Findings Of Fact Respondent is the state agency authorized to administer and enforce provisions of Chapter 520, Florida Statutes, regulating the granting or denial of applications for Home Improvement Contractor Licenses. On November 30, 1988, Petitioner submitted an application on behalf of a corporation known as "The Durocoat Company" (Durocoat) to Respondent for licensure as a home improvement contractor. On that application, Petitioner disclosed the identity of the two principals of the corporation and the position held by those two individuals. Petitioner listed himself as the president of the corporation and another individual, Russell W. Black, as the corporation's vice-president. Each principal owns 50 percent of the corporation. Following the section of the application providing for the disclosure of the identities and addresses of business principals, a number of questions are listed and the person executing the form is required to provide an "X" in a block to indicate a "yes" or "no" answer to each of those questions. Question number four reads as follows: Are there unpaid judgments against the applicant or any of the persons listed above? If "yes" attach a copy of the complaint and judgment(s). Petitioner placed an "X" in the space allotted for a "yes" answer to the inquiry regarding unpaid judgments against the persons listed as business principals, namely himself and Mr. Black. Petitioner then attached a copy of a document entitled "Notice of Levy" issued by the Internal Revenue Service (IRS) of the United States Department of the Treasury. In sum, the notice certifies the existence of a tax lien against Mr. Black, Durocoat's vice-president, in the amount of $27,546.25. It is undisputed by the parties that creditors held unpaid judgments against Petitioner at the time he submitted the application on November 30, 1988, and that he failed to attach copies of those judgments to the application. Further, Petitioner acknowledged at the final hearing that he was aware at the time of submittal of the application of the existence of one of these judgments. That judgement, entered in favor of The American Express Company (American Express) for $7,602, has existed since September of 1987. In mitigation of his failure to disclose the American Express judgement, Petitioner testified at hearing that he didn't have a copy of the judgement at the time he filed the application and was unaware of the requirement that he should attach a copy. In view of his action in attaching a copy of the existing tax lien against Mr. Black to the application, Petitioner's testimony that he was unaware that he should attach copies of unpaid judgments is not credited. A copy of Petitioner's credit report, introduced at final hearing by Petitioner, discloses that a business known as "Speeler Marine" obtained a judgement against him in the amount of $250 in March of 1986. Petitioner testified at hearing that he was unaware of the existence of this judgement. No settlement discussions have been initiated by him with the creditor. Petitioner's credit report further discloses that an outstanding loan to Petitioner in 1985 in the amount of $36,000 by a financial institution identified as "Sun Bank" is classified as a "bad debt, placed for collection." Petitioner testified that this debt represents loan funds obtained in a previous business venture and is the subject of settlement negotiations and that he has repaid $4,000 of the amount at the present time. Petitioner's testimony also establishes that the credit report's disclosure of a 1987 foreclosure certificate of title to real estate represented real property located in Gainesville, Florida, which Petitioner had taken in trade for money owed to him. In view of the distance to that city, Petitioner testified that he simply chose not to pay off the existing mortgage on the property or oppose foreclosure action by the mortgage holder. A representative of Nationwide Chemical Coating Company (Nationwide) testified at the final hearing regarding that company's business relationship with Petitioner's corporation. Since February of 1988, Nationwide has sold supplies valued at $250,000 to Durocoat. The company has always paid charges within the 30 day required time limit and is considered to be a "class A" customer. In regard to the federal tax lien which Petitioner attached to the application, Russell W. Black testified that the lien resulted from the disallowance by IRS of a tax shelter investment of $34,000 made by Black in 1977 or 1978. Black was notified by IRS in 1981 that the tax shelter was not considered to be a valid deduction for tax purposes. The amount owed by Black to IRS in 1981 was $20,630.64. The amount is now $27,546.25 and, according to Black, is still unpaid because he doesn't have the money. On advice of counsel, he has not contacted IRS to schedule payments on the debt. Respondent denied Petitioner's application by letter dated January 13, 1989, stating that Petitioner's failure to attach copies of the unpaid judgments against himself constituted a material misstatement of fact sufficient to authorize the denial. The letter further stated that the unpaid judgments, along with the federal tax lien against Mr. Black, demonstrated a lack of financial responsibility by both individuals and constituted an additional ground for denial of the application.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 24th day of August, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Petitioner's proposed findings consisted of 10 unnumbered paragraphs which have been numbered 1-10 and are treated as follows: 1-8. Addressed in part, remainder rejected as unnecessary. Rejected, unsupported by direct admissible evidence. Rejected, unnecessary to result reached. Respondent's Proposed Findings. 1-2. Addressed. 3-4. Rejected, unnecessary. 5-11. Addressed in substance. COPIES FURNISHED: John L. Riley, Esq. 2325 Fifth Avenue North St. Petersburg, FL 33713 William W. Byrd, Esq. Assistant General Counsel Office Of The Comptroller 1313 Tampa Street, Suite 615 Tampa, FL 33602-3394 Hon. Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol Tallahassee, FL 32399-0350 Charles Stutts, Esq. General Counsel Department of Banking and Finance The Capitol Plaza Level, Room 1302 Tallahassee, FL 32399-0350
