The Issue The issue to be decided here concerns the Petitioner, Barbara A. James' entitlement to be allowed to receive in transfer a Series 2-COP beverage license for a premises known as Ringside Bar in Dade County, Florida.
Findings Of Fact On July 24, 1979, the Petitioner, Barbara A. James, applied to the Respondent, State of Florida, Division of Alcoholic Beverages and Tobacco, to receive an alcoholic beverage license. The details of that application may be found in the Respondent's Exhibit 1 admitted into evidence, which is a copy of the personal questionnaire executed in the course of the application process. This application was for the transfer of license 23-777 for a licensed premises known as the Ringside Bar located at 136 N.E. 54th Street, Miami, Florida. The Petitioner is the owner of the Ringside Bar in which she has placed an initial downpayment of $7,500.00 and financed an amount of $18,000.00 with an additional $10,000.00 in improvements having been made to the bar. After reviewing the license application, the Director of the Division of Alcoholic Beverages and Tobacco denied the transfer of the license on December 31, 1979. In his statement of denial the Director based his decision on the belief that the applicant, Barbara A. James, was not thought to be of good moral character within the meaning of Section 561.15, Florida Statutes. The Petitioner took issue with that determination by the Director and this led to the formal Subsection 120.57(1), Florida Statutes, hearing held herein. At present, in addition to being the owner of the Ringside Bar, the Petitioner is an employee of the Florida Container Company of Sebring, Florida, and works in the sales and promotional aspect of that company. The company manufactures egg containers. In total time of employment, the Petitioner has worked for the Florida Container Company for a period of thirteen (13) months. The Petitioner was not actively employed by that company at the time of the request for license transfer. For approximately ten (10) years prior to her employment with this employer, the Petitioner had worked as a cocktail waitress and barmaid in various establishments in Tampa, Florida. In the past the Petitioner has had a number of arrests for various offenses. Around 1965 or 1966 the Petitioner was arrested for prostitution in Indianapolis, Indiana. Petitioner's explanation of this matter offered during the course of the hearing was to the effect that she was living in a rooming house when the police came to that location and arrested everyone there because of the authorities' suspicion that one or two of the girls who were living there were engaging in prostitution. The Petitioner denied engaging in prostitution. The charges were dismissed, according to the Petitioner, and there is no evidence to contradict this statement by the Petitioner. In 1970 Ms. James was arrested for disturbing the peace and this case was dismissed. In 1975 the Petitioner was arrested for disorderly conduct by the Tampa Police Department and was subsequently fined $25.00. This incident involved a dispute with her roommate, in which James and her roommate had a fight. On April 25, 1978, in Tampa, Florida, the Petitioner was arrested for offering to commit prostitution. The disposition of that case in the courts was that the Petitioner entered a plea of nolle contendere to the offense and was required to pay a fine. There was no adjudication of guilt in that matter. In the course of the hearing sub judice, the Petitioner stated that the reason she entered her nolle contendere plea was for reason that her attorney advised her that it was the easiest and quickest thing to do and it would be like it didn't happen. James further stated that if she had known that it would he held against her she would have contested it, meaning the charge of attempting to commit prostitution. The facts of the incident of April 25, 1978, reveal that officers of the Tampa Police Department on that date went to a bar known as the Huddle Lounge, which is located on North Dale Mabry in Tampa, Florida, to investigate possible acts of prostitution that were occurring in the bar. The two officers, Halstead and Slater, entered the lounge and took a seat at the bar and ordered a drink. At that time Officer Halstead noticed a woman identified as Troy Taylor who was smiling at Officer Halstead. Halstead and Slater then went to the table where Troy Taylor was located and took a seat. Shortly thereafter, the Petitioner came to the table and entered into the conversation that was being conducted. While the Petitioner was present, Taylor discussed with the two officers the arrangement for a "date" between the officers, Taylor and the Petitioner. Use of the word "date" meant the making of arrangements for the women to commit acts of prostitution. Taylor stated that the price for the "date" would be fifty dollars ($50.00) for each officer and told the officers to follow them to the apartment of the woman which would be used for the "date". Taylor and the Petitioner left in their automobile and the officers followed them to the apartment of Taylor and the Petitioner. Once inside the apartment, Taylor asked the officers which officer was going to go with what woman and then stated to Halstead that he should go with her. The Petitioner then went with Officer Slater into her bedroom. When in the bedroom, Slater asked James about the money which had been discussed in the bar as a payment for the act of prostitution. James told the officer to place the money on the bookshelf and she then removed her clothes. The amount of money that was placed there was fifty dollars ($50.00). James instructed the officer to take off his clothes and he complied with her request. She asked him to go into the bathroom and when in the bathroom she stated that she would have to examine his genitalia to determine if he was clean and if he had "V.D." She examined his penis and took him back into the bedroom and told him to lie down. The officer then asked James what he would get for his fifty dollars ($50.00) and in response James told him on several occasions to lie down. She then removed his shorts and moved her head toward the area of his penis, at which he asked what he would get for the fifty dollars ($50.00) by the question, "Half and half?", meaning oral sex and intercourse, to which the Petitioner responded, "Yes." The officer then stated that he had changed his mind and got up from the bed and placed the Petitioner under arrest.
