Findings Of Fact Bennie M. O'Kelley submitted an application to the Division of Licensing, Department of State, for licensure as a Class F, Unarmed Guard. O'Kelley indicated on his application that he had never been arrested, although he had been arrested some 15 times, the last time having been for assault and battery in 1969. In 1969, O'Kelley served 90 days in the Dade County Stockade for assault and battery. O'Kelley introduced evidence that he had been licensed by the Department of State earlier as an Unarmed Guard and stated that he had revealed his misdemeanor arrests on that application. O'Kelley stated that he knew that he could not be licensed if he had been arrested for a felony and assumed that misdemeanors were not disqualifying, and that therefore he did not have to report his misdemeanor conviction and arrests on his application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and considering the fact that O'Kelley has had a clean record for the past ten years, the Hearing Officer would recommend that his application for a Class F, Unarmed Guard, license be granted; however, because of O'Kelley's admitted history of being arrested for fighting, the Hearing Officer recommends that favorable consideration not be given to O'Kelley's application for a Class G, Armed Guard, license. DONE and ORDERED this 19th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Gerald Curington Division of Licensing The Capitol Tallahassee, Florida 32304 Bennie M. O'Kelley 4711 SW 38th Street Hollywood, Florida 33023
The Issue By a two-count Amended Administrative Complaint, the Department of Insurance has charged Respondent, a licensed Florida life and health insurance agent, pursuant to Count I with violations of Sections 626.611(7), 626.611(14) and 626.621(8), F.S. arising out of his plea of nolo contendere to a felony charge of grand theft, and pursuant to Count II with violating Section 626.611(7) F.S. arising out of adjudication of guilt to multiple misdemeanor charges of issuing worthless bank checks.
Findings Of Fact Respondent is currently eligible for licensure and licensed in Florida as a life insurance agent and as a health insurance agent. He has been so licensed since 1985, and except for the facts, as set out infra., no disciplinary charges have ever been filed against him. Count I of the Amended Administrative Complaint On December 6, 1989, Respondent was charged by Information in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida, in Case No. 89-4842-CF, with a felony, to wit: Grand Theft in the third degree, a violation of Section 812.014, F.S. Respondent admitted that Case No. 89-4842-CF arose out of his writing a check on First Union Bank to cover computers previously contracted for by Respondent for his insurance agency. When he wrote the check, Respondent knew that he was short of funds but expected to deposit sufficient funds to the appropriate account before his check was presented for payment. When this "kiting" episode occurred, Respondent was short of funds due to an illegal conversion of funds perpetrated by one of his employee agents. Respondent did not get the money into his account in a timely manner and did not later "make the check good" before prosecution began. In accord with the appropriate regulatory rules, Respondent reported the illegal conversion by his employee agent to the Petitioner Department of Insurance and cooperated with that agency. He also reported the offending employee agent's illegal conversion to the local State Attorney. He cooperated in a criminal prosecution and filed a civil action in his own right against the offending agent. These events further depleted his assets and in part accounted for his being unable to make his check good. On July 19, 1990, in response to the Information filed against him, Respondent entered a plea of nolo contendere to grand theft, a felony in the third degree, in Circuit Court Case No. 89-4842-CF. With adjudication of guilt withheld, Respondent was placed on probation for one year and ordered to pay restitution in the amount of $7,139.29 to First Union Bank. Pursuant to court papers and Respondent's testimony, it appears that he was first given until July 19, 1991 to complete restitution on this charge. Respondent testified without refutation that he had received an extension from the circuit court until July of 1993 in which to make this restitution. That date had not yet been reached as of the date of formal hearing. With regard to his nolo contendere plea to a third degree felony, adjudication withheld, Respondent's unrefuted testimony is that he was represented by an attorney, Johnny Smiley, until Mr. Smiley was suspended from practicing law by the Florida Bar and that Mr. Smiley failed several times to appear on his behalf in court, did not advise him of any alternative misdemeanor pleas, and never properly advised him of all the potential consequences of pleading nolo contedere to a felony charge of grand theft, including that if that offense is construed as an offense involving moral turpitude, then Section 626.611(14), F.S. may be read to mandate revocation or suspension of his professional insurance licenses. It may be inferred from Respondent's testimony that Respondent, the prosecutor, and the circuit court judge assumed that Respondent would be able to continue selling insurance and thereby would be able to meet the restitution requirements of