Findings Of Fact High-Tech Yacht & Ship, Inc. (Petitioner) is a Florida corporation engaged in the business of retail sales of marine vessels. Also, Petitioner is a registered retail dealer in the State of Florida. The President of Petitioner is its only corporate officer. On or about September 2, 1993, Petitioner, in the capacity of a broker, sold a motor yacht at retail to Regency Group, Inc. (purchaser), through its representative, for $78,000. The motor yacht is described as a 1988, 41' Amerosport Chris Craft, hull Number CCHEU075E788, and called the "Motivator". At the closing of the sale, on or about September 2, 1993, the purchaser refused to pay the sales tax on the purchase, which was $4,680. However, the purchaser agreed to pay the sales tax after being informed by Petitioner that, without the payment of the sales tax, there could be no closing. The purchaser's representative submitted, at closing, a personal check in the amount of $4,680 for the sales tax. All of the necessary documents were completed for ownership and registration to be transferred to the purchaser. Subsequently, Petitioner received notice from its bank that the check for the sales tax had been dishonored by the purchaser's bank. The purchaser's representative had stopped payment on the check. In October 1993, Petitioner submitted its sales and use tax return for the month of September 1993 to Respondent in which the sale of the yacht was reported. Respondent automatically reviews sales and use tax returns. Respondent's review of Petitioner's return revealed a shortage of sales tax collected in the amount of $4,680.. In January 1994, Respondent issued a notice of tax action for assessment of additional tax in the amount of $4,710, plus interest and penalty, to Petitioner. The $4,710 included the loss of Petitioner's collection allowance of $30, which loss resulted from Petitioner's failure to timely remit all taxes due. Having received the notice of tax action, by letter dated January 20, 1994, Petitioner generally informed Respondent of the circumstances regarding the sales tax shortage, including the dishonored check. Petitioner pointed out, among other things, that Respondent had the authority and the means to collect the tax, while it (Petitioner) had limited means, and suggested, among other things, that Respondent cancel the purchaser's Florida registration of the yacht. On or about January 31, 1994, approximately three months after the check for sales tax was dishonored, Petitioner issued a notice of dishonored check to the purchaser, in which Petitioner requested payment of the sales tax. The notice provided, among other things, that Petitioner could seek criminal prosecution and civil action if the monies were not paid to Petitioner. Having not received the $4,680, Petitioner contacted the local law enforcement agency. After investigation, the law enforcement agency informed Petitioner that a civil action would have to be instituted because the purchaser, through its representative, had indicated that it was not satisfied with the yacht. Although Petitioner engaged the services of an attorney for civil action, no civil action was commenced. Additionally, Petitioner did not engage the services of a collection agency for assistance in collecting the sales tax. Subsequent to its notice of tax action, on or about March 12, 1994, Respondent issued a notice of assessment to Petitioner. The notice of assessment provided, among other things, that Petitioner was being assessed taxes in the amount of $4,710, plus penalty and interest in the amount of $2,342.61, totalling $7,052.61. Petitioner protested the assessment. On February 8, 1995, Respondent issued its notice of reconsideration in which Respondent determined, among other things, that the assessment was appropriate and affirmed the assessment of $7,052.61, plus interest and penalty. The interest accrues at the rate of $1.55 per day. Petitioner has not remitted any of the assessed tax, including interest and penalty, to Respondent. Petitioner has not identified on its federal tax return the noncollection of the sales tax from the purchaser as a bad debt. Sales tax is part of the total sale price for an item. Respondent considers the sales tax as collectable by a seller in the same manner as any other debt owed by a purchaser to a seller. A retail dealer, who is also a seller, is considered to be an agent for the State in the collection of sales tax. The burden of collecting the sales tax is placed upon the retail dealer by Respondent. Some of Respondent's employees have been sympathetic to Petitioner's tax assessment matter. However, none of the employees indicated to or advised Petitioner that Respondent was or is in error.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue enter a final order affirming the assessment of sales tax against High-Tech Yacht & Ship, Inc. in the amount of $7,052.61, plus interest and penalty. DONE AND ENTERED this 7th day of August 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL, 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 7th day of August 1996.
The Issue An Administrative Complaint dated October 21, 1998, alleges that Respondent committed violations of Chapter 475, Florida Statutes, by dishonest dealing, culpable negligence, or breach of trust; by failing to account for delivering certain funds; and by violating a lawful order of the Real Estate Commission. The issues in dispute are whether those violations occurred and if so, what penalty is appropriate.
