The Issue The issue to be resolved in this proceeding concern whether, because of a prior regulatory and criminal history, the Petitioner is entitled to licensure in Florida as a nonresident life, health and variable annuity agent.
Findings Of Fact The Petitioner, Eugene P. Kent, at times pertinent hereto was a licensed insurance agent in South Dakota. He was apparently an agent or broker for the Independent Community Banker's Association of South Dakota and engaged in the insurance business with regard to the various group benefits coverage for that association. Apparently in 1995, he become involved in a dispute between the Independent Community Banker's Association of South Dakota and United of Omaha Life Insurance Company. This dispute, the exact nature of which is not of record in this case, resulted in the Petitioner being charged with mail fraud by the United States Attorney for the District of South Dakota. He was prosecuted for mail fraud and ultimately was convicted by jury verdict on or shortly after October 26, 1996. He was sentenced to two years' imprisonment. The Petitioner believed that evidence existed in the home office of United of Omaha Life Insurance Company, which would exonerate him, and that his counsel during the criminal prosecution had, for unknown reasons, failed to subpoena and obtain such evidence for use in his criminal trial. He obtained new counsel who was successful in obtaining the evidence in question, which indeed proved to be exculpatory. It resulted in the presiding judge in the criminal case vacating the order of conviction, resulting in the Petitioner's release from incarceration. Because of his conviction, the insurance departments of South Dakota, as well as North Dakota and Nebraska, had revoked his insurance licenses, based upon the criminal conviction. On October 26, 1996, during the progress of the criminal trial referenced above, the Petitioner and his wife became concerned that she would not have funds to pay for his counsel, to operate her home and the business and to pay for her son's alcohol rehabilitation expenses if the jury returned a guilty verdict resulting in his incarceration. Consequently, on that day, the Petitioner made a withdrawal from his business account, drawn upon the Kent Insurance, Inc., account in the amount of $9,900, by writing a check on that account. On the same day, the Petitioner went to a different branch of the same bank and negotiated a second check on this same account also made payable to him, again, in the amount of $9,900, drawn upon the Kent Insurance, Inc., business account. The bank officer upon the occasion of the second withdrawal that same day told him that a currency transaction report would have to be filed. The Petitioner readily agreed to file the report and assisted the bank officer in completing and executing the transaction report. Thereafter, the United States Attorney secured an indictment of the Petitioner, during his incarceration for the earlier criminal conviction, before it was vacated by the trial judge. He prosecuted the Petitioner for "attempting to cause a financial institution not to file a report." During the pendency of this second criminal proceeding, the Petitioner remained incarcerated from the earlier proceeding, which was later vacated. Because of this, his counsel in the second criminal proceeding advised him to plead guilty to the second charge in return for a light penalty, because his counsel believed that if he attempted to litigate the second criminal matter to trial, he would have difficulty convincing a jury of his innocence because he was already incarcerated on the earlier mail fraud charge. Consequently, on May 20, 1998, the Petitioner pled guilty to attempting to cause a financial institution not to file a report. He was sentenced to five months' imprisonment as a result of that plea, which ran concurrently with the sentence imposed on February 24, 1997, regarding the mail fraud charge. After release, he was sentenced to supervised release for a period of approximately two years. The preponderant evidence in this proceeding shows that the Petitioner did not attempt to defraud the federal government or to prevent the bank involved from filing the report. Upon being informed of the requirement of filing the report, he freely consented and helped execute the report form involved at his bank. The funds he withdrew with the two checks were his funds from an account over which he had ownership and signatory authority. There is no evidence that the funds in the account withdrawn by the Petitioner had been obtained through an criminal alleged enterprise or that the Petitioner contemplated using them for such a purpose. The post-conviction evidence that was obtained by the Petitioner and his counsel resulted in the judge vacating the first conviction for mail fraud. This new evidence was also the basis for the South Dakota Insurance Regulatory Agency reinstating his licensure. Ultimately, the other states which had revoked his licensure reinstated his licenses. The Petitioner is now similarly licensed in 17 or 18 states. He applied for licensure as a non-resident life, health, and variable annuity agent in Florida and that application was denied by the Department due to his criminal history and the prior administrative actions against his licensure in the other states. That denial resulted in this proceeding. The other states which have since either reinstated his licensure or licensed him did so with knowledge, as reported by the Petitioner, of his prior criminal and administrative proceedings. The Department has a rule listing various crimes (in Classes A, B, and C) such that, if a petitioner has been so convicted, then that petitioner cannot be licensed for periods of times stated in that rule. Class A crimes listed in that rule carry the longest period of time during which licensure is prohibited with a waiting period extending as much as 15 years. The Division of Licensing of the Department decided that the crime involved herein was a "Class A crime." The rule allows the Department to analogize the crime of which a petitioner or applicant has been convicted with one of the crimes listed in this rule if the crime, of which an applicant was convicted, is not itself listed in the rule. The Division of Licensing thus decided to classify the crime of "attempting to cause a financial institution not to file a report" as analogous to "defrauding the government" or "obstruction of justice." The Petitioner was not charged with either defrauding the government or obstruction of justice and was not convicted of those crimes. Although the stipulation of facts between the Petitioner and the United States Attorney, attendant to the Petitioner's plea in the second federal criminal case (Petitioner's Exhibit G), shows that the Petitioner knowingly attempted to avoid the reporting requirement imposed by Title 31 U.S.C. § 5313(a) on the bank for currency transactions of more than $10,000 in one day, there is no persuasive evidence that he did so for any illegal purpose or fraudulent intent, or intent to in any way "obstruct justice," or engage in dishonest conduct. There was no demonstrative harm to the public nor was there any "victim" of his purported crime. If the Petitioner had truly wanted to conceal the transaction or induce the bank to fail to report it, he could simply have presented the second $9,900 check on another day for cashing, or had his wife negotiate such a check on a different business day. Instead, when told by the bank employee, on presenting the second check, that a currency transaction report would have to be filed, he freely assented and assisted in the preparation of the report form; even the above-referenced stipulation of facts attendant to his criminal plea shows this. There was no requirement that a report be made until the second check was negotiated on the same day. The Petitioner's testimony in evidence, including the fact that 18 states have licensed him