The Issue The issue in the case is whether Petitioner's application for licensure should be approved.
Findings Of Fact On July 12, 2004, Petitioner filed an application for licensure as a Resident Life including Variable Annuity and Health Insurance Agent with Respondent. Included among the questions on the application was the following: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered "no" in response to the question. The application requires the applicant to consent to the following statement: Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in denial of my application and/or the revocation of my insurance license(s). By affixing his electronic signature to the application, Petitioner affirmed that the information set forth therein was true. The evidence establishes that on April 7, 1978, Petitioner was sentenced to the Nassau County Correctional Center for a term of one year after entering a guilty plea to a felony count of Attempted Grand Larceny (Grand Jury Indictment No. 46323, June 24, 1977, Nassau County, New York.) Petitioner entered the Correctional Center to begin serving his sentence on December 15, 1978, and was released on February 28, 1979. Petitioner did not disclose the 1978 conviction on the application for licensure as an insurance agent. After completing a criminal history check, Respondent issued two deficiency letters, dated July 26, 2004, and August 5, 2004, seeking additional information related to Petitioner's background. In response to the deficiency letters, Petitioner submitted additional information and a letter. In the letter and in his testimony at the hearing, Petitioner stated that he misinterpreted the question, and believed that because he was incarcerated for less than one year, the 1978 conviction was responsive to the question. He stated that he did not intend to mislead or deceive Respondent. Respondent issued a Notice of Denial on August 25, 2004. The grounds for the denial was Petitioner's failure to disclose the 1978 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying the application for licensure filed by Anthony A. Sagnelli and imposing a waiting period to expire on August 26, 2005. DONE AND ENTERED this 28th day of February, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 28th day of February, 2005.
Findings Of Fact At all times relevant hereto, respondent Maria I. Casas, held license number PS0014711 issued by petitioner, Department of Professional Regulation, Board of Pharmacy. When the events herein occurred, respondent was prescription department manager for Cuca Pharmacy, Inc. (Cuca) at 11048 West Flagler Street, Miami, Florida. The president and permittee of the pharmacy was Hortensia Lopez-Perez who does not hold a pharmacist license. Respondent has been licensed as a pharmacist in the State of Florida since 1975. In February, 1984 Alberto Fernandez was performing undercover operations in the Miami area for the Drug Enforcement Agency (DEA) for the purpose of enforcing federal narcotic laws. On February 17, he received information from an informant that ten kilograms of cocaine could be purchased for $21,000.00 per kilogram from two individuals named Zayas and Santos. Be was told the cocaine was stored at Cuca. Fernandez arranged a meeting with Zayas and Santos in Hialeah, but no sale was consummated since Zayas and Santos were unable to produce any cocaine. On February 25, Fernandez again received a telephone call from his informant and was told to go to Cuca and meet an individual named Jesus Avila who was interested in dealing some cocaine. There he was introduced to Avila by an undisclosed individual, and the three negotiated a sale of ten kilograms at the rear of the store. There is no evidence that Casas was aware of these negotiations or that she was even on duty at this time. In any event, Avila agreed to sell ten kilograms to Fernandez for an undisclosed price. As a good faith gesture, the two further agreed to meet at a nearby shopping center where Fernandez would display the money and Avila would show the drugs. if both parties were satisfied, the sale would be consummated at Cuca. Fernandez went to the shopping center at the designated time, but Avila never showed. Fernandez then returned to the drug store where the permittee (Lopez-Perez) told him the cocaine was on its way and not to worry. Although Casas was on duty when Fernandez met with Lopez-Perez, it is found she was not privy to the conversation as it related to a shipment of cocaine. Several hours later Fernandez received a telephone call advising that the cocaine had arrived and to return to Cuca. He did so and met with Avila and Lopez-Perez in the rear of the store. The three agreed on a sale within a few days. Again Casas was not a party to these discussions. On February 29, Fernandez received another telephone call from his informant and was told the cocaine could be purchased at Cuca around 3:00 p.m. At the designated time, Fernandez, Lopez-Perez and the informant went to the rear of the store. Casas joined them a moment later to use the restroom which was also located in the rear of the store. As Casas came out of the restroom, Lopez-Perez pulled a clear plastic bag containing a white powdery substance from a metal cabinet and gave it to Fernandez. Although Casas was in the vicinity of the transfer, it is found she did not know the nature of the transaction. This is because Casas had no reason to believe that drugs were being illicitly transferred, and she was only in the rear of the premises for a matter of moments to use the restroom. After her business was completed she returned to the front of the store. Shortly thereafter, both Casas and Lopez-Perez were arrested by federal agents for allegedly violating federal narcotic laws. The contents of the bag transferred from Lopez-Perez to Fernandez were subjected to a chemical analysis and found to contain 2.2 pounds (one kilogram) of 95 percent cocaine hydrochloride, a controlled substance and legend drug which requires a prescription to dispense. The drug was dispensed to Fernandez without a prescription. Records of Miami area drug wholesalers introduced into evidence reflected that Cuca did not order any cocaine for prescription purposes during the period from January 1, 1982 - through June 30, 1984. This was confirmed by Casas' testimony. As prescription manager it was her responsibility to maintain all drug records providing for the security of the prescription department. Lopez was convicted on August 16, 1984 on two counts of violating federal statutes. She is now appealing her conviction. Although Casas was arrested with Lopez-Perez Casas was not convicted of any crime relating to the illicit drug transactions in question. There is no evidence that Casas was involved in or knowingly condoned the illegal drug activity, or that she was negligent in supervising the licensed premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the two administrative complaints against respondent be DISMISSED, with prejudice. DONE and ORDERED this 20th day of January 1986, in Tallahassee Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 84-1612 & 85-0968 PETITIONER: Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 1. 7. Essentially covered in finding of fact 3. 8. Essentially covered in finding of fact 3. 9. Essentially covered in finding of fact 4. 10. Covered in finding of fact 5. 11. Covered in finding of fact 5. 12. Covered in finding of fact 5. 13. Covered in finding of fact 6. 14. Covered in finding of fact 6. 15. Covered in finding of fact 1. 16. Covered in finding of fact 5. 17. Covered in finding of fact 7. 18. Covered in finding of fact 1. 19. Covered in finding of fact 7. 20. Covered in finding of fact 1. COPIES FURNISHED: Bruce D. Lamb, Esquire 130 N. Monroe St. Tallahassee, FL32301 Rolando A. Amador, Esquire 799 Galiano, Suite 206 Coral Gables, Florida 33134
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice medicine and for regulating such licensees on behalf of the state. Respondent practices general medicine under license number ME 0042559. The parties stipulated to all material facts alleged in the Corrected Second Amended Administrative Complaint except one. The disputed fact is whether Respondent maintained adequate medical records of her treatment of patient R.W. with Lortab. Lortab is a legend drug within the meaning of Section 465.003(7). It contains hydrocodone. Hydrocodone is a Schedule III controlled substance in Chapter 893. On April 7, 1989, Respondent signed a prescription for 30 Lortab 7.5 mg tablets as an analgesic medication for a toothache. Respondent's medical records contain no entry for R.W.'s office visit on April 7, 1989, and no entries disclosing the nature of R.W.'s complaint, diagnosis, plan of treatment, or justification for prescribing Lortab. On January 5, 1990, Respondent prescribed Indocin 7.5 mg., an anti- inflammatory medication, and Lortab 7.5 mg. for R.W.'s shoulder pain. Respondent's medical records contain no entries documenting the examination of R.W., exam results, or diagnosis. There is no justification in Respondent's medical records for prescribing Lortab for R.W. on January 5, 1990. In addition, Respondent failed to document the number of Lortab tablets prescribed for R.W. on January 5, 1990. On January 26, 1990, R.W. complained of pain in his right shoulder secondary to an injury sustained while pushing a car. Respondent again prescribed Lortab 7.5 mg. Respondent did not document in her medical records the number of Lortab tablets prescribed. On February 25, 1990, R.W. advised Respondent that he had reinjured his shoulder in a fight. Respondent instructed R.W. to wear a sling and rest. Respondent again prescribed Indocin and Lortab 7.5 mg. On May 4, 1990, R.W. again complained of shoulder pain. Respondent performed an x-ray of R.W.'s shoulder. Respondent's medical records do not document that the x-ray was taken or the results of the x-ray. On May 4, 1990, Respondent diagnosed R.W. with possible rotator cuff tear. Respondent prescribed Indocin and Lortab 7.5 mg. Respondent's medical records do not document the number of Lortab tablets prescribed. Respondent did not know the number of Lortab tablets R.W. received or the number he took each day. Respondent's medical records do not document Respondent's instructions concerning the number of tablets to be taken each day or the frequency with which the tablets were to be taken. Respondent's medical records do not document the number of refills R.W. was given. On May 24, 1990, Respondent's medical records document that she warned R.W. of the potential for addiction to Lortab. However, Respondent continued to prescribe Lortab without documenting the amount of Lortab prescribed for R.W. Respondent failed to keep written medical records justifying the course of treatment for R.W., including patient history, examination results, and records of drugs prescribed. Respondent failed to document patient history on April 7, 1989. Respondent failed to document x-ray examination results on May 4, 1990. Respondent failed to document Lortab prescribed, dispensed, or administered from April 7, 1989, through July, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 458.331(1)(m), reprimanding Respondent, imposing a fine of $3,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed herein. RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1995.