Recommendation Based on the foregoing it is, hereby RECOMMENDED: that the Agency enter its Final Order finding Respondent did not commit the alleged violations and dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Howard Hadley, Esquire 2352 Carolton Road Maitland, Florida 32751-3625 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0640934. The last license issued to Respondent was c/o Raizor Realty, Inc., 12007 Cypress Run Road, Orlando, Florida 32836. On July 3, 1996, Respondent applied for a license as a real estate salesperson. On the application, Respondent signed a sworn affidavit that all of his answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . Question nine on the application asked Respondent whether he had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no." Petitioner relied on the accuracy of the application and issued a license to Respondent. Respondent is active in the practice of real estate and depends on his license to earn a living. Respondent has no prior disciplinary history and has been licensed for approximately two years. On February 20, 1985, Respondent was adjudicated guilty of misdemeanor theft. The court suspended the sentence. Petitioner had changed the price stickers on a pair of shoes valued at $20 and on a jar of vitamins. The court found Respondent guilty of misdemeanor theft, fined him $100, and sentenced him to 30 days in jail. The jail sentence was suspended pending completion of six-months' probation. Respondent completed probation in a satisfactory and timely manner. Respondent did not willfully misstate a material fact. He conferred with friends. They advised Respondent that the matter was immaterial and more than seven years old. Respondent answered no to question nine on his application in the good faith belief that the crime was immaterial and not the type of offense addressed in the question. When Petitioner's investigator inquired of Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), and dismissing the charges against Respondent. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner, Michael Anthony Dipple, is entitled to an award of attorney's fees against Respondent, Pinellas County Construction Licensing Board, pursuant to Section 57.111, Florida Statutes (2007).1
Findings Of Fact On January 3, 2008, Petitioner filed the Motion, seeking attorney's fees and costs as the prevailing party in DOAH Case No. 07-3664. On November 5, 2007, Respondent filed its Notice of Voluntary Dismissal of DOAH Case No. 07-3664, and the file of the Division of Administrative Hearings was closed by an Order entered on November 6, 2007. Respondent concedes that Petitioner is a prevailing small business party in the underlying proceeding, pursuant to Section 57.111, Florida Statutes. In the underlying proceeding, Respondent received a complaint from Joseph Lassen on January 26, 2007. Mr. Lassen stated that Mr. Dipple claimed to have run out of money and was therefore unable to complete the room addition he had contracted to perform on Mr. Lassen's house. Mr. Lassen stated that he feared Mr. Dipple was moving out of state and never had any intention of completing the work. With his complaint, Mr. Lassen included a copy of the contract, dated May 22, 2006, in which Mr. Dipple undertook to build the new room addition for the price of $76,350. The contract called for an initial deposit of $28,000, followed by three draws of $22,000, $17,000, and $10,000, to be paid as different phases of the work were undertaken. Mr. Lassen also included three canceled checks: one dated May 22, 2006, in the amount of $28,000; one dated August 8, 2006, in the amount of $22,000; and one dated September 25, 2006, in the amount of $18,000. In a letter dated March 2, 2007, signed by investigator Connie Garriques-Sang and sent to Mr. Dipple's business address in Largo, Respondent informed Mr. Dipple of the complaint. The letter stated, in relevant part: The enclosed complaint has been filed against you. If you wish to resolve this matter before the Pinellas County Construction Licensing Board takes further action, you may do so. Upon resolution, you should notify our office so that we may update your file on this matter. Please use the attached form in response to the complaint and return it to my office within ten (10) working days. (Emphasis added.) Respondent's probable cause panel convened on March 22, 2007. At that time, no response from Mr. Dipple had been received by Respondent. The probable cause panel considered Mr. Lassen's complaint and the attachments thereto. The panel also considered information obtained by Ms. Garriques-Sang from the City of Largo's building inspector indicating there were code violations regarding electrical work that were holding up the final inspection. Based on the information before it, the panel found probable cause to proceed with disciplinary action against Mr. Dipple. Mr. Dipple's response to Ms. Garriques-Sang's letter was received by Respondent on March 23, 2007, the day after the probable cause panel met and voted to proceed with an Administrative Complaint against Mr. Dipple. The delay in Mr. Dipple's response was due in part to the fact that he had moved to Oklahoma and the letter had to be forwarded to his new