or re-instated his licensure since the criminal and administrative proceedings at issue herein, with knowledge of those proceedings, shows preponderantly that his crime did not "involve moral turpitude" and that he is fit and trustworthy for engagement in the practice of insurance. The crime to which he pled did not involve any significant, rational relationship or nexus to the two "analogized crimes" involving "obstruction of justice" or "defrauding the government" for purposes of the Department's rule cited below. Two affidavits, admitted as Petitioner's Exhibits J and K, as corroborative hearsay, in accordance with Section 120.57(1)(c), Florida Statutes, bear out this finding and are worthy of quotation. The first affidavit is that of attorney James L. Volling, the Petitioner's counsel for purposes of appeal and post-conviction challenge to his first conviction, and his counsel for purposes of the second criminal case. Mr. Volling practices in Minneapolis, Minnesota, and is admitted to practice by the Minnesota Supreme Court, as well as by the United States District Court for the District of Minnesota and for the District of North Dakota. He is also admitted to practice in the courts of appeal for the District of Columbia Circuit, the Eighth Circuit and the Fifth Circuit, as well as the United States Supreme Court. He testified in pertinent part as follows: Following Mr. Kent's conviction on two counts of mail fraud, I was retained to represent him for purposes of appeal and post-conviction challenge to the conviction as well as in connection with a second case brought against him. Upon reviewing the facts and the law in Mr. Kent's case, I became convinced that his conviction was defective and inappropriate. Ultimately, the trial court agreed and his petition for post-conviction relief was granted and his conviction and sentence were vacated. The government chose not to appeal that decision which I believe clearly would have been upheld by the United States Court of Appeals for the Eighth Circuit. During the pendency of post-conviction proceedings in Mr. Kent's case, the government brought a second case against Mr. Kent involving allegations of an attempt to avoid currency transaction reporting requirements. In my view, these allegations were petty at best, especially considering that the bank involved did file a currency transaction report and Mr. Kent expressly permitted them to do so. Mr. Kent was simply withdrawing his own money and there was no claim that those funds were the product of any illegal activity [or for any illegal purpose]. The government's second case was only technical in nature and, in my view, would not have been charged in any other jurisdiction with which I am familiar. Indeed, the assistant United States attorney representing the government told me that the only reason the government brought the second case was their concern that Mr. Kent's conviction in the first case would ultimately be overturned, which of course it was. With regard to the currency transaction reporting matter, Mr. Kent elected to enter a plea bargain to avoid further expense and burden, and which did not augment the punishment that had been given to him in the first case. I have no doubt that, if Mr. Kent, had not been convicted in the first case so that he would not have had that stigma at the time of the second case, he would have elected to try the currency transaction reporting case rather than to enter into a plea agreement. It was after that plea agreement, that the conviction and sentence in Mr. Kent's first case were vacated. I have known and dealt with Eugene Kent for approximately five years now. During that entire time, he has always been a man of his word. He has done exactly what he said he would do and has told me the truth in every respect. I have great respect and admiration for Mr. Kent as person and as a client. I believe he has suffered unfairly throughout this entire ordeal, but he has remained steadfast and persevered through some truly difficult times. I have been proud to serve as his legal counsel, and I would recommend him unhesitatingly to anyone in terms of employment or any business relationship. The second affidavit is by Mark F. Marshall. Mr. Marshall is now a lawyer and at times pertinent hereto has been admitted to the practice of law by the South Dakota Supreme Court. He has been in the active practice of law since 1981. At times pertinent hereto from January 1, 1996, until August 1, 2000, Mr. Marshall served as a United States Magistrate Judge for the District of South Dakota. Mr. Marshall testified pertinently as follows: From January 1, 1996 until August 1, 2000, I served as a United States Magistrate Judge for the District of South Dakota. In my capacity as a United States Magistrate Judge, I conducted the initial appearance and detention hearings in a matter styled the United States of America v. Eugene P. Kent, CR. 96-40002-01. Over the objection of the United States, I ordered Mr. Kent released on conditions. A copy of the Order Setting Conditions of Release, as well as Mr. Kent's Appearance Bond in the Amount of $100,000.00 is attached hereto as Exhibits A and B respectively. [released on a non-surety bond requiring no security.] In my capacity as a United States Magistrate Judge, I conducted a hearing on the Defendant's Motion to Dismiss in a matter styled the United States of America v. Eugene P. Kent, CR. 97-40111. [the currency transaction prosecution.] I denied the Defendant's Motion to Dismiss as I believed that an issue of fact existed as to the Defendant's intent. While I believed that it would be improper to dismiss the case because of that issue, I also know that if I had been the finder of fact I would have found the Defendant not guilty of all of charges in the indictment. Perhaps more so than any defendant who appeared before me, Mr. Kent comported himself with grace, dignity, and the utmost of integrity with regard to both criminal cases. Since being exonerated from all underlying criminal counts regarding this matter, Mr. Kent has asked me to submit an affidavit on his behalf. Initially, I was reluctant to do so not because Mr. Kent was unworthy of support, but because I was concerned about whether doing so would reflect adversely on my former judicial office. I have concluded that the interests of justice compel me to provide this affidavit on behalf of Mr. Kent. I am firmly of the belief that Mr. Kent committed no criminal acts in either of the cases venued in the United States District Court for the District of South Dakota and as such he should not bear the stigma of any criminal record. I have been a member of the South Dakota Board of Pardons and Paroles since July of 2002. During my tenure as a member of the Parole Board, I have reviewed hundreds of applications for pardons. I have reviewed all public filings in Mr. Kent's civil actions arising from his conviction as well as all filings in the criminal action itself. Based on my experiences as a Parole Board member, my knowledge of Mr. Kent individually and professionally, and as well as my knowledge of the role that pardons serve in the state and federal judicial system, I believe that Mr. Kent is an unusually worthy applicant for such extraordinary relief. It is my personal belief that Mr. Kent poses no threat to society whatsoever. Society's interests, as well as those of Mr. Kent, would be well served by granting him the relief he seeks . . . . Dated this 11th day of November, 2003.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Petitioner be granted licensure. DONE AND ENTERED this 3rd day of September, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of September, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Ladasiah Jackson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Eugene P. Kent 1209 West 37th Street Sioux Falls, South Dakota 57105
