Findings Of Fact 11. The factual allegations contained in the Stop- Work Order and Order of Penalty Assessment issued on May 19, 2011, the Amended Order of Penalty Assessment issued on June 7, 2011, and the 3rd Amended Order of Penalty Assessment issued on February 17, 2012, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC, the Stop- Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On May 19, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-164-1A to WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop- Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On May 19, 2011, the Stop-Work Order and Order of Penalty Assessment was served by personal service on WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On June 2, 2011, the Department received an Election of Proceeding requesting administrative review (“Petition”) from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Petition is attached hereto as “Exhibit B” and incorporated herein by reference. 4. On June 7, 2011, the Department issued an Amended Order of Penalty Assessment to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment amended the legal name of the employer to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment assessed a total penalty of $43,256.29 against WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment includéd a Notice of Rights wherein WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 5. On June 23, 2011, the Amended Order of Penalty Assessment was served by certified mail on WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On July 13, 2011, the Department received an amended Election of Proceeding form (“Amended Petition”) from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC, and the matter was referred to the Division of Administrative Hearings and assigned DOAH Case No. 11-6178. A copy of the Amended Petition is attached hereto as “Exhibit D” and incorporated herein by reference. 7. Following issuance of subsequent Amended Orders of Penalty Assessment, on February 17, 2012, the Department issued a 3rd Amended Order of Penalty Assessment to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $4,708.85 against WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the 3rd Amended Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 8. On April 5, 2012, the Department filed a Motion to Amend Order of Penalty Assessment with the Division of Administrative Hearings in DOAH Case No. 11-6178. A copy of the Department’s Motion to Amend Order of Penalty Assessment together with the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 9. On April 18, 2012, the Administrative Law Judge issued an Order Granting Motion to Amend Penalty Assessment in DOAH Case No. 11-6178. The Order Granting Motion to Amend Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 10. On April 30, 2012, the Administrative Law Judge entered an Order Closing File and Relinquishing Jurisdiction due to Respondent’s failure to participate in discovery and appear at the scheduled formal hearing in DOAH Case No. 11-6178. A copy of the Order Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit G” and incorporated herein by reference.
The Issue Whether Petitioner’s application for an exemption from disqualification from employment in a position of trust, pursuant to sections 408.809 and 435.07, Florida Statutes,1/ should be granted.
Findings Of Fact Respondent is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner seeks employment in a position providing direct services to residents of a health care facility licensed under chapter 429 and, as such, is required to participate in Respondent’s background screening process pursuant to section 408.809. Petitioner submitted to the required background screening, which revealed that in 1999, Petitioner pleaded guilty to Felony Grand Theft/Bank Fraud in the United States District Court for the Northern District of Florida, Panama City Division, Case No. 5:99CR165PM. This conviction is akin to a felony grand theft conviction under chapter 812, Florida Statutes. The above-referenced criminal conviction makes Petitioner ineligible to provide a service in a health care facility licensed by Respondent unless Petitioner receives an exemption from Respondent, pursuant to section 435.07. Petitioner was also arrested in 2001 for Felony Aggravated Assault with a Deadly Weapon. On that charge, Petitioner pled guilty to a lesser included charge of simple assault, in Leon County Circuit Court, Case No. 01-1020AM. In addition, Petitioner was arrested in 2009 for felony charges of larceny/grand theft and exploitation of the elderly, charges which were ultimately dismissed due to the alleged victim’s death. Petitioner submitted an application for exemption to Respondent in accordance with sections 408.809 and 435.07 on or about April 30, 2014, and attended a telephonic hearing conducted by Respondent on June 17, 2014. The results of the June 17, 2014, teleconference are not at issue in this proceeding. Petitioner submitted another application for exemption to Respondent in accordance with section 435.07 on or about September 29, 2014. A telephonic hearing was conducted by Respondent on that second application for exemption on December 9, 2014, during which Respondent and Petitioner agreed to utilize the information obtained in the June 17, 2014, hearing regarding the 1999 Grand Theft/Bank Fraud and the 2001 Assault convictions, and to only discuss the circumstances surrounding the 2009 allegations of Grand Theft and Exploitation of the Elderly. A panel consisting of Respondent’s Operations and Consulting Manager for the Background Screening Unit, Sherry Ledbetter, and Respondent’s Health and Facilities Consultants, Kelley Goff and Zack Masters, also attended the telephonic hearing. Exhibit A-1, Respondent’s file for Petitioner’s exemption request, contains the exemption denial letter; internal Agency notes; panel hearing notes from both the June 17, 2014, and the December 9, 2014, teleconferences; Petitioner’s criminal history; Petitioner’s exemption application; arrest affidavits; conviction records; probation records; court records; and several letters in support of Petitioner’s requested exemption. Exhibits A-2 and A-3 are audio recordings of Petitioner’s teleconferences from her exemption hearings from June 17, 2014, and December 9, 2014. After the telephonic hearing, Respondent denied Petitioner’s request for an exemption, and Petitioner requested an administrative hearing. At the administrative hearing, Sherry Ledbetter testified that Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner, and her explanations during the teleconferences when it determined that Petitioner’s request for an exemption should be denied. Respondent is legally authorized to consider all subsequent arrests or convictions, even if those arrests or convictions are not disqualifying offenses. Respondent considered Petitioner’s subsequent arrests and convictions during the review of Petitioner’s application for exemption. Respondent also considered the circumstances surrounding Petitioner’s most recent arrest, 2009 Grand Theft and Exploitation of the Elderly, even though the charges were dismissed. Petitioner admitted during the December 9, 2014, teleconference that the alleged victim made payments toward Petitioner’s bills while Petitioner was employed as her caregiver. Petitioner did not see any ethical issues with taking payments from a patient for whom she is caring, when she was already being paid by her employer for the services she rendered. Respondent explained, and it is found, that Petitioner did not appear to be totally candid and honest in her responses to the panel’s questions during the teleconferences and did not take responsibility for any of the criminal offenses. Although Respondent allows exemption applicants to have people speak on the applicants’ behalf at the teleconferences, Petitioner did not choose to have anyone speak on her behalf. Respondent considers any training, education, or certificates that an exemption applicant submits, but Petitioner did not have any such submissions, aside from Petitioner’s statement that she attended a budget class after her 1999 conviction. Based on Petitioner’s entire file and her responses during the teleconferences, Respondent determined that Petitioner did not satisfy her burden of proof by clear and convincing evidence of demonstrating rehabilitation from her disqualifying offense. Respondent maintains that Petitioner still poses a risk to the vulnerable population she would serve if employed at another health care facility. At the final hearing, Petitioner presented the testimony of Mutaqee Akbar, her criminal defense attorney for her 2009 charges of Grand Theft and Exploitation of the Elderly, who testified that the 2009 charges against Petitioner were dismissed by the prosecutor. On cross examination, Mr. Akbar admitted that the prosecutor cited the death of the alleged victim as the reason for the case’s dismissal. Mr. Akbar also admitted that law enforcement records reflect that the alleged victim made a statement to law enforcement prior to her death that she did not give her consent for the payments made toward Petitioner’s bills. In her testimony at the final hearing, Petitioner discussed how she is a changed person and has overcome a great deal of adversity to get to where she is now. Petitioner is presently involved in her community, specifically with her church and children’s schools, and takes care of her goddaughter and four children. Petitioner has a daughter who attends community college and Petitioner has been striving to set a good example for her daughter. Petitioner’s daughter, Sierra Thomas, who is in community college, gave credible testimony that she always favored her mother and did not believe the 2009 allegations against her mother. One of Petitioner’s good friends, Sheria Hackett, testified that Petitioner is a good person and deserves to be granted the exemption. Petitioner’s Exhibit P-1 is a composite exhibit consisting of additional information relating to Petitioner’s criminal cases and a letter from her probation officer. Petitioner’s Exhibit P-2 consists of a letter from Respondent dated May 22, 2014, requesting additional information from Petitioner during the exemption application process. Petitioner’s Exhibit P-3 consists of Petitioner’s petition for formal hearing. Although Petitioner appeared remorseful for her criminal convictions, considering all of the facts, circumstances, and evidence presented to AHCA and at the final hearing, it cannot be said that she proved by clear and convincing evidence that she is rehabilitated and should not be disqualified from employment. Moreover, AHCA’s intended action of denying Petitioner’s request for exemption was not an abuse of discretion. Therefore, Petitioner failed to meet her burden of showing that she is entitled to the exemption she seeks from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2015.