address. Nonetheless, he dated his response March 13, 2007, indicating that he must have received Ms. Garriques-Sang's letter on or before that date. However, the postmark on the envelope containing Mr. Dipple's response indicates that he waited an additional week, until March 20, 2007, to actually mail the response. Mr. Dipple's response included a letter from his attorney to Mr. Lassen and a copy of a phone message3 that Mr. Lassen left at Mr. Dipple's place of business stating that Mr. Lassen wanted another company to finish the work. Mr. Dipple generally contended that Mr. Lassen thwarted his attempts to complete the job. Respondent issued an Administrative Complaint, dated March 30, 2007, alleging the following facts: Mr. Dipple contracted with Mr. Lassen on February 22, 2006, to build a room addition at Mr. Lassen's Largo home; that Mr. Dipple obtained a permit for the work on June 23, 2006; that the permit was active, but work was not complete and there were outstanding tags for code deficiencies; that Mr. Dipple had changed his business address and had not performed any work on Mr. Lassen's house for over 90 days; that Mr. Dipple had informed Mr. Lassen that he did not have enough money to finish the job; and that Mr. Lassen was forced to hire another contractor to finish the job, at additional expense. The Administrative Complaint had three counts. Count One alleged that Mr. Dipple abandoned the job in violation of Subsection 489.129(1)(j), Florida Statutes, and Section 24(2)(k), Chapter 75-489, Laws of Florida, as amended. Count Two alleged that Mr. Dipple committed financial mismanagement or misconduct in the practice of contracting that caused financial harm to a customer in violation of Subsections 489.126(2) and (4), Florida Statutes, Subsection 489.129(1)(g), Florida Statutes, and Section 24(2)(h), Chapter 75-489, Laws of Florida, as amended. Count Three alleged that Mr. Dipple committed fraud or deceit or gross negligence, incompetency, or misconduct in the practice of contracting in violation of Subsection 489.129(1)(m), Florida Statutes, and Section 24(2)(m), Chapter 75-489, Laws of Florida, as amended. The case was referred to the Division of Administrative Hearings on August 16, 2007, and assigned DOAH Case No. 07-3664. With the Administrative Complaint, Respondent forwarded Mr. Dipple's Motion to Dismiss and Statement of Facts, originally served on Respondent on August 9, 2007. Mr. Dipple denied the allegations of the Administrative Complaint, stating that Mr. Lassen had interfered with the contract by refusing to allow Mr. Dipple to work on scheduled days; that Mr. Lassen wrongfully terminated the contract before the work was completed and refused to allow Mr. Dipple to complete the work; that Mr. Lassen owed money to Mr. Dipple; and that all portions of the work performed by Mr. Dipple had passed all building inspections. Mr. Dipple moved that the charges be dismissed on the ground that the alleged facts did not support any of the three counts stated in the Administrative Complaint. With the Administrative Complaint, Respondent also forwarded Mr. Dipple's notice to Respondent of his intent to recover attorney's fees and costs, originally served on Respondent on July 20, 2007. DOAH Case No. 07-3664 was scheduled for hearing on September 24, 2007, in Largo, Florida. On Mr. Dipple's motion, the hearing was continued and rescheduled for November 27, 2007. On November 5, 2007, Respondent filed its Notice of Voluntary Dismissal of the Administrative Complaint. The Division of Administrative Hearings' file in DOAH Case No. 07- 3663 was closed by Order dated November 6, 2007. Mr. Dipple's contends that the probable cause panel lacked other available information that could have and in fact did subsequently exonerate him of the charges,4 and that Respondent violated its own rules, Chapters 455 and 489, Florida Statutes, and fundamental principles of due process in precipitously arriving at a probable cause determination before Mr. Dipple had a fair opportunity to respond to the March 2, 2007, letter from Ms. Garriques-Sang. It is found that the information before the probable cause panel was sufficient to support the panel's decision to pursue an Administrative Complaint against Mr. Dipple, in the absence of any contrary information. The evidence submitted in Mr. Dipple's March 23, 2007, response to Mr. Lassen's allegations provided an insufficient basis for a finding that the response would have altered the probable cause panel's decision. While it does appear that Mr. Dipple submitted evidence that Mr. Lassen had instructed him to stop work, such evidence did not necessarily refute Mr. Lassen's allegations that Mr. Dipple's actions had forced him to seek another contractor to complete the job. Mr. Lassen also alleged something approaching fraud against Mr. Dipple, stating that he feared Mr. Dipple was planning to move away from Largo and never intended to complete the work. Mr. Dipple's response did not directly address this allegation. Further, even if the probable cause panel had timely received Mr. Dipple's response, the fact that the response was mailed from Mr. Dipple's new residence in Oklahoma would, if anything, have provided circumstantial support to Mr. Lassen's allegations.
