Findings Of Fact Respondent is the state agency responsible for the licensure of community association managers. Petitioner, Anthony G. DiCarlo, submitted to Respondent an Application for Licensure as a Community Association Manager dated August 25, 1992. Respondent issued a Notice and Order of Rejection of the application on February 2, 1993. Licensure as a community association manager is required for a person performing in the State of Florida community association management services to one or more associations containing 50 units or having an annual budget or budgets in excess of $100,000. The purpose of the community association manager licensing and regulation statute is to protect the public in general, and community association members in particular. The statute is a consumer protection measure designed to provide some assurance to associations that a licensed manager will be trustworthy and have a certain level of competence. A community association manager performs duties which require specialized knowledge, judgment, and managerial skill. The community association manager typically manages the financial affairs of a community association, including the accounts receivable and the accounts payable. The manager usually writes checks, disburses association funds, invests the reserve funds, prepares the budget, and monitors the budget. Depending on the size of the association, a community association manager may have access to substantial sums of money in the form of cash, credit cards, and checking accounts. Some community association managers manage associations with a large number of absentee owners. Because of lessened oversight, those managers often have increased authority and responsibility. Pursuant to Section 468.433(4), Florida Statutes, an applicant must possess good moral character and pass an examination to be entitled to licensure as a community association manager. Rule 7D-55.004(3), Florida Administrative Code, has been duly adopted by Respondent and provides, in pertinent part, as follows: (3) Good Moral Character. (a) When the application has been determined to be in acceptable form, the division shall evaluate the application and make approp- riate inquiry to determine the applicant's moral character. For the purpose of this rule the division shall consider the follow- ing factors as bearing upon good moral character: The affirmation of at least three char- acter references furnished by the applicant for 3 years or longer . . . The completion of a criminal history check by the Florida Department of Law En- forcement that reveals no convictions of a felony or of a misdemeanor involving moral turpitude. . . . * * * Other relevant information generated in the course of the application process which bears upon the applicant's moral character. * * * (5) If upon completion of its evaluation of the moral character of an applicant, the division concludes that the applicant does not posses good moral character, the division shall proceed as provided in rule 7D-55.001 (1), Florida Administrative Code. Rule 7D-55.0011(1), Florida Administrative Code, provides as follows: The division, prior to taking final agency action which may adversely affect the substantial interests of a person, including but not limited to the denial of a license application, shall notify that person of the intended agency action and of his right to a formal hearing or an informal proceeding as provided by section 120.57, Florida Statutes, and chapter 7-4, Florida Admini- strative Code. Faye Mayberry, bureau chief of Respondent's Bureau of Condominiums, testified as to Respondent's policies. It is Respondent's policy to determine that an applicant has good moral character before permitting the applicant to sit for the licensure examination. Respondent has consistently denied licensure to applicants who have committed a theft-related felony or who have shown a pattern of disregard for the law. Respondent does not consider such facts to be a permanent bar to application, but it has adopted no policy as to the evidence of rehabilitation an applicant must establish following the conviction(s) before Respondent will determine that an applicant has been rehabilitated. Instead, Respondent makes a determination as to whether an applicant has established that he has good moral character on a case by case basis. Respondent considers all information that has been made available to it in making its determination. Item 14 on the form application for licensure requires the applicant to answer the following: "Have you ever been convicted of a crime, found guilty, or entered a plea of nolo contendre (no contest) even if adjudication was withheld?" Petitioner answered that question in the affirmative. Thereafter the form instructs an applicant who has answered the question in the affirmative to ". . . attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." In response to those instructions, Petitioner submitted the following: U.S. Federal Court - Newark, New Jersey 8/11/81 Transporting securities taken by fraud across state lines. Sentenced to five (5) years probation. Awarded early term- ination. County Court - Broward County, Florida 1/8/84 Grand Theft. Sentenced to eighteen (18) months probation. Awarded early term- ination. County Court - Broward County, Florida 3/23/89 Grand Theft. Sentenced to seven (7) years probation. Awarded early termination. On September 24, 1992, Sharon L. Guthrie, Supervisor of Education for Respondent's Bureau of Condominiums, wrote Petitioner about his application and stated, in part, as follows: As part of the application process, the Division is required to make appropriate inquiries to determine the applicant's moral character. Rule 7D-55.004(4), Florida Admini- strative Code, requires the Division to com- plete the moral character evaluation within 30 days after receiving the criminal history check. After reviewing the information on record with the Florida Department of Law Enforcement, it appears that your application was not complete with regard to your criminal history. Based on this information, we are unable to approve your application for licen- sure; however, if you notify us, in writing, that you would like to waive the requirement that the Division complete its evaluation within 30 days, we will continue our evalua- tion of your moral character. In addition, you must provide a complete, signed state- ment of the charges and facts, together with the dates, name and location of the court in which the proceedings were held, and copies of any pertinent court records. In response to the letter of September 24, 1992, Petitioner waived the 30 day requirement and enclosed a copy of the information he had submitted along with his application. He provided no additional information about his criminal history. Ms. Mayberry made the recommendation to Henry M. Solares, Director of the Division of Florida Land Sales, Condominium and Mobile Homes, that Petitioner's application be denied. Ms. Mayberry considered all the information Petitioner submitted in support of his application. There were three reasons for Ms. Mayberry's initial recommendation to deny the application. First, Petitioner had committed three felonies involving theft. Respondent considers theft to directly reflect on the ability of a community association manager to honestly fulfill his or her duties since the manager has the responsibility of managing the association's finances and has access to bank accounts and credit cards. Second, Ms. Mayberry considered that the last crime was committed relatively recently. Third, Ms. Mayberry considered that the multiple convictions indicated a pattern of disregard for the law by Petitioner. Mr. Solares accepted Ms. Mayberry's recommendation and entered on behalf of Respondent on February 2, 1993, a Notice and Order of Rejection, which notified Respondent that Respondent intended to reject his application and provided him with notices as to his rights to contest the intended action. The order found that Petitioner failed to demonstrate his eligibility for licensure as a community association manager. The order provided, in part, as follows: . . . Specifically, in violation of Rule 7D-55.004(3)(a), Florida Administrative Code, relevant information has been generated in the course of the application process which indicates that you have failed to demonstrate good moral character for the following reason: Your criminal history reveals that you have been convicted of a felony directly related to the ability to perform the duties of a community association manager, and you have failed to provide, or been unable to provide, sufficient information to establish your good moral character notwithstanding your conviction. Thereafter, Petitioner timely challenged the intended agency action and this proceeding followed. At the formal hearing, evidence was presented that was not available to Respondent when the initial decision was made to deny the application. This evidence elaborated on Petitioner's criminal history and pertained to efforts by Petitioner to rehabilitate himself. Between 1975 and 1980, Petitioner was employed in a position of trust as an administrator at a New Jersey rehabilitation hospital. During that period of employment, Petitioner embezzled money from his employer by falsifying the hospital's accounts to reflect overpayments and deposited the overpayment in his personal bank account in New Jersey. He then transported the embezzled funds across state lines to his personal bank account in New York. On August 11, 1981, Petitioner entered a plea of guilty in federal court in Newark, New Jersey, of the felony offense of the interstate transportation of securities taken by fraud. He was sentenced to 10 years imprisonment, but the sentence was suspended and he was placed on probation for a period of five years, which he successfully completed. Petitioner contends that his abuse of alcohol during