Recommendation IT IS RECOMMENDED that the request by the Petitioner, Barbara A. James, to transfer the alcoholic beverage license associated with the Ringside Bar at 136 N.E. 54th Street, Miami, Florida, into her name as licensee be DENIED. 3/ DONE AND ENTERED this 21st day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue is whether Petitioner properly denied Respondent's application for licensure as a community association manager for failure to establish good moral character as required by section 468.433(2)(b)2., Florida Statutes, and Florida Administrative Code Rule 61-20.001(5)(b)3.
Findings Of Fact Petitioner, Department of Business and Professional Regulation (Department), is the state agency responsible for regulating the practice of community association management pursuant to section 20.165, and chapters 455 and 468, Part VIII, Florida Statutes. In February of 2011, Respondent, Carl Allen Quesinberry, submitted an application for licensure as a community association manager to the Department. In May of 2011, the Department notified Respondent that it intended to deny his application on the ground that he had failed to demonstrate good moral character. Specifically, the Department indicated Respondent has exhibited a pattern of unlawful behavior which would indicate Respondent has little regard for the law, the rules of society, or the rights of others, and used the term "habitual offender" to describe him. A review of Respondent's criminal history discloses a series of 12 criminal convictions during the time period beginning May 5, 1985, through November 14, 2007. Specifically, Respondent was found guilty of the following criminal law violations on the following dates: Reckless Driving, May 3, 1985; Driving Under the Influence, April 4, 1996; Battery, September 27, 1996; Battery, August 15, 2001; Misdemeanor conviction, December 8, 2003; Two convictions for Battery, March 31, 2006; Revocation of Probation, March 29, 2007; Two convictions for Trespass of an Occupied Dwelling, June 29, 2007; Revocation of Probation, November 14, 2007; and Violation of Domestic Violence Injunction, November 14, 2007. A review of the criminal history for Respondent shows that he has not had any arrests, pleas, or convictions since November of 2007. At the time of Respondent's application for licensure as a community association manager in February of 2011, it would have been over three years since Respondent had encountered any legal difficulties. Respondent presented the testimony of Michael Gerrity, the CEO of the World Property Channel in Miami, Florida, as a factual witness in this matter. Mr. Gerrity runs one of the largest real estate global news networks in the country. His company covers residential and commercial real estate news and trends. Mr. Gerrity testified he has known Respondent since ninth or tenth grade from attending the same high school, Lyman High School, in Longwood, Florida. He testified that he has known Respondent to be an honest and trustworthy individual in his real estate dealings and transactions. He believes Respondent has respect for others and the law, and that Respondent's criminal troubles have never affected his business dealings or those of his clients. Respondent has represented a wide variety of real estate clients, from those investing in property to those leasing space for their businesses. Respondent has represented Fortune 500 Companies as well as smaller local companies in his real estate dealings. Mr. Gerrity, Anthony VanDerworp, and Michael LaFay (Respondent's criminal defense attorney) testified that the bulk of Respondent's criminal matters stemmed from Respondent's dysfunctional relationship, which involved both individuals drinking. Messrs Gerrity, VanDerworp, and LaFay all believe Respondent has changed his life and his focus in the last three or four years. Respondent has undergone substance abuse counseling and his testifying witnesses all believe he has overcome his addiction and will continue to serve his real estate clients well in the future. Respondent did not offer any testimony or evidence from his counselors or physicians that he has overcome or controlled his prior substance abuse addition, so the evidence supporting his changed life is based upon his testimony and the anecdotal testimony of his friends, Messrs Gerrity, VanDerworp, and LaFay. Respondent testified that he has received counseling, moved to Kentucky, gotten married, had a child, received real estate licenses in both Kentucky and Alabama, and turned his life around. Respondent has been licensed in Florida for more than 25 years as a real estate broker. During that time, he has not been disciplined by the Florida Real Estate Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order denying Respondent's application for licensure as a community association manager. DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2012. COPIES FURNISHED: C. Erica White, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Carl Allen Quesinberry 329 South Garcon Point Road Milton, Florida 32583 J. Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony B. Spivey, Executive Director Regulatory Council of Community Association of Managers Division of Professions Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
The Issue The issue in this matter is whether Mr. Durden qualifies for licensure as a bail bondsman in view of the plea of guilty he entered to contributing to the delinquency of a minor in the Criminal Court of Record for Dade County in November, 1963, on which he was convicted and sentenced to three months incarceration.
