Company was cited by the Occupational Safety & Health Administration (OSHA) for over 200 instances of violations with a penalty of $5,200,000. The penalty was large because OSHA classified most violations as "Willful." The citations have been contested to the Occupational Safety & Health Review Commission (OSHRC) and the Company is await-ing a decision. The Company has contended that it has not willfully violated any OSHA standards and that many of the violations were based on incorrect sampling or incorrect facts. If the willful classification is eliminated by the judge and many of the violations elimin- ated, the penalty could be reduced to less than $300,000. The Company is very hopeful that the judge's decision will be favorable and the penalty reduced to less than $100,000. After being filed with DOT, the application was sent to DOT's contracts administration office (office), which has the responsibility of reviewing all such applications. That office noted the large contingencies ($5.2 million) and became concerned with the financial capability of the applicant if the contingencies materialized. This concern was valid since the law (s. 337.14(3), F.S.) requires that an applicant possess "the necessary financial resources to perform the desired work." Since the OSHA citations referred to in the financial statements were not attached to the application, the office made a determination that the application was "incomplete," and so advised petitioner by letter sent by fascimile on July 14, 1995. The letter asked that petitioner "provide copies of the OSHA citations . . . by August 2, 1995 so that Department (can) complete the processing of your company's application for qualification." When petitioner did not respond to this request, on August 3, 1995, DOT again requested by certified mail, return receipt requested, that petitioner "provide copies of the OSHA citations." This letter further advised petitioner that such information must be filed with DOT "within ten days of your receipt of this letter." The evidence shows the letter was received by petitioner on August 7, 1995. This meant petitioner had to respond to the second inquiry by August 17, 1995. When a response was not filed by the due date, on August 23, 1995, DOT issued its notice of intent to deny the application on the ground petitioner had submitted an incomplete application and had failed to respond to DOT's requests for additional information. That notice prompted petitioner to initiate this proceeding. At hearing, petitioner stipulated that it received both letters from DOT and did not respond to DOT's requests for additional information before the established due date. In addition, petitioner made no request for an extension of time in which to comply with the request. It contended, however, that the information requested by DOT was irrelevant to a determination on whether it was qualified and was not the type of information typically required from other applicants. It argues, then, that the application was "complete" as originally filed. Through uncontradicted testimony DOT established that its request for copies of citations was relevant to a determination of whether petitioner possessed the necessary financial ability to work on state projects. Respondent further established that such information would always be required in cases where the applicant disclosed such a potential liability. Therefore, once DOT became aware of the potential penalties through an examination of the financial statements, it had the authority and discretion to request copies of the citations. Therefore, the application was not complete by the August 17, 1995 due date, and petitioner's incomplete application was properly denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a final order denying petitioner's application for contractor qualification. DONE AND ENTERED this 23rd day of February 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 23rd day of February 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5904 Petitioner's proposed findings have been adopted in substance, albeit in substantially altered form. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Attn: Diedre Grubbs, Agency Clerk Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Mr. Ernest Smalis, President E. Smalis Painting Company, Inc. 4037 Liberty Avenue Pittsburg, Pennsylvania 15224 Murray M. Wadsworth, Jr., Esquire Department of Transportation Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue Whether Respondent violated section 70-54, Pinellas County Code, which prohibits retaliation against a person who has opposed a discriminatory employment practice, by terminating the Petitioner's employment, and, if so, the appropriate penalty.
Findings Of Fact Ms. Menz was hired by Dr. Weisel as a receptionist for his dental office located in Tarpon Springs, Pinellas County, Florida, on October 6, 2007. Ms. Menz's job responsibilities included answering the phone, checking patients in and out of the office, collecting co-payments, and entering treatment plans in the record. According to Dr. Weisel, Ms. Menz was a good employee because she was eager to learn, and she was very people orientated. Respondent is a professional association located in Tarpon Springs, Pinellas County, Florida. Respondent employees less than 15 employees and is in the business of providing dentistry services. Respondent is subject to the Pinellas County Code concerning human relations. In June 2008, Dr. Weisel sold his Tarpon Springs dental practice to Dr. Kontos. Dr. Kontos had graduated from dental school in May 2007 and had worked for another dentist office. By January 2008, Dr. Kontos wanted to purchase a dental practice in his hometown, Tarpon Springs. When Dr. Kontos purchased the practice from Dr. Weisel, Dr. Kontos had no experience in owning a business or managing employees. According to Dr. Kontos, he decided to keep all of Dr. Weisel's employees for continuity. Dr. Kontos described Ms. Menz's job duties as opening the practice in the morning, "in-putting insurance," collecting co-payments, and "doing treatment plans." By July 2008, Dr. Kontos had promoted one of the dental assistants, Daniel Mauzerolle (Mr. Mauzerolle), to office manager. During the time that Mr. Mauzerolle worked for Dr. Kontos, they became friends and would socialize together. Ms. Menz testified that she had complained to Dr. Kontos in the past about Mr. Mauzerolle about issues from work. Ms. Sholtes, a former dental hygienist for Dr. Kontos, also testified on Ms. Menz's behalf. She testified that Ms. Menz