The Issue The issues are whether Respondent is guilty of pleading nolo contendere to three counts of uttering a forged instrument, three counts of forgery, and three counts of grand theft so as to constitute a demonstrated lack of fitness or trustworthiness to engage in the business of insurance, in violation of Section 626.611(7), Florida Statutes; willful failure to comply with any provision of this Code, in violation of Section 626.611(13), Florida Statutes; a finding of guilty or pleading of guilty or nolo contendere to a felony involving a crime of moral turpitude, in violation of Section 626.611(14), Florida Statutes, any cause for which issuance of the license or permit could have been refused or denied by Petitioner, pursuant to Section 626.621(1), Florida Statutes; and a finding of guilty of pleading of guilty or nolo contendere to a felony, in violation of Section 626.621(8), Florida Statutes. An additional issue is whether Respondent failed to notify Petitioner of her plea of nolo contendere within 30 days, as required by Section 626.621(11), Florida Statutes. If Petitioner prevails on any of these issues, another issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has been licensed as a Customer Representative. On February 23, 2001, Respondent pleaded no contest to three counts of uttering a forged instrument--i.e., a bank check--on August 10, 2000, in violation of Section 831.02, Florida Statutes; three counts of forgery of a public record on August 10, 2000, in violation of Section 831.01, Florida Statutes; and three counts of third-degree grand theft on August 10, 2000, in violation of Section 812.014, Florida Statutes. She also agreed to pay restitution of $1892.87 and court costs. By Community Supervision Order entered February 27, 2001, the court accepted the plea, withheld adjudication, placed Respondent on two years' probation, required Respondent to pay restitution of $1892.87, and required Respondent to pay court costs. Respondent entered the plea of no contest to avoid the expense of a trial. She relied on the advice of her criminal attorney that this disposition of the criminal case would have no effect on her insurance license. She was unaware of her obligation to inform Petitioner of her entry of a no contest plea to these nine charges. Respondent finished paying restitution in March 2003 and has successfully completed her probation. One of her witnesses testified that he has worked with Respondent in the past and is aware of the conduct described above. He testified that he is establishing a new insurance agency in January 2004 and, if her licensing situation permits, he intends to employ her in that office.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of violating Sections 626.611(14) and 626.621(11) and suspending her Customer Representative license for five months. DONE AND ENTERED this 27th day of August, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 August, 2003. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 R. Terry Butler, Senior Attorney Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Karen Marie Maldonado 701 Southwest Ravenswood West Port St. Lucie, Florida 34983
Findings Of Fact The Respondent, C-Sand Company, was issued permit number AE315-10 on May 8, 1981. This permit authorized the erection of a sign to be located approximately 1.8 miles west of SR 267 in Gadsden County, Florida. This location is in an unzoned area and the permit was granted because of its proximity to a nearby commercial activity known as Imperial Nurseries. Prior to submitting an application for this permit to the Department, the owner of the Respondent company contacted the Department's inspectors in the Chipley district office to determine where a sign could be legally erected. He did this in order to locate a site which would be permittable before entering into a lease on the property. The Department's district supervisor met the Respondent's owner in April of 1981 in Quincy. The two of them drove I-10 for a couple of hours looking for a sign site which would be permittable. The Department's district supervisor informed the Respondent that only two locations could be issued a permit, one of these being the site which is the subject of this proceeding. Based upon this representation, the Respondent entered into a lease for this site, subject to issuance by the Department of a permit to erect a sign thereon. After all of this had transpired, on May 4, 1981, the Respondent completed the permit application and submitted it to the Department. Prior to the Department's issuance of the subject permit, one of its inspectors whose duty is to observe a proposed sign site and determine if it is as represented in the application and if it meets the requirements of the statutes and rules, field inspected the proposed site of the subject sign. Based on this inspection he recommended the issuance of the permit upon his determination that this area was unzoned commercial, that the sign site was within 800 feet of a commercial activity known as Imperial Nurseries, and