18-000811
Department Of Elder Affairs, Office Of Public And Professional Guardians vs.
Elizabeth Seldon Savitt
Status: Closed
Recommended Order on Friday, December 21, 2018.
Recommended Order on Friday, December 21, 2018.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF ELDER AFFAIRS,
12OFFICE OF PUBLIC AND
16PROFESSIONAL GUARDIANS,
18Petitioner,
19vs. Case No. 18 - 0811
25ELIZABETH SELDON SAVITT,
28Respondent.
29_______________________________/
30RECOMMENDED ORDER
32Pursuant to notice, a formal administrative hearing was
40conducted before Administrative Law Judge Mary Li Creasy in West
50Palm Beach , Florida, on September 5 through 7 , 2018.
59APPEARANCES
60For Petitioner: Michael McKeon, Esq uire
66Department of Elder Affairs
704040 Esplanade Way
73Tallahassee, Florida 32399 - 7000
78For Respondent: Ellen S. Morris, Esq uire
85Elder Law Associates , P . A .
927284 West Palmetto Park Road, Suite 101
99Boca Raton, Florida 33433
103STATEMENT OF THE ISSUE S
108Whether Respondent, a professional guardian ("PG") , engaged
117in the violations alleged in the Amended Administrative
125Complaint; and, if so, what is the appropriate penalty.
134PREL IMINARY STATEMENT
137On February 14, 2018, the Department of Elder Affairs,
146Office of the Public and Professional Guardian ("OPPG") filed an
158Administrative Complaint with the Division of Administrative
165Hearings ("DOAH") alleging that Petitioner, Elizabeth Sel don
175Savitt, violated various provisi ons of chapter 744, Florida
184Statutes , which governs the appointment and conduct of public
193guardians, and seeking suspension or revocation of her PG
202registration.
203The matter was initially set for final hearing April 25
213th rough 27, 2018. The parties jointly sought, and were granted,
224a continuance of the final hearing until July 26 and 27, 2018.
236The parties filed a second motion for continuance , which wa s
247granted , and the matter was re set for September 5 through 7,
2592018. On August 29, 2018, OPPG filed a Motion for Leave to Amend
272Complaint and C ontinue Final Hearing . The amendment was not
283opposed , but the continuation w as opposed by Petitioner. The
293m otion to amend was granted and the motion to continue the
305hearing was den ied. The final hearing took place as scheduled on
317September 5 through 7, 2018, on the Amended Administrative
326Complaint ("Amended Complaint").
331OPPG presented five witnesses: Petitioner; Anthony
337Palmieri, inspector from the Clerk of the Circuit Court for Palm
348Beach County ("Circuit Court"); Twyla Sketchly, Esquire, expert
358in guardianship and probate law; Sheri Hazeltine, Esquire; and
367the Honorable Stephen Cohen (retired), expert in guardianship
375matters and court monitor for the Clerk of the Circuit Court.
386Pet itioner's Exhibits 1 through 14 and 16 were admitted.
396Respondent presented two witnesses: the Honorable Martin H.
404Colin (retired), Respondent's husband; and Amy B. Bellar,
412Esquire, an expert in guardianship matters. Respondent's
419Composite Exhibits 1 and 2 were admitted.
426The four - volume Transcript of the final hearing was filed
437with DOAH on September 27, 2018. Both parties requested, and
447were granted, an extension of time within which to file their
458proposed recommended orders, which were taken into co nsideration
467in the drafting of this Recommended Order.
474Except as otherwise indicated, citations to Florida Statutes
482or rules of the Florida Administrative Code refer to the versions
493in effect at the time of the alleged violations.
502FINDING S OF FACT
5061. OPPG was statutorily created , effective March 10, 2016,
515and charged with oversight of registered professional guardians
523in Florida, including, but not limited to, "[ e]stablishing
532disciplinary proceedings, conducting hearings, and taking
538administrative action pursuant to chapter 120 . " Prior to that
548time, the oversight of PGs was the province of the circuit courts
560in which they were appointed.
5652. PGs are appointed by the court to serve as legal
576decision - makers for persons determined incapacitated by the cou rt
587(commonly referred to as " wards " ) , who are unable to make
598decisions that affect their health, safety, and well - being. PG s
610are fiduciaries entrusted with the care of the wards that they
621serve, and , as such , have an implied duty to act in good faith.
634T he p roper conduct and management of guardianship cases requires
645that guardians must be independent and impartial.
6523. PGs appear in court on behalf of their ward through an
664attorney hired by the PG. In order to be appointed as a PG for a
679particular ward, th e PG is required to file an application with
691the court. Respondent used the services of attorneys Sherry
700Hazeltine and Ellen Morris to represent her in guardianship and
710guardian advocate 1/ cases.
7144. Prior to becoming a PG, Respondent worked with the
724elde rly and had a strong interest in serving children with
735disabilities and their families. In 2010, Respondent took the
744requisite 40 Î hour course, passed an exam, and applied for and was
757granted registration as a PG for Palm Beach County.
7665. Since 2010, Re spondent acted as a PG or guardian
777advocate who was paid for her services, except for cases in which
789she agreed to serve pro bono. For any case in which Respondent
801sought compensation as a PG, her billing statement was reviewed
811by a case manager, the Circ uit C ourt's auditor, and then was
824approved by the judge assigned to the case.
8326. In 2012, prior to the enactment of the statute creating
843the OPPG for purposes of overseeing PGs, the Circuit Court
853Clerk's Division of Inspector General ("IG"), Investigator
862Anthony Palmieri, began an investigation of Respondent and her
871practices as a PG. Mr. Palmieri believed Respondent had a
881conflict of intere st serving as a PG in the same d ivision in
895which her husband, Martin H. Colin, served as a judge.
9057. Mr. Palmieri also examined Respondent's friendship with
913her husband's colleague, Judge David French, who presided over
922some of Respondent's cases. Mr. Palmieri also investigated
930Respondent's practice of taking retainers before se r vices were
940rendered in some of her gu ardianship cases.
9488. On December 8, 2017, Mr. Palmieri provided his
957Investigation Report ("Report") concerning Respondent to OPPG.
966The Report served as a basis for drafting the Complaint and
977Amended Complaint in this matter. At no time prior to the
988in itiation of this action by OPPG against Respondent was she
999notified that the IG's office was concerned about any of her
1010practices as a PG.
