Findings Of Fact Respondent, Joan B. Cross, is a registered real estate salesperson holding certificate number 0018497. On her application for registration in November, 1972, in answer to question 9 pertaining to having been arrested for or charged with the commission of an offense against the laws of the municipality or state, she answered "yes". She completed the "If yes, state details in full" question with "careless driving, 7-27-69 DWI 1970". Exhibit 2, Certified Copy of Court Record, shows that on May 6, 1965 Respondent was convicted of disorderly conduct and fined $15.00. Exhibit 3 and 4, Certified Records from the Criminal Court of Record, show that on June 9, 1969 Respondent was charged with, and found guilty of, unlawful possession of marijuana and of contributing to the dependency of minors. Adjudication of guilt was withheld and Respondent was placed on probation for 18 months. Testifying in her own defense Respondent acknowledged both offenses. With respect to the disorderly conduct charge, she stated she forgot to include that on her application. Following a lunch birthday party the group retired to a bar and when they became too noisy the police came and took them to the police station. With respect to the charges of possession of marijuana and barbiturates she testified that she was represented by counsel who advised her after the trial that she was not adjudicated and that she could forget the incident. She testified that she understood all record of this incident had been expunged, and that she could forget it. She also testified she didn't fully understand withholding adjudication of guilt. In this regard it is noted that she pleaded guilty to possession of marijuana and nolo contendere to the charge of contributing to the dependency of minors.
The Issue The issue is whether Petitioner's Charge of Discrimination should be dismissed as untimely pursuant to Section 760.11, Florida Statutes.
Findings Of Fact Petitioner's Charge of Discrimination dated June 2, 1998, alleges that Respondent discriminated against him because of his age and in retaliation for opposing illegal behavior. FCHR received the Charge of Discrimination on June 18, 1998. For purposes of this Recommended Order of Dismissal, it is assumed that the Charge of Discrimination was timely filed with FCHR. As of December 15, 1998, 180 days after Petitioner filed his Charge of Discrimination, FCHR had not assigned an investigator to investigate Petitioner's complaint or taken any other action related to the complaint. As of January 19, 1999, 35 days after December 15, 1998, Petitioner had not requested an administrative hearing. By letter dated June 2, 1999, Petitioner requested FCHR to forward his complaint to the Division of Administrative Hearings. FCHR received the request for an administrative hearing on June 7, 1999. This request was filed 354 days after June 18, 1998, 174 days after December 15, 1998, and 139 days after January 19, 1999. Petitioner does not argue or present any facts to support a finding that the doctrines of equitable tolling or excusable neglect apply in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
Findings Of Fact Richard Stephan Flatt, M.D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation (Petitioner) as a medical doctor and was so licensed at all times here relevant. Respondent has been a Board certified Dermatologist since 1957 and has practiced Dermatology in Sarasota for some 20 years. He is 54 years old. Tana Williams was a patient of Respondent in 1971 when he first treated her for warts, and he also treated Ms. Williams' daughter. Afterward she left Sarasota but returned in 1975 or 1976, at which time she was divorced. She visited Respondent's office for treatment of warts on 5 April 1976. Her appointment was near the close of Respondent's office hours. During this visit she told Respondent she was divorced; that she liked older men; and that she would like to see him socially. He suggested she come back to the office after 5:30 p.m. when his nurse normally departed. Upon her return after 5:30, Respondent and Ms. Williams discussed an arrangement whereby he would contribute $250 per month towards her support and spend weekends at the apartment she would occupy. According to Respondent's testimony, at this time he was going through a mid-life crisis and was delighted with the prospects of being desired by a woman 23 years his junior. Some two weeks later the first weekend was shared. Although the situation was very satisfactory to Respondent, the $250 per month was insufficient even to pay the rent, let alone satisfy Ms. Williams' money requirements. Accordingly, Respondent found the liaison was costing more than he could fund from his ready cash. After the 5 April 1976 visit, Ms. Williams did not again visit Respondent's office, or consider herself Respondent' s