Findings Of Fact Petitioner is Peter Thomas Roman. By application dated April 28, 1988, he sought licensure as a real estate salesman. By letter dated October 24, 1988, counsel for Respondent informed Petitioner of Respondent's intent to deny licensure to Petitioner on the basis of Petitioner's 1985 arrest and subsequent plea in 1986 to a charge of grand theft, as well as Petitioner's suspension from membership in the Florida Bar. Question number six of the application completed by Petitioner requires a "yes" or "no" answer to the 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? Petitioner responded to question number six by disclosing his entry of a plea of nolo contendere in the circuit court for Pinellas County, Florida, on December 29, 1986, to a charge of grand theft. Petitioner related that the incident alleged had taken place in November of 1979. Petitioner further stated that the sentencing court had withheld formal adjudication of guilt and had placed Petitioner on probation. Petitioner, a licensed attorney at the time of the alleged incident, was disbarred from the practice of law by the Supreme Court of the State of Florida in an opinion issued on June 2, 1988. The Fla. Bar v. Peter T. Roman, 526 So.2d 60 (Fla. 1988). Petitioner's disbarment was based on the same acts which resulted in the grand theft charge. In addition, the Supreme Court found that "[t]his case involves not only theft, but fraud on the court which strikes at the very heart of a lawyer's ethical responsibility." Fla. Bar v. Roman, p. 62. The essential facts of the grand theft charges against Petitioner were that Petitioner falsified the name of an heir in an estate where Petitioner was serving as the personal representative. Funds paid from the estate to the falsified heir were converted by Petitioner to his own use. These matters occurred between January 1978 and January 1980. Petitioner was charged with grand theft in June of 1985. He pled no contest to that charge in 1986. Thereafter adjudication of guilt was withheld and he was sentenced to five years probation a $220 fine and nine months in the Pinellas County Jail. Since the incident which is the basis for the grand theft charges filed against Petitioner, he has not been involved in any incidents or episodes of misconduct. Petitioner has been offered a job as a sales person with a local real estate firm if he is permitted to hold a real estate license. Testimony of character witnesses offered by Petitioner establishes their belief that his reputation in the community is good, despite the one criminal incident in his past, and that they believe neither the public or investors would be endangered by the granting of licensure to the Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5432 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-9. Adopted in substance. Unnecessary to result. Adopted in substance. Unnecessary to result. PETITIONER'S PROPOSED FINDINGS 1.-8. Adopted in substance. Addressed in part, remainder unnecessary to result. Addressed in part, remainder unnecessary. Rejected as cumulative. Addressed in part, remainder unnecessary to result. COPIES FURNISHED: Thomas A. Roman, Esquire 2340 Main Street, Suite L Dunedin, Florida 34698 Lawrence Gendzier, Esquire 400 West Robinson Street Room 212 Orlando, Florida 32801 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller, Division Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated June 21, 1990; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of pursuing disciplinary actions against real estate licensees. At all times material to the allegations of the administrative complaint, Respondent is and has been a licensed real estate salesman in the State of Florida having been issued license number 0347386. On May 7, 1987, the Respondent was charged with seven counts of criminal misconduct. The charging document, an information filed by the State Attorney of the Third Judicial Circuit of Florida, alleged that Respondent had: solicited to commit extortion while armed; solicited to commit murder I while armed; delivered a controlled substance; possessed a controlled substance with intent to sell or deliver; committed grand theft II; and carried a concealed firearm during a felony. Subsequently, Respondent was tried and found guilty of: solicitation to commit extortion (a 3rd degree felony); solicitation to commit murder I (a 1st degree felony); delivery of a controlled substance (a 3rd degree felony); grand theft II (a 3rd degree felony) ; and carrying a concealed firearm (a 3rd degree felony). The judgment of guilt was entered on September 9, 1987. Respondent received a sentence for each of the convictions noted above and was committed to the Department of Corrections with credit for the 150 days of incarceration in the county system he had spent prior to the imposition of the sentences. All sentences ran concurrent with one another. During the time of his incarceration (on or about September 30, 1987), Respondent's real estate license expired. At that time, Respondent mistakenly presumed he was not required to send a notice of the convictions to the Real Estate Commission and, therefore, did not do so. In July, 1989, Respondent was released from prison. Upon his release, Respondent considered what action would be needed to renew his real estate license. To that end, he took a continuing education course and discovered he should have notified the Real Estate Commission of his felony convictions. On March 10, 1990, Respondent wrote a letter to the Real Estate Commission which stated, in part: My name is Gene Stephen Wilson, expired license #0347386. My license expired September 30, 1987. In September 1987, while working in another profession, I was convicted, sentenced and served two and one- half years in a Correctional Institution for a felony charge. Since my license was expired, I did not realize that I was required to report to FREC at that time. Now, after completing my sentence, I have been granted an Order of Executive Clemency by the Governor of the State of Florida. On October 5, 1989, the Governor, with the concurrence of the requisite members of the Cabinet of the State of Florida, filed an Executive Order which granted to Respondent the restoration of his civil rights. Anne Frost, a real estate broker, and Deborah J. Mickle, a real estate agent with Anne Frost, Inc., submitted written statements which attest that, based upon their experiences with the Respondent, he is ethical and professional in connection with the real estate business.