The Issue Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offenses; and, if so, whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact APD serves clients with disabilities such as autism, intellectual disabilities, Downs Syndrome, and Prader-Willi Syndrome. APD's clients range from those needing total care to those who can live on their own with minimal assistance. The services APD provides to its clients include personal care, respite care, adult day training, supported living, and a wide variety of other services. The aforementioned services are provided by APD's vendors in individual homes, group homes, and supported living arrangements. Petitioner is seeking to work as a direct service provider in a group home for persons with developmental disabilities. Section 435.06(2), Florida Statutes, mandates that an employer may not hire someone for a position requiring contact with any "vulnerable person" until a completed background screening "demonstrates the absence of any grounds for the denial or termination of employment." The Department of Children and Families ("DCF") administers the background screening process for APD. APD's Action Petitioner's background screening identified three felony counts that are disqualifying criminal offenses, and all for resisting an officer with violence to his person. On November 14, 2016, DCF notified Petitioner that she was disqualified from employment due to her criminal history and specifically because of the three counts of resisting an officer with violence to his person from a November 26, 1975, Miami Dade incident. On or around December 1, 2016, Petitioner submitted a request for exemption, which included the exemption application and questionnaire to DCF. The instructions provided: "[f]or EACH criminal offense appearing on your record, please write your DETAILED version of the events and be specific. Attach extra pages as needed and please type or write legibly. When Petitioner filled out the questionnaire, she provided the following answers to each question on the exemption questionnaire: Question #1 asked for "disqualifying incident(s)." Petitioner responded "3 Counts of Resisting Arrest with Violence." In response to Question #2 "Non-disqualifying Offenses(s)," Petitioner again provided none of the details surrounding these offenses. She listed two non-disqualifying offenses, "Battery" and "Petit Theft" to which she had criminal dispositions. Question #3 asks, "What is the current status in the court system?" Petitioner responded, "N/A." In Response to Question #4 on her Exemption Questionnaire, regarding "the degree of harm to any victim or property (permanent or temporary), damages or injuries," Petitioner indicated "N/A." In answering Question #5, about whether there were "any stressors in [her] life at the time of the disqualifying incident," Petitioner again indicated "N/A." Question #6 asked whether there are any current stressors in her life, Petitioner responded: "[D]ivorced living at home with my 3 minor children. I am a spokes-person for the SEIU union. Fight for Fifteen. I feed the homeless in my community." As confirmed at hearing, Petitioner listed educational achievements and training as the following: Fla College of Business – Certified Nursing Assistant (1985) National School of Technology – Surgical Tech (1998) Food Service – Brevard C.C. Under Question #8 of the Exemption Questionnaire, in response to the question whether she had ever received any counseling, Petitioner indicated "N/A." Question #9 of the Exemption Questionnaire asks, "Have you ever used/misused drugs and alcohol? Please be specific and list the age at which you started and how you started." Petitioner again responded "N/A." Question #10 of the Exemption Questionnaire asks whether Petitioner was involved in any community activities. Petitioner responded, "I have volunteered with Senator Dwight Bullard, Fla. State Rep. McGhee, Mayor Woodard, Joe Garcia, etc." Question #11 asks the applicant to "Document any relevant information related to the acceptance of responsibility for disqualifying and non-disqualifying offenses." Petitioner responded as follows: "Yes. I accept responsibility at the time of this offense I was 17 years of age and trying to fit in with my friends. I have learned when you know better you do better." The Exemption Questionnaire also requested Petitioner to provide her three prior years' work history. Petitioner provided detailed information about her 18-year work history in the health care field, which included care of the vulnerable community. Petitioner has worked in a hospital, nursing home, private home, and with both mental health and hospice patients. Petitioner's answer also outlines how she had performed some of the same job responsibilities as a direct service provider for the following employers: JR Ranch Group Home LLC: C.N.A 10/3/16 to present-Companion to individual bathing, feeding, dressing, grooming, etc. Nurse Plus Agency: C.N.A. 3/12/08 to 9/7/15- Working in private homes with hospice patients bathing, feeding grooming, shaving, R.O.M. T.C.C. vital signs, doctor's appointments, etc. Gramercy Park Nursing Home: C.N.A. 2/15/05 to 3/12/08-Working in skilled nursing facility doing patient care, vitals, charting, lifting, bathing, feeding, dressing, physical therapy, etc. Jackson M. Hospital: C.N.A. 1/7/98 to 5/8/2001-Working on HIV unit, patient care, R.O.M., bed making, bathing, feeding, dressing, shaving, oral care, transferring, lifting, etc. On December 15, 2016, DCF sent a letter to Petitioner requesting additional documentation to complete the exemption application. Petitioner was asked to "provide the arrest report (from arresting agency) and CERTIFIED court disposition JUDGMENT AND SENTENCE" for the following offenses appearing on [her] criminal history screening report: 05/20/2013 MIAMI-DADE POLICE DEPARTMENT, BW DRIVING WHILE LICENSE SUSPENDED 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 12/22/2001 MIAMI-DADE POLICE DEPARTMENT, COUNTY ORD VIOL 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATT-POL OFF 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSLT - WEAPON 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSAULT –WEAPON 01/14/1991 MIAMI-DADE POLICE DEPARTMENT, SHOPLIFTING 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, ASSAULT 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, DISORDERLY CONDUCT The DCF letter also instructed Petitioner that if she could not obtain the arrest report and/or court disposition, she might submit a notarized written "detailed statement on each arrest explaining why you were arrested. You must include the victim's age and relationship to you and the sentence you received (probation, jail, prison, etc)." Additionally, the letter requested proof of income, an affidavit of good moral character, two to five letters of recommendation, and a personal history explaining what happened with each arrest, current home life, education, training, family members, goals, and community involvement. The letter provided Petitioner a 30-day deadline and notified Petitioner "[n]o further action [would] be taken on [her] application for exemption until we receive the requested information." (emphasis added). On or about December 21, 2016, Petitioner complied with the DCF letter and provided 99 pages of documents including Florida Criminal History Record requested, certified police arrest reports, notarized printed dockets of her criminal offenses with court dispositions, notarized document from the Clerk of Circuit and County Court Harvey Ruvin listing all Petitioner's criminal charges and court dispositions available in Miami-Dade, certificate of parole, 2009 certificate of restoration of civil rights, taxes, nursing assistant certification, certificate of liability insurance, continuing education certificates, program certificates, June 13, 2015, White House Conference on Aging program listing Petitioner as a speaker at the White House, 2015 newspaper articles detailing Petitioner's substantive work in minimum pay raise advocacy nationwide for the Fight for Fifteen campaign, letters of recommendation, driving history records, ACHA exemption to work in the healthcare field as a Certified Nursing Assistant ("CNA"), and a personal statement. Petitioner's personal statement and testimony at hearing provided a comprehensive history of how she has been a caregiver since 1982 "working [i]n hospitals, nursing homes, mental health, hospice, private homes, SLF, etc." Petitioner's statement further detailed that she became a Certified Nursing Assistant in 1985 after the disqualifying offense incident and became a surgical technician in 1997. Petitioner also provided the requested following explanations for each of her arrests: 1.) 11/26/1975: I was arrested for (3) counts of resisting arrest with violence. At the time I was 17 years of age hanging with the wrong crowd. 2.) 11/07/1981: Was at a party drinking got in fight with boyfriend. No case action. 3.) 01/14/1991: In store buying groceries didn't realize there were a pair of socks in my buggy charged with petty theft no way I would have stolen a pair of one dollar socks. Judge was dumbfounded. 4.) 04/11/1994: Got into argument with my mother in which she was drinking she called police to say I had a gun. In which was not true. Office[r] ask me had I ever been to jail I stated yes he then said put your hands behind your back then placed me under arrest. My Mom was there next morning to bond me out. Case No Action. 5.) 