The Issue Whether Petitioner’s application for an exemption from disqualification from employment in a position of trust, pursuant to sections 408.809 and 435.07, Florida Statutes,1/ should be granted.
Findings Of Fact Respondent is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner seeks employment in a position providing direct services to residents of a health care facility licensed under chapter 429 and, as such, is required to participate in Respondent’s background screening process pursuant to section 408.809. Petitioner submitted to the required background screening, which revealed that in 1999, Petitioner pleaded guilty to Felony Grand Theft/Bank Fraud in the United States District Court for the Northern District of Florida, Panama City Division, Case No. 5:99CR165PM. This conviction is akin to a felony grand theft conviction under chapter 812, Florida Statutes. The above-referenced criminal conviction makes Petitioner ineligible to provide a service in a health care facility licensed by Respondent unless Petitioner receives an exemption from Respondent, pursuant to section 435.07. Petitioner was also arrested in 2001 for Felony Aggravated Assault with a Deadly Weapon. On that charge, Petitioner pled guilty to a lesser included charge of simple assault, in Leon County Circuit Court, Case No. 01-1020AM. In addition, Petitioner was arrested in 2009 for felony charges of larceny/grand theft and exploitation of the elderly, charges which were ultimately dismissed due to the alleged victim’s death. Petitioner submitted an application for exemption to Respondent in accordance with sections 408.809 and 435.07 on or about April 30, 2014, and attended a telephonic hearing conducted by Respondent on June 17, 2014. The results of the June 17, 2014, teleconference are not at issue in this proceeding. Petitioner submitted another application for exemption to Respondent in accordance with section 435.07 on or about September 29, 2014. A telephonic hearing was conducted by Respondent on that second application for exemption on December 9, 2014, during which Respondent and Petitioner agreed to utilize the information obtained in the June 17, 2014, hearing regarding the 1999 Grand Theft/Bank Fraud and the 2001 Assault convictions, and to only discuss the circumstances surrounding the 2009 allegations of Grand Theft and Exploitation of the Elderly. A panel consisting of Respondent’s Operations and Consulting Manager for the Background Screening Unit, Sherry Ledbetter, and Respondent’s Health and Facilities Consultants, Kelley Goff and Zack Masters, also attended the telephonic hearing. Exhibit A-1, Respondent’s file for Petitioner’s exemption request, contains the exemption denial letter; internal Agency notes; panel hearing notes from both the June 17, 2014, and the December 9, 2014, teleconferences; Petitioner’s criminal history; Petitioner’s exemption application; arrest affidavits; conviction records; probation records; court records; and several letters in support of Petitioner’s requested exemption. Exhibits A-2 and A-3 are audio recordings of Petitioner’s teleconferences from her exemption hearings from June 17, 2014, and December 9, 2014. After the telephonic hearing, Respondent denied Petitioner’s request for an exemption, and Petitioner requested an administrative hearing. At the administrative hearing, Sherry Ledbetter testified that Respondent considered Petitioner’s entire case file, including all submissions received from Petitioner, and her explanations during the teleconferences when it determined that Petitioner’s request for an exemption should be denied. Respondent is legally authorized to consider all subsequent arrests or convictions, even if those arrests or convictions are not disqualifying offenses. Respondent considered Petitioner’s subsequent arrests and convictions during the review of Petitioner’s application for exemption. Respondent also considered the circumstances surrounding Petitioner’s most recent arrest, 2009 Grand Theft and Exploitation of the Elderly, even though the charges were dismissed. Petitioner admitted during the December 9, 2014, teleconference that the alleged victim made payments toward Petitioner’s bills while Petitioner was employed as her caregiver. Petitioner did not see any ethical issues with taking payments from a patient for whom she is caring, when she was already being paid by her employer for the services she rendered. Respondent explained, and it is found, that Petitioner did not appear to be totally candid and honest in her responses to the panel’s questions during the teleconferences and did not take responsibility for any of the criminal offenses. Although Respondent allows exemption applicants to have people speak on the applicants’ behalf at the teleconferences, Petitioner did not choose to have anyone speak on her behalf. Respondent considers any training, education, or certificates that an exemption applicant submits, but Petitioner did not have any such submissions, aside from Petitioner’s statement that she attended a budget class after her 1999 conviction. Based on Petitioner’s entire file and her responses during the teleconferences, Respondent determined that Petitioner did not satisfy her burden of proof by clear and convincing evidence of demonstrating rehabilitation from her disqualifying offense. Respondent maintains that Petitioner still poses a risk to the vulnerable population she would serve if employed at another health care facility. At the final hearing, Petitioner presented the testimony of Mutaqee Akbar, her criminal defense attorney for her 2009 charges of Grand Theft and Exploitation of the Elderly, who testified that the 2009 charges against Petitioner were dismissed by the prosecutor. On cross examination, Mr. Akbar admitted that the prosecutor cited the death of the alleged victim as the reason for the case’s dismissal. Mr. Akbar also admitted that law enforcement records reflect that the alleged victim made a