Findings Of Fact The Respondent, Bobby E. Durden, is 42 years old (Tr. 17). 1/ He has applied for licensure as a limited surety agent with the Florida Department of Insurance (RX 1), which would permit him to become a bail bondsman. Mr. Durden has received a license as a private investigator by the State of Florida, Department of State, as well as a license to manage a security patrol firm (Tr. 17, 19) despite his past conviction (Tr. 19-20). Mr. Durden and his common law wife, Cynthia, had five children (Tr. 23). Mr. Durden first met Cynthia approximately 25 years ago, in 1961, when she was 12 or 13 years old and Mr. Durden was around 16 years old (Tr. 23-24). When Mr. Durden was a senior in high school and Cynthia was a freshman in high school (in approximately ninth grade), Cynthia became pregnant by Mr. Durden (Tr. 24). As a result of this pregnancy, Mr. Durden was charged with the crime of indecent assault upon a female minor under the age of 14 years in violation of Section 800.04, Florida Statutes (1963) in the Criminal Court of Record, Dade County, Florida, Case 63-7498. As a result of this prosecution, on November 5, 1963, Mr. Durden pled guilty to the misdemeanor of contributing to the delinquency of a minor and was sentenced to three months confinement in the Dade County Jail (RX 2). From the time Mr. Durden was released from the Dade County Jail, he and Cynthia lived together as husband and wife (Tr. 25). Mr. Durden supported her over the years, and together they raised their five children (Tr. 26). The youngest child Mr. Durden had with Cynthia is now 18 years old. In about 1975 Mr. Durden and Cynthia separated (Tr. 26). Two witnesses familiar with Mr. Durden for many years, Georgia Jones Ayers and James Brown, testified as character witnesses for Mr. Durden. The uncontradicted evidence is that Mr. Durden enjoys a reputation for honesty and good moral character (Tr. 14-15).
Recommendation It is recommended that a Final Order be entered granting the application of Bobby E. Durden for licensure as a limited surety agent as a bail bondsman. DONE and ORDERED this 31st day of October, 1986 in Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 31st day of October, 1986.
The Issue Whether Petitioner should he permitted to take the CPA examination for licensure with the State Board of Accountancy. The Petitioner appeared at the hearing without legal counsel and therefore was advised as to his rights in administrative proceedings under Chapter 120, Florida Statutes. He indicated that he understood these rights and desired to represent himself during the proceedings.
Findings Of Fact On February 2, 1978, Respondent received from the Petitioner an application for permission to take the certified public accountant examination for state licensure. In answer to question 15 of the application form as to whether he had been convicted of a felony or misdemeanor, Petitioner answered "Yes" and submitted an accompanying letter which stated that he had been convicted on a plea of guilty to a charge of accepting a gratuity and that he had received a suspended sentence with two years probation. He further noted in the letter that although he was a member of the New York Bar during that period, no action had been taken against him for disciplinary reasons by chat organization and that he had' lived a clean and exemplary life since that time. Three individuals certified on Petitioner's application as to his good moral character and integrity, and he listed three others who would submit character references on request. (Exhibits 1-2) On May 1, 1973, in the United States District Court for the Southern District of New York, Case No. 70Cr.653, Petitioner, upon his plea of guilty, was convicted of a violation of Title 18, United States Code, Section 201 and 2 in that being a public official, to wit, a Special Agent, Internal Revenue Service, unlawfully, wilfully, and knowingly otherwise than as provided by law for the proper discharge of official duty, directly and indirectly, did ask, demand, exact, solicit, seek, accept, receive and agree to receive things of value, to wit $2,000, because of official acts to be performed by him in connection with an investigation." Petitioner was sentenced to a two-year period of confinement which was suspended and was placed on probation for like period. (Exhibit 4) Incident to its processing of Petitioner's application, Respondent received a letter from his probation officer stating that court records indicated Petitioner had been "seriously involved over a long period of time in numerous bribery and attempted bribery situations while working as a special agent for the IRS." However, the officer stated that petitioner had presented no problems while on supervision, made a satisfactory adjustment, and was terminated from probation on April 30, 1975. (Exhibit 4) Respondent's executive director testified that no inquiry had been made into the character references supplied by Petitioner on his application due to the fact than the amount of time to process applications for the May examination did not provide sufficient time to do so. However, he also testified that such references are not routinely investigated in processing applications. By letter of March 4, 1978, Petitioner was advised by Respondent that his application to take the May, 1978, CPA examination had been denied for failure to comply with Section 473.08(1)(c), F.S., in that "you were convicted on charges of `accepting a gratuity as an IRS agent, Title 18, U.S.C., Section 201(g)'." (Testimony of Thompson) Petitioner testified that he served as an investigative agent in the Internal Revenue Service for a period of seventeen years prior to his retirement for medical disability. He conceded that he was asked to resign from that employment due to the fact that he was being investigated for some 20 to 30 alleged instances of activities similar to that for which he was convicted. He was employed by accounting firms in New York for a number of years prior and subsequent to his employment with the Internal Revenue Service. He has been employed with an accounting firm in Florida since February, 1978. In 1974, he served as Chancellor, Knights of Pythias, in New York. He believes that he has been rehabilitated and should be permitted to take the State CPA examination. (Testimony of Kronish, Exhibit 1) Respondent does not have a consistent position on dealing with applications involving prior convictions, but considers each case on its individual merits. In cases where an application has been denied for such a reason, Respondent normally permits the applicant to appear before it personally if he files a second application. (Testimony of Thompson)
Recommendation That Petitioner Harry T. Kronish be permitted to take the next examination for the purpose of determining whether he shall be permitted to practice in this state as a certified public accountant. DONE and ENTERED this 1st day of September, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1978. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 Harry T. Kronish 4533 Jefferson Street Hollywood, Florida 33021 =================================================================
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Ivan Carrandi (Carrandi), has been employed by the County as a correctional officer since June 17, 1985, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Carrandi. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Carrandi had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Carrandi and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Carrandi filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Carrandi denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Carrandi on January 1, 1985, at which time he freely admitted that he had used cocaine and marijuana. Regarding such use, the proof demonstrates that during the years 1980 and 1981, while a student at Miami Dade Community College, Carrandi used marijuana approximately two or three times and cocaine approximately two or three times. He has not, however, otherwise used controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Carrandi's background, that Carrandi possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of marijuana and cocaine approximately 8 years ago. The Commission's action is unwarranted. Here, Carrandi, born November 12, 1960, used marijuana two or three times and cocaine two or three times about 8 years ago when he was 20-21 years of age and a student at Miami Dade Community College. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B- 27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Carrandi has been employed by the County as a corrections officer, a position of trust and confidence, for approximately four years. His annual evaluations have ranged from satisfactory to above satisfactory, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Carrandi has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Ivan Carrandi, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1989.