patient. In addition to cash, Ms. Williams also wanted drugs for her nervous condition and Respondent began supplying her with Quaaludes in the latter part of 1978. By 1979, Ms. Williams was psychologically dependent on Quaaludes and was taking 10 to 12 per day. As Respondent became more financially strapped the Quaaludes were provided for the additional purpose of being converted by Ms. Williams into cash to help maintain her life style. In 1976 Respondent began ordering Quaaludes and Preludin from New York drug houses under his DEA authorization. The Quaaludes started out in quantities of 200 every few months but increased to 1,000 nearly every month by the end of 1979. Most, if not all, of the 11,000 300 mg. Quaaludes Respondent ordered on an Official Order Form for Controlled Substances were given to Ms. Williams. In addition, Respondent ordered Preludin which he also gave to Ms. Williams. Both Preludin and Quaaludes are Class II controlled substances. Due to Ms. Williams' increasing dependence on Quaaludes, nearly half of these drugs given her by Respondent were taken by her. Petitioner presented no evidence that Preludin was wrongfully prescribed or abused. During the nearly four years the relationship continued, several interruptions occurred, due largely to Ms. Williams' living with other men, one of whom she married for a short period of about two months. During the periods Ms. Williams was living with other men, she would contact Respondent to continue or renew their liaison and even threatened suicide and to publicize their relationship to his wife if he did not continue to see her. In the latter months of their association, assignations were arranged at motels at which Respondent gave Ms. Williams money and/or drugs in exchange for sex. In addition to supplying Ms. Williams with drugs obtained on Official Order Forms, Respondent also wrote prescriptions in Ms. Williams' name, in the names of his children, or in the name of a fictitious person. Those prescriptions written in names other than Ms. Williams, Respondent took to Wallpole's Pharmacy personally and picked up the drugs. By this procedure from late 1978 through 1979 Respondent acquired an additional 1,249 300-mg. Quaaludes, 150 Preludin Endurettes, and 100 Preludin tablets which he gave to Ms. Williams. Using a confidential informant, the Sarasota police made two controlled buys of Quaaludes from Ms. Williams and on one of these occasions the informant was wired for sound so his conversations with Ms. Williams could be monitored. With information received from the confidential informant and a surveillance of Ms. Williams' residence, the police became aware that Respondent was Ms. Williams' supplier of drugs. On the morning of 8 February 1980, Ms. Williams was arrested at her home on charges of possession and sale of controlled substances. After being advised of her rights, she was taken down to the State Attorney's office where she was told that she could get up to 10 years in prison for possession and sale of drugs, but that if she cooperated with the police in their case against Respondent, the State Attorney's office would recommend probation rather than jail when she was sentenced. Prior to the arrest of Ms. Williams the Sarasota Police, state and federal drug authorities were aware of Respondent's involvement and were investigating. Respondent, too, was aware of his increasing vulnerability to criminal prosecution and requested a pharmacist to pass the word to the proper authorities that he would like to surrender his DEA certificate, under the authority of which he ordered controlled substances. On February 12, 1980 federal, state and local authorities, armed with information that Respondent had ordered some 11,000 Quaaludes from three New York drug companies during the period from 1976 to the present, visited Respondent's office, told him he was suspected of narcotics violation, read him his rights and asked to see his records. Respondent cooperated fully with the authorities and presented his records which confirmed that Respondent could not account for more than 10,600 Quaaludes during the period from 1976 to the date of the inspection. Respondent made a voluntary statement to the police in which he acknowledged many of the facts noted above. He also voluntarily surrendered his narcotics license. On 22 May 1980, Respondent pleaded guilty in the Circuit Court in and for Sarasota County of two counts of possession of methaqualone and two counts of sale of methaqualone. Adjudication of guilt was withheld, but the Court sentenced Respondent to probation for a period of three years and a $5,000.00 fine on each of the two counts of possession and sale.
The Issue Should Petitioner impose discipline on Respondent's correctional certificate for alleged violations set forth in the Administrative Complaint, Case No. 17450?
