Findings Of Fact Beginning on July 9, 1973, up to and including the date of the hearing, the Respondent, Hal K. Johnson, was a registered real estate salesman under certificate no. 54569, held with the Florida Real Estate Commission. In the January 22, 1973 application which the Respondent, Hal K. Johnson, filed for registration as a real estate salesman, he answered the question no. 9 found therein. Question no. 9 says: "Have you ever been arrested for or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgement has been reversed or set aside or not, or pardon or parole granted. if yes, state details in full. The answer which was given by Hal K. Johnson was, "DWI, December, 1972 & June, 1976, Failure to yield, Dec. 1972". In addition to the offenses indicated in his answer to question no. 9, the Respondent, Hal K. Johnson, had been arrested for a number of other offenses. On September 20, 1955, the Respondent had been arrested for disorderly conduct/drunk. On August 20, 1957, the Respondent had been arrested for driving while intoxicated. On January 28, 1959, the Respondent had been arrested for driving while intoxicated. On February 27, 1959, the Respondent had been arrested for disorderly conduct/drunk. On March 6, 1959, the Respondent had been arrested for disorderly conduct/drunk. On July 1, 1959, the Respondent had been arrested for disorderly conduct/drunk. On August 12, 1961, the Respondent was arrested for disorderly conduct/drunk. On January 17, 1962, the Respondent was arrested for disorderly conduct/drunk. On November 10, 1962, the Respondent was arrested for disorderly conduct/drunk. On September 18, 1963, the Respondent was arrested for having no drivers license. On December 13, 1963, the Respondent was arrested for disorderly conduct/drunk. On March 23, 1967, the Respondent was charged with disorderly conduct/drunk and profane language. On July 30, 1967, the Respondent was charged with disorderly conduct/drunk. On September 4, 1967, the Respondent was charged with reckless operation of motor vehicle, driving while under the influence of intoxicating beverages. On June 5, 1968, the Respondent was charged with disorderly conduct/drunk. On July 19, 1968, the Respondent was charged with disorderly conduct/drunk. On April 18, 1972, the Respondent was charged with disorderly conduct/drunk.
Recommendation At the hearing, the Respondent, Hal K. Johnson, did not challenge the facts as presented in the administrative complaint. His intention in appearing at the hearing was to offer mitigation. In the way of mitigation, Mr. Johnson said that he was only given one line to answer the question no. 9, which did not provide him enough room, notwithstanding the fact that he had read the instructions which said that additional information should be provided on a separate sheet. Moreover, Mr. Johnson said that the language of question no. 9, which says "commission of an offense . . .", only calls for just one offense to be listed and he in fact listed three. He also said that he did not put some of the drunk arrests down because now they don't even require you to be arrested, they just take you someplace." In addition, he indicated that he did not know where to get the records of these arrests that had been placed against him. He said he thought that the records of these matters were found in Tallahassee, Florida. The three indications of arrests were also felt, in the mind of the Respondent, to be a sufficient indication of the 20 arrests that had been made. Finally, the Respondent said that he wants to make it clear that he didn't intend to try to make misstatements, although he agrees that he failed to elaborate, which to him was an error of omission not intent. Having considered the explanation offered by Mr. Hal K. Johnson, the Respondent, in view of the facts, it is recommended that his certificate no. 54569, as a registered real estate salesman be revoked. DONE and ENTERED this 14th day of February, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Hal K. Johnson c/o Fowler Realty 8917 Atlantic Boulevard Jacksonville, Florida 32211
