The Issue The issue for determination is whether Petitioner is eligible for registration as a check casher.
Findings Of Fact The Department of Banking and Finance (Respondent) is the state agency responsible for administering Chapter 560, Florida Statutes (1995). The said statute is referred to as the Money Transmitters' Code and in material part governs the registration of check cashers in the State of Florida. BT Professional Services, Inc. (Petitioner), is a registered Florida corporation. Petitioner's principal place of business is 4410 West 16th Avenue, Bay 8, Hialeah, Florida 33012. By application dated April 8, 1996, Petitioner made application to register as a money transmitter, i.e., check casher, pursuant to Chapter 560, Florida Statutes. The application was signed by Omar Toledo, as Petitioner's president. The application indicated, among other things, that Beatriz Toledo was Petitioner's vice-president; that she was the person from whom additional details, regarding the application, could be obtained; and that her contact address was 4410 West 16th Avenue, Bay 8, Hialeah, Florida 33012, the same as Petitioner's address. Omar Toledo and Beatriz Toledo are husband and wife. Respondent received the application on April 12, 1996, together with a biographical report of Omar Toledo, as one of Petitioner’s directors. Upon review, Respondent determined that the application was incomplete. In addition to errors and omissions, the biographical report for Beatriz Toledo, as one of Petitioner's directors, was not submitted with the application. By letter dated May 7, 1996, and addressed to Mrs. Toledo, Respondent requested additional information and the correction of errors and omissions. Among other things, the letter requested Mrs. Toledo's biographical report. Moreover, the letter dated May 7, 1996, notified Petitioner, among other things, that it had sixty (60) days to provide the requested information; and that failure to comply with the letter may be grounds for denial of the application. On May 30, 1996, Respondent received Petitioner’s response, through Mrs. Toledo, to the letter dated May 7, 1996. Petitioner complied with almost all of the letter’s requests. However, instead of submitting a biographical report for Mrs. Toledo, Petitioner submitted a biographical form for Mr. Toledo. The biographical form is an addendum to the application. Respondent provides the form to an applicant. By letter dated June 6, 1996, and addressed to Mrs. Toledo, Respondent, among other things, acknowledged receipt of the submitted information and again requested Mrs. Toledo to complete and submit the biographical report on her. Further, Respondent advised Petitioner that it had until July 8, 1996, to provide the requested information. Moreover, Respondent again notified Petitioner that failure to comply with the request may be grounds for denial of the application. On June 24, 1996, Respondent received Petitioner’s response to the letter dated June 6, 1996. Responding to the letter dated June 6, 1996, Petitioner submitted a biographical form on Mrs. Toledo. However, the biographical form was incomplete in that questions 6A, C, and D of the biographical form were not answered. By letter dated July 11, 1996, and addressed to Mrs. Toledo, Respondent, among other things, acknowledged receipt of Mrs. Toledo's biographical form, 1/ but again notified her that the biographical form was incomplete in that questions 6A, C, and D were not answered. The letter also notified Petitioner that it had until July 22, 1996, to provide the requested information and that failure to comply with the request may be grounds for denial of the application. Respondent did not receive a reply to the letter dated July 11, 1996. The letter was not returned by the U.S. Postal Service. An inference is drawn that Petitioner received the letter. Petitioner did not provide Respondent with a completed biographical form or report on Mrs. Toledo. Respondent performed a background investigation upon Omar Toledo and Beatriz Toledo. The investigation revealed that both Mr. and Mrs. Toledo were under indictment for numerous criminal offenses involving money laundering. By letter dated November 22, 1996, Respondent notified Petitioner of its intent to deny Petitioner's application to register as a check casher. Respondent cited several grounds for the denial. As a ground for the denial, Respondent cited that both Mr. and Mrs. Toledo were subjects of pending criminal prosecution. Mr. and Mrs. Toledo were charged in a superceding indictment and were being prosecuted regarding money laundering in the case styled United States of America v. Omar Lazaro Toledo and Beatriz Toledo, Case No. 96-599-Cr-UUB(s), U.S. Southern District of Florida. At the time of the formal hearing in the case sub judice, criminal charges remained pending against Mrs. Toledo. 