Findings Of Fact Petitioner Robert Friedman, who has resided in Miami, Florida since January 1973, filed an application with Respondent for registration as a real estate salesman on January 9, 1978. Question 6 of the application was answered by the Petitioner as follows: 6. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? Yes If yes, state details including the outcome in full: Arrested in Feb. '72; charged with sale of dangerous drugs - sentenced to 6 mos. in Allenwood & 2 yrs. probation - Prior to Feb. '72, approximately 5 arrests - all dismissed. Respondent issued an Order denying the application on May 22, 1978, because Petitioner failed to disclose in his application the fact of his arrest in Dade County, Florida, on January 25, 1974, on a charge of grand larceny. The Order also noted that the February 1972 arrest disclosed by Petitioner in the application actually occurred in February, 1971. Based on the foregoing, Respondent found that Petitioner had not made it affirmatively appear that he met the qualifications for registration contained in Chapter 475, Florida Statutes. (Petitioner's Exhibit 6, Pleadings.) A Federal Bureau of Investigation Record showing numerous arrests of Petitioner by state and federal authorities dating from 1966, primarily on charges alleging drug offenses, was received in evidence without objection by Petitioner. Petitioner testified that the record was true. (Petitioner's Exhibit 1, Testimony of Friedman.) On January 25, 1974, Petitioner was arrested in Miami, Florida, on a charge of grand larceny in violation of Section 811.021, Florida Statutes. He was found guilty of the offense in the Dade County Circuit Court, Case No. 74- 964, on April 26, 1974, but adjudication of guilt was withheld and he was placed on probation for a period of eighteen months. (Petitioner's Exhibits 1, 3-5). Petitioner testified at the hearing and admitted his failure to list the 1974 arrest on his application to Respondent. His explanation for the omission was that the Circuit Judge had told him that he could "forget about it" because adjudication of guilt had been withheld, and his lawyer had said that it would never interfere in the future. Petitioner denied that he was attempting to deceive the Respondent in his application, but had attempted to forget the arrest and did not intentionally omit it from his application. He further testified that he had been a drug addict who had been in a methadone program of treatment until about two and one-half years ago, but that he was now leading a normal life without drugs. (Testimony of Petitioner.)
Recommendation That the application of Robert Friedman for registration as a real estate salesman be denied. DONE AND ENTERED this 7th day of November 1978 in Tallahassee, Florida. COPIES FURNISHED: S. Ralph Fetner, Jr. Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Robert Friedman 242 Southwest 78th Place Miami, Florida 33144 THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November 1978.
The Issue The issue in this case is whether Petitioner is eligible for an exemption from disqualification from working with children.
Findings Of Fact The evidence presented at hearing established the facts that follow. In 2000, Petitioner Sonia Leggs-Stewart (“Leggs- Stewart”) sought employment with at least two entities that provide services under contract to Respondent Department of Juvenile Justice (“DJJ”). These two providers are the Dade Marine Institute, Inc. (the “Institute”) and Youth Services International/Everglades Academy (the “Academy”). The positions that Leggs-Stewart sought entailed contact with children. As a condition of applying for such employment, she was required to consent to a background investigation. Further, the employment applications that Leggs- Stewart completed and submitted to these two providers included queries pertaining to the applicant’s criminal record. Finally, Leggs-Stewart, as required for employment, executed and delivered to each prospective employer an Affidavit of Good Moral Character (the “Affidavit”). The Affidavit is a DJJ form. In it are listed 45 consecutively numbered criminal offenses, each identified by a citation to the applicable section of the Florida Statutes and a brief description of the crime. The affiant must either (a) attest that she has not been convicted of any of these disqualifying offenses “or of any similar offense in another jurisdiction” or (b) disclose any such convictions.1 Above the notary’s signature line on the Affidavit are two separate statements. The affiant is supposed to certify the accuracy of one or the other by signing below the applicable statement. These are the options: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand, under penalty of perjury, all employees in such positions of trust and responsibility shall attest to meeting the requirements for qualifying for employment and agreeing to inform the employer immediately if arrested of any of the disqualifying offenses. I also understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand prior to signing. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. SIGNATURE OF AFFIANT OR To the best of my knowledge and belief, my record contains one or more of the disqualifying acts or offenses listed above. (If you have previously been granted an exemption for this disqualifying offense, please attach a copy of the letter granting exemption.) (Please circle the offense(s) contained in your record.) SIGNATURE OF AFFIANT (emphasis added). Leggs-Stewart applied for employment with the Academy in March 2000. On the employment application, she answered “yes” to the question: “Have you ever been convicted of a felony or a first degree misdemeanor?” Leggs-Stewart explained that she had been convicted in February 1991 of “possession with intent to distribute cocaine.” On the corresponding Affidavit, however, which she executed on March 13, 2000, Leggs-Stewart incongruously signed below the first certificate (meaning no convictions) and failed to circle any of the listed offenses, including this one: [Chapter 893, Florida Statutes,] relating to drug abuse possession and control if the offense was a felony or if any other person involved in the offense was a minor (this includes charges of possession of controlled substances, the sale of controlled substances, intent to sell controlled substances, trafficking in controlled substances, and possession of drug paraphernalia, etc.) The record is silent as to whether the Academy offered Leggs-Stewart a job; there is no evidence that she worked for the Academy. In