The Issue The issue presented is whether Petitioner's application for licensure as a real estate salesperson should be granted.
Findings Of Fact Petitioner was born in 1951 and graduated from high school in 1969. He then attended the University of Florida for four years, acquiring an associate of arts degree, with a major in marine biology. He returned to Palm Beach County around the beginning of 1974 and worked as a waiter for approximately eight months. In March 1974, Petitioner made restitution of approximately $52 for issuing a check on a closed bank account. As a result, the charges pending in Palm Beach County were nolle prossed. In July 1974, Petitioner began working in the Palm Beach County Property Appraiser's Office. In approximately 1981, following the appointment of a new property appraiser, Petitioner's employment was terminated. He then worked at a bank performing appraisals for approximately one year. Petitioner then became a partner in Real Estate Management, Inc., a company which represented taxpayers contesting their property assessments issued by the Palm Beach County Property Appraiser's Office. Petitioner did not have a real estate license during the seven months that he worked for that company. When questioned during the final hearing as to Petitioner's activities with that company during a time that he did not posses a real estate license, Petitioner admitted that his activities "technically" fell within the category of appraising. Petitioner next formed a real estate development company with three partners. Petitioner was with that company, Sundown Development, Inc., for approximately one year. He left that company " . . . to go into the hotel business for a more stable pay." Thus, in 1983, Petitioner began working as a night auditor in the hotel business. He continued to work as a night auditor at different hotels until approximately 1993, when he was laid off from his last night auditing job and collected unemployment benefits. Since then, he has "worked in banquets" at a restaurant. In September 1987, in Case No. 87-1896, Petitioner pled "no contest" to retail theft charges. Adjudication was withheld, restitution was ordered, and Petitioner was placed on ninety days probation and required to perform community service. This retail theft charge was for shoplifting. Although Petitioner testified that the merchandise he took had a value of only $20, he was unable to remember what the merchandise was. Petitioner was subsequently charged with violating probation and was arrested. Petitioner explains that the arrest for violation for probation resulted from a misunderstanding and that he had completed his community service by collecting political signs. Although the official records of the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit of Florida, in and for Palm Beach County, reflect another charge of retail theft a month later in October of 1987, Petitioner's explanation is that the records must be in error because he was only arrested once for shoplifting. That Case No. is 87-24669 and may represent the violation of probation charge. Case No. 86-6719 before the Circuit Court in Palm Beach County involved offenses committed from April 23 through April 26, 1986. Petitioner was charged in one information, consisting of one count of grand theft and eight counts of worthless checks. The charges were filed in June, and Petitioner was arrested in July, 1986. In November of 1987 he pled nolo contendere to one worthless check count, and the other counts were nolle prossed. He was adjudicated guilty and placed on probation for eighteen months. Petitioner's explanation is that although he did not have the money to cover the checks when he wrote them, he had the means to get money to cover the checks but was arrested and put in jail on arson charges preventing him from doing so. There was a fire at a beauty salon in Palm Beach County in May of 1984, in which a person died. Petitioner was first arrested on a charge of second degree arson in June 1985. In September of 1985, Petitioner was arrested again for his failure to appear in court on that charge. On February 18, 1986, Petitioner's $3,000 bond was forfeited and an arrest warrant was issued due to Petitioner again failing to appear in court. In April, Petitioner was again arrested and was jailed without bond. On May 11, 1986, Petitioner entered a plea of guilty, and the Court's commitment order on that date specifically includes after the notation of Petitioner's guilty plea the words "as charged straight up to the [Court]." On September 24, 1986, Petitioner was adjudicated guilty "as charged" and was sentenced to imprisonment for one year and one day with credit for time served. Petitioner's explanation is that he was not involved in the arson but was arrested and held in jail as a political prisoner, that is, governmental officials knew that he was innocent but wanted to convict him in retaliation for his political activities. Petitioner further explains that he pled guilty at the suggestion of his attorney as a plea of convenience in order to not have to spend additional time in jail awaiting trial. It was also Petitioner's belief that if he had prevailed at trial, he would have been indicted for felony-murder related to that arson and would have spent another year in jail awaiting trial. Petitioner admitted that in entering his plea of guilty, he was placed under oath and was questioned by the judge as to whether Petitioner was entering a guilty plea because he was guilty or because someone had promised him something. Petitioner explained that in any plea bargain situation, the judge questions the defendant concerning whether the defendant has been promised anything in exchange for his plea, that the answer is always that the defendant has been promised something, but the defendant is always instructed to tell the judge that he has not. Petitioner's testimony at the final hearing in this cause as to the mechanics of plea bargains, while interesting, is not supported by the documents admitted in evidence in this cause. The certified copies of the court documents do not indicate that there was a plea bargain; rather, those documents indicate that Petitioner pled guilty to the crime with which he was charged, not some other crime, and a pre-sentence investigation was then ordered by the court. Four months later, Petitioner was adjudicated guilty as charged by the court, and he was sentenced. Although Petitioner testified that his civil rights were automatically restored to him very shortly after he was released from incarceration following his conviction for second degree arson, Petitioner did not offer any documentary evidence to support such testimony. Petitioner's driver's license has been suspended five times since his release from jail following his conviction for second degree arson. The last suspension was for failure to comply with financial responsibility requirements; the others were for failure to pay his traffic fines. In January 1993, Petitioner pled guilty to driving while his license was suspended. On May 10, 1993, Petitioner filed an application for licensure as a real estate salesperson. Question numbered 9 of that application reads, in part, 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? This question applies to any violation 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 withheld, paroled, or pardoned... 