that this commercial activity was within 660 feet of the right of way of I-10, and visible from the main traveled way of I-10. There is sufficient credible evidence in the record of this proceeding to support a finding of fact that the subject area was as the field inspector found it to be. The area in question is rural in nature and generally suitable for agricultural activities. However, the business being conducted by Imperial Nurseries in 1981 was the growing of ornamental evergreens primarily for distribution in Northern markets. These ornamental evergreens were grown in containers on top of the ground, and shipped by truck. The cuttings were grown, then rooted, and planted in containers until mature. Between 1,500-2,000 yards of potting material was hauled in by truck each year from Tennessee, Georgia and Canada. This material consists of pine bark, peat moss and sand, which is mixed on the premises. The entire nursery is irrigated by an impact sprinkler system. There are 260 acres under irrigation. Approximately 1,400 tons of liquid fertilizer are mixed each year, and delivered via this irrigation system. There has been a weather shed on the property since before 1981, and this is within 660 feet from I-10. Portable toilets are located in various places on the property to accommodate the nursery employees. Beyond 660 feet from I-10 is a potting station and a loading area. Further away is an office building, two lunch rooms, and two storage buildings for fertilizer and peat moss. Nevertheless, parts of the overall operation of conducting the business of this nursery are situated 660 feet and less from I-10. Imperial Nursery ships its mature evergreens via truckers and brokers. Nursery employees assemble the shipments in the field, and they are brought to a central location for loading onto the trucks. These trucks are 40-45 foot refrigerated tractor-trailers. Approximately 400 truck loads of cuttings are shipped each year to an area from Washington D.C. to Canada The operation of Imperial Nurseries is the same now as it was in 1981. The field inspector's recommendation to approve the site as a permittable location was joined in by his supervisor after the supervisor had also conducted a field inspection of the area. Both of them based their approvals on the weather shed, the portable toilets, and the activities observed by them such as the employees moving the potted plants around, the loading and unloading of material taking place, and the employee activity throughout the area but particularly in the vicinity of the weather shed. The site where the Respondent proposed to erect his sign was within 800 feet of the various locations on the Imperial Nurseries property where its loading, unloading, or other activities took place. The assertion of the Respondent on his sign permit application that the proposed location was within 800 feet of a business was not false or misleading. The Department's inspector and his supervisor concurred in this characterization of the area. Neither has the Respondent violated any of the provisions of Chapter 479, Florida Statutes. All of the facts were set forth on his permit application, and these facts were verified by the Department after the area was inspected to determine their accuracy. The policy of the Department leaves the determination of what is and what is not an unzoned commercial area to the field inspector, with the approval of his supervisors. In this case, the determination was made that the activities of Imperial Nurseries were commercial in nature, and the permits were granted on the basis of this determination, not on the representation of the Respondent. In the summer of 1984, the subject site was inspected by the Department's Right-of-Way Administrator, who determined that the business being conducted by Imperial Nurseries was agricultural, and not commercial in nature. Although Imperial Nurseries has an agricultural exemption on its property and its employees are classified as agricultural for withholding tax purposes, the facts support a finding that Imperial Nurseries is a commercial activity. There is no statutory definition of "agricultural" and the Department has not defined the term by rule. Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, defines "agriculture" as the cultivation of the ground, the art of preparing the soil, the tillage or the culture of the earth. These are not the activities of Imperial Nurseries. Pursuant to the issuance of the sign permit by the Department, the Respondent's lease on the property where the sign was erected became effective, and this lease continues to date.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department's violation notice seeking removal of the Respondent's sign on the north side of I-10, approximately 1.8 miles west of S.R. 267 in Gadsden County, Florida, be dismissed; and that permit number AE 315-10 remain in effect as a permit for a non-conforming sign. THIS RECOMMENDED ORDER entered this 10 day of July, 1985 in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1985.