December 2000, Leggs-Stewart applied for a job with the Institute. The employment application asked: “Have you ever been committed [sic] or convicted of a crime, pled guilty or nolo contendere, had a pretrial intervention or withheld adjudication? Yes NO If yes, give dates and type of action: .” Leggs-Stewart left these lines blank. Also, as before in connection with her application to the Academy, Leggs-Stewart signed the Affidavit below the first certificate and circled none of the listed offenses. The Institute hired Leggs-Stewart to work in a program for youth called W.I.N.G.S. for Life South Florida. Some months later, in June 2001, DJJ notified Leggs- Stewart that an investigation of her background had uncovered arrests for, on one occasion in 1990, federal charges involving the importation and possession of cocaine with intent to distribute and, on another in 1989, an unrelated state aggravated assault charge.2 She was asked to furnish DJJ with a detailed description of the circumstances surrounding the disqualifying offenses, to complete a new Affidavit, and to explain why the previous Affidavit failed to indicate any disqualifying offenses. On July 3, 2001, Leggs-Stewart executed a new Affidavit on which she circled the disqualifying offenses of aggravated battery and drug trafficking. In a letter of that same date, Leggs-Stewart wrote to DJJ: In regards to the Affidavit of Good Moral Character and providing a detailed explanation as to why the original affidavit was not truthful, to be honest I completed the affidavit in accordance to what my supervisor, at that time instructed me to do. I diligent [sic] explained the incidents to him and I personally did not identify which offense to circle for the Arrest #2 [aggravated assault] due to nothing never happen [sic] in court to my knowledge. In regards to Arrest #1 [drug trafficking], I believe that we, (both my supervisor and I) focused on the second part of the offense description that mentioned involving a minor which was his primary concern. I did not intentionally mean to mislead anyone regarding these offenses. The basic material facts concerning Leggs-Stewart’s arrest and conviction on drug-related criminal charges were not disputed. Leggs-Stewart was arrested in late 1990 by federal authorities for bringing cocaine into the United States from Panama. She was charged with two counts relating to this criminal activity. In February 1991, Leggs-Stewart pleaded guilty before the United States District Court for the Southern District of Florida to one count of possession with intent to distribute cocaine. (The second count relating to importation was dismissed.) The court sentenced Leggs-Stewart to four years in prison followed by five years of supervised release. Leggs- Stewart served her time and successfully completed probation. She has not been in trouble with the law since her arrest for the federal drug crime. Leggs-Stewart requested an exemption from disqualification from employment. As a result, an informal hearing on the matter was conducted on August 8, 2001, by a committee of three individuals whose responsibility was to make a recommendation to the ultimate decision maker, DJJ’s Inspector General. In a report dated August 9, 2000, the committee unanimously recommended that Leggs-Stewart be granted an exemption from disqualification, citing factors showing her rehabilitation. DJJ’s Inspector General disagreed with the committee, however, and decided that the exemption should be denied. Ultimate Factual Determinations The undisputed circumstances surrounding Leggs- Stewart’s conviction for drug possession demonstrate that the offense was more than a mere youthful indiscretion. Smuggling cocaine into the United States from a foreign country with intent to distribute is a serious crime. While there are no identifiable victims of Leggs-Stewart’s criminal misconduct, trafficking in cocaine is an offense that both the federal and state governments have deemed, as a matter of public policy, to be harmful to society as a whole. The gravity of Leggs- Stewart’s offense clearly “raises the bar” in terms of establishing rehabilitation. To her credit, Leggs-Stewart by all appearances has turned her life around. She is married and raising a family, owns a home, has attended community college, and has been gainfully employed since being released from prison. In short, she is now leading a stable and responsible life. These factors demonstrate that Leggs-Stewart has been largely, if not completely, restored to the capacity of law-abiding citizen. In addition, more than 11 years have passed since Leggs-Stewart’s arrest and conviction, and she has not been arrested during that time. This consideration also favors a finding of rehabilitation. Leggs-Stewart does not presently pose a danger to the safety or well being of children. However, the Affidavits that Leggs-Stewart signed—— wherein she attested, incorrectly, that her criminal record was clean——are a problem. Even if Leggs-Stewart’s explanations for nondisclosure are accepted3, the inescapable fact is that the Affidavits were not truthful, and she reasonably should have known that.4 Leggs-Stewart knew when she executed the Affidavits that she had served time in a federal prison on a serious drug charge. She knew (or reasonably should have known) that the list of disqualifying offenses in the Affidavit specifically included “possession of controlled substances” and “intent to sell controlled substances”——plainly apposite descriptions of the crime to which she had pleaded guilty. And she knew that any omissions or misstatement might be grounds for disqualification or termination. Yet, she attested under oath that her criminal record contained none of the listed disqualifying offenses. Thus, it is determined that while Leggs-Stewart did not intend to defraud her prospective employers, she nevertheless culpably misrepresented her past. In failing to disclose her criminal record, Leggs-Stewart committed acts tinged with dishonesty.5 Considered in light of all the relevant facts and circumstances, Leggs-Stewart’s willingness to be untruthful in applying for a position of trust and responsibility in a program for youth or children, regardless of her motivation, causes the trier of fact some hesitancy about the completeness of her rehabilitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Leggs-Stewart an exemption from disqualification from working with children. DONE AND ENTERED this 20th day of March, 2002, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 20th day of March, 2002.