The Issue The issues to be determined in this proceeding concern whether the Respondent committed the violations of Sections 943.13(7), 943.1395(7), and 800.03, Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)b, concerning the licensure qualification of good moral character.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged, as pertinent, with licensure and regulation of the practice standards and practice of certified law enforcement officers, in the manner prescribed by Chapter 943, Florida Statutes. The Respondent was certified as a Law Enforcement Officer on May 8, 1995, and issued Certification Number 155216. The Respondent was a Fire Chief in Gulf Breeze, Florida, at times pertinent to this proceeding. On June 21, 2008, the Respondent went to the Edge of Paradise Day Spa (the Spa) as a customer seeking a massage. He arrived at about 5:45 p.m. The Spa is owned by Ms. Vickie Edge. She holds a Massage Establishment License and a Facial Specialist License issued by the State of Florida. The business is located in Destin, Florida, on Highway 98. It offers its customers massage therapy and various beauty treatments. It employed Jennifer Edwards, a state-licensed massage therapist, on June 21, 2008. Because he did not have an appointment, the Respondent had to wait until the massage therapist, Ms. Edwards, returned from a meal break. During this time he conversed with the owner, Ms. Edge, while he completed a "new customer form." The Respondent is a public servant and did not want his identity associated with patronizing a massage establishment. Ms. Edge assured him that customers often did not use their true identities, in completing the form, for this reason. The Respondent therefore entered a fictitious name, "Jim Martin" on the form, also stating that he was from Ohio. He told Ms. Edge that he was a guest at a nearby Days Inn motel and was in the area on business, working on a “Networking” job for a Pensacola bank. The customer form contained a notice to the effect that removal of all clothing was not required, that body parts not being massaged would be covered by a large sheet or towel, and that “. . . no reputable massage therapist will ever touch you in a sexual way.” The Respondent signed the form, with the fictitious name and phone number, and paid Ms. Edge a cash fee of $75.00 for a 60-minute massage. The massage therapist, Ms. Edwards, returned to the spa at about 6:10 p.m., accompanied by her friend, Karen Arrington. She met the Respondent (for the first time) and then went to the massage room to prepare for the Respondent’s massage. About five minutes later she showed the Respondent to the massage room. She told him to undress and lie face down on the massage table under a twin-size bed sheet. She told him to thus cover his "private areas" and to tuck the sheet under his hips. The Respondent agreed and, while Ms. Edwards was out of the room, he disrobed. After several minutes, Ms. Edwards knocked on the door and re-entered the room, finding the Respondent lying face down under the bed sheet. He was nude, except for the sheet covering him. Ms. Edwards pulled the sheet down to his lower back and began massaging his lower back, keeping his buttocks covered by the sheet. During this process the Respondent pulled the sheet down, exposing his buttocks. Ms. Edwards replaced the sheet, admonishing him to keep that area covered. Upon finishing with his back, Ms. Edwards told the Respondent to roll over and lie on his back while she continued with the massage. He was covered from the top of his back downward while this change of position was made. Ms. Edwards then continued with the massage. While thus lying on his back, the Respondent pulled the sheet down, exposing his erect penis to Ms. Edwards while she was about three feet away. She testified that she had never before seen a man’s penis like that, in that there was ". . . excess skin over the top of his penis." The Respondent acknowledged in testimony that he is uncircumcised. While thus exposed, the Respondent began to apparently masturbate, using his hand. Ms. Edwards was about three feet away at the time. She did not consent to this conduct and was very upset by such an act in front of her. Ms. Edwards ran out of the room and to the lobby area and told Ms. Edge that the Respondent was "back there jerking off.” She also told Ms. Arrington, and told her to call the police. The Respondent then dressed and came into the lobby. Ms. Edwards yelled at him that the spa was a respectable establishment and that the police were being called. Ms. Edwards tried to block his exit, but the Respondent fled the building at this point. Ms. Edwards followed him. Ms. Arrington was already outside speaking with the “911” operator on her cell phone. Ms. Arrington grabbed the Respondent by the shirt and confronted him, at which point he pushed her to the ground and fled on foot down the sidewalk along Highway 98. He left his car in the spa parking lot. Ms. Edwards and Ms. Arrington followed the Respondent, calling to him to stop and that the police were on their way. Ms. Arrington stopped and picked up a beer bottle and broke it, carrying it with her to use as a weapon. She testified that she feared the Respondent might do her violence if she confronted him. The chase continued for more than one-half mile. A deputy sheriff arrived and Ms. Arrington pointed out the Respondent. The deputy took him into custody. On his own volition, the Respondent told the deputy that he had scratched himself during a massage and the masseuse had gone “ballistic.” The Respondent stated that he had done nothing wrong. When the officer asked him why he fled, he replied that one of the women was throwing bottles at him. Both Ms. Edwards and Ms. Arrington wrote witness statements for the deputy. In testimony, Ms. Edwards described the Respondent’s act verbally and with an illustrative hand motion. She did not describe the duration of the act, as she observed it. The Respondent maintained that he was doing no such act, but rather was scratching himself because the sheet caused him to itch. The Respondent used false identification information when he went to the spa because he is a public servant (fire chief) and did not want adverse publicity associated with his paying for a massage during a time when employees were subject to lay-offs due to shrinking budgets. He did not flee in his car because he did not want his identity to become known through means of his tag number.