Findings Of Fact Respondent has been employed by the Pinellas County Sheriff's Office for approximately nine years. For the past four years and at all times material to this proceeding, Respondent was employed by the Pinellas County Sheriff's Office as a property clerk. Respondent's duties as a property clerk included the following: (1) taking physical custody of evidence, (2) assigning physical locations in alpha- numerically numbered "bins"; (3) recording the receipt of evidence and its physical location in the computer; (4) printing and affixing to the evidence, bar codes for identification of the evidence; and (5) placing the items in the appropriate bins. Also, in her role as a property clerk, Respondent was responsible for retrieving evidence from the bins for officials of the Sheriff's Office when such evidence or property was needed for court, analysis, or other purposes. In collecting and logging in items, property clerks follow a specified routine. Each item of evidence has a unique police report number for tracking purposes in the Sheriff's Office computers. Typically, the Property Section will receive an item of evidence from a law enforcement officer with identifying information contained on an adhesive "property and evidence" label. The label includes the police report number, date and place of collection, the officer's name and payroll number, and any special instructions. The collecting officer and the property clerk sign the label when the item of evidence is received by the property clerk. After the property clerk receives the item, the property clerk enters the information into the computer and assigns the item a physical location in the Section. Once the information is entered into the computer, the property clerk will command the computer to print a small adhesive paper label which contains a bar code, location number, and brief item description. The property clerk then affixes the label to the bag containing the item. Except for guns, drugs, and oversized materials, once items are processed, they are stored in cardboard boxes (or bins) in the Property Section's warehouse. The warehouse is located behind a secure door and contains items of property or evidence. The boxes are arranged alpha-numerically. For example, there is a rack in the warehouse containing the "Y" boxes, from Y-001- upwards. The boxes are filled sequentially. The property clerks process the items at a computer terminal located behind the glass partition separating the secure areas of the Property Section from the common lobby area. Typically, there are four boxes of different sizes on the table. Usually, the property clerks place evidence boxes on a table located directly behind them. Once an item of evidence is processed, it is placed in one of the four boxes on the table. The placement of items of evidence in one of these four boxes alleviates the need for the property clerk to shuttle each individually processed item of evidence to the warehouse. Once an evidence box is full, the property clerk takes the box to the warehouse and places it in the appropriate rack. Then the property clerk removes the next consecutively numbered empty box and takes it to the table in the processing area. On or about April 10, 1995, Sgt. Wallace Colcord, Section Commander of the Property and Evidence Section, Pinellas County Sheriff's Office, was notified by the supervisor of the midnight shift, Robert Bayer, of inquiries regarding missing pieces of property. Essentially, in looking for an item of evidence, a property clerk had failed to locate an item of evidence for a forensic technician. In this instance, the computer indicated that the item was located in a certain bin in the warehouse, but upon a search of the designated bin, the property could not be located. Based upon his investigation, Supervisor Bayer determined that the original bar codes indicated that the evidence had been initially processed by Property Clerk Betty Chandler. Bayer spoke with Chandler regarding the missing item and directed her to locate the property. After spending the entire weekend looking for the missing item of evidence, Chandler located the initial missing item as well as several others that had been relocated. What Chandler discovered were items that were mislocated and had new bar codes affixed over the original bar codes prepared by Chandler. However, it was determined that the computer entry for the items showed the original location. During the course of this investigation, it was discovered that seven items of evidence had been mislocated in this manner. The bar code printing machine maintains a continuous ribbon which was able to be examined. Through such examination, it was determined that the new bar codes on the mislocated items had been printed on the evening shift of April 1, 1995, during the time that only Respondent was on duty. On or about April 24, Sgt. Colcord and Richard Roberts, Respondent's immediate supervisor, met with Respondent Styers regarding the mislocation of items that occurred during her shift on April 1, 1995. Respondent initially indicated that she had heard something about the problem. Sgt. Colcord presented to Respondent two items of property which had been mislocated, two inmate knives. He then directed Respondent to inspect the items, the labels and the bar codes and asked her if she had anything to do with those items. Respondent denied knowing about or having anything to do with the items. After being told that it had been determined that the bar code ribbons indicated that she had printed the "new bar codes" for the two inmate knives, Respondent changed her story. Respondent stated that she had been working on a relocation to an "L" box in the presence of her husband and eight-year old daughter, who had come to the office to have dinner with her. She indicated that her daughter must have used the computer and mislocated the property while she and her husband were outside smoking. Sgt. Colcord then asked Respondent