The Issue Should the Respondent's license as a real estate salesperson in the State of Florida be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to this proceeding, the Respondent was licensed as a real estate salesperson in the State of Florida, having been issued license number 0605704. The last license was issued as a voluntary inactive salesperson with an address of 820 Manatee Avenue, Ellenton, Florida 34222. By application dated September 3, 1993, and received by the Department on September 10, 1993, Respondent applied to become a real estate salesperson in the State of Florida. Question 9 on the Application provides as follows: 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? The question applies to any viola- tion of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication with- held, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungment or sealing prior to answering "NO". If you answered "YES", attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state, and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent answered "YES" to question 9 and provided information about one arrest for reckless driving in September 1984. A criminal background check performed as part of application process indicated that Respondent had also been convicted in June 1987 of reckless driving and had pled nolo contendere (no contest) to a felony charge of obtaining property by worthless check. Adjudication was withheld and Respondent received credit for time served. The Respondent did not have a criminal background check performed. Therefore, he failed to report the reckless driving conviction in June 1987 because he had forgotten about the conviction. As to the worthless check charge, the Respondent did not consider it part of his record since the charge against him for issuing worthless check was a mistake, and reimbursement was made on the check. The mistake was that Respondent's brother, Bret Gardner had signed a check for Respondent to purchase materials. However, in the process of using the check to purchase the materials the Respondent identified himself with his driver's license and his driver's license's number was placed on the check.. Since their names are similar and they are close to the same age (difference of two years), the Respondent was charged with issuing the worthless check rather than Bret Gardner. There was one other occasion in the past where Respondent was mistaken for Bret Gardner in a court proceeding. Apparently, the no contest plea was the easiest way for the court to clear up the matter. Respondent attended a real estate school operated by his mother, Claudia Gardner, and before filing his application the Respondent discussed Question 9 with his mother. Since the Respondent had been charged with other traffic violations (speeding tickets, etc.) it was his mother's opinion that by listing the one conviction - and if others should have been reported - then it would show that the Respondent was not attempting to conceal any convictions. Hindsight is 100 percent better than foresight. Respondent's mother's advice surely proves this out. The failure to furnish all the information concerning his criminal record was not intentional on the part of the Respondent. However, this does not relieve him of the responsibility to have made an effort to check his record, particularly since he was advised of its importance by the last paragraph in question 9 which was emphasized by being in bold print. Furthermore, having questioned his mother concerning the necessity to report his record - even assuming that time was of the essence in making his application - there was no reason why the Respondent could not have checked with the Division of Real Estate to determine if he should follow through on a check of his record so as to advise the Division of Real Estate of any changes to be made prior to the issuance of the license. The Department presented no evidence that had the Florida Real Estate Commission (Commission) been presented Respondent's complete record it would have denied him licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and after having reviewed considered Rule 61J2-24.001, Florida Administrative Code, concerning disciplinary guidelines and the recommended range of penalties for a violation of Section 475.25(1), Florida Statutes, and considering mitigating circumstances as provided for in Rule 61J2-24.001(4), Florida Administrative Code, it is recommended that the Commission enter a final order finding Respondent guilty of having violated Section 475.25(1)(m), Florida Statutes. It is further recommended that the Respondent be assessed an administrative fine in the amount of $300.00, and his license be suspended for a period of six months, the suspension be stayed and the Respondent's license be placed on probation for a period of six months under terms and conditions deemed appropriate by the Commission. That upon the probation being successfully completed, the suspension of the Respondent's license would be lifted subject to any further terms and conditions the Commission may deem appropriate. DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 30th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4165 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 8 are adopted in substance as modified in Findings of Fact 1 through 11 in the Recommended Order. Respondent Gardner's Proposed Findings of Fact: 1. The Respondent's proposed findings of fact are intermingled with argument and other matters not considered findings of fact, and are not in numbered paragraphs nor do the lend themselves to numbering. However, I have responded to what I consider proposed findings of fact and have adopted them in substance as modified in Findings of Fact 1 through 11 in the Recommended Order. