Conclusions Having reviewed the Amended Administrative Complaint, the Notice of Intent to Deny, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Notice of Intent to Deny and Election of Rights forms to the Respondent (Ex. 1 & 2). The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement (Ex. 3). Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent’s Extended Congregate Care (“ECC”) license is SURRENDERED 30 days from the date of this Final Order. If it has not done so already, the Respondent shall promptly provide notice to all of its ECC residents that it will no longer be licensed to provide such services. The Respondent shall also take all necessary steps to ensure the prompt and safe discharge of any ECC resident that may need to be discharged to another facility. 3. With respect to ECC services, the Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. Filed June 11, 2013 8:34 AM Division of Administrative Hearings 4. The Respondent retains its standard assisted living facility license. If the Agency has not already completed its review of the renewal application, it shall resume its review of the application and process it accordingly noting the surrender of the ECC specialty license. 5. The Respondent shall pay the Agency $5,500.00. If full payment has been made, the cancelled check acts as receipt of payment. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this_ 10. day of _Jmne. 2013. Elizabét Dudek, 3 Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and corre of this Final Order_was served on the below-named persons by the method designated on this OP Jane , 2013. Richard -_=>- —— Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Patricia Caufman, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration (Electronic Mail) Suzanne Suarez Hurley Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Shawn McCauley Medicaid Contract Management Theresa E. Morris, Administrator Pine Acres Golden Age Centre Agency for Health Care Administration 5030 Cub Lake Drive (Electronic Mail) Apopka, FL 32703 (U.S. Mail) Elizabeth W. McArthur JoAnne Kenna, Esq. Administrative Law Judge The Health Law Firm Division of Administrative Hearings (Electronic Mail) 1101 Douglas Avenue Altamonte Springs, FL 32714 (U.S. Mail) NOTICE OF FLORIDA LAW. 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an 3 injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about October 25, 1988, a Felony Complaint was filed in Municipal Court, Mt. San Jacinto Judicial District, Riverside County, California (Case No. 884467) charging that Petitioner had committed a violation of Section 278.5, Subdivision (b) of the Penal Code, a felony, in that on or about September 1, 1988, in the County of Riverside, State of California, she, being a person having physical custody of a child pursuant to an order, judgment, and decree of court which granted to another person [her former husband] rights of physical custody and visitation, did willfully and unlawfully, with the intent to deprive such person of such rights to custody and visitation, detain, conceal, take, and entice away such child, to wit, JAMES H. RODEN [her son, who, according to court documents, was born on April 22, 1989]. An Amended Felony Complaint charging Petitioner with the same felony offense was filed on or about April 8, 1991. Subsequently, there were plea negotiations which resulted in Petitioner entering a guilty plea to a reduced, misdemeanor charge, which the court accepted. In June or July of 1993, Petitioner submitted to the Department an application for licensure as a general lines insurance agent. Among the questions on the application form that Petitioner filled out were the following: Have you ever been charged with or convicted of or pleaded guilty or no contest to a crime involving moral turpitude (yes or no), or a felony (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or con- viction has been entered? (yes or no) If yes, give date(s): What was the crime? Where and when were you charged? Did you plead guilty or nolo contendre? Were you convicted? Was adjudication withheld? Please provide a brief description of the nature of the offense charged If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. On this portion of the form, Petitioner wrote "no" in each of the first three blank spaces and made no further entries, notwithstanding that several years prior thereto, in Mt. San Jacinto Judicial District Municipal Court Case No. 884467, she had indeed been charged with (albeit not found guilty or convicted of) a felony punishable by imprisonment of one year or more. Petitioner, however, did not intend to misrepresent or conceal any information or to otherwise deceive the Department concerning her past. She mistakenly believed that, in this portion of the form, the Department was inquiring only about criminal offenses involving "moral turpitude." After looking up the term "moral turpitude" in the dictionary, she determined that the crime with which she was charged in Mt. San Jacinto Judicial District Municipal Court Case No. 884467 was not one involving "moral turpitude" inasmuch as her actions in abducting her son were intended to protect the child and were not in any way "wicked." After receiving Petitioner's application, the Department conducted a records check which revealed the felony charge that had been filed against Petitioner in Mt. San Jacinto Judicial District Municipal Court Case No. 884467. The Department thereupon advised Petitioner of its discovery and asked her to supply it with certain documnents that were filed in the case. Petitioner complied with the Department's request.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order announcing its intention to continue to process Petitioner's application for licensure as a general lines insurance agent rather than denying the application on the ground stated in the Department's January 26, 1994, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of September, 1994. STUART M. LERNER 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 14th day of September, 1994. COPIES FURNISHED: Lisa Beth Weiner 572 Northeast 31st Street Pompano Beach, Florida 33064 James A. Bossart, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue Whether the Respondent violated Chapter 626, Florida Statutes, by entering a plea of nolo contendere of grand theft of the third degree; whether he was placed on probation without an adjudication of guilt for grand theft of the third degree; and whether he lacks the fitness and trustworthiness to engage in the insurance business contrary to Chapter 626, Florida Statutes.
Findings Of Fact The Respondent, Ronald David Lewis, holds various licenses to sell insurance contracts issued by the Petitioner, which is charged by statutes to regulate licensees. The Respondent misappropriated over $10,000 from Audrey M. Walker, who was a client of the Respondent. The State's Attorney for the Seventh Judicial Circuit filed an information against the Respondent charging him with grand theft of the third degree. The Circuit Court Judge Shawn L. Briese entered an order of probation which reflects that the Respondent entered a plea of nolo contendere, and was placed on 60 months' probation by order withholding adjudication of guilt. The deposition of Audrey M. Walker establishes that the Respondent misappropriated funds from Ms. Walker, whose trust he had gained by virtue of his licensed status.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its final order revoking all the licenses Respondent holds to sell insurance contracts. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 9th day of March, 2001. COPIES FURNISHED: James A. Bossart, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Ronald David Lewis 3800 South Atlantic Avenue Apartment 304 Daytona Beach, Florida 32127 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300