his plea bargain and probation. At formal hearing on January 3, 1992, Respondent represented that he had made some restitution and hoped to complete restitution under the foregoing circuit court order by January 31, 1992. Respondent further represented that a circuit judge had indicated that once Respondent made restitution on all charges (including those misdemeanor adjudications that gave rise to Count II of the instant amended administrative complaint, see infra.), the court would entertain a motion to set aside his grand theft plea. What the circuit judge may or may not have indicated is not admissible for proof of the matters asserted, but it is admissible to show Respondent's reliance thereon and his motivation beyond the obvious motivations for making restitution as soon as possible. By stipulation of the parties, the record in this instant disciplinary cause was left open for 60 days after formal hearing so that Respondent could amplify on this testimony. Pursuant to Fla. Rule of Criminal Procedure 3.850, and Art. I Section 16 of the Florida Constitution, Respondent has filed a Motion for Post- Conviction Relief in Circuit Court Case No. 89-4842-CF. However, a copy of this motion was not filed as an exhibit with the Division of Administrative Hearings until the day before the record herein closed by Order of March 5, 1992. Because the record was closed, the outcome, if any, of that circuit court motion/exhibit is not before the undersigned. Also, Respondent's motion/exhibit alone is not sufficient evidence for the undersigned to infer that Respondent has paid all required restitution amounts as of the date of this recommended order. Count II of the Amended Administrative Complaint From September 7, 1990 through July 30, 1991, the Respondent was charged by several Informations in the Circuit Court of the Eighth Judicial Court, in and for Alachua County, Florida, in Case Nos. 90-3267-CF-A, 90-3310- CF-A, 90-3881-CF-A, 91-2236-CF-A, 91-2237-CF-A, 91-2238-CF-A, 91-2712-CF-A, and 91-2713-CF-A, with one count per case of a third degree felony, to wit: Issuing a Worthless Check, a violation of Section 832.05(4), F.S. According to Respondent's unrefuted testimony, the negative balance situation arising from his earlier felony plea bargain, the need to make restitution in that case, and his attorney fees and costs associated with suing the agent who had taken money from Respondent's agency and one of Respondent's insurance carriers had caused an additional shortage of personal funds at a time Respondent was desperately fighting to save his marriage and keep his family, consisting of a wife and two small daughters, together. He admitted that he had issued seventeen worthless bank checks during this stressful period for personal expenses, primarily for telephone charges, groceries, and furniture. Nonetheless, Respondent's marriage failed and the couple is now divorced. By a plea bargain executed July 30, 1991, Respondent agreed to enter a nolo contendere plea to four first degree misdemeanor charges of issuing worthless bank checks and agreed to make restitution totalling $6,492.88 on thirteen others. The restitution agreement covering 17 checks included restitution for nine worthless checks for which the State had agreed to allow deferred prosecution. Five check charges were to be dismissed. What happened next is not entirely clear because, despite an order of the circuit court accepting the plea bargain, the case numbers in the plea bargain and on the subsequent judgments do not match, and it appears that on July 30, 1991, Respondent plead nolo contendere and was adjudicated guilty of eight first degree misdemeanor charges, ordered to serve six months probation on each, the probations to run concurrently, and was further ordered to make restitution pursuant to the plea/restitution agreement. Pursuant to court papers and Respondent's testimony, it appears that he was also given six months, or until approximately January 31, 1992, to make restitution on these cases. That date had not yet been reached as of the date of formal hearing. Respondent remained on probation as of the date of formal hearing. Respondent testified at formal hearing that he hoped to make full restitution on these cases by January 31, 1992, and that unless he also made full restitution on the grand theft case, he could not file a motion to vacate his plea therein. (See, Finding of Fact 7, supra.) Respondent did not file any evidence of restitution in these misdemeanor cases, although he was given until March 5, 1992 to do so. The filing as an exhibit herein of his Motion for Post- Conviction Relief in the circuit court felony case covered in Count I of the instant amended administrative complaint is not sufficient for the undersigned to infer that Respondent has made full restitution on these misdemeanor charges covered in Count II of the instant amended administrative complaint. (See, Finding of Fact 8, supra.) Respondent presented the testimony of Reverend L.D.J. Berry, pastor of a Baptist Church in St. Thomas, Florida, to the effect that the minister has bought insurance from Respondent and has always found him to be helpful and honest in insurance matters. Although Reverend Berry has counselled with Respondent, Respondent is not a member of Reverend Berry's parish. Reverend Berry has never been a recipient of one of Respondent's bad checks. Reverend Berry considered the Respondent to be of good character, even knowing of his bad check history.