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bart Claude Gardner 820 Manatee Avenue Ellenton, Florida 34222 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Robert W. Barnard was initially issued a Class "D" security guard license on May 12, 1986, by the Florida Department of State, Division of Licensing. At the time of licensure the agency was aware that Barnard had been found guilty of the felony of aggravated assault by a jury verdict, but that adjudication of guilt was withheld and he was placed on probation for five years, on September 3, 1974. (Exhibit #1, Respondent's Memorandum in Response to Petition. Effective October 1, 1986, the legislature added the following to Chapter 493, F.S., relating to licensing for investigative and patrol services: 493.319 Grounds for disciplinary action.-- * * * (1) The following constitutes grounds for which disciplinary action specified in subsection (2) may be taken: * * * (p) The department shall deny an applicant or revoke a license when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of 10 years has expired: * * * Chapter 86-193, Laws of Fla. This provision was renumbered and was amended in 1987, as follows: (3) Notwithstanding the provisions of paragraph (1)(c) and subsection (2), the department shall deny an application or revoke a license when the person or licensee has been convicted of a felony, regardless of whether adjudication was withheld or whether imposition of sentence was suspended, unless and until civil rights have been restored and a period of 10 years has expired. A conviction based on a plea of nolo contendere shall create a presumption of guilt to the underlying criminal charges, and the department shall allow the person being disciplined to present any evidence relevant to the underlying charges and the circumstances surrounding his plea. Chapter 87-274, Laws of Fla. The agency issued a renewal certificate to Robert Barnard on March 17, 1988. (Exhibit #1, Respondent's Memorandum in Response to Petition) On September 19, 1989, the Department of State, Division of Licensing issued its Administrative Complaint, Case #89-01377, alleging that Robert W. Barnard's guard license should be revoked, based on his violation of Section 493.319(3), F.S.. Count I of the complaint alleges, "On September 3, 1974, Respondent was found guilty of one felony count of aggravated assault in Orange County, Florida." No other convictions or violations were alleged. Through counsel, Robert Barnard requested a formal hearing in response to the complaint. On November 1, 1989, Department of State Assistant General Counsel, Henri C. Cawthon, wrote to Richard Wallsh, Barnard's attorney, stating that it did not appear that material facts were in dispute and that an informal hearing would be more appropriate. The letter provided, in pertinent part: ... Because the Division will stipulate to the factual allegations in your petition, the only issue is a legal one: does Section 493.319(3), Florida Statutes (1987), require revocation when a licensee had adjudication withheld on a felony over ten years ago. It can also be stipulated that Mr. Barnard was licensed in spite of his criminal record, and that the Division is applying the statute retroactively. * * * (Attachment to Petition for Fees and Costs) On November 3, 1989, Robert Barnard petitioned for an informal hearing based on Mr. Cawthon's letter. On November 30, 1989, Robert Barnard filed his "suggestion of sealing of record", stating that on November 8, 1989, the ninth Judicial Circuit Court, in and for Orange County, entered its order sealing the pertinent criminal records pursuant to Section 943.058, F.S. and Fla. R. Criminal Procedure 3.692. (Attachment to Petition for Fees and Costs) Counsel for the agency claims that he had informed Petitioner's counsel that sealing the criminal record would result in dismissal of the administrative complaint, although the agency was under no obligation to inform Petitioner of this option. (Memorandum of Law in Response to Petition) On December 11, 1989, in a letter from Assistant General Counsel, Henri Cawthon, to Richard Wallsh, the agency informed Robert Barnard that, based on the order sealing records, the administrative complaint was being withdrawn. The informal hearing scheduled for December 19, 1989, was cancelled. Robert W. Barnard is a "prevailing small business party", as defined in Section 57.111(3)(c) and (d), F.S. (parties' Stipulation of Facts). The agency was not a "nominal party" as provided in Section 57.111(4)(d), F.S. (parties' Stipulation of Facts) In successfully defending the administrative complaint, Robert Barnard incurred reasonable attorneys fees and costs totalling $1,527.07. (parties' Stipulation of Facts) In successfully pursuing fees and costs, Robert Barnard incurred additional reasonable fees and costs in the amount of $1,281.53, for a total of $2,808.60.