The Issue Whether Petitioner was an employee of Respondent's at the time of the alleged unlawful employment practices described in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' Joint Prehearing Stipulation and their October 13, 2008, pleading2: Petitioner is a college graduate with a communications degree. She has held a Florida life, variable annuity, and health insurance agent (2-15) license issued by the Department of Financial Services since March 8, 2005. Respondent's home office is located in Omaha, Nebraska. At all times material to the instant case, Respondent had a divisional office located at 2240 Woolbright Road, Suite 400, Boynton Beach, Florida (Boynton Beach Office) staffed by a general manager (Michael Chojnacki), a district sales manager (Ronald Green), and two secretaries (Victoria Hughes and Carolyn Mickley). Mr. Chojnacki, Mr. Green, Ms. Hughes, and Ms. Mickley were salaried employees of Respondent's paid by check issued by the home office. They enjoyed employee benefits that included vacation time; sick leave; health, vision, and dental coverage; disability and life insurance; and a retirement plan. These benefits were described in an employee handbook that were given to each of Respondent's employees. Mr. Chojnacki was responsible for overseeing the day- to-day operations of the Boynton Beach Office, including insurance application review and processing and agent recruitment. In late March 2005, Petitioner contacted Mr. Chojnacki by telephone to inquire about the possibility of her becoming an insurance agent for Respondent. Thereafter, on April 1, 2005, Petitioner went to the Boynton Beach Office and met with Mr. Chojnacki. Mr. Chojnacki talked to Petitioner about what she needed to do to become an agent for Respondent and how agents were compensated. He explained that Respondent paid its agents on a commission-only basis, based on the amount of business they produced for Respondent. During her April 1, 2005, visit to the Boynton Beach Office, Petitioner executed a Statement of Qualifications-Agent Candidate form (referenced in the parties' Stipulations of Fact 9 and 10) with which Mr. Chojnacki had provided her. The form, which sought "[j]ust basic information" about the candidate, contained the following disclaimer and acknowledgement: This is a statement of qualifications to become contracted as an agent and is not an application of employment. * * * I understand that if contracted as an agent, this document, the agent's contract, the training materials I may receive, and any other manuals and documents, are not contracts of employments. Further, if contracted with the Mutual of Omaha Insurance Company as an independent contractor, I may terminate the agent’s contract with or without cause, at any time, as may Mutual of Omaha Insurance Company. Mr. Chojnacki subsequently e-mailed Petitioner and requested that she complete a career profile test (designed to measure how Petitioner "would do in the insurance and in the sales industry"). Petitioner scored a ten out of 19 on the test, sufficient to keep her candidacy for an agent position alive. Mr. Chojnacki thus sent the Statement of Qualifications-Agent Candidate form Petitioner had executed on April 1, 2005, to the home office for processing. A background check on Petitioner was then done. The background check revealed nothing in Petitioner's past that would disqualify her from becoming an agent for Respondent. After learning that the home office had cleared her, Mr. Chojnacki gave to Petitioner for her to study various booklets Respondent had developed for its agents to educate them about its product offerings. At the beginning of each booklet was the following statement: As an independent contractor, the ultimate decision regarding your participation in these programs is yours and yours alone. Neither Mutual of Omaha nor its representatives can dictate the time or place and manner by which you sell its products and acquire the knowledge and skills necessary to effectively sell its products. Therefore, the Career Development Program is voluntary. However, due to the complexity and sophistication of the companies' products, you must be able to demonstrate a mastery of the material contained in this program to be able to offer these products to prospective clients. This program has been developed to offer a structured methodology which has proven to be a highly effective way to master the knowledge and skills to sell our products. In addition, it is our judgment that this method provides an efficient approach to achieve the required mastery and, therefore, we recommend it. Discussion and follow-up from your manager does not change the voluntary nature of your participation, but only serves to assist you in mastering the material and enables the companies to fulfill [their] public obligation to ensure that all representatives are fully trained and knowledgeable. Each booklet Mr. Chojnacki provided to Petitioner had a unique identifying serial number and included a corresponding tear-out test answer sheet with the same unique identifying serial number to be used to answer questions concerning material covered in the booklet. After reading the booklets and answering the questions posed therein, Petitioner furnished Mr. Chojnacki with her completed test answer sheets (which she had torn from the booklets). Mr. Chojnacki then faxed these answer sheets to the home office to be graded. He subsequently received an e-mail from the home office advising him that Petitioner had received passing grades on all of the tests. After receiving this e-mail, Mr. Chojnacki met with Petitioner "to get her ready" to become an agent. During the meeting, he again discussed with Petitioner Respondent's commission-only, production-based compensation program for agents, including the opportunities available to agents to receive bonuses in addition to their base commissions. He further informed her that, as an agent, she would be an independent contractor who "gets paid off a 1099." On April 11, 2005, Petitioner received a copy of Respondent's Agency Sales Compliance Manual (Manual), which gave an overview of the legal requirements applicable to the activities of agents in the sale of Respondent's products. On page 9 of the Manual was the following discussion regarding "Continuing Education": Mutual of Omaha encourages the professional development of producers through training and participation in industry organizations that promote ethical sales practices, as well as through the continuing education required to maintain a license. It is the policy of Mutual of Omaha to provide producers with insurance-related training, including training that qualifies for continuing education. Mutual of Omaha provides continuing education courses and makes continuing education courses available through a variety of methods. These methods include self-study courses through vendors, industry designation courses such as CLU, CFP, ChFC, LUTC and specialized training provided by Mutual of Omaha. As an independent contractor, it is your responsibility to ensure that continuing education requirements are satisfied, whether through training provided by Mutual of Omaha or independently taken training. If a license lapses or is cancelled, commission payments may be stopped until such time as the license is reinstated or a new license is obtained. Questions regarding