09/28/1996: I was witness to a murder I told officer what I seen but didn't want to speak in front of people, also did not want to be labeled as a snitcher. I told the officer I would come to talk but I would not walk with him. I proceeded to walk away the officer grabbed me by the back of my hair, the officer and I proceeded to fight at that time other people got involved. The lead detective asked the officer why he did that. The lead detective promise me he would come to court with me in which he did case was dismissed. Case No Action. 6.) Boyfriend and I got into argument he was drinking and he wanted to drive I told him no he wouldn't give me my keys, so I proceeded to knock head lights out. Case No Action. 7.) 01/13/1998: Got in fight with boyfriend. Case No Action. Petitioner responded to the best of her ability to each of DCF's requests for information. DCF summarized Petitioner's 99 document submission in an Exemption Review Summary ("summary") and forwarded the application, questionnaire, and supporting documents to APD for review. The summary correctly identified Petitioner's 1975 acts of resisting an officer as the disqualifying offenses. The summary outlined twelve non-disqualifying offenses with which Petitioner was charged. However, the summary categorized one non-disqualifying offense as a driving charge and outlined an additional nine non-disqualifying offenses as dismissed or dropped, as Petitioner had reported in her personal statement when she said "no action" was taken. The summary only listed a 1991 shoplifting charge and a 2001 county ordinance violation for which Petitioner was prosecuted. On March 17, 2017, Agency Director Barbara Palmer advised Petitioner by letter that her request for an exemption from the disqualification has been denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. On May 1, 2017, Petitioner requested to appeal APD's denial. Hearing At hearing, as well as in the exemption package, Petitioner took full responsibility for her disqualifying offenses. At hearing, Cunningham also showed remorse. In her personal statement she stated she "paid her debt to society . . . learned from [her] mistakes." Petitioner also credibly explained the circumstances at hearing for her 1975 disqualifying convictions and testified that she was 17 years old when she broke into the neighbor's empty house across the street and was hanging out there. When she was arrested they were handling her roughly. She was originally charged with burglary, larceny and resisting arrest. The burglary and larceny charges were dropped and she pled to three counts of resisting an officer with violence to his person. Petitioner was sentenced to a youth program but left it, was bound over as an adult, and was sentenced to prison where she served three and a half years. Petitioner successfully completed her parole on August 23, 1981, and her civil rights were restored on May 8, 2008. Petitioner testified to her other non-disqualifying offenses as she had detailed in her personal statement. She explained that the 1981 criminal charge was dropped and stemmed from a fight with her boyfriend while at a party where she had been drinking. In 1994, her mom, who was a drinker, was acting out and called the police on Petitioner. Her mother lied and told the police Petitioner had a gun, which she did not. The police asked Petitioner if she had been to jail previously and she answered yes and was arrested. Her mother came and got her out of jail the next morning and the case was dismissed. Petitioner verified that in 1996, she would not tell the police officer what she saw regarding a murder because she was going to the police station to report it privately. The officer grabbed her from behind, they fell to the ground, and she was arrested for Battery on an Officer. The next day the lead detective came to court and testified on Petitioner's behalf that the officer's behavior was inappropriate and Petitioner was released and the charges were dropped. Petitioner also explained that she received another arrest because her boyfriend was drunk and took her car keys and was going to drive. Petitioner testified she could not stop him so she knocked the headlights and windows out of her car to prevent him from driving and ultimately the charges were dropped. Petitioner confirmed at hearing that at least nine of the criminal charges she obtained were either dismissed or dropped and she had not been arrested in over 10 years. Petitioner's credible detailed testimony during the hearing was information that APD did not have the benefit of having while reviewing her application. Petitioner affirmed that she had a July 1999 public assistance fraud case on which adjudication was withheld for her trading food stamps to pay her light bill. DCF failed to ask Petitioner about the case in the request letter with the list of other charges. Petitioner admitted that the public assistance fraud case was the only case in which Petitioner had to make restitution. She paid back the total amount of food stamps she sold and then her food stamps were reinstated. Evelyn Alvarez ("Alvarez"), APD Regional Operations Manager for the Southern Region, made an independent review of Petitioner's Request for Exemption, Petitioner's Exemption Questionnaire, and documentation submitted on December 21, 2016. Among the factors identified by Alvarez as a basis for the recommendation of denial of the exemption was the perception that Petitioner's application was incomplete. Alvarez determined Petitioner did not take responsibility for her arrests or show any remorse. Alvarez testified that APD needs to be able to rely on the answers provided by the applicant in the Exemption Questionnaire to get the information needed to decide whether to grant an exemption. Although she relied on other information gathered as well, what the applicant stated in the Exemption Questionnaire is very important. Alvarez explained that she considered both Petitioner's disqualifying and non-disqualifying offenses, the circumstances surrounding those offenses, the nature of the harm caused to the victim, the history of the applicant since the disqualifying incident, and finally, any other evidence indicating whether the applicant will present a danger to vulnerable APD clients if employment is allowed. Alvarez also testified that she looked for consistency in the applicant's account of events in her Exemption Questionnaire, whether or not the applicant accepted responsibility for her actions and whether the applicant expressed remorse for her prior criminal acts. Alvarez concluded that there were inconsistencies between Petitioner's account of her disqualifying and non-disqualifying offenses compared with those found in the police reports. Alvarez further testified she was concerned that Petitioner had numerous traffic citations. Alvarez explained the citations concerned her because individuals who are granted exemptions would potentially be in positions to transport clients and an applicant that maintains a good driving record demonstrates an ability to ensure the health and safety of clients being served. At hearing, Petitioner testified that her driving record "was not the best." The summary detailed that the 2008 infractions included failure to pay required tolls, improper left, and lack of proof of insurance. Petitioner also had other driving offenses, such as a DWLS and Driver License in 2007 and a safety belt violation in 2006. After her review, Alvarez decided that Petitioner had exhibited a continuing pattern of criminal offenses over an extended period of time, many of which were violent and involved fights, and she concluded Petitioner had not demonstrated rehabilitation. At hearing, Tom Rice ("Rice"), APD Program Administrator for Regional Supports/Licensing, testified that an individual's good character and trustworthiness is important for individuals who provide direct care for APD because service providers are frequently responsible for assisting individuals in making decisions of a financial, medical, and social nature. APD must weigh the benefit against the risk when considering granting an exemption. Rice explained that APD's clients are susceptible to abuse because they are reliant on others to assist with intimate tasks, such as getting dressed, going to the bathroom, feeding, medicine, and funds. Direct service providers need to care and keep clients safe. Rice verified that Petitioner was eligible to work in an APD group home as a CNA. Rice also testified that APD was concerned with Petitioner's failure to disclose details in her accounts regarding her criminal offenses because it calls into question her trustworthiness. He further testified such factors demonstrate a pattern of poor judgment and decision-making and provide cause for APD to question Petitioner's fitness for providing services to the vulnerable individuals for which it is responsible and that is why Petitioner was denied. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from her disqualifying offenses of resisting an officer with violence to his person and that she will not present a danger to disabled or otherwise vulnerable persons with whom she would have contact if employment in a group home were allowed. Petitioner has shown she is a responsible individual by successfully holding jobs in the health field for approximately 18 years. Her employment has been in positions where she cared for vulnerable persons and no evidence was presented that Petitioner was a danger while doing so. Instead, Petitioner's exemption package mirrors her credible testimony of her previous employment serving as a companion, bathing, feeding, dressing, grooming, taking vital signs, transporting patients to doctor's appointments, and working in a private home, which are personal care services that some direct service providers also supply. Petitioner was honest and forthright about her past and supplied 99 pages detailing her past to comply with DCF's request to complete her application. Petitioner testified convincingly that she has turned her life around. Petitioner's only disqualifying offenses occurred over 40 years ago. Even though she was arrested at least twelve times since then, nine of the charges were dismissed and Petitioner's last criminal arrest was 2002. Petitioner also obtained three certificates after her disqualifying offenses. Petitioner received licensure as a CNA and she has been successfully practicing under her license with an ACHA exemption in the health care field. Some of Petitioner's work has even been with vulnerable adults in both a hospital and nursing home. The undersigned further finds that denial of Petitioner's exemption request would constitute an abuse of discretion. As discussed above, it appears Respondent relied heavily on the initial application submitted, hearsay in the police reports, and traffic infractions, and failed to adequately consider the 99 pages and nine dismissed charges Petitioner provided regarding her rehabilitation. In doing so, Respondent failed to properly evaluate Petitioner's disqualifying offenses having occurred over 40 years ago and the last non-disqualifying criminal arrest being at least 15 years ago and the majority of the charges being dismissed. The evidence also indicates that Petitioner has performed successfully in a healthcare work setting, including some care of vulnerable individuals. Additionally, Petitioner has gone above and beyond to contribute in the community. She volunteers with the homeless and also volunteers with legislators and a mayor, and advocated nationally for a minimum wage increase in the Fight for Fifteen campaign, serving as the spokes-person. In 2015, the White House also extended an invitation to Petitioner to speak because of her advocacy, and Petitioner passed the background check and screening that the secret service conducted. As Petitioner testified at hearing, had she been any type of threat or been dangerous or violent based on her previous arrests, she would not have passed the high security screening and been allowed in the White House to speak. Petitioner also testified she does not have anything to hide. She demonstrated, by credible and very compelling evidence, that she made wrong decisions and took the initiative to turn her life around. For these reasons, it is determined that no reasonable individual, upon fully considering the record in this proceeding could find that Petitioner is not rehabilitated. The concerns expressed by Respondent in formulating its intended action, without the benefit of hearing testimony, particularly with those regarding her untruthfulness and lack of remorse for her actions, were effectively refuted by the credible testimony at hearing.
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, Molita Cunningham's, request for an exemption from disqualification from employment. DONE AND ENTERED this 13th day of September, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2017. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Molita Cunningham 12437 Southwest 220th Street Miami, Florida 33170 (eServed) Jada Williams, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issue to be determined is whether Respondent violated section 458.331(1)(b) and (kk), Florida Statutes (2010), and if so, what penalty should be imposed for the violations proven.
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to the Amended Administrative Complaint, Respondent has been licensed as a medical doctor in the State of Florida, having been issued license number ME94098. During all times relevant to the Amended Administrative Complaint, Respondent also held a license to practice medicine in the State of California. On September 7, 2010, Linda Whitney, the Executive Director of the California Board of Medicine, filed an Ex Parte Petition for Interim Suspension Order (Ex Parte Petition) in Case No. 06-2007-187158, seeking to suspend, pending a full hearing on the merits, Respondent’s physician’s and surgeon’s certificate in the State of California. On September 9, 2010, Administrative Law Judge Samuel Reyes of the California Office of Administrative Hearings entered an Ex Parte Interim Suspension Order, stating that the Ex Parte Petition had come up for hearing, with both the Executive Director (through counsel) and Dr. Fenton appearing and submitting documents and presenting argument. Judge Reyes granted the Ex Parte Petition; suspended Respondent’s California Physician’s and Surgeon’s certificate; scheduled a hearing on September 30, 2010; and set a deadline for submitting additional affidavits and other documents. After the hearing on September 30, 2010, Judge Reyes entered an Interim Suspension Order, containing findings of fact and conclusions of law. The Interim Suspension Order indicates that it was entered pursuant to California Government Code section 11529, which, as stated in the Interim Suspension Order, authorizes licensure suspension and the imposition of other conditions pending a resolution of underlying disciplinary allegations. Subdivision (a) of the statute provides that: “[i]nterim orders may be issued only if the affidavits in support of the petition show that the licensee has engaged in, or is about to engage in, acts or omissions constituting a violation of the Medical Practice Act . . . and that permitting the licensee to continue to engage in the profession for which the license was issued will endanger the public health, safety, or welfare.” Subdivision provides: “[t]he administrative law judge shall grant the interim order where, in the exercise of discretion, the administrative law judge concludes that There is a reasonable probability that the petitioner will prevail in the underlying action. (2) The likelihood of injury to the public in not issuing the order outweighs the likelihood of injury to the licensee in issuing the order.” The Interim Suspension Order granted the Petition and suspended Respondent’s license in accordance with Government Code section 11529. On May 8, 2012, the Medical Board of California adopted a Stipulated Settlement and Disciplinary Order as the Decision and Order of the Medical Board of California (Board Order), effective June 7, 2012. The Stipulated Settlement and Disciplinary Order, which was signed by Dr. Fenton, states in pertinent part: Respondent does not contest that, at an administrative hearing, complainant could establish a prima facie case with respect to the charges and allegations contained in SAA No. 06-2007-187158, and that he has thereby subjected his license to the disciplinary action. Respondent admits the truth of paragraph 31C. in SAA No. 06-2007-187158. SSA No. 06-2007-187158 refers to the Second Amended Accusation, which is the charging document in the underlying California case, akin to an administrative complaint in Florida. The SAA alleges that Respondent is subject to discipline based upon impairment because of physical or mental illness affecting competency in violation of the California Business Code, section 822; conviction of a crime substantially related to the qualifications, functions, and duties of the medical profession in violation of section 2236; and general unprofessional conduct, in violation of section 2234. The Board Order revoked Respondent’s Physician’s and Surgeon’s Certificate. The revocation was stayed, however, and Respondent was placed on probation for a period of seven years, subject to terms and conditions outlined in the Board Order. Those terms and conditions included abstinence from the use of any controlled substances and any drugs requiring a prescription other than those lawfully prescribed by another practitioner; abstinence from alcohol use; biological fluid testing; completion of a professionalism program; submission to a psychiatric evaluation; psychotherapy by a California-licensed, board-certified psychiatrist or licensed psychologist; monitoring of Respondent’s practice while on probation; and a prohibition against supervising physician assistants during the course of probation. Respondent did not report the Interim Suspension Order dated September 9, 2010, to the Florida Board of Medicine within 30 days of the Interim Suspension Order. Respondent also did not update his practitioner profile to include the discipline in the State of California. The Board received notice from the State Federation of Medical Boards that another state had taken action, i.e., that the Interim Suspension Order had been issued by the State of California. There is no allegation, nor was any evidence presented, that Respondent has violated the terms of the Board Order entered in California. No evidence was presented indicating that Respondent has ever been disciplined previously, in Florida or in California. At the time of the hearing, Respondent was not practicing medicine. He testified at hearing that he has enrolled voluntarily in the Florida Physicians’ Resource Network (PRN). However, no contract with PRN was entered into evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent violated subsections 458.331(1)(b) and (kk), Florida Statutes, as charged in the Amended Administrative Complaint. It is further recommended that Respondent’s license in Florida be suspended until such time as Respondent demonstrates the ability to practice medicine with reasonable skill and safety, followed by probation with such terms as the Board deems appropriate. Respondent’s demonstration of the ability to practice with reasonable skill and safety shall include an evaluation by a board-certified psychiatrist approved by PRN and compliance with any recommendations PRN may make as a result of that evaluation. DONE AND ENTERED this 29th day of July, 2013, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 July, 2013.