Recommendation Based on the foregoing, it is hereby, ORDERED: That the Department of State, Division of Licensing pay Robert Barnard's attorney fees and costs in the amount of $2,808.60. DONE AND ORDERED this 3rd day of July, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 3rd day of July, 1990. COPIES FURNISHED: Richard I. Wallsh, Esquire 2699 Lee Road, Suite 505 Winter Park, FL 32789 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, Mail Station No. 4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary of State The Capitol Tallahassee, FL 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, FL 32399-0250
Findings Of Fact The parties stipulated ,that Max Bower had submitted an application for licensure as an unarmed guard to the Division of Licensing, and that Bower was qualified for licensure except for the grounds stated in the letter of denial dated March 9, 1979. Max Bower has been convicted and sentenced on three occasions for commission of a felony under the laws of the State of Florida. Bower admitted his arrest, conviction, and having served time in the New Jersey Penitentiary and in the Dade County Jail. His last conviction was in New Jersey, where he was sentenced to five to seven years and was released in October, 1971. Since that time, Bower has not been arrested for any offenses. Max Bower has pending at this time an application for restoration of his civil rights. Due to administrative delay, it will be several months before his application will be considered. Bower is currently employed with International Patrol and works as an unarmed guard from 12:00 midnight until 8:00 a.m. in the Justice Building (County Court Building) in Miami, Dade County, Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Division of Licensing grant Max Bower a license as an unarmed guard (Class "F") at such time that his civil rights are restored. DONE and ORDERED this 11th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of June, 1979. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Max Bower 10 South West 2nd Avenue Miami, Florida 33130
The Issue Is Petitioner entitled to exemption from disqualification by law with regard to working in a position of special trust and responsibility related to children, disabled adults, and elderly persons?
Findings Of Fact Petitioner is disqualified from working in a position of special trust because of: a 1991 conviction of grand theft auto; a 1980 conviction of battery; two counts in 1993 of uttering a forged instrument, one count of petty theft and one count of trespassing after warning. Respondent's testimony was direct, candid, and creditable. He previously engaged in a life-style that is no longer compatible with his present involvement with church and community. His testimony was well corroborated by the testimony of eight other witnesses and numerous exhibits. As established by clear and convincing evidence at the final hearing, Respondent is rehabilitated and unlikely again to engage in criminal conduct or present a threat to children, disabled adults, or elderly persons, if employed in a position of special trust. The various criminal offenses for which Petitioner has been convicted, were all committed more than three years prior to his disqualification notice from Respondent for which Petitioner now seeks exemption. Section 435.07, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered granting Petitioner's request for exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 10th day of June, 1999, in Tallahassee, Florida. DON W. DAVIS 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 10th day of June, 1999. COPIES FURNISHED: Karlier Robinson 1018 Martin Street Blountstown, Florida 32424 John R. Perry, Esquire Department of Children and Family Services Suite 252-A 2639 North Monroe Street Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, was correct in its denial of the Petitioner's application and request to transfer a Series 4-COP beverage license for the premises, Paradise Inn.
Findings Of Fact The facts reveal that sometime in December, 1978, the Petitioner, James Sylvester Cooper, determined to apply for the transfer of a Series 4-COP beverage license which originally had been issued to the Petitioner's since deceased father. The license was issued by the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The license which had been held by Mr. Cooper's father was for the premises known as Paradise Inn, Madison Heights, 518 Alabama Street, Daytona Beach, Florida. In pursuit of the request for transfer, the Petitioner completed a personal questionnaire form which was given to him by the Respondent, and may be found as the Respondent's Composite Exhibit No. 2 admitted into evidence. In actuality, a form was completed for this license transfer and the transfer of a license in a companion application, D.O.A.H. Case No. 79-532. The Petitioner also completed a fingerprint card by affixing his fingerprints to that document, and the document may be found as the Respondent's Exhibit No. 1 admitted into evidence. The fingerprint card was submitted in December, 1978. The questionnaire was completed on January 3, 1979. Both items were filed with the Respondent in its office located in Daytona Beach, Florida. When the Petitioner completed the questionnaire form, his initial response to question No. 6 was, "No". The thrust of the question No. 6 was to ask the applicant if he had been arrested for the violation of any other laws of the State of Florida not enumerated in questions Nos. 1 through 5 of the first page of the questionnaire or arrested for the violation of laws of other states or the United States, excluding minor traffic violations and instructed that if the answer was, "Yes," that details be provided concerning the nature of the events surrounding the arrest. When the questionnaire which was submitted on January 3, 1979, was reviewed by employees of the respondent, it was noted that the answer to question No. 6 was in the negative, notwithstanding the fact that the Respondent had received information from the Florida Department of Law Enforcement that possible charges for carrying a concealed firearm in Daytona Beach, Florida, and for issuing a check for