Findings Of Fact Based upon the election of rights and proof identifying Respondent's employment with the Florida Department of Corrections, it is inferred that Respondent is certified as a corrections officer by Petitioner. It is perceived that Respondent, in his contest of material facts, disagrees with the allegations in paragraph two to the Administrative Complaint, as those facts might reveal a violation of statutes and rules referred to in the Administrative Complaint in its latter provisions. Respondent rented an acoustic guitar and an item referred to as a "gig-bag" from Guitar Renters in its Gainesville, Florida store. The amount of rental was $30.74 for the period November 16, 1999, through December 11, 1999. The overdue rate for the rental was $2.97 per day. The retail value of the instrument and bag was identified in the rental agreement as $345.00. The rental contract was executed by Respondent agreeing to those terms. The contract made clear that the arrangement was for rental only and not for sale. There was a specific reminder that any rental over 10 days past due would be reported to the police department as a stolen item. Respondent did not timely return the guitar and bag consistent with the contract terms. As a consequence, the proprietors at Guitar Renters sent letters in the ordinary mail to remind Respondent that he was late in returning the items. No response was made to those letters. A certified letter was sent to Respondent reminding him of his obligation to return the equipment. Again Respondent failed to respond. Scott Tennyson, who managed the Gainesville store, telephoned Respondent about the overdue items. Respondent replied that he could not return the instrument. When asked why, Respondent indicated that he had pawned the instrument. Mr. Tennyson told Respondent that if the matter were not resolved in some fashion, namely for Respondent to go back and get the guitar from the pawnshop and bring it to the owner, then criminal charges would be filed. Consistent with that statement, a complaint was made and criminal charges were filed in the Circuit Court in and for Alachua County, Florida, Court No. 01-2000-01573-CFA, C.R. No. 007601, Division One. This case was pursuant to a sworn complaint from the Gainesville Police Department charging Respondent with grand theft. The case was subsequently nolle prosequi/no information, based upon what is referred to in that dismissal, as an appropriate administrative action deemed sufficient in lieu of prosecution. On June 25, 2001, the matter was resolved to the satisfaction of Guitar Renters when Respondent made payment in full on the items that he had rented. In effect, the items were sold by way of restitution at their stated value when the rental contract was made.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking Respondent's correctional certificate. DONE AND ENTERED this 20th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 August, 2003. COPIES FURNISHED: Kevin Dannunzio 1718 Spring Street Lake City, Florida 32025 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon the record evidence, the following Findings of Facts are made: Idaliza Roman is employed by Respondent as a Collections Specialist II. She is assigned to Respondent's Plantation, Florida office. As part of her job responsibilities, she issues assessments against persons suspected of having engaged in illicit drug activity made taxable by Section 212.0505, Florida Statutes. On October 13, 1989, Roman issued such an assessment against Petitioner. She also issued and filed a tax warrant based on the assessment. The assessment alleged that, on or about August 16, 1989, Petitioner had engaged in a taxable transaction involving 27 kilograms of cocaine. In making this allegation, Roman relied exclusively upon information she had gleaned from a probable cause affidavit contained in a court file, as well as a laboratory report and a property room receipt. She conducted no further investigation into the matter before issuing the assessment. The probable cause affidavit upon which Roman relied reflected that Petitioner had been arrested on August 16, 1989, for a cocaine-related offense. It did not reveal, however, when the alleged offense had been committed. Roman assumed, erroneously, that it had been committed on or about the date of Petitioner's arrest. The arrest actually had been for an offense, involving substantially less than 27 kilograms of cocaine, that Petitioner had allegedly committed in January, 1989. The authorities had no information that Petitioner had been involved in any illicit, drug-related activity on or about August 16, 1989. On April 3, 1990, Roman discovered that the October 13, 1989, assessment against Petitioner and the tax warrant she had issued based on the assessment were incorrect. She thereupon issued and filed a "corrected" tax warrant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be issued sustaining Petitioner's challenge to the October 13, 1989, jeopardy assessment issued against him and rescinding the assessment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of May, 1990. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1990.