Findings Of Fact On November 15, 1984, Trooper Kevin Dennis Roy of the Florida Highway Patrol stopped an automobile occupied by Petitioner on the Florida Turnpike in Palm Beach County. After obtaining consent to search the vehicle, Trooper Roy discovered in the trunk approximately 100 pounds of marijuana and a white plastic bag containing $8644 in small bills wrapped in rubberbands. Petitioner made no claim to the cash found in the trunk. He was arrested. A search revealed no significant sum of money on Petitioner's person. The State Attorney's office dropped a subsequent criminal proceeding for possession of marijuana because Respondent denied knowledge of the drugs and money in the trunk.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's claim of ownership of the monies in question. DONE and RECOMMENDED this 30th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0103 Treatment Accorded Petitioner's Proposed Findings Rejected as irrelevant. Adopted in substance. 3-10. Rejected as recitation of testimony. 11&13. Adopted in substance. 12. Rejected as irrelevant. Adopted except as to the amount of money in the bag. Rejected as irrelevant. 16-17. Rejected as recitation of testimony, irrelevant, and subordinate. 18. Rejected as not finding of fact. Treatment Accorded Respondent's Proposed Findings 2, 13, 27, 28. Adopted in substance. 16. Adopted. Remainder rejected as recitation of testimony, subordinate, and irrelevant. COPIES FURNISHED: Matthew M. Johnson, Esquire 524 East Livingston Street Orlando, Florida 32803 Elise M. Greenbaum, Esquire Assistant General Counsel Office of Comptroller 400 West Robinson Street Suite 501 Orlando, Florida 32801-1799 Honorable Gerald Lewis Comptroler State of Florida The Capitol Tallahassee, Florida 32399-0350 Charles L. Stutts General Counsel Department of Banking and Finance Plaza Level, The Capitol Tallahassee, Florida 32399-0350
The Issue Whether Respondent violated Subsections 626.611(1), 626.611(2), 626.611(7), 626.611(13), 626.611(14), 626.621(1), 626.621(2), 626.621(8), and 626.621(11), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact LaPorte is currently licensed by the Department as a Customer Representative. On November 18, 1996, LaPorte pled nolo contendere to the sale of marijuana and the possession of marijuana in the Circuit Court of the Sixth Judicial Circuit of Florida in and for Pinellas County, Case Number CRC96-13980CFANO-A. LaPorte was sentenced to two years' probation for these felonies. On September 14, 2000, an information was filed against LaPorte, charging her with possession of a controlled substance, possession of cocaine, and possession of marijuana. On October 4, 2000, LaPorte submitted an application to the Department for licensure as a Customer Representative. The application asked the following questions: Are there currently pending against you or any entity you control, any criminal, administrative, or civil charges in any state or federal court anywhere in the United States or its possessions or any other country? In the past 12 months, have you been arrested, indicted, or had an Information filed against you by any law enforcement authorities anywhere in the United States or its possessions or any other country? Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment or conviction was entered? La Porte answered "no" to all four questions. On the application dated October 4, 2000, LaPorte signed and swore to the following statement: Under penalty of perjury, I declare that I have read the foregoing application for license, related information and related attachments, and that the facts as stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s). LaPorte was licensed by the Department as a Customer Representative on October 31, 2000. On December 15, 2000, LaPorte pled guilty to felonies of possession of a controlled substance, possession of cocaine, and possession of marijuana in the Circuit Court for the Sixth Judicial Circuit in and for Pinellas County, Florida, Case Number CRC00-14856CFABO-A. She was sentenced to four years' probation. LaPorte failed to notify the Department in writing within 30 days of her guilty plea that she had pled guilty to the felonies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Bridgette A. LaPorte violated Subsections 626.611(1), (2), (7), and (13), Florida Statutes; finding that she violated Subsections 626.621(1), (2), (8), and (11), Florida Statutes; dismissing the allegation she had violated Subsection 626.611(14), Florida Statutes; and revoking her license as a Customer Representative. DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 7th day of February, 2002. COPIES FURNISHED: Matthew A. Nowels, Esquire Anthony B. Miller, Esquire Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Bridgette A. LaPorte 5150 4th Street, North, Lot 452 St. Petersburg, Florida 33703 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Plaza Level 26 Tallahassee, Florida 32399-0300
