The Issue Whether Resolution No. P64-96 of the Monroe County Planning Commission should be affirmed, reversed or modified?
The Issue The issue is whether Petitioner should pay a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. Exhibit 1 —— : a ey Jone - _ _ a
Findings Of Fact The Department adopts and incorporates in this Final Order the Findings of Fact contained in the Recommended Order as if fully set forth herein.
Conclusions For Petitioner: John Beebe, pro se 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 For Respondent: Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee, Florida 32399-1050
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order requiring 30-A Restaurant Group, Inc., to pay to the state of Florida a sales tax, penalty, and interest totaling $195,849.08, assessed through September 11, 2008, plus statutory interest thereafter. DONE AND ENTERED this 29th day of October, 2009, in Tallahassee, Leon County, Florida. org Lengo HARRY L. HOOPER 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 29th day of October, 2009. COPIES FURNISHED: John Beebe 30-A Restaurant Group, Inc. 166 Acacia Street Santa Rosa Beach, Florida 32459 Warren J. Bird, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Revenue Litigation Bureau Tallahassee; Florida~-32399-1050- Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 South Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 South Calhoun Street Tallahassee, Florida 32399-0100
Other Judicial Opinions Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by filing a Notice of Appeal pursuant to Rule 9.110 Florida Rules of Appellate Procedure, with the Agency Clerk of the Department of Revenue in the Office of the General Counsel, P.O Box 6668, Tallahassee, Florida 32314-6668 [FAX (850) 488- 7112], AND by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 Copies furnished to: Harry L. Hooper Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL. 32399-3060 Warren J. Bird Assistant Attorney General Office of the Attorney General Revenue Litigation Bureau The Capitol-Plaza Level 01 Tallahassee, Florida 32399-1050 Marshall Stranburg, General Counsel Department of Revenue The Carlton Building, Room 204 501 S. Calhoun Street Post Office Box 6668 Tallahassee, Florida 32314-6668 Lisa Echeverri, Executive Director Department of Revenue The Carlton Building, Room 104 501 S. Calhoun Street Tallahassee, Florida 32399-0100 es) STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 30-A RESTAURANT GROUP, INC., Petitioner, vs. Case No. 08-5823 DEPARTMENT OF REVENUE, Respondent.
The Issue The issue in this case is whether the City of Clearwater properly dismissed Respondent, Diane C. Hashil, from her employment as a Toll Booth Attendant for inefficiency in the performance of duties, in violation of Rule 14, Section 1, paragraph (c), of the Civil Service Rules and Regulations of the City of Clearwater.
Findings Of Fact Respondent, Diane C. Hashil, was employed as a Toll Booth Attendant at the Sand Key Tollbooth by Petitioner, City of Clearwater, (the City), from July of 1992 until May 24, 1995. During the course of Respondent's employment with the City, Respondent has been the subject of numerous disciplinary actions, resulting in counseling, written reprimands, and suspensions. Beginning on December 6, 1993, and continuing through May 24, 1995, twelve disciplinary actions were taken against Respondent for charges including repeated discourtesy to customers, insubordination, failure to comply with verbal instructions, failure to follow policies regarding nonpayment of tolls, and entering the cash drawer of another employee without permission. Respondent's disciplinary action history includes the following actions: 1) On December 7, 1993, Respondent received a written warning for a Level 4, #2 offense (insubordination); 2) On December 21, 1993, Respondent was suspended for two days for a Level 2, #2 offense (discourtesy); 3) On January 26, 1994, Respondent was suspended for three days for a Level 2, #2 offense (discourtesy); 4) On August 10, 1994, Respondent received a letter of reprimand for a Level 1, #1 offense; 5) On January 12, 1995, Respondent received a letter of reprimand for a Level 4, #2 offense (insubordination); 6) On January 17, 1995, Respondent was given a letter of reprimand for a Level 2, #1 offense; 7) On March 9, 1995, Respondent was suspended for two days for a Level 3 offense (productivity); and, 8) On March 15, 1995, Respondent was suspended for five days for a Level 4, #2 offense (insubordination). In April of 1994, Respondent's employment with the City was terminated; however, the City reversed this decision, and Respondent subsequently remained in her position. On November 1, 1994, Respondent received an unsatisfactory performance evaluation. The primary basis for this evaluation was Respondent's continued discourtesy to patrons which had resulted in disciplinary actions against Respondent during the evaluation period. The City's employee performance ratings policy requires that an employee receiving an unsatisfactory rating be reevaluated in three months. On February 13, 1995, at her three-month follow-up reevaluation, Respondent again received an unsatisfactory performance rating. The basis for this evaluation was that Respondent had received repeated reprimands for insubordination, failure to follow rules, and entering the cash drawer of another employee without permission. On March 9, 1995, as a result of her unsatisfactory reevaluation, Respondent received a two-day suspension, and twenty disciplinary points. On March 15, 1995, Respondent was suspended for five days for insubordination. Respondent's appeal of these suspensions was upheld through the City Manager stage. Respondent did not seek further review of these suspensions. On May 5, 1995, at her second follow-up reevaluation, Respondent again received an unsatisfactory performance rating. Under the City's policy this unsatisfactory rating was automatic because Respondent had been suspended for five or more days during the rating period. In addition the second follow-up performance evaluation stated that Respondent filed a false police report alleging a customer had defrauded her, that Respondent entered the cash drawer of another employee without permission, and that Respondent was responsible for low morale of the other employees at the Sand Key Tollbooth. Respondent admits that she entered the cash drawer of another employee without permission, and that she kept a daily log of the activities of other employees which contributed to the low morale at the Sand Key Tollbooth; however, Respondent believed other employees were allowed to violate rules, and that she was being unfairly disciplined because she was female and not a member of the union. The evidence does not support a finding that other employees were allowed to violate rules, nor that Respondent was treated differently than other employees. The evidence does not reflect that Respondent was subjected to disciplinary actions because of her gender or her failure to join a union. During her employment at the Sand Key Tollbooth, Respondent received more complaints from customers and other employees than any other tollbooth attendant. Because Respondent had received two consecutive three-month reevaluations with an unsatisfactory rating, she was subject to termination under the City's policy. In addition, because Respondent had accumulated excessive disciplinary points she was subject to termination under the City's Guidelines for Disciplinary Action. The performance evaluations and the disciplinary actions taken with regard to Respondent were appropriate and consistent with those given other employees. Following her five-day suspension, Respondent filed a report alleging various rule violations of other employees. The City investigated Respondent's allegations and required three employees to attend counseling with regard to cash drawer procedures. The evidence does not support a finding that the City singled out Respondent for disciplinary actions. The City allowed Respondent to serve her five-day suspension over two pay periods to lessen the financial impact of her suspension. The City Harbormaster has employed other females within the department without incident. As of October 1995, the City has eliminated the position of tollbooth attendant because of the construction of a new Sand Key bridge which will, upon completion, be toll free. The City has assisted former tollbooth attendants in attempting to secure other positions of employment with the City. Subsequent to her termination, Respondent applied for a meter reading position with the City, but was not hired.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The City of Clearwater Civil Service Board enter a Final Order dismissing Respondent from her position of employment with the City of Clearwater. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of November, 1995. RICHARD HIXSON 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 November, 1995. APPENDIX As to Petitioner's Proposed Findings: 1 - 12. Accepted and Incorporated. As to Respondent's Proposed Statement of Facts: Accepted, except that unauthorized entry into another employee's cash drawer violated City rules and regulations. Rejected as irrelevant. Rejected as not supported by the evidence. COPIES FURNISHED: Leslie K. Dougall-Sides, Esquire Paul Richard Hull, Esquire City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Diane C. Hashil 1527 South Prospect Avenue Clearwater, Florida 34616 Ms. Cynthia Goudeau City Clerk City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748
The Issue The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint, and, if so, what discipline should be imposed.