1014Possible Conflict of Interest -- Judge Colin
10219. At all times material hereto, Respondent was married to
1031then Circuit C ourt Judge Martin H. Colin, who served in the South
1044County C ourthouse in the Probate and Guardianship Division until
10542015, when he transferred to the Circuit Civil Division. Judge
1064Colin retired in 2016.
106810. When Respondent became a PG serving in Palm Bea ch
1079County, Judge Colin raised the issue of a possible conflict of
1090interest, or appearance of a conflict, with his Chief Judge,
1100Judge Peter Blanc. Judge Blanc told Judge Colin that there would
1111be no conflict, or appearance of conflict, as long as he did no t
1125handle Respondent's cases. Further, if any other Circuit Court
1134judge was concerned about a conflict, or perceived conflict, with
1144Respondent serving as a PG in one of their cases, they could
1156recuse themselves.
115811. The Probate and Guardianship Division o f the Circuit
1168Court handles one of the largest guardianship dockets in Florida.
1178Employees in the Clerk's Office were made aware of the marital
1189relationship between Judge Colin and Respondent, and avoided
1197assigning cases involving Respondent as the PG to J udge Colin.
1208If Respondent entered into an existing case which was previously
1218assigned to Judge Colin, he internally transferred the case to
1228another judge. 2 /
123212. Judge Colin had no role in appointing Respondent to
1242guardianship cases. Generally the family or the attorney
1250representing the ward designates who they would like to use as a
1262guardian. Prior to the implementation of a random "wheel"
1271process in guardianship cases in 2016, it was up to the judge to
1284designate a PG if one was not designated by the pa rty or their
1298lawyer. No evidence was presented that Judge Colin designated
1307Respondent as a PG for any cases in which he presided.
131813. Like the other Circuit Court judges, Judge Colin
1327periodically served as the "duty judge" for purposes of signing
1337routine orders when the presiding judges in cases were
1346unavailable. In this capacity, Judge Colin signed between two to
1356four thousands orders in guardianship and probate cases between
13652010, when Respondent became a PG, and 2015, when he changed
1376divisions.
137714. O PPG makes much of the fact that over this time, Judge
1390Colin signed seven orders in cases in which Respondent served as
1401the PG. The Amended Complaint , paragraph 12 , alleges that,
" 1410Respondent failed to take any action to have Judge Colin removed
1421as the judg e formally assigned to guardianship and/or guardian
1431advocacy cases to which she was appointed. " However, neither
1440Respondent nor Judge Colin had any control of which orders he was
1452tasked to sign as duty judge.
145815. Two of the seven orders presented by OP PG do not
1470contain Respondent's name as an individual to be served with a
1481copy of the order. Although Attorney Hazeltine's name appears on
1491the service list for these orders, Attorney Hazeltine represented
1500other PGs in addition to Respondent. Seeing Attorn ey Hazeltine's
1510name alone would be insufficient to alert Judge Colin to his
1521wife's involvement in a case. Further, all of these orders were
1532on routine, uncontested matters. Judge Colin convincingly
1539testified that had he been aware of his wife's involveme nt in any
1552of these cases, he would not have signed the order to avoid any
1565appearance of impropriety.
156816. The Amended Complaint repeatedly asserts that
1575Respondent failed to disclose "the conflict of interest inherent
1584in her relationship to Judge Colin." R espondent denies that
1594there is any inherent conflict due to her marital relationship
1604with Judge Colin. Both Judge Colin and Respondent testified that
1614at no time was any conflict or potential conflict brought to
1625their attention by any litigants, lawyers, o ther judges, or the
1636IG's office.
163817. However, it is undeniable t hat there would be at
1649minimum an appearance of a conflict if Judge Colin presided over
1660cases to which Respondent was assigned as a PG. As explained by
1672OPPG's experts, Attorney Sketchly and J udge Cohen, the marital
1682privilege protects communications between spouses. If Judge
1689Colin presided over Respondent's cases as a PG, they could have
1700ex - parte c ommunications that would not be discoverable. It is
1712possible that they could discuss the merits of the guardianship
1722case , as well as the fee petition of Respondent as the PG.
173418. In fact, this potential for conflict was discussed in
1744Baez v. Koelemij , 960 So. 2d 918, 919 (Fla. 4th DCA 1992), a case
1758in which Judge Colin was directed to be removed on a motion for
1771disqualification because the movant's op posing counsel also
1779represented Judge Colin's then - girlfriend, Respondent. Noting
1787that the judicial canons did not require the disclosure by Judge
1798Colin of his relationship with Respondent because they w ere not a
1810spouse or a relative of the third degree, the court ruled, " the
1822mere fact that neither the canon nor the rule require
1832disqualification or disclosure where the opposing counsel
1839represented a "girlfriend" of a judge, disqualification is still
1848appro priate where a reasonable litigant would have a well -
1859grounded fear of not receiving a fair trial.
186719. While the judicial canons do not apply to PGs, as a
1879fiduciary, PGs have a duty of independence and impartiality.
1888Because of this special role between th e PG and ward, the PG
1901should disclose any relationship that creates a conflict or
1910potential conflict of interest. Disclosure must include mate rial
1919facts sufficient to allow a ward, a residual beneficiary, the
1929court, or any other interested party, to make an informed
1939decision regarding the appearance of conflict.
194520. Respondent completed an application for appointment in
1953every case for which she served as a PG or guardian advocate. In
1966response to the application form ' s request to identify spouse,
1977Responde nt answered, "Martin H. Colin." According to Respondent,
1986this disclosure was sufficient because the lawyers in the case
1996and the courthouse staff were aware of her marriage to Judge
2007Colin, and the wards were too incapacitated to read or understand
2018the appl ication.
202121. However, this simple identification of Judge Colin by
2030his proper name was insufficient to put the ward, their family
2041members, out - of - county lawyers, or other interested persons on
2053notice of the potential conflict. Respondent should have
2061id entified her spouse as Judge Martin H. Colin, of the Circuit
2073Court, Probate and Guardianship Division.
207822. Significantly, no evidence was presented during the
2086final hearing to demonstrate that Respondent benefited from this
2095failure to adequately disclose her marriage to Judge Colin, or
2105that her wards or other interested parties were in any way
2116harmed. However, failure to adequately disclose a conflict, or
2125appearance of conflict, erodes the public's confidence in the
2134guardianship system.