whether he could call her husband regarding his recollection of the events of April 1, 1995. Within a short time, Sgt. Colcord spoke to Respondent's husband by telephone regarding his recollection of the events. In this conversation, Mr. Styers did not recall that he and Respondent ever left their daughter in the Property Section Office alone. Also, Mr. Styers indicated that he did not believe that, without supervision, his daughter had the computer skills necessary to make the entries required to relocate property or evidence. After the telephone discussion with Mr. Styers, Sgt. Colcord and Roberts resumed their interview with Respondent. After learning that her husband's version of the events conflicted with hers, Respondent changed her story. Respondent then indicated that she had not left her daughter alone in the secure area of the Property Section. Respondent indicated that her daughter was interested in the "stickers" and based on her daughter's interest, Respondent showed her daughter how locations were done. According to Respondent, in demonstrating to her daughter how the labels were printed, Respondent took several items of property that were laying out on the counter and, in the computer, changed the location of the items, printed out the new labels showing the new location, and affixed these labels to the items of property. According to Respondent, she then went back to the computer and returned each item to its original location, but forgot to print corresponding stickers and "inadvertently" took these items and placed them in the bins as indicated on the stickers. Respondent Styers acknowledged making these mistakes, but indicated that the errors were accidental or inadvertent. Most of the items of evidence mislocated by Respondent had been originally processed by Property Clerk Chandler. At the time of the incident, both Chandler and Respondent were eligible for a promotion to a position soon to be vacated by the retirement of Supervisor Bayer. By creating the appearance of mistakes on the part of Chandler with regard to the handling of evidence, Chandler's promotional opportunities would be negatively impacted. Based on his conclusion that Respondent had been untruthful during the investigation and on her actions of mislocating property, Sgt. Colcord referred the matter to the Administrative Inquiry Division (AID) of the Sheriff's Office. During this investigation, Respondent was interviewed by agents of the Internal Affairs Section of the Pinellas County Sheriff's Office. At that time, Respondent told investigators that on the evening of April 1, 1995, she was demonstrating to her daughter how items were relocated both physically and through bar code changes in the computer. According to Respondent, she thought that she had returned the items used in the demonstration to their appropriate computer locations and had properly bar coded the items. During these interviews, Respondent again admitted that she was responsible for the errors but stated that the errors were simply mistakes and were not made intentionally. After completing its investigation, the AID presented its entire investigative file to the Chain-of-Command Board without conclusion or recommendation. The Chain-of-Command Board met and sustained the complaint. Specifically, Styers was charged with violations of four rules of the Pinellas County Sheriff's Office. The charges involve allegations that Respondent violated the following rules and regulations of the Pinellas County Sheriff's Office: (1) C-1,V.A,6,(006), relating to truthfulness; (2) C-1,V,A,14c.,(016), relating to conduct unbecoming a member of the agency; (3) C-1,V,C,5,(064), relating to performance of duty; and (4) C-1,V,C,19,(082), relating to the care, custody, and control of property and evidence. Pursuant to General Order B-15, violation of the rules cited above relating to truthfulness and conduct unbecoming a member of the agency are considered Level Five violations. Violations under the rules related to performance of duty and the care, custody, and control of evidence and property are considered Level Three violations. Under the Pinellas County Sheriff's Office Guidelines (Guidelines), a sustained finding of two Level Five violations is the basis for assigning sixty disciplinary points. A sustained violation of two Level Three violations is the basis for assigning twenty-five disciplinary points. The Sheriff's Office General Order B-15 does not contain a disciplinary range for a total point award of eighty-five points. However, consistent with the established Guidelines, the Chain-of-Command Board adjusted Respondent's total disciplinary point award at seventy-five points. For seventy-five (75) total points, the discipline imposed may range from ten days suspension to termination. Based on its findings, the Chain-of-Command Board recommended that Respondent be terminated. Petitioner concurred with the recommendation of the Chain-of-Command Board and terminated Respondent from her position as property clerk with the Pinellas County Sheriff's Office. Prior to the incident in this case, Respondent has not been the subject of an administrative investigation or any disciplinary action by the Pinellas County Sheriff's Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a Final Order finding Respondent guilty of the conduct alleged in Counts I, II, III, and IV of the charging document and upholding Respondent's termination from employment as a property clerk with the Pinellas County Sheriff's Office. DONE and ENTERED this 10th day of July, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD 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 10th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0022 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted. Accepted and incorporated. Accepted. 7.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Accepted. 14.-34. Accepted and incorporated to the extent not subordinate or unnecessary. 