Findings Of Fact On September 23, 1980, Ms. Patricia Kroeger, ACLF Specialist, Department of Health and Rehabilitative Services, sent to the Petitioners, Mr. and Mrs. C. W. Price, a letter denying ACLF licensure to a home for the elderly owned and operated by the Prices in Plantation, Florida. The reason for the denial was the lack of multi-family zoning on the subject property which is necessary to lawfully operate an ACLF within the City of Plantation. The Petitioners were given 30 days by the Department to either cease operation of the facility or obtain a variance to the zoning code from the City of Plantation. Counsel for the Petitioners requested an administrative hearing on October 6, 1980, and a final hearing was held on February 13, 1981. The hearing was lawfully noticed for 10:00 A.M. on February 13, 1981. At the noticed hour, neither counsel for Petitioner nor the Petitioners were available and a call was placed to the law office of Ms. Marie Hotaling by counsel for the Department, Mr. Harold Braynon. The Hearing Officer was informed by Mr. Braynon that the Petitioners and their counsel were on the way to the hearing and would arrive shortly. At 11:00 A.M., with neither Petitioner nor their counsel present, the hearing was begun. The Department presented testimony and documentary evidence which established that the zoning on the Price's property for which ACLF licensure was sought would not permit the operation of a multiple resident facility such as an ACLF. At the close of Respondent's case, the Petitioners had not yet made an appearance and the hearing was adjourned. No subsequent communication has been received by the Hearing Officer from the Petitioners or their counsel concerning the final hearing.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Petitioner's request for licensure of their home in Plantation, Florida as an Adult Congregate Living Facility, be denied for failure to comply with Rule 10A-5.04(6), Florida Administrative Code. DONE and ORDERED this 16th day of March, 1981, in Tallahassee, Florida. SHARYN L. SMITH, 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 16th day of March, 1981. COPIES FURNISHED: Harold Braynon, Esquire District X Legal Counsel Department of HRS 201 W. Broward Boulevard Fort Lauderdale, Florida 33301 Marie S. Hotaling, Esquire 1523 N. E. 4th Avenue Fort Lauderdale, Florida 33304
The Issue The issue presented for decision in this case is whether the Petitioner is eligible for an exemption from disqualification to work in a position of special trust pursuant to the terms of Section 435.07, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Since December 1997, Petitioner has been employed as a mental health technician at The Harbors, a mental health and behavioral facility in Pinellas County. Petitioner is disqualified from working in a position of special trust as a result of an adjudication regarding battery and improper exhibition of a dangerous weapon. In 1996, Petitioner pled nolo contendere to one count of battery on her spouse, a first degree misdemeanor under Section 784.03(1)(a), Florida Statutes, and to one count of improper exhibition of a dangerous weapon or firearm, a first degree misdemeanor under Section 790.10, Florida Statutes. Adjudication was withheld, and Petitioner received 12 months' probation on the battery charge, commencing August 21, 1996. George H. Seibert, a background screening specialist for the Department of Children and Family Services, testified that Petitioner’s disqualification was premised on her having committed an act of “domestic violence.” See Section 435.04(3)(b), Florida Statutes, authorizing disqualification for having "committed an act that constitutes domestic violence," without reference to having been formally charged with or convicted of "domestic violence." Petitioner testified that her disqualification has not to date affected her job status, but has resulted in her inability to care for children and for elderly or disabled patients. Unlike other mental health technicians, she is not allowed to care for certain patients, even on days when staff is short-handed and her help is needed. Petitioner is thus concerned that at some point her employer may decide to replace her with an employee who can be more flexibly assigned. Petitioner applied to Respondent for an exemption. A hearing was held by the Exemption Review Committee on December 16, 1997. The Exemption Review Committee recommended to the District Administrator that Petitioner be granted the requested exemption. After reviewing the record and the Exemption Review Committee’s recommendation, the District Administrator denied Petitioner’s request by letter dated February 18, 1998. In his letter, the District Administrator stated that the denial was due to the fact that Petitioner has not had sufficient opportunity to demonstrate rehabilitation, given the serious nature of the charges and her recent release from probation, and due to the fact that she falsified her Affidavit of Good Moral Character. Mr. Seibert testified that other factors considered by the District Administrator in denying the exemption were that Petitioner’s children were present during the incident, and the fact that Petitioner attempted serious bodily harm to her husband. Petitioner’s undisputed testimony was that the incident leading to her arrest was the only time in her life she had run afoul of the law. Petitioner forthrightly described the circumstances. One of her two children was in the hospital. She had just learned she was pregnant with her third child. Then, she found out that her husband had been having an affair with her sister. She chased him with a wooden club, which he managed to wrest away from her. She punched him, then went after him armed