these years contributed to his theft from his employer. The total sum he stole over this extended period of time was not established. On March 9, 1984, Petitioner entered a plea of guilty in Circuit Court in and for Broward County, Florida, to a felony charge of grand theft based on a shoplifting incident. He was adjudged guilty and placed on probation for a period of 18 months. Among the terms of probation was the requirement that he attend AA meetings three times per week. Petitioner successfully completed his probation which included the requirement that he attended AA meetings at Broward Alcoholic Rehabilitative Counseling. Petitioner thereafter resumed his prior abuse of alcohol and cocaine. On March 23, 1989, Petitioner entered a plea of guilty in Circuit Court in and for Broward County, Florida, to two felony counts of grand theft. These thefts occurred over a two year period while Petitioner was employed by Anesthesiology Associates between 1986 and 1988. Using tactics similar to those he used in New Jersey, Petitioner embezzled over $100,000 from his employer. Petitioner was sentenced to seven years probation. The terms of probation included a requirement for community service, payment of restitution, and treatment for drug and alcohol addiction. Petitioner made full restitution over a 21 month period to Anesthesiology Associates, performed 350 hours of community service, and successfully completed the court ordered treatment for alcohol and drug addiction. On January 8, 1991, Petitioner's probation was terminated. On September 19, 1991, the Florida Office of Executive Clemency restored Petitioner's civil rights, except for the right to possess or own a firearm, which were lost by the felony convictions. Petitioner asserts that his criminal activities were the product, in part, to his addiction to alcohol and to cocaine. These addictions resulted, according to Petitioner, because of stress associated with a congenital heart condition. Petitioner underwent open heart surgery in March 1987 to correct this defect. He nevertheless continued to abuse alcohol and cocaine after his surgery. His surgery occurred while he was employed by Anesthesiology Associates, and he continued to embezzle funds from his employer until he was caught. While Petitioner's addictions may have been a contributing factor to his criminal activity, the record in this proceeding fails to establish that his addictions caused his criminal activities. Petitioner was a long time abuser of alcohol and began abusing cocaine when he moved to Florida in 1981. Petitioner has received treatment for his addictions on at least two occasions. The first occasion was as a condition to his probation following the 1984 conviction of grand theft. The second was following the discovery of his thefts from Anesthesiology Associates. Petitioner began extensive alcohol and substance abuse counseling and treatment on an outpatient basis from Clinical Provider Organization, Inc., a private outpatient psychiatric/ psychological clinic in Broward County. He was admitted on November 11, 1988, and discharged on March 20, 1989. Dr. Christopher J. Fichera was the clinical director who supervised Petitioner's involvement in the program, supervised the staff counsellors dealing with him, and treated him on an individual basis. Carol L. Disher, a certified addictions specialist, was the staff person who led Petitioner's group therapy sessions at Clinical Provider Organization. Both Dr. Fichera and Ms. Disher were of the opinion that Petitioner had successfully completed their program. Petitioner was discharged because he had completed the program and because of the condition of probation following the 1989 conviction required that Petitioner participate in an inpatient program. Mr. Cipolla and Rabbi Gross continue to provide support for Petitioner. Although both of these witnesses see Petitioner on a periodic basis, neither has observed any indication that Petitioner has resumed abusing alcohol or cocaine. The greater weight of the evidence establishes that Petitioner is successfully recovering from his addiction to alcohol and cocaine and that he has been alcohol and cocaine free for approximately five and a half years. Petitioner asserts that the testimony of Dr. Fichera and Ms. Disher link the Petitioner's criminal conviction to his alcohol and/or substance abuse. While their testimony may be construed in generalities to support that contention, it is clear that Dr. Fichera was unaware of Petitioner's conviction in New Jersey or his 1984 conviction in Florida. Dr. Fichera learned of the first two convictions when his deposition was taken in connection with this proceeding. Dr. Fichera was of the opinion that the information was significant and may reflect underlying character problems in addition to the addictions. An applicant is required to submit with his or her application three character references on forms supplied by Respondent. Attached to Petitioner's