was a good employee and courteous to patients. By November 2008, Dr. Kontos hired Ms. Marchese to collect aging insurance claims and account receivables, as well as review his office procedures. According to Dr. Kontos, the dental practice had a "phenomenal" amount of outstanding insurance claims, in excess of $20,000.00, which had been denied. Ms. Marchese had worked in the dental field since 1991 and was familiar with software systems used to run dental offices. Further, she was familiar with the submission of insurance forms for dental reimbursement. On May 11, 2009, Ms. Menz opened the office at 7:00 a.m. As she turned on her computer, Ms. Menz noticed the internet web history showed that someone had used her computer the night before. Ms. Menz found that one site had been visited 28 times. Upon visiting the site, Ms. Menz found that the website contained pornographic images. Further, because Mr. Mauzerolle was the only person that worked in the evening in the office, Ms. Menz assumed that Mr. Mauzerolle was the person who had accessed the pornographic site. Ms. Menz credibly testified that she informed Dr. Kontos and told him that Mr. Mauzerolle's actions were unacceptable to her. Ms. Menz credibly testified that she told Dr. Kontos that she could not work under the conditions that she considered to be a hostile workplace environment. Dr. Kontos informed Ms. Menz that he would "take care of it." Dr. Kontos credibly testified that Mr. Mauzerolle, in addition to being the office manager, was his friend and that he was not happy with Ms. Menz reporting the issues concerning the pornography in his office. Two days later, on May 13, 2009, Dr. Kontos terminated Ms. Menz's employment. Ms. Menz credibly testified that at the time of her termination, Dr. Kontos did not provide her a reason for her termination, only stating "nothing personal, but I'm going to have to let you go." Dr. Kontos testified that he had already decided to terminate Ms. Menz's employment before May 11, 2009, when Ms. Menz complained about the pornography. According to Dr. Kontos, Ms. Marchese had informed him since the end of 2008 about errors that Ms. Menz had been making at work that cost the dental practice money. Dr. Kontos indicated that Ms. Menz made errors such as failing to collect co-payments or collecting improper co-payments and failing to fill out the insurance forms correctly. The result was that insurance claims would be denied and the dental office would lose money. According to Dr. Kontos and Ms. Marchese, on or before April 8, 2009, Ms. Menz made an error that almost cost the dental practice $2,000.00. The alleged error involved putting the wrong information concerning an insurance plan for a patient. Based on this error, Dr. Kontos testified that he made a decision with Mr. Mauzerolle and Ms. Marchese to place an advertisement for a receptionist with Craigslist to replace Ms. Menz. Later that day, Mr. Mauzerolle placed the advertisement with Craigslist. On April 9, 2009, potential job applicants began calling Dr. Kontos' office about the receptionist position. Ms. Menz took the phone messages from the applicants, including Ms. Kristen Chase. Ms. Menz credibly testified that based on phone calls that she asked Dr. Kontos about the job advertisement and whether or not she was doing a good job. Ms. Menz credibly testified that Dr. Kontos stated that she was doing a good job and not to worry about the advertisement. Further, Ms. Menz credibly testified that she asked Ms. Marchese about the advertisement. Ms. Menz testified that Ms. Marchese stated that Dr. Kontos was seeking to replace Christina Benzel (Ms. Benzel), a co-worker who worked the front desk with Ms. Menz. Ms. Menz believed Ms. Marchese because Ms. Menz had observed that Ms. Benzel's job responsibilities had been reduced. According to Dr. Kontos, sometime at the beginning of May 2009, he and Mr. Mauzerolle interviewed Ms. Chase for the receptionist job. According to Dr. Kontos, he offered Ms. Chase the job after the interview, and he had decided to replace Ms. Menz. Dr. Kontos's testimony on the point that he offered Ms. Chase the job in early May and had decided to replace Ms. Menz is not credible. Ms. Chase credibly testified that she did not receive the job offer from Dr. Kontos at the interview in early May. Further, Ms. Chase credibly testified that, because she did not hear anything from Dr. Kontos, she had assumed that she had not gotten the job. Further, Ms. Chase credibly testified that she was offered the job on May 14, 2009. Dr. Kontos testified that he had decided to terminate Ms. Menz on April 8, 2009, but that he did not tell her before May 13, 2009, because he "had to build up the nerve to do it." He testified that he felt bad having to terminate her and that he let her go because she made too many mistakes. For support concerning the number of errors made by Ms. Menz, Respondent offered the testimony of Ms. Marchese and numerous exhibits. Ms. Marchese testified that because of the number of errors occurring in the office that she moved her work space to be next to Ms. Menz. According to Ms. Marchese, she was monitoring Ms. Menz and providing "one-on-one training." Further, Ms. Marchese offered testimony that each day she would conduct an "audit trail" of the office and bring errors to Dr. Kontos's attention daily. Ms. Marchese testified that Ms. Menz failed to collect co-payments; entered insurance information incorrectly, resulting in insurance reimbursements being denied; failed to provide adequate information to support insurance billings; and gave patients incorrect estimates on the amount that the patient would owe for different treatments based on the patient's insurance plan. Ms. Marchese testified that she estimated that Ms. Menz had cost the dental office approximately $100,000.00 in lost revenue and made 90 percent of the office errors. Ms. Marchese identified a number of exhibits that supported Respondent's claim that Ms. Menz was terminated for numerous errors. Ms. Marchese further testified that in March 2009 that she told Dr. Kontos and Mr. Mauzerolle that Ms. Menz was "untrainable" and that she should be terminated. According to Ms. Marchese, in April 2009, she discussed with Dr. Kontos and Mr. Mauzerolle the error that nearly cost the practice $2,000.00 and the decision to advertise for the new receptionist. After the advertisement was taken out in Craigslist for the new receptionist, Ms. Marchese remembered being asked by Ms. Menz about the advertisement and about whether or not Dr. Kontos was seeking to replace