Other Judicial Opinions A party who is adversely affected by this order closing file is entitled to Judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950, and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that this Order Closing File was filed in the official records of the Department of Management Services and copies were furnished to: Larry D. Scott, Assistant General Counsel, Department of Management Services, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950; Jane M. Letwin, Esquire, 5426 SW 25" Avenue, Fort Lauderdale, Florida 33312, and Judge Claude B. Arrington, Division of Administrative Hearings, the DeSoto net Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-3060, this | a day of Quis, Us? ‘ , 2009. Debbie Shoup Clerk Department of Management Services (850) 487-1082 2 of 2 Jul 11 2009 11:41 a7/11/2889° 12:23 9549617454 PACK-SHIP&BEYOND PAGE 91/03 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS GLORIA MARSHALL, Petitioner CASE NO: 08-3716 JUDGE ARRINGTON v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT. Respondent. / PETITIONER’S AMENDED NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE PETITIONER, GLORIA MARSHALL, through undersigned counsel, hereby files this AMENDED PETITIONER’S NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE, on the following grounds: 1. Petitioner Marshall is not working for the employer since June of 2008, when she retired after a long career as an employee of the Broward County School Board. Most of the documents to be used in this petition are already in possession of Respondent and the attorney for Petitioner. 2. Petitioner patiently and conscientiously worked as an adult ed teacher from 1981 through 2005, a period of some twenty four years. EXHIBIT att Jul 11 2009 11:41 @7/11/2889 12:23 9549617454 PACK-SHIP&BEYOND PAGE 62/83 3. In view of the relationship between the Repondent and Petitioner, who has been enrolled several times in the FRS, Petitioner contends that the Respondent exercise its fiduciary duty to act in the best interests of the member by not opposing this dismissal without prejudice. 4. Petitioner contends that no prejudice to Respondent will result. 5. No expenses have been incurred thus far other than the transmission of employment records by the Respondent to undersigned counsel, and those will not change. If a plan has been proposed for the case by Respondent, that plan can be laid aside and will serve the same purpose in the future. 6. In light of the circumstances which prevail, to insist on the prosecution of this petition at this time will not serve the interests of justice. 7. Petitioner has indicated that she is unable to assist in this petition until the month of December 2009. 8, In addition, the goal sought in these proceedings is a very precious one, that is, a pension and social security fund which will influence the comfort or lack thereof of this petitioner’s last years, and is worthy of the Court’s indulgence in acknowledging this dismissal without prejudice. BASED ON THE FOREGOING recitation of facts, Petitioner files this ‘ Amended Notice of Voluntary dismissal without prejudice. Jul 11 2009 11:42 97/11/2009 12:23 9549617454 PACK-SHIP&BEYOND PAGE 43/03 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been fax-filed with the Department of Administrative Hearings and e-mailed to 850 922 6312, to Larry Dz. Scott, Esq., Asst. General counsel to DMS, 4050 Esplanade Way, Suite 160, Tallahassee, Florida 32399-0950 Eleventh day of July, 2009. LAW OFFICE OF JANE M. LETWIN Attorney for Petitioner: Florida Bar Number 990329 5426 SW 25" Avenue, Fort Lauderdale Fl 33312 Phone: 954 245 8495: Fax: 954 301 8401 E-mail; Janeletwintv@aol.com By * ou Jane M. Letwin
The Issue Whether Petitioner is entitled to an award of attorney's fees pursuant to Section 57.111, Florida Statutes.1/
Findings Of Fact The Department is the state agency charged with the regulation of workers’ compensation insurance in the State of Florida. The Department issued a Stop Work Order to Petitioner on June 6, 2006. On June 27, 2006, the Department issued an Amended Order of Penalty Assessment, assessing $272,948.96 in penalties against Petitioner. Petitioner timely challenged the Stop Work Order and Amended Order of Penalty Assessment and requested an administrative hearing. A formal hearing was held on October 5, 2006. The Recommended Order, which was entered on November 28, 2006, recommended that the Department enter a final order rescinding the Amended Order of Penalty Assessment and the Stop Work Order. On February 23, 2007, a Final Order was issued by the Agency adopting the findings of fact and conclusions of law set forth in the Recommended Order. On March 30, 2007, Petitioner filed the Petition with a supporting affidavit and fee statement which initiated the instant proceeding. In the Petition, Petitioner seeks relief under the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes. There is no dispute that Petitioner is the prevailing party in the underlying case. Petitioner seeks attorney's