Findings Of Fact Since November 9, 2004, Respondent has been licensed and regulated by the Division as a permanent food service establishment in Parrish, Florida. Respondent's license number is 5105120. Before initial licensure, Respondent submitted plans for the restaurant to the Division with the required plan review application and plan review fee of $150.00. The 2004 plans submitted for Division review and approval were not offered into evidence. The Division periodically inspects licensed food service establishments, such as Respondent, to ensure compliance with applicable laws and regulations. For example, on October 7, 2009, the Division conducted a routine inspection of Respondent and determined that Respondent "met inspection standards during this visit." Two days later, on October 9, 2009, the Division conducted another inspection of Respondent. The Division's witness, Ms. Bagley, who conducted the inspection, gave no explanation for conducting another inspection so close in time to the October 7, 2009, inspection in which inspection standards were found to be met. Ms. Bagley's October 9, 2009, inspection report indicates several violations, and as a result, Ms. Bagley conducted a call-back inspection the next morning. Some of the items identified in the October 9, 2009, report were addressed to Ms. Bagley's satisfaction by the next morning. Ms. Bagley determined that additional time, through December 10, 2009, should be given to address two remaining items. One of those items, designated as a "non-critical" violation, was described as follows in both the October 9, 2009, inspection report and the October 10, 2009, call-back inspection report: 51-16-1: No plan review submitted to and approved by division of hotels and restaurants and renovations in progress. Added routissary [sic] smoker unit unto outside patio area. Area is\also not propely [sic] screened. Must comply. Ms. Bagley conducted a call-back inspection on December 11, 2009. She found that one of the two items scheduled for call-back inspection was in compliance. She recommended issuance of an Administrative Complaint with regard to the other item described, as follows: Violation: 51-16-1 No plan review submitted to and approved by division of hotels and restaurants and renovations in progress. Added routissary [sic] smoker unit unto outside patio area, area is\also not propely [sic] screened. Must comply. On January 22, 2010, Petitioner issued an Administrative Complaint against Respondent, as recommended by Ms. Bagley. The Administrative Complaint quoted the rule allegedly violated, as follows: 1. 51-16-1 61C-1.002(6)(C)(1) FAC: The operator of each public food service establishment to be newly constructed, remodeled, converted, or reopened shall submit properly prepared facility plans and specifications to the Division for review and approval in accordance with the provisions of Chapter 509 and Rule Chapters 61C-1 and 61C-4, FAC. Such plans must be approved by the Division prior to construction, remodeling, conversion, scheduling of an opening inspection and licensing. The allegations of fact relied on to establish the claimed rule violation were as follows: No plan review submitted to and approved by Division of Hotels and Restaurants and renovations in progress, added rotisserie smoker unit at outside patio area; area is also not propely [sic] screened. Ms. Bagley testified that she prepared the three inspection reports on October 9, 10, and December 11, 2009, using a hand-held computer while she was on site. Ms. Bagley did not describe what she observed at any of the three inspections or elaborate on the description of the charged violation as set forth and repeated in each of the three inspection reports. Ms. Bagley did not identify any changes of any nature at Respondent's establishment besides the placement of a new rotisserie smoker unit in an area she described as the outside patio area. Mr. Rhodes acknowledged that a new rotisserie smoker unit was acquired as replacement equipment to replace another smoker that wore out. Mr. Rhodes did not construct, remodel, or renovate space to house the new rotisserie. Instead, the new unit was placed in the same general area as the replaced unit, two feet from where the previous unit stood. The new unit could not sit in the identical spot as the prior unit, because it was an upright grill instead of a flat one. Though it was not identical equipment, it was "like" equipment. Mr. Rhodes' testimony was credible and unrebutted. Respondent submitted pictures into evidence to show the cooking area where the new rotisserie grill stands, adjacent to a larger smoker that sits next to another large smoker. These pictures were taken approximately three weeks after Ms. Bagley's last inspection. Ms. Bagley did not identify anything new or different in the scenes shown in the pictures from what she observed at the December 11, 2009, inspection. These pictures confirm Mr. Rhodes' testimony that the new rotisserie unit was placed in the same general area that was, and still is, used for cooking. Ms. Bagley's three inspection reports use the phrase "renovations in progress." However, Ms. Bagley was unable to define what she meant by that phrase: Mr. Rhodes: I would like to get [Ms. Bagley's] definition of "renovation in progress." Ms. Bagley: Well, actually I wouldn't have a definition of renovation in progress. I would end up referring you to the plan review person, as well as the website. I believe that the definition in Florida Administrative Code 61(c) lists multiple possibilities, and then the Division has guidelines and policies that help explain those further. Ms. Bagley's reference to the list of "multiple possibilities" is to Florida Administrative Code Rule 61C-1.002(5)(c)1., which states that the "operator of a public food service establishment to be newly constructed, remodeled, converted, or reopened" must submit plans to the Division for review and approval. This rule does not use the term "renovation," but it does use the term "remodeled." The sentence after the excerpt of Florida Administrative Rule 61C-1.002(5)(c)1., quoted in the Administrative Complaint, provides as follows: "For remodeling, plan review submittal shall not be required if the division can otherwise determine that the intended remodeling will not have an impact on the Florida Clean Indoor Air Act, fire safety, bathroom requirements, or any other sanitation and safety requirements provided in law or rule." When Ms. Bagley was asked about this provision and, in particular, how the Division defined the term "remodeling" used in its rule, her response was as follows: Well, I could say that just adding the smoker onto the patio area would be a change in use of that patio area. It turned it into a cooking, a food prep area that was originally, the plan was not approved for. As previously noted, however, no evidence was presented of the original plans or the extent to which areas were separately designated for specific uses. The pictures in evidence do not support Ms. Bagley's apparent view that the so-called "patio area" with the new rotisserie grill is physically separated from the so-called "cooking area" with the large smokers. The two areas are adjacent. A large smoker in the so-called "cooking area" is immediately adjacent to the new rotisserie smoker in the so-called "patio area" with nothing separating them besides a foot or two of space. Both areas appear to have ceilings, partial walls, and screening. The only apparent differences in the two areas are cosmetic, such as different flooring and different finishes to the walls. Although Ms. Bagley was unable to define "renovation" or "remodeling," she referred to the Division's "guidelines and policies that help explain [the terms listed in the rule] further." The Division maintains a website page that sets forth "Restaurant Plan Review FAQ [frequently asked questions]." Respondent consulted this website page, which includes the following: Q: When am I required to submit plans for review? A: Plans are required for any of the following situations: Construction of a new food service establishment. Remodeling of an existing establishment if the proposed changes affect the sanitation, safety, or restroom requirements or the Florida Clean Indoor Air Act. Reopening an establishment that has been closed over one (1) year. Conversion of an existing structure for use as a food establishment. Q: What changes do not require a plan review? A: Changes that are only cosmetic in nature do not require a plan review. Such changes involve painting, replacing dining room carpeting, or replacing like equipment (e.g., replacing an old refrigerator with new). If you are in doubt, call the Customer Contact Center at 850.487.1395 for further clarification. Ms. Bagley did not specifically address this guidance or explain why Respondent would not have reasonably relied on the authorization for "replacing like equipment" without plan review. Leaving aside the threshold question of whether there was any "remodeling," no evidence was presented that the placement of the replacement rotisserie grill two feet away from where the prior grill was located is a change that implicates any new or different safety or sanitation requirements. Although Ms. Bagley testified that placing the new rotisserie grill two feet from the site of the old grill changed the use of the new location, she did not identify any specific sanitation or safety requirements impacted by the changed location. Presumably, if any such regulatory requirements had been impacted by the placement of the new rotisserie grill, Ms. Bagley would have cited them in her inspection reports. Finally, although the inspection reports and Administrative Complaint allege that the area where the new rotisserie grill is located is improperly screened, no evidence was presented to prove this allegation. Ms. Bagley did not explain what she meant by improper screening, where or how there was improper screening, or what the requirements are for proper screening. Respondent's pictures show screening in the entire cooking area that houses the new rotisserie grill and the other two larger smokers, but no evidence was presented regarding whether the screening was in any way improper.3
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, dismissing the Administrative Complaint against Respondent, C and K Smoke House BBQ. DONE AND ENTERED this 22nd day of November, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 November, 2010.