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the record evidence and the pleadings and arguments of the parties, it is Recommended that a Final Order be entered by the Criminal Justice Standards and Training Commission, revoking the Respondent’s Law Enforcement Certification, Number 155216. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 3rd day of December, 2009. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gene Mitchell, Esquire 2101 North 9th Street Pensacola, Florida 32502 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Gerald M. Bailey, Commissioner Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether Respondent should deny Petitioner's application for registration as a septic tank contractor on the ground that Petitioner lacks good moral character within the meaning of Section 489.553(4)(a), Florida Statutes (1997). (All statutory references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Respondent is the state agency responsible for the registration and regulation of septic tank contractors in the state. Petitioner was registered as a septic tank contractor from March 29, 1991, to February 22, 1994, when Respondent's predecessor, the Department of Health and Rehabilitative Services (the "Department"), revoked Petitioner's registration. The revocation of Petitioner's registration in 1994 was based on various violations that began in 1991. In October 1991, the Department of Environmental Regulation ("DER", now the Department of Environmental Protection, or "DEP") charged Petitioner's company with pumping untreated septage into a manhole in Bonita Springs, Florida. Petitioner entered into a Consent Order in which Petitioner agreed to pay an administrative fine of $3,900 and to file prescribed reports and protocols with DER. Petitioner did not pay the fine or complete the filing requirements. DER filed an action in circuit court in Collier County, Florida to enforce the Consent Order against Petitioner. Petitioner entered into a Stipulation and Consent Final Judgment dated April 24, 1993. Pursuant to the Stipulation and Consent Final Judgment, the court imposed a fine of $5,000. Petitioner did not pay the $5,000 fine or comply with any of the other terms of the consent judgment. DER received information that on October 21, 1993, Petitioner's company again dumped untreated septage into the utility system of Collier County, Florida. DER filed a motion for contempt for Petitioner's failure to comply with the terms of the Stipulation and Consent Final Judgment. The circuit court in Collier County ordered Petitioner to pay Collier County $2,417 for the cost of repairing and cleaning wastewater lines required by the dumping of septage sludge into the county utility system. The court permanently enjoined Petitioner from ever hauling septage or sludge and required Petitioner to make monthly payments until the $5,000 penalty was paid in full. Petitioner has not paid any portion of the $5,000 penalty ordered by the court. Petitioner has not paid the $2,417 in costs incurred by Collier County. By Final Order dated May 26, 1993, the Department imposed a $500 fine and six-month probation upon Petitioner because Petitioner's company illegally dumped septage grease into a collection system at Gulf Coast Camping Resort in Fort Myers. Petitioner consented to the fine and probation. During the probation, Petitioner's employees engaged in six separate illegal dumpings into the Collier County Utility System. Petitioner's company illegally spread unstabilized septage on another occasion. On February 22, 1994, the Department revoked Petitioner's registration and imposed a fine of $4,000. Petitioner violated the revocation order by performing four septic system repairs between September and November in 1994. The aggregate cost of the repairs to the customers was $4,150, and the repairs were performed negligently. On January 20, 1995, the Department filed a Petition for Enforcement of Agency Action and Complaint for Injunctive Relief in circuit court in Lee County, Florida. Petitioner did not respond and defaulted. On April 24, 1995, the circuit court in Lee County enjoined Petitioner from engaging in any service related to septic tank systems without the direct supervision of a registered contractor. The court imposed an additional fine of $1,000 and ordered Petitioner to pay the $4,000 fine that had been imposed previously. On May 31, 1995, Petitioner signed a promissory note with the Department to evidence his obligation to pay the $5,000 in fines. Petitioner did not make the scheduled payments required under the note. In January 1996, the circuit court in Lee County issued an Order to Show Cause why the court should not hold Petitioner in contempt of court on two grounds. One ground was for repairing septic tanks without the direct supervision of a registered septic tank contractor and the other was for failing to pay the $5,000 in fines previously ordered by the court. On August 7, 1996, the court found Petitioner in contempt on both grounds. The court ordered Petitioner to pay a minimum of $100 each month until he paid the $5,000 in fines. The first payment was due on August 1, 1996. In April 1998, Petitioner filed a motion with the circuit court in Lee County seeking to modify the injunction against Petitioner. The parties settled the matter. Petitioner agreed to pay the balance of $4,000 due on his fine, and the Department agreed to delete the requirement for direct supervision by a registered septic tank contractor. The court adopted the stipulation of the parties on April 22, 1998. Petitioner paid the remaining $4,000. On October 26, 1999, Petitioner applied for registration as a septic tank contractor. On November 24, 1999, Respondent denied Petitioner's application for registration. The sole ground for denial was that Petitioner failed to satisfy the requirement in Section 489.553(4)(a) for good moral character. In determining whether an applicant has good moral character, Section 489.553(4)(a) authorizes Respondent to consider: . . . any matter that has a substantial connection between the good moral character of the applicant and the professional responsibilities of a registered contractor, including, but not limited to: the applicant being convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of