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. Petitioner answered question numbered 9 in the affirmative and attached to his application as his entire explanation the following: QUESTION #9 4/74 INSUFFICIENT FUND/CHECK MADE RESTITUTION I THINK CHARGES WERE DROPPED 5/86 ARSON 2ND DEGREE PLED NOLO CONTENDERE IN MY OWN BEST INTEREST 7/86 INSUFFICIENT FUND/CHECK PLED NOLO CONTENDERE TO THE BEST OF MY KNOWLEDGE THIS IS THE EXTENT OF MY CRIMINAL RECORD INVOLVING ANY SORT OF PLEA OR CONVICTION The April 1974 offense referred to by Petitioner is a fair summary of Petitioner's March 1974 restitution in the amount of $52 for issuing a check on a closed bank account. However, Petitioner's explanation in his answer to question numbered 9 regarding the second degree arson conviction is not accurate since Petitioner pled guilty to that charge and did not plead nolo contendere. Petitioner's last disclosure regarding the insufficient funds check in July of 1986 minimizes his acts of writing nine worthless checks over a period of four days by only disclosing his plea to one count of the nine count information filed in Case No. 86-6719.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 27th day of May, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 27th day of May, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6937 Petitioner's proposed findings of fact numbered 1-3 and 5 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed finding of fact numbered 4 has been rejected as being irrelevant to the issues under consideration herein. Respondent's proposed findings of fact numbered 1-8 and 10-19 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 9 has been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Mr. Herbert Pontz, pro se 8927 Sunset Drive Lake Park, Florida 33410 Steven D. Fieldman, Esquire Assistant Attorney General Suite 107 South 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The evidence adduced at the hearing revealed that the issue of whether or not a member of the IBPO could receive quality legal representation was in fact a key issue in the organizational campaign. The legal issue is reflected in a "Mayday" flyer which is attached as Exhibit A to the Petitioner's objections. Based on the testimony adduced at the hearing, it suffices to say that the "Mayday" flyer was not authorized by the IBPO. Additionally it was noted that there are significant changes in the wording contained in Exhibit A as opposed to another "Mayday" flyer (Exhibit C, which is attached to Petitioner's objection) with significant portions of the changes in Exhibit A being as follows: (a) The date on the face of the Jacksonville publication was changed from 1971 to 1975. (b) The fourth paragraph of the original flyer (Exhibit C) was changed from his policy is "NO LEGAL ASSISTANCE WILL BE GIVEN IN CRIMINAL MATTERS THAT OCCURRED PRIOR TO THE IBPO TAKING CONTROL IN MAY, 1974" to quote his policy is "no legal assistance will be given in legal matters occurring prior to the contract in May, 1974." The "Mayday" flyer was posted and distributed in at least two of the employer's facilities between the hours of 5:00 P.M. and 10:00 P.M., one day prior to the election. There was evidence introduced at the hearing indicating that a significant number of employees viewed the "Mayday" flyer, however, the exact number is unknown. It is significant to note that the flyer was posted in a facility in which a significant number of employees frequent and the posting occurred at a time when two thirds of the employee complement entered the facility in which the flyer was posted in preparation for a shift change. Documentary evidence indicated that the original "Mayday" flyer i.e., Exhibit C, of Petitioner's objections, was prepared by John J. O'Conner for distribution in Petitioner's Washington, D.C., Local, in connection with that local's monthly scheduled meeting. There was no evidence indicating that the flyer was authorized by the IBPO to be posted in the Jacksonville, Florida, area for its organizational campaign. Evidence revealed that the reason the original "Mayday" flyer was drafted was to force criticism about the IBPO's legal representation in Washington, D.C. While the purposes for which the article was drafted and posted in the Washington, D.C. local, may have been as stated, such is not critical for resolution of the issues posed in this case. The fact is that the flyer was posted at the main precinct and was observable by numerous persons eligible to vote in the election. As stated, evidence reveals that approximately two-thirds of the eligible voters passed through the main precinct during the hours in which the "Mayday" flyer was posted. In weighing the impact of the objection, consideration must be had to the fact that there were at least approximately ten civil suits pending against eligible voters. When consideration is given to the fact that several employees were concerned about the quality and/or caliber of legal representation afforded by the IBPO and couple that fact with the notation that there were suits filed against eligible voters in addition to the "eleventh hour" posting of the "Mayday" flyer, no effective reply could be had. It is thus logical to conclude that the nature of the misrepresentation and the flyer may have had some bearing on the election results. While this conclusion rests on the aforementioned factors, the undersigned also noted that the FOP prevailed in the election by a margin of approximately 19 out of the approximately 599 valid votes cast. Various agencies, including the National Labor Relations Board have given consideration to the closeness of the vote in assessing the impact of a misrepresentation upon the results of an election. See for example, NLRB v. Southern Home Health Corporation, 514 F.2d 1121 at 1125 (7th Circuit, 1975). Turning to the facts in this case, it is foreseeable that had the, for example, approximately ten employees who cast ballots in favor of the FOP rather than the IBPO as a result of the information contained in the flyer, it is realistic to conclude that the election results may have been significantly altered had the facts been accurately represented in the flyer. Based thereon I conclude that the representations contained in the "Mayday" flyer involved a material misrepresentation that constitute grounds for setting aside this election. I shall so recommend. The second alleged objectionable conduct raised is whether or not a speech by detective C. L. Porter made on or about November 5, 1975, at approximately 8:15 A.M. which is within the 24 hour period before the election is violative of Section 447.509(1)(a), F.S., and whether such speech was violative of the rule enunciated by the National Labor Relations Board in Peerless Plywood Co., 33 LRRM 1151, 1152 (1953). The evidence on this objection is that detective Porter, a unit member, spoke at a regularly scheduled required meeting of all detectives in a working area on working time within 24 hours preceding the election date. Detective Porter was present at the meeting in his capacity as a burglary detective. The meeting is a regularly scheduled one which is held on a daily basis to advise all detective unit employees of the status of burglary investigations and claims. During the course of these meetings, all detectives read their daily assignments which serve as a sounding board to advise all employees in that unit of the status of investigations and claims. After reading his update sheet, detective Porter made a statement that he had made a decision to vote for the Intervenor due to "certain things" he had learned about the Petitioner, which things he did not elaborate on. While it is clear that several management officials were present at the time and heard detective Porter's speech, no effort was made to interrupt his remarks. On the other hand, it is also clear, as evidenced by the testimony, that all employees felt free to voice their opinions and many of the employees who testified indicated that they paid little if any credence to detective Porter's remarks as they related to the alleged pro-FOP speech. Further, evidence reveals that they did not feel that they were intimidated or coerced into casting a free and untrammeled ballot in the election the following day. It is also clear that others, as evidenced by their testimony, felt free to reply to