which insufficient funds were available to honor the check, which latter charge purportedly was brought in Duval County, Florida. Officer Blanton, the employee of the Respondent who made this discovery, tried to contact the Petitioner in person and was unsuccessful. Later, Officer Blanton was able to contact Mr. Cooper by telephone and to request that the Petitioner come in to discuss the answer to question No. 6. Cooper agreed and came to the office of the Respondent in Daytona Beach on January 8, 1979. At the meeting on January 8, 1979, when confronted with his answer to question No. 6, the Petitioner responded that he did not understand that question to mean that you had to indicate all arrests. The Petitioner said he understood the question to mean that only convictions should be reported. Once the Petitioner had teen specifically advised by the Respondent's employee that the form, as it suggested, required an applicant to indicate arrests, he admitted that he had been arrested by the Daytona Beach, Florida, Police Department for carrying a concealed firearm, and stated further that the adjudication of quilt in that matter had been withheld. Cooper said that he would verify this disposition of the case and report back to the Respondent to establish the fact of the disposition by providing the Respondent with an official record. At the meeting referred to above which was held on January 8, 1979, between Officer Blanton and the Petitioner, Mr. Cooper denied any arrest having occurred in Duval County, Florida, relating to a worthless check. The Petitioner left the office of the Respondent, to shortly return with his attorney, Mr. Moore, and a further conversation was held on January 8, 1979, pertaining to the Petitioner's arrest record. A discussion was held concerning the carrying of a concealed firearm case in Daytona Beach, Florida, and the Duval County, Florida, worthless check allegations. Again, the Petitioner admitted being arrested for carrying a concealed firearm, but denied any involverent in a worthless check charge in Duval County, Florida. In view of this further denial of a knowledge of a Duval County, Florida, charge, Officer Blanton indicated that he would check into the matter further. After the second meeting between the Respondent's employee and the Petitioner, and on the same day, January 8, 1979, the employee of the Respondent discovered another allegation of an arrest which had taken place in Daytona Beach, Florida, for the offenses of loitering and prowling. On January 10, 1979, the Petitioner reported back to the office of the Respondent in Daytona Beach, Florida, and amended his application form by striking in the column the word, "No" and writing in the column the word, "Yes" and indicating that the carrying a concealed firearm complaint had taken place in 1974. In support of his position he produced documents that showed that the disposition of that case had been: withhold adjudication of quilt and place the Petitioner on two years unsupervised probation. When questioned about the loitering and prowling arrest, the Petitioner initially denied that arrest, but later indicated that he thought it was vagrancy. Subsequent to that discussion, he indicated on the application form that a loitering charge had occurred in June, 1976, for which he had paid a $35.00 fine. In the meeting on January 10, 1979, when the employee of the Respondent interrogated Petitioner further about any incidents in Duval County, Florida, involving a worthless check, the Petitioner again replied that he had no connection with such a charge. On January 11, 1979, the Respondent, in its Daytona Beach office, received a reply to its inquiry about the Duval County, Florida, case for a worthless check. That response may be found as Respondent's Composite Exhibit No. 4 which is a transmittal sheet and an arrest and booking report. The arrest and booking report shows that the Petitioner, James Sylvester Cooper, had been arrested in May of 1975 in connection with a check charge. Officer Blanton then contacted Mr. Cooper and indicated that the Respondent would need to know the disposition of the Duval County, Florida, charge, to which Cooper replied that be would go to Jacksonville and take care of the matter by bringing back a disposition of the case. Later in the month, Mr. Moore, the Petitioner's attorney, spoke with Officer Blanton and asked for the case number of the Duval County, Florida, allegation against the Petitioner. Mr. Moore was given the information and stated he would discover the nature of the allegation in Duval County and contact the Respondent when he had ascertained the facts of those charges and had attended them. On January 31, 1979, Officer Blanton saw that the application for the license was submitted through channels to the Director of the Division of Alcoholic Beverages and Tobacco, in Tallahassee, Florida. The application was reviewed in view of the answer to question No. 6 as amended, on January 10, 1979, which answer reflected the carrying of a concealed firearm charge and the loitering charge in Daytona Beach, but did not reflect the worthless check charge in Duval County, Florida. Acting in view of this information, the Director issued a letter on February 7, 1979, indicating his intent to deny the application for transfer of the license. In that letter the operative provisions of the statement of denial were couched in this language: The applicant's failure to truthfully answer questions concerning his qualifications and his criminal history record are indicative of a lack of good moral character. Subsequently, in keeping with his representations, the Petitioner's attorney went to Jacksonville and discovered that there was outstanding a case against the Respondent for failure to appear in connection with a worthless chock charge, and this allegation was pursuant to Section 300.405, Florida Statutes. A disposition of the case was achieved on March 8, 1979. A copy of the disposition may be found in the Respondent's Exhibit No. 3 admitted into evidence. In the course of the hearing in this cause, the Petitioner testified about the matter in Duval County, Florida, which dates from May, 1975. Petitioner's explanation