The Issue Whether the Agency for Persons with Disabilities’ (Agency) intended action to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Parties and Background Petitioner is a 41-year-old male residing in Gainesville, Florida. For the last four months Petitioner has been employed by Plane Techs, where he has been contracted out to Haeco Aviation for repair of interior aviation mechanics. Petitioner wishes to become employed by Successful Living II, an Agency provider which operates residential treatment group homes serving people with both moderate and severe behavioral disabilities. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. Disqualifying Offenses Petitioner’s record contains two felony offenses which automatically disqualify him from employment in any position of special trust with children or vulnerable adults. The first offense is the armed robbery of an Arby’s restaurant in Lake City, Florida, in May 1998. Petitioner conspired with his two male cousins, then employees of the subject Arby’s, to rob the restaurant. A first attempt was scrapped due to the number of customers in the restaurant, but Petitioner returned and finished the job just prior to closing. Petitioner was tried and convicted by a jury of both armed robbery and burglary of an occupied structure. He was sentenced to 32 months in prison, followed by eight months of probation. In the second offense the same month as the first, Petitioner and the same two cousins robbed a man in the parking lot of a hotel in Gainesville. The trio held up the man at gunpoint and deprived him of a duffle bag containing a computer and other valuables, as well as his wallet containing cash and credit cards. Petitioner was tried and convicted by a jury of aiding and abetting robbery while armed with a deadly weapon. He was sentenced to 64 months in prison, to be served concurrently with the sentence from the first offense. Petitioner was 22-years old at the time of the disqualifying offenses. Petitioner served 64 months (approximately five years) in a state correctional facility and eight months’ probation. The Department of Corrections terminated his supervision on December 13, 2010. At hearing, Petitioner denied that he and his co- conspirators used a gun during the Arby’s robbery. He failed to appreciate that adjudication of the offense had established a weapon was utilized. At hearing, Petitioner downplayed his involvement in the robbery of the man in the hotel parking lot. Petitioner insisted that he had no idea his cousin was going to rob the man until the robbery was underway. However, Petitioner admitted that he participated in the robbery by ordering the victim to kick over his duffle bag, while his cousin threatened the victim at gunpoint. Subsequent Non-Disqualifying Offenses Petitioner’s background screening revealed several non- disqualifying offenses subsequent to Petitioner’s incarceration.1/ Respondent alleges Petitioner had three probation violations: (1) driving with a suspended license on October 14, 1998; (2) an unspecified violation on March 23, 2004; and (3) failure to appear on May 26, 2004.2/ No court records concerning these alleged probation violations were offered in evidence. According to a letter from the Columbia County Clerk’s office, no records of the alleged violations could be located. Respondent submitted no evidence of the source of information for the alleged probation violations. The record does contain an Affidavit of Probation Violation dated March 3, 2004, in which Probation Officer Aaron Robert attested to Petitioner’s violation of a condition of his probation requiring Petitioner to complete 100 hours of community service within one year of his release from prison. The affidavit states that, as of that date, Petitioner had submitted proof of completion of only 28 hours. The record also contains an Order of Modification of Probation entered on July 8, 2004, finding Petitioner admitted to the violation, was found in violation, and adjudicated guilty of the violation. However, the same terms of probation were reinstated. The record supports a finding that Petitioner is guilty of only one probation violation subsequent to commitment of the disqualifying offenses. 20. (DWLS) in Petitioner was cited for driving with license November and December 2006; October 2009; and suspended February, July, and August 2011. 21. With regard to the November and December 2006 DWLS adjudications, Petitioner’s license had been suspended for lack of insurance. Petitioner claimed not to have known his license had been suspended when he was first stopped in November 2006. For the November 2006 DWLS charge, Petitioner pled guilty and was sentenced to serve 12 months’ probation and ordered to pay court costs, fines, and fees. Columbia County Court Judge Tom Coleman presided over Petitioner’s case, and terminated Petitioner’s probation on January 31, 2008, finding Petitioner had satisfied all conditions of probation. Petitioner likewise plead guilty to the December 2006 DWLS charge, was placed on 12 months’ probation, and ordered by Judge Coleman to complete 50 hours of community service and produce a valid driver’s license within 10 months. Judge Coleman allowed the probation to run concurrent with the November sentence. Judge Coleman terminated Petitioner’s probation on January 31, 2008, finding Petitioner had satisfied all conditions of probation. On October 4, 2008, Petitioner was cited for violating a municipal open container ordinance, and ordered to appear in Columbia County Court on October 30, 2008. Although the citation was admitted in evidence, no court record of the violation was produced in response to Petitioner’s records request. Again in 2009, Petitioner’s automobile insurance was canceled for nonpayment, leading to the suspension of his driver’s license. On October 27, 2009, Petitioner was again charged with DWLS and ordered to appear in county court on November 10, 2009. On March 11, 2010,3/ Petitioner was ordered to pay court costs, fines, and fees in the amount of $373.50 by September 9, 2010, or return to court on that date. On November 16, 2010, Petitioner appeared before Judge Coleman on the October 27, 2009 DWLS charge. Judge Coleman withheld adjudication and again sentenced Petitioner to 12 months’ probation and payment of court costs (of which $343.50 was remaining from the partial payment plan), allowing for early termination within six months, if all conditions were met. In 2011, Petitioner became employed at Target and assumed the risk of driving to and from work without a valid license in order to earn an income. Petitioner was stopped by police three separate times that year and cited for driving with a suspended license.4/ During the February 2011 traffic stop, Petitioner falsely identified himself as his cousin, and gave his cousin’s address, in an effort to avoid another citation. However, the police officer discovered Petitioner’s Target employee badge which revealed his correct identity. Petitioner was charged with both giving a false name to law enforcement (Count I) and DWLS (Count II). On March 29, 2011, Judge Coleman entered an order withholding adjudication on Count I, but adjudicating Petitioner guilty on Count II. As to Count I, Judge Coleman sentenced Petitioner to 12 months’ probation and ordered Petitioner to write a letter of apology to the arresting officer, pay court costs and fees, complete 15 community service hours per month until Petitioner either became employed or completed 150 hours, and produce a valid driver’s license within 10 months. As to Count II, Petitioner was also sentenced to 12 months’ probation to run concurrently with the sentence for Count I. Unfortunately for Petitioner, the March 29, 2011, adjudication constituted a violation of the probation order entered on September 16, 2010. On January 24, 2012, Judge Coleman entered a new judgement on the 2009 DWLS violation, sentencing Petitioner to 20 days in county jail, but allowing him to serve the sentence in consecutive weekly installments of 48 hours from 5 a.m. Sundays to 5 a.m. Tuesdays. On June 5, 2012, Judge Coleman terminated Petitioner’s probation under the September 16, 2010, judgement as Petitioner had satisfied all conditions of probation. On April 30, 2013, Judge Coleman terminated Petitioner’s probation under the March 29, 2011, judgement as Petitioner had satisfied all conditions of probation. For Petitioner’s subsequent July 12, 2011, DWLS charge, and August 27, 2011, DWLS charge, he was adjudicated guilty and sentenced to two consecutive jail terms of 30 days, probation of 12 months, and ordered to pay court costs and fees. Judge Coleman allowed Petitioner to serve the jail time on subsequently designated weekends. Petitioner was released from probation on those charges on January 29 and March 31, 2015, respectively. Petitioner has subsequently obtained a restricted license which allows him to drive to and from work, as well as to pick up his children from school and other activities. Subsequent Employment History Petitioner has had varied employment since his release from prison. He worked for Hunter Panels in Lake City on the insulation assembly line for approximately two years, then Accurate Car Care as Assistant Manager of the detail shop for another year. Petitioner’s last job in Lake City was with Target, where he was terminated for tardiness. After his relocation to Gainesville, Petitioner worked for the Florida Farm Bureau in maintenance before becoming employed