The Issue The issue in this limited proceeding is whether the issuance of the Order Finding Probable Cause against Respondent affects his substantial interests and was based on an unadopted rule,1 as contemplated in Subsection 120.57(1)(e)1., Florida Statutes (2006).2
Findings Of Fact At all times material hereto, Respondent has been employed by and continuously served as the Sheriff of Orange County, Florida, since taking office in January 1993, having been elected to four successive terms. In the aftermath of the September 11, 2001, terrorist attacks, the Governor by Executive Order, later codified by the Florida Legislature, created seven Regional Domestic Security Task Forces (Task Forces) mirroring the seven FDLE geographical regions throughout the state. Members of the Task Forces were appointed by the Commissioner of FDLE. As a representative of local law enforcement, Respondent qualified, by law, for appointment as a member of one of the Task Forces created by Section 943.0312.3 Co-chairs of the Task Forces were also appointed directly by the Commissioner of FDLE. The law required that one co-chair be the FDLE special agent in charge of the operational region, the other a local sheriff or chief of police from within the operational region. The co-chairs of the Task Forces were appointed directly by the Commissioner of FDLE.4 Respondent, as Sheriff of Orange County, was appointed co-chair of Region 5 Task Force with that region's FDLE special agent in charge. Task Forces are advisory bodies to FDLE. The Task Forces also provided operational support to FDLE in its performance of functions pertaining to domestic security.5 On or about August 5, 2005, the Commission received a Complaint designated as Complaint 05-105. Complaint 05-105 was filed against Respondent in his capacity as "Sheriff of Orange County." The executive director of the Commission found that based on the information provided in the Complaint, the allegations contained therein were sufficient to warrant a preliminary investigation. An investigation was conducted by Investigator Ronald D. Moalli of the Commission, and a Report of Investigation was released on the investigation on September 5, 2006. On November 22, 2006, Respondent filed a written Response to the Report of Investigation with the Commission. Respondent's Response to the Investigation cited a number of Commission opinions ("CEOs") in support of an argument that Respondent did not have a contractual or employment relationship subject to the prohibitions of Subsection 112.313(7)(a). The response also contained a number of legal and factual arguments contending that the Report of Investigation did not support a finding of probable cause as to the allegations against Respondent. On December 19, 2006, the Advocate's Recommendation was filed with the Commission. The Advocate's Recommendation stated that based on evidence before the Commission, the Advocate recommended that there was probable cause to believe that Respondent violated five provisions of the Code of Ethics for Public Officers and Employees ("Code of Ethics"), including violations of Subsections 112.313(3) and 112.313(7)(a). The Advocate's Recommendation does not reference CEO 99-2, nor does it reference any statements contained in that advisory opinion. On January 9, 2007, Respondent filed a written Response to the Advocate's Recommendation. On January 26, 2007, during its executive session, the Commission conducted a hearing to determine probable cause in this case. Probable cause hearings before the Commission are not conducted ex parte as in some agencies. Rather, in addition to materials submitted by the parties, oral argument is permitted. However, the Commission does not give Respondents notice of Chapter 120 rights, and due process rights do not attach until after probable cause is found. § 112.324(3), Fla. Stat. At the probable cause hearing, the Commission had before them the Complaint, the Report of Investigation, Respondent's Response to the Report of Investigation, the Advocate's Recommendation, and Respondent's Response to the Advocate's Recommendation. Fla. Admin. Code R. 34-5.006(5). In addition to the foregoing, the Advocate and counsel for Respondent made oral arguments at the probable cause hearing. The Advocate argued: There's a suggestion in the response [of Respondent] that this wasn't his agency, that his only agency was the sheriff's office. I've got some materials. I've spoken to Mr. Herron about this, and I believe he would concur, that for purposes. . . . I am citing CEO 99-2. For the purposes of these two provisions, and they're talking about subsection (3), the doing business with prohibition, and subsection (7), the contractual conflict prohibition. The Commission has said for purposes of these two provisions, we must determine the agency of the advisory board members. And then they speak of two other opinions. We reiterated our view that in determining an individual's agency for purposes of the Code of Ethics, an advisory board to a governing body is part of that body. So, being on the task force, [Respondent's] agency was FDLE. That's the point. At the probable cause hearing, following the argument of the Advocate and counsel for Respondent, the Commission voted to accept the recommendation of the Commission's Advocate with respect to four of the five violations of the Code of Ethics. On January 31, 2007, the Commission issued the Order Finding Probable Cause to believe that Respondent violated four provisions of the Code of Ethics. Respondent alleges the Commission relied on and based the findings of probable cause to believe that Respondent violated Subsections 112.313(3) and (7)(a) on the following statement in CEO 99-2. [I]n determining an individual's "agency" for purposes of the Code of Ethics, an advisory board to a governing board is part of that body. Under existing law, CEO 99-2 is not binding on Respondent.6 Arguments of counsel are not binding on the Commission. Moreover, the Advocate's arguments to the Commission are not rules. None of the written documents before and available to the Commission at the probable cause hearing, refer to or mention CEO 99-2 or the application of that advisory opinion. In its Order Finding Probable Cause, the Commission ordered, in accordance with Chapter 120 that a public hearing be held on the allegations set forth in the Order Finding Probable Cause. On or about April 19, 2007, the Commission referred Complaint 05-105 to DOAH and requested a formal administrative hearing and to enter a recommended order regarding whether Respondent violated the Code of Ethics as alleged by the Order Finding Probable Cause. Two of the four allegations set forth in the Order Finding Probable Cause material to this segment of the proceeding state that Respondent violated: Section 112.313(3), Florida Statutes, by doing business with his own agency. Section 112.313(7)(a), Florida Statutes, by having employment or contractual relationship with a business entity or entities doing business with Respondent's agency . . . . As of the date of this proceeding, the public hearing on the Complaint had been stayed pending the outcome of this proceeding and of an appeal of a discovery matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered on this part of the proceedings only, finding that: (1) Respondent, Kevin Beary, failed to show that the issuance of the Order of Probable Cause against him affects his substantial interests and was based on an unadopted rule, as contemplated by Subsection 120.57(1)(e)1.; and (2) dismissing Respondent's Amended Motion to Invalidate Agency Action Based on Unpromulgated Rule. DONE AND ENTERED this 11th day of August, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2008.