2136Possible Conflict of Interest -- Judge French
214323. Prior to Respondent's becoming a PG in 2010, she
2153developed a friendship with her husband's colleague,
2160Judge French, and his then wife. Judge French also served in the
2172Probate and Guardianship Division of the Circuit Cou rt.
218124. Respondent and her husband vacationed as the guests of
2191Judge French and his wife on one occasion for a weekend, sometime
2203between 2006 and 2008. The couples also planned a cruise
2213together that did not happen. No other evidence was presented
2223regarding whether Judge French and Respondent socialized on any
2232other occasion. Respondent testified she did not socialize with
2241Judge French.
224325. The fact that Respondent and Judge French traveled
2252together one time does not demonstrate a conflict or potential
2262conflict of interest. Accordingly, Respondent had no obligation
2270to disclose a social friendship that she did not believe would
2281pose a conflict. Importantly, although Judge French presided
2289over cases in which Respondent served as a PG or guardi an
2301advocate, at no time did he feel he had to remove himself, or
2314otherwise transfer, a case in which Respondent was the PG.
2324Presumably, Judge French believed that despite this social
2332relationship, he could remain impartial and that his relationship
2341with R espondent did not create a conflict or the appearance of a
2354conflict.
2355Improper Taking of Retainers by Respondent
236126. PGs have a special relationship with their wards. As a
2372fiduciary, they have a duty of loyalty and an obligation to at
2384all time s act i n the best interests of their wards, and not for
2399personal gain. See § 744.361, Fla. Stat. PGs are prohibited
2409from borrowing money from their wards. See § 744.454, Fla. Stat.
2420S ec tion 744.108 mandates that guardianship fees must be approved
2431by the court prior to payment. Subsection (1) specifica lly
2441recognizes that a guardian " is entitled to a reasonable fee for
2452services rendered and reimbursement for costs incurred on behalf
2461of the ward. " (emphasis added). This language is in the past
2472tense, and does no t make any allowance for payment of advance
2484fees or retainers.
248727. According to Attorney Sketchly, Judge Cohen, and
2495Mr. Palmieri, PGs normally prepare periodic bills showing
2503services rendered and the amount of time spent which are
2513submitted to the co urt. After a bill is reviewed by a case
2526manager and the court auditor, it is then submitted to the
2537presiding judge for approval. Only after the bill is approved by
2548the court can fees be paid to the PG.
255728. Attorney Sketchly, Judge Cohen, and Mr. Pa lmieri , in
2567their combined decades of experience, were not aware of any PGs
2578in Florida taking fees prior to court approval. Respondent's
2587expert, Attorney Amy Beller, also testified that it is never
2597permissible for a PG to take a loan from a ward's estate.
260929. In three cases between April 2012 and July 2015, 3/
2620Respondent, acting as a PG or guardian advocate, requested and
2630received "retainers" 4/ for future anticipated services, without
2638prior court authorization. Two retainers were taken in the
2647amounts of $1,000.00, and one was take n in the amount of
2660$2,500.00. Respondent had no set business practice to establish
2670on which cases retainers would be sought or for what amount.
2681Respondent had no written retainer agreements with her clients.
2690Respondent test ified she did this occasionally when she
2699anticipated there would be a lot of work up front on the case.
271230. The retainers charged by Respondent were reflected as a
2722credit on the bills submitted to the Circuit Court for approval.
2733No notation was co ntained on the bill as to when the retainer was
2747collected. Respondent did not recall whether the retainers were
2756collected prior to her appointment as PG or before services were
2767provided. The bills for these cases in which retainers were
2777taken were ultima tely approved by the Circuit Court.
278631. Section 744.446(2) provides that:
2791(2) Unless prior approval is obtained by
2798court order, or unless such relationship
2804existed prior to appointment of the guardian
2811and is disclosed to the court in the petition
2820for appointment of guardian, a guardian may
2827not:
2828(a) Have any interest, financial or
2834otherwise, direct or indirect, in any
2840business transaction or activity with the
2846guardianship;
2847(b) Acquire an ownership, possessory,
2852security, or other pecunia ry interest adverse
2859to the ward[.]
286232. By taking money fr om the ward prior to providing any
2874services and prior to court approval, Respondent created a
2883conflict of interest. Once Respondent took a retainer from her
2893client, she then had a financial interest at stake in seeing her
2905fees were approved.
290833. Att orney Sketchly explained that these retainers
2916appeared to be loans to Respondent. The round numbers, randomly
2926taken as "retainers," without any billing prior to the taking of
2937the retainer, or court authorization, suggest Respondent used
"2945retainers" becaus e she needed the money. This constitutes a
2955breach of fiduciary duty, is contrary to the best interests of
2966the ward, and creates a financial interest in the guardianship,
2976whi ch are prohibited by section 744.446 . By using retainers,
2987Respondent abused her p ower as a guardian.
2995CONCLUSIONS OF LAW
29983 4 . DOAH has jurisdiction over the subject matter of and
3010the parties to this proceeding pursuant to sections 120.569 and
3020120.57(1), Florida Statutes (2018).
302435. As of March 10, 2016, OPPG was created and given
3035overs ight responsibilities for all professional guardians. See
3043§ 744.2001 , Fla. Stat .
304836. In this case, OPPG seeks to revoke Respondent's
3057registration as a PG and potentially affect RespondentÓs
3065livelihood. As such, OPPG has the burden of proving its
3075allegat ions with clear and convincing evidence. See Ferris v.
3085Turlington , 510 So. 2d 292, 295 (Fla. 1987)(establishing clear
3094and convincing evidence standard for license revocation
3101proceedings).
310237. "Clear and convincing evidence" means that the evidence
3111must b e found to be credible, the facts to which the witnesses
3124testify must be distinctly remembered, the testimony must be
3133precise and explicit, and the witnesses must be lacking in
3143confusion as to the facts in issue. The evidence must be of such
3156weight that i t produces in the mind of the trier of fact a firm
3171belief or conviction, without hesitancy, as to the truth of the
3182allegations sought to be established. Slomowitz v. Walker , 429
3191So. 2d 797, 800 (Fla. 4th DCA 1983).