with a brick. When she couldn’t get to him, she threw bricks at his truck. According to the arrest report, no one was injured during the incident. Petitioner testified that she and her husband have reconciled and currently live together, with their three children. They have received marriage counseling. Petitioner completed her 12-month probation period without incident. Without excusing the actions of Petitioner or minimizing the seriousness of the charges against her, it is found that the District Administrator took insufficient notice of the circumstances surrounding the criminal incident, particularly that this was the only such incident in which Petitioner has ever been involved, that the victim was not a minor, that Petitioner's children were too young to suffer any lasting effects from their presence during the incident, and that no one was injured in the incident. Mr. Seibert testified that the District Administrator applies a policy that one year should pass after completion of probation before an applicant can be said to have had a sufficient opportunity to demonstrate rehabilitation. Respondent made no demonstration that there is a basis for this policy in statute or rule, or that Petitioner received notice of this policy prior to petitioning for exemption. However, even assuming the policy is valid, Petitioner’s probation had been completed for eleven months at the time of hearing in this matter, substantially complying with the District Administrator’s nonrule policy. The Affidavit of Good Moral Character, which Petitioner is alleged to have falsified, contains the following language: By signing this form, I am swearing that I have not been found guilty or entered a plea of guilty or nolo contendere (no contest), regardless of the adjudication, to any of the following charges under the provisions of the Florida Statutes or under any similar statute of another jurisdiction. I also attest that I do not have a delinquency record that is similar to any of these offenses. I understand I must acknowledge the existence of any criminal records relating to the following list regardless of whether or not those records have been sealed or expunged. I understand that I am also obligated to notify my employer of any possible disqualifying offenses that may occur while employed in a position subject to background screening under Chapter 435, Florida Statutes. The affidavit goes on to list the offenses found in Section 435.04(2), Florida Statutes. Respondent contends that Petitioner failed to disclose her adjudication for battery, a violation of Section 784.03, Florida Statutes. However, both Section 435.04(2)(h), Florida Statutes, and the Affidavit of Good Character itself limit the consideration of battery to situations in which the victim of the offense was a minor. The victim of Respondent’s battery was her husband. The court records entered into evidence by Respondent do not indicate the age of Petitioner’s husband. However, the arrest report does indicate that Petitioner was 22 years old at the time of her arrest, and had been married to her husband for two years at the time of the incident. The couple had two small children at the time of Petitioner’s arrest. It is presumed that the victim of Petitioner’s offense was an adult. Respondent presented no evidence that would lead to a finding that the victim was a minor. Petitioner was under no obligation to acknowledge criminal records regarding violations of Section 741.28, Florida Statutes, relating to domestic violence, because Petitioner was never charged with or convicted of a violation of that statute. Petitioner testified that she thought she was not required to acknowledge her battery adjudication because of her mistaken belief that “adjudication withheld” was tantamount to expungement of her record. Petitioner was mistaken as to the legal effect of her adjudication, but is credited with having no intent to falsify her Affidavit of Good Character. In any event, Petitioner’s motive is irrelevant because the plain language of the statute and the affidavit relieved Petitioner of any duty to report the battery. It is found that Petitioner did not falsify her Affidavit of Good Character.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Children and Family Services enter a Final Order granting Petitioner an exemption to work in a position of special trust. DONE AND ENTERED this 18th day of August, 1998, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 18th day of August, 1998. COPIES FURNISHED: Johanna Burkes, pro se 9702 Eldridge Road Spring Hill, Florida 34608 Frank H. Nagatani, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building Two, Room 204 Tallahassee, Florida 32399-0700
The Issue On or about August 16, 1996, Petitioner, Betty Osborne, was notified by Respondent, the Department of Children and Family Services, that she was disqualified from employment in a position of special trust. The disqualification was based on the results of Petitioner's criminal screening. Petitioner challenged this eligibility status and requested an exemption from disqualification. On August 20, 1996, the Department's Exemption Review Committee met and, after reviewing the Petitioner's record, denied her request for an exemption from disqualification. Petitioner filed a timely request for formal hearing and this proceeding followed. At the final hearing, Petitioner testified on her own behalf and offered no exhibits into evidence. Respondent presented one witness, George H. Seibert, Background Screening Coordinator, Department of Children and Family Services. Respondent offered and had admitted into evidence five exhibits. The proceeding was recorded but not transcribed. Neither party filed proposed findings of fact or conclusions of law.