contracting or the ability to practice contracting; and previous disciplinary action involving septic tank contracting, where all judicial reviews have been completed. (emphasis supplied) It is uncontroverted that the prior disciplinary history of Petitioner did not involve any criminal charges or convictions. Section 489.553(4)(a) authorizes Respondent to consider any non-criminal matter in determining Petitioner's good moral character if the non-criminal matter satisfies two conjunctive criteria in the statute. First, the non-criminal matter must have a connection between both Petitioner's good moral character and Petitioner's professional responsibilities. Second, any such connection must be substantial. It is uncontroverted that the non-criminal matters considered by Respondent in determining if Petitioner possesses good moral character are substantially connected to Petitioner's professional responsibilities. The issue for determination is whether there is a substantial connection between the non- criminal matters considered by Respondent and Petitioner's good moral character. Neither party offered any evidence of the meaning of the statutory criteria for a "substantial connection." Respondent's expert did not define "substantial connection" but opined that Petitioner's prior disciplinary history demonstrated the requisite connection. That testimony is neither credible nor persuasive. It is substantially equivalent to the circuitous definition of obscenity offered by one who can't define the term but knows it when he sees it. It is inherently subjective and invites abuse of agency discretion. If Petitioner had offered no explanation for the non- criminal matters in his disciplinary history, the nature and extent of Petitioner's disciplinary history might be sufficient to "infer" a substantial connection between the non-criminal matters and Petitioner's good moral character if such an inference were authorized by statute. However, Petitioner did offer an explanation for his disciplinary history. Petitioner's explanation was credible and persuasive and successfully rebutted any inference of a substantial connection between Petitioner's past disciplinary history and Petitioner's good moral character. Petitioner was 21 in 1991 and the sole owner of his business. Petitioner did not personally dump untreated septage into the Collier County Utility System. Nor did Petitioner direct his employees to do so. Petitioner's employees carried out the dumpings without Petitioner's knowledge. When Petitioner learned of the violations, Petitioner accepted responsibility for the actions of his employees and entered into consent orders with the state agency. Petitioner did not intentionally disregard any fines, costs, or other requirements imposed by state agencies or courts. Petitioner was unable to comply with the orders or to pay fines and costs imposed in the orders because of circumstances beyond Petitioner's control that began with the birth of his son. In 1992, Petitioner's son who was born immune deficient. Two or three times a week, Petitioner and his wife took their son for treatment at the hospital in St. Petersburg, Florida and at Shands Teaching Hospital at the University of Florida. Petitioner and his wife devoted all of their time, attention, and financial resources to the care and treatment of their son. The cost of medical care for Petitioner's son exceeded $3 million and exhausted the $2 million coverage available in Petitioner's personal health insurance policy. All of Petitioner's financial resources went into the care of his son. Petitioner's wife could not work because she devoted all of her time to the care of her son. Although the state eventually paid the amount of medical costs that exceeded Petitioner's $2 million health coverage, there was substantial delay between the time Petitioner incurred the medical bills and payment by the state. Petitioner completely neglected his business between 1992 and 1996 but allowed his employees to assume operating control in an effort to maintain his business income for his family. During that time, Petitioner's company was charged with additional violations. Petitioner had no personal knowledge of the dumping and spraying violations that occurred between 1993 and 1994. Petitioner did not direct his employees to commit those acts. When Petitioner learned of those violations, Petitioner accepted responsibility and attempted to resolve the matters with the respective state agencies. Petitioner had no money for an attorney and attempted to resolve these matters without the benefit of legal representation. Between September and November in 1994, Petitioner was personally responsible for negligently performing septic tank services on four occasions in violation of the order revoking his license. However, no evidence demonstrates a substantial connection between the negligent performance of septic tank repairs in 1994 and Petitioner's good moral character. Negligence lacks the culpable intent inherent in bad moral character. No evidence demonstrates a substantial connection between Petitioner's violation of the revocation order and Petitioner's good moral character. Petitioner testified that he made those repairs under the supervision of, and as an employee of, his father or brother who are both registered septic tank contractors. When Petitioner made the septic tank repairs, Petitioner was facing substantial medical expenses for a severely ill child and arguably had a moral duty to satisfy those responsibilities. Petitioner has a high school education. He has no other vocational training except in performing septic tank services. He began working for his father and brother immediately after high school and later began his own business. Petitioner testified that between 1992 and 1995, Petitioner had no intention of doing anything except taking care of his son. Petitioner relinquished operating control of his business to his employees, relied completely on his employees to run his business, and attempted to preserve his business income because he needed money for his son. Petitioner's testimony was credible and persuasive. Petitioner's prior disciplinary history does not include an act of environmental harm by Petitioner's employees after February 22, 1994, when the Department revoked Petitioner's registration as a septic tank contractor. The