The Issue The issue is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration, enter a final order denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, 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 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The issue is whether Respondent Three Rivers Legal Services engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact The Petitioner Attorney Kaimowitz was born on May 5, 1935. He attended the University of Wisconsin, served in the U. S. Army, and was a journalist early in his career. He worked to obtain voting rights for African-Americans in the Deep South as a volunteer for the Congress of Racial Equality in the summer of 1964. He attended law school at New York University and while attending law school worked for the New York Civil Liberties Union as an investigator. Upon graduating from law school in 1967, he applied for membership in the New York State Bar Association and was eventually admitted. He was employed as a staff attorney with the Center on Social Welfare Policy and Law in New York City. He was suspended from that position. In 1970 he was awarded a Reginald Heber Smith Fellowship which took him to Michigan Legal Services in Detroit, Michigan. He remained there until he took a sabbatical so that he could complete a Legal Services Corporation Research Fellowship in 1979 and 1980, which was located at the University of North Carolina at Chapel Hill. He could have returned to his employment at Michigan Legal Services but instead sued that entity. He also sued Pennsylvania Legal Services, Legal Services of North Carolina, and the Mental Health Law Project of the District of Columbia for alleged age discrimination in hiring. From December 1980 until 1984 he was employed as associate counsel for the Puerto Rican Legal Defense and Education Fund in New York and Connecticut. He left there because of a "labor dispute." In March of 1985 he was hired as director of the Greater Orlando Area Legal Services (GOALS). He was fired in 1986. He sued GOALS, and obtained a financial settlement. Subsequently he applied for jobs with Broward County Legal Services and Central Florida Legal Services. When he was turned down for those jobs, he sued both entities based on age discrimination. The action against Central Florida Legal Services ended in 1999 or 2000 with a confidential settlement involving the payment of money to Attorney Kaimowitz. At some point he also entered into a confidential settlement with Broward County Legal Services. Attorney Kaimowitz claims that the suits he filed against various legal services programs were based on his personal mission to reform the hiring practices of legal services programs, and he avers that he has been on that mission since 1980. Although he claims to have instituted these suits for altruistic motives, many of them resulted in monetary settlements that benefited him personally. None of these suits were tried to the point that a verdict resulted. After being fired by GOALS he obtained a master's in communications from the University of Central Florida in 1988. While attending school he worked as a journalist for the "Orlando Weekly," a publication targeted to African-Americans in the Orlando area. Subsequently Attorney Kaimowitz represented African- Americans in civil rights actions, including employment discrimination in the Orlando area. He was in private practice of law at that time although he had no office. In 1989 or 1990 a court assessed fees against him for engaging in frivolous litigation. Attorney Kaimowitz moved to Gainesville because his domestic partner was seeking a Ph.D. at the University of Florida. From May 14, 1999, until February 7, 2002, he worked for Alachua County as an investigator into citizen complaints of discrimination in housing and public accommodation. He was terminated from that job because of accusations of "serious misconduct." He claimed his discharge from this job was in retaliation for whistle blowing. He sued, and received a monetary settlement. He subsequently and unsuccessfully sought employment with the City of Gainesville, the University of Florida, and with the State of Florida. He had a dispute with the University of Florida based on the University's failure to publish written material that he submitted. He filed suits pro se based on age discrimination against Gainesville for failing to hire him and against the University of Florida and the Florida Board of Regents because of the publication dispute and because they refused to hire him. The suit against the Board of Regents was settled by a monetary payment to him of a confidential sum, according to Attorney Kaimowitz. In 1997, Judge Maurice Paul, a U. S. District Judge, entered an order forbidding Attorney Kaimowitz from filing pro se lawsuits in his court. Prior to 2003, Attorney Kaimowitz was disciplined by the Florida Supreme Court on two occasions. A Florida Bar report dated January 29, 2002, reported a finding on January 3, 2002, of professional misconduct. He was reprimanded for making a statement he knew to be false or with reckless disregard as to its truth or falsity concerning the integrity of a judge. He had been previously reprimanded by the Florida Supreme Court in 1998. Attorney Kaimowitz is proud that he has filed countless motions to disqualify judges. He claims he has succeeded in disqualifying, at one time or another, every judge in the Middle District of Florida, and several in the Eighth Judicial Circuit, which includes the Gainesville area. Attorney Kaimowitz agrees with the notion that he is, "the most well-known offensive personality in the Eighth Judicial Circuit," but asserts that this reputation was not fully achieved until 2004. This self-characterization is accepted based on the evidence adduced in this case. Attorney Kaimowitz suffered a hearing loss and began using hearing aids in 1992. It is found as a fact that he hears well enough to try a case, which was demonstrated in this case. At his request, counsel table was moved close to the bench. He subsequently announced that this accommodated his hearing deficiency. Attorney Kaimowitz was arrested for causing a disturbance in a Gainesville City Commission meeting in 2002. He is very proud of being arrested. On November 16, 2004, Eighth Judicial Circuit Judge Larry Gibbs Turner entered an order entitled Sentence on Judgment of Guilty of Direct and In-Direct Criminal Contempt, following a Judgment of Guilty of eight separate allegations of direct and indirect criminal contempt on October 13, 2004. This Order recited the following language: A review of the fifteen (15) volumes of the record in this cause clearly demonstrates that throughout these proceedings Mr. Kaimowitz carefully, willfully, and with calculation and premeditation abused his status as a lawyer/pro se litigant in filing repetitious and frivolous pleadings including, but not limited to, his repeated motions to recuse every judge associated with this case. Mr. Kaimowitz's most recent effort to recuse this undersigned judge was framed by his GABE KAIMOWITZ'S APPLICATION TO DISQUALIFY JUDGE LARRY G. TURNER, FROM TAKING ANY FURTHER ACTION IN THIS MATTER - LAWFUL OR UNLAWFUL - BECAUSE THE JURIST HAS BEEN AND CURRENTLY APPARENTLY IS AN EMPLOYEE OF THE FLORIDA BOARD OF REGENTS, AND/OR ITS SUCCESSOR RESPONSIBLE FOR THE UNIVERSITY OF FLORIDA AND AFFIDAVIT/CERTIFICATE WITH GABE KAIMOWITZ'S APPLICATION TO DISQUALIFY JUDGE LARRY G. TURNER, FROM TAKING ANY FURTHER ACTION IN THIS MATTER - LAWFUL OR UNLAWFUL - BECAUSE THE JURIST HAS BEEN AND CURRENTLY APPARENTLY IS AN EMPLOYEE OF THE FLORIDA BOARD OF REGENTS, AN/OR ITS SUCCESSOR RESPONSIBLE FOR THE UNIVERSITY OF FLORIDA. The motions/applications seeking recusal of each of the judges in this cause provide ample evidence of Mr. Kaimowitz's "style" of litigation in which he intentionally confuses, obfuscates, insults, defames, and makes scurrilous and unsubstantiated claims against parties, judges, witnesses, and others related and unrelated to the litigation. Further evidence is found in his VERIFIED MOTION FOR ARREST OF JUDGMENT BASED