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order finding the Respondent guilty of having violated Section 475.25(1)(p), Florida Statutes, suspending his license for a period of two years, imposing an administrative fine in the amount of $500, and requiring a period of probation under such terms and conditions as the Commission may deem appropriate. DONE and ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. APPENDIX TO CASE NO. 90-4403 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: 1. Paragraphs 1 through 5 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None timely submitted. COPIES FURNISHED: Steven W. Johnson Senior Attorney Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900Orlando, Florida 32802 Stanley M. Silver, Jr. 217 East Ivanhoe Boulevard, North Orlando, Florida 32804 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0750
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings, Respondent was a licensed Ordinary Life, including Disability Agent, doing business as Steven Miller Insurance and Associates located at 718 Broadway, Suite 2, Daytona Beach, Florida. On June 2, 1983, the Respondent was charged by a Criminal Information in Case No. 83-2219-CC with two (2) felony counts, Count I being presentation of a fraudulent insurance claim, in violation of section 817.234, Florida Statutes, and County II being grand theft of the second degree, in violation of section 812.014, Florida Statutes. On January 5, 1984, the Respondent entered a plea of nolo contendere to the felony offense of Grand Theft of the Second Degree, a Third Degree Felony, Case No. 83-2219-CC, in the Circuit Court for the Seventh Judicial Circuit of Florida in and for Volusia County, Florida. On January 5, 1984, the Circuit Court for the Seventh Judicial Circuit accepted Respondent's plea of Nolo Contendere and placed Respondent on three (3) years of supervised probation, withholding adjudication of guilt and imposition of sentence. On July 8, 1985, Respondent was discharged from probation after successfully completing eighteen (18) months of his three (3) year probationary period. Respondent's testimony was that: (1) his boat, a 24- foot Regal Royal was taken while parked across from his home just prior to June 29, 1982; (2) he reported the theft to the Daytona Beach Police Department on June 29, 1982; (3) he filed an insurance claim several months after reporting the theft to the police and was paid; (4) approximately one (1) year later his boat was found in the possession of his wife's sister and her husband; and (5) he plead nolo contendere to the charge of grand theft on advice of counsel that a plea of nolo contendere was the same as pleading innocent, would not affect his insurance license and the plea would avoid putting a strain on his marriage. Mainly this testimony went unrebutted by the Petitioner.
Recommendation Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the Respondent be found guilty of violating section 626.611(14), Florida Statutes. For such violation, considering the circumstances surrounding the violation, it is RECOMMENDED that the Petitioner enter a final order suspending the Respondent's license for a period of two (2) years. DONE and ENTERED this 24th day of October, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 24th day of October, 1985. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact No. 1. Adopted in Finding of Fact No. 2. Adopted in Finding of Fact No. 3. Adopted in Finding of Fact No. 4 with the exception of the language that "Respondent was sentenced." Petitioner's Exhibit No. 3 specifically states that sentence was withheld and Respondent was placed on probation. Rejected on a conclusion of law rather than a proposed finding of fact. Adopted in Finding of Fact No. 5 with the exception of the date July 1, 1985. Respondent's Exhibit No. 2 shows the order was entered on July 8, 1985. Rulings on Respondent's Proposed Findings of Fact: (Respondent did not number the paragraphs in his Proposed Findings of Facts but for purposes of this Appendix a number has been assigned to each paragraph.) This information was considered as background information and, therefore, covered in the background portion of this Recommended Order. Adopted in Finding of Fact No. 1. This information was considered as background information and, therefore, was covered in the background portion of this Recommended Order. The information in the first sentence was considered as background information and, therefore, was covered in the background portion of this Recommended Order. The second sentence is Respondent's interpretation of what Petitioner alleges and is not a finding of fact but more a conclusion of law. 5.-6. Other than as adopted in Finding of Fact No. 6, rejected as immaterial, unnecessary and unsupported hearsay. 7. Adopted in Finding of Fact Nos. 4 and 5 with the exception of the language "after completing six months he was released." Petitioner's Exhibit No. 2, Respondent's Exhibit No. 2 and Respondent's testimony on lines 15-19, page 15 of the transcript shows Respondent served eighteen (18) months of his probationary period. COPIES FURNISHED: Lisa Santucci, Esquire 413-B Larson Building Tallahassee, Florida 32301 Thomas F. Woods, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette Street Tallahassee, Florida 32301 Honorable William Gunter Department of Insurance and Treasurer State Treasurer and Insurance Commissioner The Capitol - Plaza Level Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether Petitioner should be granted a request for exemption from employment disqualification with the Department of Juvenile Justice.