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated June 21, 1990; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of pursuing disciplinary actions against real estate licensees. At all times material to the allegations of the administrative complaint, Respondent is and has been a licensed real estate salesman in the State of Florida having been issued license number 0347386. On May 7, 1987, the Respondent was charged with seven counts of criminal misconduct. The charging document, an information filed by the State Attorney of the Third Judicial Circuit of Florida, alleged that Respondent had: solicited to commit extortion while armed; solicited to commit murder I while armed; delivered a controlled substance; possessed a controlled substance with intent to sell or deliver; committed grand theft II; and carried a concealed firearm during a felony. Subsequently, Respondent was tried and found guilty of: solicitation to commit extortion (a 3rd degree felony); solicitation to commit murder I (a 1st degree felony); delivery of a controlled substance (a 3rd degree felony); grand theft II (a 3rd degree felony) ; and carrying a concealed firearm (a 3rd degree felony). The judgment of guilt was entered on September 9, 1987. Respondent received a sentence for each of the convictions noted above and was committed to the Department of Corrections with credit for the 150 days of incarceration in the county system he had spent prior to the imposition of the sentences. All sentences ran concurrent with one another. During the time of his incarceration (on or about September 30, 1987), Respondent's real estate license expired. At that time, Respondent mistakenly presumed he was not required to send a notice of the convictions to the Real Estate Commission and, therefore, did not do so. In July, 1989, Respondent was released from prison. Upon his release, Respondent considered what action would be needed to renew his real estate license. To that end, he took a continuing education course and discovered he should have notified the Real Estate Commission of his felony convictions. On March 10, 1990, Respondent wrote a letter to the Real Estate Commission which stated, in part: My name is Gene Stephen Wilson, expired license #0347386. My license expired September 30, 1987. In September 1987, while working in another profession, I was convicted, sentenced and served two and one- half years in a Correctional Institution for a felony charge. Since my license was expired, I did not realize that I was required to report to FREC at that time. Now, after completing my sentence, I have been granted an Order of Executive Clemency by the Governor of the State of Florida. On October 5, 1989, the Governor, with the concurrence of the requisite members of the Cabinet of the State of Florida, filed an Executive Order which granted to Respondent the restoration of his civil rights. Anne Frost, a real estate broker, and Deborah J. Mickle, a real estate agent with Anne Frost, Inc., submitted written statements which attest that, based upon their experiences with the Respondent, he is ethical and professional in connection with the real estate business.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order finding the Respondent guilty of having violated Section 475.25(1)(p), Florida Statutes, suspending his license for a period of two years, imposing an administrative fine in the amount of $500, and requiring a period of probation under such terms and conditions as the Commission may deem appropriate. DONE and ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. APPENDIX TO CASE NO. 90-4403 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: 1. Paragraphs 1 through 5 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None timely submitted. COPIES FURNISHED: Steven W. Johnson Senior Attorney Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900Orlando, Florida 32802 Stanley M. Silver, Jr. 217 East Ivanhoe Boulevard, North Orlando, Florida 32804 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0750
The Issue The issue in the case is whether the Petitioner should be permitted to take the examination for licensure as a real estate sales associate.
Findings Of Fact In September 2003, the Petitioner filed an application for licensure by the State of Florida as a real estate sales associate. In an application section titled "Background Information" question 1 asks in relevant part, "[h]ave you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere . . ." to which the Petitioner responded in the affirmative. "Background Information" question 4 in relevant part asks, "[h]as any license, registration, or permit to practice any regulated profession, occupation, vocation, or business been revoked, annulled, suspended, relinquished, surrendered, or withdrawn . . ." to which the Respondent replied in the affirmative. Question 1 directs an applicant who responds in the affirmative to disclose the full details of the incident(s) by completion of "form 0050-1." Question 4 directs an applicant who responds in the affirmative to disclose the full details of the termination(s) by completion of "form 0060-1." The disclosure forms completed by the Petitioner (if any) are not in the Respondent's files and are unavailable for review. The Petitioner's application package was presented to the Commission on December 16, 2003. After considering his presentation, the Commission denied his application and instructed him to return with additional information related to the disclosed charges. The Petitioner apparently sought reconsideration, and his application package was again presented to the Commission on March 