fees in the amount of $20,197.50. There is no dispute as to the reasonableness of the fees sought. At the time the underlying action was initiated, Petitioner was a sole proprietor located in Jacksonville, Florida, which engaged in the business of cutting trees. There is no dispute that Petitioner is a small business party for purposes of Subsection 57.111(4)(a), Florida Statutes. On June 6, 2006, the Department’s investigator, Michael Robinson, conducted a site visit at a job site where he observed five individuals, four of whom were involved in tree cutting activities. During his June 6, 2006, site visit, Robinson interviewed the four individuals and recorded their responses on a field interview worksheet. The workers identified Nolan as their employer, and answered Mr. Robinson’s questions regarding how long they had been employed by Nolan, and their basis of pay. One of the workers informed Mr. Robinson that he had been employed by Nolan for two weeks; a second worker informed him that he had worked for Nolan for three weeks. Both of these workers informed Mr. Robinson that they were paid on a daily basis. A third worker informed Mr. Robinson that he was paid by the job. The workers were compliant and responsive to Mr. Robinson’s inquiries. Mr. Nolan was not at the jobsite at the time of Mr. Robinson’s site visit, but Mr. Robinson obtained his phone number, called, and left a message. Mr. Nolan promptly returned the call. Mr. Nolan was also compliant and responsive to Mr. Robinson’s questions. Mr. Nolan acknowledged to Mr. Robinson that the four individuals interviewed by Mr. Robinson were his employees and that he had no workers’ compensation insurance. Mr. Nolan also informed Mr. Robinson that his business was a non-construction business entity and was not required to carry workers’ compensation insurance. Mr. Robinson told Mr. Nolan that he was required to have workers’ compensation insurance. Mr. Robinson also searched the Coverage and Compliance Automated System (CCAS) and found no proof of coverage nor an exemption for Nolan. The Stop Work Order On the same day as the site visit, Mr. Robinson conferred with his supervisor, Robert Lambert, to discuss the issuance of a stop work order. Mr. Robinson conveyed to Mr. Lambert that Nolan had four employees who were non- construction workers, and that there was no workers’ compensation coverage. Mr. Robinson did not convey the short duration of employment of two employees or that they were paid daily or by the job. Based upon this information, Mr. Lambert immediately approved a Stop Work Order, which was issued that day. Mr. Robinson also issued a request for business records to Nolan for the purpose of calculating a penalty for lack of coverage. Paragraphs 12 through 24 of the Recommended Order, adopted within the Final Order, found that Mr. Nolan started the business, Great Southern Tree Service, in February or March 2005, as a sole proprietor; that he did not employ anyone in 2003 or 2004; that the nature of the tree trimming business is seasonal and sporadic; that Nolan had fewer than four employees during 2005; and that the only time Nolan had four employees was from May 2006 until June 6, 2006, when two workers worked occasionally for Nolan due to tree damage in the Jacksonville area from a storm. Nolan did not produce business records as requested by the Department because there were no such records to produce. The Amended Order of Penalty Assessment On June 27, 2006, an Amended Order of Penalty Assessment (Amended Order) was issued to Nolan in the amount of $272,948.96, for the time period June 6, 2003 to June 6, 2006. Attached to the Amended Order is a worksheet with the names of the four workers interviewed by Mr. Robinson on June 6, 2006. Using a statutory formula, Mr. Robinson imputed a penalty for the period October 1, 2003 to June 6, 2006, and a penalty of $100 per day for the time period between June 6, 2003 and September 30, 2003. At the time of the issuance of the Stop Work Order and the Order of Penalty Assessment, Mr. Robinson and Mr. Lambert were aware of the statutory requirement that to be considered an employer under the workers’ compensation law, four or more persons must be employed by the same private non-construction employer. However, neither Mr. Robinson nor Mr. Lambert was aware of well-established case law holding that the elements of regularity, continuity, common employment, and duration, should be considered in determining the applicability of the law, and that an occasional increase in the number of workers for some unusual occasion does not automatically result in application of the workers' compensation law.2/
The Issue The issues in this proceeding are whether Respondent violated Chapter 475, F.S., by: Being convicted of a crime involving moral turpitude. (Subsection 475.25 (1)(f), F.S.) Being confined in a federal prison; (Subsection 475.25(1)(n), F.S.) and Failing to notify the Florida Real Estate Commission in writing within 30 days of his conviction. (Subsection 475.25(1)(p), F.S.)