2/ Prior to the formal hearing in the case sub judice, Respondent was granted leave to amend the denial letter to include, as a ground for denial, Mr. Toledo being convicted of some of the criminal charges in the federal money laundering case. Mr. Toledo had been found guilty of three of the counts of criminal conduct. The three counts (Counts VIII, IX, and X) involved the knowing and willful failure to file a report required by federal law regarding currency transactions. He did not appeal his convictions. 3/ As an additional ground for the denial, Respondent cited that Petitioner failed to correct the omission of a completed biographical report for Mrs. Toledo. An incomplete biographical form for Mrs. Toledo was submitted to Respondent in that Mrs. Toledo failed to respond to questions 6A, C, and D. Mrs. Toledo failed to respond to the said questions even after being requested to do so more than once by Respondent. Also, as a ground for the denial, Respondent cited that Petitioner knowingly failed to comply with the advertising prohibition for a non-registered check casher, pursuant to Chapter 560, Florida Statutes. On or about April 4, 1996, Petitioner, through Mrs. Toledo, was notified by one of Respondent's representatives, an inspector, that registration with Respondent was required for Petitioner to advertise check cashing services. Even after the notification, Petitioner continued to advertise check cashing services by way of a sign, promotional display, on the outside of Petitioner's facility indicating check cashing services. The advertising of check cashing services on the outside of Petitioner’s facility continued beyond the date of the denial letter through February 1997. Moreover, after receiving the denial letter dated of November 22, 1996, Petitioner advertised check cashing services from March 1997, through July 7, 1997, by way of a sign, promotional display, on the inside of Petitioner's facility indicating check cashing services. Further, as a ground for the denial, Respondent cited that Petitioner had made a material misrepresentation regarding Mr. Toledo's prior arrests. Petitioner submitted a biographical report on Mr. Toledo, which, among other things, requested information regarding Mr. Toledo’s arrests, charges and/or convictions of a criminal offense, to which Mr. Toledo responded. Also, Petitioner submitted a biographical form on Mr. Toledo, which, among other things, requested information regarding his prior arrests in question 6A, to which Mr. Toledo did not respond. But, Mr. Toledo, as Petitioner’s president, did respond to a question on the application, question 6 of Section 1, as to his "criminal convictions, pleas of nolo contendere, and cases of adjudication withheld." 4/ Furthermore, pursuant to a request from Respondent, Mr. Toledo provided to Respondent related documents pertaining to the criminal court cases by way of a docket printout from the Criminal Justice Information System. 5/ However, at no time did Mr. Toledo disclose that on May 18, 1995, he was arrested and charged with criminal assault. 6/ At no time did Petitioner seek to amend its application dated April 8, 1996. On June 1, 1996, Mr. Toledo resigned as Petitioner's president and assigned all of his stock to Mrs. Toledo who became the president and who had all of the stock. At no time after the resignation and assignment did Petitioner seek to amend its application of April 8, 1996. On or about July 14, 1997, Petitioner made Respondent aware of Mr. Toledo's resignation and assignment through Petitioner’s response to interrogatories.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Banking and Finance enter a final order denying BT Professional Services, Inc.’s application for registration as a check casher. DONE AND ENTERED this day of December, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this day of December, 1998.
The Issue Among the issues in this case are: Whether petitioner proved that respondent holds a currently valid teacher's certificate? Whether a court order sealing records of a criminal prosecution bars action by petitioner against respondent on account of the facts underlying the prosecution? Whether the evidence showed that what was seized was actually marijuana? Whether the evidence established constructive possession? Whether the evidence showed that respondent's effectiveness as a school board employee had been reduced?