Findings Of Fact The parties stipulated that Richard E. Ebner was registered as a real estate salesman on March 8, 1974 and has been so registered since that date having been issued license No. 0126254, that said license was applied for by Ebner, who prepared the application, which was jointly stipulated to be received into evidence as Exhibit 1. The parties further stipulated to the fact that Exhibit 1 contains question 9, as set forth in the Administrative Complaint in paragraph 2, and question 19, as set forth in the Administrative Complaint in paragraph 6, and that Ebner had answered question 9, "Yes. . . Midsdemeanor - Marijuana possession 1971," and question 19, "No." The parties further stipulated to the admission into evidence of Exhibit 2, Court Records of Arrest dated September 25, 1970; Exhibit 3, Court Records of Information dated September 29, 1970; and Exhibit 6, Court Records, Order of Incompetency. It was stipulated that an Order of Nolle Prosequi had been entered regarding the charges upon which the arrest, Exhibit 3, were based. The Commission offered Exhibit 4, a letter of Sheriff Collier dated January 12, 1974; and Exhibit 5, a judgment in Case No. 676 dated August 17, 1971, which were received into evidence. Thereafter on the basis of the stipulation and admission of Exhibits 5 and 6, the Commission rested its case. The Respondent then moved for dismissal of the charges because the charges were insufficient because the Commission failed to show if these matters had been disclosed the license would have been denied. The Hearing Officer denied the motion. The Respondent called his father and mother to testify. Richard Ebner had had in 1970 a drug problem and had been addicted to heroin. His parents searched the state for a hospital to treat their son. Having found a hospital, they went to the County Judge and explained their fears that their son might not stay in the hospital. Without a hearing, the Judge entered the Order of Incompetency, Exhibit 6. Thereafter, their son had gone to the hospital and remained there voluntarily. They both testified that their son, Richard Ebner, had no knowledge of the Judge's Order, and that they themselves were unaware of the nature of the order beyond the fact that they had been told it was sufficient to require their son to remain in the hospital if he tried to leave. The Board subsequently presented rebuttal testimony on the issue of incompetency that Richard Ebner's counsel had interposed an insanity plea to the 1971 arrest based upon the Order of Incompetency, see Exhibit 9. The Court refused this defense. Richard Ebner testified that he had known about the insanity defense his attorney had presented to his 1971 arrest, but that he had had no knowledge in 1971 that he had been declared incompetent by any Court or when he filled out the application. The Commission's investigator indicated that the Court's record indicated only the Order of Incompetency and no further pleadings. The Hearing Officer finds that Richard Ebner had no knowledge of the Order, Exhibit 6, adjudging him incompetent. Regarding question 9, the Commission's Exhibits 2 and 3 revealed that Ebner had been arrested in 1970 for obtaining or attempting to obtain a barbiturate or central nervous system stimulant by fraud, misrepresentation, deceit or subterfuge, or by forgery or alteration of a prescription, and uttering any false or forged prescription. As stated above, it was stipulated that these charges were dropped. The Commission's Exhibits 4 and 5 reveal that Ebner was arrested on March 30, 1971 for (1) possession if marijuana and (2) possession of marijuana paraphernalia. The charge relating to possession of paraphernalia was dropped, and Ebner was tried on possession of marijuana on June 28, 1971, found guilty and sentenced to six (6) months in the county jail. He served his sentence and was released January 12, 1972. Regarding the offense, the Respondent, Ebner, had stated on his application in response to question 9, "Misdemeanor - Marijuana possession in 1971." Richard Ebner is currently working for his father and brother in their family business and actively engaged in underwater salvage and repair as a hard hat (deep sea) diver. He works as long as 3 - 10 hours under water, and has performed such responsible work as maintenance of underwater cameras at a nuclear power plant. He testified that he no longer uses narcotic drugs and that to do so would jeopardize his life in his occupation as a diver. The Respondent appeared relaxed and confident on the witness stand and answered questions put to him by the attorneys and Hearing Officer forthrightly and without hesitation. He admitted his addiction to drugs, stated that he had overcome this, that he had not tried to conceal his 1970 arrest but thought that because the charges had been dropped by this state that there was no need to report it. He similarly stated that he had responded to question 9 regarding the 1971 arrest, conviction and sentencing.