her. Ms. Marchese testified that she told Ms. Menz that she did not know if Dr. Kontos was seeking to replace her. Ms. Marchese denied telling Ms. Menz that Dr. Kontos was seeking to replace Ms. Benzel. Ms. Marchese, however, admitted that Dr. Kontos had been unhappy with Ms. Benzel based on her internet usage at the office. Ms. Marchese testified that she informed Dr. Kontos about each of these errors daily and testified about a group of exhibits. A review of the exhibits identified by Ms. Marchese, Exhibits 25, 27, 29, 30, 31, 34, 35, 36, 41, and 44 shows that the documents are dated December 18 and 21, 2009. When questioned about the dates on the exhibits, Ms. Marchese testified that these exhibits were documentation from the "daily sheets" and that she had "minimized the amount of discovery." Also, she explained that the documents were "printed to condense the information into one page instead of, for instance, on exhibit 25, it would have been over 30 pages." Further, she testified that she had added the notes explaining Ms. Menz's errors to the sheets on or after December 18, 2009. The "daily sheets" were not admitted into evidence. At best, the offered exhibits may be considered summaries. Even considering the documents, the record shows that the offered exhibits show that the documents were compiled to support Ms. Menz's termination after May 13, 2009, and in response to the investigation by Pinellas County. Thus, the exhibits carry little weight in the consideration. Similarly, Exhibits 10, 11, 18, 23, and 24 are all dated after Ms. Menz's termination date of May 13, 2009. A review of Exhibit 10 shows a "Single Patient Ledger" printed up on September 8, 2009. Based on Ms. Marchese's testimony, the document shows that on April 8, 2009, the patient received two dental procedures that cost $1,050.00. According to Ms. Marchese, the patient was told to pay $215.00 for two treatments. Presumably, the balance of the dental bill would be paid by insurance. However, Ms. Marchese testified that the patient did not have dental coverage for the two procedures. Consequently, the dental office lost money on the two procedures because the patient refused to pay, and there was no insurance to bill. Although the testimony shows this event occurred before the termination, the "Single Payer Ledger" is dated after the termination. Further, a hand-written notation from the patient's chart, which is part of Exhibit 10, stating that "Valerie dropped the ball on the correct fee twice" is dated May 14, 2009, the day after her termination. Similarly, a review of Exhibits 23 and 24 shows that they are insurance claims that were denied before May 13, 2009. Ms. Marchese testified that Dr. Kontos was aware of these errors. However, Exhibits 23 and 24 only show that insurance claims were re- submitted after the date of Ms. Menz's termination. The exhibits do not support the finding that the claims were denied because of Ms. Menz or that these errors were considered before terminating her employment. These exhibits were prepared after the termination as a justification for the action as opposed to contemporaneous proof of Ms. Menz's performance. In contrast to the above listed exhibits, Exhibits 6, 7, 8, and 9 are examples of errors and notes that were documented before Ms. Menz's termination. A review of these exhibits shows that the complained of errors occurred on January 22, 2009; February 3, 2009; March 2, 2009; and April 27, 2009. Respondent also offered the testimony of other employees from the dental office. Ms. Little, a dental hygienist, testified that she was aware that Ms. Menz made errors in entering codes for different treatment plans. She had spoken to Ms. Menz about the error, and Ms. Menz indicated that she would try to correct the problem. According to Ms. Little, the errors continued, but were not as bad. Finally, Ms. Little testified that Ms. Marchese was responsible for insurance claims with the office. Similarly, Ms. O'Leary, a dental hygienist, testified that she knew that Ms. Menz had some issues with insurance, but that she had a good working relationship with Ms. Menz. Ms. Menz candidly admitted that she made mistakes at her work and credibly testified that she was never told of the many errors that Respondent was claiming she had made or that she had cost Respondent money. Dr. Kontos admitted that that he did not individually counsel Ms. Menz about her errors. Rather than counsel individual employees, Dr. Kontos testified that it was his practice to speak to his employees as a group about errors because he wanted to avoid similar errors. Ms. Menz testified that she earned $10.75 an hour and that she had been out of work for 87 weeks. Ms. Menz agreed with her counsel's question that her calculated damages were $37,410.00. The record also shows that Ms. Menz filed for unemployment compensation, but was unclear about whether or not she received any compensation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent violated section 70-54, Pinellas County Code. Ordering Respondent to pay Ms. Menz the sum of $37,410.00 and interest at the prevailing statutory rate; and Ordering Respondent to pay Ms. Menz reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 12th day of May, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 12th day of May, 2011. COPIES FURNISHED: William C. Faulkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Jeremy W. Rodgers, Esquire Spector Gadon and Rosen, LLP 390 Central Avenue, Suite 1550 St. Petersburg, Florida 33701 Matthew K. Fenton, Esquire Wenzel, Fenton, and Cabassa, P.A. 1110 North Florida Avenue, Suite 300 Tampa, Florida 33602 Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Peter J. Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756
The Issue The issue is whether Petitioners, Judith C. Cleary and Charles B. Houck (Petitioners or Ms. Cleary and Mr. Houck), are entitled to an award of attorney's fees against Respondent, Department of Financial Services (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).1/
