The Issue Respondent's alleged violation of Monroe County District School Board Policy Rule 2.5.1 on or about January 8, 1976, by possession of marijuana on school grounds.
Findings Of Fact Respondent is a 16 year old, 11th grade high school student attending Marathon High School, Marathon, Florida. On January 8, 1976, Respondent was found in possession of 32 grams of marijuana on the grounds of Marathon High School. (Stipulation of the Parties) On April 21, 1976, the Circuit Court of Monroe County, Florida, accepted Respondent's plea of guilty to a charge of possession of marijuana, withheld adjudication as a delinquent and placed him on probation for a period of six months under the supervision of a Youth Counselor, State of Florida Youth Services Division. Conditions of probation included a curfew, weekly meetings with the counselor and part-time employment while attending school. (Testimony of Seale) At the time of his apprehension, Respondent admitted possession of marijuana to authorities and cooperated with them by divulging its source. Respondent denies any prior arrests and, in the opinion of the Youth Counselor, he is not likely to commit an offense of this nature in the future. He has evidenced remorse and desires to continue attendance at the high school. The Youth Counselor feels that it would serve no useful purpose to prevent him from further attendance. (Testimony of Seale, Collins) Respondent is not a problem student nor is he considered to be incorrigible or a socially maladjusted child. An alternative to expulsion exists at Marathon High School in the form of a rehabilitative program for socially maladjusted children that is supervised by one instructor who exercises close supervision over the students in the program. A student who is expelled from high school may enter an evening adult education program whereby he can acquire necessary academic credits by attending evening classes. The principal of Marathon High School recommends that Respondent be expelled because of the seriousness of his offense as evidenced by the unusually large amount of marijuana. (Testimony of Gradick)
Recommendation That Respondent, Gordon Collins, be expelled from Marathon High School, Marathon, Florida, effective June 8, 1976, for violation of Monroe County District School Board Policy Rule 2.5.1, by possession of marijuana on the school grounds on or about January 8, 1976. DONE and ENTERED 14th day of May, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1976. COPIES FURNISHED: Glenn Archer, Jr. Assistant Superintendent Post Office Drawer 1430 Key West, Florida 33040 Peter Lenzi, Esquire Post Office Box 938 Marathon, Florida 33050
Findings Of Fact The Petitioner is an inmate incarcerated at the Florida State Prison in Starke, Florida. In accordance with plea arrangements, Petitioner was convicted of numerous charges of robbery, burglary, sexual battery, and false imprisonment in Circuit Courts in Dade and Broward Counties, Florida. He received numerous and various prison sentences, all of which were to run concurrently with a 99- year sentence. Assuming that Petitioner is eligible for statutory gain time for good behavior, his sentence would expire sometime prior to the year 2080. During July, 1981, Petitioner was interviewed by an examiner of the Florida Parole and Probation Commission for the purpose of establishing a presumptive parole release date (PPRD). Under Parole and Probation Commission rules then in effect, the examiner was to consider the severity of the offense committed by the Petitioner, calculate a "salient factor score" and apply various aggravating or mitigating circumstances in determining a recommended PPRD. The examiner classified the offense as "greatest (most serious III);" determined a salient factor score of nine based upon prior convictions, total time served, the existence of burglary as a present offense of conviction, the number of prior incarcerations, and the Petitioner's age of first commitment; and applied numerous aggravating circumstances based upon the nature of various of the charges that had been lodged against Petitioner. The examiner recommended a PPRD of March 4, 2092. On August 26, 1981, the Parole and Probation Commission considered the examiner's recommendation and affirmed it. Petitioner is now pursuing a review of the PPRD before the Commission. In promulgating the rules which were in effect when Petitioner'S PPRD was determined, the Parole and Probation Commission sought to isolate factors that would predict the probability of a successful parole outcome. There is no perfect predictive device on a case-by-case basis. An inmate's past behavior and statistical relationships that can be isolated provide the best predictive devices. The Commission's C utilization of a system which first classifies the offense characteristics, then applies a salient factor score and aggravating or mitigating circumstances is designed to set a presumptive parole release date based on an inmate's past behavior and based upon the statistical relationships that have been found to exist. The evidence does not establish that the guidelines adopted by the Commission in its rules which were applied to the Petitioner are arbitrary, capricious or unreasonable. The Parole and Probation Commission has amended the rules which were followed in the setting of the Petitioner's PPRD. The Petitioner continues to be affected, however, by the rules as they existed prior to the amendments because those rules provide the basis for his PPRD.
The Issue The issue is whether Respondent should deny an application for a real estate sales associate license on the alleged grounds that, in violation of Subsections 475.17(1)(a), 475.181, and 475.25(1)(f), Florida Statutes (2008),1 the application discloses two felony convictions for crimes of moral turpitude, the initial application omitted a misdemeanor conviction for driving under the influence (DUI), and the applicant’s explanation in mitigation of the incidents is allegedly unpersuasive.