most egregious of the violations by Petitioner's employees required them to haul septage. If Respondent grants Petitioner's application for registration, Petitioner cannot haul septage because he is permanently enjoined from doing so by the circuit court in Collier County. Petitioner's prior disciplinary history does not include a violation by Petitioner after the last septic tank repair completed by Petitioner in November 1994. Since that time, Petitioner has paid outstanding fines of $5,000, and Respondent has agreed to allow Petitioner to provide septic tank services without the direct supervision of a registered septic tank contractor. Petitioner has not paid all of the fines and costs assessed against him. However, the evidence submitted by Petitioner refutes any arguable inference that a substantial connection exists between Petitioner's good moral character and his failure to pay the outstanding fines and costs. The evidence shows a substantial connection between Petitioner's failure to make payment and circumstances beyond Petitioner's control. Respondent's determination of Petitioner's good moral character, including the testimony of Respondent's expert, was based solely on a review of the documents contained in Respondent's agency file. When Respondent determined there was a substantial connection between Petitioner's prior disciplinary history and Petitioner's good moral character, neither Respondent nor Respondent's witnesses made any attempt to contact Petitioner to obtain an explanation of Petitioner's prior disciplinary history or to independently investigate the connection between Petitioner's disciplinary history and his good moral character and the substantiality of the connection. Petitioner's explanation showed a substantial connection between Petitioner's prior disciplinary history and circumstances beyond Petitioner's control. Respondent failed to refute Petitioner's explanation with credible and persuasive evidence of a substantial connection between Petitioner's prior disciplinary history and his good moral character. After hearing Petitioner's explanation for his prior disciplinary history, Respondent's expert testified that the evidence did not alter his opinion that Petitioner lacked good moral character because Petitioner still owed fines and costs and because Petitioner had not yet said he was sorry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner possesses good moral character within the meaning of Section 489.533(4)(a) and granting Petitioner's application for registration as a septic tank contractor. DONE AND ENTERED this 21st day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 21st day of June, 2000. COPIES FURNISHED: Dr. Robert G. Brooks, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Susan Mastin Scott Chief Legal Counsel Department of Health Post Office Box 9309 Fort Myers, Florida 33902-9309 Michael F. Kayusa, Esquire 1922 Victoria Avenue, Suite A Post Office Box 6096 Fort Myers, Florida 33911
The Issue At issue in this proceeding is whether petitioner possesses the requisite good moral character for certification as a correctional officer.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Alfonso Morales (Morales), has been employed by the County as a correctional officer since June 30, 1986, without benefit of certification. On August 11, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Morales. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 11, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Morales had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 7, 1988, the Commission notified Morales and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly carried a concealed firearm. You have unlawfully and knowingly possessed and introduced into your body cannabis. Following receipt of the Commission's letter of denial, Morales filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Morales denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Morales on December 18, 1985, at which time he divulged that, as to arrests, he had been arrested one time in 1980 for carrying a concealed weapon and that, as to drug usage, he had used marijuana one time "many, years ago." Regarding the use of marijuana, the proof demonstrated that Morales had used it but once, and that was in 1976, when he was 17 years old and attending high school. Regarding his arrest for carrying a concealed weapon, the proof demonstrates that in August 1980, Morales was stopped while driving in the City of Miami Beach for a "routine traffic offenses (unsafe equipment)." Following the stop, Morales volunteered to the officers that he had a .25 caliber automatic pistol under the driver's seat which, upon discovery by the officers, resulted in his arrest. No charges were filed, however, as a consequence of that arrest, and Morales' arrest record was expunged and sealed by court order in August 1985. Notwithstanding the County's conclusion, based on its investigation and analysis of Morales' background, that Morales possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on the foregoing incidents. The Commission's action is not warranted by the proof. Here, Morales, born March 9, 1959, used marijuana one time, 13 years ago when he was 17 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. Nor, can Morales' arrest for carrying a concealed weapon, considering what has occurred in his life since that time, be considered persuasive proof, if it ever was, of bad moral character. 4/ Morales graduated from high school in 1981, and entered the U.S. Army in 1982 where he served honorably for over three years. During his service he attained the rank of sergeant, enjoyed a top secret security clearance, garnered several commendations, and all drug screenings met with negative results. Following his discharge from the services, Morales was employed by the State of Florida, Job Services of Florida, until his employment by the County. To date, Morales has been employed by the County as a corrections officer, a position of trust and confidence, for almost three years. His annual evaluations have ranged from above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Morales has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Alfonso Morales, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK 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 20th day of June, 1989.