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “Board”), had just cause to terminate Respondent for misconduct in office as alleged in the Administrative Complaint (“Complaint”) dated December 10, 2019.
Findings Of Fact Petitioner is the constitutional entity authorized to operate, control, and supervise the public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff and other school employees. See § 1012.22(1)(f), Fla. Stat. At all times relevant hereto, Respondent was employed as a Student Services Manager at Belleview High School in Marion County, pursuant to a professional services contract with the Board. On November 5, 2019, following an incident in which Respondent intervened in a physical altercation between students, Respondent complained to administration that he may have been injured. Respondent was referred to a doctor who provides treatment to Board employees who are injured on the job. As part of his evaluation for a possible workers’ compensation covered injury, Respondent was administered a routine urine drug screen. The results of the drug screen were positive for THC and marijuana metabolites. Respondent does not dispute either the test administration or results. Respondent is approved by the State of Florida through the medical marijuana use registry to obtain medical marijuana for his personal medical treatment. Respondent obtained his medical marijuana card in October 2018, and uses medical marijuana to treat pain associated with injuries he received while serving in the U.S. Marines in Desert Storm in 1991. The Board maintains Alcohol and Drug-Free Workplace Policy 6.33. Section II.B. of that policy provides that “it is a condition of employment for [a Board] employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body.” Section IV.B. includes marijuana within a list of substances use of which is considered illegal, pursuant to section 202 of the Controlled Substances Act, 21 C.F.R., §§ 1300.11 through 1300.15. However, this section notes that “when the use of a controlled substance is pursuant to the instructions of a physician, the employee shall immediately notify his/her supervisor.” At no time prior to his positive drug screen did Respondent notify his supervisor that he was using medical marijuana. Respondent has been employed by the Board since 2010. He began as a physical education coach at Horizon Academy, where he was subsequently promoted to a dean’s position. After the dean’s position at Horizon Academy was eliminated, Respondent transferred to Emerald Shores Elementary where he served as a dean. The record does not establish the date on which Respondent transferred to Belleview, but Respondent served as a dean of students at Belleview until he was placed on unpaid administrative leave on January 13, 2020. Respondent was placed on paid administrative leave on January 29, 2020, where he remains pending the outcome of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order upholding the charges against Respondent Michael Hickman, and terminate Respondent, or impose other discipline consistent with Florida Administrative Code Rule 6A-5.056.2 1 Respondent additionally argues that the Board’s position is unfair because it penalizes him for use of medical marijuana to treat chronic pain, but would allow him to continue teaching under the influence of opioid pain medications, which he took for years prior to the availability of medical marijuana. 2 The undersigned notes that the remedy of suspension is also available under the applicable rule. Further, the parties made no argument that the Board’s discretion to impose a different penalty is foreclosed, or that the Board may not consider mitigating circumstances. DONE AND ENTERED this 2nd day of September, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 2020. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast 3rd Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue Whether Petitioner is subject to the sales tax imposed on controlled substances by s. 212.0505, Florida Statutes, and if so, what is the appropriate tax.