application were completed character reference forms from Beverly Baran, Michael Cipolla, and Rabbi Milton J. Gross. Each of Petitioner's character references testified at the formal hearing and each was of the opinion that Petitioner was presently of good moral character. Beverly Baran and her husband, who is an anesthesiologist, were shareholders in Anesthesiology Associates and met Petitioner when he became employed as the business manager for that business. Ms. Baran and her husband became very friendly with Petitioner and his wife. Ms. Baran was aware of Petitioner's embezzlement from Anesthesiology Associates, but she was unaware of the first two felony convictions. She was told for the first time at the formal hearing of the two prior felony convictions. Ms. Baran testified that she considers Petitioner to presently be of good moral character, and based that opinion on his rehabilitation from alcohol and cocaine. Michael Cipolla was Petitioner's sponsor at AA. He had known Petitioner for approximately eight years as of the formal hearing, and was of the opinion that Petitioner had been alcohol and cocaine free for approximately five and a half years. Mr. Cipolla was of the opinion that Petitioner was presently of good moral character. Mr. Cipolla sees Petitioner on an irregular basis. He testified that he sees him sometimes once a month, sometimes three or four times a month, and sometimes every other month. Rabbi Milton Gross had known Petitioner for approximately 10 years at the time of the formal hearing. Rabbi Gross has provided spiritual counseling to Petitioner at different times. Rabbi Gross was aware of Petitioner's alcohol and cocaine addiction and his past criminal behavior. Rabbi Gross knew of Petitioner's rehabilitation efforts and considered Petitioner to presently be of good moral character. Rabbi Gross sees Petitioner approximately once every three weeks. There was minimal evidence as to Petitioner's employment since his discharge from Anesthesiology Associates.1 Petitioner's generalized testimony as to his employment does not establish the extent of his responsibilities or the extent to which he had access to his employer's financial records, bank accounts, and credit cards. Consequently, the testimony that there have been no allegations of embezzlement since 1988 is insufficient to establish that there has been a change in Petitioner's character. The character witnesses who testified on Petitioner's behalf established that Petitioner has made commendable efforts to rehabilitate himself from alcohol and cocaine addiction. While the sincerity of these witnesses cannot be doubted, their opinion testimony assumed that all of Petitioner's criminal activity was caused by his addiction to alcohol and/or his addiction to cocaine. There was no competent, persuasive evidence to support that assumption, and this testimony does not establish that Petitioner has the moral character to honestly perform the duties and responsibilities of a community association manager. Ms. Mayberry, who attended the formal hearing on behalf of Respondent, was still of the opinion that the application should be denied following the presentation of Petitioner's evidence at the formal hearing. Her initial reasons for rejecting the application had not changed. Ms. Mayberry gave as an additional reason for rejecting the application what she considered evidence of Petitioner's lack of candor during his application process. Respondent asserts that Petitioner was not candid about his cocaine addiction in response to questions posed by Respondent's counsel at his deposition, and that he did not submit evidence of his rehabilitation with his application because it would reveal his prior addiction to cocaine. While he was not as forthcoming as one might expect, Petitioner did not lie in response to questions about his addiction and rehabilitation. He indicated in several responses that there was an alcohol and substance abuse problem, but he was not directly asked during the deposition about the nature and extent of his addiction. The argument that Petitioner attempted to hide his cocaine addiction is weakened when one considers that the deposition of Dr. Fichera, during which Petitioner's addiction to cocaine was fully discussed, was taken at the instance of the Petitioner. While Petitioner's application made no reference to his addictions or to his rehabilitation therefrom the application form did not solicit that information. It is concluded that Petitioner did not demonstrate a lack of candor by his application or during his deposition that establishes a lack of good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which denies Petitioner's application as a community association manager. DONE AND ORDERED this 10th day of August, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of August, 1993.