The Issue Whether respondent's license as a registered real estate broker should be suspended or revoked, or the licensee be otherwise disciplined, for alleged violations of Subsections 475.25(1)(d) and 475.25(1)(i), Florida Statutes. The Administrative Complaint in this case was filed on August 29, 1977. Respondent, through her attorney, executed an "Election of Rights" form whereby she stated: "I have read the Explanation of Rights form and I do not dispute the allegations in the Administrative Complaint and do request a hearing before a Hearing Officer for the purpose of submitting oral and/or written evidence in mitigation." At the hearing, respondent acknowledged the correctness of the facts contained in the complaint and thus relieved the petitioner of its burden to establish the same. Petitioner submitted documentary evidence concerning the matter and respondent testified in her own behalf and presented two other witnesses regarding the circumstances surrounding the transaction in question.
Findings Of Fact Respondent Lucretia S. Thomas, trading as Lucretia S. Thomas Realty, Tallahassee, Florida, is now and was at all times alleged in the Administrative Complaint a registered real estate broker. (Complaint, Exhibit 1) In February, 1977, respondent, a member of the Multiple Listing Service, became aware of certain farm property for sale in Gadsden County. She called the listing broker, Henry Gilbert of Tallahassee, for information concerning the property and thereafter showed it to Mr. and Mrs. Wilton R. Miller of Tallahassee. On February 15, Miller decided to make an offer on the farm and issued a $5,000 check payable to "Lucretia Thomas Escrow Account" as a binder on the contemplated purchase. He also on that date executed a Deposit Receipt and Contract for Sale and Purchase. Respondent called Gilbert and informed him of these facts and asked if she could present the offer with him to the owner as soon as possible. Gilbert informed her that the owner was out of town until Thursday night, February 17, but that he, Gilbert, would be unable to meet with the owner that night because he had to teach a real estate course in Tallahassee. They then agreed that they would present the offer to the owner of the property on Friday, February 18. On the morning of the 18th, Gilbert informed respondent that the farm had been sold the night before by his office. Respondent informed Miller of the circumstances and returned his check, which she had been holding since the 15th, either on that day or on the following Monday, February 2l. (Testimony of Thomas, Miller, Exhibit 2, Composite Exhibit 3) Respondent proceeded to file complaints against Gilbert with the Florida Real Estate Commission and the Tallahassee Board of Realters. The latter organization held a hearing in the matter and found that Gilbert had committed breaches of their Code of Ethics and issued him a reprimand. (Testimony of Dickerson) Respondent testified that she did not know why she had not deposited Miller's $5,000 check in her escrow account. She testified in this respect as follows: "That's a very good question. I really don't know why I didn't. I had no reason for not depositing it - I just didn't do it." Mr. Miller, a Tallahassee attorney, and Wes Dickerson, a past president of the Tallahassee Board of Realtors and the owner of Hancock Realty, Tallahassee, attested to their high opinion of respondent's honesty and adherence to ethical standards over a period of years. Respondent and Miller have been friends for a lengthy period and he attributed her failure to deposit the check to the fact that she was aware of his financial condition, knew that the check was good, and might have "perhaps been more casual than she would in an ordinary transaction." (Testimony of Respondent, Dickerson, Miller)
Recommendation That petitioner issue a non-disciplinary letter of admonition to respondent Lucretia S. Thomas for violation of Section 475.25(1)(i), Florida Statutes. DONE and ENTERED this 6th day of December, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1977. COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32759 John K. Folsom, Esquire 122 South Calhoun Street Tallahassee, Florida
The Issue Whether Petitioners are entitled to recover costs and attorney's fees against Respondent and, if so, in what amount.