by Plane Techs. Petitioner anticipates being laid off by Plane Techs at the conclusion of the current contract with Haeco, due to lack of contract opportunities. In the summer of 2014, Petitioner was certified as a basketball referee by the Mid-Florida Officials’ Association. Petitioner officiates basketball games three to four times a week during basketball season, as well as post-season tournaments. Petitioner had to undergo background screening with Mid-Florida Officials’ Association, and was originally denied certification due to his criminal record. However, the association allowed him to proceed with certification following an exemption review. Subsequent Personal History Petitioner was divorced in late 2015. Petitioner has joint custody of his five children, who reside with him every other weekend, portions of each summer, and certain holidays. For the last ten years, Petitioner has volunteered as a football coach in Lake City (commuting from Gainesville) to remain involved in his son’s life. Additionally, Petitioner has volunteered as a coach for Columbia County little league football for approximately four years. In this capacity, he has worked with children ages five, six, and seven. Petitioner has completed some of his required community service by sharing his experiences with high school students, and encouraging them to make better life choices. Petitioner remarried on November 12, 2016. The couple met approximately four and a half years earlier. Petitioner revealed his criminal history to his new wife on their third date, approximately three years earlier. Petitioner met Diyonne McGraw a little over two years ago through her husband, who is also a volunteer football coach. Ms. McGraw became more familiar with Petitioner through his wife, who is Ms. McGraw’s hairdresser. Ms. McGraw owns Successful Living II, under which she operates three group homes and is working to license a fourth. She specializes in “intensive behavior focus,” meaning she serves clients with mental health issues, sexual issues, and physical and verbal aggression, some of whom have dual and triple diagnoses, and many of whom were recently released from incarceration. Ms. McGraw is a former probation officer. She testified, credibly, that, based on her observation of Petitioner’s interaction with her own children, as well as many other children involved in recreational sports, he has the patience to effectively deal with her clients. Further, she testified that Petitioner has demonstrated a commitment to her agency and a passion for the work it entails. Petitioner’s Exemption Request In his exemption request, in response to the question regarding the “degree of harm to victim or property (permanent or temporary), damage, or injuries,” Petitioner answered, “[n]one.” In response to the question regarding any stressors in his life at the time of the disqualifying offenses, Petitioner also stated, “[n]one.” Petitioner achieved a Graduate Equivalency Diploma (GED) while incarcerated. Petitioner reported no further educational pursuits. In his exemption request, Petitioner accepted responsibility for “poor and wrong decision[s] [he] chose early in [his] life.” He admitted that he is embarrassed by his charges, but is not ashamed to talk about his history and advise young people that such mistakes can change the course of your life. Petitioner’s request also demonstrates a dedication to providing life lessons for his children and preventing them from going down the path he chose. In the employment history section, Petitioner listed only his employment with Target in Lake City. Petitioner’s exemption request included two personal reference letters--one from his wife, then Dawn Teasley, and one from Matthew Dillard, a teacher at Lake City Middle School in Columbia County. The letter from Petitioner’s wife described Petitioner as “reliable, honest and responsible” both in his capacity as maintenance and groundskeeper for her salon and as a head coach for her nephew’s football team in Lake City. She also commented on Petitioner’s “ability, patience and genuine concern and care for youth” and his ability to “bring out the very best of every youth he coaches regardless of their skill set of level.” His wife further described Petitioner as an “enthusiastic leader,” as well as “reliable, honest and responsible.” Mr. Dillard’s letter was brief. In the letter, he stated that he has known Petitioner for ten years, has played recreational basketball with Petitioner, and has worked with Petitioner at a local community center volunteering with youth. He noted that he “has never seen [Petitioner] become overwhelmed by a given task or assignment.” Along with his exemption application, Petitioner also submitted a personal letter from Judge Coleman. Petitioner received the unsolicited letter in April 2015 following Petitioner’s release from court supervision. In the letter, Judge Coleman acknowledged that he “cannot remember writing a letter like this before” but wanted to congratulate Petitioner. The letter reads, as follows: As you know, I made several decisions to give you additional time and chances to succeed despite the opposition of others. I had faith in you because I saw something in you - a determination and focus. By your actions you have justified my faith in you and I admire you for that. I am very proud of you and I know that you will go on to accomplish great things with your life. As you know, I see many people daily and I cannot always remember faces, so I request this of you. If you see me somewhere and recognize me, come and see me so I can congratulate you in person. I wish you all the best life has to offer. Keep working hard. Ultimate Facts Many of Petitioner’s recent decisions and pursuits demonstrate a commitment to a life of responsibility to family and community, concern and respect for others, and the importance of steady and reliable work. Petitioner’s volunteerism is commendable, as well as his remarriage and support of his children. Judge Coleman’s letter is evidence of Petitioner’s determination to better himself and to overcome his prior poor decisions. However, many of the facts established about Petitioner are grounds for the Agency to question his fitness to work with the most vulnerable clients. Petitioner’s attempts to downplay his involvement in the 1998 felonies evidence a lack of true remorse for his actions. His willingness to lie to a police officer, as recently as 2011, evidence a lack of respect for law enforcement, and his lack of separation from his cousins, who have been a bad influence in his past, supports the Agency’s uneasiness concerning Petitioner’s future decisions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 25th day of January, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 25th day of January, 2017.
The Issue Whether the Petitioner, Juan Ramon Leal, is entitled to be licensed as resident legal expense sales representative.
Findings Of Fact At all times material to the allegations of this case, the Respondent is the state agency charged with the responsibility of regulating persons seeking licenses to become resident legal expense sales representatives. As such the Respondent appropriately received and considered the application for licensure submitted by the Petitioner on or about April 3, 2002. On June 27, 2002, the Respondent issued its decision regarding the Petitioner's application for licensure. Such decision denied Petitioner's request based upon his criminal history and the short amount of time that had elapsed between the alleged criminal activity and the application for licensure. On July 6, 2000, when he was 20 years of age, the Petitioner was arrested for possession of a controlled substance, unauthorized possession of a driver's license, and carrying a concealed weapon. As to the controlled substance charge, at the time of the arrest, the Petitioner was delivering to an individual, who was a confidential informant for the police, 400 tablets of a drug commonly known as ecstasy. The Petitioner knew that the package contained an illegal substance and that he was committing an illegal act. As to the charge of possessing an unauthorized driver's license, the Petitioner held fake identification so that when carded at dance clubs he could enter with his older girlfriend. There is no evidence that the fake license was used for any other purpose. As to the charge of possession of a concealed weapon, the Petitioner was arrested and his vehicle was thoroughly searched. The "concealed weapon" was a hunting knife under the seat or in the crack of the seats. The knife was not presented in the course of any of the activities cited by the police. In fact, the arresting officer described the Petitioner as "sincerely remorseful" and "cooperative." Subsequent to his arrest the Petitioner attempted to assist the police but proved unsuccessful. On May 10, 2001, the Petitioner pled nolo contendere to the possession charges. As he had no prior criminal record, adjudication of guilt was withheld and he was placed on probation. The Petitioner successfully completed all requirements of his probation. Thereafter, on March 14, 2002, the probation was terminated. On April 3, 2002, within the month of his probation being completed, Petitioner applied for the license at issue in this proceeding. Because the Department denied the license, the Petitioner sought the instant administrative review of the denial and sought relief from the criminal court having