Findings Of Fact The Respondent, Richard Witherspoon (Witherspoon), is an employee of the Broward County School Board, holding a professional services contract, and is currently employed as a teacher at Broward Estates Elementary School. On November 30, 1994, the Fort Lauderdale Police Narcotics Unit was conducting an undercover drug operation at 2146 N.W. 7th Court in Fort Lauderdale. As part of the operation, Detective Clay Barrett posed as a drug dealer. Witherspoon approached Detective Barrett and asked him for a dime bag of marijuana. Witherspoon gave the officer money and received a bag of marijuana. Detective Barrett then signaled to other officers, who came and took Witherspoon into custody. Witherspoon was handcuffed and taken to the police department's processing room, where he was photographed. Witherspoon told the police that he was a school teacher. An information was filed against Witherspoon, charging him with the purchase of a controlled substance. In lieu of standing trial, Witherspoon agreed to enter a drug intervention program through the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida. As a prerequisite to become eligible for the drug intervention program, Witherspoon admitted to the presence of the drug. There were newspaper articles concerning the arrest of Witherspoon for purchasing marijuana, stating that Witherspoon was a schoolteacher. Witherspoon completed the pretrial intervention drug program. On January 30, 1996, the criminal case involving the purchase of a controlled substance was dismissed. Prior to his arrest, Witherspoon's teaching performance at Broward Estates Elementary School had been satisfactory and there had been no complaints concerning his teaching ability. After the arrest and resulting newspaper articles, there were still no complaints concerning Witherspoon's teaching performance but parents did express their disappointment in him because of his arrest. In 1989, Witherspoon was employed with the Dade County School Board as a teacher at Avocado Elementary School. On May 12, 1989, in Jefferson County, Alabama, he was arrested and charged with five counts of negotiating a worthless instrument. Witherspoon entered a bonding agreement for his release before trial. He failed to appear at trial and defaulted on his bonding agreement. Witherspoon was taken into custody at Avocado Elementary School and transported to Alabama to stand trial. He pled guilty to all five counts and was sentenced to a six month prison term, one year of probation, and charged with court costs and restitution. On October 30, 1989, Witherspoon resigned from employment with the Dade County Schools. In his letter of resignation, Witherspoon requested the Dade County Schools to send any correspondence to him at his sister's address. In July, 1990, the Florida Education Practices Commission filed an administrative complaint against Witherspoon based on the Alabama charges, seeking action against Witherspoon's teacher's certificate. Attempts to serve the complaint by mail and hand delivery were unsuccessful. Notice of the complaint was published in a Dade County newspaper on November 13, 19, 16, and December 3, 1990. A notice of the hearing on the administrative compliant was sent to Witherspoon by restricted delivery on January 14, 1991, but was returned to the Education Practices Commission because Witherspoon had moved and left no forwarding address. On February 1, 1991, the Education Practices Commission reviewed the case record. By Final Order of the Florida Education Practices Commission dated February 27, 1991, Witherspoon was found guilty of gross immorality, moral turpitude, and personal conduct which seriously reduced his effectiveness as an employee of the Dade County School Board. Witherspoon's teaching certificate was suspended for a period of six months commencing on March 8, 1991. Witherspoon was issued a written reprimand and was required to serve three years probation, with conditions to be met upon his reemployment as a teacher. Copies of the Final Order were sent to Witherspoon by regular and certified mail, but were returned to the Education Practices Commission, marked "Moved, Not Forwardable." Witherspoon applied for employment as a teacher with the Broward County School Board on June 18, 1991. He answered "no" on his application in response to the following question: "Have you ever had your teaching certificate from any state suspended or revoked?" At the time that he applied for employment, he did not know that his teaching certificate had been suspended. Witherspoon first learned that his certificate had been suspended during a conversation with an employee of the Education Practices Commission on November 7, 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Respondent's suspension and terminating his employment with the School Board of Broward County, Florida. DONE AND ENTERED this 10th day of May, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 10th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5767 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-6: Accepted. Paragraph 