Porter's speech as they desired. Giving consideration to the nature of detective Porter's speech, and in view of the fact that other employees felt free to openly reply or give a speech supportive of the Petitioner, the undersigned is of the opinion that this speech did not interfere with the conduct of the election. Accordingly I shall recommend that it be overruled. The third alleged objectionable conduct centered around a reference in articles appearing in the Jacksonville Journal and the Jacksonville Times Union on November 5 and 6, respectively, to the effect that the IBPO was a national union which has been organizing police officers as well as fire departments for the past several years and whether this was a material misrepresentation of a major campaign issue which precluded an opportunity for reply and was therefore sufficient to dissipate voting employees' free choice to such an extent that it materially affected the election results. The evidence on this objection is that police information officer, Mike Gould, was the source of the two news paper articles alleged to be objectionable. News Reporters had approached Gould on the morning of November 5, 1975, seeking a story. Gould related that since there was nothing of consequence regarding the regular police beat, he spoke to reporters concerning the forthcoming election. Gould denied stating that the IBPO represented fire and police units. Gould testified that he gave reporters some background on the changing state legislative law which allowed collective bargaining for police and fire units and since that time, there has been some aggressive recruiting by various labor and fraternal organizations, to act as bargaining agents for police and fire units around the state. Gould did not supply any additional information. He was not solicited by any member of the FOP to give out the above information. After having been shown the article and as his best recollection reflects, he read the article the following day that it appeared in the Jacksonville news papers. Gould related that the author of the article apparently became confused or took his statements out of context as far as showing the IBPO to be a bargaining agent for both police and fire units. He went further to indicate that the name of the IBPO speaks for itself in that it states for police operations so apparently, according to Gould, it was a mistake on the reporter's part. Based on the name of the organization, Gould related his opinion that he did not feel that a police officer could be misled by the news paper articles in question. He spoke of the various experience that police officers have in talking to reporters and knowing that there is many a slip between the "cup and the lip" and that they themselves have been frequently misquoted. Therefore, in his opinion, he felt that police officers really did not place much credence on news paper stories. After the story appeared in the Jacksonville Journal and later that day in the Jacksonville Times Union, Gould recalled having received a telephone call from a gentleman who identified himself as an IBPO vice president, Harry Breen. Breen, according to Gould, related his displeasure about the story and upon learning of this, Gould indicated that the reporter misquoted him as to efforts by the IBPO to recruit both police and fire personnel. In concluding, Gould related to Breen that the story as it appeared, was not one drawn from information that he had given as police information officer. Later in his testimony, Gould testified that he related to the reporter that IBPO and the PBA were organizing police units statewide and that he confined his remarks to police and fire units inasmuch as they generally group together and the interest by tide reporters was relative to police and fire units. Gould, as evidenced by his testimony, performs basically public relations type duties and plays no part in management or other policy decisions or discussions. Mr. Pace, the reporter who authored the report in the Jacksonville Journal, indicates that he had been a reporter for approximately 30 days at the time the article appeared in the newspaper. His testimony is substantially in agreement with that of officer Gould. Based on the tenor of the remarks and the fact that no employee who testified within the unit indicated that they were swayed or otherwise intimidated or coerced into feeling that the IBPO recruited fire unit personnel for collective bargaining purposes, the undersigned is of the opinion that the articles which appeared in the two daily newspapers did not have any affect on employees' freedom of choice which precluded an opportunity for reply. Nor was there sufficient gravity by such articles to dissipate employees' freedom of choice to such an extent that they, in any manner, materially affected the election results. I shall therefore recommend that this objection be overruled.
Recommendation Based on my conclusions that objections numbered two and three of this report are lacking in merit, I recommend that they be overruled. I further find that the misconduct alleged in objection numbered one is violative of employees' freedom of choice and was a material misrepresentation of a hotly contested issue and was made at such a time that employees could not reasonably be expected to themselves evaluate the truth or falsity of the statements and was such a material misrepresentation that the election should be set aside. Based on my conclusions that objection one has merit, on this basis I recommend that the election be set aside and a new election scheduled as soon as practical. DONE and ENTERED this 17th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact The Marion County Board of County Commissioners ("Respondent" hereinafter) is a public employer within the meaning of Florida Statutes Section 447.203(2). Joseph Fortier was formerly an employee of the Respondent and a public employee within the meaning of Florida Statutes Section 447.203(3). Robert W. Merklein was formerly an employee of the Respondent, and a public employee within the meaning of Florida Statutes Section 447.203(3). The Charging Party is an employee organization within the meaning of Florida Statutes Section 447.203(10). Joseph Fortier was hired by the Respondent on January 27, 1975, to work as a truck driver in the Respondent's road department. Fortier's supervisors were Harmon Hall, the Respondent's Road and Bridge Supervisor; and Charles M. Brakefield, the Respondent's Director of Public Works. During the time that he was employed by the Respondent Fortier demonstrated that he was a capable truck driver; however, several incidents came to his supervisors' attention which reflected upon Fortier's judgment. During the Spring of 1975, another truck driver, Roy Bennett, reported to Hall that he was driving his truck ahead of Fortier who was also driving a truck. Fortier was following so close behind Bennett that Bennett feared an accident and pulled off the road in order to allow Fortier to pass. In July, 1975, the Department's receptionist, Betty Townsend, received a phone call from a woman who reported that two of the Respondent's trucks had been observed racing on a busy street. From the description of the trucks Hall determined that Fortier had been driving one of them. Hall himself had observed Fortier tailgating other trucks, and had received other reports which indicated that Fortier may have been driving his vehicle recklessly. On September 9, 1975, Fortier was involved in an accident. The truck he was driving collided into the rear of a car at an intersection in Ocala. The police charged Fortier with following too closely, and after pleading not guilty he was adjudicated guilty of that charge. Harmon Hall conducted an investigation of the accident on behalf of the Respondent. Fortier had contended that the brakes on his truck failed and that the