ON FRAUD COMMITTED UPON THIS COURT. Beginning at page 10 of that motion Mr. Kaimowitz claims that he ". . . has learned that repeated motions for recusal as evidence pours in eventually tends to work in his favor. For instance, after Judge Jopling finally recused himself, Kaimowitz had little difficulty resolving at mediation the underlying cases. They were assigned to Judge Turner at the time, but all he did was agree to the parties' stipulated willingness to proceed to mediation." Over the following several pages, Mr. Kaimowitz recites his history of recusal litigation in other state and federal cases. Judge Turner permanently enjoined Attorney Kaimowitz from filing further pro se litigation in the county and circuit courts of the Eighth Judicial Circuit. Although Judge Turner based his finding on Kaimowitz v. The Florida Board of Regents, Eighth Circuit Case No. 01-1996-CA-3260, he noted a number of cases involving Attorney Kaimowitz going back to 1996, including Eighth Judicial Circuit Case No. 01-2003-CA-2400-A, Gabe Kaimowitz v. Gainesville, Florida, and the Gainesville Sun, in which Judge Toby S. Monaco outlined abuses as a basis for his dismissal of Attorney Kaimowitz's Complaint with prejudice. The Respondent and Its Executive Director, Allison Thompson TRLS exists pursuant to Title 42 U. S. Code, § 2996 et seq. It is governed, inter alia, by Title 45, Code of Federal Regulations, § 1600.1, et seq. Its mission is to provide equal access to the system of justice so that those who are otherwise unable to afford adequate counsel may have high quality legal assistance to seek redress of grievances. It receives funding from the Legal Services Corporation in Washington, D.C., the Florida Bar Foundation, United Way, and other local and national government sources. TRLS is headquartered in Gainesville, Florida, and serves eleven mostly rural counties surrounding Alachua County, as well as Alachua County. It works with other volunteer agencies and with pro bono attorneys. It is essential to the success of TRLS that it maintain cordial relations with the community and the bar. Ms. Thompson hires all of the TRLS management team. TRLS does not use an application form when seeking applicants for jobs. Advertisements for positions solicit resumes. TRLS does not maintain a "pool" of applicants for any particular job. The number of employees at TRLS fluctuates depending on funding. The racial, age, and gender composition of TRLS personnel from May 2003 to May 2004, was as follows: Whites 20 Blacks 19 Asian 2 Hispanic 2 Male 11 Female 32 Of the above, the oldest was born in 1947. Three of the above were born in that year. Since 2003, new attorney hires, (including law school graduates not admitted) were as follows: Whites 10 Blacks 6 Asian 0 Hispanic 1 Male 4 Female 13 Of these, the oldest was born in 1958. TRLS has hired, since Ms. Thompson has been Executive Director, at least one person who was over the age of 70. TRLS does not have quotas or a diversity plan that requires certain races, genders, or ages to be given preference in hiring. TRLS is guided in this regard by Title 45, Code of Federal Regulations, § 1616.1, et seq. Specifically, Title 45, Code of Federal Regulations, § 1616.6 requires that TRLS adopt, "employment qualifications, procedures, and policies that meet the requirements of applicable laws prohibiting discrimination in employment, and shall take affirmative action to insure equal employment opportunity." The hiring record of TRLS, taken as a whole, demonstrates compliance with this requirement and does not indicate any pattern of discrimination. Ms. Thompson has been the executive director of TRLS since 1996. She is an African-American. She graduated from the University of Florida Law School and was admitted to the Florida Bar in 1974. She has extensive experience in the delivery of legal services to the poor. She worked for Tampa Legal Services beginning in 1973. It became a Legal Services Corporation program while she was employed there. She began working for Rhode Island Legal Services in 1976, practicing primarily family law. Ms. Thompson worked for Philadelphia Legal Services for five years and then, beginning in 1982, worked for a number of years in the U. S. Virgin Islands where she was litigation director. She was appointed Executive Director of TRLS in December of 1996. Job applications with TRLS in 2003 and earlier Attorney Kaimowitz applied for a managing attorney position with TRLS in 1997. Ms. Thompson interviewed him and determined that he was an "interesting person" but was not the type of person who would work well with others. She concluded he would be difficult to manage. She noted that if she had a job which did not require working well with others, she might wish to hire him in the future. Attorney Kaimowitz applied for a job as a staff attorney in 2001. He received a letter dated May 13, 2001, from Ms. Thompson, advising him that he was not selected and that she would keep his resume on file. Attorney Kaimowitz responded to this letter with a letter dated August 15, 2001, that pointed out two settlements he had received from legal services programs in Florida based on their alleged discrimination against him because of his age. He also discussed his whistle blowing with regard to GOALS and stated, "I include this information to indicate that when there really is a will, there is a way." Ms. Thompson took this as a threat. Attorney Kaimowitz applied for a job as a managing attorney in the TRLS Lake City office in 2002. He was not interviewed for that position. TRLS advertised for a fair housing attorney and a fair housing testing coordinator in various publications during April 2003. Attorney Kaimowitz applied for both of these jobs. He interviewed with Ms. Thompson and Mary O'Rourke, a staff attorney with TRLS, on May 30, 2003. Ms. Thompson asked Ms. O'Rourke to sit in as a witness to the interview because she was concerned that Attorney Kaimowitz would sue TRLS if she did not hire him. Initially, Attorney Kaimowitz expressed an interest in both the fair housing attorney job and the fair housing testing coordinator job. However, during the interview Attorney Kaimowitz stated that he did not wish to apply for the fair housing attorney position, but wished to be considered only as an applicant for the fair housing testing coordinator position. The occupant of this position was expected to supervise individuals who would determine if discrimination in housing was occurring. Attorney Kaimowitz claimed during his testimony that he told Ms. Thompson and Ms. O'Rourke that his ability to hear was impaired. He claimed he told them he required an accommodation for his hearing loss. He stated that he had a discussion with Ms. O'Rourke during the interview about an electronic system where a court reporter would record words spoken, and the words would be displayed on a monitor so that he could read what was being said. Attorney Kaimowitz appeared at the interview wearing one hearing aid. Ms. Thompson said that Attorney Kaimowitz said that one of his hearing aids was "in the shop." Ms. Thompson testified that he announced during the interview that his hearing loss was corrected by his hearing aids. Ms. Thompson said it was clear that he had no difficulty in understanding her with only one hearing aid. In no event did she perceive him as being hearing impaired. Ms. O'Rourke stated that the conversation claimed by Attorney Kaimowitz regarding an electronic monitor system to aid hearing never occurred. Based on Ms. O'Rourke's testimony, Ms. Thompson's testimony, and Attorney Kaimowitz's credibility, which is addressed in detail below, it is found that at the time of this interview Attorney Kaimowitz did not claim the need for an accommodation based on an alleged hearing impairment and he was not perceived as being hearing impaired. Ms. Thompson wanted employees at TRLS who would maintain a good relationship with the local bar. Even though the housing testing coordinator