Findings Of Fact Petitioner was a member of the United State Army stationed in Korea from the Fall, 1983 until early 1984, having achieved the rank of E-5. In December, 1983 Petitioner overpurchased certain rationed items. Specifically, he purchased three months of rationed items, having accumulated allocations from prior months, although he was only authorized to utilize the ration allocation for the current month. Petitioner testified he did not know, and was not told, that unused allocations for rationed items could not be accumulated and utilized later. Petitioner plead guilty to the misdemeanor charge resulting from this overpurchase. He spent two months in confinement, was reduced in grade from E-5 to E-1, and forfeited $150 in pay for four months. As a result of his loss in grade, Petitioner understood that his pay would be reduced to that of E-1. However, upon receipt of his pay following his reduction in grade, he realized his pay had only been reduced the $150 per month he was to forfeit for four months, but had not been reduced to that of E-1. He allowed another month to go by, and when the adjustment still was not made he reported this to his commanding officer. Shortly thereafter, Petitioner was reassigned to duty within the United States, and he testified he reported the continued overpayment to his new commanding officer. A total of eight months elapsed after he was reduced in grade when he continued to receive E-5 pay. Thereafter, Petitioner was charged in December, 1984 with the misappropriation of government funds, a felony, and on February 26, 1985 he plead guilty to this charge. He was confined for six months, without pay, and given a misconduct discharge. On or about May 29, 1986 Petitioner applied for licensure as a real estate salesman in the State of Florida, and in response to Question 6 he fully disclosed his guilty pleas to the two offenses described above, the sentences imposed, and the fact that he had received a misconduct discharge. On or about September 11, 1986 Petitioner was notified on behalf of Respondent that his application for licensure would be denied based upon his answer to Question 6 and the offenses noted therein. Petitioner timely requested a hearing. Petitioner honestly disclosed his prior offenses occurring in 1983 and 1984 on his application for licensure. He offered the testimony of Andrew Carl Atkison, a friend and former business associate, in mitigation and to establish his honesty since his misconduct discharge.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. When Mr. John R. Ekberg applied for Class "D" and a Class "G" licenses, the only reason the Department of State proposed to deny the licenses was its belief, on the basis of records it had obtained, that Mr. Ekberg had been convicted of extortion and had failed to disclose the conviction on the application. Mr. Ekberg meets all of the requirements for issuance of the subject licenses if he has not been convicted of a crime. In October of 1957 the State Attorney in Dade County filed a criminal information charging Mr. Ekberg with the crime of extortion. On March 6, 1958, Judge Ben O. Willard signed a judgment document which stated that Mr. Ekberg was convicted of the crime of extortion. That document also stated that "the passing of sentence be and the same is hereby suspended from day to day and term to term until the further order of this Court." On September 8, 1959, Judge Willard vacated the judgment which had been previously entered and on that same date the State Attorney announced "Nolle Pros" and the information against Mr. Ekberg was dismissed. Mr. Ekberg was not convicted of extortion on the 1957 criminal information because that case was dismissed. Mr. Ekberg has never been convicted of any other crime. On February 14, 1985, Mr. Ekberg filed a Defendant's Motion To Expunge and Seal Court Record in the Circuit Court in and for Dade County, in which he requested that all of the court and police records regarding his arrest for extortion be expunged and sealed. On April 15, 1985, the motion was granted and an order was entered expunging and sealing the court and police records regarding Mr. Ekberg's arrest for extortion.
Recommendation Based on all of the foregoing, I recommend the entry of a Final Order granting to Mr. Ekberg the Class "D" and Class "G" licenses he has applied for. DONE AND ORDERED this 14th day of August, 1985, at Tallahassee, Florida. Hearings Hearings MICHAEL M. PARRISH Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 14th day of August, 1985. COPIES FURNISHED: James V. Antista, Esquire Senior Attorney Department of State LL-10, The Capitol, Tallahassee, Florida 32301 Daniel A. Wick, Esquire 2720 W. Flagler Street Miami, Florida 33135 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
The Issue Whether the Petitioner, Jose Iglesias (Petitioner or Iglesias) is entitled to attorney's fees and costs from the Complainant/Respondent, Robert Nieman (Respondent or Nieman), pursuant to Section 112.317(8), Florida Statutes (2004).