Findings Of Fact Daniel Reagan Lee is licensed as a real estate salesman in the State of Florida under License No. 0145478. He renewed his non-active salesman license on October 1, 1982, and two years later the license expired. It has not been renewed. (Petitioner's Exhibit #1) On July 1, 1985, in a trial by jury, in the U.S. District Court for the Middle District of Florida, Mr. Lee was found guilty of three counts of a Grand Jury criminal indictment. He was found not guilty of one count of the same indictment. (Case No. 84-95-Cr-T-15)(Petitioner's Exhibit #3) The convictions were for importation of marijuana in violation of Title 21, U.S.C., Section 952 and Title 18, U.S.C., Section 2; conspiracy to possess with intent to distribute marijuana, in violation of Title 21, U.S.C., Section 846; and possession with intent to distribute marijuana, in violation of Title 21, U.S.C., Section 841(a)(1) and (2). (corrected version of Petitioner's Exhibit #3, filed by leave of the Hearing Officer on October 23, 1986.) On July 26, 1985, Mr. Lee was sentenced by U.S. District Judge William J. Castagna to three years of imprisonment and two years of special parole. (Petitioner's Exhibit #3.) On March 25, 1986, the Florida Real Estate Commission received a letter from Daniel Lee's mother, advising them of her son's conviction and incarceration. (Petitioner's Exhibit 5a, transcript, p. 11.) Daniel Lee is now and has been since August 1986, serving his sentences at the Federal Correctional Institution in Lexington, Kentucky. (Respondent's Answer dated July 5, 1986, Petitioner's Exhibit #5a.)
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered finding Daniel Lee guilty of violations of Subsections 475.25(1)(f), (n) and (p), F.S., and revoking his non- current inactive real estate salesman's license. DONE and RECOMMENDED this 17th day of December, 1986, in Tallahassee, Florida. MARY CLARK 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 17th day of November, 1986. COPIES FURNISHED: Susan Hartmann, Esquire Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Daniel R. Lee, 04314-018 Antaeus Unit Post Office Box 2000 Lexington, Kentucky 40512 Daniel R. Lee c/o Elizabeth C. Lee 1025 Hillsboro Avenue Ft. Myers, Florida 33905 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
The Issue Whether Petitioner, by pleading guilty to a charge of organized scheme to defraud, in violation of Sections 817.034(4)(a)1. and 777.011, Florida Statutes, committed a “specified offense” under Section 112.3173, Florida Statutes, and forfeited all rights and benefits under the Florida Retirement System.
Findings Of Fact Based on the testimony and documents presented as evidence at the hearing, the following Findings of Fact are made: Petitioner is a retired physical education teacher who is a member of the Florida Retirement System (FRS). Dr. McCoggle entered the Deferred Retirement Option Program (DROP) on or about August 1, 2003, and ended his participation in DROP on June 3, 2005. Respondent is the agency responsible for managing, governing, and administering the FRS. At all times material to the allegations of this case, Petitioner was employed by the Miami-Dade County Public Schools (MDCPS or the school district) as a high school physical education teacher and coach. After ending his participation in DROP in June 2005, Petitioner was issued a warrant for his DROP-accumulated funds, but payment of the warrant was stopped. On July 18, 2005, Petitioner was charged with certain crimes, based on events that occurred while he was a physical education teacher. Specifically, a Miami-Dade County Grand Jury issued an indictment charging Petitioner with one count of grand theft, first degree, in violation of Sections 812.014(1)(2)(a) and 777.011, Florida Statutes, and one count of a scheme to defraud, as defined in Subsection 817.034(3)(d), that constituted organized fraud in violation of Sections 817.034(4)(a)1. and 777.011, Florida