319938. OPPG ' s specific allegations are con tained in the
3210Amended Complaint . This tribunal may consider only the
3219allegations in the Amended Complaint because predicating
3226disciplinary action against a licensee on conduct never alleged
3235in an administrative complaint , or some comparable pleading ,
3243viol ates the Administrative Procedure Act. Cottrill v. Dep't of
3253Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Similarly, due
3265process requires that only the allegations in an administrative
3274complaint may be considered in imposing disciplinary sanctions.
3282M atters not charged in an administrative action cannot be
3292considered as violations. See Chrysler v. Dep't of Prof'l Reg. ,
3302627 So. 2d 31, 34 (Fla. 1st DCA 1993); Klein v. DepÓt of Bus. &
3317ProfÓl Reg. , 625 So. 2d 1237 (Fla. 2d DCA 1993).
332739. In the introduct ory paragraphs of the Amended
3336Complaint, Petitioner alleges, " Section 744.20041, Florida
3342Statutes, provides that a professional guardian is subject to
3351disciplinary action by Petitioner for failing to perform any
3360statutory or legal obligation placed upon a professional
3368guardian. " In the " Wherefore " clause of the Amended Complaint,
3377OPPG seeks the imposition of penalties against Respondent
3385afforded by section 744.20041 .
3390The Application of the 2016 Statute to Respondent ' s Pre - 2016
3403Conduct Does Not Constitute a n Unconstitutional Ex Post Facto Law
341440. All of the improper conduct alleged in the Amended
3424Complaint occurred prior to the creati on of the OPPG and the
3436March 201 6 effe ctive date of sections 744.2001 through 744. 20041.
3448As such, Respondent alleges that t his is a violation of her due
3461process rights as an impermissible ex post facto law , which
3471deprives her of life, liberty, or property, based on conduct
3481occurring before the effective date of the prohibition.
348941. Substantive statutes are presumed to ap ply
3497prospectively, absent a demonstrated legislative intent to the
3505contrary. In determining whether the Legislature intended that a
3514statutory provision be applied retroactively, courts examine both
3522the statute's plain language and the Legislature's purpos e for
3532enacting it. Landgraf v. Usi Film Products , 511 U.S. 244,
3542114 S. Ct. 1483, 128 L. Ed 2d 299 (1994). The Legislature
3554expressed no intent regarding the retroactive application of
3562sections 744.2001 through 744.20041.
356642. However, this "presump tion" does not apply when the
3576statute applies a new jurisdictional rule or procedural rule.
3585Application of a new jurisdictional rule usually "takes away no
3595substantive right but simply changes the tribunal that is to hear
3606the case." Landgraf v. Usi Film Products , 511 U.S. 244, 274, 114
3618S. Ct. 1483, 128 L. Ed 2d 299 (1994) ( citing Hallowell v. Commons ,
36322 39 U.S. 506, 508 - 509, 60 L. Ed. 409, 36 S. Ct. 202 (1916) ) .
3650Because rules of procedure regulate secondary rather than primary
3659conduct, the fact that a new procedural rule was instituted after
3670the conduct giving rise to the suit does not make application of
3682the rule at trial retroactive. Miller v. Florida , 482 U.S. 423,
3693433, 96 L. Ed 2d 351, 107 S. Ct. 2446 (1997); Landgraf , 511 U.S.
3707at 275.
370943. Secti ons 744.2001 through 744.20041 constitute new
3717jurisdictional and procedural rules. Pursuant to both common law
3726and chapter 744, guardians have long had a fiduciary
3735responsibility to their wards that prohibits acting in any manner
3745contrary to their wards' best interests. The Amended Complaint
3754charges Respondent for violating statutes in effect prior to
3763Respondent becoming a PG. Sections 744.2001 through 744.20041
3771only ch ange oversight of PGs from the Circuit C ourt to the OPPG,
3785and provide new remedies for PGs who violate chapter 744.
379544 . In Lescher v. Florida Department of Highway Safety &
3806Motor Vehichles , 985 So. 2d 1078, 1081 (Fla. 2008), the Florida
3817Supreme Court discussed whether the retroactive application of
3825enhanced penalties constitutes an unconst itutional ex post facto
3834law:
3835Both the United States and Florida
3841Constitutions prohibit ex post facto laws.
3847See U.S. Const. art. I, § 10; art. I, § 10,
3858Fla. Const. The United States Supreme Court
3865has defined an ex post facto law as one that
3875(a) op erates re trospectively, and
3881(b) "make[s] innocent acts criminal, alter[s]
3887the nature of the offense, or increase[s] the
3895punishment." Collins v. Youngblood , 497 U.S.
390137, 46, 110 S. Ct. 2715, 111 L. Ed. 2d 30
3912(1990); accord Cal. Dep't of Corr. v.
3919Morales , 514 U.S. 4 99, 506 n.3, 115 S. Ct.
39291597, 131 L. Ed. 2d 588 (1995) ("After
3938Coll ins, the focus of the ex post facto
3947inquiry is not on whether a legislative
3954change produces some ambiguous sort of
3960'disadvantage,' . . . but on whether any such
3970change alters the definition of criminal
3976conduct or increases the penalty by which a
3984crime is punishable."). Thus, the
3990prohibition on ex post facto laws applies
3997only to criminal or penal provisions.
400345 . The Lescher c ourt utilized the seven factor test
4014enunciated in Hudson v. United States , 522 U.S. 93, 118 S. Ct.
4026488, 139 L. Ed 2d 450 (1997), to determine whether the statutory
4038scheme at issue constituted a civil penalty or criminal
4047punishment. Under Hudson , the first step in th e analysis is to
4059ascertain the L egislature's int ent, and then to determine the
4070effect of the statute under the following seven factors:
4079(1) [w]hether the sanction involves an
4085affi rmati ve disability or restraint;
4091(2) whether it has historicall y been regarded
4099as a punishment ; (3) whether it comes into
4107pl a y only on a finding of scienter ;
4116(4) whether its operation will promote the
4123traditional aims of punishment -- retribution
4129and deterrence ; (5) whether the behavior to
4136which it applies is already a crime;
4143( 6) whether an alternative purpose to which
4151it may rat ionally be connected is assignable
4159for it; and (7) whether it appears excessive
4167in relation to the alternative purpose
4173assigned.