Findings Of Fact On August 14, 2003, the Respondent executed a Complaint that was filed with the Ethics Commission against the Petitioner. The Complaint alleged: Vice Mayor Iglesias is constantly interfering with Police Department’s day-to- day operations, and spreading false rumors about Police Department personnel. (Document #1) Vice Mayor Iglesias is causing a hostile work environment with constant complaints about officers. Vice Mayor Iglesias is constantly encouraging racism, pitting hispanics against white and black officers of the Department. Vice Mayor Iglesias filed false police reports (verbally) constantly for his own gain and benefits. Vice Mayor Iglesias’s 16-year-old son works part time in Town Hall. (Nepotism) Vice Mayor Iglesias improper use of his title by instructing the Town Manager to take actions on the police department, and even retaliation against the Police Chief and myself. Vice Mayor Iglesias ordered public records about himself not to be released, and then when they were released he insisted the secretary releasing the records be fired. (Document #1) Mr. Iglesias is falsely using the title of M.D. and in fact used this title to gain his seat on the council and then becoming Vice Mayor. When Mr. Iglesias has been questioned on this matter by residents in the past he has stated he was a brain surgeon, a foot doctor, and a chiropractor, and could not list a hospital where he did his residency to become M.D. (Document #2) At all times material to this case the Petitioner was Vice Mayor serving on the Town’s governing council. As such, the Petitioner was subject to the ethics provisions governed by the Ethics Commission. The Respondent is a town employee and serves as a police sergeant within the police department. Mr. Nieman has been so employed for over 20 years. After an investigation of three of the allegations set forth in the Complaint (only three were deemed legally sufficient to warrant investigation) and consideration of the Advocate’s recommendation, the Ethics Commission entered a Public Report on March 16, 2004. The Public Report dismissed the Complaint and closed the matter. On April 14, 2004, the Petitioner filed the instant Fee Petition pursuant to Section 112.317(8), Florida Statutes (2004). The Fee Petition alleged that the Complaint “is based on eight allegations, all of which are false and were known to be false by Complainant when he filed the Complaint.” Additionally, the Fee Petition stated the Complaint “was filed by the Complainant with the knowledge the Complaint contained one or more false allegations, or with reckless disregard as to whether the Complaint contained false allegations. ” At hearing, the Petitioner presented evidence as to the three allegations of the Complaint that were investigated and deemed legally sufficient to require an ethics investigation. Those allegations were: whether the Petitioner had filed false police reports for his personal benefit; whether the Petitioner had attempted to prevent the release of a public record or insisted on the firing of the person who had released the record; and whether the Petitioner had caused his son to be employed by the Town. The false police reports allegation stemmed from the Petitioner’s use of public roads for rollerblading. The Petitioner is an avid rollerblader and likes to rollerblade for exercise. The Petitioner opined that rollerblading puts less stress on his back and has less impact than jogging. The Petitioner frequently rollerblades on the public road within the Town. Automobile traffic on the road must go around the Petitioner in order to pass. It is the Petitioner’s position that since there is no sidewalk or shoulder suitable to rollerblade, he is entitled to use the road surface just as a pedestrian might use the road surface. The Petitioner skates toward the middle of the lane and not on the edge of the road surface because the roadway is better there for the rollerblades. The record in this case does not clarify whether the Petitioner skates with or against the traffic. In connection with the rollerblading, the Respondent believes that the Petitioner is not entitled to use the road as he does and that if the Petitioner did not use his position as a councilman for influence, he would be cited for rollerblading down the road as he does. Further, the Respondent maintains that the Petitioner has made verbal complaints against motorists who passed too close to him. The Respondent maintains that the verbal complaints are false in that the Petitioner is not entitled to use the roadway as he does and therefore cannot complain against motorists as he does. The Petitioner does not deny the activity. The Respondent has observed the Petitioner rollerblading down the road. The Respondent has not issued a citation to the Petitioner because he is assigned an administrative position within the police department and he believes he is not allowed to issue such citations. The Respondent based the allegation regarding this claim upon statements he has heard from police officers within the Town’s police department. The Respondent did not subpoena the officers to the hearing because he did not want to involve other Town employees in the matter. The Respondent does not have any evidence to support the allegation other than what he believed he had been told in his experience as a police officer for the Town. The record does not demonstrate any written record of either the Petitioner being cited for improper rollerblading or making a report against a vehicle. As to the second allegation that was investigated, a memo purportedly from the chief of police was released to a member of the public by accident. It was included within a stack of documents that had been requested by a private citizen. The document stated in part: SUBJECT: Ethics violations and continual interference of day-to-day police operations by the Vice Mayor Iglesias This memorandum is to inform you [Mayor Michael Addicott] of constant harassment of police personnel and interference in daily operations by the new vice mayor. The Petitioner admitted that he was concerned that the document had been released in error and that the person who wrongly released a document should be