Findings Of Fact At all times pertinent to the issues herein, the Department of Juvenile Justice was the state agency in Florida responsible for the custodial care of juvenile offenders either in agency-run facilities or in facilities operated under contract to the Department. Prior to February 21, 1999, Petitioner had applied for a position with the Okechobee Youth and Development Center which had requested a review of this application. Petitioner was advised that he was disqualified from employment because of his prior criminal record, and on February 21, 1999, he requested a desk review of his application. The request for desk review was granted, and in the letter notifying him of that he was also advised of the his responsibility to provide certain matters in support of his request. On March 8, 1999, Mr. Broff filed an application for employment with Eckerd Youth Alternatives, Inc., an institution which provides services to youth under contract to the Department of Juvenile Justice, and by letter dated March 11, 1999, Petitioner attempted to explain the background surrounding several of the disciplinary actions taken against him. However, by letter dated March 29, 1999, the Department's Inspector General, Mr. Turner, advised Petitioner that his request for exemption had been denied. Mr. Turner based his decision to deny the exemption based upon his conclusion that the matters submitted by Mr. Broff in support of his request did not constitute sufficiently "compelling evidence" upon which to base the granting of an exemption. Mr. Turner indicated that as a criminal justice agency, the Department must exercise great care and caution in selecting those persons who are allowed to work with the juveniles in its care and custody, and at the hearing, he defined what standards were applied in the selection process. These include the applicant's affidavit of good moral character and disclosure of all court action. Mr. Broff's criminal record is extensive. On November 29, 1985, he was arrested by the Rockledge Police Department and charged with shoplifting. Adjudication of guilty was withheld by the court. On May 28, 1986, he was arrested for grand larceny and four charges of failure to appear. He was convicted of the grand larceny charge, but the disposition of the failure to appear charge is unknown. On June 24, 1987, he was again arrested in Rockledge for shoplifting and was convicted. On June 28, 1988, Mr. Broff was arrested in Volusia County on a charge of possession of cocaine and narcotics equipment. The disposition of those charges is unknown. On November 27, 1988, he was arrested by the Brevard County Sheriff's Office on a charge of possession of dangerous drugs and two charges of possession of narcotics equipment. Disposition is unknown. On November 30, 1988, he was again arrested in Volusia County on a charge of possession of narcotics and a charge of possession of narcotic equipment. Disposition is unknown. Mr. Broff's seventh arrest came in Brevard County on March 17, 1991, when he was charged with retail theft and shoplifting. Pursuant to his plea of guilty, he was convicted of the charges. On June 6, 1991, he was arrested by the Cocoa Police Department and charged with grand larceny. He was convicted of the charge after a plea of guilty. Then, on October 23 and 25, and again on December 26, 1991, he was arrested by the Cocoa Police Department for shoplifting. It is not known what the outcome of the first and third charges was, but the second charge was dropped. On April 3, 1992, Mr. Broff was arrested by the Brevard County Sheriff's Office on charges of petty larceny and possession of narcotics equipment. Disposition of the charges is unknown. On May 8, 1992, he was arrested in Cocoa on a charge of shoplifting. Disposition of the charge is unknown. On May 19, 1992, the Brevard County Sheriff arrested Petitioner on a charge of burglary, grand larceny, and vehicle theft. The disposition of the burglary charge is unknown, but the grand larceny charge was reduced to larceny. He pleaded guilty to the lesser charge and to the vehicle theft charge and was convicted of both. On June 4, 1992, he was arrested in Brevard County on a charge of failure to appear. The disposition of that charge is unknown. On August 20, 1992, he was again arrested in Brevard County on four charges of failure to appear regarding allegations of burglary, grand theft, battery, and petty theft. The disposition of all four charges is unknown. However, on September 1, 1992, he was arrested in Rockledge on a charge of burglary and of grand larceny. He was convicted of the burglary and no action was taken on the grand larceny charge. On May 21, 1993, Mr. Broff was arrested by the Brevard County Sheriff's Office on a charge of battery and probation violation resulting out of a charge of retail theft. The battery charge was not prosecuted and the disposition of the probation violation is unknown. On June 11, 1993, he was again arrested in Brevard County on a charge of shoplifting on which adjudication was withheld. On December 18, 1993, he was arrested in Melbourne on a charge of aggravated assault with a knife. He was convicted pursuant to his plea of guilty. On May 28, 1994, he was again arrested in Melbourne of a charge of spousal battery. The charge was dropped. On April 24, 1995, he was again arrested on a charge of domestic battery. This time he was convicted pursuant to his plea of guilty. He was arrested again on October 25, 1995, in Brevard County on a third charge of domestic battery and was convicted pursuant to his plea. On November 12, 1995, he was arrested for violating his probation on the domestic battery charge and for cruelty toward his wife. He pleaded guilty and was convicted. Finally, on December 7, 1995, he was arrested in Brevard County on a charge of failure to appear on a retail theft charge and, pursuant to his plea, was found guilty. A review of the court records pertaining to those arrests reveals that little punishment of substance was imposed on the Petitioner as a result of his convictions. As to the battery charges he was placed on probation each time with no confinement imposed. The only confinement was imposed as a result of the first grand theft charge, for which he was sentenced to 150 days in the county jail; for the possession of drug paraphernalia charge, for which he was sentenced to 33 days in the county jail; and for the five-count charge involving burglary, vehicle theft, and the related offenses. In that case, he was sentenced to 24 months in prison on each of three charges, to serve