Findings Of Fact On September 12, 1989, a search and destroy team assembled in Sebring, Florida, to survey Highlands County for evidence of the growing or possession of illegal drugs. The survey team consisted of a helicopter, pilot and crew chief from the Florida National Guard; and the ground crew of representatives from the Highlands County Sheriff's Office, State Highway Patrol, Fish and Game Commission, Florida Law Enforcement Officers and federal agents. The search commenced in the southwest quadrant of Highlands County with the helicopter and trained spotters flying a search pattern so as to view from the air any illegal substances being grown. On one, if not the first, leg of the search pattern, the helicopter, flying at an altitude of 500 feet, passed over the property on which Petitioner lives; and one of the observers spotted what he identified as marijuana growing near one of the outbuildings on this property. The marijuana patch was circled for both spotters as well as the pilot and crew to better see the growing marijuana. The ground party was alerted by radio of the find. They proceeded to the location and entered onto the property. There they met Petitioner, proceeded to the area where the marijuana was growing, and cut down the marijuana plants. Some 171 cut plants were counted, wrapped in bundles of approximately 10 plants each, and loaded into the back of a pickup truck. The deputies asked Petitioner if he would unlock the building next to where the marijuana plants were growing and he, knowing they could get a search warrant if necessary, unlocked the door. Inside they found some lights obtained for the purpose of growing marijuana indoors and other material listed on Exhibit 3A, all of which were confiscated. Petitioner was placed under arrest and the marijuana and other property seized was taken to the sheriff's office. The vehicle carrying the marijuana was weighed before the marijuana was unloaded and again immediately following the unloading. The difference in the weight of the vehicle with and without the marijuana was 450 pounds. Subsequent thereto, someone from either the sheriff's office or the Florida Department of Law Enforcement advised the Department of Revenue Collections and Enforcement agent in Lakeland, Florida, and the Notice of Assessment was prepared and served on Petitioner. To establish the value of the marijuana seized, the agent preparing the assessment used information received from the FDLE that the average street price in the district in which the marijuana was seized was $600 per pound in 1989. The document containing this information was admitted into evidence as Exhibit 6 after testimony was presented that each year the FDLE directs its five regional offices to submit street prices for various illegal drugs sold on the streets during that year. Exhibit 6 shows the marijuana street price at $600 per pound in the Tampa district (which includes Highlands County) as of June 7, 1989. To obtain the estimated retail price of the marijuana seized, the agent multiplied $600 per pound by 450 pounds. This price is for marijuana which has been processed and is ready for use. No evidence was submitted showing what parts of the marijuana plant are used in preparing the marijuana rolled into "joints" or smoked in a pipe. Nor was evidence presented showing how many pounds of processed and ready-to-use marijuana can be obtained from a given number of pounds of growing marijuana plants. In his testimony, Petitioner readily admitted that he had planted and cultivated the marijuana seized on September 12, 1989. He also testified that this is the first and only time he has ever attempted to grow marijuana; that he obtained the marijuana seeds and a book on how to grow marijuana from an advertisement in a magazine; that he had never sold marijuana in the past; that he had made no effort to locate a purchaser; or that he had any inkling of how to find a buyer for the plants after they were harvested or how much such plants were worth for use by marijuana users. Petitioner also testified the marijuana was planted a long distance from the nearest traveled road and from the nearest boundary of Petitioner's property; and that there was a canopy provided by trees among which he had planted the marijuana plants, and he didn't think the plants would be readily visible from the air. Petitioner's testimony that the helicopter passed over his property at tree top level, which he estimated at less than 75 feet, is rejected as being in conflict with the altimeter height provided by the helicopter pilot. In the U. S. District Court, Southern District of Florida, Petitioner pleaded guilty to possession of more than 100 marijuana plants.
Recommendation It is recommended that the assessment against Joe "Little Joe" Hatch of $270,999.02 plus interest from September 12, 1989, be dismissed. ENTERED this 26th day of March, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1990. APPENDIX Respondent's proposed findings are generally accepted and included in the Hearing Officer's findings of fact, except the following which are rejected. 12-18. Accepted as street value of processed marijuana. 26. Last sentence rejected as contrary to the record that the charge was possession of over 100 marijuana plants. Petitioner failed to timely submit a proposed recommended order. COPIES FURNISHED: Raymond E. LaPorte, Esquire 410 Ware Boulevard, Suite 601 Tampa, FL 33619 Steve Kackley, Esquire 357 S. Orange Avenue Sebring, FL 33870 Lee R. Rohe, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, FL 32399-1050 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, FL 32399-0100 Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 =================================================================
The Issue Did the Respondent obtain licensure by fraud or misrepresentation contrary to Section 475.25(1)(m), Florida Statutes?