Findings Of Fact In answering the original administrative complaint, respondent admitted the allegation that he "holds [teacher's] certificate number 303969, rank two (2), valid through June 30, 1981, covering the areas of French, English, and Junior College." The amended administrative complaint alleges that the same certificate is valid through June 30, 1991. Neither the certificate itself nor any other evidence on this point was adduced at hearing. THE MERITS After a telephone caller's report that a marijuana plant was visible in an apartment window was relayed by the Clewiston police dispatcher to Corporal Deese and Patrolman Meskin, they spotted the plant through a window on the ground floor of the Von Mach apartment building. Corporal Deese examined the specimen with binoculars, and photographs were taken. That afternoon, a warrant was issued authorizing the search of the corner apartment in which the plant stood. THE ARREST The following day, June 13, 1981, Officers Deese, Meskin and Hand executed the warrant. When they knocked at the apartment door, respondent Walton called out, "Come in." In one bedroom, they found towels lying around and men's clothing. They also found a marijuana plant and another species of plant growing in pots. A mirror had been positioned to reflect the sun's rays onto the plants. The only other bedroom in the apartment seemed to unoccupied. The mattress in that bedroom lacked sheets. Respondent told them his roommate had moved out. Daniel Fairchild, employed, like respondent at the time, as a teacher at Clewiston High School, lived in the apartment from the beginning of October until mid-December, 1980. Norman Vaughn shared the apartment with respondent from early January of 1981, until June 12, 1981. When patrolman Meskin asked Mr. Walton to produce any other drugs in the house, respondent retrieved a plastic bag containing marijuana from among some newspapers on the floor. The searching party also seized a stained hemostat and a package of rolling papers. EFFECTIVENESS In the spring of 1981, there was "a widespread incident involving students in use of drugs" (T. 111) at Clewiston High School, with which respondent had nothing to do, as far as the evidence showed. Some students were expelled for the remainder of the school year, as a result. Mr. Walton's arrest for possession of marijuana was reported in the Clewiston News, a newspaper of general circulation in Hendry County, and became general knowledge in Hendry County. There was no evidence that any member of the public in Broward County had learned of Mr. Walton's arrest when these proceedings began. Respondent was employed by the Hendry County School Board on an annual contract basis. For reasons unrelated to this case, the 1980-1981 school year was his last as an employee of the Hendry County School Board. He finished working for the Board on June 12, 1981. PROPOSED FINDINGS CONSIDERED Both petitioner and respondent made post-hearing submissions, and their proposed findings of fact have been duly considered and, in large part, adopted in substance. To the extent they have been rejected they have been deemed irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint. DONE AND ENTERED this 27th day of January, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 27th day of January, 1983. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 Richard H. Frank, Esquire 341 Plant Avenue Tampa, Florida 33606 Donald Griesheimer, Executive Director Department of Education Education Practices Commission The Capitol Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA EDUCATION PRACTICES COMMISSION RALPH D. TURLINGTON, as Commissioner of Education, Petitioner, vs. CASE NO. 82-128 LEWIS SIMPSON WALTON, Respondent. /
The Issue Whether the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, was correct in its denial of the Petitioner's application and request to transfer a Series 4-COP beverage license for the premises, Paradise Inn.
Findings Of Fact The facts reveal that sometime in December, 1978, the Petitioner, James Sylvester Cooper, determined to apply for the transfer of a Series 4-COP beverage license which originally had been issued to the Petitioner's since deceased father. The license was issued by the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco. The license which had been held by Mr. Cooper's father was for the premises known as Paradise Inn, Madison Heights, 518 Alabama Street, Daytona Beach, Florida. In pursuit of the request for transfer, the Petitioner completed a personal questionnaire form which was given to him by the Respondent, and may be found as the Respondent's Composite Exhibit No. 2 admitted into evidence. In actuality, a form was completed for this license transfer and the transfer of a license in a companion application, D.O.A.H. Case No. 79-532. The Petitioner also completed a fingerprint card by affixing his fingerprints to that document, and the document may be found as the Respondent's Exhibit No. 1 admitted into evidence. The fingerprint card was submitted in December, 1978. The questionnaire was completed on January 3, 1979. Both items were filed with the Respondent in its office located in Daytona Beach, Florida. When the Petitioner completed the questionnaire form, his initial response to question No. 6 was, "No". The thrust of the question No. 6 was to ask the applicant if he had been arrested for the violation of any other laws of the State of Florida not enumerated in questions Nos. 1 through 5 of the first page of the questionnaire or arrested for the violation of laws of other states or the United States, excluding minor traffic violations and instructed that if the answer was, "Yes," that details be provided concerning the nature of the events surrounding the arrest. When the questionnaire which was submitted on January 3, 1979, was reviewed by employees of