Statutes (2005). On November 17, 2005, an amended information filed to supersede the indictment provided: WILLIAM L. McCOGGLE, from on or about JANUARY 1, 1999 to on or about MARCH 31, 2004, in the County and State aforesaid, did unlawfully and feloniously engage in a scheme to defraud as defined by s. 817.034(3)(d), Fla. Stat., by engaging in a systematic, ongoing course of conduct with intent to defraud one or more persons, to wit: MIAMI-DADE COUNTY PUBLIC SCHOOLS, by false or fraudulent pretenses, representations, or promises or willful misrepresentations of a future act, and did thereby obtain property, to wit: U.S. COINS OR CURRENCY, of an aggregate value of fifty thousand dollars ($50,000.00) or more, the property of MIAMI-DADE COUNTY PUBLIC SCHOOLS, as owner or custodian, in violation of s. 817.034(4)(a)1 and s. 777.011, Florida Statutes, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. (Emphasis added.) On November 18, 2005, a plea agreement between Petitioner and the State was filed, in which Petitioner pled guilty to the one count in the amended information and the circuit court entered a judgment adjudicating Petitioner guilty. After notice of the guilty plea and judgment, Respondent’s legal office reviewed grand jury and court documents, determined that Petitioner had been convicted of a specified offense under Section 112.3173, Florida Statutes, and recommended the termination of Petitioner’s rights and benefits under the FRS. On September 6, 2006, Respondent notified Petitioner, by letter, of the forfeiture of his FRS rights and benefits. On September 25, 2006, Petitioner timely sought an administrative review of the agency action. The legal action taken against Petitioner resulted from his involvement, for at least a decade, in arranging for teachers to receive academic credit for state and school district-required teacher certification and recertification. According to the grand jury and Petitioner, he entered into agreements with accredited post-secondary educational institutions for Petitioner on his own, at first, and then through his organization, Move on Toward Education and Training (MOTET), to provide courses to teachers and for the colleges to provide them transcripts. The grand jury found that teachers came to Dr. McCoggle at the high school where he was teaching, after regular school hours and on Saturday mornings, and paid him to sign-up for classes. Dr. McCoggle’s use of school facilities was authorized. Teachers from Miami-Dade, Broward, and Palm Beach Counties participated in the program. The grand jury also found that the transcripts were fraudulently obtained because there were no classes, no tests, no homework, no assignments, and that no teachers attended any classes. As counsel for the Respondent summarized the issues in this case, in his Proposed Recommended Order, any public employee (undisputed) who is convicted of a specified offense (disputed) committed prior to retirement (undisputed) shall forfeit all rights and benefits under any public retirement system of which he or she is a member (undisputed). The evidence supports Petitioner's claim that his guilty plea to a scheme to defraud was not related to the performance of his official duties as a physical education teacher and coach. Petitioner notes that defrauding a public employer is not a "specified offense" unless the fraud is job- related. The grand jury's final report that was introduced as Respondent's Exhibit 1 and the Petitioner's testimony support a conclusion that he charged the teachers fees but took no money directly from the school district. Petitioner notes that a theft is a "specified offense" only if the victim is the public employer. It is the position of the school district that, by pleading guilty to a scheme to defraud, Petitioner pled guilty to theft, and that he committed the theft by assisting teachers in getting paid public funds of the MDCPS to which they were not entitled.