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order that: Finds Respondent guilty of violating Sections 626.611(14) F.S. and 626.621(8) F.S. and not guilty of violating Section 626.611(7), F.S. as alleged in Count I of the Amended Administrative Complaint; Finds Respondent not guilty of violating Section 626.611(7) F.S. as alleged in Count II of the Amended Administrative Complaint; and Suspends Respondent's licensure and eligibility for licensure as a life and health insurance agent for six months and provides for a probationary period subsequent to reinstatement of his licenses to run concurrently with any criminal probations left for him to serve, up to the maximum of two years provided by Section 626.691 F.S., during which period of license probation, Respondent's insurance business shall be monitored by the Department of Insurance upon such terms as the Department shall determine to be appropriate. RECOMMENDED this 29th day of April, 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 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3109 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted substantially; modified to eliminate subordinate, unnecessary, and cumulative findings: 1, 2, 3, 4, 5, 7, 13, and 15. Rejected because as stated, it is a mischracterization of the weight of the evidence, but sunstantially covered within the recommended order: 6, 8, 14, 16. Accepted as modified. What has been rejected has been rejected so that the recommended order conforms the greater weight of the credible record evidence as a whole: 9, 10, 11, 12, 17. Respondent's PFOF: Accepted substantially, but modified to eliminate subordinate unnecessary, and cumulative findings or otherwise C, D, E, F. Accepted as modified. What has been rejected was rejected to conform the recommended order to the greater weight of the credible record as a whole: A, B. COPIES FURNISHED: Michele Guy, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 S. Scott Walker, Esquire Watson, Folds, Steadham, et al. P. O. Box 1070 Gainesville, Florida 32602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 200 E. Gaines Street 412 Larson Building Tallahassee, Florida 32399-0300
Findings Of Fact At all times relevant hereto Respondent was certified by Petitioner as a law enforcement officer and he was employed by the City of Tampa Police Department. Respondent was married to Stephanie Brown and is the father of two of her children. Marital problems arose and in June 1983 they separated. At the time, Stephanie Brown owned and operated a barbershop. Each time Respondent and his wife met they argued. At a judicial hearing Respondent was directed to pay child support to his wife. The check he gave Stephanie in the presence of the judge, Respondent tried to recover when he left the courthouse. He was quite angry when Stephanie refused to return this check to him. That same evening, which Stephanie identified as October 24, 1983, Respondent came to the barber shop shortly before closing. Respondent was very angry and demanded return of the money he had been directed to pay as child support, told Stephanie he was sick and tired of her, and did not intend to lose his job because of her complaints. At this time Stephanie was sitting behind her desk at the salon and Respondent was standing in front of the desk. During the argument Respondent tilted the desk toward Stephanie and a letter opener fell off the desk. This letter opener, which was described by Stephanie as having a metal blade approximately, eight inches long, was picked up by Respondent and waved around by him as they argued. Stephanie testified that Respondent was close enough to cut her with the letter opener and that she was afraid he would: however, no evidence was presented that Respondent made any attempt to use a letter opener as a weapon or made any specific threat to harm Stephanie with the letter opener. Ms. Jackson, a customer of Stephanie's who knew Respondent, came in from the back part of the salon and saw Respondent and Stephanie arguing, with Respondent holding the letter opener. She attempted to calm Respondent and apparently succeeded since 'Stephanie testified that after Ms. Jackson calmed Respondent down he cried and was upset. Stephanie also testified that on another occasion Respondent came in the salon shortly before closing and they again got into an argument. Although Respondent was off duty, Stephanie knew he was armed because he "always carried his pistol the course of this argument Stephanie never saw Respondent draw his pistol, have it in his hand, or even have the pistol exposed where she could have seen it. Stephanie testified that an employee' of hers, Yvette Spann, came in while she and Respondent were arguing and later told Stephanie that she had seen a gun in Respondent's hand. This hearsay testimony was corroborated no admissible evidence. The police officer who investigated the charges Stephanie had made against Respondent was the second witness called by Petitioner. This officer had no first-hand knowledge of either of the assault charges preferred against Respondent. As a result of Sergeant Wilkinson's investigation Respondent was discharged from the Tampa Police Department.
The Issue Whether respondent's certification as a correctional officer should be revoked for having pled nolo contendere to a felony.