the respondent, it was noted that the answer to question No. 6 was in the negative, notwithstanding the fact that the Respondent had received information from the Florida Department of Law Enforcement that possible charges for carrying a concealed firearm in Daytona Beach, Florida, and for issuing a check for which insufficient funds were available to honor the check, which latter charge purportedly was brought in Duval County, Florida. Officer Blanton, the employee of the Respondent who made this discovery, tried to contact the Petitioner in person and was unsuccessful. Later, Officer Blanton was able to contact Mr. Cooper by telephone and to request that the Petitioner come in to discuss the answer to question No. 6. Cooper agreed and came to the office of the Respondent in Daytona Beach on January 8, 1979. At the meeting on January 8, 1979, when confronted with his answer to question No. 6, the Petitioner responded that he did not understand that question to mean that you had to indicate all arrests. The Petitioner said he understood the question to mean that only convictions should be reported. Once the Petitioner had teen specifically advised by the Respondent's employee that the form, as it suggested, required an applicant to indicate arrests, he admitted that he had been arrested by the Daytona Beach, Florida, Police Department for carrying a concealed firearm, and stated further that the adjudication of quilt in that matter had been withheld. Cooper said that he would verify this disposition of the case and report back to the Respondent to establish the fact of the disposition by providing the Respondent with an official record. At the meeting referred to above which was held on January 8, 1979, between Officer Blanton and the Petitioner, Mr. Cooper denied any arrest having occurred in Duval County, Florida, relating to a worthless check. The Petitioner left the office of the Respondent, to shortly return with his attorney, Mr. Moore, and a further conversation was held on January 8, 1979, pertaining to the Petitioner's arrest record. A discussion was held concerning the carrying of a concealed firearm case in Daytona Beach, Florida, and the Duval County, Florida, worthless check allegations. Again, the Petitioner admitted being arrested for carrying a concealed firearm, but denied any involverent in a worthless check charge in Duval County, Florida. In view of this further denial of a knowledge of a Duval County, Florida, charge, Officer Blanton indicated that he would check into the matter further. After the second meeting between the Respondent's employee and the Petitioner, and on the same day, January 8, 1979, the employee of the Respondent discovered another allegation of an arrest which had taken place in Daytona Beach, Florida, for the offenses of loitering and prowling. On January 10, 1979, the Petitioner reported back to the office of the Respondent in Daytona Beach, Florida, and amended his application form by striking in the column the word, "No" and writing in the column the word, "Yes" and indicating that the carrying a concealed firearm complaint had taken place in 1974. In support of his position he produced documents that showed that the disposition of that case had been: withhold adjudication of quilt and place the Petitioner on two years unsupervised probation. When questioned about the loitering and prowling arrest, the Petitioner initially denied that arrest, but later indicated that he thought it was vagrancy. Subsequent to that discussion, he indicated on the application form that a loitering charge had occurred in June, 1976, for which he had paid a $35.00 fine. In the meeting on January 10, 1979, when the employee of the Respondent interrogated Petitioner further about any incidents in Duval County, Florida, involving a worthless check, the Petitioner again replied that he had no connection with such a charge. On January 11, 1979, the Respondent, in its Daytona Beach office, received a reply to its inquiry about the Duval County, Florida, case for a worthless check. That response may be found as Respondent's Composite Exhibit No. 4 which is a transmittal sheet and an arrest and booking report. The arrest and booking report shows that the Petitioner, James Sylvester Cooper, had been arrested in May of 1975 in connection with a check charge. Officer Blanton then contacted Mr. Cooper and indicated that the Respondent would need to know the disposition of the Duval County, Florida, charge, to which Cooper replied that be would go to Jacksonville and take care of the matter by bringing back a disposition of the case. Later in the month, Mr. Moore, the Petitioner's attorney, spoke with Officer Blanton and asked for the case number of the Duval County, Florida, allegation against the Petitioner. Mr. Moore was given the information and stated he would discover the nature of the allegation in Duval County and contact the Respondent when he had ascertained the facts of those charges and had attended them. On January 31, 1979, Officer Blanton saw that the application for the license was submitted through channels to the Director of the Division of Alcoholic Beverages and Tobacco, in Tallahassee, Florida. The application was reviewed in view of the answer to question No. 6 as amended, on January 10, 1979, which answer reflected the carrying of a concealed firearm charge and the loitering charge in Daytona Beach, but did not reflect the worthless check charge in Duval County, Florida. Acting in view of this information, the Director issued a letter on February 7, 1979, indicating his intent to deny the application for transfer of the license. In that letter the operative provisions of the statement of denial were couched in this language: The applicant's failure to truthfully answer questions concerning his qualifications and his criminal history record are indicative