Findings Of Fact Petitioner applied for a license as a child care provider in 1993 in an effort to qualify to open her own day care facility. Based on a criminal screening of Respondent, the Department of Children and Family Services (Depatment), determined that Petitioner was disqualified from employment in a position of special trust or responsibility, and thus was ineligible to work or volunteer in child care programs. Pursuant to Petitioner's request for an exemption from disqualification, the Department convened the Exemption Review Committee (Committee) to consider the requested exemption. The Committee reviewed Petitioner's record relating to her August 19, 1993, plea of nolo contendere to one count of grand theft. On or about January 7, 1993, Petitioner was charged with grand theft. The incident giving rise to the denial of the request for exemption occurred during the course of Petitioner's employment as a supervisor with the Pinellas County Tax Collector's Office. The allegation was that Petitioner had misappropriated $20,000 or more collected by that office for fishing licenses for her personal use or with the intent to deprive the State of Florida of a right to the property or benefit therefrom. On or about August 19, 1993, Petitioner completed a Plea Form on which she indicated that she would plead nolo contendere to one count of grand theft. Paragraph Five of the Plea Form expressly stated that "No one has pressured or forced me to enter this plea.", and that "No one has promised me anything to get me to enter this plea. . . ." Nevertheless, the form noted that Petitioner had an understanding that as a result of the plea, she would serve fifteen (15) years probation; pay $300.00 in court costs; and pay $56,404.00 in restitution. Both Petitioner and her attorney signed the Plea Form. On or about August 19, 1993, an Order of Probation (Order) was entered noting that the "Defendant being present with counsel: entered a plea of nolo contendere to the offense of grand theft". The Order withheld an adjudication of guilt; placed Petitioner on fifteen (15) months of probation; and required payment of $300.00 in court costs and $56,404.00 in restitution. The amount of restitution was reduced to $27,501.00 by an order issued on January 26, 1994. As of August 20, 1996, the date of the Department Exemption Review and hearing, Petitioner had twelve years of probation remaining to be served. Also, as of that date, Petitioner had paid only $300.00 in restitution. If Petitioner had made restitution payments as scheduled, she would have paid $7,100.00 as of August 1996. At the time of this hearing, Petiitoner had made no additional restitution payments. At hearing, Petitioner presented no evidence of rehabilitation. Several letters of recommendation written by friends on Petitioner's behalf indicate that she is (1) active in her church; works well with children and others; and has a love for children. However, none of these letters reflect that Petitioner has worked in a responsible position or has been engaged in activities that demonstrate rehabilitation since she entered a plea of nolo contendere to grand theft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the Department of Children and Family Services, enter a Final Order denying Petitioner, Betty Osborne, an exemption from disqualification from employment in a position designated by law as one of trust or responsibility. DONE and ENTERED this 28th day of March, 1997, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1997. COPIES FURNISHED: Ms. Betty Osborne 4149 38th Street South St. Petersburg, Florida 33711 Kathleen Harvey, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 34648-1630 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran General Counsel Department of Children and Family Services Building Two, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether consumer certificates of exemption previously issued by the Department of Revenue to Iberia Lineas Aereas de Espana, S.A., should be revoked.