Findings Of Fact Respondent, Leland M. Large (Large), was certified by petitioner, Criminal Justice Standards and Training Commission (Commission), on July 1, 1974, and was issued certificate number A-2364. Currently, Large is employed as a correctional officer by Metropolitan Dade County, Department of Corrections and Rehabilitation (County), and has been so employed for 16 years. On October 15, 1985, Large entered a plea of nolo contendere to the felony offense of arson, Section 806.01, Florida Statutes, before the Circuit Court, in and for the Eleventh Judicial Circuit of Florida. The court accepted the plea, withheld an adjudication of guilt, and placed Large on a 12-month period of probation. On May 15, 1986, the court granted a motion for early termination of Large's probation. Regarding the crime with which he was charged, the proof demonstrates that in September 1985, Large owned a Toyota Corolla automobile which, because of an accident, was not road worthy. At that time, Large did not have the money to repair the car, was unable to sell it, and was having problems maintaining the payments on the vehicle. Accordingly, to relieve himself from the car payments, Large took the car to a secluded location and burned it. At hearing, Large testified that although he did take the car to a secluded location with the intention of burning it, and in furtherance of such intent smashed a window in the car and poured gasoline at its rear, that the actual burning of the car was an accident. According to Large, after having poured gasoline at the rear of the car, "I got disgusted with myself and I was going to change my mind and I threw a cigarette down and that is what started the fire." Large's testimony that the burning of the car was accidental is not credited, and it is found that he did intentionally burn the subject vehicle to relieve himself of the obligation to make further payments on it. To mitigate the gravamen of his offense, Large offered proof at hearing that at the time he burned the car he was an alcoholic who was not fully cognizant of his actions, but has since recovered. Regarding his rehabilitation, the proof demonstrates that following the entry of his plea of nolo contendere to the crime of arson, Large was suspended by the County for 28 days. During this period, Large was an inpatient at an alcohol rehabilitation center and successfully completed the program. Since such time, Large has remained sober and current in his financial obligations. To date, Large, who is currently 38 years of age, has been employed by the County as a correctional officer for 16 years, and his annual evaluations have ranged from satisfactory to outstanding. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair, respectful of the rights of others, and otherwise of good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which revokes the certification of respondent, Leland M. Large. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of July 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 17th day of July, 1989. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Respondent's proposed findings of fact are addressed as follows: 1-4. Addressed in paragraphs 1 and 6 to the extent pertinent. 5. Addressed in paragraph 5. 6-13 and 15-39. These proposed findings are not relevant to the disposition of this case, but have been addressed in paragraphs 3-5 so that respondent's position could at least be depicted. 14. Addressed in paragraph 2, otherwise rejected as not shown to be relevant. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10630 N.W. 25th Street Miami, Florida 33172 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302-1489 Daryl McLaughlin Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact In 1932, Respondent was driving one of three cars involved in an automobile accident in Ohio. Respondent was approximately 18 years old. Two females in one of the automobiles not driven by Respondent died in the accident. They were Ms. Clara Shaw and Ms. Betty Montgomery. In January, 1933, Respondent was indicted for manslaughter of Ms. Montgomery. 2/ Respondent was also indicted for "failure to stop in case of an automobile accident" ("failure to stop"). Manslaughter was a felony in Ohio in 1933. Failure to stop was not a felony. 3/ Respondent initially pled not guilty to both manslaughter and failure to stop. Pursuant to a plea bargain between Respondent's attorney and the state attorney, Respondent subsequently changed his plea and entered a plea of guilty to both manslaughter and failure to stop. In exchange for Respondent entering a guilty plea, Respondent was sentenced to six months in the county jail and placed on probation for one year. Respondent served only 37 days of his sentence. The balance of his sentence and the imposition of court costs was suspended during the court's April term. Respondent successfully completed his probation. Respondent was not found guilty of manslaughter in Ohio in 1933. There is no adjudication of guilt in the court file for either manslaughter or failure to stop. Only a certificate of sentence appears in the court file. A certificate of sentence was entered only for failure to stop. No certificate of sentence was entered for manslaughter. In 1933, Section 12404 of the Ohio General Code required a person who was found guilty of manslaughter to be: . . . imprisoned in the penitentiary not less than one year nor more than twenty years. The court had no authority to find Respondent guilty of manslaughter and then either impose a sentence of less than one year or allow Respondent to serve out that sentence anywhere except the state penitentiary. 4/ The court sentenced Respondent to six months in the county jail. Respondent served only 37 days of his six month sentence. None of those days were served in the state penitentiary. Respondent remained in Ohio until he moved to Florida in 1940 or 1941. The state of Ohio never prevented Respondent from exercising his civil rights. Once Respondent reached the age of 21, he voted in local, state, and national elections in Ohio. Respondent also voted in local, state, and national elections in Florida for 50 years. 5/ Respondent served in the U.S. military for 2 1/2 years after his criminal conviction in Ohio. Thereafter, Respondent was employed in the defense industry by North American Aviation and by Martin Marietta from 1951 through 1977. Respondent had a confidential security clearance at North American Aviation and a secret security clearance at Martin Marietta. 6/ Respond disclosed his Ohio criminal record during security checks required for both North American Aviation and Martin Marietta. Respondent has been licensed to carry a concealed weapon in Florida for approximately seven years. He is applying for the third renewal of that license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of being "found guilty" of a felony in another state, within the meaning of Section 790.23(1)(d), and granting Respondent's request for the license at issue in this proceeding. RECOMMENDED this 25th day of July, 1995, in Tallahassee, Florida. DANIEL MANRY 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 July, 1995.