Findings Of Fact The underlying proceedings were initiated by Respondent on February 22, 2010, by the issuance of substantively identical Administrative Complaints against Petitioners. Petitioners timely requested administrative hearings to contest the charges against them, and the cases were forwarded to the Division of Administrative Hearings where they were consolidated for hearing. Count 1 of each Administrative Complaint charged Petitioners with willfully misrepresenting and or omitting material information in order to induce Mr. and Mrs. Nagle to cash in another annuity they held in order to purchase an annuity sold by Petitioners. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when in fact there would be a 15 percent surrender charge; falsely representing that the annuity would earn the Nagles ten to 20 percent returns; and (3) misrepresenting the suitability of the Nagles to purchase the annuity by misrepresenting the Nagles' net worth and by misrepresenting the Nagles' investment objective as long-term, in a form Petitioners submitted to the insurance company issuing the annuity. Count 2 of each Administrative Complaint charged Petitioners with similar conduct in order to induce the Nagles' son, Robert, to purchase an annuity. Included in the alleged misrepresentations or material omissions were: misrepresenting that there would be no surrender charges to withdraw the entire amount of the new annuity after one year, when, in fact, there would be a 15 percent surrender charge; and falsely representing that the annuity would earn Robert Nagle ten to 20 percent annual returns. Petitioners do not dispute that if the allegations charged in the Administrative Complaint had been proven by clear and convincing evidence, then Respondent would have established the statutory violations alleged as the predicate for taking disciplinary action against Petitioners' insurance agent licenses. Petitioners also acknowledge that Respondent initiated the disciplinary actions against them on the basis of two complaint letters received by Mrs. Phyllis Nagle, the attestation of Mrs. Nagle to the material allegations in an affidavit, and a corroborating complaint letter by Mrs. Nagle's son, Robert Nagle. After a full evidentiary hearing, a Recommended Order issued in the underlying disciplinary actions determined that the more credible evidence failed to establish the allegations in the Administrative Complaints. In particular, the undersigned weighed the credibility of testimony by Robert Nagle and by Petitioners at the final hearing, as well as deposition testimony by both Mr. and Mrs. Nagle. The question posed in this case, however, is not whether credibility judgments caused the Department to ultimately not prevail in its charges against Petitioners. Instead, the question here is whether Respondent had a reasonable basis, in law and in fact, at the time it initiated the underlying disciplinary actions. In this regard, Petitioners contend that the Department's investigation file contained documents from the insurance company issuing the annuities that contradict the allegations in the Administrative Complaints. Petitioners point to three documents in particular. The first document was a customer survey response submitted by Mrs. Nagle to the insurance company after she purchased the annuity from Petitioners. Her completion of the survey form indicated that she knew that "[s]urrender charges are imposed on premature full withdrawal"; that she considered the "annuity to be a long-term investment"; that she did "not intend to use these funds to meet current expenses"; and that Petitioners reviewed her "financial status . . . and other pertinent information to determine whether this annuity purchase" was suitable to her. The other document claimed to contradict the allegations in the Administrative Complaints was the Nagles' annual statement showing a yield of 5.66 percent, which was different than the 2.6 percent yield claimed by Mrs. Nagle in her complaint letters or affidavit. Finally, Petitioners point to statements of understanding signed by the Nagles, showing the surrender charges that would be imposed for early withdrawals. None of these documents conclusively refute the charges in the Administrative Complaint. For example, with respect to surrender charges, the Nagles' complaints assert that Petitioners represented that there would be no surrender charges for a withdrawal after one year. Mrs. Nagle's survey form only acknowledged that there would be surrender charges for "premature" withdrawal. It certainly would have been possible to reconcile these two concepts in that Mrs. Nagle may have been thinking that "premature" withdrawal, as used in the survey form, was a withdrawal in less than one year. The response in the survey form to the "surrender charge" question does not conclusively contradict Mrs. Nagle's complaint and affidavit, nor does it conclusively contradict the allegations in the Administrative Complaint. Similarly, the responses in the survey form about suitability do not conclusively contradict the allegations in the Administrative Complaint. The annual statement likewise does not conclusively contradict the allegations in the Administrative Complaint, even though the yield shown is somewhat different from the yield Mrs. Nagle referred to in her complaint. Whether the yield was actually 2.6 percent or 5.66 percent, the material allegations in the Administrative Complaint were that Petitioners misrepresented that the yield would be 10 to 20 percent per year. These allegations and the complaints on which they were based, were not so plainly lacking in credibility that no reasonable agency would have proceeded with charges. Finally, the signed statements of understanding showing that surrender charges would be imposed for early withdrawals do not contradict the Nagles' complaints or the allegations in the Administrative Complaint. Although the undersigned ultimately found against the credibility of the Nagles' complaints, those complaints were that Petitioners made oral representations assuring the Nagles that there would be no surrender charges after one year, even though the policy forms themselves said otherwise. The ultimate lack of credibility of the complaining witnesses' testimony was not so clear that no reasonable agency would have prosecuted the claims. In short, Respondent had a reasonable basis in law and in fact, following a reasonable investigation, to make the allegations and to charge the statutory violations it did in the Administrative Complaints. The documentation gathered in the investigation did not conclusively contradict the factual allegations, and the credibility of the complainants was not so obviously lacking that no reasonable agency would have made the allegations in the Administrative Complaints. And it is beyond dispute that if those factual allegations had been proven, the charged statutory violations would have been established. Thus, it cannot be said that Respondent's action in initiating the disciplinary proceedings against Petitioners was unreasonable governmental action.