continuing education should be directed to your Manager or the Home Office at (402)351-4949. Page 27 of the Manual contained the following advisement: In order to help ensure ethical market conduct practices, integrity and fair competition on the part of its producers, producers are prohibited from engaging in solicitation, marketing and sales practices that are illegal, unethical or contrary to the requirements established by Mutual of Omaha Insurance Company and its affiliates. At no time did Mr. Chojnacki give Petitioner a copy of Respondent's employee handbook. On April 11, 2005, Petitioner signed a W-9 (Request for Taxpayer Identification Number and Certification) form, an Internal Revenue Service (IRS) tax form that Respondent's agents are routinely given to sign. Petitioner also executed on that date Respondent's Errors and Omissions Agent Insurance Program form (referenced in the parties' Stipulations of Fact 15 and 16). The following statement appeared immediately above the signature line on the form: All agents are reminded that they are independent contractors under contract with the Company. As such, they are personally responsible for any claims, demands or lawsuits made by third parties arising from allegations of breach of contract, negligence or other wrongdoing on the part of the agent. The undersigned affirms that the foregoing is true, correct, and complete, and has read the "Enrollment Form Instructions" and understands same. On April 12, 2005, Petitioner was formally appointed as an agent for Respondent and United World Life Insurance Company, an affiliate of Respondent's. Petitioner and Mr. Chojnacki (on behalf of Respondent) signed an Agent's Contract (referred to in the parties' Stipulations of Fact 11 through 13 and 27 as the "Agent Agreement"), which had an effective date of April 27, 2005. Ms. Mickley then submitted the contract to the home office for signature. This was the only Agent's Contract that Petitioner signed. At no time did she sign another contract. Section B. of the Agent's Contract was entitled, "General Provisions," and provided, in pertinent part, as follows: Appointment. The Company [Respondent] appoints the Agent [Petitioner] to personally solicit and procure applications for Products and provide such service as may be required. This appointment is not exclusive. * * * 5. License. The Agent is responsible for securing and keeping in effect any licenses and appointments required to represent the Company. The Agent agrees not to solicit for Products unless the proper license has been obtained. * * * Section C. of the Agent's Contract described the "Agent's [d]uties" as follows: The Agent shall, in accordance with applicable Company rules: Procure Applications. Solicit and procure applications for Products. Submit Applications. Immediately submit to the Company applications procured. Collect Moneys. Collect all Moneys as trust funds and immediately turn them over to the Company without deduction. All Moneys are the property of the Company. Service Clients. Render all service incidental to the development and conservation of the Company's business which may be deemed necessary by the Company. Obtain Bond and Insurance. If requested by the Company, obtain and maintain in force: a bond covering fidelity losses; and errors and omissions insurance. The amount and nature of both must be satisfactory to the Company. Protect Proprietary Materials. Agent shall: Use Proprietary Material for authorized business purposes only. Agent is only authorized to obtain and use Proprietary Material which is necessary to perform [his or her] duties; Hold in the strictest confidence all Proprietary Material received and shall not disclose any Proprietary Material to any third party or parties without the prior written consent of the Company; Use appropriate safeguards commonly available, such as anti-virus, firewalls and encryption, to prevent use or disclosure of Proprietary Material. This shall include compliance with all existing and enacted laws and regulations; Report any incidents involving Proprietary Material to Mutual of Omaha's Field Assistance Center within 24 hours of discovery. All details of the incident should be provided so that Company can assess the scope and impact and take additional action as necessary to safeguard the information. Return any Proprietary Material received from the Company to the Company immediately upon termination of this Contract. Adequately brief [his or her] staff, if any, on the conditions documented in this Section. Follow Company Practices. Adhere to and comply with all Company practices and procedures. Act Ethically. At all times act in an ethical, competent and professional manner, including without limitation, with respect to any compensation disclosure obligations it may have governing its relationships with Clients. Comply with Laws. Comply with applicable laws and regulations. "Office [p]rivileges" were addressed in Section E. of the Agent's Contract, which provided as follows: The Company may provide for the Agent's use office facilities, supplies, clerical support and other property or services. The Company may withdraw or charge for these privileges at any time. In Section F. of the "Agent's Contract" was the following discussion regarding "[c]compensation": Attachments. The compensation of the Agent for all acts performed hereunder or otherwise during the term of this Contract, and for expenses incurred or property acquired, is specified in the Attachments. No compensation shall be payable until the Project on which compensation is claimed is actually issued. Compensation Continuance. The Company is obligated to pay compensation due under this Contract only while: this Contract is in effect; and the Agent is performing the duties specified in the Section entitled AGENT'S DUTIES; provided, however, compensation indicated as "vested" or "deferred" in the Attachments shall not be withheld pursuant to this provision. Agent's Account. Compensation payable under this Contract shall be subject to an offset for any indebtedness of the Agent to the Company and shall not be due until such indebtedness is satisfied. Such indebtedness shall include, but not be limited to: Chargeback of any compensation paid or credited to the Agent under this or any other contract, if the Moneys on which such compensation was based are not collected or are refunded by the Company; Any amount paid by the Company which, in the Company's determination, resulted from any fraud, misrepresentation or other improper conduct on the part of the Agent; Any expenses incurred by the Company on behalf of the Agent; Any advances made by the Company to the Agent; and Any other amounts which the Agent owes the Company. The Agent, shall upon request by the Company, immediately repay in full any indebtedness. Any amount remaining unpaid shall be subject to collection by such legal means as are available to the Company. The Company shall have the right to withhold payment of any credit balance in the Agent's account for not more than 13 months after termination of this Contract to assure that funds are available to reimburse the Company for any indebtedness. Thereafter, any net credit balance shall become due and payable. "Termination" was discussed in Section H. of the Agent's Contract, which provided as follows: With Notice. The Company or the Agent shall have the right at any time to terminate this Contract, with or without cause, by written notice to the other party. Without Notice. This Contract shall be automatically terminated should the Agent fail to submit an application for a Product for a period of 180 