concurrently, and was credited with 65 days. According to Mr. Turner, Petitioner did submit the affidavit of good character and a written explanation for some of the offenses he committed, along with background information which he believed might shed some insight onto his behavior. Based on the information submitted by the Petitioner, including his personal history, his explanation of the offenses, and the testimonials submitted in his behalf, Mr. Turner denied Petitioner's request for an exemption because of the serious nature of some of the offenses committed by Petitioner; several of the offenses involved his own family; by his own admission, most of his offenses were drug related; and, the overall length of the Petitioner's criminal history--25 arrests over ten years. Those factors were considered in conjunction with what Turner described as insufficient time having elapsed since Petitioner's last offense. In a telephone conversation between Petitioner and Mr. Turner, Mr. Turner is alleged to have indicated the Department's policy to require a period of five years without offenses as evidence of rehabilitation. At the hearing Mr. Turner indicated he considered a minimum of ten years without offenses as acceptable. No evidence of a written department rule or policy defining the length of time required without offense was presented, and it is found there is no defined standard. Mr. Turner admits there is no set period required by the Department. Each case is viewed on its own merits. He considers Petitioner's criminal record the worst he has seen and it is his confirmed opinion that Petitioner should not be permitted to work with the type of clients served by the Department. This is not to say Petitioner should not be allowed to work elsewhere. Petitioner does not deny his criminal history or his former drug addiction. In fact, he contends, the criminal activity was to support his drug addiction. He contends, however, that before he became addicted to drugs and alcohol he had no problem with the law. He was an A/B student in high school and looked toward the possibility of a career in professional baseball. Once the substance abuse began, however, he quickly became addicted and fought for ten years to get clean. It was only when he was in prison that he realized the depths to which he had descended. By this time his self-image was at its worst. He contends that alcohol and drug abuse are manifestations of an inner problem. His mother suffered from a bipolar disorder and his father was an alcoholic who died when Petitioner was 15 years old. Petitioner admits he became just like them. Once Petitioner hit bottom he realized that he had to stop his self-destructive behavior. Fortunately for him, he found Faith Farm Ministries which reached out to him and he entered its long-term program, 18 months in a residential setting followed up by several years in an outpatient setting. It was there he was given back his sense of self-worth and an ability to set goals. Mr. Broff claims he got married when he should not have done so. He married a woman with addictions, and it was a mistake. He attended Brevard Community College where he earned a certificate in heating and air-conditioning repair and installation. That was not what he wanted to do, however. He wanted to become a counselor. For that, he needed further education and he was fortunate to find the help to get it. He continued counseling with his minister, with Alcoholics Anonymous, and with other agencies, all of which caused him to open himself to himself. He went to college and got both an associate and bachelor's degree. Mr. Broff contends that his criminal record is not a true picture of who he is. It reflects an acting-out of his thinking at the time. He is thankful there was someone there for him who gave him a sense of self-worth which allowed him to succeed. Based on his experiences, he believes he can give back to society and wants to do so. Petitioner has been granted an exemption by the Department of Children and Families based on more than three years without problem, as well as his demonstrated personal growth and rehabilitation. More than five years has passed since his last criminal activity, and, in fact, the last two entries were for incidents which took place well before the 5-year period began. He is confident he has rehabilitated himself and could serve as a role model for youth in the various programs conducted by the Department. He is currently working on a master's degree in counseling. Several individuals who are familiar with Petitioner's rehabilitation efforts, including representatives of rehabilitation facilities such as Faith Farm Ministries, Time for Freedom, Alpha Ministries, and Breakthrough Recovery Services, Inc.; representatives of the Department of Children and Families and the Department of Corrections; as well as individuals in the church and in business who know and have worked with him in later years, submitted letters of recommendation in his behalf reflecting his honesty, integrity, professionalism, and commitment to God and His Christian ministry. In these written testimonials, Petitioner is described as a stable and dependable individual whose efforts at counseling those still struggling are excellent. All are convinced of his complete rehabilitation. None of these letters are sworn and none are notarized. As such, their evidentiary value is diminished. In addition, Petitioner did not present any testimony in support of his position other than his own. However, no evidence was presented by the Department to indicate any recurrence of misconduct or of his unworthiness other that his criminal record. Though more direct evidence of rehabilitation by the Petitioner would have reinforced his claim thereof, it is found nonetheless that absent any showing of continuing misconduct, the evidence of record is sufficient to establish rehabilitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a Final Order granting petitioner, Joey Broff, an exemption from disqualification from working with children or youth in programs operated by on under contract with this Department. DONE AND ENTERED this 27th day of September, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2000. COPIES FURNISHED: Joey Broff 4960 West Key Largo Drive Titusville, Florida 32780 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this proceeding is whether Petitioner was convicted of specified criminal offenses, requiring the forfeiture of all of his rights and benefits under the Florida Retirement System, except for the return of accumulated contributions.