The Issue The issue is whether Petitioner showed by a preponderance of the evidence that it is entitled to a refund of $1,500,216.60 in sales and use tax paid during the period from January 2005 through January 2007 to purchase industrial printing machinery that allegedly satisfied the statutory requirement for a 10 percent increase in productive output for printing facilities that manufacture, process, compound or produce tangible personal property at fixed locations in the state within the meaning of Subsection 212.08(5)(b), Florida Statutes (2005), and Florida Administrative Rule 12A-1.096.1/
Findings Of Fact Respondent is the agency responsible for administering the state sales tax imposed in Chapter 212. Petitioner is a "for profit" Florida corporation located in St. Petersburg, Florida. Petitioner is engaged in the business of publishing newspapers and commercial printing. Petitioner derives approximately 85 percent of its revenue from advertising and approximately 15 percent of its revenue from circulation subscriptions. In April, 2007, Petitioner requested a refund of $403,780.05 in sales and use taxes paid for the purchase of industrial machinery and equipment during the period from January, 2005, to January, 2006. In October, 2007, Petitioner requested a refund of $1,096,436.61 in sales and use taxes paid for the purchase of industrial machinery and equipment for the period from January, 2006, to January, 2007. The first refund request in April, 2007, became DOAH Case Number 08-3938, and the second refund request in October, 2007, became DOAH Case Number 08-3939. The two cases were consolidated into this proceeding pursuant to the joint motion of the parties. The parties stipulated that the only issue for determination in this consolidated proceeding is whether Petitioner satisfied the requirement for a 10 percent increase in productive output in Subsection 212.08(5)(b) and Rule 12A- 1.096. If a finding were to be made that Petitioner satisfied the 10 percent requirement, the parties stipulate that the file will be returned to Respondent for a determination of whether the items purchased are qualifying machinery and equipment defined in Subsection 212.08(5)(b) and Rule 12A-1.096. The issue of whether Petitioner satisfied the statutory requirement for a 10 percent increase in productive output in Subsection 212.08(5)(b) and Rule 12A-1.096 is a mixed question of law and fact. The ALJ concludes as a matter of law that Petitioner did not satisfy the 10 percent requirement. The ALJ discusses that conclusion briefly, for context, in paragraphs 6 and 7 of the Findings of Fact, and explains the conclusion and the supporting legal authority more fully in the Conclusions of Law. It is an undisputed fact that Petitioner counts items identified in the record as "preprints," "custom inserts," and "circulation inserts" separately from the "newspaper" as a means of exceeding the 10 percent requirement in Subsection 212.08(5)(b). Respondent construes the 10 percent exemption authorized in Subsection 212.08(5)(b) in pari materia with the exemption authorized in Subsection 212.08(5)(1)(g) for "preprints," "custom inserts," and "circulation inserts" (hereinafter "inserts"). The latter statutory exemption treats inserts as a "component part of the newspaper" which are not to be treated separately for tax purposes. For reasons stated more fully in the Conclusions of Law, the ALJ agrees with the statutory construction adopted by Respondent. That conclusion of law renders moot and, therefore, irrelevant and immaterial, the bulk of the evidence put forth by the parties during the two-day hearing because the evidence assumed arguendo that Petitioner's statutory interpretation would be adopted by the ALJ, i.e., inserts would be counted separately from the newspaper for purposes of satisfying the 10 percent requirement in Subsection 212.08(5)(b). In an abundance of caution, the fact-finder made findings of fact based on the legal assumption that inserts are statutorily required to be counted separately for purposes of the 10 percent requirement in Subsection 212.08(5)(b). Those findings are set forth in paragraphs 9 through 11. The verification audit by Respondent's field office was able to verify an output increase of only 4.27 percent for 2005 and only 8.72 percent for 2006. A preponderance of evidence in this de novo proceeding did not overcome those findings. The trier of fact finds the evidence from Petitioner during this de novo proceeding to be inconsistent and unpersuasive. For example, Petitioner inflated production totals by counting materials printed for its own use, and materials in which the unit of measurement was inconsistent. In other instances, production totals for printing presses identified in the record as Didde and Ryobi presses varied dramatically with circulation. In other instances, Petitioner's reporting positions changed during the course of the proceeding. There is scant evidence that the alleged increase in production created jobs in the local market in a manner consistent with legislative intent. Rather, a preponderance of evidence shows that when Petitioner placed the equipment in service it was job neutral or perhaps reduced jobs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner did not satisfy the requirement for a 10 percent increase in productive output defined in Subsection 212.08(5)(b) and Rule 12A-1.096, and denying Petitioner's request for a refund. DONE AND ENTERED this 20th day of October 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 20th day of October, 2009.
The Issue The issue to be determined is whether Respondent complied with coverage requirements of the workers' compensation law, Chapter 440, Florida Statutes. A determination of whether Respondent functioned as an employer is a preliminary issue to be resolved.
Findings Of Fact Petitioner is the agency of state government currently responsible for enforcing the requirement of Section 440.107, Florida Statutes, that employers secure the payment of compensation for their employees. Respondent works in the fence construction industry and employs four people. Petitioner's investigator identified three people preparing a worksite for the erection of a privacy fence at 3000 Majestic Oaks Lane South in Jacksonville, Florida. The investigator then contacted Respondent and confirmed that the three identified individuals in addition to Respondent, were employed by Respondent for a total of four employees. The investigator determined none of the employees had workers’ compensation exemptions nor had Respondent secured the payment of workers’ compensation to his employees. On April 27, 2005, the investigator served a SWO on Respondent. The SWO required Respondent to cease all business operations in Florida. At the same time, the investigator served a Request for Business Records for Penalty Calculation on Respondent, requesting payroll records from Respondent for the period April 27, 2002, through April 27, 2005 (the audit period for penalty calculation). Respondent provided no records to the investigator. On May 23, 2005, the investigator determined 520 days had passed between the beginning of the audit period and September 30, 2003, and the penalty for noncompliance during this period was $52,000.00. The investigator also determined that during the period October 1, 2003, through the end of the audit period, the statewide average weekly wage paid by employers was $651.38; Respondent had four (4) employees; the imputed weekly payroll for Respondent’s employees was $320,848.00; using approved manual rates Respondent should have paid $97,969.40 in workers’ compensation premium; and the penalty for noncompliance during this period was calculated to be $146,954.12. On May 26, 2005, Investigator Bowman served the Amended Order of Penalty Assessment on Respondent. The Amended Order assessed Respondent with a penalty for the entire audit period in the amount of $198,954.12. The investigator obtained records created by Respondent demonstrating Respondent placed a bid on a job on June 1, 2005, and Respondent completed the job on July 1, 2005. On July 19, 2005, the investigator served a Corrected Amended Order of Penalty Assessment on Respondent, which assessed a penalty in the amount of $3,000.00 for violating the terms of the SWO. Respondent violated the SWO on two separate days, the day of the bid and the day the work was completed. No competent substantial evidence was presented regarding intervening business operations.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order affirming the Stop Work Order and Order of Penalty Assessment, Amended Order of Penalty Assessment, and Corrected Amended Order of Penalty Assessment, requiring Respondent to pay a penalty in the amount of $200,594.12 to Petitioner, and requiring Respondent to cease all business operations in Florida. DONE AND ENTERED this 15th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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, 2005. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers Compensation 200 East Gaines Street Tallahassee, Florida 32399-422 Martin D. Snyder 10367 Allene Road Jacksonville, Florida 32219 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carols G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact 9. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on February 8, 2011, and the Amended Order of Penalty Assessment issued on Februrary 23, 2011, attached as “Exhibit A” and “Exhibit B” respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case,