statement to law enforcement prior to her death that she did not give her consent for the payments made toward Petitioner’s bills. In her testimony at the final hearing, Petitioner discussed how she is a changed person and has overcome a great deal of adversity to get to where she is now. Petitioner is presently involved in her community, specifically with her church and children’s schools, and takes care of her goddaughter and four children. Petitioner has a daughter who attends community college and Petitioner has been striving to set a good example for her daughter. Petitioner’s daughter, Sierra Thomas, who is in community college, gave credible testimony that she always favored her mother and did not believe the 2009 allegations against her mother. One of Petitioner’s good friends, Sheria Hackett, testified that Petitioner is a good person and deserves to be granted the exemption. Petitioner’s Exhibit P-1 is a composite exhibit consisting of additional information relating to Petitioner’s criminal cases and a letter from her probation officer. Petitioner’s Exhibit P-2 consists of a letter from Respondent dated May 22, 2014, requesting additional information from Petitioner during the exemption application process. Petitioner’s Exhibit P-3 consists of Petitioner’s petition for formal hearing. Although Petitioner appeared remorseful for her criminal convictions, considering all of the facts, circumstances, and evidence presented to AHCA and at the final hearing, it cannot be said that she proved by clear and convincing evidence that she is rehabilitated and should not be disqualified from employment. Moreover, AHCA’s intended action of denying Petitioner’s request for exemption was not an abuse of discretion. Therefore, Petitioner failed to meet her burden of showing that she is entitled to the exemption she seeks from Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 8th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2015.
The Issue Whether the Petitioner, Jose Iglesias (Petitioner or Iglesias) is entitled to attorney's fees and costs from the Complainant/Respondent, Robert Nieman (Respondent or Nieman), pursuant to Section 112.317(8), Florida Statutes (2004).
Findings Of Fact On August 14, 2003, the Respondent executed a Complaint that was filed with the Ethics Commission against the Petitioner. The Complaint alleged: Vice Mayor Iglesias is constantly interfering with Police Department’s day-to- day operations, and spreading false rumors about Police Department personnel. (Document #1) Vice Mayor Iglesias is causing a hostile work environment with constant complaints about officers. Vice Mayor Iglesias is constantly encouraging racism, pitting hispanics against white and black officers of the Department. Vice Mayor Iglesias filed false police reports (verbally) constantly for his own gain and benefits. Vice Mayor Iglesias’s 16-year-old son works part time in Town Hall. (Nepotism) Vice Mayor Iglesias improper use of his title by instructing the Town Manager to take actions on the police department, and even retaliation against the Police Chief and myself. Vice Mayor Iglesias ordered public records about himself not to be released, and then when they were released he insisted the secretary releasing the records be fired. (Document #1) Mr. Iglesias is falsely using the title of M.D. and in fact used this title to gain his seat on the council and then becoming Vice Mayor. When Mr. Iglesias has been questioned on this matter by residents in the past he has stated he was a brain surgeon, a foot doctor, and a chiropractor, and could not list a hospital where he did his residency to become M.D. (Document #2) At all times material to this case the Petitioner was Vice Mayor serving on the Town’s governing council. As such, the Petitioner was subject to the ethics provisions governed by the Ethics Commission. The Respondent is a town employee and serves as a police sergeant within the police department. Mr. Nieman has been so employed for over 20 years. After an investigation of three of the allegations set forth in the Complaint (only three were deemed legally sufficient to warrant investigation) and consideration of the Advocate’s recommendation, the Ethics Commission entered a Public Report on March 16, 2004. The Public Report dismissed the Complaint and closed the matter. On April 14, 2004, the Petitioner filed the instant Fee Petition pursuant to Section 112.317(8), Florida Statutes (2004). The Fee Petition alleged that the Complaint “is based on eight allegations, all of which are false and were known to be false by Complainant when he filed the Complaint.” Additionally, the Fee Petition stated the Complaint “was filed by the Complainant with the knowledge the Complaint contained one or more false allegations, or with reckless disregard as to whether the Complaint contained false allegations. ” At hearing, the Petitioner presented evidence as to the three allegations of the Complaint that were investigated and deemed legally sufficient to require an ethics investigation. Those allegations were: whether the Petitioner had filed false police reports for his personal benefit; whether the Petitioner had attempted to prevent the release of a public record or insisted on the firing of the person who had released the record; and whether the Petitioner had caused his son to be employed by the Town. The false police reports allegation stemmed from the Petitioner’s use of public roads for rollerblading. The Petitioner is an avid rollerblader and likes to rollerblade for exercise. The Petitioner opined that rollerblading puts less stress on his back and has less impact than jogging. The Petitioner frequently rollerblades on the public road within the Town. Automobile traffic on the road must go around the Petitioner in order to pass. It is the Petitioner’s position that since there is no sidewalk or shoulder suitable to rollerblade, he is entitled to use the road surface just as a pedestrian might use the