7: Sentences 1-7 are accepted in substance. The last sentence is rejected as unnecessary. Paragraph 8: Accepted. Paragraph 9: The first two sentences are accepted. The remainder is accepted in substance to the extent that factually he was suspended but rejected to the extent that it implies that Witherspoon knew he was suspended at the time he made the application and that he knowingly falsified his application. Paragraph 10: Rejected as constituting argument. Respondent's Proposed Findings of Fact. Paragraph 1: The third sentence is rejected as constituting argument. The remaining is accepted insubstance. Paragraph 2: Rejected as subordinate to the facts found. Paragraph 3: The first sentence is accepted in substance to the extent that there had been no problems with Witherspoon's teaching performance prior to the newspaper articles appearing concerning his arrest. The last sentence is rejected as not supported by the greater weight of the evidence. Paragraph 4: The first sentence is accepted to the extent that that is what the Petitioner charged. The last sentence is rejected as irrelevant since the Final Order came from the Education Practices Commission not from the Dade County School Board. Paragraphs 5-8: Accepted in substance. Paragraph 9: Rejected as constituting argument. COPIES FURNISHED: Carmen Rodriguez, Esquire Whitelock Soloff, Rodriguez and Williams, P.A. One East Broward Boulevard, Suite 601 Fort Lauderdale, Florida 33301 Mr. Richard Witherspoon Post Office Box 1795 Fort Lauderdale, Florida 33302 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Frank R. Petruzielo, Supertintendent Broward County School Board 600 Southeast Third Avenue Fort Lauderdale, Florida 33301-3125
Findings Of Fact On April 23, 1980, Petitioner applied for a teaching certificate in the areas of biology, chemistry, and general science. Petitioner had been certified by the State of Florida from August 20, 1974, through 1979 in these subjects. Petitioner allowed his prior certificate to lapse in 1979 as he was not sure he wanted to continue to be a teacher. At the time he allowed his certificate to lapse, he was involved in a drug problem, which drug problem resulted in the three arrests at issue herein. Petitioner was arrested in 1977, in 1978, and in 1979 for possession of controlled substances. Each of the arrests resulted in the withholding of adjudication. None of the arrests involved the sale of drugs, and Petitioner has never sold drugs. Petitioner has not used drugs since January of 1979, the date of his last arrest, and the drug used that date was a drug prescribed for him by a doctor. Prior to this application, Petitioner had reapplied for his teaching certificate. That application was denied since Petitioner was on probation from his arrests. Petitioner has completed all of his probationary periods. During the last year and a half, Petitioner has been teaching at the Miami Shores Preparatory School. He was hired to start a science department and has been teaching seventh and eighth grade life science, ninth and tenth grade biology, eleventh and twelfth grade honors biology, and eleventh and twelfth grade honors chemistry. He is also the swimming coach and serves as a counselor for seventh and eighth graders. Since he has been teaching at Miami Shores Preparatory School, a student has written an essay about him in describing the characteristics of an ideal teacher for a literary contest. The students at Miami Shores have dedicated the school yearbook to him. He has started a program at that school for students with drug problems by enlisting the aid of persons in the drug program which he himself successfully completed. Petitioner has had no difficulty in his present teaching position. However, in order for him to continue teaching at Miami Shores Preparatory School, a Florida teaching certificate is required. He is supported in his application for a teaching certificate by the principal of that school as well as by some of the other teachers, students, and parents of students at that school. Petitioner meets all requirements for issuance of a Florida teaching certificate, and the only basis for Respondent's denial of his application involves his three arrests.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered approving Petitioner's application for a Florida Teacher's Certificate, providing that Petitioner be issued a Teacher's Certificate on a probationary basis for a period of five years, and further providing that such certificate be automatically revoked if Petitioner be arrested for possession of any controlled substance during his five-year probationary period. RECOMMENDED this 24th day of September, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24 day of September, 1981. COPIES FURNISHED: Ronald C. LaFace, Esquire Roberts, Miller, Baggett, LaFace, Richard & Wiser Post Office Drawer 1838 Tallahassee, Florida 32302 Thomas F. Woods, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