disciplined. The Petitioner did not know about the document before it was released. He did not attempt to prevent the release of the document. Instead, the Petitioner sought to, after-the-fact find out why the document had been released, if the document was in fact a public record subject to release, and if the employee should be disciplined for the release. The document in question was a public record, was subject to public release, and the employee was not disciplined for its release. Nevertheless, the Petitioner did require a second (and arguably third opinion) regarding whether the document constituted a public record. In the meanwhile, the controversy within the Town over whether the document should have been released was widely discussed among Town employees. The Respondent filed his claim based upon several reports that the Petitioner wanted the secretary who released the report fired. One of the Respondent’s sources was the Chief of Police. The Respondent did not question the veracity of the police chief. At hearing, the Petitioner did not deny that discipline would have been appropriate if the release of the document were shown to be erroneous. The Petitioner acknowledged that the Town pursued a full review of the matter and that he was among those who called for the review. As to the third allegation (that the Petitioner caused his son to be hired by the Town), the Respondent believed that once the Petitioner was elected as a councilman that the son was not eligible to work for the Town. The Respondent thought that rules prohibiting nepotism applied to the Petitioner’s son and that as such the son could not continue to work for the Town. The Respondent based this interpretation on a general but un- researched idea about nepotism. He also discussed this matter with another Town employee who also thought the son was not eligible to work for the Town. In fact, the Petitioner’s son, Joseph, started working for the Town in a part-time position prior to the Petitioner being elected to office. After the Petitioner became Vice Mayor, the son continued with his duties but was moved from an independent contractor status to part-time employee status. The son then received a raise in his hourly rate of pay when the Town employees also received a raise. The Petitioner did not supervise the son’s employment and did not direct the son’s work. The record is unclear as to whether the Petitioner voted on the pay raise or not. At hearing the Respondent maintained that he had had numerous conversations with persons at the Ethics Commission who recommended that he add the information regarding the nepotism claim to his allegations. He admitted that he did not independently check any laws or rules that might pertain to nepotism before filing the claim. Much of the Respondent’s attitude and comments in connection with the Petitioner must be viewed in the context of the happenings within the Town. For unknown reasons, the Town, its employees, and the governing council were in a state of change and confrontation. The Respondent and the Petitioner apparently do not relate well to one another personally. The Respondent is suspicious of the Petitioner’s medical credentials and is uncertain as to why the Petitioner holds himself out as an “M.D.”, when he is not licensed nor is he eligible to be licensed as a medical doctor. The Petitioner believes the Respondent holds some animosity toward him for unknown reasons. Further, because the Respondent admitted he believes the Petitioner is arrogant, that belief somehow that demonstrates malice toward the Petitioner. The questions of whether the Petitioner is credentialed to be a medical doctor, whether the Petitioner attempted to interfere with the police department, or whether the Petitioner spread false rumors regarding the police department were not investigated and do not support, if true, an ethics violation. If attorney's fees and costs are entered in this cause the beneficiary of an award will be the Town. The Petitioner has incurred no expenses or costs associated with the defense of the Complaint. The Town agreed to pay and has paid all attorney's fees and costs associated with this case. The Petitioner presented several invoices from the Law Offices of Stuart R. Michelson that were alleged to pertain to the instant case. The Petitioner also presented testimony from an expert witness who was to be paid by the Town. That witness, an attorney, was to be paid $200.00 per hour for his efforts in this matter. Although the Petitioner’s expert testified that the hourly rates for fees applied in this cause were reasonable, there was no evidence that the time was actually expended in connection with the instant case. There is no way to know if the services were performed for the defense against the Respondent’s Complaint. The expert merely opined that the invoices he reviewed were reasonable. He maintained that the Petitioner should recover $27,455.53 in this matter.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Fee Petition in this case. S DONE AND ENTERED this 9th day of June, 2005, 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 9th day of June, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Robert Nieman 9731 Southwest 12th Street Pembroke Pines, Florida 33026
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the grounds set forth in Respondent's Notice of Intent to Deny.
Findings Of Fact The "Key for License Denials," attached hereto as Exhibit "A," is hereby adopted and incorporated by reference as the Key to the Commission's Findings of Fact in this case. Pursuant to the Key for License Denials, the Commission finds the following facts in this case, to wit: 2,4,5
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order announcing its intention to continue to process Petitioner's application for licensure as a real estate sales associate rather than denying the application on the grounds stated in its December 28, 2011, Notice of Intent to Deny. DONE AND ENTERED this 12th day of April, 2012, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 12th day of April, 2012.
The Issue Whether Petitioner's application for licensure as a real estate sales associate or broker should be granted.