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 requiring William L. McCoggle to forfeit all rights and benefits under the Florida Retirement System. DONE AND ENTERED this 20th day of March, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 20th day of March, 2007. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Emily Moore, Esquire Florida Education Association 118 North Monroe Street Tallahassee, Florida 32301 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner V.S. is the managing director of Source of Light and Development, Inc., a non-profit corporation which operates "Hope House", a licensed emergency shelter home. The license is issued jointly to V.S. and to Hope House. There is no evidence that the Petitioner is the sole owner of the facility or the corporation. The evidence establishes that the shelter could continue to operate under the direction of another individual if V.S. were no longer responsible for the facility. At some point in 1991, Respondent Department of Health and Rehabilitative Services ("DHRS") received a report alleging that V.S. had been driving under the influence while a resident of Hope House was in the vehicle. Although the record is unclear as to what information was available to the agency at that time, (the Hope House resident allegedly in the vehicle operated by V.S. refused to offer a statement) the DHRS classified the report as proposed confirmed and advised V.S. that she could request that the classification be reviewed. On July 19, 1991, V.S. requested that a proposed confirmed report of abuse or neglect be expunged or amended. Thereafter, the matter was assigned to Michael J. Hally, an expunction analyst for the agency. Mr. Hally initially reviewed the statements of three law enforcement personnel taken at the time of the event. The law enforcement officials were apparently responding to a reported altercation at the Hope House. Hally then spoke to the law enforcement personnel who provided confirmation of their prior reports. Hally subsequently discussed the matter with the resident who essentially stated that V.S. had consumed alcohol and become intoxicated while operating a car in which the resident was riding. During this period of time, V.S., through legal counsel, attempted to identify and provide to Mr. Hally a number of persons who could provide exculpatory information on V.S.'s behalf. Mr. Hally interviewed the persons identified by counsel. Based upon the information available, the DHRS determined the report to be correctly classified. On August 20, 1991, the DHRS informed V.S. that her expunction request was denied and notified her of the right to challenge the agency's determination through the formal administrative hearing process. On September 25, 1991, V.S. requested a formal hearing to challenge the agency's refusal to expunge or amend the report. The case was forwarded to the Division of Administrative Hearings which scheduled the matter for hearing. In preparation for formal hearing, the deposition of the resident was taken. Subsequently, the DHRS determined that the credibility of her testimony would be subject to attack. Based on the resident's lack of credibility, the DHRS, on February 4, 1992, filed a notice of voluntary dismissal of the case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Council 79 is a labor organization whose business is to represent employees in matters involving public employers concerning contractural negotiations and the administration of bargaining agreements. Council 79 employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1987 and 1988. Council 79 has elected officers. Blondie P. Jordan, a black female, is the elected president and chief executive officer of Council 79. Jordan has the authority to employ persons to assist her in carrying out the duties of Council 79. Until the fall of 1988, Cox, a white male, was one of those employed by Council 79, under Jordan. Cox was employed as the Regional Director of Region III (also referred to as Tampa Region) of Council 79, and reported to Jordan. Council 79, under Jordan, also employed several other white males in positions of authority. Those included: Charles Brannon, employed in March, 1988, as the Assistant to the President, who in the absence of Jordan ran the day to day operations of Council 79 Headquarters; Ted Buri, Regional Director in Tallahassee; John Crosby, Business Manager; Mark Neimeisser, lobbyist; and Ben Patterson, Chief Attorney. Council 79 has an Executive Board over which Jordan presides, but through which the Council is governed and operated. During 1987 and 1988, Nancy Serrano, Jimmy Newell, Wesley Leon and Craig Lehning were members of the Executive Board from Region III. Serrano, Leon and Lehning belonged to a group referred to as the "Solidarity Group" that opposed Jordan. During 1987 and 1988, Serrano, Newell, Leon and Lehning at Executive Board meetings complained to Jordan about the operation of Cox's office in Tampa, particularly about the office staff and Cox not being responsive to the membership of the local unions. However, during this same period of time there were presidents of local unions who complained to Jordan about how these same Executive Board Members were not being responsive to the local union, specifically in regard to how these Executive Board members were attempting to close the Regional Director's Office in Tampa, and advised Jordan that Cox and his staff were working well with the local unions. Also, one member of Cox's staff complained to Jordan about having to drive Cox to meetings and run the office while Cox absence