position was not a job requiring the incumbent to be a licensed attorney, it is not helpful for TRLS to have employees who are at odds with the local bar or community. She was looking for an employee who was a team player, who could get along with the other employees at TRLS, the local bar, and with persons in the community. She also wanted someone with good references. The fair housing testing coordinator required training in Jacksonville. Ms. Thompson believed Attorney Kaimowitz could not be trained because, "He already knew everything." She believed he couldn't take orders. She was troubled because he had no references from people who had supervised him. Although attorneys who have their own practice cannot give references of supervisors, they usually can give a judge or judges as a reference, but Attorney Kaimowitz did not provide any judges as references. Attorney Kaimowitz provided a co-plaintiff in a lawsuit and a professor named Joe Little as references. Ms. Thompson called Professor Little but did not feel it would be worthwhile calling his co-plaintiff, who was embroiled in a lawsuit at the time. She was concerned because Attorney Kaimowitz told her, with regard to references, "everyone in Gainesville was suspect." Moreover, he did not provide any references from his time as director of GOALS, which was a job where he had a supervisor who could comment on his work. Ms. Thompson was aware of Attorney Kaimowitz's arrest during a Gainesville City Commission meeting, and was aware of at least one of his Florida Supreme Court reprimands at the time she decided not to hire him. She was also aware that he would occasionally write in "black English," and she found that offensive. She believed him to be a disruptive force. She stated she would not hire him if he was "the last man on earth." She stated that an equally obnoxious black man would often apply for positions at TRLS, and she would not hire him for the same general reasons that she would not hire Attorney Kaimowitz. Ms. Thompson thought Attorney Kaimowitz would be a liability to her organization. She noted that, "He makes comments without any basis. He makes sweeping comments when he knows nothing. He doesn't even check." Brenda Scafadi was eventually hired for the housing testing coordinator. She was, at the time, a 50-year-old white woman who had a disability in the form of fibromyalgia. She was not an attorney. She was hired because she was perceived to be a team player and she had good references. Ms. Scafadi resigned after about eight months and was replaced by Steve Malu, a 50-year-old Nigerian, who also was not an attorney. Attorney Kaimowitz was a person Ms. Thompson had personally known for about six years at the time of the interview. She also knew about him from his letters to the "Gainesville Sun" and numerous e-mails he sent to her and to others. She was aware of his reputation in the community. She refused to hire him because she did not believe he would be a good employee. Neither his age, nor his race, nor his claimed hearing loss was a factor in her decision. Attorney Kaimowitz received a letter from Ms. Thompson dated July 22, 2003, advising him that she had, "decided to offer the position to different applicants who I thought would be more appropriate for our needs." The Americorps positions On August 1, 2004, Americorps positions in Gainesville and Jacksonville were advertised. These jobs were targeted at inexperienced attorneys and paid "living expenses" and a promise of scholarship help rather than a salary. During the evening of August 2, 2004, Ms. Thompson offered testimony before the Gainesville City Commission. After her testimony she departed, although the meeting continued. After exiting the building, she heard footsteps behind her and turned to see Attorney Kaimowitz following her. There were no other people in the area. He stated that he wanted to "mediate our situation" but was informed by Ms. Thompson that there was nothing to mediate because she did not discriminate. She told him she was tired of him making disparaging comments about her program and her staff. Attorney Kaimowitz expressed an interest in the Americorps positions in an e-mail to Ms. Thompson dated August 5, 2004, which was in the nature of a resume. In this letter he said, "I certainly will refrain from any action I suggested I might take through this month of August, so that we can see if we can reach an accommodation in that time." Ms. Thompson regarded this as a threat. Ms. Thompson did not interview him for the Americorps positions because the "resume" e-mail of August 5, 2004, did not match the requirements of the job. Three of the positions were designed for attorneys TRLS could train so that they could recruit students from the law school to assist in the delivery of services. The other two positions required no litigation skills and were designed to provide limited legal services over the telephone to a large volume of clients. Another reason Ms. Thompson found Attorney Kaimowitz to be unsuitable for this job were statements he made to her, such as claiming she hired an "incompetent black male." She had seen, and was familiar with, another widely circulated writing in which he stated, "The real 'piece of work' is Three Rivers Legal Services, and their foolish young attorney of color Glorimil Walker, everyone's favorite minority attorney since she speaks her mind--even if it is against the adults and children at University Centre." The Americorps attorneys hired during this period, instead of Attorney Kaimowitz, included Shelly E. Beach, who was a 26-year-old white female, Melissa B. Long, a 29-year-old black female, and Julie A. Santioni, a 26-year-old white female. Ms. Thompson, and TRLS did not discriminate or retaliate against Mr. Kaimowitz in refusing him an Americorps position. He was not hired because the job was unsuitable for him and because he was unsuitable for employment at TRLS. Retaliation Attorney Kaimowitz's original claim of retaliation was based on his view that TRLS would not hire him because he had sued Central Florida Legal Services and that Ms. Thompson knew and would not hire him because of that lawsuit. Ms. Thompson denied this. Attorney Kaimowitz's second claim of retaliation was based on the complaint to the Commission concerning the refusal of TRLS to hire him for the fair housing testing coordinator position. For reasons that are abundantly clear herein, there were numerous reasons for not hiring him other than retaliation. Attorney Kaimowitz's Credibility Attorney Kaimowitz claims that he applied for the fair housing attorney position as well as the fair housing testing coordinator. Both Ms. Thompson and Ms. O'Rourke stated that at his interview he said he wished to apply only for the fair housing testing coordinator. Attorney Kaimowitz also claims that he informed Ms. Thompson and Ms. O'Rourke at his interview that he was hard of hearing and required an accommodation. Ms. Thompson and Ms. O'Rourke both said that during the interview he asserted that any hearing problems he had were resolved by hearing aids. Attorney Kaimowitz has demonstrated through his pleadings and actions in court, and before this Administrative Law Judge, that he has a low regard for the truth. As an example, he claims to believe in the equality of mankind, but during his examination of Ms. Thompson, he threw a document at her and stated that, "And then you could never find discrimination unless I don't want a nigger in here." As a consequence all issues involving credibility are resolved against Attorney Kaimowitz. That being the case, it is found by a preponderance of the evidence that he did not seek the fair housing attorney position in 2003 and that he did not assert during the interview that he was hard of hearing and thus required an accommodation.
Conclusions For Petitioner: Gabe H. Kaimowitz, Esquire, pro se Post Office Box 140119 Gainesville, Florida 32614-0119 For Respondent: Carla D. Franklin, Esquire 4809 Southwest 91st Terrace Gainesville, Florida 32608