Findings Of Fact Iberia is a foreign air carrier owned and controlled by the government of Spain. Iberia is an agency or instrumentality of the government of Spain. Iberia is not an agency or instrumentality of the United States Government, nor is it an agency or instrumentality of any of the states of the United States or of any county, municipality, or political subdivision of any such state. Iberia operates flights to and from several states of the United States, including Florida. Iberia purchases items for use within Florida. The Department of Revenue is the agency of the State of Florida which is authorized to administer the collection of taxes and the issuance of consumer certificates of exemption pursuant to Chapter 212, Florida Statutes. The two consumer certificates of exemption at issue in this proceeding were issued to Iberia by the Department on September 21, 1990. Both have an expiration date of September 21, 1995. 5/ One of the subject certificates indicates that Iberia is exempt as a "Federal" organization. The other indicates that Iberia is exempt as a "Government" organization. The Department has continuously treated Iberia as an exempt organization since at least September 3, 1975, when the Department issued Iberia's first consumer certificate of exemption. That certificate indicated that Iberia was considered a "Federal" organization. Iberia has never received any express representations from the Department as to its future entitlement to a consumer certificate of exemption. All of the consumer certificates of exemption issued to Iberia have been issued as a result of some form of mistake or misunderstanding by functionaries of the Department, because Iberia has never been eligible for a consumer certificate of exemption under the provisions of Chapter 212, Florida Statutes. 6/ No other foreign airline or foreign air carrier currently holds a consumer certificate of exemption issued by the Department.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Revenue issue a Final Order in this case revoking each of the consumer certificates of exemption previously issued to Iberia. DONE AND ENTERED this 11th day of October, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996.
The Issue Whether Petitioner proved by clear and convincing evidence that she has been rehabilitated from her disqualifying offense(s), and, if so, would it be an abuse of discretion for the agency to deny her exemption application under section 435.07, Florida Statutes.
Findings Of Fact Agency for Health Care Administration ("AHCA") is the state agency required to conduct background screenings for employees who provide certain types of services related to health care under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner seeks employment in a position providing services to residents of a health care facility or under a license issued by Respondent. As such, Petitioner is required to participate in Respondent’s background screening process pursuant to section 408.809. Petitioner submitted to the required background screening, which revealed that in 2004, Petitioner was convicted of the felony offenses of grand theft and burglary, in violation of sections 812.014 and 810.02, Florida Statutes (2004) respectively, in Dade County, Florida, Case No. 132004CF030578C000XX. These offenses were used by the agency as the disqualifying offenses under chapter 435. Petitioner was subsequently convicted of felony grand theft in 2007, in violation of section 812.014, Florida Statutes (2007), in Broward County Circuit Court, Case No. 062007CF013247A88810. In 2013, Petitioner was convicted of theft in violation of section 812.014, Florida Statutes (2013), in Dade County, Florida, Case No. 132013CF0268560001XX. The criminal convictions in 2004 disqualified Petitioner and made her ineligible for licensure or to provide services in a health care facility licensed by Respondent. She was disqualified unless she applied for and received an exemption from AHCA, pursuant to section 435.07. In addition, Petitioner’s background check revealed that she was arrested in 1997 for Battery and Resisting Arrest; in 2009 for Petit Theft involving unemployment compensation, which was ultimately dropped; and in 2012 for retail theft. Petitioner initially submitted an application for an exemption to Respondent in accordance with sections 408.809 and 435.07 on June 9, 2017. She participated in a telephonic hearing to discuss her application conducted by Respondent on August 1, 2017. Respondent’s witness, Kelley Goff, a health services and facilities consultant for the Agency’s Background Screening Unit, testified that she was the analyst assigned to Petitioner’s case and attended the telephonic hearing on August 1, 2017. Respondent’s Exhibit R1-1 through R1-75, is AHCA's file for Petitioner’s exemption request. It contains: the exemption denial letter; internal agency notes; panel hearing notes from the August 1, 2017, teleconference; Petitioner’s criminal history; Petitioner’s exemption application; personal attestations; arrest affidavits; conviction records; probation records; court records; education records; and several letters in support of