Findings Of Fact Respondent is the state agency responsible, in relevant part, for licensing real estate sales associates in the State of Florida, pursuant to Chapter 475. Petitioner applied for a real estate sales associate license on March 8, 2007, and Respondent proposes in this de novo proceeding to deny the application. Respondent states several grounds for the proposed denial of Petitioner’s application. First, the application discloses two felony convictions for crimes of moral turpitude, and the crimes would have been grounds for revoking or suspending a real estate license. Second, Petitioner omitted a DUI misdemeanor conviction from the initial application before the application was complete. Third, Respondent claims the applicant has not demonstrated honesty, truthfulness, trustworthiness, good character, and a good reputation for fair dealing. Finally, Respondent considers the applicant’s testimony in explanation or mitigation of the crime and omission in his initial application to be unpersuasive. The application discloses two felony convictions on November 23, 1993. When Petitioner was approximately 18 years old, Petitioner and three other teenagers committed aggravated battery with a deadly weapon and armed robbery against two male adults in Lee County, Florida. One of the teenagers struck each victim with a baseball bat; took articles of clothing, jewelry, wallets, and fishing rods and reels from each victim; and divided the articles among the perpetrators. Each teenager was under the influence of alcohol and controlled substances, including marijuana and other drugs. The victims required hospital treatment. The two felony convictions involve crimes of moral turpitude. The crimes exhibit inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. The two felony convictions are grounds for revoking or suspending a real estate license. On March 29, 1995, Petitioner pled nolo contendere to two counts of robbery with a deadly weapon and two counts of aggravated battery. The court adjudicated Petitioner guilty, sentenced Petitioner to 10 years’ imprisonment, to be followed by two years of probation, and ordered Petitioner to pay $1,500.00 in restitution to the victims. When the court convicted Petitioner on March 29, 1995, Petitioner was not qualified for a real estate sales associate license within the meaning of Subsection 475.17(1)(a). The statute deems that Petitioner is not qualified for a real estate sales associate license today, unless by lapse of time and subsequent good conduct and reputation or other sufficient reason, it appears the interest of the public and investors will not likely be endangered by licensing Petitioner. For reasons stated hereinafter, a preponderance of evidence shows the crimes in 1993 do not make it likely that licensing Petitioner as a real estate sales associate will endanger the public. The testimony of Petitioner in explanation and mitigation of the crimes committed in 1993 is persuasive. Petitioner did not inflict physical harm on either of the victims. Petitioner’s participation was limited to driving the vehicle, which was his mother’s car, used in the commission of the crimes and accepting a portion of the stolen property. Petitioner was intimidated by the teenager who used the baseball bat on the victims, and that teenager was under the influence of alcohol and controlled substances. When arrested, Petitioner admitted his guilt to police and cooperated fully in the investigation. When sentenced, Petitioner faced the victims in open court, admitted his guilt, accepted responsibility, and apologized to the victims and their family members. Sufficient time has lapsed for Petitioner to be rehabilitated and to overcome the statutory presumption of unfitness. Approximately 15 and 14 years have passed, respectively, from the dates of the commission and conviction of the crimes. Almost six years have passed from the successful completion of probation on June 5, 2003. Petitioner’s subsequent good conduct after 1993 demonstrates his rehabilitation. Petitioner paid the $1,500.00 in restitution ordered by the court. Petitioner was released from prison in late 1999, after serving four years and eight months of his 10-year sentence. While in prison, Petitioner took classes in drafting, anger management, and life skills. Petitioner also attended alcoholics anonymous and narcotics anonymous. Petitioner taught other inmates and read extensively. Petitioner also assisted with the development of a volley ball team for prisoners. Upon release from prison in late 1999, Petitioner moved to North Carolina for approximately two years, primarily to avoid contact with his former peer group. Petitioner worked two jobs and attended college where he continued to study drafting. In North Carolina, Petitioner was injured in an automobile accident and suffered severe head injuries. Petitioner was in a coma for nine days. After recovering from his injuries, Petitioner returned to his family in Lee County, Florida. Petitioner has been gainfully employed, self-supportive, and has been working for the past couple of years in a real estate office as an unlicensed assistant. Petitioner has earned a reputation for honesty, truthfulness, trustworthiness, and good character and has earned a good reputation for fair dealing in a relationship of trust and confidence with safety to investors. Petitioner’s girlfriend and grandmother are each licensed by Respondent as real estate brokers. Both licensees recommend Petitioner for licensure. Two disinterested licensees also recommend Petitioner for licensure.2 On February 14, 2007, Petitioner was convicted of a DUI misdemeanor. Petitioner paid the court-ordered fine and satisfactorily completed his sentence of community service and probation. A preponderance of evidence does not show that the misdemeanor conviction for DUI is a crime of moral turpitude or one that directly relates to the duties of a real estate sales associate. Respondent did not cite any legal authority to show that the DUI conviction would be a ground for license revocation or suspension, if Petitioner were licensed. Finally, the DUI conviction does not evidence a lack of honesty, truthfulness, trustworthiness, good character, or fair dealing. The initial application from Petitioner omitted the DUI conviction. Petitioner corrected the omission before the application became final and before Respondent formulated any proposed agency action. Respondent notified Petitioner by letter dated August 5, 2008, of the omission. The letter notified Petitioner that the application was incomplete without documentation of the DUI conviction and requested the documentation needed to complete the application. Petitioner promptly complied and provided the requested documentation on August 22, 2008. If the initial application had disclosed the DUI conviction, Respondent cited no legal authority that would make the DUI conviction a ground for denying the application. Petitioner did not omit the DUI conviction from the initial application through a lack of candor. The testimony of Petitioner was credible and persuasive.3 The omission of the DUI conviction from the initial application evidences a lack of diligence. Any incompetence or lack of diligence that remains after August 22, 2008, when Petitioner completed the license application, can be corrected through a probationary license authorized in Florida Administrative Code Rule 61J2-24.001(2).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting a probationary salesperson license to Petitioner consistent with the terms of this Recommended Order. DONE AND ENTERED this 24th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2009.
Findings Of Fact The Hearing Officer's Finding of Fact in paragraph 5 of the Recommended Order that the Respondent made certain notification to the Florida Board of Medicine is rejected as not being supported by competent substantial evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Board impose a probation of five years upon the Respondent during which it can require him to do any of the things required in the agreement between the Respondent and the Georgia Board except those things which have already been performed and which are not recurring requirements. DONE and ENTERED this 19th day of April, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995.