The Issue The issue in the case is whether the Petitioner’s request for exemption from employment disqualification should be approved.
Findings Of Fact On June 21, 1991, Aaron Foreman (Petitioner) was convicted of one count of "possession of THC with intent to deliver" in the Circuit Court of Walworth County, State of Wisconsin, Case Number 90CR00080. At the time of the arrest, the Petitioner was a student at the University of Wisconsin in Whitewater. He resided with several other students in the upstairs apartment portion of a residence. On or about February 1, 1990, local Whitewater law enforcement officials, apparently investigating one of the roommates for burglary, executed a search warrant and entered into the apartment where the Petitioner was living. During the search of the apartment, law enforcement officers discovered a quantity of marijuana in the apartment and bedrooms of the residents. The Petitioner had a refrigerator in his bedroom, within which law enforcement officers discovered a large plastic bag containing 26 smaller plastic bags, each containing a quantity of marijuana. The total weight of the plastic bags of marijuana within the Petitioner's refrigerator was identified in the charging document as approximately 126 grams. In Count One of the charge, the Petitioner and three other persons (apparently the roommates) were jointly charged with possession with intent to deliver more than 500 grams of THC, an element of marijuana. In Count Four of the charge, the Petitioner was individually charged with possession with intent to deliver 91 grams of THC. The record of the hearing does not establish the reason for the difference between the weight of the marijuana allegedly discovered and the THC quantities with which the defendants were charged. According to the Petitioner's testimony at hearing, the Petitioner participated in marijuana use, and bought and sold marijuana within a "small circle of friends" and his roommates. On June 21, 1991, the Petitioner entered a plea of "no contest" to Count Four as part of an agreement to resolve the drug possession charges, and as stated previously, was convicted of felony under Wisconsin law. According to the Judgement of Conviction, Count One of the charge was dismissed. As a result of the plea agreement, the Petitioner was sentenced to nine months in jail, two years of probation, and a fine of approximately $2,700. The Petitioner served the jail sentence in a work release program, continued to attend college and obtained an undergraduate degree in sociology from the University of Wisconsin. The Petitioner paid the fine imposed by the sentence and successfully completed the probationary period as of September 19, 1993. Subsequent to completion of the sentence, the Petitioner became employed as a licensed social worker in Wisconsin. From 1993 to 1999, the Petitioner was employed by "Southeastern Youth and Family Services," as a social worker. The Petitioner's employment evaluations range from "very good" to "outstanding." In July 1999, the Petitioner underwent a background screening prompted by his application for employment by Eckerd Youth Alternatives, Inc., a program that, in part, provides services to young persons involved in the juvenile justice system and funded through contract with the Florida Department of Juvenile Justice (Department). Based on the conviction, the Department notified Eckerd Youth Alternatives, Inc., that the Petitioner was disqualified from employment. The Petitioner requested that the Department review the disqualification. The Department responded by letter dated June 19, 1999, advising that the desk review would be granted and identifying the information that the Petitioner was required to submit to facilitate the review. The Petitioner responded to the June 19 letter by supplying the requested information to the Department. The matter was apparently reviewed by a "Priscilla A. Zachary, BSU Supervisor" for the Department, who forwarded the file along with a cover memo to Perry Turner, the Department's Inspector General. As Inspector General, Mr. Turner is the person authorized by the Department to make decisions on disqualification exemption applications. Ms. Zachary's cover memo incorrectly identifies the crime for which the Petitioner was convicted and states that the Petitioner's June 21, 1991, conviction was for "Possession with Intent to Deliver" more than 500 grams of THC. According to the Judgement of Conviction, Count One of the charge, wherein the Petitioner and other persons were jointly charged with possession with intent to deliver more than 500 grams of THC, was dismissed. On August 5, 1999, Mr. Turner determined that the Petitioner's application for exemption should be denied. Mr. Turner based his decision on his belief that the Petitioner's felony conviction was for an amount of marijuana beyond that which Mr. Turner believes could be reasonably identified as being for "personal use" and which was intended for distribution. By letter dated August 5, 1999, the Petitioner was notified of the Department's decision by letter and advised of his right to challenge the denial in an administrative hearing. During the hearing, the Petitioner testified as to the events leading to his conviction and identified his efforts at rehabilitation. At the hearing, the Petitioner testified that his initial experience with marijuana occurred in approximately 1988, when he entered the University of Wisconsin at Whitewater. The Petitioner testified that at the time of the 1990 arrest, he was an "immature" college student who recreationally used marijuana within his circle of friends and with whom he sold or exchanged marijuana. Other than the Petitioner's admission, there is no evidence that the Petitioner actually sold marijuana. There is no evidence that the Petitioner was arrested or charged with the sale of marijuana. There is no evidence that the Petitioner was a part of any continuing marijuana distribution organization. There is no evidence that, other than the arrest at issue in this proceeding, the Petitioner has ever been arrested for any other reason. Review of the charging documents suggests that the charge of "intent to deliver" was based on the quantity of the marijuana found in the