Findings Of Fact The Respondent, Carl D. Hill, submitted an application for licensure to become a real estate salesperson on June 22, 1981. See Exhibit "A", a true and correct copy of the Respondent's application. Respondent admits he executed the original application in the line designated for the signature of the applicant. Said application was received by the Florida Real Estate Commission on June 26, 1981, and was approved on July 24, 1981. Based upon said application, Respondent was issued license number 0372160 as a real estate salesman. In response to question number six in the referenced application, Respondent replied "no" to the question of whether he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled. On June 7, 1980, Respondent was arrested by the Hillsborough County Sheriff's Office and charged with trafficking in cocaine, possession of cocaine, delivery of cocaine and possession of a firearm during the commission of a felony. See Exhibit "B". On May 12, 1981, Respondent pleaded guilty to the crime of delivery of cocaine. Upon accepting such plea, the Circuit Court for Hillsborough County imposed a sentence of five years' probation and withheld adjudication.
Recommendation Having found that the Respondent violated Section 475.25(1)(m), Florida Statutes, it is recommended that the license of Respondent as a real estate salesperson be revoked. DONE and RECOMMENDED this 6th day of December, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 6th day of December, 1982. COPIES FURNISHED: David P. Rankin, Esquire 4600 West Cypress, Suite 410 Tampa, Florida 33607 Jack W. Crooks, Esquire 4202 West Waters Avenue Tampa, Florida 33614 Samuel R. Shorstein, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether petitioner should take disciplinary ace ion against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact On and after June 19, 1985, respondent Mack T. Short has been certified as a law enforcement officer, holding certificate No. 14-85-502-05. Two years ago, when, like respondent, he worked at the Florida State Prison as a correctional officer, Guy William Carstens "usually had some" (T. 84) marijuana with him. Messers. Carstens and Short "carpooled" (T. 83) to and from work in the spring of 1987. On "a couple of occasions after work," (T. 84) in April or May of that year, Mr. Short accepted Mr. Carstens's offer to share a pipe or cigarette filled with marijuana. All told, in the course of a year or so, the two men smoked marijuana together five or ten times. T. 88,92. Dale D. Farrow, another correctional officer at the Florida State Prison who bought marijuana from Mr. Carstens periodically over a year's time and regularly smoked it, grew apprehensive of finding himself "up for criminal charges possibly" (T. 80) when he learned from Mr. Carstens that an inmate had threatened to turn Mr. Carstens in, after a $10,000 marijuana transaction went sour. In fact, the inmate did report the drug deal he had with Mr. Carstens to prison authorities, but they did nothing about it. After speaking to the inmate, Mr. Farrow, who has worked at Florida State Prison as a correctional officer for more than seven years, contacted the Florida Department of Law Enforcement (FDLE), informing personnel there that Mr. Carstens "was dealing in narcotics and that several other correctional officers were buying narcotics from him and using narcotics." T. 16. FDLE passed this information on to the Inspector General's Office within the Department of Corrections. When Mr. Carstens was eventually apprehended, arresting officers found more than a pound of marijuana in the trunk of his car. At one time Mr. Carstens Stored marijuana in a shed behind the house respondent shared with his wife and small child. Mr. Short, who had made the shed available to him as storage for two bucket seats and some motorcycle parts, was apparently unaware of any marijuana in the shed. He was not home when Mr. Farrow saw Mr. Carstens unlock the shed door, enter and remove a sizable quantity of marijuana After his arrest, Mr. Carstens, who was Promised more lenient treatment if he implicated others, named respondent (among Several other correctional officers) as a drug offender. Convicted of Possession (but not distribution despite, e.g. testimony under oath in the present case that he did distribute), Mr. Carstens was placed on five years' probation. Mr. Farrow, who, like respondent, was never Prosecuted criminally, continues to work as a guard at Florida State Prison. There was no indication that Petitioner intends to take any action affecting Mr. Farrow's certification as a law enforcement officer.