35. First sentence accepted and incorporated. Remainder of paragraph rejected as argument. 36.-41. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted. 4.-6. Accepted and incorporated. 7. Accepted in part. Reject characterization of interview as "informal discussion" and statement that Respondent was not informed of the nature of the mislocation of items. 8.-9. Accepted and incorporated to extent not subordinate or unnecessary Accepted and incorporated to extent not subordinate or unnecessary. Reject characterization of discussion as "informal interview." Accepted and incorporated. Accepted except phrase "no evidence of such was presented" is rejected as not supported by the record. First sentence accepted and incorporated. Remainder of paragraph rejected as argument and/or legal conclusions. Accepted. First two sentences accepted. Remainder of paragraph rejected as argument and/or legal conclusions. Accepted and incorporated. Rejected as argument and conclusions of law. First two sentences and last sentence accepted. Remainder of paragraph rejected as argument. Accepted and incorporated to extent not subordinate or unnecessary. 20.-23. Rejected as irrelevant and immaterial. 24. Accepted. COPIES FURNISHED: James M. Craig, Esquire ALLEY AND ALLEY/FORD AND HARRISON 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 Joseph M. Ciarciaglino, Esquire CIARCIAGLINO AND COYLE, P.A. 200 Mirror Lake Drive St. Petersburg, Florida 33701 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 34617 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616
Conclusions WHEREFORE, it is ORDERED and ADJUDGED, that the protests are dismissed with prejudice. DONE AND ORDERED this |2__ day of May _, 2010, in Tallahassee, Florida. Fr J> . BR 7 . yamjssioner of Education | COPIES FURNISHED TO: | Christopher McRae Robert Hosay | 2612 Centennial Place 100 E. College Ave., Suite 900 | Tallahassee, FL 32308 Tallahassee, FL 32301 | Clerk William F. Quattlebaum | Division of Administrative Hearings Administrative Law Judge | The DeSoto Building Division of Administrative Hearings | 1230 Apalachee Parkway The DeSoto Building | Tallahassee, FL 32399 1230 Apalachee Parkway Tallahassee, FL 32399-3060
The Issue The issue in this case is whether a reasonable attorney's fee should be assessed against Respondents, Paul and Barbara Corbiey, and their attorneys, and awarded to Petitioner, Action Instant Concrete, LLC (AIC), under Section 57.105, Florida Statutes,2 after the Corbieys unsuccessfully challenged AIC's use the Concrete Batching Plant Air General Permit promulgated by the Department of Environmental Protection (DEP) in Florida Administrative Code Rule 62-210.300(4)(a)2.3
Findings Of Fact No Service Without Filing AIC made no motion or request for attorney's fees under Section 57.105, Florida Statutes, prior to the filing of proposed recommended orders (PROs) in DOAH Case 05-2891. The joint PRO filed by DEP and AIC in DOAH Case 05-2891 proposed a reservation of jurisdiction to enter an award of costs and attorney fees to DEP and AIC pursuant to Section 57.105(1) and (5), Florida Statutes. The Recommended Order in DOAH Case 05-2891 granted the request and retained jurisdiction to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the Final Order. AIC did not serve a motion seeking sanctions under Section 57.105, Florida Statutes, without filing it, prior to either its PRO in Case 05-2891 or its Motion for Award of Attorney's Fees, which was filed within 30 days of the Final Order in Case 05-2891 and initiated this Case 06-1552F. Failure to Present Evidentiary Record Under a pre-hearing Order entered in this case, AIC was required to present the evidentiary record from DOAH Case 05- 2891, which had been transmitted to DEP, for use in this case. AIC failed to present the evidentiary record. But no findings made in this Final Order require the evidentiary record (i.e., the exhibits) from Case 05-2891, and AIC was not required to present a transcript of the final hearing in that case since the hearing had not been transcribed. Unsupported Claims AIC proved that some claims raised by the Corbieys in DOAH Case 05-2891 were not supported by the material facts necessary to establish the claims. The Corbieys had and presented no evidence to prove that visual emissions (VE) in excess of five percent opacity occurred during cement loading of the silo, which is the demonstration clearly established by Rule 62-296.414(1) for determining compliance of stack emissions. Their entire case on that issue was based on two claims: questioning the veracity of the VE Observations Report, primarily by speculating that the certified technician who performed the test may have fabricated the observations, either with or without his employer's knowledge; and questioning the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. The first claim was speculation and was rejected as unfounded; and, besides having no evidence to counter the expert testimony on the inability to use videotapes for the stack emission demonstration, the videotape presented in evidence by the Corbieys did not even show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo, or that AIC's stack emission demonstration was invalid. AIC proved that some claims raised by the Corbieys in Case 05-2891--specifically, claims relating to zoning, the location and hours of operation of AIC's facility, local construction permitting and licensing, roadway debris, diesel truck emissions, noise, and bright lights on trucks and on a billboard on the property--were not supported by the application of then-existing law to the material facts necessary to establish the claims, and were not presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success were stricken as irrelevant. The other claims made by the Corbieys in DOAH Case 05-2891 either were supported by the application of then-existing law to the material facts necessary to establish the claims, or were presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.