attending to personal business. There was no written documentation that Jordan ever discussed these complaints with Cox or any of his staff, and even though Cox admitted to having heard these complaints, although not from Jordan, he dismissed them as being political because there were coming from the Solidarity Group that opposed Jordan. Notwithstanding Jordan's testimony to the contrary, there is insufficient evidence to show that Jordan discussed any of these complaints with Cox or that Jordan counseled or advised about correcting the problems before November 3, 1988. Apparently, Jordan left the day to day operation of Region II, including the Regional Office, to the discretion of Cox, and expected Cox to correct problems in the Region without being counseled or advised by Jordan unless Cox determined that Jordan's intervention was necessary or appropriate. Likewise, there was no documentation that Cox had ever been reprimanded or counseled about his performance. In fact, the only written documentation concerning Cox's performance (other than an incomplete report by Linoria Anthony which was not received as evidence) of any problems with Cox's performance was the report written by David McGhee to Jordan on November 1, 1988, after McGhee replaced Cox, having been appointed Acting Regional Director of Region III on September 14, 1988 by Jordan. On September 12, 1988, Cox was scheduled to attend a meeting with employees from the City of Fort Myers which McGhee, Neimesser and Escudero were also to attend. Cox was to meet privately with McGhee, Neimesser and Escudero before meeting with the employees from Ft. Myers. Before the meeting, Cox was observed around the pool area by Neimesser. Cox did not attend the private meeting with McGhee, Neimesser and Escudero but did attend the meeting with the Ft. Myers employees. On September 13, 1988, Neimesser reported to Jordan that Cox had failed to attend the private meeting. On September 14, 1988, as instructed by Jordan, Brannon informed Cox that he was relieved of his duties as Regional Director. Cox was not given an opportunity to explain his failure to attend the private meeting in Ft. Myers, Florida before relieving him of his duties as Regional Director. Although Cox was relieved of his duties as Regional Director, he continued in the employment of Council 79 assisting McGhee in negotiating contracts and other matters. By letter dated September 14, 1988, Jordan appointed David McGhee Acting Regional Director of Region III. McGhee, a black male, employed by the International which Council 79 was affiliated. McGhee was the Assistant Area Director for International and its staff person with responsibility for Region III. McGhee assumed the responsibilities of Acting Regional Director for Region III on September 14, 1988.. McGhee is not now nor has he ever been on the payroll of Council 79. McGhee is continues to be the Acting Regional Director for Region III, and in addition to reporting to Jordan, reports to Gilbert Escudero, a Hispanic male, Area Director for the International and to Gerald McEntee, a white male, president of the International. On September 19, 1988, Cox voluntarily entered Horizon Hospital for treatment. Upon entering Horizon, Cox described his condition as being depressed and unable to function. Cox also described a previous history of excessive alcohol intake to the point of intoxication every weekend since his early twenties. However, there was insufficient evidence to show that Cox was suffering from alcoholism. Cox did not advise Jordan or McGhee or anyone else in authority with Council 79 that he was entering Horizon for treatment, or more specifically that he was being treated for alcoholism. Although Jordan and other employees of Council 79 may have known that Cox consumed alcohol, even to the point of intoxication on occasions, there is insufficient evidence to show that either Jordan or any other employee of Council 79 were aware that Cox had a problem with alcohol, or more specifically that Cox was suffering for alcoholism. As requested by Jordan, McGhee, by letter dated November 1, 1988, reported the problems he had encountered in the Regional Office since assuming the duties of Acting Regional Director. The report basically advised Jordan of the the problems that had been reported earlier by Serrano, Newell, Leon and Lehning. Additionally, McGhee reported on Cox's failure to negotiate contracts with the city of North Port and Local 167, Hillsborough County before they expired on September 30, 1988. As requested by Jordan, Linoria Anthony prepared a report concerning Cox's failure to negotiate contracts for several local unions in Region III with their employers. However, this report, initially offered as evidence, was withdrawn because Council 79 was unable to furnish a complete copy. On November 3, 1988, Charles Brannon was instructed by Jordan to secure Cox's resignation or to terminate his employment with Council 79. Cox resigned after being given the choices by Brannon. Upon resigning, Cox was to be given certain concessions, including one month's severance pay. Council 79 failed to honor this agreement with Cox, and he obtain a judgment in the County Court of Hillsborough County which was eventually satisfied. While Jordan's decision to effectively terminate Cox's employment (discharge) without first counseling or advising Cox on the problems in Region III as reported to her, and giving him an opportunity to correct those problems may not have been the correct or morally right decision, there is sufficient competent, substantial evidence to establish facts to show that Jordan did not terminate Cox's employment because of his race (white) or alleged handicap (alcoholism).