The Issue The issue in this matter is whether Petitioner’s application for a real estate associates’ license should be granted.
Findings Of Fact Respondent is the state agency responsible for licensing real estate sales associates and brokers in the State of Florida, pursuant to Chapter 475, Florida Statutes (2009). Petitioner is a retired individual from Exxon. He worked as a research technologist for Exxon for 34 years. As such, he traveled extensively both in-state and out-of-state for the company. He retired in late 2008 and moved to Florida, shortly thereafter. He lives in Florida with his wife and two step-sons and worked for a brief time in a real estate sales office. During that experience he became interested in obtaining a real estate sales associates’ license and applied for licensure around March 2009. In 1998 or 1999, Petitioner lived in Louisiana where he resided with his daughter. On three separate occasions he either inappropriately touched his daughter in a sexual manner or she inappropriately touched him in a sexual manner. His daughter was about nine years old at the time of the three incidents. However, Petitioner’s actions were not reported to law enforcement until sometime in 2002. In October, 2002, Petitioner was charged with three counts of molestation of a juvenile and aggravated incest in East Baton Rouge Parish, Louisana. On September 10, 2003, Petitioner plead guilty to three counts of molestation of a juvenile and was sentenced to five years of supervised probation with a variety of conditions. The evidence showed that supervised probation in Lousiana is similar to house arrest in Florida. During his supervision, Petitioner participated in and completed therapy with his daughter and ex-wife. According to Petitioner, he made amends to both his daughter and other members of her extended family. His daughter, who is now in college, regularly calls him on the phone, visits him in Florida and stays at his house. He testified that they have a close relationship and she has forgiven him. However, Petitioner’s daughter did not testify at the hearing. Indeed, Petitioner did not present any non-hearsay corroboration of his good character or his rehabilitation. Given this lack of evidence, the record is insufficient to establish that Petitioner now has good moral character or rehabilitated himself. Petitioner also testified that after his convictions, he returned to work at Exxon and frequently traveled with special travel permits from the Court and GPS tracking, both in- state and out-of-state, for the company. However, without more details from a credible source, these facts do not establish good moral character or rehabilitation. Petitioner completed his sentence in September 2008, and moved to Florida. He has not had any further criminal involvement with the law. Unfortunately, because of his record, he has had great difficulty finding employment. Petitioner worked as an assistant in a real estate office for about three months; his contact with the public was limited. His work in the real estate office precipitated Petitioner’s interest in becoming licensed. Petitioner testified that the agent he worked for was willing to hire him at his office. This agent did not testify at the hearing. Again, Petitioner’s testimony, by itself, is insufficient to establish good moral character. Additionally, there has been insufficient time between his release from supervision and the date of the hearing (approximately two years). Given these facts, Petitioner’s application should be denied.
Recommendation Based on the findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding that Petitioner failed to establish by a preponderance of the evidence that Petitioner has been rehabilitated sufficient to show good moral character and denying Petitioner’s application for licensure. DONE AND ENTERED this 4th day of May, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 4th day of May, 2010. COPIES FURNISHED: Alvah T. Wickboldt 1150 Fort Pickens Road, Unit F-1 Gulf Breeze, Florida 32561 Tom Barnhart, Esquire Special Counsel Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Humberto Jimenez (Jimenez), has been employed by the County as a correctional officer for approximately two and one-half years, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Jimenez. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Jimenez had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of Section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Jimenez and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. Following receipt of the Commission's letter of denial, Jimenez filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Jimenez denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.OO11 Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in Rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Jimenez on July 24, 1986, at which time he admitted that he had used cocaine and marijuana in the past. His use of cocaine occurred in 1983, when he was 19 years of age, and consisted of using the drug twice on the same day. His use of marijuana occurred in 1981 or 1982, while he was a high school student, and occurred on no more than four occasions. But for these isolated occasions, Jimenez has not used cocaine or marijuana. Notwithstanding the County's conclusion, based on its investigation and analysis of Jimenez's background, that Jimenez possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on his isolated use of cocaine and marijuana. The Commission's proposed action is not warranted by the proof. Here, Jimenez, born January 1, 1964, used marijuana infrequently, the last time being about 7 years ago when he was 17 years of age and a high school student. His use of cocaine occurred on but one day in his life, and at the time he was 19 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of Rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ Currently, Jimenez is married and the father of a fourteen-month-old daughter. He has been employed by the County as a corrections officer, a position of trust and confidence, for approximately two and one-half years. His annual evaluations demonstrated that his performance has been above satisfactory to outstanding, and his periodic drug screenings have all met with negative results. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Jimenez has demonstrated that he possessed the requisite good moral character when he was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that he currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Humberto Jimenez, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of June 1989. WILLIAM J. KENDRICK 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 20th day of June, 1989.