days. Procedural Guidelines. The Company may from time to time adopt procedural guidelines applicable to agent contract terminations. Adoption of these guidelines and any failure to observe them shall neither grant any rights to the Agent, nor impose any duties upon the Company and shall not be deemed to limit the Company's rights as set forth in this Contract. Return of Material. Upon termination of this Contract, the Agent shall immediately return to the Company all: Proprietary Material, material identifying the Agent as a representative of the Company, and property owned by the Company. Forfeiture. If the Agent is notified in writing that the Agent has: Committed a fraudulent or illegal act in conjunction with any transaction under this Contract; or violated any provisions of the Section entitled LIMITATIONS or UNACCEPTABLE PRACTICES; then the Company shall not be obligated to pay any compensation otherwise payable while this Contract is effect, or after its termination. Section I. of the Agent's Contract contained "[m]iscellaneous" items, including the following: * * * 4. Determination of Issuance and Product Type. The determination to issue a Product and the type of Product to be issued shall be at the Company's sole discretion. * * * Award, Recognition and Incentive Programs. If eligible, the Agent may participate in award, recognition and incentive programs of the Company. The Agent agrees to abide by the rules of each program. The Company reserves the right to change, limit or cancel any program, rule or award at any time. In such event, the Agent may not be able to obtain certain awards. Beneficiary Designation. The Agent designates as beneficiary for payment of any benefits becoming due after the Agent's death the beneficiary specified on the signature page of this Contract or such other party or parties as the Agent may designate by written notice delivered to and acknowledged by the Company. Independent Contractor. The Agent is an independent contractor and not an employee. None of the terms of this Contract shall be construed as creating an employer-employee relationship and the Agent shall be free to exercise the Agent's own judgment as to the persons from whom the Agent will solicit and the time, place and manner and amount of such solicitation. "[T]he beneficiary specified on the signature page of [Petitioner's Agent] Contract" was her mother. Petitioner's Agent's Contract included an Interim Sales and Marketing Amendment, also effective April 27, 2005, signed by Petitioner and Mr. Chojnacki, which, on its first page, provided as follows: The Company and Agent agree to place Agent in an "Interim Sales and Marketing" status. The terms and conditions are as follows: PURPOSE The Company and Agent agree to the terms and conditions of this Amendment in order that both the Company and Agent may determine whether to continue their association under the terms of the Contract. EFFECTIVE DATE This Amendment shall become effective on the date the Contract becomes effective. TERMINATION This Amendment shall remain in effect a minimum of seven days. Thereafter, this Amendment shall automatically terminate upon: Cancellation of the Contract; Notice given from the Company to Agent; or, The acceptance of the Career Financing Plan Amendment (211) or (235). TERM If this Amendment has not been terminated in accordance with Section III of this Amendment within 90 days after the effective date of the Contract, the Contract, and all other Amendments, shall automatically terminate. MISCELLANEOUS While this Amendment is in effect, Agent is not eligible for any other compensation, except as specifically set forth in the Schedules which are a part of the Contract. The Agent's Contract and Interim Sales and Marketing Amendment that Petitioner executed are standard instruments used by Respondent in contracting with its agents. During the time that the Interim Sales and Marketing Amendment is in effect, an agent engages in "real job sampling" by observing a mentor make sales, and he or she may also make sales of his or her own. Petitioner was mentored initially (for the first seven to ten days) by Mr. Green and thereafter by Mr. Chojnacki. The Interim Sales and Marketing Amendment remained in effect until June 10, 2005, when Petitioner and Respondent executed a Career Financing Plan Amendment (as part of Petitioner's Agent's Contract). The Career Financing Plan is a three-year program devised by Respondent to help its new agents "build their business[es]." It provides for bonus payments "on top of the base commission that an agent gets," if monthly production requirements are met. An agent not wanting "to be tied to any of [these] production requirements" can decline to participate in the program. Other attachments, in addition to the Career Financing Plan Amendment, that were made a part of Petitioner's Agent's Contract, included an Agent Prospecting Amendment, a New Agent Computer Equipment Allowance Schedule, an Agent Production Bonus Schedule, and a 2005+ Deferred Compensation Schedule. The Agent Prospecting Amendment was signed by Petitioner and Mr. Chojnacki and had an effective date of June 10, 2005. It read, in pertinent part, as follows: SOURCES OF CREDIT In order to provide the Agent with prospect information, the Agent and Company agree that credits to acquire prospecting related materials and services may be accumulated in an Agent Prospecting Account. The Company may discontinue or modify the sources and amounts of credit provided by the Company upon notice to the Agent. Credits may be used only for prospecting activities authorized by the Company. Any credits which remain unused at the time the Contract or this Amendment are cancelled shall be forfeited by the Agent. NON-REFUNDABLE PARTICIPATION FEE The Agent authorizes the Company to deduct a non-refundable Participation Fee directly from compensation due the Agent in an amount and frequency as set forth in the Agent Prospecting Schedule. Company may deduct the Participation Fee up to 30 days following written notice by Agent to the Company to terminate this Agreement. The New Agent Computer Equipment Allowance Schedule provided for the receipt of, for a maximum of 12 months, "a [monthly] credit [of either $75 or $100] to help the Agent defray computer equipment and other start-up expenses incurred based on the Agent's performance." Under the schedule, if minimum monthly production requirements were not met, no credits would be received. The "purpose" of the Production Bonus was "to reward Agents based on their Manufactured Product production." The Agent Production Bonus Schedule set forth the applicable Production Bonus Rates for different levels of production over a threshold amount. The 2005+ Deferred Compensation Schedule implemented Respondent's Deferred Compensation program, pursuant to which Respondent made "contributions . . . dependent on the production that an agent ha[d] during a given calendar year." On October 19, 2005, Petitioner signed a Coventry Medicare Part D Plan Addendum form (referenced in the parties' Stipulation of Fact 31) and faxed the form to Respondent's "Sales Support" for processing. Among the form's provisions was the following: Independent Contractor. Nothing in this Addendum will be construed to create a relationship of employer-employee between Producer [Petitioner] and Coventry or Distributor [Respondent]. Producer will be free to, and is required to, exercise his/her independent judgment in performance of this Addendum and with respect to which Medicare Part D plans Producer will offer to Medicare Part D enrollees and potential enrollees based