Findings Of Fact At all times relevant to this proceeding, Petitioner, Marsha Strange, was the Mayor of McIntosh, Florida, having served in that position for approximately ten years. The Town of McIntosh (Town or Town of McIntosh) has a population of approximately 400 and has only three paid employees on its staff. The Town of McIntosh has a weak mayoral form of government. Under this system of government, the mayor does not have the power to appoint, promote, or dismiss Town employees or to appoint members to the Town's various committees or boards. Rather, these decisions are made by the elected five-member Town Council. The mayor is not a member of the Town Council and has no power to vote on issues coming before that governing body. Moreover, the mayor of the Town of McIntosh is not paid. On March 5, 1998, Respondent, Mary Lueders Burnett (Respondent), filed a verified ethics complaint against Mayor Marsha Strange, alleging Mayor Strange had violated Section 112.3135, Florida Statutes, regarding the appointment of relatives. In the complaint, Respondent stated that the mayor's brother-in-law, Thurman Kingsley, was appointed as the only person authorized to sign building permits. The complaint stated: I believe that this appointment to a position involving the approval of the Mayor by virtue of her management responsibilities mandated in the Town Charter, constitutes a violation of Section 112.3135, Florida Statutes, regarding the appointing of relatives. While our municipality is less than 35,000, our population is 413. I believe the function involves land planning or zoning as stated in the statute. Within a month of filing the initial complaint against Mayor Strange, Respondent separately filed three additional verified complaints against Mayor Strange. On March 20, 1998, Respondent filed a second complaint against Mayor Strange which alleged that the Town of McIntosh failed to comply with its Comprehensive Plan. Specifically, Respondent claimed that the official zoning map, Public Works Manual, and Land Development Regulations, documents required by the Town's Comprehensive Plan, did not exist. Respondent asserted that this alleged act "constitutes malfeasance and is a gross misuse of public position in violation of Florida Statutes." Notwithstanding Respondent's allegation that the Town had no land development regulations, in a letter dated March 13, 1998, signed by Respondent and attached to this ethics complaint, Respondent cites extensively from the Town's Land Development Code. On April 3, 1998, Respondent filed a third complaint against Mayor Strange alleging that the mayor had (1) improperly determined that the terms of members of the Town's Code Enforcement Board had expired; (2) failed to post notice of vacancies on that board; and (3) failed to adopt rules for the recruitment and appointment of board members. In this complaint, Respondent contended that the alleged acts were a breach of public trust in violation of Sections 112.311(6) and 286.011, Florida Statutes. On April 5, 1998, Respondent filed a fourth ethics complaint against Mayor Strange alleging that on certain property in the Town, land development by a former Town official was taking place without proper permits. In this ethics complaint, Respondent indicated that on March 4, 1998, she had filed a Notice of Complaint with the Town regarding this issue but that the Town's Code Enforcement Officer had determined that the complaint was unfounded. In the ethics complaint, Respondent stated that: It is my belief that the code enforcement officer as well as the mayor and the members of the McIntosh Town Council, under whose pleasure the code enforcement officer is appointed, have violated Section 112.313(6), Florida Statutes, for allowing this unpermitted land development by a former town official. Respondent's second, third, and fourth ethics complaints against Mayor Strange were found to be without merit and dismissed by the Ethics Commission without the necessity of an investigation. The Ethics Commission authorized an investigation of the allegations contained in Respondent's initial complaint, Complaint No. 98-37, alleging a nepotism violation against Mayor Strange. Larry Hill, a senior investigator, investigated the allegations in Respondent's Complaint No. 98-37 on behalf of the Ethics Commission. As a part of his investigation, Mr. Hill interviewed Respondent and Mayor Strange. Following the investigation, Mr. Hill incorporated his factual findings in a Report of Investigation dated June 19, 1998. After considering the Report of Investigation and the Advocate’s recommendation, the Ethics Commission determined that there was no evidence that Mayor Strange advocated, recommended, or otherwise played any role in having Mr. Kingsley appointed to the municipal position. Thereafter, the Ethics Commission issued an Order finding that there was no probable cause to believe that Mayor Strange violated Section 112.3135, Florida Statutes, regarding her brother-in-law's appointment to a Town position as alleged in Respondent's complaint. According to the Report of Investigation, Thurman Kingsley was Mayor Strange’s brother-in-law. However, Respondent admitted she had no evidence that Mayor Strange had advocated or was in any way involved in Mr. Kingsley's appointment to his municipal position as a building official. Furthermore, according to the report, Respondent acknowledged that she knew that Mayor Strange did not have a vote on any official Town matters. During Mr. Hill's interview with her, Mayor Strange indicated that she had taken no action to appoint or promote Thurman Kingsley as the building official for the Town of McIntosh. Also, at hearing, Mayor Strange provided credible testimony that she did not take part in the Town's hiring of Thurman Kingsley and did not have the power to do so. Thurman Kingsley was appointed as building permit official for the Town of McIntosh approximately four years prior to Respondent's filing the complaint of a violation of the nepotism law by Mayor Strange. The minutes of the Town Council meeting at which Mr. Kingsley was approved as a building permit official reflect that Mayor Strange played no role in his appointment to the building committee. At the time Respondent filed the verified complaint against Mayor Strange, she was aware that the mayor had no power to appoint any town official. Moreover, Respondent had no first-hand knowledge of the alleged violations nor had the factual allegations been provided to her by reliable sources. Although Respondent had no knowledge or reliable information to support the allegations, she filed a verified complaint against Mayor Strange. In light of the foregoing, the statements and allegations contained in the Respondent's complaint against Mayor Strange were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On October 9, 1997, Petitioner, Maxine Holst, was appointed on a temporary basis as Town Clerk for the Town of McIntosh. Six months later, on April 9, 1998, Ms. Holst was appointed to the position as permanent Town Clerk. In both instances, Ms. Holst was appointed by the Town Council and served at the pleasure of and answered to that body. On March 3, 1998, Respondent filed a complaint with the Ethics Commission against Maxine Holst. The complaint alleged that "the issuing clerk" misused her public office by issuing a building permit to the relative of a Town Council member. The complaint further alleged that the permit was issued contrary to applicable issuance criteria and in spite of the fact that the permit had been denied by the former Town Clerk because the necessary requirements had not been met. In Respondent's complaint against Ms. Holst, Respondent, wrote: The issuing clerk was aware of the previous denial of permit. I believe this act represents a direct violation of the Florida Statutes, Section 112.313(6) as misuse of public position. The building permit referred to in Respondent's complaint was for construction of a carport on property owned by Wilshire Walkup, a family member of Howard Walkup. According to Respondent's complaint, when the subject permit was issued, Howard Walkup was a member of the Town Council. On March 9, 1998, Respondent filed a second ethics complaint against Ms. Holst, alleging that she (1) failed to file applicable financial disclosure after being appointed to her public position; and (2) refused to return the former Town Clerk's notary seal left through oversight at the clerk's office. In regard to the first allegation, Respondent stated: A Town Clerk was appointed in October 1997. This was on a temporary basis but later became a permanent appointment. As of this date, according to the [O]ffice of the Marion County Supervisor of Elections, the town clerk has not filed Form 1, Limited Financial Disclosure. This is a violation of the Sunshine Amendment. In regard to the allegation concerning the notary seal, Respondent stated in her complaint: A Town Clerk was appointed in October of 1997. The former Town Clerk, by oversight, left her notary seal at the office. The newly appointed town clerk, M. Maxine Holst, refused, upon the former clerk's three requests to give the notary seal to it's [sic] owner." The letter acknowledged that the notary seal was returned to the former Town Clerk but noted that the act of refusing to return the notary stamp constituted a misdemeanor according to Section 117.05(9), Florida Statutes. Finally, Respondent's letter stated that the alleged act "constituted misuse of public position in violation of Section 112.313(6) of Florida Statutes." On April 3, 1998, Respondent filed a third ethics complaint against Ms. Holst. The allegations in this complaint were identical to those made in the ethics complaint filed by Respondent against Mayor Strange on the same date and described above in paragraph 7. In fact, a copy of the same letter was attached to the complaints filed on April 3, 1999, against Mayor Strange and Ms. Holst. In the third complaint filed against Ms. Holst, Respondent alleged that the terms of members of the Code Enforcement Board had been determined without documentation and concluded that the new members appointed to the Board were chosen without public notice and search. In this complaint, Respondent alleged that: The Town Clerk, Maxine Holst, Mayor Marsha Strange, and Council Members Stott, Smith, McCollum and Walkup determined without documentation that the [Code Enforcement Board] Chairman's and another member's terms had expired. Although the Chairman