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from CARLOS ALBERTO RODRIGUEZ, the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On February 8, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-047-D5 to CARLOS ALBERTO RODRIGUEZ. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein CARLOS ALBERTO RODRIGUEZ was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On February 8, 2011, the Stop-Work Order and Order of Penalty Assessment was served by personal service on CARLOS ALBERTO RODRIGUEZ. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On February 23, 2011, the Department issued an Amended Order of Penalty Assessment to CARLOS ALBERTO RODRIGUEZ. The Amended Order of Penalty Assessment assessed a total penalty of $163,791.63 against CARLOS ALBERTO RODRIGUEZ. The Amended Order of Penalty Assessment included a Notice of Rights wherein CARLOS ALBERTO RODRIGUEZ was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On March 7, 2011, the Amended Order of Penalty Assessment was served by personal service on CARLOS ALBERTO RODRIGUEZ. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On February 28, 2011, CARLOS ALBERTO RODRIGUEZ timely filed a request for administrative hearing with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on March 28, 2011, and the matter was assigned DOAH Case No. 11-1574. A copy of the petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On May 9, 2011, the Department served by U.S. mail its First Interlocking Discovery Request (‘discovery requests”) which included requests for admissions, interrogatories, and requests for production on Respondent. Respondent was required to serve its answers upon the Department within 30 days pursuant to Rules 1.340(a), 1.350(b), and 1.370(a), Florida Rules of Civil Procedure. However, pursuant to Rule 128-106.103, Florida Administrative Code, “five days shall be added to the time limits when service has been made by regular U.S. mail.” Therefore, Respondent was required to respond to the discovery on or before June 13, 2011. 7. On June 22, 2011, the Department filed a Motion to Deem Matters Admitted and Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes after having not received any answer from Respondent to the Department’s discovery requests. 8. On June 23, 2011, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
Findings Of Fact 11. The factual allegations contained in the Stop-Work Order and Order of Penalty Assessment issued on August 11, 2010, and the Amended Order of Penalty Assessment issued on August 30, 2010, attached as “Exhibit A” and “Exhibit B” respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from HANEY EXTERIORS, LLC, the Stop-Work Order and Order of Penalty Assessment, and the Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On August 11, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-326-1A to HANEY EXTERIORS, LLC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein HANEY EXTERIORS, LLC was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On August 12, 2010, the Stop-Work Order and Order of Penalty Assessment was served by personal service on HANEY EXTERIORS, LLC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On August 30, 2010, the Department issued an Amended Order of Penalty Assessment to HANEY EXTERIORS, LLC. The Amended Order of Penalty Assessment assessed a total penalty of $68,592.02 against HANEY EXTERIORS, LLC. The Amended Order of Penalty Assessment included a Notice of Rights wherein HANEY EXTERIORS, LLC was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On August 31, 2010, the Amended Order of Penalty Assessment was served by certified mail on HANEY EXTERIORS, LLC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On August 31, 2010, HANEY EXTERIORS, LLC timely filed a request for administrative hearing with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on September 22, 2010, and the matter was assigned DOAH Case No. 10-9228. A copy of the petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On October 27, 2010, the Department filed its First Interlocking Discovery Request (“discovery requests”) with the Division of Administrative Hearings, to which Respondent was required to serve its answers upon the Department within 30 days of service, pursuant to Rules 1.340(a), 1.350(b), and 1.370(a), Florida Rules of Civil Procedure. The Discovery request included requests for admissions, interrogatories, and requests for production. 7. On March 16, 2011, the Department filed a Status Report and Motion to Compel Discovery Responses after having not received any answer from Respondent to the Department’s discovery requests. 8. On March 28, 2011, the Administrative Law Judge issued an Order Granting the Department’s Motion to Compel Discovery, ordering Respondent to serve responses to all of the Department’s discovery requests on or before May 13, 2011. 9. On May 17, 2011, the Department filed a Motion to Deem Matters Admitted and Relinquish Jurisdiction Pursuant to Section 120.57(1)(i), Florida Statutes after having not received any answer from Respondent to the Department’s discovery requests. 10. On June 13, 2011, the Administrative Law Judge issued an Order Relinquishing Jurisdiction and Closing File. A copy of the Order Relinquishing Jurisdiction and Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
The Issue The issue in this case is whether Petitioner’s application for licensure as a resident all-lines adjuster should be approved or denied.
Findings Of Fact DFS is the state agency responsible for licensing and regulating insurance adjusters and agents pursuant to chapters 624 and 626, Florida Statutes. On April 20, 2016, Petitioner filed with DFS his application to become licensed as an all-lines adjuster in the state of Florida. On the second page of the application form, Petitioner answered “yes” to the question asking whether he has ever pled nolo contendere, no contest, or guilty to, or ever had adjudication withheld for, or ever been convicted of or found guilty of, any felony crime under the laws of any state. Despite answering yes to that question, on the third and fourth pages of the application, Petitioner answered “no” to the following three questions: First, Petitioner was asked whether his felony crime(s) fell within the following categories: any first-degree felony; a capital felony; a felony involving money laundering, fraud of any kind, or embezzlement; or a felony directly related to the financial services business. Second, Petitioner was asked whether his felony crime(s), if not falling in one of the above categories, were crimes involving moral turpitude. Lastly, Petitioner was asked whether his felony crime(s) were within the category of “all other felonies.” The questions asking how to categorize the felony crime(s) that Petitioner acknowledged on page two of the application correlate to the statute prescribing a range of consequences depending on the type of felony criminal background an applicant has. According to the statute, an applicant with felony criminal history falling in the first group above (first degree felony, etc.) is permanently barred from applying for licensure in Florida as an insurance agent or adjuster. For an applicant whose felony criminal history does not fall in the first group, but is categorized as a felony (or felonies) involving moral turpitude, the statute provides for a long period of disqualification. If an applicant’s felony criminal history does not fall in either of the first two categories, then a shorter period of disqualification is provided by the statute. See § 206.207, Fla. Stat., adopted in its current form in 2011 (with one immaterial amendment in 2014 to change a statutory cross-reference). Petitioner’s admitted felony history must, of necessity, fall within one of the three groups: the felony history must have involved one or more felonies identified for permanent bar, other felonies involving moral turpitude, and/or all other felonies. The application answers were internally inconsistent and at least one of the answers on pages three and four was wrong. At hearing, Petitioner did not offer any explanation for his incorrect answer(s).1/ Petitioner did not file with his April 2016 application submitted to DFS, and did not offer into evidence at hearing any proof of the felony criminal history to which he admitted in his application. Petitioner gave little information at all about his criminal background at hearing. He testified that he identified his prior criminal history on page two of the application (by answering “yes” to the question asking whether he had ever been convicted, etc. of any felony crimes). The only detail he was asked by his counsel to address was as follows: Q: Now the criminal history that you identified, is that something that occurred a while ago? A: Yes, sir. Q: And can you give me the approximate time period? A: The offense? It was in 1994, I believe. Q: Okay. And do you recall when you finished all your restitution and probation concerning any of these prior convictions? A: 1999. (Tr. 32). Petitioner later acknowledged on cross-examination, as suggested by his attorney’s attempted correction in his follow-up question, that there was not just one (“the”) offense--there was more than one offense and more than one conviction. Other than correcting that error, Petitioner volunteered no information regarding his prior convictions. He did, however, offer into evidence documentation generally corroborating his testimony regarding when he completed probation for his prior convictions. Two letters from New Jersey Superior Court personnel state that court records reflect that Mr. Bivona completed three different probationary terms associated with three different indictment numbers, as follows: for indictment number 96-03-0031-I, probation was completed as of August 9, 1999; for indictment number 95-10-0453-I, probation was completed as of May 2, 1999; and for indictment number 95-05-0206-I, probation was completed as of September 27, 1998. Although Petitioner offered no details or documentation for his prior felony convictions, either with his application or at hearing (other than the letters documenting when he completed probation), Petitioner said that he had previously