apartment and the apparent candor with which the residents dealt with the law enforcement officials who executed the search warrant and investigated the situation. The Petitioner's arrest occurred approximately eleven years ago. The Petitioner's conviction was approximately ten years ago. The Petitioner completed the probationary portion of his sentence more than seven years ago. There is no evidence that there was any physical injury or harm done to any individual as a result of the Petitioner's conviction. There is no evidence that granting the Petitioner's request for exemption presents a danger to the Petitioner or to any other person. The Petitioner has continued with his education and in December 2000 received his master's degree in Criminal Justice from the University of Wisconsin in Milwaukee. The Petitioner has also sought to obtain a pardon from the Governor of Wisconsin. By letter dated August 28, 2000, the Governor's Pardon Advisory Board notified the Petitioner that it was recommending to the Governor that a pardon be granted. Although the vote by the Board was not unanimous, the majority of the members believed that the pardon should be granted "based on positive adjustment, lack of subsequent criminal justice system contacts, non-violent nature of the crime, and valid job concerns." As of the date of the hearing, the Governor of Wisconsin had not acted on the Board's recommendation to grant the Petitioner's pardon request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice grant the request of Aaron Foreman for exemption from employment disqualification. DONE AND ENTERED this 26th day of February, 2001, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 2001. COPIES FURNISHED: Aaron Foreman 10500 West Fountain Avenue Apartment No. 411 Milwaukee, Wisconsin 53224 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Petitioner completed an application for issuance of a Class "C" Private Investigator License. That license request was denied on October 30, 1991. On November 20, 1991, Petitioner challenged the denial leading to the formal hearing held pursuant to Section 120.57(1), Florida Statutes. The statement of denial was amended on December 23, 1991. The reasons in the amendment are associated with Petitioner's criminal law history. The amended statement of denial frames the dispute. Petitioner was charged in the case of United States of America v. Hugh Mattingly Padgett, Jr., No. 63-230-CR-J, in the United States District Court for the Middle District of Florida, Jacksonville Division, with having in his possession and custody, and under his control, a still and distilling apparatus set up, which had not been registered as required by law, in violation of Title 26 U.S.C., Section 5601(a)(1). He was convicted in that case upon a plea of guilty and fined $500. He was given a nineteen month sentence with was suspended upon service of probation for three years under supervision. The judgement and order of probation was entered on January 31, 1964. The probation was terminated after two years of service. That action by the Court shortening the probationary period was by order drawn on January 17, 1966. On May 8, 1981, in Hunterton County, New Jersey, Petitioner was convicted of distributing a controlled substance, methaqualone; possession of that controlled substance; possession of that controlled substance with intent to distribute and conspiracy to distribute that controlled substance. For this conviction he received a prison term totalling ten years and a $45,000 fine. Petitioner served the prison sentence in New Jersey. There was a Florida criminal law case which was basically the factual counterpart to the New Jersey prosecution. That case was State of Florida v. Hugh M. Padgett, Jr., No. CF880-2813A2-XX, in the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida. On June 27, 1989, Petitioner plead guilty to the Florida case. That plea pertained to a violation of the Florida Racketeering Influence and Corrupt Organization Act, Section 943.462(3), Florida Statutes, and trafficking in methaqualone more than five kilograms but less than 25 kilograms, a lesser included offense, Section 893.135(1)(e)3, Florida Statutes. Part of the sentence which Petitioner was given in the Florida case involving the controlled substance methaqualone was a five year mandatory minimum sentence pursuant to Section 893.135(1), Florida Statutes. For entering his plea the court sentenced the Petitioner to a period of eight years concurrent time with 192 days credit for jail time served. Later by order of February 14, 1990, in connection with the case, Petitioner was given credit for 894 days of jail time served, reflecting credit for time spent in New Jersey awaiting return to Florida. The two cases involving controlled substances stem from activities by the Petitioner in 1980 in both Florida and New Jersey. Concerning the 1964 Federal conviction, Petitioner acknowledges that he knew of the operations of what he referred to as a "moonshine still" but denies that he received any money from that operation beyond rent money from the person to whom he had rented a house and upon which property the still had been found.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which denies the application for a Class "C" Private Investigator License. DONE and ENTERED this 21st day of April, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1992. Copies furnished: Ronald L. Jones, Esquire Jones and Koch 1200 East Lafayette Street, Suite 108 Tallahassee, FL 32301 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, FL 32399-0250 Honorable Jim Smith Secretary, Department of State The Capitol, MS #4 Tallahassee, FL 32399-0250