41744 6 . Chapter 744 regulates guardianship proceedings and OPPG
4184was created for the purpose of overseeing all public and
4194professi onal guardians. In section 744.1012, the Legislature
4202clearly expressed its intent:
4206(3) By recognizing that every individual has
4213unique needs and differing abilities, i t is
4221the purpose of this act to promote the public
4230welfare by establishing a system that permits
4237incapacitated persons to participate as fully
4243as possible in all decisions af fecting them;
4251that assists such persons in meeting the
4258essential requirements for their physical
4263health and safety, in protecting their
4269rights, in managing their financial
4274resources, and in developing or regaining
4280their abilities to the maximum extent
4286poss ible; and that accomplishes these
4292objectives through providing, in each case,
4298the form of assistance that least interferes
4305with the legal capacity of a person to act in
4315her or his own behalf. This act shall be
4324liberally construed to accomplish this
4329purpos e.
4331* * *
4334( 5) Through the establishment of the Office
4342of Public and Professional Guardians, the
4348Legislature intends to permit the
4353establishment of offices of public guardians
4359for the purpose of providing guardianship
4365services for incapacitated pe rsons when no
4372private guardian is available.
437647 . It is apparent that by enacting chapter 744, the
4387Legislature intended to protect the public through a system of
4397guardianship for the benefit of the most vulnerable citizens.
4406Application of the Hudso n Factors
441248 . This intent controls absent "the clearest of proof" to
4423transform what has been denominated as a civil remedy into a
4434criminal penalty. Lescher ,985 So. 2d at 1082. T o determine
4445whether the "clearest of proof" negates the Legislature's i ntent
4455to create a civil remedy, the seven Hudson factors must be
4466applied . Two overriding principle s govern this analysis: first,
4476no one factor sh ould be considered controlling; and second, the
4487statute is evaluated on its face, not on the character of the
4499actual sanctions imposed. Hudson , 522 U.S. at 101 (quoting and
4509disavowing United States v. Halper , 490 U.S. 435, 447, 109 S. Ct.
45211892, 104 L. Ed. 2d 487 (1989)).
45281. Affirmative Disability or Restraint
453349 . The first factor is whether the sanct ion involves an
4545affirmative disability or restraint. Hudson , 522 U.S. at 99 - 100.
4556S ection 744.20041 does not impose an affirmative disability as
4566the Supreme Court has applied this factor. See Smith v. Doe , 538
4578U.S. 84, 100, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003)
4591(concluding that a state's sex offender registration statute
"4599impose[d] no physical restraint, and so does not resemble the
4609punishment of imprisonment, which is the paradigmatic affirmative
4617disability or restraint" and its "obligations are less harsh than
4627the sanctions of occupational debarment, which we have held to be
4638nonpunitive"); see also Hudson , 522 U.S. at 496 (concluding that
4649a bar to working in the banking industry was not an affirmative
4661disability or restraint "as tha t term is normally understood").
467250 . In Lescher , the Florida Supreme Court examined whether
4682the application of a statute, which eliminated the availability
4691of a hardship license to those who lost their driver 's licenses,
4703enacted after the p laintiff's DUI criminal co nviction, could be
4714retroactively applied. The court stated:
4719The loss of one's driving privilege is
4726inconvenient. In fact, we have recognized
4732that the revocation of one's driver's license
4739constitutes a substantial hardship.
4743Nevertheless, the loss of the driving
4749privilege is not an affirmative disability.
4755If the requirement to register as a sexual
4763offender, the loss of the ability to practice
4771in a chosen profession, the termination of
4778Social Security benefits, and the denial of
4785other federal benefits such as food stamps do
4793not constitute an affirmative disability or
4799restraint, then neither does the inability to
4806apply for a hardship license after one's
4813driver's license has been permanently
4818revoked .
4820Lescher , 985 So. 2d at 1083.
482651 . Similarly, although the revocation of the PG
4835registration carries the "sting of punishment," and may affect
4844one's income, it does not resemble the punishment of
4853imprisonment. The loss of the privilege of serving as a PG is
4865not an affirmative disability.
48692. The Historic al View
487452 . The second factor of the Hudson analysis is whether the
4886sanction has historically been regarded as a punishment. Florida
4895courts have upheld as civil other regulatory remedies that
4904deprive individuals of the enjoyment of certain licensed
4912privileges. See , e.g. , State v. Bowling , 71 2 So. 2d 798 (Fla. 2d
4925DCA 1998) (holding that revocation of a contractor's license was a
4936civil sanction, not a criminal punishment, and did not bar
4946criminal prosecution for fraud in violation of the Double
4955Jeopard y Clause); Rowe v. Ag . for Health Care Admin. , 714 So. 2d
49691108, 1110 (Fla. 5th DCA 1998) (finding no ex post facto violation
4981where a dentist's participation as a Medicaid provider was
4990terminated upon his criminal conviction based on a statute
4999enacted to pro tect the public but "did not increase the penalty"
5011for the crimes); Borrego v. Ag . for Health Care Admin. , 675 So.
50242d 666, 668 (Fla. 1st DCA 1996) (holding that "[i]n Florida, the
5036license to practice medicine is considered a privilege granted by
5046the soverei gn" and the state's suspension of appellant's license
5056following a criminal fraud conviction under a statute intended
5065for public protection did not v iolate the double jeopardy bar);
5076and Lescher , 985 So. 2d at 1084 ( driver's license revocation and
5088the unavai lability of a hardship license for persons with four
5099DUI convictions have not bee n viewed as criminal punishment).
510953 . Florida courts have held that a licensed privilege may
5120reasonably be regulated. The purpose of suspension or revocation
5129of such a privilege is not to punish the offender, but to protect
5142the public.
51443. Scienter
514654 . The third factor is whether the sanction comes into
5157play only on a finding of scienter. See Hudson , 522 U.S. at 99 -
5171100. T he registration revocation statute, s ection 744.20041 ,
5180does not contain a scienter element.