was that he had some occasional contact in Duval County, Florida, in 1974 and 1975 and that while living there he mistakenly assumed that his roommate would pay the landlord, which did not occur, and led to some type of claim by the landlord. The Petitioner stated that although he does not recall a summons being served on him, he does recall that his roommate contacted him to tell him about an outstanding worthless check, for which he went voluntarily to the Judge's Chambers, then reported to be fingerprinted in the jail area and reported back to the Judge's Chambers and paid off the check through the Judge's secretary. In fact, the Petitioner had been arrested in Duval County, Florida, in the year 1975, in connection with a worthless check claim and the facts of this case indicate that he had a knowledge of that case when he answered question No. 6 in the submitted questionnaire on January 3, 1979, as amended on January 10, 1979. This is borne out by the facts which were revealed in the process of checking on the arrest allegation through the office of the Respondent and the answers that the Petitioner gave to the representative of the Respondent, and by the Petitioner's admission in the course of the hearing that he had been fingerprinted and taken to court in connection with a worthless check charge and by his grudging recognition in the course of the hearing that the events and charges complained about in the Respondent's Exhibit No. 3; i.e., the arresting and booking report and attendant disposition of the case, were matters which took place in Duval County, Florida, and matters that pertained to him. Likewise, the Petitioner only admitted the loitering arrest and conviction after being confronted for a third time, the first time being in filling out the form which was handed in on January 3, 1979; the second occasion of January 8, 1979, when he was told that the questionnaire, just as it said, required that all arrests be reported; the third instance, January 10, 1979, by direct questioning concerning the offense in which he initially denied the loitering arrest. Finally, the Petitioner in his initial completion of the questionnaire, even though the questionnaire clearly said to report arrests, did not do so until told to do so specifically on January 8, 1979, and then he only reported the arrest for carrying a concealed firearm. In reading the basis of the denial of the license, which has been set out above, it could be read to address the issue of the answers which the Petitioner gave in the application questionnaire on the basis that those answers were not truthful and the additional allegation that the Petitioner's criminal history record both show a lack of good moral character as described in Section 561.15, Florida Statutes; however, in the course of the hearing, the Respondent's counsel asserted that the true basis of denying the license application was related solely to whether the answers which the Petitioner gave on the questionnaire were truthful concerning the subject of his criminal history record, and that the denial was not related to any criminal history per se. Therefore, this Recommended Order is rendered in keeping with the Respondent's counsel's representation and the Petitioner conducted his case to comport with that limitation. Having established the nature of the statement of denial the question becomes one of whether the answers to question No. 6 on the personal questionnaire are of such a caliber that they demonstrated a lack of good moral character on the part of the Petitioner to the extent that he is not entitled to be the recipient of the beverage license that he has applied for. Subsection 561.15(1), Florida Statutes, states: 561.15 Licenses; qualifications required.-- (1) Licenses shall be issued only to persons of good moral character, who are not less than 18 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 18 years of age. There shall be no exemptions from the license taxes herein provided to any person, association of persons or corporation, any law to the contrary notwithstanding. When considered in view of that standard, the facts in this case demonstrate that the Petitioner does not show the requisite good moral character expected of a person licensed by the Division of Alcoholic Beverages and Tobacco. The Petitioner's response to question No. 6, a legitimate inquiry made to him by the Respondent, ranged from equivocation to undeniable misstatements of the facts known to him and by these actions the Petitioner has shown himself to be a person not to be entrusted with a beverage license. The Petitioner, the record will show, has had some experience as a law enforcement officer and for this reason, his counsel contended that the Petitioner would not be so bold as to erroneously answer the questionnaire, knowing that the fingerprint identification card would be the vehicle by which a successful records check could be conducted and the arrests discovered. The tone of the testimony in this case as concluded puts that theory to rest. There is, however, another view which can be asserted on the question of the significance of the Petitioner's police experience. That view is that the Petitioner indeed knew the difference between what it meant to be convicted of an offense as contrasted with being arrested, and even with this knowledge selected the course of conduct which he pursued in answering question No. 6 on the application form. Finally, it was shown in the course of the hearing that the Petitioner had lived at certain residences in Duval County, Florida, which residence addresses are not reflected in the answers to the questionnaire and had held employment with an organization known as General Wholesale, which statement of employment is not reflected in the answers to the questionnaire. These items were first revealed at the hearing. These facts were made known subsequent to the Director's letter denying the application which was dated February 7, 1979, and for that reason they did not constitute the basis for denying the application and have not been relied upon by the Hearing Officer in reaching the factual conclusions, conclusions of law and recommendation in this matter.