Findings Of Fact The Parties Petitioner, who was 49 years old at the time of the final hearing in this cause, is an applicant for licensure as a real estate sales associate or broker. Respondent Florida Real Estate Commission is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. Petitioner's Criminal History On April 15, 1986, Petitioner was arrested in Middleton, New York, for the charge of second degree assault. Petitioner ultimately pleaded guilty to the reduced charge of third degree assault and was ordered to pay a fine of $300. In or around June 1990, the State Attorney for Florida's Fifteenth Judicial Circuit charged Petitioner, in case number 91-239207, with one count of burglary of a dwelling (a second degree felony), three counts of grand theft (each a third degree felony), and two counts of dealing in stolen property (each a second degree felony). Subsequently, on August 14, 1991, Petitioner pleaded guilty to each of the foregoing charges and was sentenced to eight months of incarceration in the Palm Beach County jail. Approximately seven years later, the United States Attorney for the Southern District of New York indicted Petitioner for wire fraud. On July 8, 1998, Petitioner pleaded guilty to the charge and was sentenced to 30 months of imprisonment, followed by a term of probation (the exact length of which is not established in the instant record). Petitioner was also ordered to pay $745,000 in restitution to the victim(s) of his fraudulent behavior. Subsequently, in or around 2003, Petitioner——having previously completed his prison sentence——fell behind on his restitution payments, at which point the government violated his supervision. As a result, Petitioner was incarcerated for approximately 30 days until his wife's family satisfied the arrearage of $26,230.61. Although not established precisely by the testimony or exhibits, it appears that Petitioner's supervision in connection with the wire fraud charge was terminated in 2005 or 2006 and that the outstanding restitution balance of $500,000 was reduced to a civil judgment. Application for Licensure and Intent to Deny On May 16, 2011, Respondent received Petitioner's application for licensure as a real estate sales associate or broker. In the application, Petitioner properly responded "yes" to question number one, which asked, among other things, if he had ever pleaded guilty or no contest to a crime in any jurisdiction. Subsequently, on May 20, 2011, Respondent advised Petitioner in writing that it required: [T]he full details of any criminal conviction . . . including the nature of any charges, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which the proceeding were held or are pending . . . . (emphasis added). Nearly one month later, on June 17, 2011, Respondent received an eight-page facsimile from Petitioner, which included, in relevant part: the second page of the federal criminal judgment, a document which actually consists of six pages1/ (the other five pages are not part of the record, nor does it appear that they were provided to Respondent); the judgment and sentence in connection with the Florida burglary, grand theft, and dealing in stolen property charges; and, as quoted below, Petitioner's vague explanations of the New York assault charge, Florida offenses, federal mail fraud charge, and probation violation: [New York assault charge] Pled guilty to a fight. Fined $300. [Florida charges] [S]tems from one arrest pled guilty sentenced to 8 months jail time. There is an error in record it looks like several arrest [sic] but it was only one document provided. [Federal wire fraud charge] [A] single charge of wire fraud sentenced to 30 months ordered to pay restitution. [Federal probation violation] I was violated for being unable to keep up with restitution payments was released after paying the sum of $26230.61. On July 16, 2010, Respondent filed its Notice of Intent to Deny Petitioner's application for licensure. The intended denial was based upon the following reasons: B. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. G. Convicted or found guilty or entered a plea of nolo contendre to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. Petitioner's Final Hearing Testimony During the final hearing, Petitioner testified that he has not been arrested since 2003——when he was violated for the restitution arrearage——and that he presently manages an automobile dealership. Regarding his criminal conduct, Petitioner offered very little detail other than a brief explanation that the wire fraud charge involved a scheme in which he ordered laptop computers but never paid for them. Notably, Petitioner expressed no remorse for his conduct, either during his hearing testimony or in the written materials submitted to Respondent during the application process. Further, and equally troubling, Petitioner conceded that he has made no payments whatsoever against the outstanding restitution judgment since 2006. With respect to the Florida burglary, dealing in stolen property, and grand theft charges (to which he pleaded guilty), Petitioner testified that he did not commit a burglary and that he only attempted to pawn items that had been stolen by somebody else——an explanation the undersigned finds dubious at best. Once again, Petitioner expressed no remorse for his criminal misdeeds.2/ As to the present state of his character, Petitioner testified that he now values——and recognizes the importance of—— honesty, a good reputation, and fair dealing. However, other than these self-serving remarks, his present employment, and the absence of any recent arrests, Petitioner offered no persuasive evidence of his honesty or character. Further, no credible evidence was adduced concerning his reputation for fair dealing. Ultimate Factual Findings The undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that he is honest, trustworthy, of good character, and has a reputation for fair dealing, all of which are requirements for licensure as a real estate professional. Furthermore, the undersigned finds, as a matter of ultimate fact, that the statutory disqualification of eligibility that flows from a guilty plea to one or more crimes involving moral turpitude has not been overcome by way of subsequent good conduct and lapse of time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate or broker. DONE AND ENTERED this 20th day of January, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 20th day of January, 2012.