51864. Punishment and Deterrence
519055 . The fourth factor is whether operation of the
5200disciplinary and registration revocation statute will promote the
5208traditional aims of punishment, retribution, and deterrence. See
5216Hudson , 522 U.S. at 99 - 100. Section 744.20014 provides for
5227increasing penalties for the PG based upon the severity of the
5238violations. As such, t his provision may, to some degree, serve
5249as a deterrent. This provision, however, also serve s the
5259Legislature's stated purpose of protecting its most vulnerable
5267citizens. That the statute at issue may serve a deterr ent
5278purpose does not automatically render it criminal punishment. As
5287the Supreme Court warned in Hudson , the "mere prese nce of this
5299[deterrent] purpose is insufficient to render a sanction
5307criminal, as deterrence 'may serve civil as well as criminal
5317goals.'" Hudson , 522 U.S. at 105 .
53245. Criminal Behavior
532756 . The fifth factor is whether the behavior to which the
5339statut es apply is also a crime. See Hudson , 522 U.S. at 99 - 100.
5354Section 744.20041 subjects a PG to disciplinary action by the
5364OPPG for failing to perform statutory or legal obligations.
5373Obviously removing assets from a ward's estate without
5381authorization coul d constitute theft or embezzlement. That the
5390conduct addressed by the statutes is also criminal, however, also
5400is insufficient to make the civil remedy of license revocation
5410criminally punitive. See Hudson , 522 U.S. at 104 (a monetary
5420penalty and employm ent debarment are not criminally punitive
5429merely because the conduct on which the sanctions were based is
5440also a crime).
54436. Alternative Purpose
544657 . The sixth factor is whether an alternative purpose , to
5457which the sanction may rationally be conn ected , is assignable for
5468it. See Hudson , 522 U.S. at 99 - 100. In other words, does PG
5482registration revocation serve a legitimate governmenta l purpose
5490other than punishment? As explained earlier, the Legislature has
5499expressly stated the purpose behind cha pter 744 is " to promote
5510the public welfare by establishing a system that permits
5519incapacitated persons to participate as fully as possible in all
5529decisions affecting them; that assists such persons in meeting
5538the essential requirements for their physical h ealth and safety,
5548in protecting their rights, in managing their financial
5556resources ." The system created by section 744.20041 of
5565increasing disciplinary penalties, up to and including
5572registration revocation , is rationally related to that regulatory
5580purpo se. It protect s the public by restricting the practice of
5592PGs who display disregard for the best interests of their wards.
56037. Relationship of Restriction to Purpose
560958 . The seventh and final factor is whether the sanction
5620appears excessive in relation to the alternative purpose
5628assigned. See Hudson , 522 U.S. at 99 - 100. T he restriction here ,
5641registration revocation, is not excessive in relationship to the
5650statute's purpose of protecting the public. Incapacitated
5657persons are clearly more susce ptible to harm from a PG who has a
5671pattern of disregarding statutory or legal obligations. Thus,
5679the increasing penalties, up to permanent revocation , are a
5688measured and legitimate exercise of the Legislature's power to
5697protect the public.
570059 . Of th e seven factors reviewed, none support
5710Respondent's claim that the statute is in effect so punitive that
5721it constitute s criminal punishment. Accordingly, use of the
5730statutory scheme contained in section 744.20041 to punish the
5739actions of Respondent occurr ing prior to its enactment in March
57502016, does not constitute an unconstitutional ex post facto law.
576060 . Based on this analysis, it is appropriate to examine
5771whether OPPG proved the counts of the Amended Complaint by clear
5782and convincing evidence.
5785Co unt I -- Violation of Section 744 .309(3) (Judge Colin)
579661 . Count I alleges a violation of Florida Statute
5806744.309(3) , which provides that, " the court may not appoint a
5816guardian in any other circumstance in which a conflict of
5826interest may occur." OPPG alleges that Respondent had a conflict
5836of interest by virtue of her marriage to Judge Colin; that she
5848failed to adequately disclose this purported conflict of interest
5857and that as a result, she was " ineligible for appointment in
5868cases wherein Judge Colin was also involved. "
587562 . T he obvious defect in Petitioner' s argument is tha t
5888this provision of section 744.309(3) applies only to judges.
5897Only judges appoint guardians. This statutory provision only
5905proscribes certain guardian appointments by a judg e . This action
5916is a disciplinary action against Respondent, not her husband.
5925Thus, with out even going into the merit s on the conflict of
5938interest issue, this statutory section, on it s face , cannot be
5949used to find a violation by Respondent .
595763 . Whil e pursuant to section 744.309(3) a court may not
5969appoint a guardian who meets the definition of a "disqualified
5979person," OPPG failed to demonstrate by clear and convincing
5988evidence that Respondent ever had a conflict of interest or
5998appearance of a conflict of interest. No evidence was presented
6008showing that Respondent was ever appointed to any guardianship
6017case by her husband, Judge Colin.
602364 . While it is true Respondent should have disclosed, in
6034detail, her spouse's position as a sitting judge in th e Probate
6046and Guardianship Division, her failure to disclose was of no
6056consequence because Judge Colin and the courthouse staff
6064studiously avoided Judge Colin's involvement in any of
6072Respondent's PG cases. At most, Judge Colin, as duty judge,
6082inadvertentl y signed seven routine orders in cases in which
6092Respondent was, or would become, involved. As such, there is no
6103basis upon which to find Respondent violated section 744.309(3).
6112Count II -- Violation of Section 744.446 (Judge Colin )
612265 . Section 744.44 6, prohibits guardians with a conflict of
6133interest from benefiting from any such co nflict, unless approved
6143by the c ourt beforehand, and provides that "[i]t is essential to
6155the proper conduct and management of a guardianship that the
6165guardian be independent and impartial."
617066 . Count II alleges that Respondent failed to disclose her
6181conflict of interest " in cases where Judge Colin also presided"
6191and that she received compensation for these cases. As discussed
6201above, at no time did Judge Colin appoint R espondent to a case as
6215PG. As soon as Judge Colin discovered Respondent entered a
6225guardianship case in which he presided, he transferred the case
6235to another judge.
623867 . All fees received by Respondent were, in f act, reviewed
6250by a case manager and cou rt auditor, and then authorized for
6262payment by a judge other than Judge Colin. As such, OPPG failed
6274to meet its burden of proof as to Count II.