Petitioner’s requested exemption. After the telephonic hearing and discussion, Respondent denied Petitioner’s request for an exemption by letter dated August 4, 2017. Subsequently, Petitioner requested an administrative hearing. In making the decision to deny, Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner and her explanations during the teleconference. Respondent also considered Petitioner’s other arrests and convictions, in addition to the disqualifying offenses. The history of Petitioner’s theft-related crimes and the recent 2012 and 2013 theft-related incidents were significant factors in Respondent’s decision to deny Petitioner’s application for exemption. The agency concluded that Petitioner was not particularly candid during the August 1, 2017, teleconference, and that some of Petitioner’s statements during the teleconference conflicted with the police reports and other documentation in Petitioner’s exemption file. This was true particularly with respect to the 2012 retail theft incident at Home Depot, which Petitioner attributed to actions by a client during the teleconference. During the telephone interview, Petitioner stated that she could not remember the arrests and/or convictions from the time period from 1997 through 2007. Although Petitioner had some positive letters of recommendation, she did not have anyone speak on her behalf during the telephonic discussion in August 2017. Based on Petitioner’s entire file and her responses during the teleconference, the agency concluded that Petitioner had not satisfied her burden of proof by clear and convincing evidence of demonstrating rehabilitation from her disqualifying offenses. Goff testified that, while preparing for the hearing, she researched Petitioner’s 2007 criminal case and discovered that Petitioner still owed outstanding fines in that case in Broward County, and felt that Petitioner was not eligible to apply for an exemption until those fees were paid. During the final hearing Petitioner presented the testimony of her former client, Yohandra Sota. She testified that she had known Petitioner during the time of the 2012 incident of theft at Home Depot, that she was not with Petitioner during that time, and that she had never witnessed Petitioner involved in theft. Sota testified that Petitioner is a nice person who does not do bad things and has never fought, fussed, or threatened her. Petitioner testified on her own behalf and admitted that she has things on her record and is not happy with them. She explained that everyone does things that he or she does not necessarily have a choice over. Petitioner explained that she is asking for a second chance to get her life back on track and to get her life together. Petitioner explained that she was not aware of the outstanding fines and that when she went to Broward County Courthouse, they told her they could not find information on the case. Petitioner further explained that she is raising her three grandchildren and needs to provide for them and that she is unable to do that without a job. Petitioner stated that she is unable to work with her client because of this situation (the present disqualification). Petitioner explained that everyone makes mistakes and no one is perfect and that she had a rough childhood and had to raise herself. Petitioner then presented the testimony of her brother, Jamvar Thomas. He testified that he has seen Petitioner go through a lot of changes and that she has made some mistakes in her life. He felt that the fact that Petitioner asked for his help shows tremendous growth in her. Thomas testified that Petitioner is trying to put herself in a position so that she will not have to go back to her old habits and that she needs a second chance. Thomas stated that Petitioner has worked with Yohandra Sota for 15 years and helped Sota cope with her life. Thomas testified that helping people has helped Petitioner become a better person and that Petitioner has paid for her past mistakes and has come a long way. Thomas requested that Petitioner be given the opportunity to do the right thing and that granting the exemption would allow Petitioner to work in her field of expertise. Although Petitioner professed that she was remorseful for her criminal convictions and wants to move forward with her life, the undersigned is not persuaded by clear and convincing evidence that (1) she is rehabilitated from her disqualifying offenses, or (2) that it would be an abuse of discretion for the agency to deny the exemption.1/ The undersigned finds that under the facts presented Petitioner has failed to meet her burden of proof by clear and convincing evidence that she should be granted an exemption from disqualification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 12th day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 12th day of January, 2018.