The Issue The issue posed for decision herein is whether or not the Respondent, Gary Howland, engaged in conduct, which will be set forth hereinafter in detail, which is sufficient to warrant the Petitioner's suspension of this employment without pay in accordance with the rules of Petitioner as set forth in Chapter 6C-5.27, Florida Administrative Code.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Respondent, Gary P. Howland, was employed by Petitioner in the Institute of Food and Agricultural Sciences as a visiting associate research scientist through an appointment which ended, by its terms, on June 30, 1979. On August 30, 1978, Respondent was charged with a felony, to-wit: unlawful possession and sale of a controlled substance in violation of Section 893.13(1)(a)(1), Florida Statutes. During September of 1978, Petitioner learned that Respondent was arrested and charged with the unlawful delivery and possession of a controlled substance. Petitioner immediately took steps to suspend and ultimately terminate Respondent's appointment. On September 26, 1978, Respondent was suspended from his position without pay. On October 11, 1978, Respondent challenged Petitioner's action in suspending him without pay and through an option exercised by Respondent, the matter was referred to the Academic Freedom and Tenure Committee on February 13, 1979. 2/ On May 10, 1979, Respondent filed a motion to dismiss the complaint which was then pending before the Academic Freedom and Tenure Committee. Pursuant to a consideration of Respondent's motion to dismiss the charges filed before the Academic Freedom and Tenure Committee (Committee), a decision was entered by that Committee recommending that Respondent's motion to dismiss be granted based on a determination that the University did not follow certain procedural safeguards. Specifically, the Committee recommended that: The matter not be sent to a plenary hearing; That the President determine that the suspension was unlawful; That Respondent be awarded back pay through June 30, 1979; and The President direct that Respondent's employment record show that he was not terminated for cause and that his suspen- sion was unlawful. By letter dated November 2, 1979, Respondent was advised by Petitioner's President, Robert Q. Marston, that the recommendation of the Committee was being rejected and the matter was transferred to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. 3/ Lee Cowart has been employed by the Alachua County Sheriff's Office for approximately three (3) years. During times material in 1978, he worked as an undercover agent in the Drugs and Narcotics section of the Sheriff's Office. On April 21, 1978, Officer Cowart met Respondent at the Main Street Lounge in Gainesville, Florida, and discussed the use, sale and purchase of four grams of cocaine for the agreed-upon price of three hundred dollars ($300.00). Officer Cowart observed the transaction via a visual surveillance of Respondent from a van. Officer Cowart paid Respondent three hundred dollars ($300.00) and took delivery of the substance, had it analyzed by the U.S. Department of Justice Drug Enforcement Administration, which analysis revealed that of 3.8 grams received, 29 percent thereof was cocaine hydrochloride. (Petitioner's Exhibit 1.) Officer Coward is trained as a field agent and has field tested approximately two hundred (200) samples of unlawful drugs during his career of employment with the Alachua County Sheriff's Office. Officer Cowart performed a field test of the substance delivered by Respondent, which test proved positive. Dr. F.A. Wood, Dean of Research, Food and Agricultural Sciences, was familiar with Respondent's tenure of employment at the University. Respondent joined the staff of the University during 1978 as a temporary appointee for a one-year term. Respondent was paid from funds received through a NASA grant. Pursuant to the terms of Respondent's appointment at the University, he did not earn tenure. Dean Wood considered Respondent's temporary suspension and decided that based on the evidence presented to him, that Respondent's suspension be made permanent. In making this decision, Dean Wood relied on the information gathered by the Vice President and the Academic Freedom and Tenure Committee. (Testimony of Dr. Wood.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Petitioner's suspension of Respondent without pay on September 26, 1978, be SUSTAINED. RECOMMENDED this 18th day of September, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1980.
Findings Of Fact Petitioner applied for licensure as a Class D and G security officer. By letter dated June 18, 1996, Respondent denied Petitioner's application. The amended denial letter stated that the Respondent's decision to deny Petitioner's application was based on Sections 493.6118(1)(f) and (j), Florida Statutes. Specifically, the denial was because Petitioner (1) committed misconduct in the activities regulated under Chapter 493, Florida Statutes, by making sexual advances toward a fourteen year old student while on duty as a security officer; and (2) committed an act of violence or used force on another person which was not for his or another person's lawful protection. Such contentions put at issue whether Petitioner possessed the requisite "good moral character" required for licensure under Section 493.6106(1)(b), Florida Statutes. Petitioner timely requested a formal hearing, after which Respondent referred the matter to the Division of Administrative Hearings. The undersigned noticed the matter for hearing upon the issues cited in the denial letter. Petitioner failed to appear at the formal hearing and no evidence was presented on his behalf.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of State, Division of Licensing, enter a final order denying Petitioner's application for a Class D and G license. DONE and ENTERED this 16th day of January, 1997, in Tallahassee, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1997. COPIES FURNISHED: Kristi Reid Bronson, Esquire Department of State, Division of Licensing The Capitol, MS-4 Tallahassee, Florida 32399-0250 Maneram Maharaj 1204 Rinkfield Place Brandon, Florida 33511 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact At all times relevant to this matter, Ricky L. Sapp held Florida Teaching Certificate number 528297, in elementary education and was employed as a math teacher at Belleview Middle School, Escambia County, Florida. During the 1985-1986 school term, Shawn Dickinson, a 13-14 year old male, was a student in the Respondent's math class. During the fall of 1985, Sapp began to employ the student to perform tasks including yard work, car washing and other small jobs. Dickinson went to Sapp's home both to perform odd jobs and on a social basis. The student gave gifts to Sapp and other teachers at Christmas 1985. Sapp and two other teachers gave the student a pair of jeans. During the 1985- 86 school term, Sapp