upon Producer's judgment as to the needs of such enrollee or potential enrollee. The termination of Petitioner's Agent's Contract (referenced in the parties' Stipulation of Fact 40) was accomplished by Petitioner's submitting the following letter, dated February 10, 2006, to Mr. Chojnacki: It is with deep regret that I resign as of February 10, 2006. I have to move on with my career. I want to sincerely thank you for all your help. Mr. Chojnacki responded by sending Petitioner the following letter, also dated February 10, 2006: This is to acknowledge receipt of your letter terminating your Mutual of Omaha Insurance Company Agent's Contract effective February 10, 2006. Your authorizations to represent Mutual of Omaha Insurance Company and its affiliated companies have also been cancelled effective February 10, 2006. The balances of your agent's statement may be affected by additional entries necessary to finalize pending business. You will continue to receive statements on a regular basis as in the past. As soon as the balances have stabilized, any net credit balance will be released in accordance with the provisions of Paragraph F3(c) of your contract. If your agent's statements presently reflect a debit balance or if a debit balance arises in the future, you are required to repay this amount immediately. Failure on your part to repay any debt balance will result in further action to collect debit balance. All client and prospect information, materials and supplies are the property of Mutual of Omaha Insurance Company. You are required by Paragraph H4 of your contract to return such material immediately. At no time during the period that her Agent's Contract was in effect (April 27, 2005, through February 10, 2006, hereinafter referred to as the "Contract Period") did Petitioner receive a salary or any of the employee benefits enjoyed by Mr. Chojnacki, Mr. Green, Ms. Hughes, and Ms. Mickley. Although she had Respondent-issued life and disability insurance policies, these policies were not given to her as an employee benefit. She had to pay for this coverage. On her application for the disability insurance policy she obtained from Respondent, in response to the question, "Are you Self-Employed, a Sole Proprietor, or a partner in a Partnership," she answered "yes." The only compensation Petitioner received from Respondent was in the form of commissions and other payments (including computer allowances) based solely on her production. The compensation checks she received from Respondent were prepared and signed at the Boynton Beach Office, not at Respondent's home office (where employee checks are cut). The amounts of these checks reflected deductions that were made by Respondent for items that Respondent had provided Petitioner or had paid for on her behalf, including postage, agent licenses, voicemail, errors and omissions insurance coverage, folders, business cards, and certain leads. The leads she paid for cost anywhere from ten to 25 dollars a lead. Petitioner did not have to pay for everything that she received from Respondent. Although it had a right to do so under Section E. of her Agent's Contract, Respondent did not charge Petitioner for the use of cubicle space and equipment at the Boynton Beach Office, nor for the company brochures and letterheads that were available to agents at the office. The 2005 and 2006 federal tax returns that Petitioner filed with the IRS were prepared by a Certified Public Accountant. For the 2005 tax year, on her IRS Form 1040, Petitioner reported $0 for "[w]ages, salaries, and tips" (line 7), and $7,220 in "[b]usiness income" (line 12), and she deducted from her "total income" $510 for "[o]ne-half of self- employment tax" (line 27) and $1,243 for "[s]elf-employed health insurance" (line 29). She included a Schedule C (Profit and Loss From Business-Sole Proprietorship) and a Schedule SE (Self- Employment Tax) with her IRS Form 1040. On her Schedule C, Petitioner identified her "[p]rincipal business or profession" as "[i]nsurance [a]gencies & [b]rokerages"; represented that her business address was the same as her home address (which was on her IRS Form 1040); and reported that her "[g]ross income" was $18,758 (line 7), and that she had "[c]ar and truck expenses" of $6,305 (line 9), an "[o]ffice expense" of $1,488 (line 18), and "[o]ther expenses" of $3,745 (line 27), for a total of $11,538 in business expenses (line 28). The "[o]ther expenses" she reported (on line 27) were broken down as follows: "Business Telephone"- $3,549; and license fees and dues- $196. The IRS Form 1099 that Petitioner received from Respondent for the 2005 tax year reflected that she had received $18,757.99 in "nonemployee compensation" (which matches the "rounded up" amount of "[g]ross income" Petitioner reported on the Schedule C she filed for that tax year). For the 2006 tax year, on her IRS Form 1040, Petitioner reported $0 for "[w]ages, salaries, and tips" (line 7), and "1099 MISC OTHER INCOME" of $1,615. No entry was made for "[b]usiness income" (line 12). Petitioner deducted $114 from her "total income" for "[o]ne-half of self-employment tax" (line 27). She included a Schedule SE with her IRS Form 1040. The IRS Form 1099 that Petitioner received from Respondent for the 2006 tax year reflected that she had received $1,615.43 in "nonemployee compensation" (which matches the "rounded down" amount of "1099 MISC OTHER INCOME" Petitioner reported on the IRS Form 1040 she filed for that tax year). During the Contract Period, Petitioner was not required to work out of the Boynton Beach Office or to adhere to any Respondent-imposed work schedule. Training sessions were held by Mr. Chojnacki (usually on Mondays) at the office, but attendance at these meetings was not mandatory. Agents had to be present at the office to enjoy what was referred to as "floor time," where the agent would receive incoming telephone phone calls made to the office from prospects, without having to pay for these leads. "Floor time" was a privilege that agents could turn down. Petitioner averaged approximately two to three days of "floor time" a month. As an essential part of the work she performed for Respondent, Petitioner made sales calls to prospects in the field. At Petitioner's request, Mr. Chojnacki accompanied her on approximately four sales calls during the beginning of the Contract Period. After a while, Petitioner "start[ed] going on sales calls by herself." During the Contract Period, she went on more than 40 or 50 such solo sales calls. At no time was Petitioner required to go on sales calls with Mr. Chojnacki or any other company representative, nor did she need the approval of any company representative before she could make a sales call. There were occasions, when Petitioner was out on a sales call alone, that she telephoned Mr. Chojnacki to ask him a question about a technical matter or to express her excitement about having made a sale. Petitioner, however, was never told she had to maintain telephonic contact with Mr. Chojnacki or any other company representative while on sales calls. Petitioner and the other agents were allowed to advertise Respondent's products, but any advertisement they used had to be approved by the company. Respondent had "pre-approved advertising material that[] [was] on [its] company [intranet] website." Petitioner did not have an exclusive arrangement with Respondent that prevented her from representing other insurers during the Contract Period. She was not, what is referred to in the insurance business as, a "captive agent." While associated with Respondent, Petitioner was also appointed to act as an agent on behalf of John Alden Life Insurance Company, Humana Health Insurance Company, and Humana Medical Plan, Inc. (companies that were separate and distinct from Respondent).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order dismissing Petitioner's Complaint because she was not an employee of Respondent's at the time of the alleged unlawful employment practices described in the Complaint. DONE AND ENTERED this 29th day of December, 2008, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 29th day of December, 2008.