truck was overloaded. These contentions were not born out by the investigation. A similar load to that which Fortier was carrying on the date of the accident was placed on the truck, and it was found to be within the vehicle's weight limitations. Furthermore, the vehicle's brakes performed properly while it was fully loaded. It is possible that the tests conducted by the Respondent were inaccurate. The load on Fortier's truck could have been heavier than the test load. Efforts were made to duplicate the load, however, and Hall and Brakefield were justified in believing that Fortier may have been operating the vehicle in a careless manner when the accident occurred. Late in the afternoon on Friday, September 19, Brakefield instructed Hall to summon Fortier to Brakefield's office. It was Brakefield's intention to discuss the unfavorable reports that he had received respecting Fortier's accident, and the various other reported incidents of reckless driving that he had received respecting Fortier. There was considerable conflict in the testimony respecting when Hall confronted Fortier. Quitting time was 4:30 p.m. At the latest Hall approached Fortier at 4:28 p.m. and told him that Brakefield wanted to see him. Fortier adamantly refused to go to Brakefield's office, saying that it was quitting time, and that his time was his own. Fortier told Hall to go to hell. Hall asked Fortier if that meant he was resigning and Fortier told him that it did not. Hall told Fortier that he was no longer employed with the Respondent. On Monday, September 22, the next working day following this confrontation, Fortier reported to work. Hall approached Fortier and told him that he was no longer employed. Fortier asked him why, and Hall reminded him of the confrontation of the previous Friday. Joseph Fortier was discharged from his employment with the Respondent as a result of his refusal to meet with Brakefield on September 19, 1975. Both Brakefield and Hall were aware that Fortier was active in a union organizing campaign. There was no evidence offered at the hearing from which it could be concluded that Fortier's union activities motivated Hall and Brakefield in discharging him. The Respondent has had other truck drivers who have had accidents that were their faults, and who were not discharged; however, neither Brakefield nor Hall had even, prior to September 19, been confronted with a refusal to obey an order. It was this refusal that motivated them to discharge Fortier. Robert Merklein was hired by the Respondent during September, 1974, to work as a truck driver in the Respondent's Road Department. Merklein was initially assigned to drive a large dump truck, but he was not able to operate that vehicle, and he was assigned to a smaller dump truck. In May, 1975, Merklein was assigned to haul lime rock. His truck got stuck in loose sand. He tried to get the truck out of the sand by applying power, which resulted in the drive shaft breaking. In October, 1975, Merklein was assigned to dump a load of lime rock into an area where there was soft sand. He got stuck in the sand. He tried to get the truck out of the sand by shifting into the lower gears and spinning the wheels. This made the truck rock back and forth; however, the axle snapped. Subsequent to this accident Harmon Hall reprimanded Merklein. Hall told Merklein "this one is on me, but the next one is on you." Hall instructed Merklein that if he got stuck in soft sand again he should wait for assistance and not apply power to the truck. Approximately one month later Merklein again got stuck in the sand. Again he tried to extricate Merklein again got stuck in the sand. Again he tried to extricate his truck by applying power in the lower gears and rocking the truck back and forth. The truck was stuck up to the axles, and the drive shaft broke. Shortly after this incident Merklein told Hall that he had made a mistake in trying to get the truck out of the sand rather than just leaving it. Investigation of the damaged truck, and the drive shaft confirmed that too much power had been applied to the vehicle while it was struck in the sand. On November 19, 1975, Merklein was called into Brakefiled's office and informed that he was discharged. Other drivers had broken drive shafts, and had been at fault, but were not terminated. Only two other drivers had had as much difficulty with drive shafts as Merklein had, and each of these drivers resigned in anticipation of being terminated. Robert Merklein was discharged from his employment with the Respondent because of driving errors that he had made which resulted in expensive damage to the Respondent's vehicles. Merklein's supervisors were aware that he was engaged in a union organizing campaign. Merklein's union activities formed no part in the decision to discharge him.
Findings Of Fact By declining to adopt the hearing officer's Recommended Order as the Commission's final order, the Commission has chosen to make its own findings based on review of all evidence and testimony that comprises the record in this proceeding and based on argument of counsel for the parties. Applicant, at the time of his retirement, had completed approximately 16 years of creditable service for retirement purposes with the Metro Dade County Fire Department. His position when re retired was that of Captain and his duties were primarily supervisory and administrative with regard to logistical and maintenance support of heavy-duty firefighting equipment. On November 24, 1972, Mr. Cundy suffered a heart attack while watching television in the late evening at his home in Miami. As of December 1973, the applicant was approved by the Division of Retirement for disability retirements benefits on the basis that his arteriosclerotic heart disease, as diagnosed by the reporting physicians, rendered him totally and permanently disabled. Applicant contends that by virtue of the presumption in Section 112.18, F.S. and the stress of his work, his heart disease "arose out of an in the actual performance of duty," as provided in Section 121.021(13), F.S. As discussed in its conclusion of law, below, the Commission rejects the application of the presumption. With regard to the contention of stress, the record shows that the 1972 heart attack occurred in the applicant's home, during the thanksgiving holidays and immediately following a week during which he had worked a total of only sixteen hours. While the applicant testified that his supervisor and his own assistant had been on leave for a time just prior to the heart attack, he was unable to specify how their absences contributed to any overload of duties. In fact, the assistant's leave was approved by the applicant. As primarily an administrative and supervisory officer, actual on-scene participation in firefighting was not regularly required of this employee. He could not recall attending a fire within several months prior to his heart attack. Any stressful conditions associated with Mr. Cundy's duties as a Fire Captain were not objectively present in the hours and days immediately proceeding his heart attack.
Recommendation Based on the foregoing findings of fact and conclusions of law the Hearing Officer recommends that Petitioner's application for disability in line of duty benefits be denied. DONE AND ORDERED this 22nd day of January, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE RETIREMENT COMMISSION OF THE STATE OF FLORIDA IN THE MATTER OF: DISABILITY RETIREMENT OF JEROME G. CUNDY, DOAH CASE NO. 75-1645 APPLICANT. /
The Issue The issue in this case is whether Respondent wrongly presumed that Petitioner's father had been "killed in the line of duty," which presumption entitled the surviving spouse of Petitioner's father to receive "in line of duty" death benefits during her lifetime, to the exclusion of the rights of her late husband's children, whom he had named as his primary beneficiaries.