6284Count III -- Violation of Section 744.309(3) (Judge French)
629368 . As discussed above, section 744.309(3) only proscribes
6302judges from making certain guardianship appointments . This
6310action is a disciplinary action against Respondent, not
6318Judge French . Although Judge French did appoint Respondent to
6328guardianship cases, there was no clear and convincing evidence
6337th at a conflict existed between Respondent and Judge French by
6348virtue of her traveling with him and his spouse years before she
6360became a PG. OPPG failed to meet its burden as to Count III.
6373Count IV -- Violation of Section 744.446 (Judge French )
638369 . Beca use OPPG failed to demonstrate any conflict of
6394interest between Judge French and Respondent serving as PG in
6404cases for which he presided, there can be no showing that
6415Respondent improperly benefitted from those cases. OPPG failed
6423to meet its burden as to Count IV.
6431Count V -- Violation of Section 744.361(3) (Duty of Good Faith)
644270 . Count V charges Respondent with violation of Florida
6452Statute 744.361(3) , which states in its entirety , " the gu ardian
6462shall act in good faith." Respondent points out that thi s law
6474did not become effective until July 1, 2015, and the statute does
6486not define "good faith." However it is undisputed for centuries
6496that common law has applied a duty of good faith to a fiduciary
6509relationship. "Good faith" in this context obviously p revents a
6519PG from self - dealing or helping oneself to the ward's assets
6531without court authorization.
653471 . Amended Complaint , paragraph 58 , itemizes the ways in
6544which Respondent allegedly breached this duty. In specifying the
6553alleged bad faith, OPPG pr imarily relies on the alleged conflicts
6564with Judges Colin and French, which were not proven. See Amended
6575Complaint, paragraphs 58(a) , (b) , (c) , and (e)(which reference
6583conflicts with Judges Colin and French, and conflicts with
6592Respondent and the "judiciary, " but not between Respondent and
6601the ward).
660372 . Amended Complaint , paragraph 58(d) , includes an
6611ambiguous catch - all, charging Respondent with failing to act in
6622good faith by, " [c] ontinuing to serve as guardian or guardian
6633advocate in Palm Beach Count y on cases wherein statutes
6643pertaining to her suitability to receive such appointments were
6652violated ." As discussed in detail above, section 744.309(3)
6661imposes obligation on the court not to appoint disqualified
6670persons.
667173 . Arguably , section 744. 446(2) pertains to Respondent's
6680suitability because it provides:
6684The fiduciary relationship which exists
6689between the guardian and the ward may not be
6698used for the private gain of the guardian
6706other than the remuneration for fees and
6713expenses provided by la w . The guardian may
6722not incur any obligation on behalf of the
6730guardianship which conflicts with the proper
6736dis charge of the guardianÓs duties .
6743(emphasis added).
674574 . However, the Amended Complaint nowhere references
6753section 744.446(2). Nor does it reference section 744.454, which
6762prohibits a guardian from borrowing money from the ward.
6771Accordingly, the Administrative Complaint failed to provide
6778adequate notice to Respondent that her taking of retainers
6787without prior court approval of her fees, con stituted a breach of
6799the duty of good faith. Accordingly, OPPG failed to meet its
6810burden as to Count V.
6815Count V I -- Violation of Section 744.361(4) ( Contrary to Ward's
6827Interests )
682975 . Count VI charges Respondent with violating s ection
6839744.361(4), whic h provides that a guardian may not act in a
6851manner that is contrary to the ward's best interests under the
6862circumstances . There were no circumstances shown by Respondent
6871that justified the taking of retainers prior to court
6880authorization for the payment o f fees. It was clearly against
6891her wards' best interests.
689576 . Again, OPPG failed to properly plead its Amended
6905Complaint to include any reference to sections 744.446(2) or
6914744.454, resulting in Respondent not receiving notice that they
6923could serve a s a basis for this count. See Amended Complaint,
6935paragraphs 62(a) - (e). Accordingly, OPPG failed to meet its
6945burden as to Count VI.
6950Count VII -- Violation of Section 744.474(3)
695777 . Section 744.474(3) provides that a guardian is subject
6967to removal from a case, in addition to any other penalties
6978prescribed by law, if the guardian abuses his or her powers.
6989Arguably, Respondent abused her power as a guardian by taking
6999retainers without prior court approval of her fees. However,
7008nothing in th is section, o r section 744.2001 through 744. 20041
7020gives OPPG the authority to remove a guardian. That is the
7031exclusive purview of the circuit court which appointed the PG.
7041There is no basis upon which to charge Respond ent with a
7053violation of section 744.474(3).
7057Concl usion
705978 . Respondent had no conflict between herself and Judge
7069Colin because he did not appoint her or preside over her PG
7081cases. Respondent's marriage to a judge, sitting in the Probate
7091and Guardianship Division in which she practiced as a PG, crea ted
7103a potential conflict or appearance of conflict that should have
7113been more thoroughly disclosed. Fortunately, it did not result
7122in any benefit to Respondent. OPPG also failed to prove any
7133conflict, actual or perceived, between Respondent and Judge
7141Fre nch.
714379 . Respondent's use of retainers was both a breach of the
7155duty of good faith and not in the best interests of her wards.
7168However, in its first prosecution under sections 744.2001 through
7177744. 20041, OPPG failed to adequately plead these violati ons.
718780 . Significantly, no harm was demonstrated to the wards or
7198their families. All of Responde nt's fees were ultimately court -
7209approved. Although Respondent's actions, of failing to
7216adequately disclose her marriage to a then sitting Probate Judge,
7226and taking retainers not authorized by law, erode the public
7236confidence in the guardianship system, they are not actionable as
7246charged by the Amended Complaint.
7251RECOMMENDATION
7252Based on the foregoing Findings of Fact and Conclusions of
7262Law, it is RECOMMEND ED that the Department of Elder Affairs,
7273Office of Public and Professional Guardians, issue a final order
7283dismissing this case.
7286DONE AND ENTERED this 21st day of December , 2018 , in
7296Tallahassee, Leon County, Florida.
7300S
7301MA RY LI CREASY
7305Administrative Law Judge
7308Division of Administrative Hearings
7312The DeSoto Building
73151230 Apalachee Parkway
7318Tallahassee, Florida 32399 - 3060
7323(850) 488 - 9675
7327Fax Filing (850) 921 - 6847
7333www.doah.state.fl.us
7334Filed with the Clerk of the
7340Division of Adm inistrative Hearings
7345this 21st day of December , 2018 .