of a lack of good moral character. Subsequently, in keeping with his representations, the Petitioner's attorney went to Jacksonville and discovered that there was outstanding a case against the Respondent for failure to appear in connection with a worthless chock charge, and this allegation was pursuant to Section 300.405, Florida Statutes. A disposition of the case was achieved on March 8, 1979. A copy of the disposition may be found in the Respondent's Exhibit No. 3 admitted into evidence. In the course of the hearing in this cause, the Petitioner testified about the matter in Duval County, Florida, which dates from May, 1975. Petitioner's explanation was that he had some occasional contact in Duval County, Florida, in 1974 and 1975 and that while living there he mistakenly assumed that his roommate would pay the landlord, which did not occur, and led to some type of claim by the landlord. The Petitioner stated that although he does not recall a summons being served on him, he does recall that his roommate contacted him to tell him about an outstanding worthless check, for which he went voluntarily to the Judge's Chambers, then reported to be fingerprinted in the jail area and reported back to the Judge's Chambers and paid off the check through the Judge's secretary. In fact, the Petitioner had been arrested in Duval County, Florida, in the year 1975, in connection with a worthless check claim and the facts of this case indicate that he had a knowledge of that case when he answered question No. 6 in the submitted questionnaire on January 3, 1979, as amended on January 10, 1979. This is borne out by the facts which were revealed in the process of checking on the arrest allegation through the office of the Respondent and the answers that the Petitioner gave to the representative of the Respondent, and by the Petitioner's admission in the course of the hearing that he had been fingerprinted and taken to court in connection with a worthless check charge and by his grudging recognition in the course of the hearing that the events and charges complained about in the Respondent's Exhibit No. 3; i.e., the arresting and booking report and attendant disposition of the case, were matters which took place in Duval County, Florida, and matters that pertained to him. Likewise, the Petitioner only admitted the loitering arrest and conviction after being confronted for a third time, the first time being in filling out the form which was handed in on January 3, 1979; the second occasion of January 8, 1979, when he was told that the questionnaire, just as it said, required that all arrests be reported; the third instance, January 10, 1979, by direct questioning concerning the offense in which he initially denied the loitering arrest. Finally, the Petitioner in his initial completion of the questionnaire, even though the questionnaire clearly said to report arrests, did not do so until told to do so specifically on January 8, 1979, and then he only reported the arrest for carrying a concealed firearm. In reading the basis of the denial of the license, which has been set out above, it could be read to address the issue of the answers which the Petitioner gave in the application questionnaire on the basis that those answers were not truthful and the additional allegation that the Petitioner's criminal history record both show a lack of good moral character as described in Section 561.15, Florida Statutes; however, in the course of the hearing, the Respondent's counsel asserted that the true basis of denying the license application was related solely to whether the answers which the Petitioner gave on the questionnaire were truthful concerning the subject of his criminal history record, and that the denial was not related to any criminal history per se. Therefore, this Recommended Order is rendered in keeping with the Respondent's counsel's representation and the Petitioner conducted his case to comport with that limitation. Having established the nature of the statement of denial the question becomes one of whether the answers to question No. 6 on the personal questionnaire are of such a caliber that they demonstrated a lack of good moral character on the part of the Petitioner to the extent that he is not entitled to be the recipient of the beverage license that he has applied for. Subsection 561.15(1), Florida Statutes, states: 561.15 Licenses; qualifications required.-- (1) Licenses shall be issued only to persons of good moral character, who are not less than 18 years of age. Licenses to corporations shall be issued only to corporations whose officers are of good moral character and not less than 18 years of age. There shall be no exemptions from the license taxes herein provided to any person, association of persons or corporation, any law to the contrary notwithstanding. When considered in view of that standard, the facts in this case demonstrate that the Petitioner does not show the requisite good moral character expected of a person licensed by the Division of Alcoholic Beverages and Tobacco. The Petitioner's response to question No. 6, a legitimate inquiry made to him by the Respondent, ranged from equivocation to undeniable misstatements of the facts known to him and by these actions the Petitioner has shown himself to be a person not to be entrusted with a beverage license. The Petitioner, the record will show, has had some experience as a law enforcement officer and for this reason, his counsel contended that the Petitioner would not be so bold as to erroneously answer the questionnaire, knowing that the fingerprint identification card would be the vehicle by which a successful records check could be conducted and the arrests discovered. The tone of the testimony in this case as concluded puts that theory to rest. There is, however, another view which can be asserted on the question of the significance