Findings Of Fact Petitioner's witness admitted that all of the sign were permittable with the possible exception of the sign located .90 miles east of US 27 which is in the city limits of Bartow (Sign #5, Exhibit 1). Respondent has applied for permits for those signs for which permits are required. Sign #5 was first erected in 1942 by Respondent's predecessor in title and was rebuilt in 1952. The lessor of the property when the sign was first erected was the City of Bartow and it was sold to a private party in 1944. At the time the sign was erected and rebuilt there was no zoning ordinance in Bartow. Non-conforming lawful uses of property before the enactment of Bartow' s Zoning Ordinance were grandfathered and remained lawful after passage of the Zoning Ordinance (Exhibit 2, Section 4)
Findings Of Fact Respondent is the state agency authorized to administer and enforce provisions of Chapter 520, Florida Statutes, regulating the granting or denial of applications for Home Improvement Contractor Licenses. On November 30, 1988, Petitioner submitted an application on behalf of a corporation known as "The Durocoat Company" (Durocoat) to Respondent for licensure as a home improvement contractor. On that application, Petitioner disclosed the identity of the two principals of the corporation and the position held by those two individuals. Petitioner listed himself as the president of the corporation and another individual, Russell W. Black, as the corporation's vice-president. Each principal owns 50 percent of the corporation. Following the section of the application providing for the disclosure of the identities and addresses of business principals, a number of questions are listed and the person executing the form is required to provide an "X" in a block to indicate a "yes" or "no" answer to each of those questions. Question number four reads as follows: Are there unpaid judgments against the applicant or any of the persons listed above? If "yes" attach a copy of the complaint and judgment(s). Petitioner placed an "X" in the space allotted for a "yes" answer to the inquiry regarding unpaid judgments against the persons listed as business principals, namely himself and Mr. Black. Petitioner then attached a copy of a document entitled "Notice of Levy" issued by the Internal Revenue Service (IRS) of the United States Department of the Treasury. In sum, the notice certifies the existence of a tax lien against Mr. Black, Durocoat's vice-president, in the amount of $27,546.25. It is undisputed by the parties that creditors held unpaid judgments against Petitioner at the time he submitted the application on November 30, 1988, and that he failed to attach copies of those judgments to the application. Further, Petitioner acknowledged at the final hearing that he was aware at the time of submittal of the application of the existence of one of these judgments. That judgement, entered in favor of The American Express Company (American Express) for $7,602, has existed since September of 1987. In mitigation of his failure to disclose the American Express judgement, Petitioner testified at hearing that he didn't have a copy of the judgement at the time he filed the application and was unaware of the requirement that he should attach a copy. In view of his action in attaching a copy of the existing tax lien against Mr. Black to the application, Petitioner's testimony that he was unaware that he should attach copies of unpaid judgments is not credited. A copy of Petitioner's credit report, introduced at final hearing by Petitioner, discloses that a business known as "Speeler Marine" obtained a judgement against him in the amount of $250 in March of 1986. Petitioner testified at hearing that he was unaware of the existence of this judgement. No settlement discussions have been initiated by him with the creditor. Petitioner's credit report further discloses that an outstanding loan to Petitioner in 1985 in the amount of $36,000 by a financial institution identified as "Sun Bank" is classified as a "bad debt, placed for collection." Petitioner testified that this debt represents loan funds obtained in a previous business venture and is the subject of settlement negotiations and that he has repaid $4,000 of the amount at the present time. Petitioner's testimony also establishes that the credit report's disclosure of a 1987 foreclosure certificate of title to real estate represented real property located in Gainesville, Florida, which Petitioner had taken in trade for money owed to him. In view of the distance to that city, Petitioner testified that he simply chose not to pay off the existing mortgage on the property or oppose foreclosure action by the mortgage holder. A representative of Nationwide Chemical Coating Company (Nationwide) testified at the final hearing regarding that company's business relationship with Petitioner's corporation. Since February of 1988, Nationwide has sold supplies valued at $250,000 to Durocoat. The company has always paid charges within the 30 day required time limit and is considered to be a "class A" customer. In regard to the federal tax lien which Petitioner attached to the application, Russell W. Black testified that the lien resulted from the disallowance by IRS of a tax shelter investment of $34,000 made by Black in 1977 or 1978. Black was notified by IRS in 1981 that the tax shelter was not considered to be a valid deduction for tax purposes. The amount owed by Black to IRS in 1981 was $20,630.64. The amount is now $27,546.25 and, according to Black, is still unpaid because he doesn't have the money. On advice of counsel, he has not contacted IRS to schedule payments on the debt. Respondent denied Petitioner's application by letter dated January 13, 1989, stating that Petitioner's failure to attach copies of the unpaid judgments against himself constituted a material misstatement of fact sufficient to authorize the denial. The letter further stated that the unpaid judgments, along with the federal tax lien against Mr. Black, demonstrated a lack of financial responsibility by both individuals and constituted an additional ground for denial of the application.