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the petitions be dismissed. DONE AND ENTERED this 1st day of June, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 1st day of June, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carla D. Franklin, Esquire 4809 Southwest 91st Terrace Gainesville, Florida 32608 Gabe H. Kaimowitz, Esquire Post Office Box 140119 Gainesville, Florida 32614-0119 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services improperly awarded a contract to National Health Laboratories, Inc. for the reasons set forth in the petition.
Findings Of Fact By Invitation to Bid mailed March 26, 1993 (ITB), the Dade County Public Health Unit requested bids on an annual contract for the performance of clinical laboratory test services. The Dade County Public Health Unit is under the Department of Health and Rehabilitative Services (HRS). The contracting agency shall hereafter be referred to as HRS. The ITB called for the opening of bids on April 12, 1993. Six bids were timely submitted. The apparent low bid was submitted by National Health Laboratories, Inc. (NHL). The NHL bid was $202,271. The second low bid was submitted by Continental Medical Laboratory, Inc. (CML). The CML bid was $241,100. HRS issued a notice of intent to award the contract to NHL. CML timely protested. There is no issue as to the responsiveness of the CML bid. The only issue as to the responsiveness of the NHL bid concerns the matters raised by CML. CML's petition alleges that the bid of NHL was defective because the Sworn Statement Pursuant to Section 287.133(3)(a), Florida Statutes, on Public Entity Crimes (Public Entity Crime Affidavit) was incomplete, an agreement attached to the Public Entity Crime Affidavit did not relieve NHL from disqualification concerning CHAMPUS fraud, and NHL should be disqualified from bidding because it failed timely to inform the Department of Management Services of the company's conviction of a public entity crime. Paragraph 10 of the General Conditions of the ITB allows HRS to "waive any minor irregularity or technicality in bids received." However, special conditions provide, in part: PUBLIC ENTITY CRIMES Any person submitting a bid or proposal in response to this invitation must execute the enclosed [Public Entity Affidavit], including proper check(s), in the space(s) provided, and enclose it with the bid/proposal. Failure to complete this form in every detail and submit it with your proposal will result in immediate disqualification of your bid. The Public Entity Crime Affidavit completed by NHL and submitted with its bid was executed and notarized on April 9, 1993. Paragraph six of the form affidavit states: Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Indicate which statement applies.] Neither the entity submitting this sworn statement, nor any of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members or agents who are active in the management of the entity, or an affiliate of an entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. However, there has been a subsequent proceeding before a Hearing Officer of the State of Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer determined that it was not in the public interest to place the entity submitting this sworn statement on the convicted vendor list. [attach a copy of the final order] The next paragraph of the Public Entity Crime Affidavit form states: I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH I (ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS FORM. In completing the Public Entity Crime Affidavit, NHL penned in, just over the second alternative that discloses a conviction, "See Attached." The attachment was a copy of an Agreement dated December 31, 1992, between NHL and the "state of Florida" (Settlement Agreement). The agreement was executed by an NHL officer and the Director, Medicaid Fraud Control Unit of the Auditor General Office. The Auditor General's Office is not part of the Department of Management Services. The Settlement Agreement concerns invoices from NHL to the Florida Medicaid program for certain cholesterol and iron tests from January 1, 1987, through November 30, 1992. The Settlement Agreement requires NHL to pay as restitution to the State of Florida $1,470,917. In return, the state of Florida, for itself and on behalf of its agents and assigns, will release and forever discharge NHL, its current or former officers, directors, employees, agents, shareholders, affiliates, assigns and successors from any and all claims, actions, demands or causes of action including penalties or interest against any of them, either civil or criminal, as regards Medicaid reimbursement [for certain cholesterol and iron tests] between January 1, 1987 and November 30, 1992, except that nothing contained in this Settlement Agreement shall preclude the state Medicaid program from seeking recoupment of payments made [for certain cholesterol tests] during the period covered by this Settlement Agreement, subject to the understanding that NHL will contest any such recoupment action on the grounds that such payments were appropriate. The Settlement Agreement also provides: The state of Florida agrees that neither the Settlement Agreement nor any federal criminal conviction or other sanction of the corporation or a current or former officer or employee of NHL as regards claims for Medicaid reimbursement [for certain cholesterol and iron tests] [b]etween January 1, 1987 and November 30, 1992 will be the basis for a state exclusion of NHL from the Florida Medicaid program. NHL is a company that provides laboratory testing nationally and receives payment for many of its services from government sources, such as Medicaid, Medicare, or CHAMPUS. CHAMPUS is the Civilian Health and Medical Program of the Uniformed Services. During the period of 1987 through 1992, NHL supplied certain cholesterol and iron testing, in addition to that specifically requested by the health-care provider, at little or no cost to the health-care provider. But NHL invoiced various government payors at higher rates. On December 18, 1992, NHL entered guilty pleas to two counts of criminal fraud involving these practices as they concern the CHAMPUS program. These pleas were the bases of a conviction and sentence that included a criminal fine of $1,000,000. One or two former officers entered guilty pleas to charges of criminal fraud involving these practices as they concern the Medicaid program. As part of the settlement, NHL paid the United States the sum of $100,000,000. At the same time, NHL was negotiating with various states, including Florida, with respect to the above-described billing practices. On December 8, 1992, the Director of the Medicaid Fraud Control Unit in the Florida Office of the Auditor General wrote a letter to NHL confirming a proposed settlement. The conditions of the settlement are incorporated in the above- described Settlement Agreement. On December 17, 1992, the Assistant Secretary for Medicaid in HRS mailed a letter to NHL agreeing that HRS would not take administrative action for the above-described cholesterol and iron claims submitted for reimbursement by NHL to the Florida Medicaid program. NHL did not inform the Department of Management Services of the guilty plea, conviction, and $1,000,000 criminal fine. However, based probably on information received in early February 1993 from another governmental entity in Florida, the Department of Management Services, on February 8, 1993, sent a letter to NHL advising it that the Department had received information that NHL had been convicted of a public entity crime and requesting copies of the charges and final court action. NHL complied and the Department's investigation is continuing. On February 18, 1993, HRS Deputy Secretary for Health, sent a memorandum to all of the County Public Health Units directors and administrators advising them of concerns about laboratory fraud and attaching a