road surface. The Petitioner skates toward the middle of the lane and not on the edge of the road surface because the roadway is better there for the rollerblades. The record in this case does not clarify whether the Petitioner skates with or against the traffic. In connection with the rollerblading, the Respondent believes that the Petitioner is not entitled to use the road as he does and that if the Petitioner did not use his position as a councilman for influence, he would be cited for rollerblading down the road as he does. Further, the Respondent maintains that the Petitioner has made verbal complaints against motorists who passed too close to him. The Respondent maintains that the verbal complaints are false in that the Petitioner is not entitled to use the roadway as he does and therefore cannot complain against motorists as he does. The Petitioner does not deny the activity. The Respondent has observed the Petitioner rollerblading down the road. The Respondent has not issued a citation to the Petitioner because he is assigned an administrative position within the police department and he believes he is not allowed to issue such citations. The Respondent based the allegation regarding this claim upon statements he has heard from police officers within the Town’s police department. The Respondent did not subpoena the officers to the hearing because he did not want to involve other Town employees in the matter. The Respondent does not have any evidence to support the allegation other than what he believed he had been told in his experience as a police officer for the Town. The record does not demonstrate any written record of either the Petitioner being cited for improper rollerblading or making a report against a vehicle. As to the second allegation that was investigated, a memo purportedly from the chief of police was released to a member of the public by accident. It was included within a stack of documents that had been requested by a private citizen. The document stated in part: SUBJECT: Ethics violations and continual interference of day-to-day police operations by the Vice Mayor Iglesias This memorandum is to inform you [Mayor Michael Addicott] of constant harassment of police personnel and interference in daily operations by the new vice mayor. The Petitioner admitted that he was concerned that the document had been released in error and that the person who wrongly released a document should be disciplined. The Petitioner did not know about the document before it was released. He did not attempt to prevent the release of the document. Instead, the Petitioner sought to, after-the-fact find out why the document had been released, if the document was in fact a public record subject to release, and if the employee should be disciplined for the release. The document in question was a public record, was subject to public release, and the employee was not disciplined for its release. Nevertheless, the Petitioner did require a second (and arguably third opinion) regarding whether the document constituted a public record. In the meanwhile, the controversy within the Town over whether the document should have been released was widely discussed among Town employees. The Respondent filed his claim based upon several reports that the Petitioner wanted the secretary who released the report fired. One of the Respondent’s sources was the Chief of Police. The Respondent did not question the veracity of the police chief. At hearing, the Petitioner did not deny that discipline would have been appropriate if the release of the document were shown to be erroneous. The Petitioner acknowledged that the Town pursued a full review of the matter and that he was among those who called for the review. As to the third allegation (that the Petitioner caused his son to be hired by the Town), the Respondent believed that once the Petitioner was elected as a councilman that the son was not eligible to work for the Town. The Respondent thought that rules prohibiting nepotism applied to the Petitioner’s son and that as such the son could not continue to work for the Town. The Respondent based this interpretation on a general but un- researched idea about nepotism. He also discussed this matter with another Town employee who also thought the son was not eligible to work for the Town. In fact, the Petitioner’s son, Joseph, started working for the Town in a part-time position prior to the Petitioner being elected to office. After the Petitioner became Vice Mayor, the son continued with his duties but was moved from an independent contractor status to part-time employee status. The son then received a raise in his hourly rate of pay when the Town employees also received a raise. The Petitioner did not supervise the son’s employment and did not direct the son’s work. The record is unclear as to whether the Petitioner voted on the pay raise or not. At hearing the Respondent maintained that he had had numerous conversations with persons at the Ethics Commission who recommended that he add the information regarding the nepotism claim to his allegations. He admitted that he did not independently check any laws or rules that might pertain to nepotism before filing the claim. Much of the Respondent’s attitude and comments in connection with the Petitioner must be viewed in the context of the happenings within the Town. For unknown reasons, the Town, its employees, and the governing council were in a state of change and confrontation. The Respondent and the Petitioner apparently do not relate well to one another personally. The Respondent is suspicious of the Petitioner’s medical credentials and is uncertain as to why the Petitioner holds himself out as an “M.D.”, when he is not licensed nor is he eligible to be licensed as a medical doctor. The Petitioner believes the Respondent holds some animosity toward him for unknown reasons. Further, because the Respondent admitted he believes the Petitioner is arrogant, that belief somehow