provided documentation to Respondent regarding his felony convictions, a fact confirmed by Respondent. Respondent had in its files certified copies of court records for Petitioner’s felony convictions in New Jersey, obtained by Respondent in 2010 in connection with a prior license application by Petitioner.2/ Respondent offered into evidence at hearing certified copies of court records regarding Petitioner’s felony criminal history, including indictments issued by grand juries setting forth the original charges, and the subsequent judgments of conviction issued by New Jersey Superior Court judges. Because Respondent was willing to use the criminal history documentation previously provided by Petitioner that was already in Respondent’s files, Respondent did not require Petitioner to obtain or submit the same documentation again in connection with his new license application.3/ The indictment numbers identified in the three judgments of conviction match the three indictment numbers contained in Petitioner’s exhibit offered to prove when he completed his probationary terms for his prior convictions. Thus, although Petitioner was evasive at hearing, unwilling to identify the court records of his prior convictions, the records themselves establish the missing information about Petitioner’s felony criminal history that Petitioner only alluded to at hearing. In a September 28, 1995, judgment of conviction issued by Judge Leonard N. Arnold, New Jersey Superior Court for Somerset County, Mr. Bivona pled guilty to, and was convicted of, the charges set forth in indictment 95-05-0206-I. As enumerated in the judgment of conviction, these were: four counts of fraudulent use of a credit card, a third-degree felony; one count of unlawful theft or receipt of a credit card, a fourth-degree felony; four counts of forgery, a fourth-degree felony; and one count of theft by deception, a fourth-degree felony. For sentencing purposes, the court merged nine of the counts into count two (one of the charges for fraudulent use of a credit card), and imposed the following sentence: three years of probation, restitution of $271.60, a $500.00 fine, and other monetary assessments. On May 3, 1996, another judgment of conviction was issued by Judge Leonard N. Arnold. The judgment of conviction shows that Mr. Bivona pled guilty to, and was convicted of, the charges set forth in indictment 95-10-0453-I. As enumerated in the judgment of conviction, these were: three counts of fraudulent use of a credit card, a third-degree felony; and one count of theft, a fourth-degree felony. The sentence imposed by the judgment of conviction was incarceration for 180 days in the county jail, a three-year probationary term, restitution of $380.02, and monetary assessments. On August 9, 1996, a judgment of conviction was issued by Judge Marilyn Hess, New Jersey Superior Court for Hunterdon County. As shown on the judgment of conviction, Mr. Bivona pled guilty to, and was convicted of, the charges set forth in indictment 96-03-00031-I. As enumerated in the judgment of conviction, these were: one count of theft by deception, a third-degree felony; one count of forgery, a fourth-degree felony; and one count of credit card theft, a fourth-degree felony. The sentence imposed by the judgment of conviction was a three-year probationary term, restitution of $2,488.30, and monetary assessments. As noted, Mr. Bivona testified that he completed the probationary terms for his prior convictions in 1999. He provided documentation corroborating that he served the three probationary terms and completed them on three different dates in 1998 and 1999, the last of which was August 9, 1999. No evidence was presented to prove that Mr. Bivona has paid all restitution, fines, and other monetary assessments imposed in the three judgments of conviction, and, if so, when all payments were completed. Petitioner’s application was initially denied by DFS because of Petitioner’s felony criminal history. DFS determined that at least two of the judgments of conviction, and possibly all three, were for felony crimes involving fraud. DFS did not undertake a review of Petitioner’s rehabilitation from his past crimes or his present trustworthiness and fitness to serve as an insurance adjuster, because in DFS’s view, Petitioner was subject to the statutory permanent bar from applying for licensure. DFS did not determine that Petitioner did not otherwise meet the requirements for licensure as a resident all-lines adjuster. At hearing, neither party went into any detail regarding the requirements for licensure as an all-lines adjuster. Instead, the focus of both Petitioner and Respondent was on whether Petitioner’s criminal history renders him disqualified from applying for licensure as an adjuster, either permanently or for a period of time, and, if the latter, whether mitigating circumstances reduce the disqualifying period. No evidence was offered of aggravating circumstances. Respondent has not disputed whether, aside from the implications of Petitioner’s criminal history, Petitioner otherwise qualifies for licensure. Therefore, it is inferred that Respondent was and is satisfied that, aside from the implications of Petitioner’s criminal background (including questions about rehabilitation, trustworthiness, and fitness), Petitioner otherwise meets the requirements for licensure as an all-lines adjuster. Petitioner presented evidence addressed to the mitigating factors in Respondent’s rule to shorten the period of disqualification in certain circumstances, where there is no permanent bar. Petitioner testified that he moved to Florida with his wife in 1998 (apparently before he had completed his probationary terms for at least two of his convictions). He and his wife started a business in the Sarasota area, a corporation that has operated under two different names, but has remained essentially the same since 1998. The business has always been small; although it has gone up and down in size over the years, Petitioner said that the business has had at least five employees for over three years. Since 1998, the nature of his business has been to provide technical support and assistance to insurance adjusters. The business has not been engaged in the actual adjuster work; instead, his clients are licensed adjusters who perform the actual adjuster work. Petitioner testified that he has been employed by the corporation he owns, working at least 40 hours per week for a continuous two-year period within the five years preceding the filing of his application. This parrots one of the mitigation factors in Respondent’s rule, and although no documentation of his employment hours was provided for any period of time, the undersigned accepts Petitioner’s testimony as sufficient under the mitigation rule. If Petitioner is determined to be disqualified for a period of years and subject to the mitigation rule, this mitigation factor would reduce the disqualification period by one year. To meet another mitigation factor, Petitioner submitted five letters of recommendation in evidence. Three of those letters appear to be from someone who has known Petitioner for at least five years (one undated letter states that the author has known Petitioner for three years; another letter, more of a business reference from an insurance company representative in Maryland, does not state how long the author has known Petitioner). Those letters that are dated bear dates after the license application was submitted and initially denied, but there is no impediment to receiving and considering them in this de novo hearing. The letters meet the requirement in Respondent’s rule for mitigation. If Petitioner is determined to be disqualified for a period of years and subject to the mitigation rule, this mitigation factor would reduce the disqualification period by one year. Although the letters satisfy one of the mitigation factors in Respondent’s rule, the contents of the letters are hearsay, as none of the authors testified. The matters stated in the letters, for the most part, do not corroborate any non- hearsay evidence, except in a few immaterial respects (such as that Petitioner runs his own business and has daughters who play volleyball). Petitioner did not present any testimony from witnesses at hearing who could attest to his character, his business reputation, or his trustworthiness. Petitioner testified that he does volunteer work on a “sporadic” basis. He is active as a volunteer for his three daughters’ schools and travel volleyball activities, and he also works with youth groups in his church. Although Petitioner testified that he believes he has volunteered at least 180 hours over the three years preceding the filing of his application, Petitioner did not present any documentation from one or more charitable organizations confirming the number of his volunteer hours. It is undisputed that Petitioner held an insurance adjuster license in Florida for some period of time, until, according to DFS, the license expired by operation of law. Although Petitioner admitted that since 1998, his business has not been engaged in insurance adjuster work, merely holding a license appears to at least superficially satisfy a mitigation factor in Respondent’s rule. No evidence was presented to show that Petitioner has been arrested or charged with any criminal violations since he completed his third probation in August 1999, more than 17 years ago. The length of time without any additional criminal incidents is a positive consideration. Notably lacking from Petitioner were: an explanation for the circumstances underlying the multiple crimes he committed that involved fraud, theft, forgery, and deception, through use of other people’s credit cards and checks; express acceptance of responsibility for his criminal past; the expression of genuine remorse for his wrongdoing; and an explanation as to why his