of the Petitioner's police experience. That view is that the Petitioner indeed knew the difference between what it meant to be convicted of an offense as contrasted with being arrested, and even with this knowledge selected the course of conduct which he pursued in answering question No. 6 on the application form. Finally, it was shown in the course of the hearing that the Petitioner had lived at certain residences in Duval County, Florida, which residence addresses are not reflected in the answers to the questionnaire and had held employment with an organization known as General Wholesale, which statement of employment is not reflected in the answers to the questionnaire. These items were first revealed at the hearing. These facts were made known subsequent to the Director's letter denying the application which was dated February 7, 1979, and for that reason they did not constitute the basis for denying the application and have not been relied upon by the Hearing Officer in reaching the factual conclusions, conclusions of law and recommendation in this matter.
Recommendation It is recommended that the Petitioner's application for transfer of the Series 4 COP beverage license connected with the premises, Paradise Inn, be DENIED. DONE AND ORDERED this 29th day of June, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1979. COPIES FURNISHED: Reginald E. Moore, Esquire 724 Second Avenue Post Office Box 1848 Daytona Beach, Florida 32015 Francis Bayley, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
The Issue Should the Respondent's license as a real estate salesperson in the State of Florida be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to this proceeding, the Respondent was licensed as a real estate salesperson in the State of Florida, having been issued license number 0605704. The last license was issued as a voluntary inactive salesperson with an address of 820 Manatee Avenue, Ellenton, Florida 34222. By application dated September 3, 1993, and received by the Department on September 10, 1993, Respondent applied to become a real estate salesperson in the State of Florida. Question 9 on the Application provides as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? The question applies to any viola- tion of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication with- held, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungment or sealing prior to answering "NO". If you answered "YES", attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state, and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent answered "YES" to question 9 and provided information about one arrest for reckless driving in September 1984. A criminal background check performed as part of application process indicated that Respondent had also been convicted in June 1987 of reckless driving and had pled nolo contendere (no contest) to a felony charge of obtaining property by worthless check. Adjudication was withheld and Respondent received credit for time served. The Respondent did not have a criminal background check performed. Therefore, he failed to report the reckless driving conviction in June 1987 because he had forgotten about the conviction. As to the worthless check charge, the Respondent did not consider it part of his record since the charge against him for issuing worthless check was a mistake, and reimbursement was made on the check. The mistake was that Respondent's brother, Bret Gardner had signed a check for Respondent to purchase materials. However, in the process of using the check to purchase the materials the Respondent identified himself with his driver's license and his driver's license's number was placed on the check.. Since their names are similar and they are close to the same age (difference of two years), the Respondent was charged with issuing the worthless check rather than Bret Gardner. There was one other occasion in the past where Respondent was mistaken for Bret Gardner in a court proceeding. Apparently, the no contest plea was the easiest way for the court to clear up the matter. Respondent attended a real estate school operated by his mother, Claudia Gardner, and before filing his application the Respondent discussed Question 9 with his mother. Since the Respondent had been charged with other traffic violations (speeding tickets, etc.) it was his mother's opinion that by listing the one conviction - and if others should have been reported - then it would show that the Respondent was not attempting to conceal any convictions. Hindsight is 100 percent better than foresight. Respondent's mother's advice surely proves this out. The failure to furnish all the information concerning his criminal record was not intentional on the part of the Respondent. However, this does not relieve him of the responsibility to have made an effort to check his record, particularly since he was advised of its importance by the last paragraph in question 9 which was emphasized by being in bold print. Furthermore, having questioned his mother concerning the necessity to report his record - even assuming that time was of the essence in making his application - there was no reason why the Respondent could not have checked with the Division of Real Estate to determine if he should follow through on a check of his record so as to advise the Division of Real Estate of any changes to be made prior to the issuance of the license. The Department presented no evidence that had the Florida Real Estate Commission (Commission) been presented Respondent's complete record it would have denied him licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and after having reviewed considered Rule 61J2-24.001, Florida Administrative Code, concerning disciplinary guidelines and the recommended range of penalties for a violation of Section 475.25(1), Florida Statutes, and considering mitigating