that demonstrates malice toward the Petitioner. The questions of whether the Petitioner is credentialed to be a medical doctor, whether the Petitioner attempted to interfere with the police department, or whether the Petitioner spread false rumors regarding the police department were not investigated and do not support, if true, an ethics violation. If attorney's fees and costs are entered in this cause the beneficiary of an award will be the Town. The Petitioner has incurred no expenses or costs associated with the defense of the Complaint. The Town agreed to pay and has paid all attorney's fees and costs associated with this case. The Petitioner presented several invoices from the Law Offices of Stuart R. Michelson that were alleged to pertain to the instant case. The Petitioner also presented testimony from an expert witness who was to be paid by the Town. That witness, an attorney, was to be paid $200.00 per hour for his efforts in this matter. Although the Petitioner’s expert testified that the hourly rates for fees applied in this cause were reasonable, there was no evidence that the time was actually expended in connection with the instant case. There is no way to know if the services were performed for the defense against the Respondent’s Complaint. The expert merely opined that the invoices he reviewed were reasonable. He maintained that the Petitioner should recover $27,455.53 in this matter.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Fee Petition in this case. S DONE AND ENTERED this 9th day of June, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 9th day of June, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Robert Nieman 9731 Southwest 12th Street Pembroke Pines, Florida 33026
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In 1980 or 1981, records of a criminal charge involving the petitioner Stephanie D. Grooms were ordered sealed. The attorney representing petitioner in that proceeding was Abe Rigau, now deceased. In late July of 198G, petitioner was charged by a two- count information with the crime of issuing worthless checks. She entered a plea of guilty to the charges and the County Courts in and for Hillsborough County withheld adjudication of guilt and imposed a fine of $35 on August 25, 1982. In the Fall of 1984, petitioner was a candidate for the Office of County Commission of Hillsborough County. During the campaign, a newspaper reporter contacted the petitioner in reference to a criminal charge involving worthless checks. Concerned about the election and the implications a criminal charge would have upon her political aspirations, petitioner telephoned Roger Rigau, an attorney and the son of deceased Abe Rigau, for advice. Roger Rigau recalls that petitioner telephoned his office between September and November of 1984. It was Mr. Rigau's impression that petitioner contacted him because she was concerned that information concerning her previous charges could be politically embarrassing, that she was under the impression that the record had been previously sealed by his father, Abe Rigau, and that she was confused as to how a reporter could have obtained information regarding the prior criminal record which had been sealed. At all times, it was the understanding of Roger Rigau that petitioner was referring to the case which his father had handled for her. He was not aware of any new charges beyond those which were the subject of the record sealed in 1980 or 1981. Roger Rigau expressed surprise to petitioner that a member of the press would be able to obtain information regarding a sealed record. His office file contained paper work indicating that petitioner's record had been sealed by Abe Rigau. Roger Rigau was concerned that something was incorrect, either as a result of his father's error or a court clerk's office error. He told petitioner that he would check into the matter, did so and learned that the case his father had handled had indeed been sealed in 1980 or 1981. He so advised petitioner and also advised her that when a record is sealed, she need not relate to anyone that she had been arrested for or convicted of a crime. Sometime after petitioner submitted her application for licensure as a mortgage solicitor in April of 1985, she again contacted Roger Rigau regarding sealed criminal charges. Roger Rigau again advised petitioner that when records are sealed or expunged, one may properly refuse to acknowledge or may deny the fact that one has been charged with or arrested for a crime. Roger Rigau is knowledgeable about the law concerning the sealing and/or expunction of criminal records. Had he understood that petitioner was, either in 1984 or 1985, ever inquiring about her 1982 charges or record, he would have advised her that it is legally impossible to have more than one criminal record sealed. As noted above, Roger Rigau never had any knowledge concerning the 1982 worthless check charges and his advice to petitioner was, at all times, with reference to her 1980 sealed record. Petitioner has a different recollection of her ., conversations with Roger Rigau. She remembers contacting Roger Rigau in 1984 around election time after a news reporter called her regarding some criminal charges. She states that she asked him if the 1982 charges and record could be expunged and that he replied that he would check into the matter. Sometime thereafter, she called his office and a secretary from his office, not identified or called as a witness in this proceeding, led petitioner to believe that the matter had been taken care of. In March of 1985, petitioner went to work for Cameron- Brown, Co. In April of 1985, she filled out an application to the Comptroller's Office for registration as a mortgage solicitor. The application form requires answers to 18 questions and the signature of the applicant in affirmation under penalty of perjury that the answers provided are true and correct. Question 5 of the application states: "Have you ever been arrested, or