Findings Of Fact From 2002 until 2011, including all times relevant to this case, Petitioner Jonathan Bleiweiss ("Bleiweiss") was employed as a deputy sheriff by the Broward Sheriff's Office. As a public employee, he became a member of the Florida Retirement System ("FRS"), which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). On February 12, 2015, Bleiweiss pleaded guilty in the Broward County Circuit Court, Seventeenth Judicial Circuit, to 14 counts of armed false imprisonment.1/ False imprisonment, as defined in section 787.02(1)(a), Florida Statutes, is a felony of the third degree. This crime must be reclassified upward, however, where, as here, "the defendant carrie[d], display[ed], use[d], threaten[ed] to use, or attempt[ed] to use any weapon or firearm" while committing the felony, unless an exception applies, which none did in Bleiweiss's case. See § 775.087(1)(c), Fla. Stat. Accordingly, armed false imprisonment, as charged against Bleiweiss, is a second-degree felony. Based on Bleiweiss's pleas, the court entered judgments of conviction adjudicating Bleiweiss guilty.2/ The Amended Information from one of the criminal cases, which is dated October 1, 2009, sets forth the ultimate facts underlying each of the false imprisonment charges to which Bleiweiss entered a plea of guilty, as follows: [O]n or between [various dates], in [Broward County, Florida, Bleiweiss] did forcibly, by threat, or secretly confine, abduct, imprison, or restrain [the alleged victim] without lawful authority and against his will, and during the commission thereof Jonathan Bleiweiss carried or displayed a firearm . . . . By pleading guilty, Bleiweiss admitted the foregoing allegations, which the undersigned accordingly adopts as findings of fact herein.3/ These facts, however, which closely conform to the elements of the offense, shed little light on what actually happened. At the plea colloquy, Bleiweiss stipulated to a few additional facts, agreeing that if the "cases were to proceed to trial the State would prove that . . . while working as a Broward Sheriff's deputy while dressed in full police uniform and driving a marked police vehicle [Bleiweiss] did forcibly by threat or secretly confine certain individuals whose initials are AL, JM, SG, MP, LS, AP, and JH against their will, and in the course thereof . . . exhibited a firearm." These undisputed factual grounds for Bleiweiss's plea are adopted as findings, as well. The court sentenced Bleiweiss to five years in prison, to be followed by ten years on probation. As of the final hearing in this case, Bleiweiss was incarcerated. In due course the Division learned of Bleiweiss's pleas and adjudications of guilt. Upon review, the Division determined that Bleiweiss had been convicted of "specified offenses" (a legal term that will be discussed below) and concluded that, consequently, he had forfeited his rights and benefits as a member of the FRS. By letter dated November 24, 2015, the Division notified Bleiweiss of its preliminary decision regarding the forfeiture of his retirement benefits and offered him an opportunity to request a formal administrative proceeding to contest the determination. Bleiweiss timely requested a hearing. Although not directly relevant to the disposition of this dispute, it is a fact that, when he was charged with armed false imprisonment, Bleiweiss was also charged with multiple crimes relating to sexual battery upon various persons in his custody. The government nolle prossed these charges simultaneously with the entry of Bleiweiss's guilty pleas. Therefore, the government never proved that Bleiweiss had committed any sex crimes, as alleged, and, obviously, he was not convicted of any such crimes. At the final hearing in this proceeding, the Division could have offered nonhearsay evidence——e.g., the testimony of an alleged victim, eyewitness, or Bleiweiss himself——tending to establish that, in the course of committing the acts of false imprisonment for which he was convicted, Bleiweiss additionally committed sexual batteries against the person or persons whom he had unlawfully detained. The Division, however, did not offer any direct, nonhearsay evidence that during the commission of the felonies to which he pleaded guilty, Bleiweiss had sought or secured any personal gain or advantage in the form of sexual gratification or elsewise.4/ Moreover, when asked at hearing by the Division's counsel whether he had engaged or attempted to engage in sexual activities with any of the persons whom he falsely imprisoned, Bleiweiss testified under oath that he had not. The record contains scant evidence, if any, concerning the actual circumstances surrounding the commission of the crimes to which Bleiweiss pleaded guilty. Bleiweiss testified that it was his understanding that the factual bases for the guilty pleas were that he had conducted traffic stops without probable cause (thereby committing the crime of false imprisonment); conducted searches without probable cause (committing simple battery); and carried a holstered gun, resulting in the upward reclassification of the false imprisonment charge from a third- to a second-degree felony. Bleiweiss made clear, however, that this was not what actually happened, as a matter of historical fact, but rather that this