The Issue The issues for disposition in this case are whether Respondent committed willful violations of section 106.07(7), Florida Statutes (2014), when its campaign treasurer failed to notify the filing officer that Respondent had not received funds, made contributions, or expended reportable funds during four 2014 reporting periods; and, if so, whether Respondent is subject to civil penalties in view of the holding in PAC for Equality v. Department of State, Florida Elections Commission, 542 So. 2d 459 (Fla. 2d DCA 1989).
Findings Of Fact Petitioner is the entity responsible for investigating complaints and enforcing Florida's election and campaign financing laws, chapters 104 and 106, Florida Statutes. § 106.25, Fla. Stat. Respondent is a political committee organized for the purpose of sponsoring and supporting a constitutional initiative to conserve and protect Florida’s scenic beauty, which is primarily directed to restrictions on billboards along Florida highways. Respondent has been a registered political committee since 2002. Prior to 2014, Respondent suspended its campaign to gather petitions to place the constitutional initiative on the ballot. Respondent has not abandoned the campaign, and the initiative remains legally active. Prior to 2014, Respondent’s most recent financial activity was an expenditure of $61.25 in the first quarter of 2011. Respondent’s assets during 2014 consisted of $157.50 held in a bank account. There were no contributions received or expenditures made by Respondent during the times pertinent to this proceeding. Respondent’s treasurer is Mr. Crescimbeni. Mr. Crescimbeni acknowledged his responsibility as treasurer to accurately report to the Division of Elections the contributions received and expenditures made by Respondent, and the dates of each. The reporting requirements were contained in a political committee handbook and copy of the Florida statutes that are provided by Petitioner to all political committees. Mr. Crescimbeni acknowledged having received and read both documents. Although some reporting requirements have changed since Mr. Crescimbeni’s receipt of the political committee handbook, Mr. Crescimbeni believed that he understood the reporting requirements. Mr. Crescimbeni understood that, since Respondent neither received contributions nor made expenditures, the requirement to submit a treasurer’s report was statutorily waived, though there was a requirement to notify the filing officer that a report was not being filed. In 2013, section 106.07 was amended, creating 33 reporting periods for calendar year 2014, significantly more than existed prior to the amendments. Ch. 2013-37, § 9, Laws of Fla.3/ Reports for the 33 reporting periods in 2014 were statutorily waived pursuant to section 107.07(7), inasmuch as there were no contributions or expenditures. Notifications of no activity were filed for each of the 33 reporting periods in 2014, all of which were timely, except the four identified in the Order of Probable Cause. The M5 Filing Period The notification of no activity for the 2014 M5 reporting period of May 1 through May 31, 2014, was due by midnight on June 10, 2014. The notification of no activity for the 2014 M5 reporting period was filed on Saturday, June 14, 2014, at 11:50:59 a.m. On the morning of Saturday, June 14, 2014, Mr. Crescimbeni picked up Respondent’s mail from the post office. He then traveled to his office, where he opened the mail. Among the items received was a notice from the Division of Elections advising Respondent that its M5 report had not been received by the filing deadline. The letter was dated June 11, 2014, and bore a postmark of June 12, 2014. When Mr. Crescimbeni realized his error, he immediately uploaded the report of no activity at 11:50 a.m. on the morning of June 14, 2014. Mr. Crescimbeni testified credibly that “[m]y delayed filing of the M5 notification of no activity was neither deliberate nor a repeated failure. It was simply an oversight and nothing more.” The P1 Report The notification of no activity for the 2014 P1 reporting period of June 1 through June 20, 2014, was due by midnight on Friday, June 27, 2014. The notification was filed on Saturday, June 28, 2014, at 9:34:11 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the PI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The G1 Report The notification of no activity for the 2014 G1 reporting period of August 23 through 29, 2014, was due by midnight on Friday, September 5, 2014. The notification was filed on Saturday, September 6, 2014, at 3:52:33 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the GI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The D2 Report The notification of no activity for the 2014 D2 reporting period of October 25, 2014, was due by midnight on Sunday, October 26, 2014. The notification was filed on Monday, October 27, 2014, at 10:12:15 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the D2 notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. As to each of the four notifications of no activity referenced above, Mr. Crescimbeni credibly testified that the delay was: [T]he result of my temporary inattention and each such delay was a simple and inadvertent omission on my part that was promptly remedied . . . . I was never indifferent to the required filings of notifications of no activity. Each such delay by me in making such filing of said notification was not intentional. Each such delay was not deliberate, purposeful, or with any intent or consciousness on my part to avoid the notification of “no” activity. Mr. Crescimbeni’ testimony is accepted. There was no evidence adduced at the hearing suggesting there to have been any financial or political advantage or benefit that could reasonably be derived from the late filing of the four notifications of no activity referenced above. The Commission does not investigate willfulness and does not make a finding of willfulness until after the determination of probable cause in a Probable Cause Hearing.