Recommendation Particularly in light of the treatment Petitioner has accorded Mr. Farrow, whose moral character the evidence called at least as clearly into question as respondent's, it is RECOMMENDED: That Petitioner reprimand the respondent. DONE and ENTERED this 9th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5249 Petitioners Proposed findings of fact Nos. 1 through 7, 10, 11, 13, and 14 have been adopted, in substance, insofar as material. Petitioners Proposed findings of fact Nos. 8, 9, and 12 were not convincingly established by credible evidence. COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 628 Alachua, FL 32615 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH CASE NO. 88-5249 CJSTC CASE NO. C-1390 MACK T. SHORT, Certificate Number 14-85-502-05. Respondent. /
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Noel Anthony Brown, is a licensed real estate salesperson in the State of Florida, having been issued license number 0642242. On July 23, 1996, Respondent filed an application (dated July 19, 1996) with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement 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 responded to the question by checking the box marked "No." The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.) On September 30, 1996, Respondent passed the salesperson examination and he was issued license number 0642242 as an inactive salesperson. From November 12, 1996, through the date of the hearing, Respondent has been an active salesperson associated with Premiere Homes Realty, Inc., a broker corporation located at 5737 Pembroke Road, Hollywood, Florida. By letter of March 16, 1998, the Department requested an explanation from the Respondent regarding certain information it had received from the Florida Department of Law Enforcement regarding Respondent's criminal record. That letter provided, in pertinent part, as follows: The Florida Department of Law Enforcement has returned information to this office that an arrest was made on January 3, 1992 by the Metro-Dade Police Department for Marijuana- Possess-MISD[EMEANOR]. To clear any ambiguity regarding your "No" response to the relevant application question, we request additional information. If charges were Dismissed or Nolle Prossed, please forward a copy of the dismissal or a notarized statement so that we may clear your records. If the charge(s) resulted in a conviction(s), or adjudication withheld, you will need to forward a copy of the Information, Plea and Sentencing to this office along with a statement or explanation regarding your failure to disclose this information on your application form. By letter of May 5, 1998, Respondent responded to the Department's inquiry, as follows: Please correct the answer to question nine (9) on my application to "Yes". A copy of the printed docket case action summary is enclosed as indicated. I did not in anyway write "NO" to hide the information. I was not familiar with the terms used in the Criminal Justice System and was confused when I was told that I was not found guilty. This was an honest mistake and I do apologize. As for the disposition of the charge, the case summary (Petitioner's Exhibit 1) reveals that Respondent was charged with unlawful possession of cannabis (marijuana), a misdemeanor.1 According to the summary, Respondent apparently entered a plea (although whether the plea was guilty, not guilty, or nolo contendre is not of record) on or about April 13, 1992, and the court apparently found Respondent guilty of the charge since it "withheld ADJUDICATION WITH FINE AND COSTS." Thereafter, on August 19, 1998, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid criminal disposition, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against his license. According to the complaint, the disciplinary action sought . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. 2 Consistent with the explanation he offered the Department in his letter of May 5, 1998, Respondent explained, at hearing, that his response to item 9 on the application was, at the time, an accurate reflection of his understanding of the disposition of the charge. According to Respondent, who was not represented in the criminal matter, he simply followed the instructions of the court personnel, since he was unfamiliar with court procedure, and, after having complied with those instructions, it was his understanding that the matter was dismissed. Here, Respondent's explanation for his failure to disclose the marijuana possession charge on his application is credited, and it is resolved that, at the time he submitted his application, Respondent did not intend to mislead or deceive those who would be reviewing his application. In so concluding, it is observed that Respondent's testimony was candid and his understanding of the disposition of the matter was, given the alien nature of the experience, reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be rendered dismissing the Administrative Complaint. DONE AND ENTERED this 5th day of January, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 5th day of January, 1999.