was what he understood to be the factual predicate for the plea agreement. He believes that, in fact, he did nothing wrong and was not guilty of any crimes.5/ Although Bleiweiss did not testify about what he actually did that resulted in his being (as he sees it) wrongfully charged, prosecuted, convicted, and imprisoned, he declared that he had "no problem with" doing so if the undersigned wanted to know. The undersigned elected to let the Division inquire about this, but the Division did not pursue the matter. The result is that the only facts regarding Bleiweiss's conduct which the undersigned can consider in determining whether he committed a specified offense are those set forth above in paragraphs 3 and 4 (the "Basic Facts"). Because the Division, not Bleiweiss, has the burden of proof in this case, the adverse consequences of insufficient evidence fall on the Division. The Basic Facts do not directly establish that Bleiweiss committed the crimes of false imprisonment with the specific intent to defraud the public or the Broward Sheriff's Office of the right to receive the faithful performance of his duties as a deputy, which the Division must prove as a condition of forfeiture. There is, indeed, no persuasive direct evidence in the record of Bleiweiss's intent. Because false imprisonment is a general intent crime,6/ moreover, the commission of this crime does not, without more, give rise to a reasonable inference of fraudulent intent. Here, the Basic Facts establish, in addition to the bare elements of the crime, that Bleiweiss committed false imprisonment while dressed in uniform, carrying a gun, and driving his police car. These facts are not only consistent with the conclusion, but persuasively demonstrate (and it is found), that Bleiweiss used the power of his official position in the commission of these crimes——an additional element that the Division needed to prove. There can be little doubt that Bleiweiss's ability to detain individuals was significantly enhanced, if not dependent upon, the authority of his office, which was literally worn upon his person. Fraudulent intent is another matter. This is because police officers are called upon in the proper exercise of their duties to detain or restrain persons, forcibly or by threat, against their will.7/ The only fact that necessarily distinguishes a lawful arrest from an act of criminal false imprisonment is the presence of "lawful authority." Thus, a police officer who makes a traffic stop without reasonable suspicion,8/ or a warrantless arrest without probable cause,9/ theoretically could commit the crime of false imprisonment——which, to repeat, is a general intent crime that can be committed without the intent to unlawfully detain the victim——even while intending to perform his official duties faithfully; put differently, the commission of false imprisonment is not necessarily so inconsistent with the faithful performance of a police officer's duties that the commission of the crime inevitably implies an intent to defraud on the perpetrator's part.10/ The upshot is that while there is a little more here, factually speaking, than the bare elements of false imprisonment to consider, the circumstantial evidence is yet insufficient to persuade the undersigned to find, by inference, that Bleiweiss intended to defraud the public or his employer, so as to make it appear that he was faithfully discharging his duties when he was not. On the instant record, the undersigned can only speculate that this was the case——and that is not enough. The evidence is even weaker on the question of whether Bleiweiss, in committing the crime of false imprisonment, sought or obtained a profit, gain, or advantage for himself or another person, which is something else that the Division must prove. As previously discussed, the record is devoid of evidence sufficient to establish that Bleiweiss obtained or sought a profit, gain, or advantage for himself in the form of sexual gratification or the fulfillment of some other "untoward intentions." The Division argues that Bleiweiss "gained an advantage over the individuals [whom he falsely imprisoned] by employing his uniform, patrol vehicle, firearm, and general status as an officer of the law who must initially be obeyed . . . ." Resp.'s PRO at 11. Such an "advantage," however, was inherent in the power, rights, privileges, and duties of Bleiweiss's position as a deputy sheriff and was something he had whenever he went to work. An advantage a public employee enjoys by virtue of the power, rights, privileges, or duties of his position cannot be the advantage realized or sought as the object of a "specified offense" as defined in section 112.3173(2)(e)6., Florida Statutes, for the obvious reason that, if it could, the "profit, gain, or advantage" element would always be met——and thus would be unnecessary. The Division's argument on this point must, therefore, be rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order restoring to Bleiweiss his rights and benefits under the FRS and providing for payment to him of any past due benefits, together with interest at the statutory rate. DONE AND ENTERED this 7th day of June, 2016, in Tallahassee, Leon County, Florida. S 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 7th day of June, 2016.