The Issue The issue is whether Petitioner properly issued a Stop-Work Order and 2nd Amended Order of Penalty Assessment against Respondent for failing to obtain workers’ compensation insurance that meets the requirements of chapter 440, Florida Statutes.
Findings Of Fact The Division is a component of the Department of Financial Services. It is responsible for enforcing the workers’ compensation coverage requirements pursuant to section 440.107. Escobar Marbol is a Florida company specializing in the installation of marble and tile, founded approximately 15 years ago. Escobar Marbol’s office is located at 20792 Southwest 129th Place, Miami, Florida 33177. Respondent was actively engaged in performing tile installation during the two-year audit period from March 4, 2013, through March 3, 2015. On March 3, 2015, while Escobar Marbol was working on a construction jobsite, the Division issued Respondent a Stop-Work Order for Respondent’s failure to secure the required workers’ compensation insurance coverage. Petitioner also served Respondent a Request of Business Records for Penalty Assessment Calculation (“Request”) asking for documentation to enable the Division to determine the appropriate penalty owed by Escobar Marbol. Escobar Marbol responded to the Request for records and provided the Division with SunTrust bank statements and check images. Nathaniel Hatten (“Hatten”), penalty auditor for the Division, was assigned to Escobar Marbol’s investigation. Hatten reviewed the business records provided and properly determined that Respondent paid Edgar Betanco, Odir Garcia, Raynaldo Remero, Daniel Escobar, Edwin Castro, and Luis Oswaldo Rodriquez for assisting with or installing tile for Escobar Marbol during the penalty period of March 4, 2013, through March 3, 2015. Hatten also concluded that Respondent failed to pay the workers’ compensation premium during the penalty period, two years prior to the Stop-Work Order. Hatten properly calculated the workers' compensation amount Escobar Marbol owed in workers’ compensation insurance for the audit period using the Class Code 5348 for tile installation work. Hatten applied the approved manual rates and methodology specified in section 440.107(7)(d) and concluded Escobar Marbol owed a penalty amount of $18,439.68. On June 10, 2015, the Division served Respondent the 2nd Amended Order of Penalty Assessment in the amount of $18,439.68. At the hearing, Escobar testified he thought an exemption was in place to cover Escobar Marbol because on March 18, 2013, Escobar had submitted an electronic Notice of Election to Be Exempt application with the Division’s online system requesting an exemption from chapter 440. Respondent paid $51.00 by credit card and received a receipt bearing the transaction confirmation number 145485197 upon applying. Respondent’s March 18, 2013, electronic application incorrectly listed the scope of business as a licensed building contractor. The incorrect scope caused the Division to deem the application incomplete, and it was not approved. According to the Division’s online application event summary, the Division generated an incomplete exemption application letter on March 20, 2013, to mail to and inform Respondent that his exemption application was not complete and therefore not approved. On September 3, 2013, Respondent submitted a completed application that corrected and changed the scope from licensed building contractor to marble, tile and flooring, which matched Escobar Marbol’s old exemption scope. The Division determined that the application was complete in its entirety and met the requirements of being issued an exemption. On September 4, 2013, the Division processed and issued Escobar an exemption. Respondent was without an exemption from April 13, 2013, to September 3, 2013. On June 30, 2015, Respondent challenged the Stop-Work Order and 2nd Amended Order of Penalty Assessment and requested a formal hearing.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, issue a final order affirming the Stop-Work Order and 2nd Amended Order of Penalty Assessment in the amount of $18,439.68. DONE AND ENTERED this 24th day of November, 2015, 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 24th day of November, 2015. COPIES FURNISHED: Laureano Cancio, Esquire Law Office of Laureano Cancio 815 Ponce de Leon Boulevard, Suite 317 Coral Gables, Florida 33134 (eServed) Alexander Brick, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: On or about October 25, 1988, a Felony Complaint was filed in Municipal Court, Mt. San Jacinto Judicial District, Riverside County, California (Case No. 884467) charging that Petitioner had committed a violation of Section 278.5, Subdivision (b) of the Penal Code, a felony, in that on or about September 1, 1988, in the County of Riverside, State of California, she, being a person having physical custody of a child pursuant to an order, judgment, and decree of court which granted to another person [her former husband] rights of physical custody and visitation, did willfully and unlawfully, with the intent