Findings Of Fact Having heard oral argument on the issues and considered the record transmitted to the respondent by the BTA, as supplemented by the testimony of Mr. Kurtgis, the following relevant facts are found: Petitioner is the owner of that property located at 114 S.W. 10th Street in Ft. Lauderdale, Florida, more particularly described as "Lot's 15, 17 Block 7 /Croissant Park, River Station 7-50B. Lot's 19, 21, 23 Block 16 Croissant Park, River Section 7-50B" Byron P. Kurtgis was the petitioner's Secretary from July of 1972 through July of 1973. In February of 1973, Kurtgis experienced a broker finger and was unable to use his hand for at least one month. For this reason, he got behind in his affairs and was unable to process the exemption application or to turn necessary documents over to the Club's certified public accountant. His regular employment took precedence over his club work, and he turned the papers over to the CPA when he realized he would not make the April 1st deadline. The exemption application and return was dated April 12, 1973, and received by the Tax Assessor on April 16, 1973. On June 1, 1973, the Tax Assessor notified petitioner that the application for tax exemption had been denied for the reason that it was received after April 1st. Were it not for the untimely filing of the exemption application, the Tax Assessor would have granted petitioner a charitable exemption from ad valorem taxation. Upon appeal by petitioner to the Broward County BTA on the stated grounds of "clerical error and mistake in failure to file return on time, and denial was contrary to law," the BTA granted the tax exemption to petitioner on July 18, 1973. The BTA notified the respondent of the change in the assessor's action. The staff recommendation of the respondent was to invalidate said change on the ground that petitioner failed to demonstrate that it came within an exception to the waiver rule of 196.011 and therefore the change by the BTA lacked legal sufficiency and/or the evidence presented was insufficient to overcome the assessor's presumption of correctness. Petitioner requested a hearing to review the staff recommendation, the Executive Director of the respondent requested the Division of Administrative Hearings to conduct the hearing, and the undersigned was assigned as the Hearing Officer.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the action of the Broward County Board of Tax Adjustment granting the exemption be invalidated. Respectfully submitted and entered this 12th day of February, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of February, 1976. COPIES FURNISHED: Mr. J. Ed Straughn Executive Director Department of Revenue Room 102, Carlton Building Tallahassee, Florida 32304 Charles G. Brakins, Esquire ROGERS, MORRIS & ZIEGLER 800 East Broward Boulevard 700 Cumberland Building Fort Lauderdale, Florida 33301 Stephen Mitchell, Esquire Assistant Attorney General Office of Legal Affairs The Capitol Tallahassee, Florida 32304 Gaylor Wood, Esquire WOOD & GOHEN 603 Courthouse Square Building 200 Southeast Street, 6th Street Ft. Lauderdale, Florida 33301
The Issue The issue presented for decision herein is whether or not Petitioner, by failing to disclose an arrest conviction and sentencing on a license application (as the applicant administrator), constitutes grounds for revocation of an ACLF license granted pursuant to that application as provided in Section 400.414(1), (2), (b), Florida Statutes.
Findings Of Fact Petitioner applied for an initial ACLF license on or about April 10, 1985 and a license was issued pursuant thereto on July 17, 1985. In Section 4 of the initial license application, the question is asked "have you ever been arrested or convicted of a crime involving injury or harm to persons, or financial or business management (e.g., assault, battery, robbery, embezzlement or fraud)". Applicant Lorraine Cooney, answered "no" and marked the section seeking further information about such arrest or conviction: "N/A". In fact, applicant Cooney's 1986 renewal application filed June 7, 1986, indicates that she was convicted in March 5, 1985, in Federal Court of Income Tax Fraud. Specifically, a review of a letter from Ms. Cooney's U.S. Probation Officer, Terry M. Levix, indicates that Ms. Cooney pled guilty on January 4, 1985 to two counts of a two count indictment charging that she filed a fraudulent claim to the United States Treasury and was placed on two years probation effective February 5, 1985. Ms. Cooney did not contest the conviction of the fact that she was placed on probation. At hearing, applicant Cooney admitted the facts of the arrest and conviction but contested the revocation of her license based on her contention that she has operated the facility in accordance with all applicable standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's appeal of the Department's revocation of her ACLF license be DENIED. RECOMMENDED this 20th day of June, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 20th day of June, 1988. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of HRS 5190 Northwest 167th Street Miami, Florida 33014 Joaquin J. Iglesias, Esquire 2001 Northwest 7th Street Suite 303 Miami, Florida 33125 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
The Issue The issue is whether the Department of Environmental Protection (DEP) should revoke two consents of use issued to the Lays for construction of an exempt dock on Cayo Costa Island near Pelican Bay in Lee County.