indicted for a crime?" Petitioner answered this question "NO." Petitioner recalls that, prior to submitting her application, she telephoned Roger Rigau or a secretary in his office, inquired as to how she should answer question 5 on the application and was advised that since her record had been sealed, she could fail to acknowledge or deny any charges which had been sealed. Petitioner recalls making the following statement to Roger Rigau: "My worthless check charges that your dad had expunged and that you had taken care of for me, can I legally put down there "no," or how can I answer that?" Roger Rigau does not specifically recall talking to petitioner prior to the time she submitted her application, but does recall talking to her either during the time of the respondent's investigation or after petitioner received notice of the respondent's intent to deny her application. In any event, he gave her the same advice he had given her in 1984 -- that she need not acknowledge and may deny a sealed criminal charge. Again, he was not aware that petitioner was involved in any criminal charges beyond that 0th which his father was involved in 1980 or 1981. After the submittal of the petitioner's application, respondent's financial examiner/analyst, Jana Synatschk. conducted a routine investigation, which included a review of Court files. It was discovered that petitioner was the subject of two criminal actions - one in 1980 and one in 1982. The 1980 file was sealed, but the 1982 file was open for review. Ms. Synatschk telephoned petitioner on May 30, 1985, told her she had found two cases against a Stephanie Grooms for worthless check writing and asked petitioner if she was aware of this. Petitioner responded that she had no knowledge of such charges, and Ms. Synatschk required petitioner to submit an affidavit to that effect. After reviewing the notarized affidavit stating "I, Stephanie Grooms, have no knowledge of a record on a check charge mentioned by Jana Synatschk," Ms. Synatschk determined that the social security numbers, driver's license numbers and birth dates of the person involved in the 1982 worthless check charges and the petitioner/applicant were identical. She thereupon turned the case over to her supervisor, Arthur M. James. Petitioner recalls speaking with Roger Rigau prior to submitting the affidavit to the respondent and again receiving the advice that she could properly deny a sealed criminal charge. Mr. Rigau does not recall speaking to the petitioner about the affidavit she was required to submit during the application process. He does recall that petitioner requested him to sign an affidavit after she received notice that her application had been denied. Supervisor Art James telephoned petitioner on June 20, 1985, and asked her specific questions relating to the 1982 criminal charges. After denying that she had written the bad checks, Mr. James told her that the signatures on the checks appeared to be similar to her signatures on the affidavit and on her application. He invited her to come to his office to discuss the matter. She responded that her attorney would get in touch with him. Mr. James waited three or four days and, when he did not hear from petitioner's attorney, the petitioner's file was forwarded to Tallahassee. On July 22 1985, the respondent denied petitioner's application for a mortgage solicitor's license based upon her lack of integrity, truthfulness and honesty as evidenced by her false statement in response to Question 5 on the application. On or about the time of the respondent's denial order, but prior to petitioner's knowledge of the denial, petitioner telephoned the respondent's Tallahassee office to inquire about the status of her application. Joseph Ehrlich, the Assistant Director for the respondent's Division of Finance, informed petitioner that her application was being investigated and asked her about her arrest record. Petitioner denied any such record. It was not until after the respondent's order of denial dated July 22, 1985, that she explained to respondent's personnel that she denied the 1982 worthless check charges because she thought that case had been sealed or expunged and that she accordingly had a legal right to deny all charges in connection with that case.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of Stephanie D. Grooms for licensure as a mortgage solicitor be DENIED. Respectfully submitted and entered this 8th day of January, 1986, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1986. COPIES FURNISHED: Honorable Gerald Lewis Comptroller, State of Florida Department of Banking and Finance The Capitol Tallahassee, Florida 32301 Dick Greco, Jr., Esquire Molloy, James & Greco, P.A. Suite 910 501 East Kennedy Blvd. Tampa, Florida 33602 Wendy M. Mitchler, Esquire Greg Cummings, Esquire Assistant General Counsel Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32301 APPENDIX The proposed findings of fact submitted by the petitioner and the respondent have been accepted and/or incorporated in this Recommended Order, except as noted, below. Petitioner 2 - 3. Rejected to the extent that it implies that petitioner informed Mr. Rigau that she was referring to the 1982 charges. 3. Last sentence rejected as irrelevant and immaterial. 10. . First sentence rejected as to the time petitioner consulted with Mr. Rigau or his office not supported by competent substantial evidence. 15. Rejected, not supported by competent, substantial evidence. 17. Rejected, not supported by competent, substantial evidence. Respondent 13. Rejected, not relevant or dispositive of any issue in this proceeding. 15. Last sentence rejected, not relevant or dispositive of any issue in this proceeding.
The Issue The issue in this case is whether Respondent, a certified law enforcement officer, failed to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duties, a failure that, if proved, would warrant the imposition of discipline upon Respondent's certificate.