jurisdiction over his probation and record. To that end, Petitioner obtained an Order to Seal his criminal records. This order was entered on August 15, 2002. Had the Petitioner waited until after that date to apply for licensure, the pertinent criminal records would have been under seal and therefore unavailable for review. It is the Department's position that the Petitioner lacks fitness and trustworthiness to hold the license based upon the nature of the criminal activity and the recentness in time to the application for licensure. The Petitioner's employer, Nicolo Bonanno, testified that the Petitioner is a trustworthy employee, that he has had business dealings with the Petitioner for approximately 3 years, and that he has no hesitation in supporting his licensure. Mr. Bonanno is himself a licensee through the Department. The arresting officer expressed complimentary statements regarding the Petitioner including his demeanor during and subsequent to the arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order granting the license sought by the Petitioner. DONE AND ENTERED this 23rd day of January, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 23rd day of January, 2003 COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Eugene J. LaNeve, Esquire 717 Ponce de Leon Boulevard Suite 215 Coral Gables, Florida 33134 Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, the Respondent, Robert R. Sylvester, was certified as a law enforcement officer by the Florida Criminal Justice Standards and Training Commission. Respondent was issued certificate number 02-14567 on August 29, 1975. At the time of the hearing in this matter, Respondent was forty-six years old. Prior to becoming a police officer, Respondent was honorably discharged from the Marine Corps after three years of service and after achieving the rank of sergeant. Respondent's unblemished record of service in the Marine Corps included twenty-three months of active duty in Viet Nam and assignment to the security forces responsible for guarding the Presidents of the United States and South Viet Nam. Respondent began working with the Delray Beach Police Department ("DBPD") in 1975. At some point in 1979, the Delray Beach Police Department hired a new police chief. As discussed in more detail below, Respondent had a long feud with the new police chief beginning in approximately mid-1980 There is no evidence of any problems with Respondent's job performance at the DBPD or any dissatisfaction with his work until April or May of 1980, when Respondent and another officer were accused of using excessive force in the arrest of a shoplifter. Respondent was in line for a promotion prior to the complaint being lodged against him. The allegations against Respondent received wide publicity and, apparently as a result, Respondent was not promoted. After an investigation, the Chief of Police recommended that Respondent receive a thirty-day suspension without pay for the use of excessive force. Respondent contested the results of the investigation and was exonerated by the police department's five-man review board and by a grand jury. A federal civil rights investigation also found no basis for the charges against Respondent. Despite these findings, the City Manager imposed a 5-day suspension on Respondent. Under the existing Civil Service Rules, Respondent could not appeal that ruling. Respondent brought a civil action against the City Manager and the Chief of Police alleging that their actions in disciplining him violated his statutory, contractual and constitutional rights. A jury returned a verdict in favor of Respondent and awarded him $75,000 in compensatory damages and $25,000 in punitive damages. Respondent's lawsuit was appealed all the way to the Florida Supreme Court and was tied up in the courts for more than ten years. The suit was still not completely resolved at the time of the hearing in this case. During this entire time, Respondent continued to work for the DBPD. At the time of the hearing in this matter, Respondent was still a patrolman. Respondent has been passed over for promotion several times while his lawsuit has been pending against the Police Chief. He contends that throughout this period he has received unfavorable assignments and has been harassed by his supervisors. During this same time period, Respondent also became active in the police union serving as a bargaining agent and later as the president of the local organization. As a result of these matters, Respondent claims that his actions were very closely scrutinized by the DBPD and, consequently, he scrupulously tried to avoid even the appearance of impropriety in all of his actions. On November 13, 1989, the DBPD sought to terminate Respondent from employment alleging that he had improperly disseminated criminal history records and phone rosters of Delray Beach police officers to a private investigator named Virginia Snyder and/or her associate, Donald Pierce. Virginia Snyder was a former newspaper reporter in Delray Beach who subsequently started a business as a private investigator. She was a long-time and very vocal public critic of the DBPD and its chief. Donald Pierce was a former Delray Beach police officer who resigned from the police department and became a private investigator. He was associated on a part-time basis with Virginia Snyder's investigative agency. Respondent and Pierce served together as officers of the local police union. After he quit the DBPD, Pierce remained active in union affairs. Respondent successfully challenged his dismissal in a labor arbitration proceeding. He similarly prevailed in two separate unemployment compensation hearings. The only witness who claimed direct knowledge that Respondent provided confidential documents to Virginia Snyder and/or Donald Pierce was Nancy Adams. No other witness testified in this proceeding or in Respondent's labor arbitration or unemployment hearings that Respondent improperly delivered confidential documents. Respondent, Virginia Snyder and Donald Price have all disputed Ms. Adams testimony. Thus, this case boils down to whether Nancy Adams' testimony should be accepted. Nancy Adams began working for Virginia Snyder as a volunteer in Ms. Snyder's office beginning in approximately mid-May 1989. The circumstances under which Ms. Adams began working at Ms. Snyder's office are somewhat curious. Ms. Adams called Ms. Snyder inquiring about bodyguard or protective services which Ms. Snyder told her were not the types of services offered by the company. Ms. Adams then indicated that she was interested in learning the private investigation business. After much prodding by Ms. Adams, Ms. Snyder agreed to help her learn about the business by letting her observe what was done in the office. Ms. Adams demonstrated great eagerness and curiosity and volunteered to assist on various matters. In fact, she repeatedly offered to testify in proceedings of which she had no direct knowledge. Ms. Adams was not paid for her services. Within a week or so after she started working with Ms. Snyder, Ms. Adams began meeting with DBPD officers regarding alleged confidential information that she observed in Ms. Snyder's office. During June and July of 1989, Ms. Adams met with Sgt. Musco of the DBPD numerous times, usually a couple times a week. She provided him with documents that she claimed to have been obtained from Virginia Snyder, Donald Pierce and/or Respondent. Other than Ms. Snyder's public allegations, no evidence was presented to establish that the DBPD solicited or planted Ms. Adams in Ms. Snyder's office. Lieutenant Lunsford, who assumed responsibility for the investigation approximately two months after the meetings began between Ms. Adams and other DBPD officers and around the time the entire incident became public with a great deal of fan-fare, was very credible and forthwright. He accepted Ms. Adams statements regarding the Respondent based upon what he felt was corroborative circumstantial evidence, but candidly admitted that "I would say I'd question things that she said in general conversation, yes . . . it sometimes would take a lot to convince me about some of the things she said, yes." At the hearing in this matter Ms. Adams' testimony was often vague and sometimes contradictory and inconsistent. While some of her memory lapses can be attributed to the passage of time, the vagaries, inconsistencies and contradictions in her testimony make it difficult to decipher fact from fiction. NCIC/FCIC Records The National Crime Information Center (NCIC) and the Florida Crime Information Center (FCIC) maintain criminal history records that can be accessed by computer. The computer records also contain automobile registration information. Law enforcement agencies can obtain access to the NCIC/FCIC System by obtaining an appropriate computer terminal. Law enforcement personnel who utilize the computer are supposed to obtain a certification. As part of his duties with the Police Department, Respondent was trained to access NCIC/FCIC information through the NCIC/FCIC computer terminal. In order to obtain this certification, Respondent had to become familiar with the operation of the terminal and the restrictions on access to the information contained in the system. Section 943.053(2), Florida Statutes, provides that "criminal justice information derived from federal criminal justice information systems or criminal justice information systems of other states shall not be dessiminated in a manner inconsistent with the laws, regulations, or rules of the originating agency." 