criminal history should not present concerns if Petitioner becomes authorized to engage in insurance adjusting. As Petitioner acknowledged, a licensed adjuster “would negotiate settlement [of claims under insurance policies], would offer payment, [and] would have authority to write payment and receive payments” (Tr. 35), placing the adjuster in a position of trust and responsibility in dealing with other people’s money. Simply noting that it has been a good number of years since Petitioner completed his probations, that he is running his own business (that does not engage in insurance adjusting), that he has a family, that he is involved with church, and that he does volunteer work is not enough, when Petitioner’s past crimes and the concerns they present go unexplained, to support a finding of rehabilitation, moral fitness, and trustworthiness today. It may well be that Petitioner could prove these things if he had addressed them; it may have been an unfortunate strategic choice to avoid any mention of Petitioner’s past crimes in anything but the most general and vague terms. Perhaps in light of decisional law discussed in the Conclusions of Law below, Respondent’s licensure application form asks applicants who disclose criminal history whether they have had their civil rights restored. Petitioner answered yes. He was asked to explain, and his response was: “Rights were restored and I have the ability to vote and act as a standard US Citizen.” (Pet. Exh. 11 at 4). In the initial review of Petitioner’s application, DFS staff apparently accepted Petitioner’s representation that his civil rights had, in fact, been restored.4/ However, in a “deficiencies” listing at the end of the application, DFS noted that Petitioner failed to provide a certificate of civil rights restoration, or other proof of restoration of his civil rights. Petitioner’s application was not denied because of these omissions, and Petitioner’s failure to provide such evidence in his application would not have been an impediment to receiving and considering proof of restoration of Petitioner’s civil rights at hearing, had such evidence been offered. At hearing, Petitioner attempted to prove that his civil rights were restored. However, Petitioner presented no evidence that he ever applied for restoration of his civil rights, or that his civil rights have been restored by order of the governor in the exercise of clemency power. Instead, the only evidence offered by Petitioner was a Florida voter status printout showing that he is an active registered voter. The exhibit was admitted for the limited purpose of showing that Petitioner was registered to vote in Florida. However, this fact is insufficient to support an inference that Petitioner’s civil rights must have been restored or he would not have been allowed to register to vote. If Petitioner has actually had his civil rights restored, there would be direct evidence of that, and Petitioner had no such evidence. It is equally or more plausible that Petitioner was allowed to register to vote in Florida by mistake; Petitioner acknowledged that he represented in his voter registration application that his civil rights were restored (just as he represented to DFS in his license application). Petitioner’s counsel argued that Petitioner was allowed to register to vote in Florida because Florida gave full faith and credit to what New Jersey had done. This argument was unsupported by evidence of how Petitioner became registered to vote in Florida. Regarding what was done in New Jersey, the only evidence offered by Petitioner was a “voter restoration handbook” from the state of New Jersey, which indicates as follows: “In New Jersey, any person who is no longer in prison or on parole or probation, can register to vote. . . . In New Jersey, unlike some other states, those who have been convicted of felony offenses in the past are not forever barred from voting. . . . Any ex-felon who has satisfactorily completed the term of his or her sentence can register to vote.” (Pet. Exh. 7, admitted for a limited purpose, at 1 - 2). The rest of the handbook simply describes how one goes about registering to vote in New Jersey. Under New Jersey law, then, one particular civil right--the right to vote--is taken away from convicted felons only until they complete their sentence, parole, and probation. This is confirmed by a New Jersey statute that has been officially recognized, providing that the right of suffrage--the right to vote--is taken away from any person “[w]ho is serving a sentence or is on parole or probation as the result of a conviction of any indictable offense under the laws of this or another state or of the United States.” § 29:4-1(8), N.J. Stat.5/ The right to vote is only one of the civil rights that may be lost by reason of being convicted of a crime. For example, under another New Jersey law officially recognized in this proceeding, persons convicted of a crime are disqualified from serving on a jury. See § 2C:51-3b., N.J. Stat. Petitioner presented no evidence to prove that he ever sought or received a restoration of his civil rights by executive order of the governor pursuant to an exercise of executive branch clemency power, either in the state of New Jersey or in Florida. In New Jersey, restoration of civil rights and privileges (one of which may be the right to vote) is accomplished pursuant to section 2A:167-5, New Jersey Statutes, officially recognized in this proceeding and providing in pertinent part: Any person who has been convicted of a crime and by reason thereof has been deprived of the right of suffrage or of any other of his civil rights or privileges . . . may make application for the restoration of the right of suffrage or of such other rights or privileges . . . which application the governor may grant by order signed by him. (emphasis added). Similarly, the Florida Constitution vests in the executive branch the following clemency powers: [T]he governor may, by executive order filed with the custodian of state records, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of two members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses. (emphasis added). Art. IV, § 8(a), Fla. Const. Petitioner admitted that he did not apply to the governor for a restoration of civil rights in New Jersey, and he has no order from the governor restoring his civil rights. Similarly, Petitioner did not apply for and receive an order from the governor restoring his civil rights in Florida. Instead, he admitted that he is relying on whatever happened in New Jersey. The following testimony reveals Petitioner’s misconception of the process in New Jersey for restoration of civil rights: Q: Okay. Mr. Bivona, what’s your understanding of how your civil rights were restored in New Jersey? A: My understanding is that once probation and restitution and everything is completed, that civil rights are restored in the State of New Jersey. Q: And did that happen, to your knowledge? A: The completion? Q: Yes. A: Yes, sir. I also verified that with the State of New Jersey. I called them. The Court: I can’t consider that.[6/] A: I understand. I’m sorry. The Court: Do you have any exhibits that show that civil rights have been restored? Mr. Terrell: There’s a handbook from New Jersey that’s also how the rights are restored. [Pet. Exh. 8, in evidence for limited purpose] (Tr. 44).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services issue a final order denying Petitioner’s application for licensure as a resident all-lines insurance adjuster. DONE AND ENTERED this 14th day of April, 2017, 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 14th day of April, 2017.
The Issue The issue is whether Petitioner is entitled to its attorneys' fees and costs associated with this case and an associated case, DOAH Case No. 99-1679RX, in which Petitioner obtained a final order from the same Administrative Law Judge invalidating two rules promulgated by Respondent.
Findings Of Fact Petitioner was the prevailing party in DOAH Case No. 99-1679RX. In that case, Petitioner proved that Rules 12A-1.001(3)(b) and 12A-1.001(3)(q), Florida Administrative Code, which provided an exemption from the sales and use tax for certain organizations providing certain services to minors (Minor Organizations), were an invalid exercise of delegated legislative authority because the exemption in the rule covered only purchases by Minor Organizations and the exemption in the statutes covered purchases and sales by Minor Organizations. The sole issue in this case is whether Respondent's position in defending the challenged rules was substantially justified. Among other things, Respondent has conceded that Petitioner's claim exceeds $15,000. In the rule challenge, the Administrative Law Judge reviewed the language chosen by the legislature to create exemptions based on a sale, a purchase, the identity of the purchaser, the identity of the seller, and the identity of the item purchased or sold. The Administrative Law Judge concluded that the "plain meaning" of the statute was to exempt purchases and sales by Minor Organizations. As Petitioner notes in its motion, Respondent had already promulgated a rule conferring the broader exemption for purchases and sales by certain nursing homes, which were the beneficiary of a statutory exemption stated in the same language as that applying to Minor Organizations. However, several other rules, construing the same statutory language governing other types of entities, recognized only the narrower exemption extended to Minor Organizations. In one instance, the legislature exempted the purchases and sales by one type of entity in different, arguably stronger language. Additionally, Respondent defended its interpretation in the rule challenge largely in reliance upon legislative history, which, at least by negative implication, was not inconsistent with Respondent's position.