Findings Of Fact Respondent Pablo Barrios ("Barrios") is a Florida- certified law enforcement officer and, as such, falls under the regulatory and disciplinary jurisdiction of Petitioner Criminal Justice Standards and Training Commission ("Commission"). At the time of the final hearing, and at all times relevant to this case, Barrios was employed as a police officer by Florida International University ("FIU"). The events giving rise to this proceeding took place on July 17, 2003. That morning, Barrios attended an in-service training class taught by Sgt. Alfonso. There were about a dozen other FIU police officers in the class. Shortly after the class began, Barrios and Sgt. Alfonso got into an argument over Barrios's use of a digital recorder. (Sgt. Alfonso was apparently offended that Barrios would record the lecture; Barrios claimed that he was merely using the device to keep track of the time.) Sgt. Alfonso asked Barrios to leave the classroom. Barrios did leave, remarking on his way out that if he (Barrios) had intended to turn on the recording device, he would first have told everyone in the "fucking room." Barrios later returned to the classroom and sat in the back. The lesson proceeded to conclusion uneventfully. When the class ended, Capt. Wright entered the room. Someone had reported the verbal altercation between Barrios and Sgt. Alfonso, and Capt. Wright was there to find out what had happened. To that end, Capt. Wright asked each of the officers present to prepare a statement describing the incident and stating specifically whether "improper language" had been used. In response to Capt. Wright's request, Barrios wrote the following statement: I was single[d] out by Sergeant Alfonso for taking out [sic] a personal recorder out of my laptop bag. Capt. Wright considered Barrios's statement to be incomplete. He therefore wrote the following question beneath Barrios's description of the event: Lt. Barrios, was improper language ever used during the incident. Barrios answered the captain's query, in writing, with one word: "No."1 Ultimate Factual Determinations The undersigned infers (and is convinced) that Barrios knew, when presented with Capt. Wright's imprecisely drafted question regarding the use of "improper language," that this interrogatory, though ambiguous and open to interpretation, was meant to require Barrios to either admit or deny using the "f" word during the incident. The undersigned further infers (but is not convinced) that Barrios was likely aware that Capt. Wright would misinterpret Barrios's negative answer as an affirmation that no one (including Barrios) had uttered the word "fuck" or any of its cognates. The undersigned is not clearly convinced, however, that Barrios intended to mislead Capt. Wright.2 Rather, since admitting that his language had been "improper" would have been tantamount to confessing misbehavior,3 Barrios likely intended to deny having engaged in inappropriate behavior. The undersigned is also not clearly convinced that Barrios's statement was false, for two reasons. First, the undersigned is not convinced that Barrios believed his language to have been improper.4 To the contrary, the evidence persuades the undersigned that Barrios subjectively believed his words were justified. It is likely, in other words, that Barrios made what was, for him, a true statement. Second, Barrios's statement has not been clearly and convincingly falsified——that is, shown via ordinary evidence to be objectively untrue. Because the adjective "improper" reflects an opinion or judgment about something, such an opinion could be falsified only if5 (among other things) there were a clear objective standard against which to measure or judge the thing in question.6 The Commission offered no evidence regarding such an objective standard for determining that Barrios's language was improper and hence failed objectively to falsify Barrios's denial that improper language had been used.7 In sum, the Commission failed clearly and convincingly to prove, as was its burden, that Barrios made a "false statement" with the intent to mislead Capt. Wright.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Barrios not guilty of failing to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duties. DONE AND ENTERED this 16th day of February, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2005.
Findings Of Fact The parties stipulated ,that Max Bower had submitted an application for licensure as an unarmed guard to the Division of Licensing, and that Bower was qualified for licensure except for the grounds stated in the letter of denial dated March 9, 1979. Max Bower has been convicted and sentenced on three occasions for commission of a felony under the laws of the State of Florida. Bower admitted his arrest, conviction, and having served time in the New Jersey Penitentiary and in the Dade County Jail. His last conviction was in New Jersey, where he was sentenced to five to seven years and was released in October, 1971. Since that time, Bower has not been arrested for any offenses. Max Bower has pending at this time an application for restoration of his civil rights. Due to administrative delay, it will be several months before his application will be considered. Bower is currently employed with International Patrol and works as an unarmed guard from 12:00 midnight until 8:00 a.m. in the Justice Building (County Court Building) in Miami, Dade County, Florida.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Division of Licensing grant Max Bower a license as an unarmed guard (Class "F") at such time that his civil rights are restored. DONE and ORDERED this 11th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of June, 1979. COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Max Bower 10 South West 2nd Avenue Miami, Florida 33130
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.
The Issue The issue presented is whether Respondent should deny Petitioner's application to be licensed as a resident personal lines insurance agent.