17, 2004. After reconsidering the Petitioner's background, the Commission again denied his application. The Petitioner then sought an administrative hearing to challenge the denial of his application. On or about July 26, 2000, the Petitioner was arrested and charged with stalking. The Commission's records indicate that the Petitioner completed a pretrial program and was sentenced to 50 hours of community service. At the administrative hearing, the Petitioner testified that he was placed on probation for six months, and had to complete a six- month psychological evaluation. The stalking charge was nolle prossed. At the hearing, the Petitioner stated that at the time of the stalking charge, he was working at a retail establishment. The object of his attention was a 16-year-old female who was working in the vicinity. The Petitioner was approximately 36 years old. The Petitioner asserted that he did not know the female was 16 years old at the time. He denied that he "stalked" the female, but stated that he merely spoke to her a few times in person and attempted to contact her once by telephone. He continued to express surprise at the stalking charge. On or about June 6, 2001, the Petitioner was arrested and charged with burglary of an unoccupied conveyance, a felony, and criminal mischief. He was sentenced to two years of probation, six months of psychological evaluation, and was required to pay court costs. Adjudication of guilt was withheld. At the hearing, the Petitioner stated that he went to the home of an ex-girlfriend to collect a $500 debt she allegedly owed to him. He testified that he knocked on her door and got no response. As he left her residence, he saw that her automobile was unlocked. He opened the hood of the ex- girlfriend's vehicle and ripped out the spark plug cables. He asserted that he "didn't steal anything" because he threw the cables away and didn't keep them. On or about September 5, 2001, the Department of State, Division of Licensing, entered an order based on the Petitioner's stipulation, revoking his Class "D" Security Officer's License, based on the burglary charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 17th day of August, 2004, in Tallahassee, Leon County, Florida. 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 17th day of August, 2004. COPIES FURNISHED: Alfonso Santana, Esquire Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Fernando Freire 5242 Millenia Boulevard, No. 304 Orlando, Florida 32839 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Watkins, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802 North Orlando, Florida 32808-1900
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: On February 17, 1990, Frank Vitale was arrested at or near the ABC Liquors at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). On February 17, 1990, Noel Frederick Shumann was arrested at or near the ABC Liquors (ABC) at 3097 Curry Ford Road, Orlando, Florida for trafficking in cocaine (400 grams or more). Noel Frederick Shumann was acquitted for both the charges of trafficking in cocaine and conspiracy to traffic in cocaine on May 2, 1991. Noel Frederick Shumann was present at the ABC on February 17, 1990. Noel Frederick Shumann denies that he was involved in any illegal drug transactions; however, he admits that an illegal drug transaction occurred on February 17, 1990 at the ABC. Frank Vitale, who was convicted of the charges, testified on behalf of Noel Frederick Shumann at the criminal proceeding. Mr. Vitale's testimony is as follows: That the money used to purchase the estimated retail value of cocaine of $9,400.00 was in fact Mr. Vitale's money. That Mr. Vitale had accumulated this money from the sale of an interest in some green houses and monies from the sale of jewelry from his flea market business. He stored the money at Mr. Shumann's house while living there for a brief period of time. On February 17, 1990, he called Mr. Shumann and asked Mr. Shumann to bring envelopes containing the money to the ABC Lounge. Mr. Vitale was not living at Mr. Shumann's house at the time he called Mr. Shumann and asked him to bring the envelope containing the money to the ABC Lounge. These envelopes were stored in the bedroom Mr. Vitale resided in while living in Mr. Shumann's house. Mr. Shumann acquiesced with Mr. Vitale's request. Mr. Vitale further testified that Mr. Shumann had nothing to do with the drug transaction, did not know there was a drug transaction taking place at the ABC Lounge until such time as he arrived and remained at the lounge for a period of time. Mr. Vitale further testified that Mr. Shumann was not to share in the cocaine or any expected profits from the sale of the cocaine. The drug transaction involved 500 grams of cocaine. The estimated retail value of the cocaine was $9,400.00. The money used to purchase the cocaine was in Noel Frederick Shumann's vehicle. Mr. Shumann was assessed on February 26, 1990, pursuant to Section 212.0505, Florida Statutes, for the delinquent tax, penalty and interest relating to the drug transaction which took place on February 17, 1990. The jeopardy assessment is a correct and proper assessment both as to form and content of an illegal drug transaction involving cocaine with the retail value of $9,400.00. Mr. Shumann does not contest the mathematical accuracy of the tax assessment nor the procedures followed in issuing the notice. Mr. Shumann has not paid the sales tax assessed and the amount claimed has not been paid by another on his behalf. Mr. Shumann asserts that the assessment is improper only because he was not personally involved in the illegal transaction and, therefore, committed