The Issue Whether the Agency for Persons with Disabilities’ intended decision to deny Petitioner’s application for exemption from disqualification for a license is an abuse of the Agency’s discretion.
Findings Of Fact Parties and Procedural History Petitioner is a 40-year-old female seeking licensure from APD to serve as a direct service provider for vulnerable individuals--adults or children with developmental disabilities.1/ APD is the state agency responsible for serving and protecting vulnerable individuals. APD determines whether to approve licensure applications submitted by those who wish to work with vulnerable individuals and has administrative jurisdiction to enforce the laws governing such licensees. As part of the licensing application process for a direct service provider, Petitioner was required to pass a pre- employment background screening. The screening revealed Petitioner had a criminal record: (1) a 1993 non-adjudicated battery charge (age 15); (2) a 1999 petit theft charge with adjudication withheld (age 21); a 2007 guilty plea to uttering a forged instrument in violation of section 831.09, Florida Statutes (age 30); and failure to appear in 2009 for a traffic citation (age 32). Of these incidents, only the 2007 offense disqualifies Petitioner from a license to be a direct service provider. See § 393.0655(5)(l), Fla. Stat. Petitioner sought an exemption from disqualification as provided for by statute. § 363.0655(2), Fla. Stat. To do so, she filed an application for exemption with the Department of Children and Families (“DCF”). DCF performed the initial screening, ensured Petitioner submitted all necessary documents, and finalized the background investigation. DCF then issued an “Exemption Review Summary,” along with supporting documentation as part of an investigative file to APD. Among the items submitted by Petitioner to DCF in support of her exemption application were court documents related to her criminal charges, notarized letters of recommendation, and educational documentation. APD relies on an Exemption Review Committee (“Committee”) to evaluate all the documentation compiled by both DCF and APD, including police reports, court documents, information from the applicant, DCF investigations, and any other information that may be accessible. The Committee makes a recommendation to the Agency’s director, who makes the final decision to grant or deny the exemption. In this case, the Committee recommended denial of Petitioner’s request for exemption. Tom Rice is employed by APD and serves on the Committee. Mr. Rice primarily considered two factors in recommending Petitioner was not rehabilitated and should not be offered an exemption: (1) she failed to accept responsibility for the 2007 offense; and (2) she failed to submit to a request by DCF to take voluntary drug tests. Ultimately, in September 2017 the Agency’s director denied Ms. Ledbetter’s exemption request because Petitioner had not submitted clear and convincing evidence of her rehabilitation. Disqualifying Event Regarding the first factor of failing to take responsibility, Mr. Rice testified the Agency was concerned about Petitioner’s role in the 2007 offense, and a discrepancy between Petitioner’s current explanation of the offense and the 2007 police report. Regarding Petitioner’s role, the evidence established Petitioner borrowed $500 from a man (“the check writer”) in Jacksonville she believed was a music producer. He wrote checks to her and another man, and the three traveled to Tampa. On the way, Petitioner tried to cash the check at a grocery store. The store manager recognized the other man as having previously committed fraud. The store manager notified law enforcement, which arrived and took Petitioner and the other man into custody; the check writer fled the scene. Once in custody, law enforcement asked Petitioner a number of questions, showing her the check. At that point Petitioner realized that it was not a legitimate check and informed the law enforcement officer. Whereas the check writer fled the scene and the other man attempted to flee, Petitioner cooperated with law enforcement, provided a description of the vehicle driven by the suspect who fled, and gave a written statement. The Agency relied on a police report notation in the officer’s narrative that Petitioner advised the arresting officer “the checks were counterfeit” as proof of Petitioner’s active role in the crime. Mr. Rice felt this was inconsistent with Petitioner’s written explanation in her exemption application that she “found out after I was arrested at Publix in Jacksonville that it was not a legitimate check.” Based on the evidence at the hearing, these two statements are not wholly inconsistent. There is no indication in the police report when Petitioner realized the check was fraudulent, only that she admitted it was counterfeit after she was taken into custody and questioned. Regardless, the police report relied upon by the Agency is hearsay. Even if the police report were admissible under a hearsay exception, it is unreliable. Although the police report references a written statement by Petitioner about the incident and the counterfeit checks, neither Petitioner’s statement nor a copy of the checks are attached to the police report. In the end, Petitioner’s testimony established that she showed remorse for her actions leading up to the 2007 arrest and that she takes responsibility for it and the other offenses: “I did go ahead and take responsibility for . . . the 2007 case” and “I do take any and full responsibility for anything that transpired in my life.” Subsequent Non-Disqualifying Events Mr. Rice testified the Committee was also concerned about Petitioner’s petit theft charge, which it believed occurred after the disqualifying event. Q.: [Was there] anything I didn’t ask you about that was concerning to . . . you--you being the committee--in deciding to deny or grant this application. A.: []I’m not sure if that would part of what you mentioned, which is the petty theft charge that occurred after the disqualifying criminal offense. Q.: Okay. And why was that concerning. A.: Again, because it just speaks to what we perceived as a lack of rehabilitation. And, again, considering that our providers would have access to individuals that are living in areas of possession their funds, you know, their money, their assets, etc., that would be of concern to us. Petitioner’s petit theft charge occurred in 1999, prior to the 2007 disqualifying offense. As for non-disqualifying events subsequent to 2007, there is only evidence of one for “failure to appear.” The DCF summary simply lists “No action” next to this 2009 charge without indication of the resolution. Petitioner, however, testified she did fail to appear for a hearing on an unpaid traffic citation, but that this charge was resolved after she later appeared and showed her driver’s license to the court. The evidence at the hearing established Petitioner received criminal traffic citations in 2009 and 2010 for failure to register her motor vehicle and/or display proof of registration or insurance. Petitioner did not take care of these citations and the matter escalated. Petitioner admitted having financial difficulties, but eventually was able to correct and pay all fines related to these traffic violations. Most of these citations were dismissed or adjudication was withheld. Petitioner has not had such a violation since 2010. Petitioner also received non-criminal civil citations on June 15, 2012, and September 18, 2014, for failure to properly vaccinate, register, and/or secure an animal. The evidence established Petitioner took responsibility, corrected the violations, and paid the civil fines. Petitioner has not had a civil infraction in the past three years. Other Factors Considered by APD APD reviewed five DCF “Confidential Investigative Summaries” as part of Petitioner’s investigative packet. In recommending denial of the exemption, the Committee considered the “multiple DCF investigations” and placed emphasis on Petitioner’s refusal to perform a drug screen requested as part of a DCF investigation on two separate instances. (See Respondent’s PRO, p. 4 at paras. 