Findings Of Fact On December 14, 2005, Douglas Ulmer, Sr. ("Mr. Ulmer"), died as a result of complications from coronary artery disease and hypertension. At the time of his death, Mr. Ulmer was married to Cynthia Andrews-Ulmer ("Mrs. Ulmer"). His other survivors included two children: a son named Douglas Ulmer, Jr. ("Douglas"), who had been born on July 13, 1991; and a daughter named Kayla Ulmer ("Kayla"), who had been born on October 3, 1983. Mrs. Ulmer was not the mother of either Douglas or Kayla. From February 1993 until his death, Mr. Ulmer had been employed as a fireman in Palm Beach County, Florida. Through that employment, be had become a member of the Florida Retirement System ("FRS"), which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). After having been offered the job as a fireman, Mr. Ulmer had undergone a "post-offer physical" examination. This examination, which had taken place on January 15, 1993, had revealed no evidence of any medical abnormalities; specifically, the physician had found Mr. Ulmer's "heart and vascular system" to be "normal." In October 2004, Mr. Ulmer had experienced chest pain while lifting equipment at work and been taken to the hospital. Thereafter, diagnosed as having heart disease, Mr. Ulmer had gone on disability and never returned to work full time. About one month before his death, Mr. Ulmer had completed a Pension Plan Beneficiary Designation Form in which he had named Douglas and Kayla as his primary beneficiaries for retirement benefits payable under the FRS. After Mr. Ulmer passed away, Mrs. Ulmer submitted an application to the Division for "in line of duty" death benefits, which are available under the FRS to the surviving spouse of a member "killed in the line of duty." In July 2006, the Division gave notice that it intended to approve Mrs. Ulmer's application. For reasons that will soon be made clear, the Division's intended decision deprived Kayla of any benefits under the FRS, and it threatened to deny benefits to Douglas, even though the children's father had named them as his primary beneficiaries. Consequently, Douglas timely requested a hearing to contest the payment of "in line of duty" benefits to his father's widow. (Kayla would later intervene in this proceeding, on the eve of the final hearing.) Sadly, Mrs. Ulmer died suddenly on September 24, 2006, before the dispute over Mr. Ulmer's retirement benefits could be resolved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order: (a) finding that Mr. Ulmer died in the line of duty; (b) awarding Mrs. Ulmer's estate the benefits to which Mrs. Ulmer, as the surviving spouse of a member killed in the line of duty, was entitled under Section 121.091(7)(d)1., Florida Statutes; and (c) providing for the payment of benefits to Douglas Ulmer, Jr., in accordance with Section 121.091(7)(d)2. DONE AND ENTERED this 29th day of January, 2007 in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2007.
The Issue Whether or not Hewey Clemmons, the spouse of Petitioner, Anne Clemmons, died "in-line-of-duty" as defined in Section 121.021(14), F.S., so as to qualify Petitioner for the death benefits provided in Section 121.091(7), F.S.
Findings Of Fact At all times material, Hewey Clemmons and Petitioner Anne Clemmons were man and wife. At all times material, Hewey Clemmons was employed as a correctional officer at Calhoun Correctional Institution on a regular duty shift. September 30, 1990 was a very hot day, with the personnel in the yard perspiring. That day, immediately preceding lunch, Inmate Warren Miller ran down the sidewalk toward the chow hall. Running is a violation of behavior for inmates at Calhoun Correctional Institution. Officer Clemmons stopped Inmate Miller. At that time, Inmate Miller raised his hands up and down, arguing with Officer Clemmons. This incident was passed over for resolution until after the meal and subsequent head count. Inmate Miller was a renowned and repetitive discipline problem, had a long disciplinary record, and was known as a "bad inmate." Although his usual behavior was more in the nature of disrespect and sarcasm rather than verbal threats, other correctional officers had had to use force on Miller several times prior to September 30, 1990. He was viewed by some of them as perennially hostile, argumentative, and possessed of an "attitude." At least one correctional officer at Calhoun Correctional Institution had felt compelled to administer mace to Miller on a prior occasion due to his behavior. After lunch and head count on September 30, 1990, at approximately 11:55 a.m. CST, Officer Clemmons proceeded to the dormitory to retrieve Miller in connection with the morning's running incident. He guided Miller into the laundry room and instructed him to turn around so that Clemmons could handcuff him. All correctional officers deposed that handcuffing under the foregoing circumstances was prudent and standard operating procedure and that Officer Clemmons was a "by the book" officer. Inmate Miller began arguing with Officer Clemmons and pushed, slapped, or otherwise struck Officer Clemmons' hand so as to break Clemmons' grip on Miller while Clemmons was attempting to handcuff him. Miller continued to refuse to be handcuffed by Clemmons, and an oral argument ensued in which Clemmons and Miller were loud and angry. Officer Lockett observed the foregoing altercation and intervened to settle things down. He talked Miller into allowing Clemmons to handcuff him and lead him away. He observed that Clemmons was angry and upset by the incident. Later, Miller was presented by Clemmons at the Lieutenant's office and officers there observed Clemmons to be angry and upset. Officer Branaman testified that in the entire time he had worked with Clemmons, he had never witnessed Clemmons as upset as he was at the time he observed him that day. Miller was escorted to the infirmary for pre-confinement medical screening. Sometime thereafter Officer Branaman observed Clemmons walking moodily outside in the yard near the internal gate. After a brief radio conversation with a superior officer, Adams, Officer Clemmons entered the internal gate in the yard and, after only a few steps, collapsed on the sidewalk. Correctional facility personnel responded with due haste, and despite valiant efforts by internal health care professionals and the Liberty County EMT team that eventually responded, Clemmons never revived. He was pronounced dead at the Calhoun County Hospital. Neither party's proposals has alluded to the fact that the materials submitted include two death certificates with different times of death and that the times related in many reports vary considerably, but having eliminated uncorroborated hearsay, having accounted for the Liberty County ambulance