no act to give rise to the tax. Consequently, he argues the assessment against him should be dismissed. Prior to February 17, 1990, Agent Cannon, an undercover narcotics investigator, was introduced to Frank Vitale. Mr. Vitale met Agent Cannon through a third party, a confidential informant, named Barbara Anderson. Ms. Anderson advised Agent Cannon that Mr. Vitale wanted to purchase cocaine. Ms. Anderson had known Mr. Vitale for some time prior to February 17, 1990. On some occasion prior to February 17, 1990, Mr. Vitale spoke to Ms. Anderson regarding his partner in the drug transaction. When Noel Frederick Shumann arrived at the ABC on February 17, 1990, Mr. Vitale introduced Mr. Shumann to Ms. Anderson as "his partner." Because he remained present during the activities that followed, and because he told Ms. Anderson that he was there to keep an eye on his money, Ms. Anderson presumed Mr. Shumann was the partner in the drug transaction to whom Mr. Vitale had earlier referred. When Agent Cannon arrived to complete the drug transaction, Mr. Vitale introduced Mr. Shumann to him as his partner but maintained he (Vitale) would be handling the deal. In fact, Mr. Vitale became very upset any time Agent Cannon attempted to speak with Mr. Shumann instead of dealing with him exclusively. At one point in time, Agent Cannon threatened to abort the transaction since Mr. Vitale would not let him count the money. The money, which was stored in Mr. Shumann's car at that time, was not counted until Mr. Shumann told Mr. Vitale to let Agent Cannon count the money. Mr. Shumann was aware that Mr. Vitale was attempting to purchase cocaine from Agent Cannon and was aware that the money to be utilized in that purchase was in his (Shumann's) car. During a second conversation, Mr. Shumann directed Mr. Vitale to weigh and test the cocaine to be purchased and to proceed with the transaction if the substance looked good. Mr. Vitale then left the lounge with Agent Cannon and proceeded across the street to the van where Agent Cannon's partner was located with the drugs. Following the exchange of the money for the cocaine, Mr. Vitale was placed under arrest and the MBI team converged. Subsequently, Mr. Vitale and Mr. Shumann were placed in a police patrol car that was wired to record their conversation. The taped conversation (Petitioner's exhibit 1) contains statements by Mr. Vitale to the effect that he knew the police were listening, that he was sorry to get Mr. Shumann into "this," and that Mr. Shumann should "put everything on me (Vitale)." During the counting of the money, the weighing and testing of the cocaine, and the sale and purchase of the cocaine between Agent Cannon and Mr. Vitale, Mr. Shumann remained in the lounge. Mr. Shumann continued to talk to Ms. Anderson even though he knew a cocaine transaction was proceeding, knew that he had been introduced as Mr. Vitale's partner, knew that the money for the transaction was stored first in his house then in his vehicle, and knew that the supplier (Agent Cannon) had sought authorization from him to count the money and complete the deal. It is wholly incredible to conclude that a disinterested party would have remained in the lounge throughout the foregoing events. Cocaine is a controlled substance as defined by Florida law.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Revenue enter a final order confirming the notice of assessment and jeopardy findings and finding the amount due to be $10,575.00 plus interest (1% per month until paid). DONE and ENTERED this 5th day of May, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Petitioner submitted proposed findings in a form such that rulings cannot be entered. Petitioner summarized: the testimony of Chuck Cannon; the testimony of Mr. Shumann; the patrol car tape (Petitioner's ex. 1); the stipulated statements of facts submitted by the parties; the deposition of Vernon Taylor; and the testimony of Barbara Anderson. Such summaries did not present paragraphs with factual allegations in a form such that specific rulings can be made. Such summaries included argument, irrelevant information and comment on the evidence. Except as set forth in the findings of fact above, they must be rejected as not supported by the weight of credible evidence or as argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent listed the stipulated facts submitted by the parties. They have been accepted and incorporated in the foregoing recommended order as findings of fact. As to the proposed findings of fact submitted by Respondent, which began on page 4 of the proposed order, the following specific rulings are given. Paragraphs 1 through 9 are accepted. With regard to paragraph 10, it is accepted that Mr. Vitale introduced Mr. Shumann to Ms. Anderson as his partner. It is not accepted that he specifically told Ms. Anderson that Mr. Shumann was his partner in this drug transaction. That factual conclusion has been reached based upon a preponderance of all evidence presented in this case. Paragraphs 11 through 20 are accepted. Copies to: Robert J. Buonauro 14 E. Washington Street Suite 602 Orlando, Florida 32801 James McAuley Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Petitioner, Douglas Clayton Brown (Brown), applied to Respondent, Department of Insurance and Treasurer (Department) , for examination as a general lines agent. By letter of September 9, 1986, the Department advised Brown that his application was denied because he had pled guilty to certain felonies which involved moral turpitude, and that he had failed to divulge on his application for examination that he had been charged with such felonies. Brown filed a timely request for formal hearing to contest the Department's decision. On March 21, 1983, an Information was filed in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida, charging Brown with one count of burglary, Section 810.02(2) Florida Statutes; and two counts of aggravated assault, Section 784.021, Florida Statutes. Brown entered a plea of guilty to the charges. On December 12, 1983, the court entered a judgment wherein it adjudged Brown guilty of having committed one count of burglary with a deadly weapon and two counts of aggravated assault with a deadly weapon. The court withheld the imposition of sentence, and placed Brown on 10 years probation. 