assisted the student with a science project. On at least one occasion, they attended a movie together. On other occasions Sapp took the student along with a group of other students on a deep-sea fishing trip. During the summer of 1986, Dickinson began to reduce his social contact with Sapp. While Dickinson's mother had expressed to her son her desire that he associate more often with people his own age, she did not forbid him from visiting Sapp. She did not express her concern to Sapp. On one occasion Sapp spoke with Dickinson's mother and asked her to permit the student to have dinner at Sapp's home. She agreed to allow the student to attend with a friend of his and instructed the boys to remain together; however, the student's friend left Sapp's home. Dickinson and Sapp may have engaged in an argument. Following that incident, Dickinson's mother refused to permit him to further associate with Sapp. In the fall of 1986, the mother spoke with the school principal about Sapp and her son. She also talked with the vice- principal and guidance counselor, apparently related to the same concerns expressed to the principal. She did not communicate with Sapp. The student testified that during this time Sapp sent messages to him through other students but there was no information as to the nature of the messages. During the fall, both the student and his mother, according to testimony, received telephone calls from Sapp during which he relayed his feelings regarding the situation. Sapp denied making the phone calls. The mother also received calls from someone who would hang up when she answered. She believed the calls were from Sapp. During this time period Dickinson's family had their telephone number changed. At about the same time, the mother's car tires were slashed. In early October 1986, Sapp's home was burglarized and various items were stolen. Sapp had reason to believe that Dickinson was involved in the incident. He contacted the boy's parents and accused the student of the theft of approximately $1,300.00 of personal items. The boy's mother did not believe her son had committed the act. Sapp also contacted the police who investigated the incident. At about the same time, the police conducted an investigation into the slashed tire incident and the phone "hang-ups", during which Dickinson was apparently questioned. Dickinson was not charged in the matter. At the administrative hearing Dickinson denied stealing any of Sapp's belongings, but stated that he possibly "stole my stuff back from him." In early November 1986, Sapp was arrested and charged with lewd and lascivious acts on a child, Shawn Dickinson. Sapp attempted to have the student and his family withdraw their accusations and apparently offered to reimburse the student's family for the cost of having their phone number changed and for replacement of the car tires, but was unsuccessful. The Respondent was subsequently tried on the charge and found not guilty. (R-1) COUNT I Count I of the administrative complaint alleges several instances of sexual contact between Sapp and Dickinson. Sapp denied the allegations. The evidence did not clearly and convincingly establish that such sexual contact took place. The testimony of the student related to the allegation of sexual content was limited to the student's assertion solely that such contact, one instance wherein Sapp performed oral sex on Dickinson, and 20- 25 instances wherein Dickinson performed anal intercourse on Sapp, occurred. Dickinson stated that he told no one other than the police about the contact. The claimed contact supposedly occurred over a period of approximately six months. Dickinson stated that he continued to participate in the activity because of alleged threats made by Sapp. The threats included having Dickinson's class schedule changed, killing his dog, having one of Dickinson's "best friends" attack him, and putting a bomb in his mother's car and killing her. Dickinson admitted that he had never revealed the threat to kill the dog prior to the administrative hearing, although he has testified several times previously about the threats. At one point on direct examination the student testified that he first revealed the sexual contact to the police when Sapp "got arrested and I had to go talk to the police." (Tr.19) Yet Sapp was arrested for the alleged sexual contact with the student. Dickinson stated that he terminated the alleged contact with Sapp because his parents were suspicious of the amount of money Dickinson was receiving. However, there was no evidence that funds changed hands other than as a result of the odd-jobs Dickinson performed for Sapp. The administrative complaint alleges that the student received approximately one hundred dollars over the 1985-1986 period, an amount which appears reasonable in relation to the work apparently performed. Because the student's explanation of events and reasons for permitting the alleged contact to continue are vague and confusing, his testimony is not credible. The allegation of sexual contact between Dickinson and Sapp is rejected as not being supported by clear and convincing evidence. COUNT II Count II alleges several instances wherein Sapp has been convicted or had adjudication withheld in criminal offenses and has failed to disclose such facts on his application for teacher certification. One allegation concerns a charge of telephone harassment against Sapp. The arrest supposedly was related to numerous phone calls to the home of Dickinson. While there was testimony by Dickinson and his mother which indicated that they had received phone calls which could be termed harassing, and that such calls were or were believed to be from the Respondent, there was no evidence that he was ever arrested for such activities. The evidence introduced at hearing indicates that the arrest which occurred in November 1986 was related to the alleged sexual contact. The Petitioner did not meet the burden of proof on this allegation. Further, the administrative complaint alleges that Sapp was charged with one count of passing worthless checks in October, 1977 and three counts of passing worthless in June, 1987. No evidence was presented on these allegations. In October 1979, Sapp was involved in a lounge fight and was subsequently charged with simple battery. Sapp pled guilty. Adjudication was withheld, and a fine and six months probation were imposed. (P-9) In December 1979, Sapp was involved in a parking lot altercation and was subsequently charged with criminal mischief. Sapp pled not guilty. Adjudication was withheld and six months probation was ordered. (P-8) In December 1976,2/ Sapp was charged with leaving the scene of an accident, a criminal traffic offense. Sapp pled not guilty, but was found by a judge to be guilty. A $52.00 fine was imposed. (P-7) On Sapp's applications for teacher certification filed in September 1982, October 1982, October 1984, June 1985 and December 1985, he replied in the negative to the question, "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations?" (P-2, P-3, P-4, P-5, P-6) On the applications Sapp acknowledged by signature that his responses on the application were true, correct, and on three applications, complete. 