28 CFR Section 20.21(f)(4)(b) provides that "law enforcement agencies are required to provide that direct access to criminal history record information shall be availble only to authorized officers or employees of criminal justice agencies and, as necessary, other authorized personnel essential to proper operation of the criminal justice history record information system." As a result of his training, Respondent knew that sanctions could be imposed against a law enforcement agency for misuse of the criminal history records obtained through the computer access to the NCIC/FCIC System. Respondent also knew that use of the limited access information obtained over the terminal for personal gain could result in criminal prosecution. The general public can obtain access to certain information in the NCIC/FCIC System through the Public Records Act, Chapter 119, Florida Statutes. The information available under the Florida Public Records Law regarding criminal history records is different from the information available to law enforcement officers accessing those records for a criminal justice purpose. The public records access is limited to in-state criminal history records and does not include sealed criminal history records. Law enforcement officers accessing the records for a criminal justice purpose have access to both non- Florida criminal history records and sealed criminal history records. Since 1974, the Florida Department of Law Enforcement has maintained an automated data base, identified as the centralized criminal history dissemination file. This data base is comprised of records of the dissemination of Florida criminal history records from the NCIC/FCIC System as a result of both law enforcement requests and public sector requests. At the Delray Beach Police Department, the NCIC/FCIC computer terminal was located on the second floor near the police and fire dispatchers. The evidence presented in this case established that, while the door to the room was supposed to be locked, there was relatively free access to the room and computer terminal. During the spring and summer of 1989, Respondent was the only Delray Beach patrolman certified to use the NCIC/FCIC computer, but all of the dispatchers for the DBPD were certified. In addition, some officers utilized the computer even though they had not been certified. The evidence indicates that there was very little control over the dissemination of NCIC/FCIC information obtained via the computer. Some reports were distributed with little or no concern paid to protecting the security of the information. Ms. Adams contends that, during the time she was volunteering at Ms. Snyder's office, she observed that Ms. Snyder and Donald Pierce had NCIC/FCIC criminal history records on certain individuals. The evidence established that Respondent was the computer operator at the time that certain NCIC/FCIC criminal history records which later were turned over by Nancy Adams to the Delray Beach Police Department were generated. However, the evidence did not clearly establish that Respondent turned any such records over to Virginia Snyder, Donald Pierce, Nancy Adams, or any other unauthorized person. At the hearing in this case, Ms. Adams could not specifically tie Respondent to the delivery of any NCIC/FCIC records to Virginia Snyder or anyone else except in one case. She testified that the criminal records of Manuel Garcia were delivered by Respondent to Donald Pierce at a restaurant in Boca Raton. Previously, she had told Sgt. Musco of the DBPD that Manual Garcia's record was taken from Virginia Snyder's office. Ms. Adams also testified that she was told by Virginia Snyder and Donald Pierce that they regularly received NCIC/FCIC criminal history records from Respondent and that she heard Donald Pierce call Respondent and request certain NCIC/FCIC records. This testimony has been disputed by Respondent, Virginia Snyder and Donald Pierce. In her various statements, Ms. Adams has given different versions for the source of many of the documents that she turned over to the DBPD. At different times, the documents were alleged to have been handed to her by Respondent, given to her by Donald Pierce, removed from Virginia Snyder's office and/or Donald Pierce's truck. It is impossible to reconcile the sometimes conflicting stories on the source(s) of the documents. These inconsistencies and the questions raised regarding Ms. Adams' credibility lead to the conclusion that Petitioner has not met its burden of proof in this case. While it is conceivable that Virginia Snyder and/or Donald Pierce had some NCIC/FCIC records in their possession at certain times, it can not be concluded from the evidence produced in this case that Respondent was the source of any of those documents. There are a number of possible ways that Ms. Adams, Ms. Snyder and/or Donald Pierce could have obtained copies of NCIC/FCIC printouts. In fact, in earlier testimony Ms. Adams alluded to another alleged source that Ms. Snyder and Mr. Pierce had at the DBPD and/or the sheriff's office. While the explanations offered by Respondent as to why he requested certain criminal history records were not totally satisfactory, the evidence was not clear and convincing that Respondent turned such documents over to any unauthorized individual. Phone lists Ms. Adams also testified that Respondent provided Virginia Snyder with confidential phone lists of the Delray Beach police officers. The evidence established that those phone lists were widely disseminated and that Virginia Snyder had access to those lists from several sources. In fact, Ms. Snyder had copies of such lists dating back more than ten years, even though there is no evidence that Ms. Snyder had any dealings with Respondent until 1989 when Donald Pierce began doing some work for her. Thus, it appears that Ms. Snyder had a source for obtaining the phone lists long before she ever met Respondent. The evidence was not convincing that Respondent directly provided any such lists to Virginia Snyder. Respondent admits providing some phone lists to Donald Pierce in connection with Mr. Pierce's continuing involvement with the police union. Petitioner has not established that the dissemination of the phone lists to Donald Pierce was improper. Conclusion Respondent admits "running license tags" for Donald Pierce on the computer and verbally providing Mr. Pierce with the resulting non-confidential information. However, he denies ever providing any NCIC/FCIC criminal record printouts to Donald Pierce, Virginia Snyder or Nancy Adams. Respondent's close association with Donald Pierce and his willingness to provide him with phone lists and verbal information obtained from "running license tags" certainly raises some questions as to his judgment. In addition, Respondent did not carefully guard the confidentially of the criminal history records that he admittedly obtained. However, the evidence indicates that such information was not closely protected throughout the Department. In sum, the evidence did not clearly and convincingly establish that Respondent was lacking of good moral character.
Recommendation Based upon 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 the evidence insufficient to prove that Respondent is guilty, as charged, of having failed to maintain "good moral character" in violation of Section 943.1395, Florida Statutes, and dismissing the Administrative Complaint issued against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of March 1994. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of March 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-6175 As noted in the Preliminary Statement, only Petitioner submitted separately identified and numbered proposed findings of fact. The following rulings are made on the proposed findings of fact submitted by Petitioner. Adopted in substance in findings of fact 1. Adopted insubstance in findings of fact 21. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Adopted in pertinent part in findings of fact 31. Adopted in pertinent part in findings of fact 24 and 30. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 22. Adopted in substance in findings of fact 23. Rejected as unnecessary. The subject matter is addressed in findings of fact 30. Addressed in the Preliminary Statement. Rejected as unnecessary. Rejected as unnecessary. Subordinate to findings of fact 16 and 27-30. 15-21. Subordinate to findings of fact 16 and 27-30. COPIES FURNISHED: John P. Booth, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jack Scarola, Esquire Searcy, Denney, Scarola, et al. 2139 Palm Beach Lakes Boulevard Post Office Drawer 3626 West Palm Beach, Florida 33402-3626 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Petitioner should be exempt from disqualification for employment in a position of trust, pursuant to section 435.07, Florida Statutes.1/