recent report concerning the NHL case. The report described the NHL guilty pleas, conviction, and sentencing, as well as the business practices that led to the prosecution. By memorandum dated March 18, 1993, HRS Assistant Secretary for Medicaid informed HRS Depute Secretary for Health that the Auditor General had entered into the Settlement Agreement. The memorandum states that, on December 17, 1992, the Assistant Secretary signed an agreement with NHL not to terminate it from the Florida Medicaid program, which was the "same treatment afforded many other providers--including [County Public Health Units]--who overbilled the Medicaid program. The Assistant Secretary's memorandum describes the settlement as requiring NHL to make "full restitution," although the $1.4 million in restitution involves only the iron test and the State of Florida and NHL may still litigate whether any reimbursement is due for the cholesterol tests. The failure of NHL to check the second alternative on the Public Entity Crime Affidavit did not confer an economic advantage on NHL in the subject procurement. The material attached to the affidavit sufficiently informed HRS of the criminal conviction of NHL. Likewise, the omission of any mention of CHAMPUS claims in Paragraphs two and three of the Settlement Agreement did not confer any economic advantage on NHL in the procurement. The purpose of mentioning only Medicaid in the Settlement Agreement is that Florida has no jurisdiction over the CHAMPUS program. NHL was concerned only that Florida not terminate NHL's participation in the program over which Florida had jurisdiction--the Medicaid program. These references to "Medicaid reimbursement" are merely descriptive and are not intended to limit the scope of the exoneration purportedly effectuated in the Settlement Agreement.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order dismissing the bid protest of Continental Medical Laboratory, Inc. ENTERED on August 24, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3951BID Treatment Accorded Proposed Findings of Respondent and Intervenor 1-8 and 11: adopted or adopted in substance. 9-10 and 12-15: rejected as subordinate. 16-31: adopted or adopted in substance. 32-37: rejected as subordinate and irrelevant. 38-43 and 45-48: rejected as irrelevant and legal argument. 44: adopted. 49-50: adopted as to absence of material variations. 51: rejected as subordinate and recitation of evidence. Treatment Accorded Proposed Findings of Petitioner 1-14 and 16-17: adopted or adopted in substance. 15: rejected as legal argument and unsupported by the appropriate weight of the evidence. 18-21: rejected as subordinate, repetitious, and legal argument. 22-27: adopted in substance. 28: rejected as irrelevant. 29 (first sentence): rejected as repetitious and irrelevant. 29 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 30: adopted, but the period of the delay of DMS review in this case was too short to make any difference. 31: rejected as unsupported by the appropriate weight of the evidence with respect to a delay of such a short duration. 32: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133. 33: rejected as legal argument inviting a remedy far in excess of any remedy provided for or envisioned by 287.133, at least under the facts of the present case. 34: rejected as irrelevant. 35: rejected as legal argument and unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Geoffrey Kirk Adorno & Zeder, P.A. 2601 S. Bayshore Dr., Ste. 1600 Miami, Florida 33133 Morton Laitner, District Counsel District 11 Legal Office 401 NW 2d Ave., Ste. N-1014 Miami, Florida 33128 Thomas F. Panza Seann Michael Frazier Panza, Maurer 3081 E. Commercial Blvd., Ste. 200 Ft. Lauderdale, Florida 33308 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert L. Powell Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact The parties stipulated that respondent Charles Moore was certified by the Criminal Justice Standards and Training Commission on October 2, 1968, and was issued Certificate Number 10-2-68-G. Prologue Christina Marie Hechler and his girlfriend Teresa Hammic worked at "the first rest area before you get to Lake Buena Vista exit" (T.21) in July of 1984. One day that July, they were talking before work, when Mr. Moore, whom neither knew at the time, approached and "made some . . . different little suggestions . . . He wanted . . . [the young women] to have sex together while he watched." (T.22) Their conversation over, Mr. Moore left with Ms. Hechler's telephone number. In addition to performing her duties at the rest area, Ms. Hechler worked as a confidential informant under the direction of Russell Bernard Permaul, at the time assigned to the Narcotics Section of the Orange County Sheriff Department's Metropolitan Bureau of Investigation. Ms. Hechler, who spent time with Mr. Permaul socially as well as professionally, told him on May 3, 1985 that "she knew of someone that did the same work [he] did that was involved in cocaine." (T.45) On May 6, 1985, she told Mr. Permaul the man she had referred to three days earlier was Mr. Moore, and that, at unspecified times and places, she "was present when he snorted cocaine, and that he had offered cocaine to her and a friend for unknown sexual acts." (T.45) On May 16, 1985, Ms. Hechler gave Mr. Permaul a foil packet containing cocaine. At hearing, she testified that Mr. Moore brought the packet to her at her grandmother's house but neither fingerprints nor anything else, aside from her testimony, linked Moore to the cocaine. Ms. Hechler's grandmother was unable to pick respondent out of a "photo lineup." (T.36). Mr. Permaul did not feel Ms. Hechler's information "was reliable enough . . . to come out and arrest." (T.60) The First Investigation But Mr. Permaul apprised his superiors of the situation, and they authorized him to begin an investigation. To this end, he enlisted a female police officer from Kissimmee and arranged for Ms. Hechler to introduce her to Mr. Moore outside "the Triple X Movie Theater on Orange Blossom Trail," (T.47) on Friday, May 17, 1985. Ms. Hechler worked at the theater at the time. A listening device in Ms. Hechler's pocketbook malfunctioned, so no recording was made of what turned out, in any event, to be a very short meeting. The next day, Ms. Hechler later told Mr. Permaul, she sought out Mr. Moore on her own, who told her that the woman she had been with the day before was a deputy sheriff. He also reportedly told her "that if anybody from . . . Department Internal Affairs . . . contacted her . . . to tell them that she has no idea what's going on (T.49) At this point the Metropolitan Bureau of Investigation "didn't feel there would be any merit to proceeding with a criminal investigation any further." (T.88) Along with Mr. Permaul, Tony Randall Scoggins, a sergeant with the Orlando Police Department who was supervisor in charge of internal affairs investigators, had watched while Ms. Bechler introduced the undercover female law enforcement officer to respondent Moore at the Fairvilla Triple X Theater. Moore was employed by the Orlando Police Department at the time, and the Orlando Police Department wanted to determine whether he should continue as a police sergeant. After the Metropolitan Bureau of Investigation decided not "to do anything more with it right now," (T.88) Sgt. Scoggins turned the matter over to Lt. William Kennedy of the Orlando Police Department to pursue a criminal investigation "before he got into the thing administratively." (T.92). The Second Investigation On September 3, 1985, Lt. Kennedy and Sgt. Jacobs assigned Agent Gary Rowell and Carey Farney, then a narcotics agent attached to the Orlando Police Department's special investigations division, to conduct a criminal investigation of respondent Moore. Sgt. Scoggins introduced them to Ms. Hechler, whom they instructed to telephone Sgt. Moore, even though she had not been in touch with him for four or five months. She made several