to deprive such person of such rights to custody and visitation, detain, conceal, take, and entice away such child, to wit, JAMES H. RODEN [her son, who, according to court documents, was born on April 22, 1989]. An Amended Felony Complaint charging Petitioner with the same felony offense was filed on or about April 8, 1991. Subsequently, there were plea negotiations which resulted in Petitioner entering a guilty plea to a reduced, misdemeanor charge, which the court accepted. In June or July of 1993, Petitioner submitted to the Department an application for licensure as a general lines insurance agent. Among the questions on the application form that Petitioner filled out were the following: Have you ever been charged with or convicted of or pleaded guilty or no contest to a crime involving moral turpitude (yes or no), or a felony (yes or no), or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or con- viction has been entered? (yes or no) If yes, give date(s): What was the crime? Where and when were you charged? Did you plead guilty or nolo contendre? Were you convicted? Was adjudication withheld? Please provide a brief description of the nature of the offense charged If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. On this portion of the form, Petitioner wrote "no" in each of the first three blank spaces and made no further entries, notwithstanding that several years prior thereto, in Mt. San Jacinto Judicial District Municipal Court Case No. 884467, she had indeed been charged with (albeit not found guilty or convicted of) a felony punishable by imprisonment of one year or more. Petitioner, however, did not intend to misrepresent or conceal any information or to otherwise deceive the Department concerning her past. She mistakenly believed that, in this portion of the form, the Department was inquiring only about criminal offenses involving "moral turpitude." After looking up the term "moral turpitude" in the dictionary, she determined that the crime with which she was charged in Mt. San Jacinto Judicial District Municipal Court Case No. 884467 was not one involving "moral turpitude" inasmuch as her actions in abducting her son were intended to protect the child and were not in any way "wicked." After receiving Petitioner's application, the Department conducted a records check which revealed the felony charge that had been filed against Petitioner in Mt. San Jacinto Judicial District Municipal Court Case No. 884467. The Department thereupon advised Petitioner of its discovery and asked her to supply it with certain documnents that were filed in the case. Petitioner complied with the Department's request.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order announcing its intention to continue to process Petitioner's application for licensure as a general lines insurance agent rather than denying the application on the ground stated in the Department's January 26, 1994, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 14th day of September, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1994. COPIES FURNISHED: Lisa Beth Weiner 572 Northeast 31st Street Pompano Beach, Florida 33064 James A. Bossart, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0333 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neill General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact At all times relevant hereto, respondent, Pedro P. Landera, was a certified general contractor having been issued license number CG C005371 by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board), in March 1973. In January 1986 the license was suspended by the Board for three years and, except for the charges pending in this proceeding, Landera would be eligible to have it reactivated in early 1989. Thus, Landera has been without authority to use his license for the last three years. Landera did not contest the Board's suspension action and, in a settlement stipulation, admitted he violated Subsections 489.129(1)(c), (d), (e), (f) and (m), Florida Statutes (1981), by certain conduct taken in December 1983. On August 11, 1986, an individual using the name of James Burke entered into a construction contract with Charlie E. Mincey, the owner of Charlie Tires Service, 1700 N. W. 79th Street, Miami, Florida. The contract, which has been received in evidence as petitioner's exhibit 4, called for Burke, "in a timely manner," to make the following additions to Mincey's tire shop: construct a 34' X 40' room onto the existing building, erect an aluminum shed across the front of the building, including a four foot concrete slab floor, and add a five foot wall across the back side of the building. Burke represented on the contract that he held license number 254514-4. However, a search of the Board's records revealed Burke held no state license. The total price for the work was $15,650. On August 13, Mincey paid Burke $3,000 as a down payment on the job. According to Mincey, Burke began work on the additions several weeks after the contract was executed and continued to do so on and off for a few