1/ On August 20, 1984, Brown filed a motion in the criminal proceeding to terminate his probation and vacate the adjudication of guilt. By order of March 4, 1985, the court granted Brown's motion to vacate the adjudication of guilt, but continued his probation on the same terms and conditions as previously set. Subsequently, on March 13, 1985, the court entered a formal order that withheld adjudication of guilt and the imposition of sentence on the charges, and reimposed the term of probation previously established. By application dated March 4, 1985, filed with the Department on March 13, 1985, Brown sought examination for licensure as a general lines agent. Pertinent to this case the application requested and Brown responded: 12(a) Have you ever been charged with a felony? No Brown's application contained a material misrepresentation since he failed to disclose that he had been charged with a felony which involved moral turpitude. Brown's attempt to rationalize his nondisclosure was unpersuasive. According to Brown, he inquired of his attorney before completing his application and was advised that he could respond in the negative to the question set forth in paragraph 6, supra. Brown's assertion is not, however, supported by the proof and is inherently improbable and unworthy of belief. (See: Petitioner's exhibit 2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Douglas Clayton Brown, for examination as a general lines agent be DENIED. DONE AND ORDERED this 9th day of June, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987.
Findings Of Fact Petitioner is Peter Thomas Roman. By application dated April 28, 1988, he sought licensure as a real estate salesman. By letter dated October 24, 1988, counsel for Respondent informed Petitioner of Respondent's intent to deny licensure to Petitioner on the basis of Petitioner's 1985 arrest and subsequent plea in 1986 to a charge of grand theft, as well as Petitioner's suspension from membership in the Florida Bar. Question number six of the application completed by Petitioner requires a "yes" or "no" answer to the question: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? Petitioner responded to question number six by disclosing his entry of a plea of nolo contendere in the circuit court for Pinellas County, Florida, on December 29, 1986, to a charge of grand theft. Petitioner related that the incident alleged had taken place in November of 1979. Petitioner further stated that the sentencing court had withheld formal adjudication of guilt and had placed Petitioner on probation. Petitioner, a licensed attorney at the time of the alleged incident, was disbarred from the practice of law by the Supreme Court of the State of Florida in an opinion issued on June 2, 1988. The Fla. Bar v. Peter T. Roman, 526 So.2d 60 (Fla. 1988). Petitioner's disbarment was based on the same acts which resulted in the grand theft charge. In addition, the Supreme Court found that "[t]his case involves not only theft, but fraud on the court which strikes at the very heart of a lawyer's ethical responsibility." Fla. Bar v. Roman, p. 62. The essential facts of the grand theft charges against Petitioner were that Petitioner falsified the name of an heir in an estate where Petitioner was serving as the personal representative. Funds paid from the estate to the falsified heir were converted by Petitioner to his own use. These matters occurred between January 1978 and January 1980. Petitioner was charged with grand theft in June of 1985. He pled no contest to that charge in 1986. Thereafter adjudication of guilt was withheld and he was sentenced to five years probation a $220 fine and nine months in the Pinellas County Jail. Since the incident which is the basis for the grand theft charges filed against Petitioner, he has not been involved in any incidents or episodes of misconduct. Petitioner has been offered a job as a sales person with a local real estate firm if he is permitted to hold a real estate license. Testimony of character witnesses offered by Petitioner establishes their belief that his reputation in the community is good, despite the one criminal incident in his past, and that they believe neither the public or investors would be endangered by the granting of licensure to the Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5432 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-9. Adopted in substance. Unnecessary to result. Adopted in substance. Unnecessary to result. PETITIONER'S PROPOSED FINDINGS 1.-8. Adopted in substance. Addressed in part, remainder unnecessary to result. Addressed in part, remainder unnecessary. Rejected as cumulative. Addressed in part, remainder unnecessary to result. COPIES FURNISHED: Thomas A. Roman, Esquire 2340 Main Street, Suite L Dunedin, Florida 34698 Lawrence Gendzier, Esquire 400 West Robinson Street Room 212 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Division Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801