9 and 10). At the hearing, APD put on no witnesses to substantiate or explain the DCF investigations or how they became part of the Petitioner’s APD exemption file. The only credible evidence regarding these investigations was Petitioner’s unrefuted testimony. Mr. Rice testified about the concerns the Committee had based on these DCF investigations: A.: So we look at [ ] basically everything we had related to any Department of Children and Families investigations and any arrests or any other type of involvement. Q.: Okay and what did you find with respect to that? A.: We found that there were multiple DCF investigations . . . which [] contained some information with them that gave us some concern. And then there were also, as I said, numerous offenses. * * * Q.: Can you summarize what caused concern with the DCF investigations? A.: This was, obviously, the concerns of the allegations for the drug abuse, smoking crack in front of the children when multiple children were present. [Petitioner] allegedly selling food stamps to purchase drugs and the children being neglected, not having enough food as a result. Q.: Was it concerning that she refused the drug screen offered by the DFC? A.: That was especially concerning. Because, honestly, if there are [false] allegations being made against somebody, if those are indeed false allegations, if someone has not been using any kind of illegal substances, we are not sure why anyone would refuse a random drug screen. So that causes some suspicion and concern from the committee. One of ADP’s assertions at the final hearing was that Petitioner had lost custody of her children. There is absolutely no evidence supporting this position. To the contrary, the court documents submitted by APD establish the opposite. The probable cause statement for dependency filed in 2004 indicates that although the state sought to take the children away from the father, Petitioner was to retain custody of the children. The Department offered the mother a referral to the [Shelter], and the referral was reluctantly accepted. The mother is fearful of the father, and afraid of repercussions from having filed the police report. She voluntarily admitted herself and both of her children into [the Shelter], and has agreed to stay there until such time as the Courts deem it safe for her and the children to return to the family home . . . Department requests that the children be sheltered from the father and a non-shelter petition be filed as the mother. Children to remain in the custody of the mother at [the Shelter]. (emphasis added). The Petition seeking emergency shelter placement for the children identified “mother” (Petitioner) as the adult relative able “to provide supervision and care” of the children. The final court document closing out the emergency shelter placement indicates, “the children have been placed in the custody of the mother since they were sheltered in February of 2004 and it should be noted that these children have never been removed from their mother’s custody.” (emphasis added). The evidence establishes Petitioner was the victim of domestic violence by her husband, which resulted in investigations by local law enforcement and DCF. Ultimately, she left the home and moved with her children into a shelter. Petitioner never lost custody or supervision of her children. APD also considered four other DCF investigations which occurred after the 2007 disqualifying event, all which were closed without action taken against Petitioner. The Committee relied solely on the hearsay allegations in DCF investigative reports. These summaries are filled with multiple layers of hearsay and are unreliable. Nonetheless, Petitioner’s testimony corroborated the ultimate findings in those DCF reports that she was not neglectful or abusive. The first DCF investigation (initiated February 2010) was triggered by a call to law enforcement by Petitioner regarding a possible assault against her eight-year-old daughter. Petitioner had left her children at their friend’s home, with the friend’s parents present. When Petitioner picked up the children, her daughter reported that the friend had “poked” her inappropriately. Petitioner immediately contacted law enforcement, and both a police and DCF investigation was initiated. According to Mr. Rice’s testimony, the Committee was concerned by the allegations in the DCF report that Petitioner was not properly supervising her children. The DCF investigator, however, concluded Petitioner was not neglectful, and her children were happy, healthy, clean, and free of any signs of neglect or abuse. The second investigation (initiated in May 2010) and third investigation (initiated June 2011) were triggered by anonymous complaints that Petitioner was using drugs and selling food stamps to fund a drug habit, and that her boyfriend was abusive to the children.2/ During two DCF home visits related to the 2010 and 2011 investigations, DCF asked Petitioner if she was willing to take a voluntary drug test; Petitioner admits she refused both times. In 2010, Petitioner was pregnant when DCF offered her a drug screening. Although she refused to be tested, Petitioner offered the DCF investigator access to her medical records. In 2011, Petitioner refused because there was also a police investigation, she knew the allegations were false, and she did not feel the drug screen was necessary. This DCF investigation was closed, in part, because the investigator had “no concerns for the children,” the police investigation into the drug use was closed as unfounded, and “the children were observed to be healthy and happy in their home environment and [there were] no disclosures of physical abuse, or substance misuse.” DCF investigators noted in both the 2010 and 2011 investigative reports that there was no evidence of drug use and closed these two investigations without taking any further action. The final investigation (initiated November 2013) stemmed from a complaint that Petitioner’s home was environmentally unsafe for the children. The allegation was that the home was cluttered and without running water. Petitioner admitted that on DCF’s initial visit the home did not have running water because she could not pay her water bill. Petitioner explained she had inherited the home from her mother and the bill was unexpectedly high due to a leak. The DCF investigator noted the children had access to bottled water in the home to drink and to flush the toilet; and confirmed they showered at a neighbor’s home. DCF closed the investigation with no substantiated