and the other members wished to be considered for reappointment, the Town Council recruited, without posting a notice that interested residents might apply for the position, and appointed their replacements. I believe that the bogus expirations and the reappointments of hand-picked replacements without notice to board members or the public posting of the vacancies represents a breach of public trust in violation of Florida Statute 112.313(6). The Ethics Commission authorized a preliminary investigation of the complaints filed by Respondent against Maxine Holst. The investigation was conducted by Larry D. Hill, a senior investigator with the Ethics Commission. The results of Mr. Hill’s findings were recorded in a Report of Investigation dated June 19, 1998. Based on the Report of Investigation and the Advocate’s recommendation, the Ethics Commission issued an Order finding that there was no probable cause to believe that Maxine Holst was guilty of the violations alleged in the three complaints filed by Respondent. The initial ethics complaint filed by Respondent against Ms. Holst alleged that Ms. Holst (1) improperly issued a building permit although the application had been previously denied; (2) was aware, when she issued the permit, that the permit had been denied; and (3) issued the permit only because the applicant was related to a member of the Town Council. These allegations were not true. Moreover, at the time the complaint was filed, there was no basis in fact for the allegations made by Respondent. When Margaret Walkup, wife of Wilshire Walkup, first submitted the permit application, it was accepted by the Town Clerk, Barbara Bessent. At the direction of June Glass, the chairperson of the Town's Historic Preservation Board, Ms. Bessent told Mrs. Walkup that the application must also include a site plan. Mrs. Walkup drew a diagram of a carport that was to be constructed and re-submitted the application. Ms. Bessent accepted the application. When a permit application involved a request for construction in the Town’s historic district, the Town's Historic Preservation Board would typically be required to review and approve the application. In this case, Ms. Glass believed that Mrs. Walkup’s application was incomplete in that the diagram drawn on the application did not, in Ms. Glass' opinion, constitute a site plan. In light of her belief, Ms. Glass told Ms. Bessent to send a letter to Mrs. Walkup notifying her that the application was incomplete and/or that it was denied. The letter was never written and no official action was taken on the application. Ms. Holst’s immediate predecessor, Ms. Bessent, never approved or denied the permit application nor did she create a file or in any way document the status of the application. Rather, she put the application in the correspondence file. This failure to document would make it impossible for anyone to know or determine what action, if any, had been taken on the application. On or about October 13, 1999, Margaret Walkup went to the Town Clerk's office and inquired about the status of the previously-filed building permit application. When the inquiry was made, Ms. Holst had been in the position of Town Clerk less than a week, was unfamiliar with the permitting process, and had no knowledge of the permit application in question. Therefore, prior to responding to Mrs. Walkup’s inquiry, Ms. Holst sought the advice of Town Council member Eunice Smith, who was in the office training Ms. Holst. Ms. Smith was an appropriate person to train Ms. Holst for her new position because, several years ago and prior to being elected to the Town Council, Ms. Smith had worked as the Town Clerk. After Ms. Holst and/or Town Councilwoman Smith located the application, Councilwoman Smith advised Ms. Holst that the Town's Land Development Regulations required issuance of the permit because the permit had been pending for more than 45 days. Based on Town Councilwoman Smith's advice and directive, Ms. Holst issued the permit, which allowed the construction of an aluminum carport on the property owned by Wilshire Walkup. Respondent's statements in the March 3, 1999, complaint against Ms. Holst, that the subject permit application was initially denied and that Ms. Holst was "aware" of the denial, were false and had no basis in fact. Finally, Respondent alleged that Ms. Holst issued the permit to Wilshire Walkup because he was related to Howard Walkup, a member of the McIntosh Town Council. This allegation was false and was easily discernable as such. Although Howard Walkup was a member of the McIntosh Town Council when Respondent filed her complaint against Ms. Holst, he was not a member of the Town Council in October 1997 when the permit was issued by Ms. Holst as alleged by Respondent. Respondent offered no explanation of the basis of her belief that at the time she filed the complaint, these statements were true. Thus, the allegations contained in Respondent's first complaint against Ms. Holst were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. As noted in paragraphs 21 and 22, Respondent's second complaint alleged that Ms. Holst failed to file a financial disclosure and also refused to return the notary seal to its owner and the former Town Clerk, Barbara Bessent. The allegation concerning Ms. Holst's failing to file a financial disclosure form is true. As of March 9, 1998, Ms. Holst had not filed the required financial disclosure form. In fact, it was only after Respondent filed this complaint that Ms. Holst first learned that the filing was required. However, upon learning of the requirement, Ms. Holst immediately filed the required financial disclosure form. Respondent stated that the former Town Clerk, Ms. Bessent, left her notary seal in the Town Clerk's Office through "oversight" and, thereafter, requested on three occasions that Ms. Holst give her the seal. There is no indication that Respondent had first-hand knowledge of the facts surrounding the return of Ms. Bessent's notary seal nor was there any evidence that Respondent's allegations were based on information obtained from reliable sources. Moreover, these statements made by Respondent in the March 9, 1998, complaint against Ms. Holst are contradicted by the credible testimony of Ms. Bessent, the person most knowledgeable about the situation involving her notary seal. Respondent's statement that Ms. Bessent left her notary seal in the Town Clerk's office through an oversight is not true. On Ms. Bessent's last day as Town Clerk, she voluntarily and intentionally left her notary seal in the Town Clerk's office after being asked to do so by Town Council member McCullum. Councilman McCullum explained to Ms. Bessent that he wanted to "clear" her and indicated that it would "be safer" for her to leave the notary seal at the office. Ms. Bessent complied with Councilman McCullum's request and never expressed an unwillingness to temporarily leave the notary seal in the Town Clerk's office. The second allegation included in the second ethics complaint, that Ms. Holst refused to return a notary stamp to the former Town Clerk, is false. The former Town Clerk, Barbara Bessent, provided credible testimony that Ms. Holst never refused to return the notary seal on the one occasion that Ms. Bessent asked Ms. Holst for the notary seal. When Ms. Bessent made this request, Ms. Holst, who had been Town Clerk only a few days, told her that if the Town paid for the seal that it belonged to the Town and that she would have to check with the Town Council. Ms. Bessent was familiar with how the Town Council worked and knew and understood that Council members wanted to be consulted on most matters. Ms. Bessent did not believe that Ms. Holst was refusing to give her the seal and did not believe Ms. Holst intended to use the seal. In fact, Ms. Bessent had reason to believe that Ms. Holst was a notary. Several weeks after Ms. Bessent requested that Ms. Holst give her the notary seal, a Town Council member authorized Ms. Holst to give Ms. Bessent her notary seal. Upon receiving this authorization, Ms. Holst gave Ms. Bessent the notary seal. Prior to Ms. Holst's returning the notary seal to Ms. Bessent, and soon after Ms. Bessent resigned as Town Clerk, the Town maintenance man came to the Town Clerk's Office to retrieve Ms. Bessent's personal items that she had left in the office. A few weeks later, Ms. Glass wanted to have Ms. Bessent notarize something for her. After Ms. Bessent told Ms. Glass that her notary seal was in the Clerk's Office, Ms. Glass volunteered to go to the Clerk's Office and retrieve the seal. Ms. Glass went to the office and asked for Ms. Bessent's notary seal. Ms. Holst did not give Ms. Bessent's notary seal to either the maintenance man or to Ms. Glass because she believed that it was improper to give Ms. Bessent's notary seal to a third party. At the time Respondent made the statements regarding the notary seal in the March 9, 1998, complaint against Ms. Holst, she either knew they were false or made them with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. The allegation in Respondent's third ethics complaint against Ms. Holst was that she, the mayor, and Town Council members had improperly determined that the terms of the Town's Code Enforcement Board had expired. This allegation is false and has no basis in fact. When Respondent made the statements and allegations in the complaint, filed on April 3, 1998, she either knew they were false or made them with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On January 8, 1998, Petitioner Richard McGath, a retired Sarasota building inspection official and resident of the Town of McIntosh, was appointed as the Town's code enforcement officer. This is a voluntary position, and one for which Mr. McGath receives no compensation. Mr. McGath spends about two hours a week performing duties associated with his position as the Town's code enforcement officer. On March 3, 1998, less than two months after Mr. McGath agreed to accept the Town's position of code enforcement officer, Respondent filed a verified ethics complaint against him. In the complaint, Respondent alleged that Mr. McGath failed to act on a matter and that such failure was a misuse of his position. The alleged act giving rise to Respondent's complaint against Mr. McGath was that the Town Clerk had improperly issued a building permit to Town resident Wilshire Walkup for construction of a carport, although it failed to meet the requirements of the Town's Historic Preservation