The Issue The issue is whether Petitioners' applications for reimbursement from the Securities Guaranty Fund should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: These cases involve claims by Petitioners, Clyde and Patti Gallo (Case No. 98-3765) and Richard and Belinda Morin (Case No. 98-3766), for payment from the Securities Guaranty Fund (Fund) for monetary damages suffered as a result of violations of the Florida Securities and Investor Protection Act by William Anthony McClure (McClure). When the violations occurred, McClure was a registered associated person employed by Schneider Securities, Inc. (Schneider), a Colorado corporation registered as a securities dealer in the State of Florida. The Fund is administered by Respondent, Department of Banking and Finance (Department), which must approve all applications for payment from the fund. Undisputed Facts Regarding the Gallo's Claim McClure served as manager for Schneider's branch office in Gainesville, Florida. On February 26, 1993, the Gallos deposited the sum of $213,978.10 with Schneider to open an account for investment purposes. McClure executed a Letter of Authorization dated March 18, 1993, for the transfer of $30,000.00 from the Gallo's brokerage account without the Gallo's authority. This money was then transferred to Buddy Miller, who paid McClure $5,000.00 for the delivery of the money. McClure subsequently obtained ratification of the transfer of monies from the Gallo's account by representing to Mr. Gallo that the transaction was a "factoring arrangement" and that the investment of monies would be "secure." McClure made the foregoing representations at a time when he knew that Miller was insolvent, that he was paying him a kickback, and that the money had already been transferred from the Gallo's account. McClure did not disclose this information to the Gallos. The Gallos lost the entire $30,000.00 appropriated by McClure from their account with Schneider. In February 1995, the Gallos filed a five-count complaint with the Circuit Court of the Eighth Judicial Circuit against McClure and Schneider. They also served a treble damage notice to McClure under Section 772.11, Florida Statutes. McClure did not make restitution within 30 days from receipt of notice in order to avoid liability for treble damages. In April 1996, the Gallos received the sum of $40,000.00 from Schneider in a mediated settlement. This amount covered their loss of principal. On August 19, 1996, an Amended Final Judgment awarded the Gallos the sum of $30,000.00 in compensatory damages. This amount was then trebled to $90,000.00 pursuant to Section 772.11, Florida Statutes. The Amended Final Judgment subtracted the sum of $40,000.00 received from Schneider from the $90,000.00 in trebled damages for a total of $50,000.00 plus statutory interest of $9,999.00, or a total of $59,999.00 against McClure. On December 4, 1996, a Final Judgment awarded the Gallos the sum of $20,878.50 in attorney's fees and the sum of $1,312.06 in court costs against McClure. The parties agree that these amounts are not recoverable from the Fund. On July 11, 1998, the Gallos submitted a claim to the Department seeking to recover $10,000.00 of the treble damages they were awarded pursuant to Section 772.11, Florida Statutes. This claim was denied by the Department on July 28, 1998, on the ground that a claimant cannot recover treble damages from the Fund. Undisputed Facts Regarding the Morin Claim In January 1993, Richard and Belinda Morin deposited the sum of $231,862.59 with Schneider to open an account for investment purposes. McClure was the account executive for Schneider who handled the Morin's brokerage account. In mid-March 1993, McClure contacted Mr. Morin to suggest an investment that he represented as being "secure" and "short-term." McClure described the investment to Morin as a "factoring security" of an account receivable of a major manufacturing concern that was secured by the guaranteed payment of the invoice. The investment suggested by McClure to Morin was really an unsecured loan to a small outdoor furniture manufacturer in Central Florida known as Cypress Originals (Cypress). Cypress was then in severe financial distress which fact was not disclosed to Morin by McClure. On March 5, 1993, or prior to the above discussion, McClure had forged Morin's signature on a Letter of Authorization for the transfer of $25,000.00 from the Morin's brokerage account with Schneider and forwarded the money to Cypress. In June 1993, McClure appropriated an additional $20,000.00 from the Morin's brokerage account into his own personal account or to an account owned and controlled by him. The Morins lost the entire $45,000.00 appropriated from their account. In February 1995, the Morins filed a five-count complaint in the Circuit Court of the Eighth Judicial Circuit against McClure and Schneider. They also served a treble damage notice to McClure under Section 772.11, Florida Statutes. McClure did not make any restitution within thirty days after receipt of the notice in order to avoid liability for treble damages. In February 1997, the Morins received $45,000.00 from Schneider in a mediated settlement. This amount covered their loss of