findings for environmental hazards. Contrary to the Committee’s concerns, there is no evidence that Petitioner was using drugs, was arrested for or convicted of drug charges, sold food stamps to purchase drugs, or neglected her children. Rehabilitation Petitioner has been employed as a home health aide or residential aide, providing companion care since 2014. During this time, starting in 2015, Petitioner attended classes at Florida Career College. She graduated in 2017 with a certificate to be a Patient Care Technician. While in school, Petitioner was on the honor roll and completed an externship. She received positive recommendations from Florida Career College staff. Diane Hoss, a retired high school teacher and administrator, testified that she has known Petitioner since Petitioner was born. Ms. Hoss described Petitioner’s careful care of Petitioner’s ill mother and grandfather. Based on these observations, Ms. Hoss stated Petitioner is “perfectly capable of working and taking care of other people and legally responsible.” Although she was aware of the 2007 arrest, Ms. Hoss believed Petitioner worked hard to better her situation and educate herself. Albert Green, a military veteran, testified that Petitioner helped take care of his adult sister who suffers from a disability. Based on his personal observation, he believed Petitioner was a competent caretaker and a diligent worker. Mr. Green based his opinion on his personal observations of Petitioner in his parents’ home. He noted that in the ten years Petitioner assisted them with his sister, Petitioner never stole anything from the home; and she had no conflicts with his disabled sister, his other siblings, or his parents who also lived in the home. Mr. Green noted that, unlike other caretakers, Petitioner took interest in making sure that his sister was active, engaged, and not neglected. All of Petitioner’s witnesses characterized Petitioner as a protective and considerate caretaker who had taken great strides to better her situation and the situation of her children. Petitioner has improved her situation in many ways since the 2007 disqualifying event. She has extricated herself from some unfortunate personal relationships, maintained employment, and pursued educational opportunities. The credible hearing testimony summarized above overwhelmingly established Petitioner is not and would not be a danger to APD clients, if she is allowed to be employed as a direct service provider. The few concerns the Committee had, as expressed by Mr. Rice for recommending denial of Petitioner’s exemption request, were acquired without the benefit of the hearing testimony and based largely on unproven allegations. These allegations were effectively refuted by a closer reading of APD exemption application file and the credible testimony at hearing. Ultimate Findings of Fact Petitioner has proven by clear and convincing evidence that she is rehabilitated from the single disqualifying offense she committed in 2007. The undersigned finds that Petitioner presents no danger to the vulnerable population served by the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner’s request for an exemption from disqualification from employment. DONE AND ENTERED this 13th day of April, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2018.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Daniel Bruce Caughey has been licensed by petitioner as an insurance agent at least since 1981. He began working for Caughey Insurance Agency, Inc. in 1971 as a file clerk. Once he was licensed, he worked as a salesman. In 1977, he assumed the executive vice-presidency of the agency, a position he still holds. Until the middle of March, 1983, respondent'- father, William Edward Caughey, managed the agency. He continues to own all 1,000 shares the corporation has issued, although he has not written a policy since he turned management of the agency over to the respondent and his brother Randy in 1983. In 1982 and thereafter until Jordan Roberts and Company, Inc. (JORO), a multi-line general agency, stopped underwriting automobile insurance, Caughey Insurance Agency, Inc. brokered automobile insurance through JORO. When an account current bookkeeping dispute arose between Caughey Insurance Agency, Inc. and JORO, William Edward Caughey retained an accounting firm, Sizemore. On Sizemore's advice, he rejected JORO's claim for more than $20,900. On October 21, 1983, a JORO representative told Daniel Bruce Caughey that JORO would no longer deal with Caughey Insurance Agency, Inc. unless he signed an "Individual Guarantee Agreement," personally guaranteeing the insurance agency's corporate indebtedness; and executed a promissory note in JORO's favor in the amount of $16,941. Respondent executed the documents. On December 3, 1986, JORO brought suit against the corporation and respondent personally. No. 86-21454 (Fla. 13th Cir.). On August 13, 1987, the court entered judgment against both defendants in the amount of $6,595.94. Jordan Roberts & Co. v. Cauqhey, No. 86-21454 (Fla. 13th Cir.; Aug. 13, 1987). Neither respondent nor the agency has paid the judgment. With the possible exception of filing the complaint that eventuated in the present proceedings, JORO has made no effort to collect. In Count I, JORO's complaint alleges the existence of a brokerage agreement between JORO and Caughey Insurance Agency, Inc., entered into "[o]n or about April 27, 1982"; execution and delivery of respondent's guarantee "[o]n or about October 21, 1983"; and the agency's indebtedness "for premiums on policies underwritten by [JORO] for the sum of $20,975.36." Petitioner's Exhibit No. 3. In Count II, the complaint also alleges execution and delivery of a promissory note "[o]n or about October 21, 1983," without, however, explicitly indicating its relationship (if any) with the guarantee executed the same date. Petitioner's Exhibit No. 3. The final judgment does not specify which count(s) JORO recovered on. Petitioner's Exhibit No. 4. Attached to the complaint are copies of the promissory note, executed by ?CAUGHEY INSURANCE AGENCY, INC., By: D B Caughey Vice President"; the guarantee, executed in the same way; and the brokerage agreement, executed on behalf of Caughey Insurance Agency by "William E. Caughey, President." Although the Individual Guarantee Agreement names respondent as guarantor in the opening paragraph, the corporation is shown as guarantor on the signature line. At hearing, both Daniel Bruce Caughey and William Edward Caughey testified that neither had withheld premiums owed JORO, and this testimony was not controverted.
Recommendation It is accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE and ENTERED this 2nd day of April, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8 and 9 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, respondent became an officer after the brokerage agreement had been executed. With respect to petitioner's proposed finding of fact No. 7, the judgment could also be based on the promissory note. With respect to petitioner's proposed finding of fact No. 6, respondent did not sign as an individual guarantor. Respondent's proposed findings of fact Nos. 1 through 10 and 12 through 18 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 11, evidence respondent himself adduced showed that the judgment had not been satisfied. COPIES FURNISHED: Robert V. Elias, Esquire 412 Larson Building Tallahassee, FL 32399-0300 Bruce A. McDonald, Esquire McDonald, Fleming & Moorehead 700 South Palafox Street Suite 3-C Pensacola, FL 32501 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, FL 32399-0300