Findings Of Fact AHCA is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed by AHCA. See § 408.809(1)(a), Fla. Stat. (employees subject to screening); § 408.803(9), Fla. Stat. (definition of “licensee”). Petitioner was required to participate in Respondent’s background screening process because he sought employment in a position providing direct services to residents of a health care facility licensed by AHCA under chapter 400, Florida Statutes. Petitioner underwent the required background screening, which revealed: On or about May 6, 1996, in Case No. 1995MM007600, Petitioner was adjudicated guilty of Battery under section 784.03(1)(a)1., Florida Statutes. At the time of this offense, Petitioner and Teresa Poole, the alleged victim, resided together or shared the same dwelling. On or about May 15, 2002, in Case No. 2002CF000065, Petitioner pled no contest to Battery under section 784.03(1)(a)1., a misdemeanor. Adjudication was withheld. At the time of this offense, Petitioner was residing with or was sharing the same dwelling with Erica Goode, the alleged victim. On or about July 6, 2009, in Case No. 2009MM000294, Petitioner pled no contest to Battery under section 784.03(1)(a)1. Christine Crowley, the alleged victim, and Petitioner are related by blood and have previously resided together in the same dwelling. Christine Crowley is Petitioner’s biological sister. Each of the above-referenced battery charges constitutes Domestic Violence under section 741.28, Florida Statutes. Under sections 435.04(3) and 408.809(4)(e), Florida Statutes, the above-referenced criminal offenses disqualify Petitioner from providing services in a health care facility licensed by AHCA, unless AHCA grants Petitioner an exemption pursuant to section 435.07. In addition to his disqualifying offenses, Petitioner's background screening revealed: On or about September 18, 1998, in Case No. 1998CF000638, Petitioner was arrested for Aggravated Battery under section 784.045(1)(a)1. Although Petitioner was not ultimately convicted, at the time of this charged offense, Petitioner was residing with or had previously resided with the alleged victim, Christina McCullum, in the same dwelling. A conviction of this charge would constitute Domestic Violence under section 741.28. On or about September 21, 1998, in Case No. 1998CT003202, Petitioner pled no contest to Driving While License Suspended (With Knowledge) under section 322.34(2), Florida Statutes. Petitioner maintains that he did not actually have knowledge. On or about February 1, 1999, in Case No. 1999CT00187, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about February 24, 1999, in Case No. 1998CT004442, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about January 25, 1999, in Case No. 1999CF000264, Petitioner was arrested for Burglary under section 810.02(3)(b) and Battery under section 784.03(1)(a)1. At the time of these offenses, Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about April 14, 1999, in Case No. 1999MM000766, Petitioner was arrested for Assault under section 784.011. Petitioner was not ultimately convicted. On or about July 14, 1999, in Case No. 1999CF2483, Petitioner was arrested for Aggravated Battery under section 784.045. Petitioner was not ultimately convicted. At the time of this alleged offense, the Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about December 12, 1999, in Case No. 1999CF000727 (later transferred to 1999MM002249), Petitioner was arrested for Battery under section 784.03(1)(a)1. and Resisting without Violence under section 843.02. At the time, Petitioner had previously resided with the victim, Christina McCullum in the same dwelling. The battery charge constitutes Domestic Violence under section 741.28. Petitioner was adjudicated guilty of the above-referenced Resisting without Violence charge and sentenced to a year of probation with a special condition of completion of a Batterer’s Intervention Program. i. On or about July 30, 2002, in Case No. 2002MM007400, Petitioner was charged for giving a worthless check under section 832.05(2), but the charges were ultimately dismissed. On or about November 5, 2003, in Case No. 2003CF000692, Petitioner was charged with Aggravated Battery under section 784.045(1)(a)1. Petitioner was not ultimately convicted. On or about March 18, 2004, in Case No. 2004CF000185, Petitioner was charged with Dealing in Stolen Property, under section 812.019(1). Petitioner was not ultimately convicted. On or about June 3, 2009, in Case No. 2009CF000362, Petitioner was charged with Burglary under section 810.02(3)(c) and Petit Theft under section 812.014(3)(a), Florida Statutes. Petitioner was not ultimately convicted. At the time of the above- referenced charges, Petitioner was the former spouse of, and had previously resided with, the alleged victim, Erica Goode/Crowley in the same dwelling. On or about June 26, 2009, in Case No. 2009MM000678, Petitioner was arrested for Battery under section 784.03(1)(a)1. and Disorderly Conduct (Affray) under section 870.01(1). Petitioner was not ultimately convicted. On or about July 9, 2009, in Case No. 2009MM000721, Petitioner was charged with violating a No Contact Order issued by the first appearance judge in the case referenced above. Petitioner was not ultimately convicted. On or about August 21, 2009, in Case No. 2009MM000922, Petitioner was arrested for Battery under section 784.03(1)(a)1. Petitioner was not ultimately convicted. At the time of this arrest, Petitioner was residing in the same dwelling with the alleged victim, Michelle Vanhoose. On or about January 2011, in Case No. 2010CF000620, Petitioner was adjudicated guilty of Aggravated Stalking under section 784.048(3), Florida Statutes. Licensed professionals under the Department of Health may work at a facility licensed by AHCA, if granted an exemption by the Department of Health, but may only work within the scope of that professional license, unless AHCA itself grants the applicant an exemption. Petitioner does not have an active license or exemption from disqualification from the Department of Health. Petitioner does not dispute that he has disqualifying offenses and subsequent criminal history, but claims his application and entire file support his rehabilitation by clear and convincing evidence. AHCA received Petitioner’s application for exemption in accordance with sections 408.809 and 435.07, on or about June 15, 2017. AHCA conducted a telephonic hearing with Petitioner on August 2, 2017. During the telephonic hearing, in addition to discussing the results of Petitioner’s background screening, as evidence of his rehabilitation, Petitioner pointed out that he has been working, getting an education, and has not been arrested in six years. Petitioner also submitted several positive letters of recommendation from close friends and family. After the telephonic hearing, AHCA denied Petitioner’s request for an exemption and sent Petitioner the Denial Letter, signed by AHCA’s manager for the Background Screening Unit, Samantha Heyn, on behalf of AHCA. Although Ms. Heyn did not attend AHCA’s telephonic hearing with Petitioner, she previously spoke to Petitioner in a phone call about his exemption request. In making the decision to deny Petitioner’s application, Ms. Heyn and pertinent AHCA staff with the background screening unit considered Petitioner’s entire case file, including all submissions received from Petitioner and his explanations during the teleconferences. AHCA also considered the time elapsed since the offenses, the nature and harm to the victims, the circumstances surrounding the offenses, Petitioner’s history since the offenses, and all other supporting documentation provided by Petitioner before deciding to deny Petitioner's request for exemption from disqualification. Petitioner testified that he has ambitions to work as a licensed health care professional. During the administrative hearing, Petitioner testified that he is in his current predicament because of vindictive people falsely accusing him of crimes, and AHCA personnel who have labeled him a criminal. Similarly, during his earlier teleconference with AHCA, Petitioner stated that he was in his current situation due to racism, labeling, vindictive people out to destroy him, and other factors out of his control. Petitioner’s statements at the initial teleconference with AHCA were conflicting as to whether the courses he took for batterer’s intervention and anger management were court-ordered, conditions of a plea deal with prosecutors, or fully voluntary outside of the criminal justice system. Petitioner was arrested for violent and domestic crimes after taking each course. While Petitioner has stated that he takes full responsibility for his actions, his other statements at the teleconference and at the administrative hearing reflect a lack of candor and an unwillingness to accept responsibility for his past criminal episodes. While the letters of recommendation from close family and friends, successful educational pursuits, and a clean record for the last six years demonstrate progress toward rehabilitation, this fairly recent success does not annul Petitioner's extensive criminal history, lack of candor, and unwillingness to accept responsibility. The records of successful exemption applicants offered by Petitioner were not helpful to Petitioner’s case. The criminal backgrounds were not the same as Petitioner’s and the evidence was insufficient to permit a useful comparison between the facts and circumstances of those applicants with those of Petitioner. In view of all of the evidence, it is found that Petitioner failed to meet his burden to prove by clear and convincing evidence of rehabilitation when he presented his case to AHCA, and the evidence presented at the final hearing failed to demonstrate that AHCA abused its discretion in denying Petitioner’s request for exemption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 16th day of March, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 16th day of March, 2018.