Recommendation It is recommended that the Petitioner's application for transfer of the Series 4 COP beverage license connected with the premises, Paradise Inn, be DENIED. DONE AND ORDERED this 29th day of June, 1979, in Tallahassee, Florida. CHARLES C. ADAMS 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 29th day of June, 1979. COPIES FURNISHED: Reginald E. Moore, Esquire 724 Second Avenue Post Office Box 1848 Daytona Beach, Florida 32015 Francis Bayley, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue The issues are whether Respondent violated Sections 943.13(7), 943.1395(6), and 943.1395(7), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on February 14, 1986. Since that time, Respondent has held Correctional Certificate Number 81761. On or about May 8, 1994, Respondent was in the front yard of his residence. Police officers pulled into Respondent's driveway and requested that Respondent approach the patrol car. Respondent walked away from the police car. As he walked away, Respondent dropped an item from his pocket. The item that Respondent dropped was a bag containing white powder. The white powder was cocaine. Respondent was aware of the presence of the bag on his person. Respondent's possession of the bag containing cocaine was unlawful. One of the police officers advised Respondent that he was under arrest. The police officer instructed Respondent to put his hands behind him. Respondent refused to put his hands behind him. The police officers physically restrained Respondent. Respondent subsequently entered a plea of nolo contendere to the offenses of attempted possession of cocaine and resisting officer without violence. On July 17, 1995, Respondent was adjudicated guilty of these two offenses by the county court judge, in and for Putnam County, Florida, in Case Number 95-2767MM06. The court suspended any fine or cost which might be imposed for the conviction of resisting officer without violence. The court ordered Respondent to pay a fine of $241.50, prosecution costs of $50, and an investigation cost of $50 for the conviction of attempted possession of cocaine.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's certification as a correctional officer. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Johnnie Holcy, Jr. Route 6, Box 300 Palatka, Florida 32177 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Findings Of Fact Question numbered 13 of Respondent's application for licensure form reads as follows: "Have you ever been arrested[?] If yes, list any and all arrests and dispositions. This may or may not be grounds for denial." In response to this question, Petitioner advised that he had never been arrested. Petitioner was arrested in 1972 for burglary of a building and grand larceny; in 1973 for possession of marijuana; again in 1973 for trespassing and possession of dangerous drugs; twice more in 1973 for probation violations; in 1974 for buying, receiving and concealing stolen property; twice in 1975 for buying, receiving and concealing stolen property; in 1975 for possession of heroin; in 1976 for burglary, possession of burglary tools, possession of stolen property, and breaking and entering automobiles; and in 1977 for probation violations. Adjudication was withheld on the 1972 charges, and Petitioner was Placed on five years' probation. A number of the other charges were dismissed. However, Petitioner was convicted of the trespassing and possession of dangerous drugs in 1973; of buying, receiving and concealing stolen property in 1975; of possession of burglary tools and breaking and entering automobiles in 1976; and of probation violation in 1977. Since his last conviction, Petitioner has married and now has a family. Petitioner and his parents believe that Petitioner's new family indicate that he is rehabilitated and is now of good moral character in spite of the fact that Petitioner admits he knowingly gave false information in response to Question numbered 13 on his application for licensure.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered denying Petitioner's application for licensure as both an armed and unarmed security guard. RECOMMENDED this 7th day of January, 1981, in Tallahassee, Florida. LINDA M. RIGOT 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 7th day of January, 1981. COPIES FURNISHED: Mr. Alvin J. Goings 1711 North West 87th Street Miami, Florida 33147 W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Career Service Commission direct that the Department of Health and Rehabilitative Services expunge R. C. McGill's personnel record of all references to the events of November 30, 1975 and December 1, 1975 or in the alternative direct that its order finding the allegations unproven be placed in R. C. McGill's personnel file. DONE and ORDERED this 18th day of October, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Douglas E. Whitney, Esquire Legal Services Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Mr. Robert C. McGill 3946 Country Club Drive Orlando, Florida 32808