3/ On his applications, Sapp indicated that he had not been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation even though adjudication has been withheld in the simple battery and criminal mischief cases in 1979. The Petitioner testified at hearing that he did not understand the relevant portion of the teaching certificate application. He testified that he did not intend to deceive the Petitioner, that he did not understand the meaning of the term "adjudication withheld," that he did not list any arrests because, prior to the lewd and lascivious charge of November 1986, he had never been handcuffed or otherwise restrained which to him signified arrest, and that he had not intended to conceal the information. However, he did indicate that on several occasions he had heard a judge say "adjudication withheld" and that he made no attempt to learn the meaning of the term. Sapp's assertion that he did not intend to mislead the Petitioner is rejected in light of his attestation that the information he provided was complete, correct and true. Sapp failed to disclose the material facts of prior legal entanglements on his applications for the teacher certificates, in violation of Section 231.28(1)(h), Florida Statutes and Rule 6B-1.006 (5)(h), Florida Administrative Code. Accordingly, insofar as the preceding findings of fact state, the Petitioner has met the burden of proof as to the related allegations of Count II. COUNT III The administrative complaint charges that Sapp has violated Section 231.28(1)(e), Florida Statutes, in that he has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. The evidence establishes that in 1976, Sapp was convicted of a criminal traffic offense, failure to remain at the scene of accident, and was fined fifty-two dollars. Section 231.28(1)(e) , Florida Statutes, provides for appropriate disciplinary action where the certificate holder has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation. Section 316.655, Florida Statutes, establishes that failure to remain at the scene of an accident involving damage to property, a violation of Section 316.061, Florida Statutes, is included among those violations identified as criminal offenses. Other violations classified as criminal offenses include failure to remain at the scene of an accident involving death or personal injury, providing false information in circumstances where the uniform traffic control law requires that information be provided, failure to obey the orders of police and fire department officials, reckless driving, driving under the influence, fleeing or attempting to elude a police officer, obstruction of traffic for purposes of non-permitted solicitation, and failure or refusal to submit a vehicle to weight and load testing upon request. The potential penalty for violation of Section 316.061, Florida Statutes, is a fine of not more than $500.00 or imprisonment for not more than sixty days or both. An examination of the range of potential penalties for criminal traffic violations indicates that the penalty for violation of Section 316.061, Florida Statutes, is less severe than the penalties provided for other violations. Accordingly, it is found that the violation of Section 316.061, Florida Statutes, is a minor traffic violation. The allegation of Count III is rejected. COUNT IV The administrative complaint charges that Sapp, based on the prior allegations, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board, pursuant to Section 231.28(1)(f), Florida Statutes. Although the Petitioner presented testimony related to the allegations and the resulting effectiveness of Sapp, such testimony was based on all of the allegations being established by the requisite burden of proof. In that such allegations were not established, this Count is rejected. COUNT V The administrative complaint alleges that, pursuant to Section 231.28(2), Florida Statutes, Sapp has pled guilty or been found guilty of an offense contained within Section 231.28(1) , Florida Statutes, which is prima facie proof of grounds for revocation of the certificate. Section 231.28(1)(d), Florida Statutes, includes misdemeanors, felonies, and certain other criminal charges. The evidence established that in October 1979, Sapp pled guilty to simple battery, a first degree misdemeanor. Section 784.03(2), Florida Statutes (1975). Accordingly, the burden of proof has been met and Count V is sustained. COUNT VI COUNT VII COUNT VIII COUNT IX COUNT X COUNT XI The above six Counts were related to allegations of sexual contact between Sapp and Dickinson and are rejected as not established by the requisite burden of proof. COUNT XII The administrative complaint alleges that the Respondent has failed to maintain honesty in all professional dealings pursuant to Section 231.28(1)(h), Florida Statutes, and Rule 6B-1.006(5)(a), Florida Administrative Code. As to the allegations supported by the burden of proof, Sapp failed to disclose material facts on applications filed for purposes of obtaining or retaining teacher certification even though he attested to the truthfulness of the information. The failure to provide the information is found to be a failure to maintain honesty in his professional dealings, accordingly, Count XII is sustained. COUNT XIII The administrative complaint alleges that in violation of Section 231.28(1)(h), Florida Statutes and Rule 6B- 1.006(5)(g), Florida Administrative Code, Sapp submitted fraudulent information on a document in connection with his professional activities. Sapp testified that he did not understand the question on the application for teacher certification related to prior criminal offenses, and did not intend to mislead or deceive the Petitioner. However, more than once he admitted to having heard a judge state that adjudication was withheld in connection with the various separate offenses, and that he did not know the meaning of the term. Yet he attested that the information submitted on two applications was true and correct and on three later applications that the information was true, correct and complete. The attestation of truth, correctness and completeness implies that the attestor understands the questions and that his responses are based on such understanding. To provide false information or to make material omissions of fact on such an application constitutes the submission of fraudulent information. Accordingly, the Petitioner has met the burden and Count XIII is sustained.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Education Practices Commission enter a final order imposing a fine of $1,000.00. DONE and ENTERED this 6th day of October, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 6th day of October, 1988.