telephone calls from various pay telephones, which the investigators tape recorded. Sgt. Moore "was suspicious that [Ms. Hechler] was possibly working [as a confidential informant.] He mentioned the MBI. It was like he wanted to talk to her, but he wasn't quite sure [whether] she was safe or not. (T.67) There were no specific offers to sell or provide cocaine during these conversations. Meanwhile Agent Farney approached Carol Lee Jones, who worked as a horse arrest officer for the Department of Corrections, to participate in an undercover "operation directed against Sgt. Moore." Allegedly, Sgt. Moore was interested in having a menage a trois arrangement with Chistina Hechler . . . . [Ms. Jones] was to be the third person. And in exchange for the sex act there would be an exchange of cocaine. (T.8) The "initial game plan was to have Carol Jones go undercover with Christine Hechler, and . . . see if Sgt. Moore would deliver cocaine ultimately to Carol Jones." (T.65) Ms. Hechler agreed to introduce Ms. Jones to Sgt. Moore, in furtherance of this plan. Sgt. Moore told Ms. Hechler he "would be working at the Howard Johnson's" (T.70) on Saturday night, September 14, 1985. September 14-15, 1985 Agent Farney rented a customized van in which he, Lt. Kennedy and Sgt. Jacobs followed Ms. Hechler and Ms. Jones to Howard Johnson's on September 14, 1985, or maybe a little past midnight on the morning of the 15th. Before setting out, they had furnished the women transmitters "the size of a cigarette pack, maybe a little smaller" (T.73) or bugs which they concealed on their persons or in their purses. The women parked their car and went into the motel's lounge in search of respondent Moore. The policemen parked behind the motel, out of view, with receivers and tape recorders ready to monitor any transmissions from the "bugs." Eventually Mr. Moore, dressed in full Orlando Police Department regalia, left the lounge to follow the women into the parking lot, where he and Ms. Hechler joked about her being an undercover agent. Agent Farney, listening from the van "believe[d] Christina and Charlie Moore were doing most of the talking. When they get outside Charlie Moore asks her, "[D]o you have a bug in your purse?" [Agent Farney] couldn't' understand what her answer was And then he asked her, "[D]o you want to buy some cocaine?" And she says, [Y]eah" or "[Y]es," or something to that [e]ffect. He asked her again, "Do you want to buy some coke?" . . . [H]e said "coke" both times [Farney believed, on reflection) . . The second time he said, "Do you want to buy some coke?," and she says, "Yeah, I sure do." And then they're giggling as they're walking along talking. Basically it's Christina and Charlie Moore doing the talking now. And for whatever reason Christina didn't pursue the coke issue, and then they make arrangements to get together later on . . . another date. And . . . [the women] get in their car and leave. (T.77) At least in the opinion of Agent Farney, this conversation did not give probable cause to believe that Sgt. Moore had been guilty of a crime, including, "[s]ome sort of solicitation to commit a crime" (T.85-86), so as to justify either his arrest or the filing of charges with the state's attorney's office. (T.84) Epilogue On September 24, 1985, Ms. Hechler accused respondent Moore of perpetrating a sexual battery on her person, and the Chief of Police immediately suspended Sgt. Moore. Administrative proceedings eventuated in disciplinary action on account of the alleged battery, but concluded with a finding that no drug offense was established. No criminal prosecution was instituted on either charge.
The Issue Whether the Respondent committed the offense alleged in the Administrative Complaint dated March 9, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers in Florida. See §§ 943.12(3) and 943.1395, Fla. Stat. (2004). Mr. Rendon is a Florida-certified law enforcement and corrections officer. Mr. Rendon's first contact with Sheila Smith and Kimberly Ann Sturtz, Mrs. Smith's daughter, was in November 1998, when Ms. Sturtz called the police after an argument with her mother. At all times material to this proceeding, Ms. Sturtz was a child under 16 years of age. In December 1998, Mr. Rendon was dispatched to the Smith residence when Mrs. Smith called the police as a result of a fight with her son, Travis Caley. Mr. Rendon arrested Travis on December 2, 1998, and Travis was subsequently placed in a foster home. Mr. Rendon developed an interest in Travis and the Smith family, and he periodically contacted a representative of the Florida Department of Children and Family Services to check on Travis's situation. Mr. Rendon also talked to Travis on the telephone. Mr. Rendon often telephoned Mrs. Smith or went to the Smith residence to give her news about Travis, and Mrs. Smith often telephoned Mr. Rendon. Mr. Rendon had Mrs. Smith's and Kimberly's cell phone and pager numbers, and he used a code when he paged them, so they would know to call him back. He frequently paged Kimberly during the day. Mr. Rendon visited the Smith residence several times when Mr. and Mrs. Smith were home. He also stopped at the Smith residence when Mr. and Mrs. Smith were not at home and Ms. Sturtz was at the residence alone or with a friend named Alicia Cox, who lived across the street from the Smith residence. During these visits, Ms. Sturtz and Mr. Rendon talked but generally stayed outside the house, on the porch or in the yard. Mr. Rendon's visits to the Smith residence were not as frequent between February and April 1999, during the time Mr. Rendon was assigned to patrol an area of Lake County that was a considerable distance from the Smith's residence. His visits increased after April 1999, when he was assigned to patrol an area that included the Smith's residence. During this time, he often visited Ms. Sturtz when her parents were not at home. On May 27, 1999, Mr. Rendon stopped at the Smith's residence at a time when Ms. Sturtz was alone. Mr. Rendon and Ms. Sturtz sat on the porch for a while, talking. During this conversation, Ms. Sturtz told Mr. Rendon that she had a "crush" on him. Ms. Sturtz and Mr. Rendon subsequently entered the house, where Mr. Rendon asked Ms. Sturtz what she would do if he kissed her; Ms. Sturtz told him that she would probably kiss him back. Ms. Sturtz's back was against the wall inside the door, and Mr. Rendon held Ms. Sturtz's hands over her head; he kissed her; asked her to stick out her tongue so that he could suck on it; ran his hands down the sides of her body, grazing the sides of her breasts; lifted her skirt; licked and kissed the area around her navel; and stuck his tongue in her navel. Ms. Sturtz became frightened and asked Mr. Rendon to stop, which Mr. Rendon did. Ms. Sturtz observed that Mr. Rendon appeared to be sexually aroused during the incident and had a wet spot on the front of his trousers. Ms. Sturtz was 14 years old at the time of this incident. Mr. Rendon was arrested on June 9, 1999, for lewd and lascivious conduct with a child under 16 years of age. On or about October 13, 2000, Mr. Rendon entered a plea of nolo contendere to two charges of misdemeanor battery, defined in Section 784.03, in the Circuit Court of the Fifth Circuit in Lake County, Florida. These charges were based on the incident involving Ms. Sturtz that took place at the Smith residence on May 27, 1999. A judgment was entered adjudicating Mr. Rendon guilty of these crimes. The evidence presented by the Commission is sufficient to establish that Mr. Rendon failed to maintain good moral character. He touched Ms. Sturtz in a lewd and lascivious manner on May 27, 1999, and his actions also constituted misdemeanor battery.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that David Rendon failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (1999), and that his certification as a law enforcement officer should be revoked. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 30th day of June, 2005.