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 24th day of August, 1989, in Tallahassee, Leon County, Florida. DON W. 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 24th day of August, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Petitioner's proposed findings consisted of 10 unnumbered paragraphs which have been numbered 1-10 and are treated as follows: 1-8. Addressed in part, remainder rejected as unnecessary. Rejected, unsupported by direct admissible evidence. Rejected, unnecessary to result reached. Respondent's Proposed Findings. 1-2. Addressed. 3-4. Rejected, unnecessary. 5-11. Addressed in substance. COPIES FURNISHED: John L. Riley, Esq. 2325 Fifth Avenue North St. Petersburg, FL 33713 William W. Byrd, Esq. Assistant General Counsel Office Of The Comptroller 1313 Tampa Street, Suite 615 Tampa, FL 33602-3394 Hon. Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol Tallahassee, FL 32399-0350 Charles Stutts, Esq. General Counsel Department of Banking and Finance The Capitol Plaza Level, Room 1302 Tallahassee, FL 32399-0350
The Issue Whether Respondents failed to maintain and deposit payment instruments into their own commercial account in a federally- insured financial institution, in violation of section 560.309(3), Florida Statutes (2013).1/
Findings Of Fact The Parties Petitioner, Office of Financial Regulation, is the state agency charged with administering and enforcing chapter 560, Florida Statutes, including part III of that statute, related to money services businesses. Respondent, Moctezuma Envios, Inc. ("Moctezuma Envios"), is a Florida corporation operating as a money services business, cashing checks and acting as a money transmitter, as authorized by License No. FT30800203 issued by Petitioner. Its address of record is 19784 Southwest 177th Street, Miami, Florida 33187. Respondent Liliana Carrascal has a 100 percent controlling interest in, and is the sole officer of, Moctezuma Envios.3/ The Events Giving Rise to this Proceeding Respondents have been in the money services business, and Moctezuma Envios has been licensed to conduct this business, since 2001. Respondents were doing business with Intermex Wire Transfer LLC ("Intermex"), a money transfer services business, before the events giving rise to this proceeding. Sometime prior to January 2013, Carrascal was approached by representatives of Intermex about opening an account in the name of Moctezuma Envios at U.S. Bank.4/ Intermex representatives told Carrascal that the account could be used for depositing the checks that Moctezuma Envios cashed and also for paying Intermex for money transfers. According to Carrascal, this offer was attractive to Respondents because U.S. Bank accepted third-party checks, and opening a check-cashing account that accepts such checks is difficult. Additionally, having the account would streamline the process by which Moctezuma Envios paid Intermex to serve as its money transmitting agent, and would enable Carrascal to avoid driving across town carrying large sums of money to deposit cash into Intermex's account. Carrascal testified, credibly, that Intermex representatives told her she would be the owner of the account, that she could deposit payment instruments into and withdraw funds from the account, and that the account would be compliant with the law. On the basis of these representations, Carrascal authorized Intermex representatives to open an account in the name of Moctezuma Envios at U.S. Bank. The account number was XX3503. The persuasive evidence shows that Account No. XX3503 was established as an agent account, with Moctezuma Envios acting as a money transmitter agent for Intermex. As such, Moctezuma Envios was authorized to deposit funds and payment instruments into the account. Robert Lisy and Darryl J. Ebbert, both employees of Intermex, were signatories on Account No. XX3503, and, as such, were the owners of the account. They were authorized to deposit funds into, withdraw funds from the account, and otherwise control the account. The persuasive evidence further shows that Respondents were not signatories to Account No. XX3503.5/ Accordingly, they were not authorized to withdraw funds from the account. During the period spanning from January 2013 to late 2014, Respondents deposited payment instruments received through their check-cashing business into Account No. XX3503. The persuasive evidence shows that once Respondents deposited the payment instruments into Account No. XX3503, they lost access to and control of those funds. This is because, as noted above, only Intermex representatives were authorized signatories on the account. When Respondents deposited payment instruments into Account No. XX3503, those funds were thereafter "swept" into Account No. XX7788, which was Intermex's main operating account at U.S. Bank. This means that the funds were removed from Account No. XX3503 and deposited in Account No. XX7788. Respondents were not signatories to Account No. XX7788, so did not have access to the funds in that account. As a result of Respondents not being signatories on either Account No. XX3503 or Account No. XX7788, once they deposited payment instruments into Account No. XX3503, they lost access to and control of the funds paid under those payment instruments. The persuasive evidence establishes that Respondents