Findings Of Fact In spring 2000, after contracting to purchase Lots 16 and 17 in the Cayo Costa Subdivision on Cayo Costa Island in Lee County, but before closing, the Lays contacted Peggy Grant, an environmental specialist in DEP's South District office in Fort Myers, Florida, to inquire whether it would be possible to construct a single-family dock on and over sovereign submerged land owned by the State of Florida in a lagoon west of Pelican Bay. The Lays testified without contradiction that, in making their inquiry, they showed Grant a boundary survey of the property. The boundary survey showed that there was a strip of road easement above the mean high water (MHW) line east of all of Lots 16 and 17 except for the extreme southeast corner of the lots. According to the Lays, again without direct contradiction, Grant told them that it would be possible to construct a dock into the lagoon because the lots were riparian to the lagoon at least at the southeast corner. It was not clear from the evidence whether Grant told the Lays that their dock could emanate from parts of their lots other than the southeast corner. The Lays subsequently closed on the property. On July 12, 2000, the Lays filed a consolidated application for exemption from the need to obtain an environmental resource permit and for consent of use for a 208 square-foot single-family dock emanating from the easternmost point of the boundary between Lots 16 and 17--a point from which the dock would have to traverse approximately 10-15 feet of land above MHW designated as roadway easement on the boundary survey. The Lays testified that the boundary survey was part of the application, but no boundary survey was contained in DEP's files, and it is found that the application did not include the boundary survey. It is found that the Lays, in testifying as they did, confused the application submission with the inquiry of Peggy Grant in spring 2000. There was no other information in the application indicating a road easement or the location of MHW. After the Lays filed their application, DEP located the site on an aerial produced by DEP's Geographic Information System and conducted a site visit. During this phase, DEP and the Lays focused on minimizing impact on mangroves bordering the lagoon. Negotiations ensued, and the Lays eventually agreed to submit additional information down-sizing their proposed dock to 58 square feet. The revised application was granted on August 21, 2000, under DEP File No. 36-0172390-001. The consent of use included General Consent Conditions. Among other things, they stated: "The Letter of Consent associated with these General Consent Conditions as well as these conditions themselves are subject to modification after five (5) years in order to reflect any applicable changes in statutes, rule or policies of the Board [of Trustees of the Internal Improvement Trust Fund] or its designated agent [DEP]." There were no other conditions or statements regarding modification or revocation of the consent of use. After obtaining their exemption and consent of use, the Lays realized they needed a larger dock. On September 11, 2000, they applied for an exemption and consent of use for a 114 square-foot single-family dock. The Lays concede that the boundary survey was not included in this application. This application was granted on October 14, 2000, under DEP File No. 36-0172390-002. It included the same General Consent Conditions as the first consent of use for the 58 square-foot dock and no other conditions or statements regarding modification or revocation of the consent of use. The Lays next approached Lee County for a permit for their dock. They showed Lee County their DEP exemption and consent of use and their boundary survey. On November 13, 2000, Lee County informed the Lays that the County permit could not be issued due to County setback requirements from the road easement shown on the boundary survey. The Lays then asked for consideration of a variance from the setback requirements or vacation of the road easement (which clearly could serve no purpose or be of any use as a road). At that point, the County referred the matter to the County Attorney's office for a legal opinion. On December 29, 2000, a memorandum opinion was prepared to the effect that the road easement, if implicitly offered for dedication by filing of the Second Revised Plat of Cayo Costa Subdivision in the early 1910's, was never accepted by the County. The County surmised that the road easement belonged to the State of Florida. For that reason, no setback requirements from a road easement applied, and the County permit could be issued. The Lays were informed of the County's legal opinion in early January 2001. They were told that the County informed DEP of the legal opinion and the boundary survey and that the Lays could expect to receive their County permit shortly. When DEP was informed about the County's legal opinion, DEP had a copy faxed to its Office of General Counsel in Tallahassee on January 12, 2001, along with a copy of the boundary survey. Upon review of the documentation, DEP came to the conclusion that the Lays were not riparian owners at the point of their proposed dock (at the southeast corner of Lot 16 and northeast corner of Lot 17) as a result of the road easement. On January 18, 2001, DEP gave the Lays notice of DEP's intent to revoke both consents of use (for the 58 and 114 square-foot docks). DEP takes the position not only that it did not have the benefit of the boundary survey in either application for exemption and consent of use but also that it accepted at face value the representations in the applications that the Lays were riparian owners where they proposed to build their dock. Actually, the Lays' applications did not contain explicit representations to riparian ownership. But they did state that the Lays owned "the property described," or had "legal authority to allow access to the property," and did list only "Florida Department of Parks and Recreation" as the only adjoining property owner. In addition, they implicitly represented entitlement to the exemptions and consent of use applied for.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: (1) disapproving DEP's notice dated January 18, 2001, of intent to revoke the Lays' two consents of use; and (2) dismissing this administrative proceeding in which DEP seeks revocation of its two consents of use. DONE AND ENTERED this 14th day of August, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 14th day of August, 2001. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 John and Janet Lay 3901 Southwest 27th Court Cape Coral, Florida 33914 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