service personnel operating on eastern time and the correctional facility and hospital operating on central time, and having reconciled all the deposition testimony as much as possible without imputing falsehood to any witness, it is found that Officer Clemmons died at the scene at approximately 12:35 p.m. CST. Officer Clemmons' widow was denied death in-line-of-duty benefits on the basis of Officer Clemmons' pre-employment physical and the death certificate to the exclusion of all other matters, including a letter of voluntary acceptance of responsibility for the payment of death benefits sent by the state's workers' compensation administrator, the Florida Department of Insurance, Division of Risk Management (P-1 to Stanley Colvin's deposition). Officer Clemmons' pre-employment physical, performed on November 13, 1989, included an electrocardiogram which showed "sinus rhythm, premature systoles, ventricular borderline low qrs voltage, report must be correlated with clinical data by a physician, borderline for age 51." The examining physician noted in his records that Officer Clemmons had "premature ventricular contractions, borderline ekg, 1+ albumin in urine; advised to see cardiologist about pvc's." Nonetheless, the agency, knowing the results of Clemmons' pre- employment physical and that he would be called upon to deal regularly with violent and abusive inmates still chose to employ Clemmons beginning in December, 1989. Prior to his death, Clemmons' fellow correctional officers and superior viewed him as healthy and in "tip-top shape." He had served as a correctional officer at the Calhoun Correctional Institution without any health problems from December 1989 until his death, a total of ten months. The instructions on Clemmons' death certificate required the physician pronouncing death to state "IMMEDIATE CAUSE (final disease or condition resulting in death)" on the first line, and thereafter to "sequentially list conditions, if any, leading to immediate cause. Enter UNDERLYING CAUSE (Disease or injury that initiated events resulting in death) LAST." On the line of Clemmons' death certificate requiring the physician pronouncing death to list the "immediate cause of death," the pronouncing physician listed "cardiac arrest." On the first line of Clemmons' death certificate requiring the physician pronouncing death to fill in "due to or as a consequence of" the pronouncing physician listed "ASCAD" (a misnomer probably signifying "atherosclerotic heart disease"). Nothing more has been inserted on the remaining lines providing for sequentially listing conditions. However, the physician who pronounced death did not testify at formal hearing nor did the physician who performed the pre-employment physical. Dr. Lawrence J. Kanter, a board certified cardiologist and the only medical expert to testify in this cause, reviewed Officer Clemmons' pre- employment physical with EKG, the depositions of the witnesses present on September 30, 1990, the death certificate, and all relevant medical reports. With regard to the death certificate, Dr. Kanter testified that without the benefit of previous examination or an autopsy, neither he nor the physician pronouncing death could properly make any diagnosis of preexisting atherosclerotic disease. With regard to the pre-employment physical and EKG printout, he opined that all that was clear therefrom was that on the day of the pre-employment physical, Officer Clemmons had had slightly elevated blood pressure and an EKG which was not abnormal for a person his age. Dr. Kanter also noted that one may have some mild problem or may even have atherosclerosis and still may not have any significant clinical heart disease. He stated that while atherosclerosis can result in a plaque rupture from changes in blood pressure brought about by emotional stress followed by the blood vessels occluding and thus a sudden heart attack or stroke, the ventricular fibrillation (chaotic beating of the heart so that it is unable to support life) which Officer Clemmons suffered also could result from other stress-induced factors. Dr. Kanter rendered his opinion within a reasonable degree of medical probability that the cause of Officer Clemmons' death was sudden cardiac death because Officer Clemmons never had ventricular fibrillation or a blackout or syncopal episode before, was evaluated by physicians and no heart disease was documented to any certainty, and he had severe emotional distress which was totally out of character to his normal way of functioning. Upon cross- examination, Dr. Kanter indicated that although "anything is possible, the temporal relationship within minutes of a severe emotional stress makes it inconceivable to consider anything else except something that's of the outer realm of possibility." Dr. Kanter considered it important in forming his opinion that Officer Clemmons had died as the result of a stress-induced cardiac death that Officer Clemmons had evidenced no marked symptomatology for at least ten months, suffered a significant emotional trauma, was extremely upset, and within moments of being upset had a cardiac arrest and was not resuscitated. Respondent attacked the weight and credibility of Dr. Kanter's opinion that the emotional trauma of the altercation with Inmate Miller triggered Officer Clemmons' sudden cardiac death because of the physician's expressed belief that Officer Clemmons' collapse came "within moments" of the traumatic confrontation and the record as a whole shows that the time lapse was 40 minutes, but there is absolutely nothing to show how few moments Dr. Kanter meant or that he did not mean 40 minutes. It is also noteworthy that Dr. Kanter also stated that his opinion was partly based on the fact that Clemmons' collapse occurred "within five minutes of the marked change in affect," referring to Clemmons' walking moodily in the outside yard, not in referring to the angry and upset condition Officer Clemmons evidenced immediately after the precipitating physical episode in the dormitory. Upon the only credible, competent medical evidence, it appears that whether Officer Clemmons died from atherosclerosis aggravated by emotional stress producing cardiac death or simply died an instantaneous cardiac death without pre-existing atherosclerosis and/or heart disease, the precipitating cause of death was his emotional reaction to acute stress following the altercation with Inmate Miller.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a Final Order finding that Correctional Officer Clemmons suffered death in-the-line-of-duty and awarding his survivors the appropriate benefits commensurate therewith. DONE and ENTERED this 25th day of August, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 25th day of August, 1992.