Board. Respondent felt that the permit was issued only because Wilshire Walkup was related to Town Council member Howard Walkup. On or about December 10, 1997, two months after the subject permit was issued, Respondent filed a Notice of Complaint with the Town Clerk, alleging that Mr. McGath refused to take action when he determined that Wilshire Walkup had constructed an aluminum carport. The position of code enforcement officer was vacant at or near the time Respondent's December 1997 Notice of Complaint was filed. Therefore, no immediate action was taken on the Respondent's complaint. However, soon after Mr. McGath's appointment as code enforcement officer, he investigated Respondent's complaint regarding the permit issued to Wilshire Walkup. During the course of his investigation, Mr. McGath determined that the building permit had been issued to Wilshire Walkup on October 13, 1997. Mr. McGath then went to Wilshire Walkup's property and observed that an aluminum carport had been constructed. Mr. McGath believed that the structure was in violation of Town ordinances. However, Mr. McGath issued a one-time waiver for the structure because the Town Clerk had issued the building permit on October 13, 1997, and by the time he assumed the position of code enforcement officer, the structure already had been constructed. Based on Respondent's December 1997 Notice of Complaint, the structure had likely been constructed as early as December 10, 1997. Mr. McGath explained to Mr. Walkup that any further modifications on the structure would have to comply fully with all applicable code requirements. These comments were noted on the response portion of Respondent's Notice of Complaint. Mr. McGath took the action he did with respect to Wilshire Walkup's carport because, prior to his investigation, the building permit had been issued and the carport had already been constructed. Both of these events occurred before Mr. McGath was appointed as the Town's code enforcement officer. Based on his experience and given the facts related to the Wilshire Walkup project, Mr. McGath believed that the course of action he chose was a prudent one. Respondent also alleged that Mr. McGath took no action against Wilshire Walkup because he was related to Howard Walkup, a member of the Town council. First, as stated in paragraph 33, Howard Walkup was not a member of the Town Council at the time the permit was issued. Second, after Howard Walkup was elected to the Town Council in November 1997, he never attempted to influence or even discuss the matter with Mr. McGath during his investigation of the matter. Finally, prior to his investigating Respondent's December 1997 Notice of Complaint, Mr. McGath had never met Wilshire Walkup and did not know that he was related to Town Councilman Howard Walkup. The action taken by Mr. McGath relative to Respondent's complaint regarding Wilshire Walkup's aluminum carport was not a misuse of his position as alleged by Respondent. Respondent had no evidence to base her claim that Richard McGath misused his public office for private gain. Yet, she filed a verified complaint with the Commission alleging that he had done so. Respondent offered no reasonable explanation or basis for her believing that when the statements in her ethics complaint were made, that they were true. In light of the foregoing, the statements and allegations contained in Respondent's complaint, filed on March 3, 1998, against Mr. McGath were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. On April 14, 1998, Respondent filed a second ethics complaint against Mr. McGath. In that complaint, Respondent alleged that Mr. McGath had violated Section 112.313(6), Florida Statutes, by allowing unpermitted land development by a former Town official. In the complaint, Respondent noted that she had previously filed a Notice of Complaint with the Town regarding the alleged unpermitted land development and that the code enforcement officer, Mr. McGath, had determined that the complaint was unfounded. Respondent's Notice of Complaint regarding the alleged unpermitted land development was filed with the Town on March 4, 1998. Mr. McGath investigated the matter and determined that on the property in question, a culvert was being put in to replace another culvert that had been crushed. Based on his investigation, Mr. McGath did not find that there was unpermitted land development and thus concluded that Respondent's complaint was unfounded. This finding was made on March 12, 1998. Respondent learned of Mr. McGath's finding on April 1, 1998, but never questioned him regarding the reason for his finding. On April 14, 1998, without making any inquiry into the basis of Mr. McGath's finding, Respondent filed an ethics complaint alleging that Mr. McGath misused his public position by allowing alleged unpermitted land development. Respondent had no factual basis upon which to base the statements and allegations contained in the ethics complaint against Mr. McGath. In light of the foregoing, the statements and allegations contained in Respondent's complaint filed on April 14, 1998, against Mr. McGath were filed with knowledge that they were false or with reckless disregard for whether the complaint contained false allegations of fact material to a violation of the Code of Ethics. The Ethics Commission authorized a preliminary investigation of the complaints filed by Respondent against Mr. McGath. The investigation was conducted by Larry Hill, a senior investigator with the Ethics Commission. Thereafter, the Ethics Commission issued an Order finding no probable cause to believe that Mr. McGath was guilty of the violations alleged in the two complaints filed by Respondent. Respondent frequently attends the Town Council meetings and is knowledgeable of the workings of the Town of McIntosh. Moreover, Respondent knows how to obtain public documents through public records requests and has made such requests on a regular basis. The record reveals that for many years Respondent attended many Town Council meetings, made numerous public record requests to the Town of McIntosh, and wrote numerous letters to the Town Council, various governmental agencies, and officials. In many of those letters, Respondent complained of alleged violations by Town officials, cited statutes, codes, and ordinances, and quoted liberally from Town ordinances, Town council minutes, and other documents. Many of the letters prepared by Respondent reflect that she had extensively researched selective issues contained therein. In fact, Respondent indicated in one letter that based on her research, she had determined that certain conduct constituted a misdemeanor offense. However, in the instant case, Respondent not only failed to research the facts alleged in the complaints, but apparently never made even a cursory review of the Town records prior to leveling her complaints against Petitioners. Where allegations are made under oath, as in this case, it is appropriate for a complainant to at least make a cursory review of the facts before filing a complaint alleging officials have violated Florida Statutes. In the instant case, between March 3, 1998, and April 5, 1998, Respondent filed a total of nine verified ethics complaints against Petitioners. Three of the complaints were dismissed by the Ethics Commission without an investigation. In the remaining six complaints which are the subject of this proceeding, Respondent made numerous unsubstantiated allegations and statements of fact to which she had no personal knowledge. Respondent also failed to check the accuracy and veracity of statements before she filed these complaints. Based on the foregoing, it is clear that Respondent filed the ethics complaints against Petitioners with a malicious intent to injure the reputations of Petitioners because they were filed with the knowledge that the complaints contained one or more false allegations, or with reckless disregard for whether the complaints contained false allegations of fact material to a violation of the Code of Ethics. In defending themselves against the allegations in the subject complaints and in this proceeding, Petitioners have been represented by S. Scott Walker, Esquire, and Gary Printy, Esquire. The normal hourly rate for S. Scott Walker and Gary Printy, counsel for Petitioners, is $175.00 per hour. This is a reasonable hourly rate. However, in this case, the hourly rate assessed to Petitioners was $75.00. The hourly rate of $75.00 is also reasonable. S. Scott Walker expended 47.70 hours on this matter, including time spent in this proceeding. Mr. Printy expended four hours on this matter. The total attorney time expended on this matter, 51.70 hours, is reasonable. The attorney's fee of $4,109.47 incurred by Petitioners as a result of Mr. Walker's representation is reasonable. Also, the attorney's fee of $400.00 incurred by Petitioners as a result of Mr. Printy's representation is reasonable. Reasonable costs of $231.98 were incurred in connection with defense of the ethics complaints against Petitioners and in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that a final order be entered finding that Respondent, Mary Lueders Burnett, is liable for attorney's fees of $4,509.47 and costs of $231.98. RECOMMENDED this 15th day of September, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 15th day of September, 1999. COPIES FURNISHED: S. Scott Walker, Esquire Post Office Box 1070 Gainesville, Florida 32602-1070 Mary Lueders Burnett Post Office Box 381 McIntosh, Florida 32664-0381 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Recommendation Based upon the foregoing, it is ORDERED: The Department's motion to dismiss is DENIED; The Department should afford the Petitioner an opportunity to participate in the proceedings arriving at the consent order, or alternatively; The Department should dismiss the original notice of violation against the Petitioner with prejudice. DONE and ENTERED this 28th day of July, 1994, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1994. COPIES FURNISHED: C. Holt Smith, III, Esquire Suite 3301 One Independent Drive Jacksonville, FL 32202 Charlene Petersen, Esquire HRS District 4 Legal Office Post Office Box 2417 Jacksonville, FL 32231-0083 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue for disposition is whether Mary McCarty, Respondent in a complaint to the Florida Commissions on Ethics, is entitled to costs and reasonable attorney's fees from the complainant, Leslie F. McDermott, pursuant to Section 112.317(8), F.S.