deposited approximately ten percent of the payment instruments that they received from their check cashing business into Account No. XX3503 during the timeframe pertinent to this proceeding. The other payment instruments were deposited into other accounts that Respondents held at other banks. Carrascal credibly testified that when Intermex first approached her about opening an account at U.S. Bank, she was concerned because she knew that the law required payment instruments to be deposited into the business's own commercial account. Thus, she declined to open such account. When Intermex representatives approached her a second time, they told her that the account would be in the name of Moctezuma Envios and assured her that Moctezuma Envios would be in compliance with the law. She believed them, so authorized them to open Account No. XX3503. Carrascal further testified, credibly and persuasively, that as soon as she received notice that Petitioner believed that Account No. XX3503 did not comply with the law, she closed the account and ceased doing business with Intermex and U.S. Bank. The credible, persuasive evidence establishes that Respondents did not attempt to conceal any information or mislead Petitioner regarding Account No. XX3503. Carrascal credibly and persuasively testified that she had intended to fully comply with the law. She had received training in order to serve as Moctezuma Envios' compliance officer, and Moctezuma Envios has a legal compliance manual in place to help ensure that it complies with applicable laws. The evidence establishes that Moctezuma Envios has been disciplined twice for previous violations of applicable laws. Specifically, some time prior to December 2008, Moctezuma Envios failed to file currency transaction reports concerning cash received from another chapter 560 licensee and failed to timely file at least two quarterly reports, as required by statute and rule. In 2011, Moctezuma Envios failed to timely file a required quarterly report. Both violations were resolved pursuant to Stipulation and Consent Agreement between Petitioner and Moctezuma Envios, under which Moctezuma Envios paid fines and agreed to comply with the law in the future. Carrascal acknowledged that the violations had occurred, but testified, credibly, that in both instances, Respondents had not intended to violate the law, and that Respondents had cooperated with Petitioner to rectify the circumstances that had resulted in noncompliance. Petitioner has adopted rule 69V-560.1000, which codifies a penalty matrix that authorizes and enables Petitioner to impose a fine for a specific statutory or rule violation, based on the level of fine adopted in rule 69V-560.1000(150) and the number of times a licensee has violated that particular statute or rule. Rule 69V-560.1000(150) establishes a range of $1,000 to $3,500 for a Level A fine; $3,500 to $7,500 for a Level B fine; and $7,500 to $10,000 for a Level C fine. Here, Respondents are charged with having violated section 560.309(3) for the first time. Pursuant to rule 69V-560.1000(85), Respondents are subject to a Level B fine, which ranges from $3,500 to $7,500. Rule 69V-560.1000(148) sets forth the factors, which Petitioner characterizes as "aggravating" or "mitigating," that must be considered in determining the specific amount of the fine within the ranges established in rule 69V-560.1000(150). 29. Rule 69V-560.1000(148) states: In accordance with Sections 560.1141(2) and (3), F.S., the Office shall consider the following circumstances in determining an appropriate penalty within the range of penalties prescribed in this rule for each violation as based upon the citation number. The Office also shall consider these circumstances in determining a penalty that deviates from the range of penalties prescribed for each violation and citation number as a result of such circumstances: Whether the violation rate is less than 5% when compared to the overall sample size reviewed; The degree of harm to the customers or the public; The disciplinary history of the licensee; Whether the licensee detected and voluntarily instituted corrective responses or measures to avoid the recurrence of a violation prior to detection and intervention by the Office; Whether the licensee’s violation was the result of willful misconduct or recklessness; Whether at the time of the violation, the licensee had developed and implemented reasonable supervisory, operational or technical procedures, or controls to avoid the violation; Where the violation is attributable to an individual officer, director, responsible person, or authorized vendor, whether the licensee removed or otherwise disciplined the individual prior to detection and intervention by the Office; Whether the licensee attempted to conceal the violation or mislead or deceive the Office; The length of time over which the licensee engaged in the violations; Whether the licensee engaged in numerous violations or a pattern of misconduct; The number, size and character of the transactions in question; Whether the licensee provided substantial assistance to the Office in its examination or investigation of the underlying misconduct; Other relevant, case-specific circumstances. Andrew Grosmaire, Chief for Petitioner's Bureau of Enforcement, testified that Petitioner proposes to impose a $7,500 fine on Respondents, and explained the basis for that amount. Grosmaire testified that Petitioner did not have any information regarding several of the factors listed in rule 69V-560.1000, so did not "use" those factors in determining the fine to be imposed on Moctezuma Envios.6/ Specifically, Petitioner did not use the factors in subsections (a), (b), (d), (e), (f), (g), (h), (i), (j), (l), and (m) in determining the fine. Petitioner did consider subsection (c), regarding the licensee's disciplinary history, in determining the fine. As discussed above, Petitioner presented evidence showing that Moctezuma Envios had been disciplined twice for violations of provisions of chapter 560 and implementing rules, albeit not for the same violation that is the subject of this proceeding.7/ Grosmaire noted that it was "unusual" for a licensee to have two previous violations. Petitioner thus considered Moctezuma Envios' disciplinary history an aggravating factor in determining the applicable fine. Petitioner also considered subsection (k), which addresses the number, size, and character of the transactions in question. According to Grosmaire, "100 percent of the checks were deposited into this account during the period in question," so Petitioner considered this an aggravating factor in determining the appropriate fine. As noted above, pursuant to rules 69V-560.1000(85), (147), and (148), Petitioner proposes to fine Respondents $7,500. Findings of Ultimate Fact Regarding Alleged Violation Florida case law holds that the determination of whether alleged conduct violates a statute or rule is a question of ultimate fact. Gross v. Dep't of Health, 819. So. 2d 997, 2002 (Fla. 5th DCA 2002); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st SCA 1995). For the reasons discussed above, the undersigned finds that the evidence clearly and convincingly establishes that Respondents did not own Account No. XX3503, into which payment instruments from Moctezuma Envios' check-cashing business were deposited. Although Respondents were able to deposit payment instruments into Account No. XX3503, they were not signatories on the account so could not withdraw funds from that account. Further, Respondents were not signatories to, and therefore did not have access to funds in, Account No. XX7788, into which Intermex swept the funds from the deposited instruments in Account No. XX3503 on a routine basis. On this basis, it is determined that Petitioner demonstrated, by clear and convincing evidence, that Moctezuma Envios and Liliana Carrascal, by virtue of being an affiliated party pursuant to section 560.103(1), violated section 560.309(3) by failing to maintain and deposit payment instruments into their own commercial account at a federally- insured financial institution. As discussed above, Petitioner proposes to fine Respondents $7,500, the maximum amount that can be imposed for a Level B fine. Petitioner reached this amount taking into account the factors set forth in rules 69V-560.1000(148)(c) and (k), which it considered to be aggravating factors that militated imposition of a higher fine within the Level B range. As discussed above, Carrascal presented evidence regarding several of the factors in rule 69V-560.1000(148) considered in determining the appropriate fine. Specifically, Carrascal testified, persuasively, that no harm to her customers or the public resulted from Respondents' violation of section 560.309(3); that Respondents' violation of the statute was inadvertent and was the result of misrepresentation by Intermex, so that the violation was not the result of Respondents' willful conduct or recklessness; that Moctezuma Envios has in place a professionally-prepared compliance manual to help Respondents avoid future violations, including the type of violation at issue in this proceeding; that once Carrascal became aware that Petitioner believed Account No. XX3503 was noncompliant with section 560.309(3), she cooperated fully with Petitioner's investigation and did not attempt to conceal, mislead, or deceive Petitioner; that as soon as Carrascal became aware of the noncompliance issues with Account No. XX3503, she closed the account and Respondents terminated all business dealings with U.S. Bank and Intermex, the latter with which Respondents had a business relationship that predated the matters giving rise to this proceeding; and that the deposits into Account No. XX3503 constituted only approximately ten percent of the total deposits Respondents made during the timeframe pertinent to this proceeding, with the other 90 percent being deposited in other accounts at other financial institutions. As discussed above, the undersigned found Respondents' evidence of mitigation regarding the factors set forth in rules 69V-560.1000(148)(b), (e), (f), (h), (k), and (l) credible and persuasive. Further, the undersigned considers relevant that in this case, Respondents affirmatively were misled into violating the law by Intermex.8/ Petitioners did not present persuasive countervailing evidence rebutting the evidence of mitigation presented by Respondents with respect to the amount of the fine. As noted above, Grosmaire testified that Petitioner considered subsections (c) and (k) as aggravating factors in determining that Respondents should be fined $7,500. Rule 69V- 560.1000(148) does not specifically address how much weight each factor should be assigned in determining the specific fine within the authorized range, and Grosmaire did not explain how the factors Petitioner "used" were weighed in arriving at the $7,500 fine. Considering the "aggravating" and "mitigating" factors on which the parties presented evidence, the undersigned determines that a $4,500 fine should be imposed on Respondents in this proceeding.9/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Office of Financial Regulation enter a final order finding that Respondents, Moctezuma Envios, Inc., and Liliana Carrascal, violated section 560.309(3), Florida Statutes, and imposing a fine of $4,250. DONE AND ENTERED this 22nd day of June, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 22nd day of June, 2016.