principal. On July 2, 1997, the Morins were awarded the sum of $45,000.00 in compensatory damages. This amount was trebled to $135,000.00 pursuant to Section 772.11, Florida Statutes. The Final Judgment awarded the Morins the sum of $90,000 ($135,000.00 in trebled damages less $45,000.00 received from Schneider), prejudgment interest of $48,397.20, court costs of $9,001.67, and attorney's fees of $32,410.00 against McClure. The parties agree that the court costs and attorney's fees are not recoverable from the Fund. On June 11, 1998, the Morins submitted a claim with the Department seeking to recover $10,000.00 of the prejudgment interest award. On July 28, 1998, the Department issued its proposed agency action denying the claim on the ground that prejudgment interest cannot be recovered from the Fund. The Department's Interpretation and Practice The Department interprets the term "actual or compensatory damages," as used in Section 517.141(1), Florida Statutes, to mean only the principal amount of the loss by the investor. The Department has never approved a claim against the Fund for any damages other than the actual loss of principal. Under the Department's interpretation of "actual or compensatory damages," prejudgment interest and trebled damages would be excluded from being recovered from the Fund.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a Final Order denying the applications of Clyde and Patti Gallo and Richard and Belinda Morin for reimbursement from the Securities Guaranty Fund. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 22nd day of February, 1999. COPIES FURNISHED: Honorable Robert F. Milligan Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 Steven D. Spivy, Esquire 230 Northeast 25th Avenue Suite 200 Ocala, Florida 34470-7075 Margaret S. Karniewicz, Esquire Department of Banking and Finance Suite 526, Fletcher Building Tallahassee, Florida 32399-0350 Harry L. Hooper, III, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
Findings Of Fact On or before November 27, 1976, Petitioner did file a claim for refund of Florida corporate income tax for its fiscal year ending July 31, 1973. Such claim stated that a refund of $43,517 was due based on the decision reached in Leadership Housing, Inc., Case No. 74-6878, Circuit Court, 17th Judicial Circuit. The claim referred to in paragraph 1 above was filed on or before the last day such claim could be filed. By letter dated December 6, 1976, Petitioner was notified by Respondent that it could not favorably act upon the claim as the allowability of the claim rested solely upon the validity of a position which Respondent disagreed and was litigating or intended to litigate. Respondent further stated in said letter that it was neither approving nor denying Petitioner's claim at that time. On September 1, 1978, Petitioner submitted another claim for refund for corporate income taxes for its fiscal year ending July 31, 1973. Such claim showed a lower amount of tax due to be refunded in accordance with the decision in S.R.G. Corporation v. Department of Revenue, State of Florida, 365 So.2d 687 (Fla. 1978), with the opinion entered June 30, 1978. On September 1, 1978, Petitioner also filed a claim for refund of corporate income taxes paid for its fiscal year ending February 28, 1977. The facts and circumstances supporting Petitioner's right to refund on the claim referred to in paragraph 5 above are the same as those supporting Petitioner's right to refund the claim which is the subject of this hearing. On October 10, 1978, Petitioner was notified by letter from Respondent that no action would be taken on either of the claims for refund pending review of the Florida Supreme Court of its decision in S.R.G. Corporation. In October, 1977, the Office of the Comptroller refunded the corporate income taxes per Petitioner's claim for refund relating to the fiscal year ending February 28, 1977 with certain adjustments consented to by Petitioner. On January 20, 1980, Petitioner was formally notified of Respondent's intent to deny Petitioner's claim for refund for corporate income taxes paid for fiscal year ending July 31, 1973. The sole question presented here is whether Respondent's denial of Petitioner's claim for refund based upon the grounds that "The claim for refund was not filed within the time limitations set forth in Section 214.16, Florida Statutes," is valid under the provisions of Chapter 120 and Chapter 214, Florida Statutes, as the same were in effect at the times set forth herein. Should it be determined that Petitioner's claim for refund was timely filed in accordance with the statutes herein set forth above, Respondent will not allege further or different reasons for denial of the claim and will forthwith refund to Petitioner the amounts claimed to be due. (The foregoing findings are taken directly from the Stipulation of Facts.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Office of the Comptroller enter a final order approving a refund to the Petitioner of that portion of its corporate income tax overpaid for the fiscal year ending in 1973. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of January, 1981. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1981.