7352ENDNOTE S
73541/ A guardian is appointed in s ituations when a ward becomes
7366incapacitated to the extent that it is necessary for the
7376guardian's judgment to be substituted for the protection of the
7386ward an d the ward's assets. A guardian advocate is usually
7397appointed when the ward is born incapacitated and usually a
7407parent or relative serves as a guardian advocate. The
7416responsibilities to protect the ward's best interests are
7424identical.
74252 / OPPG contends that the "transfer" of Judge Colin's cases
7436involving Respondent, rather than recusal and reassignment,
7443violated the standing procedures of the court and allowed Judge
7453Colin to bypass the random re - assignment process to shift the
7465case to another judge at th e South County Courthouse. The
7476implication is that other judges in the same courthouse would
7486treat Respondent's cases more favorably. Judge Colin testified
7494it was up to the discretion of the individual judge whether to
7506transfer a case. OPPG presented no supporting evidence that the
7516practice of transfer somehow improperly benefited Respondent or
7524harmed her wards. Further, even assuming arguendo that this
7533practice was somehow improper, this proceeding is to examine the
7543conduct of Respondent as PG, not the conduct of Judge Colin.
75543/ These three cases include: In Re: Guardianship of Helen M.
7565O'Grady, Case No: 502012GA000016XXXXSB; In Re: Guardianship of
7573Carla Simmonds, Case No. 502014AG000327XXXXSB; and In Re:
7581Guardianship of Delores Thur, Case No. 50201 3AG000262XXXXSB.
75894/ A "true retainer" is money paid in advance of any services
7601rendered to have a professional available when needed. An
"7610evergreen retainer" is money paid in advance of services in the
7621expectation that the retainer will be used to pay t he bill. When
7634it is exhausted, the retainer is replenished to the original
7644amount in anticipation of additional billing. Respondent's
"7651retainers" do not appear to be either a true retainer or an
7663evergreen retainer because it was a one - time payment from a
7675family member, ward's trust, or ward's estate, later reflected as
7685an offset on the Petition for Order Authorizing Payment of
7695Compensation and Expenses of Guardian.
7700COPIES FURNISHED:
7702Ellen S. Morris, Esquire
7706Elder Law Associates, P.A.
77107284 West Palmetto Park Road , Suite 101
7717Boca Raton, Florida 33433
7721(eServed)
7722Michael McKeon, Esquire
7725Department of Elder Affairs
77294040 Esplanade Way
7732Tallahassee, Florida 32399 - 7000
7737(eServed)
7738Jeffrey Bragg, Secretary
7741Department of Elder Affairs
77454040 Espl anade Way, Suite 315
7751Tallahassee, Florida 32399 - 7000
7756(eServed)
7757Francis Carbone, General Counsel
7761Department of Elder Affairs
77654040 Esplanade Way, Suite 315I
7770Tallahassee, Florida 32399 - 7000
7775(eServed)
7776NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
7782All parties have the right to submit written exceptions within
779215 days from the date of this Recommended Order. Any exceptions
7803to this Recommended Order should be filed with the agency that
7814will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 02/15/2019
- Proceedings: Petitioner's Notice of Filing of Exceptions to Recommended Order filed.
- PDF:
- Date: 12/21/2018
- Proceedings: Recommended Order (hearing held September 5-7, 2018). CASE CLOSED.
- PDF:
- Date: 12/21/2018
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 10/15/2018
- Proceedings: Agreed Motion for Extension of Time for Parties' Submission of Proposed Recommended Orders filed.
- PDF:
- Date: 08/31/2018
- Proceedings: Order Granting Leave to Amend Administrative Complaint, Denying Continuance of Final Hearing and Denying Motion in Limine.
- PDF:
- Date: 08/29/2018
- Proceedings: Motion for Leave to Amend Complaint and Continue Final Hearing filed.
- PDF:
- Date: 06/28/2018
- Proceedings: Order Granting Continuance and Rescheduling Hearing (hearing set for September 5 through 7, 2018; 9:00 a.m.; West Palm Beach, FL).
- PDF:
- Date: 06/14/2018
- Proceedings: Petitioner's Response to Respondent's Second Request for Production of Documents from Petitioner filed.
- PDF:
- Date: 06/14/2018
- Proceedings: Petitioner's Response to Respondent's First Request for Admissions filed.
- PDF:
- Date: 06/14/2018
- Proceedings: Petitioner's Notice of Service of Responses to Respondent's First Interrogatories filed.
- PDF:
- Date: 05/11/2018
- Proceedings: Respondent's First Request for Production of Documents to Petitioner filed.
- PDF:
- Date: 05/11/2018
- Proceedings: Notice of Service of Respondent's First Set of Interrogatories to Petitioner filed.
- PDF:
- Date: 04/03/2018
- Proceedings: Respondent's Response to Petitioner's First Request for Production to Respondent filed.
- PDF:
- Date: 04/02/2018
- Proceedings: Notice of Serving Answers to Petitioner's First Set of Interrogatories to Respondent filed.
- PDF:
- Date: 04/02/2018
- Proceedings: Order Granting Continuance and Rescheduling Hearing (hearing set for July 26 and 27, 2018; 9:00 a.m.; West Palm Beach, FL).
- Date: 03/21/2018
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 03/21/2018
- Proceedings: Petitioner's Response to Respondent's Motion for Conference Call filed.
- PDF:
- Date: 03/12/2018
- Proceedings: Petitioner's Response to Respondent's First Request for Production of Documents from Petitioner filed.
- PDF:
- Date: 02/22/2018
- Proceedings: Petitioner's Notice of Service of First Set of Interrogatories to Respondent filed.
Case Information
- Judge:
- MARY LI CREASY
- Date Filed:
- 02/14/2018
- Date Assignment:
- 04/02/2018
- Last Docket Entry:
- 03/21/2019
- Location:
- West Palm Beach, Florida
- District:
- Southern
- Agency:
- ADOPTED IN PART OR MODIFIED
Counsels
-
Michael McKeon, Esquire
4040 Esplanade Way
Tallahassee, FL 323997000
(850) 414-2032 -
Ellen S. Morris, Esquire
Suite 101
7284 West Palmetto Park Road
Boca Raton, FL 33433
(561) 750-3850