Findings Of Fact Before 1989, the Petitioner, Gregory Miller, was a community control counselor (in effect, a juvenile probation officer) working for HRS. After several years of satisfactory job performance, his employment was terminated for unsatisfactory job performance in 1989. The Petitioner believes his termination by HRS was unfair. On January 30, 1991, the Petitioner, Gregory Miller, pled nolo contendere to attempted arson in violation of Section Section 806.01, Fla. Stat. (1991). Adjudication was withheld, and the Petitioner was placed on probation for two years. The attempted arson charge arose at a time in October, 1990, when the Petitioner, who has a 20-year history of substance abuse and suffers from bipolar disorder and borderline personality disorder, decompensated under financial and other stress and attempted to burn his automobile in order to fraudulently obtain property and casualty insurance benefits. At the time of the arson attempt, his car was parked in the garage, and a tenant was residing in the garage apartment overhead. The tenant noticed the fire started by the Petitioner, put it out and reported it to the Petitioner. The Petitioner berated him for putting the fire out and told him to get his personal belongings out of the garage apartment and leave. While the tenant was in the garage apartment gathering his belongings, the Petitioner was attempting to restart the fire. The tenant had been a worker's compensation client of the Petitioner. The Petitioner continued to have mental and emotional and substance problems that led to additional criminal charges. On February 13, 1991, he was arrested and charged with battery of a law enforcement officer, a third degree felony. On October 3, 1991, the Petitioner pled guilty to the lesser included offense of resisting arrest without violence, a misdemeanor, and was sentenced to seven days time served in jail. On or about December 22, 1991, the Petitioner overdosed on a mixture of drugs and alcohol in a possible suicide attempt. When confronted with law enforcement officers, the Petitioner struck the officers and was arrested and charged with battery of a law enforcement officer, a third degree felony. The Petitioner was involuntarily committed under the Baker Act, and on September 21, 1992, he pled nolo contendere to simple battery, a first degree misdemeanor, and was sentenced to one day time served in jail and ordered to pay $200 in fine and court costs. As a result of his other criminal charges, the Petitioner was charged with violation of his probation on the attempted arson charge. On or about March 16, 1992, the Petitioner pled guilty to violation of probation. Adjudication on the violation of probation was withheld, but probation was revoked, and he was resentenced under the attempted arson charge to a year of community control, followed by a year of probation. On or about March 8, 1992, the Petitioner was charged with driving with his license suspended or revoked for failure to maintain required insurance coverage. Since 1992, the Petitioner has not been involved in any additional criminal activity or charges. On February 23, 1993, his community control was converted to probation. He moved to Pasco County and, on December 22, 1993, his probation was terminated early. The Petitioner has sought professional counseling. On or about March 22, 1993, he was referred to a vocational rehabilitation counselor with the Department of Labor and Employment Security, Division of Vocational Rehabilitation. Since approximately early 1994, he also has been under the care of a psychiatrist. With the help of counseling, the Petitioner has been sober since before August, 1993. Fortunately, therapy seems to have been successful. Except for two short hospitalizations for decompensation and medication adjustment early in his counseling, the Petitioner has been sober and mentally stable over the course of the last three years. From a mental health standpoint, the Petitioner no longer seemed to be a danger to himself or others, and he was making good progress in rehabilitating himself. On or about May 18, 1995, the Petitioner sought employment with Action Youth Care, a provider on contract with HRS. When he applied for the job, he was required to complete an Affidavit of Good Moral Character that swore, in pertinent part, that he had "not been found guilty of, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Section 806.01 [Florida Statutes, arson]." The affidavit also required the Petitioner to "acknowledge the existence of any criminal . . . record regardless of whether [he] was adjudged guilty by the court and regardless of whether or not those records have been sealed or expunged." The Petitioner signed without acknowledging his attempted arson record. When his name was screened, the attempted arson record disqualified him from employment, and the Petitioner was terminated from his employment pending his request for an exemption. Despite the Petitioner's commendable progress in rehabilitating himself, there still are signs that some instability persists. He does not seem to appreciate the seriousness of his criminal record and history of substance abuse and mental illness, as they relate to HRS's statutory obligation to properly assess his moral character under Section 409.175, Fla. Stat. (1995). Instead, he blames HRS's actions on a "political" conspiracy to prevent him from obtaining employment. Similarly, he attempts to excuse his criminal record by blaming it all on HRS--the termination of his employment in 1989 allegedly was the sole cause of his decompensation and the resulting criminal offenses. His excuse for falsifying his Affidavit of Good Moral Character was that it was reasonable not to disclose the arson record because it was only attempted arson, not arson. He does not seem to appreciate that there is little or no difference in blameworthiness between the two. (The only real difference between the two is how soon the fire goes out or is put out.) Finally, the Employee Closing Summary produced by Action Health Care upon termination of the Petitioner's employment stated that Action would not re-hire the Petitioner and that the Petitioner's "weak areas" included: "poor rapport with team"; "would not accept authority"; and "documentation skills." (No "strengths" were noted on the form.) The Petitioner again blamed HRS, contending that the person who completed the form was lying to cooperate with HRS's conspiracy against the Petitioner. It is found that the evidence, taken as a whole, was not clear and convincing proof of rehabilitation and good moral character at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioner's request for an exemption from disqualification. DONE and ENTERED this 21st day of August, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1996.