Findings Of Fact Mary McCarty has resided in Delray Beach, Florida for approximately twenty years. She is politically active as a Republican; she served as a Delray Beach city commissioner from 1987 until 1990, and now currently serves as chairperson of the Palm Beach County Commission. William (Bill) Andrews, also a Republican, was elected to the Delray Beach City Commission approximately one year after Ms. McCarty. The two worked together on certain issues, including an issue regarding the firing of the city manager, and more often than not, they voted on the same side. Leslie F. McDermott lives in Lake Worth, Palm Beach County, Florida. He has never resided in Delray Beach. He is employed as an engineer for a computer company and is well known and respected in the community as an active member of the NAACP. He served as president of the south county branch of the NAACP for seven or eight years until recently, and now serves on the executive board of that local branch. Jeanette (Jay) Slavin is a "grass roots" political activist in the south county area. As a Democrat she has been very involved in political campaigns and has openly supported candidates and issues in heated opposition to Mary McCarty. Malcolm Byrd, a Republican, served on the Delray Beach City Commission from 1979 until 1987, and was city manager from 1989-90. At first he supported Mary McCarty, but as city manager he had differing views of how the city should proceed and how the city manager should function. In early 1990, Malcolm Byrd learned that Bill Andrews had attended a Republican fund-raiser in Orlando, with transportation by chartered jet and limousine provided by a third party. Bill Andrews openly discussed the trip and how lavish it was. Andrews displayed a photograph of himself at the event with President Reagan or other noted Republicans. Malcolm Byrd became aware that Andrews had not reported that trip on his financial disclosure form, and shared that information with Jay Slavin. There was also some talk that Mary McCarty had attended the fund-raiser, as Andrews referred to "we" when discussing the trip. Mary McCarty's financial disclosure form for 1990 did not reflect the alleged gifts related to the trip. Jay Slavin had lunch with Leslie McDermott and urged him to file ethics complaints against both Andrews and McCarty. Ms. Slavin had obtained the requisite forms from the commission. She felt that Leslie McDermott's complaint would have more credibility as she, Slavin, was known to be politically opposed to Andrews and McCarty. Leslie McDermott was reluctant at first to file the complaint against McCarty, as the only basis that Jay Slavin gave him was that Bill Andrews said "we" went on the trip, and everyone knew that Mary McCarty frequently attended fund-raisers and political events. Leslie McDermott drafted the complaint based on information from Jay Slavin, and Ms. Slavin typed it for his signature, as he has a visual handicap. Before sending the complaint, McDermott spoke with Malcolm Byrd, who told him that he did not have the evidence on McCarty that he had on Andrews and that he could not encourage him to file on McCarty. McDermott heard rumors from other people who believed she had attended the function, but no one told him they had personal knowledge of the trip or had actually seen McCarty. At the hearing, and during the investigation by the commission, Leslie McDermott refused to divulge the names of those other persons who told him they believed Mary McCarty took the trip. After sending the complaints, McDermott gave Jay Slavin permission to give them to three newspapers which he specified: the Palm Beach Post, the Sun Times and the Fort Lauderdale Sentinel. He personally called the papers and told them that the matters in the complaints needed to be investigated. He also told the reporters that the complaints had no official connection with the NAACP. He considered the three papers to be responsible, non-sensational publications and he had experience in the past with issuing press releases. On February 6, 1992 the Sun-Sentinel published a story with the headline, "ETHICS COMPLAINTS FILED", stating that an NAACP official filed ethics complaints alleging that Mary McCarty and Bill Andrews attended a $1000 a plate fund-raiser paid for by a group of bond brokers, and failed to disclose the gifts. Mary McCarty contacted the NAACP, and Leslie McDermott was chastised for involving the organization. He did not call the newspaper to demand a corrective article as he did not want to "add fuel to the fire". He avowed distress, however, that people associated the issue with the NAACP. Meanwhile, the Ethics Commission conducted its investigation and found that, indeed, Mary McCarty did not attend the event. That was a conclusion that should have been reached by Mr. McDermott prior to his filing the complaint. Instead, on the complaint form, he signed the following statement under oath: COMPLAINT THAT THE COMMISSIONER NAMED ABOVE, THEN A DELRAY BEACH CITY COMMISSIONER DID VIOLATE FLORIDA STATUTE 112 IN THAT THE COMMISSIONER ACCEPTED GIFTS VALUED IN EXCESS OF $100.00 AND FAILED TO REPORT SAME IN ACCORDANCE WITH STATE LAW. THE GIFTS WERE PROVIDED BY MEMBERS OF A BOND UNDERWRITING GROUP HEADED BY SMITH BARNEY. THEY INCLUDED: ROUND TRIP TRANSPORTATION ON A CORPORATE JET FROM WEST PALM BEACH TO ORLANDO AND BACK; AND, ROUND TRIP LIMOUSINE SERVICE FROM THE ORLANDO AIRPORT TO THE ORANGE COUNTY CONVENTION AND CIVIC CENTER AND RETURN TO THE AIRPORT; AND, A TICKET TO ATTEND THE $1000 PER PERSON FUND RAISER DINNER BENEFITING GOV. MARTINEZ AND FEATURING PRESIDENT GEORGE BUSH. THE FOREGOING GIFTS HAVE AN ESTIMATED VALUE OF $1350 TO 1500 WELL IN EXCESS OF THE REPORTING REQUIREMENTS. THE COMMISSIONERS FINANCIAL DISCLOSURE FORM FOR THE CALENDAR YEAR 1990 WHICH COVERS THE DATE OF THE SUBJECT EVENT ON FRIDAY APRIL 20 1990 SHOWS NO GIFTS RECEIVED. IN ADDITION TO COMMENTS MADE TO VARIOUS INDIVIDUALS ABOUT THE DETAILS OF THE TRIP, INCLUDING THE FACT THAT ALL EXPENSES HAD BEEN PAID BY THE BOND BROKERS, THE COMMISSIONER WAS OBSERVED AT THE EVENT BY NUMEROUS LOCAL OFFICIALS AND RESIDENTS. (Exhibit 1, Complaint dated February 2, 1992) Leslie McDermott did not ask Bill Andrews or Mary McCarty whether she attended the function. He did not contact anyone, including the sponsor of the event, who would likely have personal knowledge of her attendance. Instead, he relied on rumors and indirect reports, all which he knew were based on these tenuous connections: Bill Andrews used the term "we" in bragging about the trip. Mary McCarty frequently attended political events and was politically active. Mary McCarty and Bill Andrews, both Republicans (but not the only Republicans on the city council), often voted alike. Some unnamed persons overheard conversations which made them believe that Bill Andrews and Mary McCarty were on the trip together. Leslie McDermott's explanation that he released the complaint to the press so that an investigation could be conducted is simply not persuasive. He is an educated, articulate and experienced individual. He knew or should have known that public exposure of his complaint would injure the reputation of Ms. McCarty. Despite his own initial misgivings, Mr. McDermott allowed himself to be used by individuals who could only benefit from that injury. His failure, due to hubris or extraordinarily bad judgment, to make a reasonable attempt to check the veracity of the rumors, constitutes the reckless disregard by which malicious intent may be proven. In defending against the complaint and in pursuing relief in this proceeding, Mary McCarty has incurred costs and attorneys fees in the total amount of $12,876.55. Exhibit #4a), b), and c) appropriately itemizes the 50.9 hours and $2696.55 costs incurred. The hourly rate of $200.00 was stipulated as reasonable. Leslie McDermott contests the reasonableness of any time spent and costs incurred after the commission's order finding no probable cause was issued. Based upon the unrefuted testimony of Robert V. Romani, Esquire, an experienced litigator, past-president of the Palm Beach County Bar Association and member of the Board of Governors of the Florida Bar; and after considering relevant case law discussed below, I find that the hours and costs both before and after dismissal of the complaint are reasonable.