Findings Of Fact Petitioner filed an application for licensure as a Class "F" Unarmed Security Guard. Question numbered 13 on that application form is as follows: "Have you ever been arrested? If yes, list any and all arrests and dispositions." Petitioner replied affirmatively and advised that in April, 1962, he had been charged with breaking and entering in Broward County and had served a three and one-half year sentence. He further advised that he had received a pardon from Governor Askew with permission to bear firearms. Petitioner did not report any other arrests or charges, since he believed that only felonies were required to be reported. The report moved into evidence by the Respondent lists various governmental entities as contributors of fingerprints at times when Petitioner was either "arrested or received" on several charges and the disposition of each. According to that report, Petitioner was either "arrested or received" by the police department in Youngstown, Ohio, in 1952 for carrying concealed weapons. Petitioner never knew he was charged with that crime, although he does recall that at that time he was working for a railroad and there was some type of incident with the police due to the fact that he and other railroad employees were carrying mace and blackjacks. The report further reflects that in 1961 Petitioner was "arrested or received" on several breaking and entering charges by law enforcement entities in St. Petersburg, West Palm Beach, and Raiford, Florida, and that he was sentenced to a prison term. Respondent presented no evidence to indicate that any of the breaking and entering charges were other than the crime(s) for which Petitioner has received a pardon. The report further indicates that Petitioner was "arrested or received" by the police department in Fort Lauderdale, Florida, in 1968 for contempt of court, for which he was fined, and in 1970 for a "worthless check (warr)," for which he was also fined. Regarding the contempt of court charge, Petitioner was in a different courtroom on a different case, but the record is devoid of any evidence as to the type of matters involved. As to the worthless check, Petitioner attempted to redeem the check the following day, but found that he was too late.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A Final Order be entered approving Petitioner's application for an Unarmed Security Guard License. RECOMMENDED this 3rd day of December, 1980, in Tallahassee, Florida. LINDA M. RIGOT 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 3rd day of December, 1980. COPIES FURNISHED: Mr. Edward S. Narbut 317 South East 12th Avenue, Apt. 2 Pompano Beach, Florida 33060 W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
Findings Of Fact The Petitioner, William Charles Landes, applied for licensure as an unarmed security guard (Class "D" licensure). This application was denied by the Department of State because of Petitioner's conviction on October 10, 1975, of larceny of a boat and motor and arson of the same boat and motor. Based upon the stipulation of the parties, the Petitioner is qualified for licensure as an unarmed security guard except for the reasons stated in the letter of denial (as amended by the Department's counsel), which reason is at issue in this case. The Petitioner was approximately 20 years of age and living in Lake Wales, Florida, when he became involved as an accessory to the theft of a boat and outboard motor and the burning of said boat and motor. Subsequently, Petitioner was investigated by the Sheriff's Department, arrested, and convicted of the theft and arson of the boat and outboard motor. The Petitioner served three months in the county jail and three months on work release of a one year jail sentence. On August 24, 1979, the Petitioner was released from his probation of five years. Until recently, the Petitioner was employed by Elixer Industries as a mechanic and maintenance man earning five dollars per hour. He had to cease his employment after a severe injury and surgery to his back. The Petitioner has had no criminal arrests or convictions since October 10, 1975. His only involvement with the law since that date has been two speeding tickets. Contrary to the Department's original allegations, the Petitioner did reveal the fact of his arrest in 1975.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department approve Petitioner's application for licensure as an unarmed security guard. DONE and RECOMMENDED this 7th day of November, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1983. COPIES FURNISHED: Mr. William C. Landes 1708 Sylvester Road Lakeland, Florida 33803 Stephen Nall, Esquire Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