circumstances as provided for in Rule 61J2-24.001(4), Florida Administrative Code, it is recommended that the Commission enter a final order finding Respondent guilty of having violated Section 475.25(1)(m), Florida Statutes. It is further recommended that the Respondent be assessed an administrative fine in the amount of $300.00, and his license be suspended for a period of six months, the suspension be stayed and the Respondent's license be placed on probation for a period of six months under terms and conditions deemed appropriate by the Commission. That upon the probation being successfully completed, the suspension of the Respondent's license would be lifted subject to any further terms and conditions the Commission may deem appropriate. DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4165 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 8 are adopted in substance as modified in Findings of Fact 1 through 11 in the Recommended Order. Respondent Gardner's Proposed Findings of Fact: 1. The Respondent's proposed findings of fact are intermingled with argument and other matters not considered findings of fact, and are not in numbered paragraphs nor do the lend themselves to numbering. However, I have responded to what I consider proposed findings of fact and have adopted them in substance as modified in Findings of Fact 1 through 11 in the Recommended Order. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bart Claude Gardner 820 Manatee Avenue Ellenton, Florida 34222 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact At all times here relevant Respondent was licensed as a medical doctor by the Florida Board of Medical Examiners and holds license No. ME 005851. On 1 November 1979 Respondent was adjudged guilty of possession of a controlled substance with intent to distribute and possession of a controlled substance by deception. He was sentenced to an "indeterminate term of from six (6) months to five (5) years" and was committed to the Lawtey Correctional Institute, Lawtey, Florida. John Carroll, a narcotics detective with the Palm Beach County Sheriff's Department, testified that he had conducted the investigation which led to the arrest and conviction of Respondent. This witness had no personal knowledge that Respondent provided one Fowler with blank prescription forms or forms containing only Respondent's signature, that Fowler paid Respondent cash, or that Respondent knew or should have known that Fowler was obtaining controlled substances with these forged prescriptions and selling these substances on the street. In his testimony Respondent admitted that he could have approved some forged prescriptions when called by the pharmacist to verify the prescriptions without knowing who the prescriptions were for.
Findings Of Fact On October 31, 1979, Petitioner signed, under oath, Respondent's application form for an unarmed guard license, swearing that the information contained in the application is true and correct. In answer to Question 2 of the application, Petitioner gave his name as Paul Edward Kane. Question 3 of the application reads: "Have you ever been known by any other name other than that given above?" Petitioner answered in the affirmative and listed the following names: Consumer Credit Corp., Walter D. Wadsworth, Mr. E. Samuels, M. Ross, Mr. Frank, and "others." He did not advise Respondent that he had used the name Paul E. Smith both in Tampa and while he was in the U.S. Army. He additionally failed to list the name Paul H. Smith, although he has also used that name. Question 9 of the application form requests an applicant's date of birth. Petitioner gave his as January 18, 1926. Although that is his actual birth date, he has also used January 18, 1930, as a birth date while in the military service, and has used others from time to time. Question 12 of the application form requests information regarding military service. Petitioner advised that he had served in the U.S. Army from September, 1947, through November, 1953, and had received an honorable discharge. He neglected to advise Respondent that he had served on two occasions and had received two discharges. One of those discharges was a dishonorable discharge resulting from a court martial conviction on charges in Japan, which dishonorable discharge apparently was later changed to a general discharge. His other term of service did result in an honorable discharge. Question 13 on the application form requires a listing of all arrests. Petitioner advised that he had been arrested for driving while intoxicated in 1975 and in 1977, and had been fined as a result of each of those arrests. Petitioner withheld any mention of the following arrests: 1952, robbery and assault with a deadly weapon; 1952, robbery and assault with a deadly weapon; 1954, contributing to the delinquency of a minor; 1954, violation of probation resulting from one of his robbery and assault with a deadly weapon arrests; 1963, destroying personal property; 1971, two separate arrests involving four worthless checks; 1972, rape; 1973, worthless check; 1977, forgery; and 1979, two counts of violation of probation. He has also been arrested for driving without a license. While in the military service, Petitioner was charged with assaulting a Japanese national by shooting him in the face with a pistol. A court martial sentenced him to two and one-half years imprisonment. Petitioner is presently on probation pursuant to a worthless check conviction, and his probationary period will not terminate until October 31, 1982. Although not all of the arrests listed above resulted in a conviction, Petitioner was minimally convicted of one of the 1971 worthless check charges and of the charges against him while he was in the military service. Petitioner's witness had no personal knowledge of Petitioner's application, his character, or his history.