Findings Of Fact Respondent is the state agency responsible for licensing insurance agents in the state pursuant to Chapter 626, Florida Statutes (2004). On October 29, 2004, Respondent received Petitioner's application to be licensed as a resident personal lines insurance agent (insurance agent). On October 13, 2005, Respondent issued a Notice of Denial to Petitioner. Respondent based the denial on several grounds that fall into three categories. The first category is based on Petitioner's prior criminal history. In relevant part, the Notice of Denial denies the application because Petitioner pled nolo contendere to a crime punishable by imprisonment of one year or more. The Notice of Denial further states that the crime was one of moral turpitude and that Subsection 626.611(14), Florida Statutes (2004), makes denial of the application compulsory. Even if the crime were not one of moral turpitude, the Notice of Denial states that the plea of nolo contendere provides a discretionary ground to deny the application pursuant to Subsection 626.621(8), Florida Statutes (2004). The Notice of Denial states a second category of grounds that are also compulsory. The second category of grounds may be fairly summarized as alleging a lack of fitness or trustworthiness to engage in the business of insurance. The second category of grounds generally relates to turpitude inherent in the criminal offense and an inaccurate application answer stating that Petitioner had no prior criminal record. The Notice of Denial states that Petitioner lacks one or more qualifications for the license, that Petitioner committed a material misstatement or misrepresentation on her application, and that Petitioner demonstrated a lack of fitness or trustworthiness to engage in the business of insurance as provided in Subsections 626.611(1), 626.611(2), and 626.611(7), Florida Statutes (2004). The third category of grounds relates to waiting periods. The Notice of Denial states that Petitioner must wait 17 years from the date she pled nolo contendere before applying for a license as an insurance agent. The waiting period is based on agency rules in Florida Administrative Code Rules 69B-211.042(4)(b) and 69B-211.042(8) that are promulgated pursuant to Subsection 626.207(1), Florida Statutes (2004). The remaining Findings of Fact address the factual sufficiency of the second category of grounds for denial. The conclusions of law, in relevant part, address the legal sufficiency of the remaining grounds for denial. The criminal record of Petitioner is not disputed. On October 4, 2004, Petitioner pled nolo contendere to a third degree felony of grand theft in the Circuit Court in and for Pasco County, Florida, Case No. CRCO4-1177-CFAES. The court withheld adjudication of guilt and imposed fines and costs of $395. Petitioner served 30 days in the Pasco County jail. The court placed Petitioner on supervised probation for 18 months, which Petitioner successfully terminated early on September 27, 2005. Petitioner contests neither the inaccuracy of the application answer stating she had no prior criminal record nor the materiality of the inaccuracy. However, Petitioner does contest the agency's assertion that Petitioner possessed the culpable knowledge or scienter required to misstate, misrepresent, or commit fraud in attempting to obtain a license within the meaning of Subsection 626.611(2), Florida Statutes (2004). Petitioner also contests the assertions that she lacks one or more qualifications for licensure and that she lacks fitness or trustworthiness within the meaning of Subsections 626.611(1), 626.611(2), and 626.611(7), Florida Statutes (2004). Petitioner testified that her employer submitted her application electronically. Petitioner testified that she gave her employer accurate information concerning her application, but she did not review the application before transmission. The trier of fact finds the testimony concerning Petitioner's lack of culpable knowledge to be credible and persuasive. Petitioner testified with extraordinary candor. Her demeanor was frank and unguarded. Her denial of culpable intent to mislead the agency is consistent with the totality of evidence in this proceeding and with Petitioner's demonstrated fitness and trustworthiness after November 2002. After Petitioner gave birth to a son on March 20, 2002, her treating physician advised her to undergo a tubal ligation, and the subsequent surgery was successful. The resulting inability to bear more children, however, led Petitioner into a mental state that was subsequently diagnosed as severe clinical depression. Petitioner returned to work approximately 12 weeks after surgery. From August 2002 through November 2002, Petitioner engaged in an episode of compulsive spending in which she incurred approximately $70,000 in credit card debt that she charged to personal and business credit cards. In order to pay the debt, Petitioner began taking money from her employer. Petitioner describes her hedonistic offense in her own words: [T]his incident occurred when I was suffering from severe depression that was [subsequently] diagnosed by a physician. I have been under the treatment of a psychiatrist and also a psychologist. I still see my psychiatrist quarterly to make sure that all is well with my medications . . . . The psychologist released me from her care because she felt that I can now deal with everyday stress. . . . So in order to fill that void [of no more children] I started shopping. And I would - I would go to the mall in a day and I would spend several thousand dollars on absolute garbage, you know, when you look. I mean. I started buying clothes; I bought furniture. I just was a shopaholic. I would go every Saturday and Sunday and spend time at the mall and just shop like crazy. [M]y husband had no idea of our finances. He just gave the paycheck and said: You do what you need to do. As long as he could have cash he didn't care. So he had no idea. He didn't even know how much money I made; he didn't know how much our mortgage was; he didn't know anything about our finances. And then once I started having all these credit card bills then I was, you know, robbing Peter to pay Paul . . . . And then it just got where I snapped . . . . And . . . unfortunately it looked like the easy way out. It was an answer to my problems and I could continue doing what I needed to do. [T]he attorney [employer] pretty much left me to do what I needed