months. Eventually, a concrete block wall for the 34' x 40' room was built, but it had no roof, windows, doors, electric wiring, plumbing or paint. The aluminum shed was never built nor did Burke construct a five foot wall at the rear of the building as required by the contract. During October and early November 1986 Mincey made additional payments to Burke in the amount of $3,175, 1,000, $500, $400, $300, $300, and $40. This made a total of $8,715 paid by Mincey to Burke. Despite these payments, several subcontractors came to the job site during the same time period to unload materials but requested payment from Mincey before they would release them. Mincey paid the subcontractors $2,593.64, as evidenced by receipts received in evidence as petitioner's exhibit 7. When Burke did not return to the job site, and the project was still far from completed, Mincey attempted to contact Burke but could not find him. When he left the job site for the final time, Burke gave Mincey no notice of his intention to leave the job unfinished or any reason for doing so. Burke's whereabouts are still unknown, and there is now pending an outstanding warrant for his arrest. On September 30, 1986, a building permit application was filed with the Metropolitan Dade County building and zoning department seeking a permit for work to be done on Mincey's business. The application was filled out with three different colors of ink and in more than one person's handwriting. A carbon copy of the application has been received in evidence as petitioner's exhibit 9. The document was authenticated by a permit clerk of the Metropolitan Dade building and zoning department who identified the cashier's validation stamp, issuance date and permit number affixed to the document, all being indicia that the application was received and processed by that department. Further, the clerk attested to the fact that the carbon copy was a document normally kept in the regular course of business by her department. The application carries the signature, license number and social security number of respondent. The authenticity of respondent's signature was confirmed by a questioned document examiner whose testimony has been accepted as being credible and persuasive and was corroborated by respondent's own admission that the signature was his own. The author of the remaining writings on the document is unknown. Pursuant to the above application, a building permit was issued on October 1, 1986, for the work performed by Burke. The inspection record, which has been received as petitioner's exhibit 8, reflected that the job site was inspected by a Dade County inspector on October 1 and November 12, 1986. Also, the inspection record reflected that Gila Construction Company (GCC) was the contractor on the job. GCC is a Miami firm that Landera qualified in March 1984. Its owner is Gilbert Castillo. Mincey's building remains unfinished as of this date, and he contends the value of the work is less than the $11,308 that he paid to Burke and the subcontractors. In attempting to resolve the matter, Mincey learned that Landera's license number was on the permit application, and a complaint was eventually filed with the Board. However, prior to hearing, Mincey had never seen or talked to Landera, knew nothing of GCC, and considered the business transaction to be between he and Burke. Landera denied knowing Burke or authorizing him to use his license. Also, he maintained that he has not used his suspended license since the Board's action in early 1986. He denied signing the application in question and had no explanation as to how his signature got on the application except to suggest that someone may have obtained one with his signature and then fraudulently used the same to obtain a permit. Even so, there was no reason for Landera to sign an application during this period of time since his license was under suspension. Castillo, who owns GCC, denied knowing Burke or Mincey or having any knowledge of or participation in the Mincey job.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as set forth in the conclusions of law, that he pay a $3,500 fine, and that his license be suspended until January, 1991. DONE AND ORDERED this 10th day of February, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1989. APPENDIX Petitioner: 1-2. Covered in finding of fact 1. 3-4. Covered in finding of fact 2. Covered in findings of fact 3. and 5. Covered in finding of fact 4. Covered in finding of fact 6. Covered in finding of fact 1. Respondent: Covered in findings of fact 1 and 2. Covered in findings of fact 3 and 5. Covered in findings of fact 4 and 5. 4-5. Covered in finding of fact 8. Covered in findings of fact 2, 5 and 6. Covered in findings of fact 6 and 9. Covered in finding of fact 6. 9 Covered in findings of fact 9 and 10 COPIES FURNISHED: George W. Harrell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Luis F. DeLaCruz, Jr., Esquire 300 Sevilla Avenue Suite 313 Coral Gables, Florida 33134 Kenneth E. Easley, Esquire General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