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED that the Commission enter a Final Order finding that Petitioner, Robert Cox, was not discharged due to his race or alleged handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be Dismissed. DONE and ENTERED this 9th day of July, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner did not file any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Respondent The following proposed findings of fact are adopted in substance as modified in the Recommended Order, The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(4); 6(5); 7(6&7), 9(6); 10(9); 11(10); 12(11); 13(12); 14(13); 16(16&17); 17- 18(18); 19-20(14) and 21(19). Proposed finding of fact 8 is rejected as not being supported by competent, substantial evidence in the record, except for thesecond phrase, that complaints did not stop, which is adopted in substance in Finding of Fact 6. Proposed finding of fact 15 is neither material nor relevant. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 125 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Robert Cox, Pro se 8514-#3, Daffodil Drive Hudson, FL 34667 Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, FL 32315
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Respondent Arline Halpin ("Halpin") and Respondent Tony W. Twiddy ("Twiddy") have lived together since some time in 1990 in a residence they own jointly. Twiddy previously held a Class "E" Recovery Agent license issued by the Department that expired on April 14, 1988. Twiddy's attempts to renew that license were denied by the Department. By Final Order dated May 3, 1989, the Department revoked the Class "A" Private Investigative Agency license No. A00-01398 issued to T. S. T. Detective Agency, Inc., a company owned and operated by Twiddy and also revoked the Class "C" Private Investigator license No. C00-00811 issued to Twiddy. In that Final Order, the Department ordered Twiddy to cease conducting regulated activities. In a Final Order dated July 20, 1990, the Department imposed an administrative fine in the amount of $2,000 against Twiddy as a result of a finding that he performed unlicensed repossessions between October 13, 1989, and January 15, 1990, in Broward County, Florida, and because he failed or refused to cooperate with Department investigators in violation of Section 493.319(1)(o), Florida Statutes (1989). Twiddy contends that he did not receive notice that his Class "E" and Class "C" Private Investigator licenses had been revoked until January 7, 1991. The evidence established, however, that in August of 1990 Twiddy was aware of problems with his licensure status. Furthermore, it is clear that Twiddy knew or should have known that he did not have a valid Class "E" or "EE" license from April 14, 1988 to the present. Based upon all of the evidence, it is concluded that, at all times pertinent to this proceeding, Twiddy was aware that he was not licensed to conduct repossessions. Halpin received a Class "C" Private Investigator's license and a Class "E" Recovery Agent license on May 30, 1990. She also received a Class "A" Private Investigative Agency license for A. T. Detective on August 10, 1990. Effective October 1, 1990, the Department began issuing Class "R" Recovery Agency licenses. Prior to October 1990, a recovery agent did not have to work for a licensed agency. A. T. Detective received a Class "R" Recovery Agency license on November 20, 1990. Halpin is the sole shareholder and president of A. T. Detective Agency, Inc. ("A. T. Detective") and A. T. M. Towing, Inc. ("A. T. M."). A. T. Detective is engaged in the business of repossessing automobiles. A. T. Detective employs licensed repossessors to locate and seize cars that were to be repossessed. A. T. M. is engaged in the towing business, including the towing of illegally parked cars and the towing of repossessed cars. Both A. T. Detective and A. T. M. operate out of the same location. Twiddy is the general manager for A. T. M. Twiddy denies any ownership, employment or managerial involvement with A. T. Detective. Twiddy contends that he simply coordinated the towing activities performed by A. T. M. for A. T. Detective. There is no evidence that Twiddy received any direct payments from A. T. Detective or that he was officially an employee of that company. However, the evidence established that he was actively engaged in the management of the company, he was actively involved in the employment decisions, he engaged in skip-tracing on behalf of the company and he directed the employees of both the detective agency and the towing company. In sum, the evidence established that Twiddy, with the knowledge and acquiescence of Halpin, was actively engaged in running the operations of A. T. Detective. While the evidence established that Twiddy directed the activities of some of A. T. Detective's licensed repossessors and that he was present during many of the repossessions, no persuasive or conclusive evidence was presented of any specific repossessions by Twiddy after May 1990 without a licensed repossessor being present. During the course of the hearing, Respondents Halpin and A. T. Detective stipulated that on one occasion per month during the period from August 1990 through December 1992 they failed to maintain a complete and accurate inventory of personal effects or other personal property recovered in the course of repossessions as alleged in Count III of the Administrative Complaint in Case No. 93-1184. Consequently, those Respondents violated Section 493.6404(1), Florida Statutes, on 29 occasions during the time period. Similarly, Respondents Halpin and A. T. Detective conceded that on one occasion per month during that same time period they failed to give written notification to a debtor advising the debtor of the whereabouts of personal effects within five working days of a repossession. Accordingly, those Respondents violated Section 493.6404(2), Florida Statutes, on 29 occasions during the time period.