Findings Of Fact Since July 1, 1981, Respondent had been a certified correctional officer, holding certificate number C-3285. Currently, Respondent is no longer employed as a correctional officer. However, on January 10, 1987, Respondent was employed as the arsenal officer at the Union County Correctional Institution. Prior to and including January 10, 1987, Respondent had been experiencing a great deal of marital difficulty with his wife, Candy. Sometime around January 10, the Raulerson's decided to part company. On January 10 at about 5:15 p.m., Candy Raulerson asked Sheriff Deputy Joseph Guyott to accompany her to the marital residence in order to pick up some of her things. Upon arriving Deputy Guyott observed a sign on the door warning persons to enter at their own risk. No one appeared to be at home. He, also, observed a shotgun shell attached to the door and a fishing line attached to the door handle at one end and to a buried beer can at the other end. The shell could be clearly seen. Ms. Raulerson's things had been placed outside the home in the rain. Upon observing the shell arrangement at the front door, Deputy Guyott secured the area and called the Sheriff. Once the Sheriff arrived, he began to investigate the area around the residence. At the back door of the residence the Sheriff discovered a tear gas or smoke canister 1/ attached to a line at one end and tied to the back door at the other end. The line had so much slack in it that nothing would happen when the door was opened. More importantly, the canister had been rendered inoperable by bending over the firing pin and taping the spoon. The canister was neither explosive nor poisonous. Petitioner, therefore, failed to prove any violation of Section 790.161, Florida Statutes. Upon entering the residence through the back door the Sheriff walked to the front door. He observed that the shotgun shell had been attached to an electric cord. The cord was attached to the brass end of the shell. However, the Sheriff could not remember whether the cord was attached to the shell's primer. The cord was run behind the sofa, but was not plugged in. No evidence was presented by Petitioner as to the explosive potential, if any, of this arrangement. Petitioner, therefore, failed to prove that Respondent had violated Section 790.161, Florida Statutes. More importantly, however, is that the evidence is clear that Respondent had absolutely no intent to harm anyone, 2/ but only wished to scare off any person attempting entry. The Sheriff admitted that after seeing the front and back door arrangements that it was apparent that Respondent did not intend to hurt anyone and neither arrangement was rigged to do any damage. Petitioner's evidence only demonstrates that Respondent was defending his property from his wife's meddling during a time when they were experiencing a great deal of marital difficulty. Respondent utilized a scare tactic that was not dangerous and not intended to hurt anyone, but only to keep someone out during his absence. Respondent did not commit any crime by rigging the canister and the shell in the manner he did. Moreover, Respondent's actions do not demonstrate any lack of good moral character on his part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the administrative complaint against Respondent be DISMISSED. DONE and ENTERED this 2nd day of November, 1988, in Tallahassee, Florida. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1988.
The Issue The issue in this case is whether Petitioner, whose husband, a county police officer, died of heart failure at work, is entitled to receive “in line of duty” death benefits under the Florida Retirement System, which Respondent administers.
Findings Of Fact The Dispute, in a Nutshell On the morning of March 10, 2000, while on duty, Officer Randall Kugler (“Officer Kugler”) of the Miami-Dade Police Department suffered a fatal heart arrhythmia and died at the wheel of his police cruiser. He was 37 years old. Officer Kugler’s wife, Petitioner Marilyn Kugler (“Mrs. Kugler”), and their two minor children survive him. Officer Kugler was a member of the Florida Retirement System (“FRS”), which is administered by Respondent Department of Management Services, Division of Retirement (“Division”). Mrs. Kugler maintains that she is the surviving spouse of a member “killed in the line of duty” and thus is entitled to receive generous “in line of duty” death benefits under the FRS. The Division disagrees with her position and, thus, has denied Mrs. Kugler’s application for such benefits. Their dispute spawned the instant administrative litigation. The Events Preceding Officer Kugler’s Death Officer Kugler was an expert in inspecting heavy equipment (cranes, trucks, bulldozers, etc.) to determine if such property might have been stolen or otherwise involved in criminal activity. As a specialist in this area, Officer Kugler was assigned to an auto theft task force that conducted investigations in cooperation with other local law enforcement agencies as well as the FBI and the U.S. Customs Service. At about 9:00 a.m. on March 10, 2000, Officer Kugler arrived at the King Ocean Yard in Port Everglades, Florida, where he had been sent to assist U.S. Customs Service inspectors with the examination of two heavy machines destined for export. The pieces——a crane and a bulldozer——were very large; each weighed many tons. A crucial object of such inspections is to locate the public identification number, or PIN, of the subject piece of equipment. The PIN is a starting point in determining whether the machine is stolen. Finding the PIN on heavy equipment can be difficult because, among other reasons, the area to be searched is large; the numbers are frequently hidden in hard-to- access places (to thwart those who might want to remove them); and the numbers are often covered by paint, rust, dirt, and grease. As he went about his work that morning, Officer Kugler climbed aboard and poked around the equipment. His on-the-job activities——e.g. bending, crawling, climbing, walking——clearly involved some physical exertion. In addition, to expose concealed PINs, Officer Kugler was required to scrape or brush away paint and other obstructions, and this, too, entailed physical exertion. To facilitate the removal of layers of paint, rust, grease, and the like, Officer Kugler customarily used solvents marketed for cleaning carburetors and removing gaskets. These products contained a chemical known as Xylene. The Miami-Dade Police Department issued its officers, including Officer Kugler, two different brands of such cleaning agents, which were packaged in aerosol spray cans. Officer Kugler used one or both of these employer-issued sprays on March 10, 2000, and thus was exposed to Xylene.1 Officer Kugler’s inspection of the crane and bulldozer took about one hour. After finishing his work at King Ocean Yard, Officer Kugler left Port Everglades to return to Miami. Sadly, less than an hour later, he was found in Opa Locka, Florida, slumped over the steering wheel of his vehicle with the engine running and the doors locked, having died, still on duty, en route to his next assignment at Kauff’s Towing. Causes of Death The record contains the depositions of three physicians who opined as to the causes of Officer Kugler’s death. Two of these doctors are pathologists who were, at all times material to this case, medical examiners in the Miami-Dade Medical Examiner Department; as such, they participated in Officer Kugler’s autopsy. The third is a cardiologist named James Margolis. Mrs. Kugler retained Dr. Margolis as an expert witness for purposes of this litigation. The testimony of these experts is generally consistent——that is, their opinions do not conflict on any material matters. All are in agreement (and the undersigned finds) that the immediate cause of Officer Kugler’s