Findings Of Fact The Petitioner, Francisco Palafox, Jr., made applications for licensure as an unarmed guard and an armed guard. In both applications he answered that he had never been arrested. The Petitioner's fingerprints were checked by the Respondent Division through the Federal Bureau of Investigation, and a record of arrest in San Francisco, California, was revealed for Frank Madrano Palafox, Social Security #560-96-6038, born January 14, 1953, in Arizona. Correspondence with the authorities resulted in receipt of records from San Francisco, California (Exhibit 1), which reveal that Frank Madrano Palafox was arrested and charged on August 21, 1973, with possession of a prohibited weapon, but later the charge was dropped to prohibited loitering while carrying a concealed weapon, a misdemeanor. Palafox's occupation on these records is given as Army. The Petitioner produced his military records of discharge (DD 214), on which Petitioner's name, birth date, social security number and birth place were the same as that on the FBI report. Petitioner said that at the time of his arrest he had loaned his identification to another soldier. However, his DD 214 show that he was on leave at the time the arrest occurred, and that he was charged for excessive unearned military leave for the same number of days the arrest record shows that Palafox was jailed. The Petitioner then remembered he was arrested for "aiding and abetting prostitution." The Petitioner did not report the arrest for aiding and abetting on his application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Petitioner's applications for licensure as an unarmed guard and an armed guard be denied. DONE and ORDERED this 9th day of January, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Francisco Palafox, Jr. 1551 Michigan Avenue, Apt. 12A Miami Beach, Florida 33139
Findings Of Fact Respondent took the examination for real estate salesman and was licensed December 16, 1982. His license was last renewed in December 1984 (exhibit 1 and Price testimony). At all times relevant hereto he was licensed by Respondent as a real estate salesman. By judgment dated-May 10, 1985, Buford D. Price was convicted of murder in the third degree, possession of cocaine, and possession of narcotic paraphernalia. Respondent was sentenced to seven (7) years imprisonment on the murder charge, imposition of sentence was withheld on the narcotic charges and he was placed on probation for five (5) years to run consecutively to the imprisonment. Respondent expects to be released from prison by June 1988 although his current release date is June 8, 1989. For the past three months he has been working outside prison on the highways and in communities. Prior to his arrest and incarceration Respondent worked principally for property management companies and Pulte Homes. As owners of the property leased or sold their salesmen do not need a real estate license to sell or lease such property only.
The Issue Among the issues in this case are: Whether a court order sealing records of a criminal prosecution bars action by a school board against its employee on account of the facts underlying the prosecution? Whether the evidence showed that what was seized was actually marijuana? Whether the evidence established constructive possession? Whether the evidence showed that respondent's effectiveness as an employee of petitioner had been reduced? Whether petitioner can discipline an employee for "immorality" occurring before employment began? Whether petitioner can discipline an employee for "immorality" now that Section 231.36, Florida Statutes (1981) has been amended to delete "immorality" as such as grounds for dismissal or suspension?
Findings Of Fact After a telephone caller's report that a marijuana plant was visible in an apartment window was relayed by the Clewiston police dispatcher to Corporal Deese and Patrolman Meskin, they spotted the plant through a window on the ground floor of the Von Mach apartment building. Corporal Deese examined the specimen with binoculars, and photographs were taken. That afternoon, a warrant was issued authorizing the search of the corner apartment in which the plant stood. THE ARREST The following day, June 13, 1981, Officers Deese, Meskin and Hand executed the warrant. When they knocked at the apartment door, respondent Walton called out, "Come in." In one bedroom, they found towels lying around and men's clothing. They also found a marijuana plant and another species of plant growing in pots. A mirror had been positioned to reflect the sun's rays onto the plants. The only other bedroom in the apartment seemed to be unoccupied. The mattress in that bedroom lacked sheets. Respondent told them his roommate had moved out. Daniel Fairchild, employed, like respondent at the time, as a teacher at Clewiston High School, lived in the apartment from the beginning of October until mid-December, 1980. Norman Vaughn shared the apartment with respondent from early January of 1981, until June 12, 1981. When patrolman Meskin asked Mr. Walton to produce any other drugs in the house, respondent retrieved a plastic bag containing marijuana from among some newspapers on the floor. The searching party also seized a stained hemostat and a package of rolling papers. EFFECTIVENESS In the spring of 1981, there was "a widespread incident involving students in use of drugs" (T. 111) at Clewiston High School, with which respondent had nothing to do, as far as the evidence showed. Some students were expelled for the remainder of the school year, as a result. Mr. Walton's arrest for possession of marijuana was reported in the Clewiston News, a newspaper of general circulation in Hendry County, and became general knowledge in Hendry County. There was no evidence that any member of the public in Broward County had learned of Mr. Walton's arrest when these proceedings began. Respondent was employed by the Hendry County School Board on an annual contract basis. For reasons unrelated to this case, the 1980-1981 school year was his last as an employee of the Hendry County School Board. He finished working for the Board on June 12, 1981. PROPOSED FINDINGS CONSIDERED Both petitioner and respondent made post-hearing submissions, and their proposed findings of fact have been duly considered and, in large part, adopted in substance. To the extent they have been rejected they have been deemed irrelevant or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the petition for dismissal filed against respondent. DONE AND ENTERED this 25th day of January, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1983. COPIES FURNISHED: Charles T. Whitelock, Esquire 1244 Southeast Third Street Ft. Lauderdale, Florida 33316 Richard H. Frank, Esquire Mark F. Kelly Law Offices of Frank & Kelly, P.A. 341 Plant Avenue Tampa, Florida 33606 William T. McFatter Superintendent of Schools The School Board of Broward County, Florida 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 =================================================================