The Issue The issue is whether Respondent attempted to obtain his license to practice medicine by fraudulent representations, in violation of Section 458.331(1)(a), Florida Statutes, or if Respondent misrepresented or concealed a material fact during any phase of a licensing or disciplinary process, in violation of Section 458.331(1)(gg), Florida Statutes. If so, an additional issue is what penalty the Board of Medicine should impose.
Findings Of Fact By application dated and acknowledged on December 27, 1993, Respondent applied for a medical license by endorsement. Respondent filed the application with the Board of Medicine on January 12, 1994. Question 6 on the application asks: Have you ever been convicted of a felony? Yes No ; a misdemeanor? Yes No . Have any judgments ever been entered against you? Yes No . Have you ever been sued for malpractice? Yes No . In response, Respondent typed X’s in the “No” boxes for the first two questions in Question 6. Immediately above the signature of Respondent and acknowledgement of the notary public, on the last page of the application, is the statement: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me are true and correct. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice medicine/surgery in the State of Florida. In fact, on October 24, 1988, Respondent was found guilty, after a three-day jury trial, of 12 misdemeanor counts of failure to remit a total of over $47,000 in state sales taxes due from November 20, 1985, through December 20, 1986. On December 22, 1988, the court sentenced Respondent to pay a fine of $12,000 on all 12 counts and reasonable court costs, and serve six months’ probation on each of the 12 counts, with the periods of probation to run consecutively. Respondent’s explanation for the omission from the application is that he mistakenly believed that the only misdemeanors covered by the question were those involving the practice of medicine. Respondent’s explanation for the nondisclosure is unreasonable. Nothing in the language of Question 6 limits the scope of the inquiry to misdemeanors involving the practice of medicine. The preceding question in Question 6 asks about felonies without qualification or limitation, and it is absurd to interpret this question as not asking about any felony, such as bank robbery, even though the felony did not involve the practice of medicine. For the same reason, Respondent knew that he was to have disclosed any misdemeanor, even if it did not involve the practice of medicine. Respondent’s explanation for the commission of the crimes is more plausible. Briefly, Respondent testified that he had invested about $100,000 of the total of $250,000 in the acquisition of the Philadelphia franchise of long-distance telephone provider that had emerged immediately following the breakup of AT&T in the mid 1980s. Essentially reselling AT&T long-distance services, the new company paid AT&T at wholesale for the services that it marked up and sold at retail to end users. Respondent explained that he had been an absentee owner for much of the time. Also, the AT&T billing for this new arrangement was confused and irregular. Changes in ownership preceding and following Respondent’s investment in the company further complicated the situation. A Pennsylvania revenue auditor contacted Respondent over a year after he had sold his stock in the company in 1986, gotten married, and been traveling extensively out of state. At this time, Respondent learned of the company’s sales tax problems, which involved a complicated telecommunications excise tax. Respondent’s corporate purchaser was no longer operating the company, which had become bankrupt. Respondent paid the taxes due, but the Commonwealth of Pennsylvania nevertheless prosecuted him for his role in the failure of the company to pay its taxes. After sentencing, Respondent paid the fine and served his probation without incident. He disclosed the misdemeanor convictions to the Pennsylvania agency regulating the practice of medicine and was able to continue practicing medicine there. After consideration of Respondent’s application, the Florida Board of Medicine issued Respondent license number ME 0066606.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 4th day of December, 2000. COPIES FURNISHED: Tanya Willaims, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Bin C03 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Kim M. Kluck Carol Gregg Senior Attorneys Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher Grillo 1 East Broward Boulevard, Suite 700 Fort Lauderdale, Florida 33301
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Brent Cutlip is a principal of Two Men and a Truck.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief filed by Kenneth K. Scott be dismissed. DONE AND ENTERED this 14th day of November, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Kenneth K. Scott 8342 Gardenia Circle, No. 4 Pensacola, Florida 32534 Brent Cutlip Two Men and a Truck 7280 Plantation Road, No. 1 Pensacola, Florida 32504 Brent Cutlip Two Men and a Truck 379 West Michigan Street, Suite 200 Orlando, Florida 32806 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