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Commission on Ethics issue its final order awarding fees and costs in the total amount $12,876.55 to Mary McCarty from Leslie McDermott. DONE AND RECOMMENDED this 23rd day of August, 1993, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5168EC The findings of fact proposed by both parties are substantially adopted here, with the exception of the following findings proposed by Leslie McDermott. Paragraph 13. The "reasonable" appearance or belief as to Ms. McCarty's guilt is rejected as unsupported by the weight of evidence. Paragraph 15. The reason Mr. McDermott presents for signing the complaint is rejected as not credible, in the face of his inconsistent action in presenting the complaint to the press. Paragraphs 16-18 are rejected as contrary to the weight of evidence. COPIES FURNISHED: Bonnie Williams, Executive Director Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Phil Claypool, General Counsel Ethics Commission Post Office Box 6 Tallahassee, Florida 32302-0006 Kenneth D. Stern, Esquire Post Office Box 3878 Boca Raton, Florida 33427-3878 James K. Green, Esquire One Clearlake Centre 250 South Australian Avenue West Palm Beach, Florida 33401
The Issue The issue in this case is whether Petitioner is of good moral character, which must be affirmatively determined by Respondent before Petitioner can be issued a license to operate as a community association manager.
Findings Of Fact The Parties Petitioner Department of Business and Professional Regulation ("Department") has jurisdiction to regulate the practice of community association management. In June 2008, Petitioner Teddy Nadel ("Nadel") submitted to the Department an application for licensure as a community association manager. In August 2008, the Department notified Nadel that it intended to deny his application on the ground that he had failed to demonstrate good moral character. Nadel's Relevant Personal History For decades, from the mid-1960s through 2005, Nadel was a certified general contractor in the state of Florida. During most of this period, Nadel apparently engaged in the business of contracting without incident. In recent years, however, Nadel on several occasions was disciplined administratively for alleged misconduct in connection with his contracting business. The first disciplinary proceeding arose from Nadel's alleged failure timely to pay a civil judgment. In August 2001, the Department issued an Administrative Complaint accusing Nadel of having failed "to satisfy[,] within a reasonable time, the terms of a civil judgment obtained against the licensee . . . relating to the practice of the licensee's profession," which is an offense under Section 489.129(1)(q), Florida Statutes. Without admitting or denying the allegations, Nadel agreed to entry of a Final Order, in August 2002, whereby he was directed to satisfy the judgment, pay a fine of $500, and reimburse the Department $333.37 in costs. In March 2003, the Department again issued an Administrative Complaint against Nadel. The multiple charges included failure timely to satisfy a civil judgment, mismanagement,1 incompetence,2 and helping an unlicensed person engage in the business of contracting.3 In December 2003, pursuant to a stipulation under which Nadel elected not to dispute (or admit) the charges, the Construction Industry Licensing Board ("Board") entered a Final Order requiring Nadel to pay a fine and costs totaling approximately $4,000, satisfy the final judgment against him, and serve two years' probation. On March 7, 2005, the Board entered a Final Order Approving Voluntary Relinquishment of Licensure, which permanently stripped Nadel of his general contractor license. This action brought to an end certain disciplinary proceedings which were then pending against Nadel, who had been charged with helping four separate unlicensed individuals engage unlawfully in the business of contracting. Nadel neither admitted nor denied the allegations. At the final hearing, Nadel was afforded a full opportunity to explain the circumstances surrounding the multiple disciplinary actions that had been brought against him. To the rather limited extent Nadel testified about the facts underlying the numerous administrative charges described above, he failed persuasively and credibly to rebut the reasonable inference that naturally arises from the undisputed facts concerning his willingness repeatedly to accept punishment (including, ultimately, the loss of his license) without a contest in the respective disciplinary cases: namely that he had committed the unlawful acts as alleged. The undersigned therefore infers that, in the relatively recent past, Nadel exhibited a troubling pattern of behavior demonstrating a disregard of the laws regulating the business of contracting. On January 4, 2007, Nadel was convicted in the Circuit Court for the Seventeenth Judicial Circuit on charges of engaging in the unlicensed practice of contracting during a state of emergency, which is a third degree felony4; and grand theft in the third degree, which is also a felony of the third degree.5 (Nadel had pleaded no contest to these charges, and the court had withheld adjudication.) Following this conviction, the court sentenced Nadel to 18 months' probation, imposed some small fines, and assessed costs. In his application for licensure as a community association manager, Nadel disclosed his criminal conviction and the fact that he had voluntarily relinquished his general contractor license. He denied, however, having been "involved in any civil lawsuits or administrative actions in this or any other state . . . ." This denial was false, as Nadel must have known. After all, in the previous six years at least two administrative actions had been brought against Nadel in whole or in part because of his failure to pay two separate civil judgments. Ultimate Factual Determination Based on the foregoing findings of fact, the evidence in support of which is clear and convincing, it is determined that Nadel does not possess the good moral character required for issuance of a community association manager license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Nadel's application for licensure as a community association manager. DONE AND ENTERED this 18th day of March, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 18th day of March, 2009.