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 a Class "F" Unarmed Security Guard License. RECOMMENDED this 27th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1980. COPIES FURNISHED: Mr. Paul E. Kane 4621 Pearl Street Tampa, Florida 33611 W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 The Honorable George Firestone Secretary of State State of Florida The Capitol Tallahassee, Florida 32301
The Issue The issue presented for decision herein is whether or not Respondent, Hazel Marie Bowling, is qualified to hold a Certificate as a law enforcement officer in Florida.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, stipulation of facts, and the entire record compiled herein, hereby make the following relevant factual findings. Respondent, Hazel Marie Bowling, was certified by the Criminal Justice Standards and Training Commission on July 3, 1979, and was issued Certificate Number 02-23702 as a law enforcement officer. On approximately December 17, 1981, Respondent was adjudicated guilty of the offense of filing a false report to law enforcement authorities, a misdemeanor involving perjury or false statement. (Stipulation of the parties) As mitigating factors, Respondent, through representative Henry C. Jones, pointed out that motions for a new trial and for an arrest of the judgment, referred to hereinabove, had been made but were "erroneously" decided, at least in the minds of Respondent and representative Jones. Respondent also points to the fact that she has been hired by the Hendry County Sheriffs" Department as a dispatcher and that to obtain that employment, she was subjected to a background check and was cleared by that agency for the dispatcher's position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order revoking Respondent's certification as a law enforcement officer in Florida. RECOMMENDED this 7th of January, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 9th day of January, 1985.
Recommendation By reasons of the foregoing Facts and Conclusions of Law, I recommend that the Respondent's license be revoked. DONE and ORDERED this 4th 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
The Issue Whether the Petitioner's request for an exemption pursuant to Chapter 435, Florida Statutes, should be granted.
Findings Of Fact On September 23, 1995 Hunt was charged with battery on his wife. The facts surrounding this incident are limited, but essentially the evidence indicated that Hunt struck his wife with a closed fist. Subsequently, Hunt pled no contest to the charge and was sentenced to 30 days imprisonment and nine months supervised probation. Approximately six months after the above-referenced battery, Hunt began work at Bayshore Cluster, a residential facility that houses non-ambulatory residents with severe developmental disabilities, located in Panama City, Florida. Based on Hunt's conviction of battery on his spouse, the Department advised Hunt that he was ineligible to hold a position caring for the developmentally disabled. The Department also advised Hunt that he was ineligible for a statutory exemption. Hunt contested the decision of the Department that denied him an exemption for employment in a position for which a security background check is required pursuant to Sections 435.03 and 435.04, Florida Statutes. The contest resulted in this Chapter 120 hearing before the undersigned Administrative Law Judge. At the hearing, Hunt failed to take responsibility for battering his wife. In fact, Hunt attempted to shift the blame for the incident by claiming that his wife initiated the dispute that resulted in the battery.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order and therein DENY Hunt's request for exemption. DONE and ENTERED this 29th day of October, 1996, in Tallahassee, Florida. WILLIAM A. BUZZETT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1996.