to do. I wrote all of his court motions, and I wrote all of his pleadings, and accountings, and inventories, and he didn't even look at them. He would just sign them. He didn't review them at all. And so when I would give him checks to sign . . . I would just take him the check and say, "I need you to sign a check," and he would sign the check and wouldn't even look to see . . . it was [to me]. Transcript (TR), pages 15 and 24-26. After November 2002, Petitioner voluntarily disclosed her offense to her employer. Petitioner's effort to reclaim her integrity and trustworthiness was both epiphanic and Herculean. The effort is best described in her own words: I started contemplating suicide and said: Oh, well, this will take care of all the problems. But then I had read up and didn't want my kids to grow up without a parent or think that for some reason they caused me to do it. So at that point in time I was just - I didn't know what to do or where to turn. I was just completely lost. And so I hadn't been to church in like a year. For whatever reason the Sunday before the Monday that I went to [an] attorney I went to church and they told a story. And I said: You know, I'm willing to confess to what I've done at whatever cost because I can't - I can't keep going like this, and I can't keep pretending like nothing is wrong, and laying in bed and the couch all day. So I went to [an] attorney the very next day. Q. Do you need a moment? A. I'm okay. * * * In January 2003, I'm sorry. This is hard reliving it. THE COURT: That's okay. Take your time and if you need a recess just let me know. A. This is the first time that I just really said it out loud. THE COURT: Yes. A. In January of 2003, I contacted [an attorney]. I informed him . . . that I had done something wrong and I didn't know where to turn to or who to turn to. At this point in time I hadn't told my family and nobody knew. All they knew is that something was wrong with me. I wasn't myself. I was withdrawn and I stayed in bed . . . all day. The attorney immediately contacted my former employer to advise that there was a problem with his accounting system. Up until this time he had no knowledge of any . . . problems. My attorney also contacted a doctor for me to see immediately because he could tell that something was not right with me. At this time that my attorney contacted my former employer I offered to make immediate restitution, which I did [over time]. At this point in time my employer said that he did not want to contact any authorities because he didn't want the publicity in a small town. And as far as I knew, the situation was taken care of. I was making restitution and I thought it was over. At some point in time my former employer contacted the Federal Bureau of Investigation (FBI). After meeting with the FBI, I agreed to assist them because my former employer was billing my time as the attorney's time in guardianship cases. This would cause clients to run out of money and become eligible for Medicaid and other state governmental services. The federal government ended up dropping the charge against me and I . . . agreed to assist them in any cases against my employer. When things were not moving along in the federal case my former employer also contacted the local authorities. I was arrested on May 1 of 2004. And this was almost - this was almost a year-and-a-half after I had first come forward. And then in September 2004, my attorney was ready to go to trial. At the last minute the State Attorney offered a plea deal. I was told that I could finally put this nightmare behind me by pleading no contest and I would have no criminal record because the court would withhold adjudication. [T]he judge made a point to mention that adjudication was being withheld so I would have no felony criminal record. And also at this time there was no restitution ordered because I had already paid it all back. TR at 15-18. Petitioner paid approximately $85,000 in restitution. Restitution was a Sisyphean effort, as Petitioner explains: I paid back cash. I had taken - I had calculated $40,000. He said that I calculated - that I had taken $60,000 and then he raised it to $80,000 for his time. But I - I paid back $45,000 in cash. The credit card companies, he contacted every credit card company that I paid and they all reversed all of their [charges]. So I ended up owing, you know, another $45,000 back in credit cards that he had . . . all the payments reversed. . . . So I paid a total - it was $85,000. * * * [W]e sold everything we had. . . . We sold our home. I had bought my husband a third vehicle. We sold that. We had a motorcycle that sold. We had a lot of toys. TR at 27-28. The trier of fact is not persuaded that Petitioner would have lied on her license application in October 2005 after voluntarily disclosing her offense in January 2003. When Petitioner exercised a conscious choice to confess her offense, she knew with certainty that shame would follow her exposure to her husband and children. Petitioner also knew that her choice would subject her family to the financial hardship and social upheaval inherent in selling everything they owned to make restitution to her former employer. Petitioner learned a new occupation, contributed to her family's recovery, and testified candidly and frankly about her offense. When the court sentenced Petitioner to 30 days in jail, Petitioner requested that she be allowed to serve the sentence every other weekend. Petitioner worked during the week and did not want to be away from her children all week and every weekend. The judge granted the request. The trier of fact finds that Petitioner neither misstated nor misrepresented her criminal record on her license application. Nor did Petitioner commit fraud in answering the questions on the application within the meaning of Subsection 626.611(2), Florida Statutes (2004). The trier of fact finds that Petitioner does not lack one or more of the qualifications for licensure required in Subsection 626.611(1), Florida Statutes (2004).1 Nor does Petitioner demonstrate a lack of fitness or trustworthiness to engage in the business of insurance within the meaning of Subsection 626.611(7), Florida Statutes (2004).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order determining that Petitioner's license application has been granted by operation of law. DONE AND ENTERED this 17th day of May, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2006.