death was a sudden and unexpected fatal heart rhythm disturbance (or arrhythmia). There is also no genuine dispute (and the undersigned finds) that Officer Kugler’s left descending coronary artery was partially blocked at the time of his death. (His other vessels, however, were normal.) This type of blockage (or occlusion) is associated with a common form of heart disease known as arteriosclerosis. Officer Kugler’s diseased artery was about 50 to 70 percent obstructed. Such blockage tends to become symptomatic at around 70 percent. As it happened, Officer Kugler had not experienced any symptoms, been diagnosed as having, or been treated for any heart disease. The pathologists were largely noncommittal when asked to identify the trigger(s) that precipitated Officer Kugler’s fatal heart rhythm disturbance. Dr. Margolis, on the other hand, who had reviewed the depositions of the two medical examiners as well as those of the several law enforcement personnel who were with Officer Kugler at the King Ocean Yard before he died, did form an opinion as to the substantial cause of the fatal arrhythmia, which he expressed as follows: It’s my opinion within a reasonable degree of medical probability that Mr. Kugler did, indeed, suffer a fatal arrhythmia and the fatal arrhythmia was caused either directly or indirectly by the heavy exertion in the presence of Xylene fumes, and that these in combination with what would have been otherwise a benign form of heart disease caused the fatal arrhythmia. The undersigned accepts the uncontroverted opinion of Dr. Margolis as to causation and determines, as a matter of fact, that Officer Kugler’s death resulted from a combination of work-related activities and exposures operating in conjunction with an undiagnosed and undetected preexisting condition (arteriosclerosis), which factors together precipitated the fatal heart arrhythmia. On the Credibility of Dr. Margolis The Division disputes the validity of Dr. Margolis’s opinion on causation, arguing that it is unfounded. Normally, the undersigned, as the trier of fact, does not explain why he has credited certain evidence. Dr. Margolis’s testimony, however, could be considered the linchpin of Petitioner’s case. Moreover, because Dr. Margolis did not testify in person at the final hearing, the undersigned was unable to witness his demeanor and other indicia of credibility that personal observation permits. Therefore, the undersigned will explicate several factors that he regarded as important in deciding to accept Dr. Margolis’s testimony. To begin, as mentioned, Dr. Margolis’s opinion on causation was not refuted. The pathologists’ opinions——which, to be sure, stopped short of linking Officer Kugler’s death to the performance of job-required duties——were outcome neutral (and consistent with Dr. Margolis’s testimony) because neither medical examiner excluded work-related factors from among the contributing causes of Officer Kugler’s death. And the Division, it should be stressed, presented no expert medical testimony to contravene Dr. Margolis on the subject of causation. While the undersigned, as the fact-finder, could reject unrebutted expert testimony, he would need to offer a reasonable explanation for doing so.2 He can think of none. Instead of offering evidence, the Division elected merely to contend that Dr. Margolis’s opinion is unsupported, urging that the depositions of the witnesses who saw Officer Kugler at work on March 10, 2000, do not support the factual assumptions which underlie the expert’s testimony, namely, that Officer Kugler engaged in “heavy exertion in the presence of Xylene fumes.” The Division’s arguments are not persuasive for several reasons. First, the Division failed to cross-examine Dr. Margolis on these points. If Dr. Margolis had been asked, for example, what he meant by “heavy exertion” or otherwise been challenged to defend that description, perhaps he would have offered a brilliant explanation——or perhaps he would have stumbled and undermined his opinion. Absent such inquiry, however, the undersigned considers it basically irrelevant whether Officer Kugler’s exertion is characterized as “heavy” or not. The bottom line is, the expert concluded that Officer Kugler’s exertion was sufficiently “heavy” to help trigger the fatal arrhythmia, and the Division has not shown, through proof, that Dr. Margolis was incorrect in this regard. Second, the record shows that Dr. Margolis reviewed all the pertinent evidence in rendering his opinion on causation.3 Indeed, Dr. Margolis examined the depositions that are in evidence in this case——the very depositions that the Division contends fail to support his opinion. The Division argues that the expert misinterpreted these data sources. The Division’s argument, however, is not evidence; Dr. Margolis’s opinion, in contrast, is. Without countervailing proof, the undersigned finds no reasonable grounds for second-guessing the cardiologist on medical matters within his area of expertise. Finally, to the extent the Division contends that Dr. Margolis is mistaken because Officer Kugler was not shown to have been exposed to Xylene, its position is untenable in light of the undersigned’s finding that Officer Kugler was, in fact, exposed to the chemical in the hours before his death.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order awarding Mrs. Kugler the “in line of duty” death benefits to which she is entitled under the Florida Retirement System. It is further ORDERED that Petitioner’s Request to Reserve Jurisdiction is denied because Mrs. Kugler has not articulated a statutory basis for awarding attorneys’ fees and costs in this case. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2003.
Findings Of Fact On April 26, 1978, Petitioner was charged with speeding at the rate of 44 miles per hour in a 30 mile per hour zone and with failure to have an operator's license in his possession. He pled guilty to the speeding charge on May 2, 1978, and paid a $28.50 fine on May 5, 1978. In November, 1978, Petitioner was charged with being drunk in a public place and subsequently pled guilty to that charge on December 5, 1978, and paid a fine. In January, 1979, Petitioner was charged with the offense of illegal sale of alcoholic beverage to a minor and pled guilty to this offense on February 6, 1976, being fined $50.00. In January, 1977, Petitioner was charged with the offense of harassing and also charged with being drunk in a public place and pled guilty to both these charges on February 6, 1979, being fined for each offense. In September, 1979, Petitioner was charged with driving under the influence with a blood alcohol level of .17 percent; and on September 27, 1979, pled guilty to the amended charge of reckless driving, being fined $100.00. On January 27, 1981, Petitioner was charged with being drunk in a public place and for criminal trespass; and on January 27, 1981, he pled guilty to the charge of being drunk in a public place and was sentenced to one day in jail, with credit for time already served. On April 1, 1982, Petitioner was charged with careless driving in West Palm Beach, Florida, and subsequently pled guilty to this offense, being fined $25.00.
Recommendation From the foregoing, it is RECOMMENDED: That Respondent enter a Final Order denying the application for licensure. DONE and ORDERED this 24th day of November, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 24th day of November, 1982. COPIES FURNISHED: Jimmie L. Newcomb 2910 Melaleuca Drive West Palm Beach, Florida 33406 Ralph Armstead, Esquire Assistant Attorney General Department of Legal Affairs Room 212, 400 West Robinson Orlando, Florida 32801 C. B. Stafford, Executive Director Florida Real Estate Commission P.O. Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street P.O. Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