Findings Of Fact On April 19, 1985, an Order Withholding Adjudication Of Guilt and Placing Defendant on Probation was entered in the Circuit Court for Palm Beach County in Case Number 84-5138CFA02, State of Florida vs. Zedekiah Clayton (hereinafter referred to as the "Felony Order".) The Petitioner was the defendant in that criminal case. According to the Felony Order, Petitioner entered a plea of guilty to aggravated battery without a firearm, a third degree felony. Adjudication of guilt was withheld and Petitioner was placed on three years probation and ordered to pay restitution and court costs. Petitioner contends that he did not plead guilty as reflected in the Felony Order, but, instead, entered a plea of nolo contendere. His contention is supported by the Commitment Form which accompanied the Felony Order. This Commitment Form includes the handwritten notations of the deputy clerk who was apparently present at the time the plea was entered. According to this Form, the Petitioner entered a plea of nolo contendere. While the Commitment Form and Felony Order are in conflict, Petitioner's testimony is credited and it is found that he entered a plea of nolo contendere rather than guilty. On May 22, 1986, Petitioner entered a plea of guilty to a misdemeanor battery count in Palm Beach County Circuit Court Case Number 86-4501CFA02, State of Florida vs. Zedekiah Clayton (the "1986 case"). The initial charge in this case was false imprisonment as reflected on the arrest record dated May 4, 1986. However, the charge was reduced to a misdemeanor battery count. Petitioner was adjudicated guilty and ordered to pay a fine of $125.00. The court specifically directed that Petitioner's probation from the earlier Felony Order should not be violated as a result of this charge. On December 19, 1989, Petitioner filed an application with Respondent for a Class "D" security guard license and a Class "G" statewide gun permit. Section 13 of the application requires the applicant to list any and all arrests and informs the applicant that falsification of the answer "... may be grounds for denial of your license." In response to this question, Petitioner listed the arrest which led to the entry of the Felony Order. However, Petitioner did not list his arrest in the 1986 Case under this section of the application. Petitioner contends that he did not know that he was ever formally placed under arrest in the 1986 Case because he voluntarily accompanied the police officer to the station. He also stated that his attorney advised him that he did not have to disclose the incident because it was a misdemeanor. However, the application form refers to all arrests, not just felony arrests. Petitioner clearly understood that he had to appear in court and he also paid the $125.00 fine assessed against him in that case. There is no acceptable excuse for Petitioner's failure to disclose the 1986 case on his application form.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter a Final Order denying Petitioner's application for a Class "D" security guard license and a Class "G" gun permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of June, 1990. J. STEPHEN MENTON 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 15th day of June, 1990. APPENDIX Case Number 90-1409S Both parties have submitted Proposed Recommended Orders. To the extent tht the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1-5. Incorporated in the preliminary statement. Subordinate to Findings of Fact 4 and 5. Rejected as constituting legal argument. The subject matter of this proposal is covered in part in Findings of Fact 2 and 3. Rejected as not supported by competent, substantial evidence. Rejected as constituting legal argument. Rejected as constituting a conclusion rather than a proposed Finding of Fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Incorporated in the preliminary statement and adopted in part in Finding of Fact 4. Incorporated in the preliminary statement. Adopted in part in Finding of Fact 5. COPIES FURNISHED: James K. Green, Esquire 250 Australian Avenue Suite 1300 West Palm Beach, Florida 33401 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol (MS #4) Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