Findings Of Fact Petitioner Robert Friedman, who has resided in Miami, Florida since January 1973, filed an application with Respondent for registration as a real estate salesman on January 9, 1978. Question 6 of the application was answered by the Petitioner as follows: 6. 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 (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? Yes If yes, state details including the outcome in full: Arrested in Feb. '72; charged with sale of dangerous drugs - sentenced to 6 mos. in Allenwood & 2 yrs. probation - Prior to Feb. '72, approximately 5 arrests - all dismissed. Respondent issued an Order denying the application on May 22, 1978, because Petitioner failed to disclose in his application the fact of his arrest in Dade County, Florida, on January 25, 1974, on a charge of grand larceny. The Order also noted that the February 1972 arrest disclosed by Petitioner in the application actually occurred in February, 1971. Based on the foregoing, Respondent found that Petitioner had not made it affirmatively appear that he met the qualifications for registration contained in Chapter 475, Florida Statutes. (Petitioner's Exhibit 6, Pleadings.) A Federal Bureau of Investigation Record showing numerous arrests of Petitioner by state and federal authorities dating from 1966, primarily on charges alleging drug offenses, was received in evidence without objection by Petitioner. Petitioner testified that the record was true. (Petitioner's Exhibit 1, Testimony of Friedman.) On January 25, 1974, Petitioner was arrested in Miami, Florida, on a charge of grand larceny in violation of Section 811.021, Florida Statutes. He was found guilty of the offense in the Dade County Circuit Court, Case No. 74- 964, on April 26, 1974, but adjudication of guilt was withheld and he was placed on probation for a period of eighteen months. (Petitioner's Exhibits 1, 3-5). Petitioner testified at the hearing and admitted his failure to list the 1974 arrest on his application to Respondent. His explanation for the omission was that the Circuit Judge had told him that he could "forget about it" because adjudication of guilt had been withheld, and his lawyer had said that it would never interfere in the future. Petitioner denied that he was attempting to deceive the Respondent in his application, but had attempted to forget the arrest and did not intentionally omit it from his application. He further testified that he had been a drug addict who had been in a methadone program of treatment until about two and one-half years ago, but that he was now leading a normal life without drugs. (Testimony of Petitioner.)
Recommendation That the application of Robert Friedman for registration as a real estate salesman be denied. DONE AND ENTERED this 7th day of November 1978 in Tallahassee, Florida. COPIES FURNISHED: S. Ralph Fetner, Jr. Staff Attorney Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Robert Friedman 242 Southwest 78th Place Miami, Florida 33144 THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November 1978.
The Issue The matters to be determined in this case concern an administrative complaint which has been filed against Monroe Monford a/k/a Monroe Monford, Jr. seeking to take disciplinary action based upon the allegation that the Respondent, by the entry of a plea of guilty to a violation of Section 893.13(1)(e) Florida Statutes, possession of cocaine, has thereby violated Sections 455.227(1)(c) and 465.016(1)(f), Florida Statutes.
Findings Of Fact Respondent, Monroe Monford also known as Monroe Monford, Jr. is a pharmacist licensed under the laws of the State of Florida, License No. 0009494 whose address is 3822 Elbert Avenue, Jacksonville, Florida 32208. In June of 1982 an investigation was conducted by the Duval County Sheriff's office, Duval County, Florida leading to the arrest of the Respondent. The arrest occurred at 5929 Ramona Boulevard in the Days Inn Motel. A monitor had been placed in the room where a suspected drug transaction was to occur and it was determined that the Respondent was involved in that transaction to the extent of conducting a test to ascertain if the substance being purchased was actually cocaine. It was later determined to be cocaine. Another individual who was in the room with Monroe Monford, one Eddie Lee Tuff, went to a car to obtain money that was being paid for cocaine. Subsequent to that time law enforcement officials entered the room which was under surveillance and found Monroe Monford on the bed counting the money in question. Monford was arrested for a violation of Section 893.135, Florida Statutes, trafficking in a controlled substance, namely cocaine. In response to charges which were brought against Respondent in the Circuit Court of Duval County, Florida, Case No. 82- 5383CFS, Respondent entered a plea of guilty to the sale of cocaine and received a period of probation of five years, assessment of court costs in the amount of $12,153 and as a special condition of probation, was prohibited from practicing pharmacy in Florida or any other state while serving the probationary term. The offense to which he plead guilty was a violation of Section 893.13, Florida Statutes. Respondent was not adjudged guilty of the violation of law to which he plead, imposition of the sentence having been withheld pending the satisfactory completion of the probationary period. The date of the court disposition of the case was October 15, 1982.