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of State enter a Final Order finding Respondents Arline Halpin and A. T. Detective Agency, Inc., guilty of the violations alleged in Counts I, II, III and IV of the Administrative Complaint issued in Case No. 93-1184, that a fine of $1,000 be imposed for the violations of Counts I and II, a fine of $250 be imposed for the violations of Count III and a fine of $250 be imposed for the violations of Count IV. In addition, the Class "R" Recovery Agency license issued to A. T. Detective Agency should be suspended for six months following which a probationary period of six months should be imposed. Arline Halpin's Class "E" Recovery Agent license should be placed on probation for a period of one year. Count V of the Administrative Complaint should be dismissed. It is further RECOMMENDED that the Department of State enter a Final Order finding Respondent Tony W. Twiddy guilty of the violations alleged in Counts I and II of the Administrative Complaint in Case No. 93-1098, that he be ordered to pay an administrative fine in the amount of $225 for Count I and $750 for Count II and that he be ordered to cease and desist all regulated activities. Count III of the Administrative Complaint should be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of April, 1994. J. STEPHEN MENTON 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 22nd day of April 1994. APPENDIX Petitioner's Proposed Findings of Fact: Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Adopted and pertinent in part in Findings of Fact 5. Rejected as unnecessary. Adopted and pertinent in part in Findings of Fact 11. Adopted and pertinent in part in Findings of Fact 11. Adopted and pertinent in part in Findings of Fact 11. Adopted and pertinent in part in Findings of Fact 11. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Subordinate to Finding of Fact 11. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. Rejected as unnecessary. The subject matter is addressed generally in Findings of Fact 11 and 12. [no proposal submitted] Subordinate to Finding of Fact 1. Rejected as unnecessary. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 14. Respondents' Proposed Findings of Fact: Respondents' proposed Findings of Fact and conclusions of law consists of a mixture of argument, proposed factual findings and proposed conclusions of law. No specific rulings are made with respect to Respondents' proposals because separate Findings of Fact have not been identified. COPIES FURNISHED: Henri C. Cawthon Assistant General Counsel Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 Myron B. Berman, Esquire Post Office Box 1113 North Miami Beach, Florida 33160 The Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
Findings Of Fact Terry G. Jewell is the sole proprietor of an unincorporated business, wherein Jewell engages in business as a real estate broker-salesman. His net worth is less than $2,000,000. In DOAH Case No. 87-2192, the Division filed an Administrative Complaint dated April 20, 1987, wherein the Division essentially alleged that Jewell was co-owner and agent for Sun Country Homes of North Florida, Inc., a corporation engaged in the business of constructing homes; that Jewell, as vice- president and agent for Sun Country Homes, entered into a contract with the Koblinskis to build their house; that Sun Country Homes received approximately $74,900.00 to build the home; that Sun Country Homes did not pay certain materialmen and contractors; and that Jewell did not pay the outstanding liens. The Division sought revocation and other penalties against Jewell's license as a real estate broker-salesman, alleging that Jewell was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction. After hearing, a Recommended Order was entered by the undersigned on September 25, 1987, recommending dismissal of the Administrative Complaint. The recommendation was based on findings that Jewell's contacts with the Koblinskis were solely as an officer, co-owner and agent for Sun Country Homes of North Florida, Inc.; that all sums paid by the Koblinskis were to Sun Country Homes and were deposited to its corporate account; that the president of Sun Country Homes mismanaged the corporate funds and did not pay some of the subcontractors on Koblinskis' home, that Jewell quit the corporation then he found out about this; that Jewell did all he could to assist the Koblinskis once he had resigned from the corporation; that the president of the corporation disappeared with the Koblinskis' money; and that Jewell did not benefit from the funds paid by the Koblinskis to Sun Country Homes of North Florida, Inc. The recommendation was based on conclusions of law that the contract was between the Koblinskis and Sun Country Homes of North Florida, Inc.; that Jewell had no intent to deceive the Koblinskis; that it is well settled law that disciplinary action cannot be taken against a real estate broker's license for conduct not connected with the licensee's business as a broker; and that Jewell did not violate Section 475.25(1)(b), Florida Statutes, as alleged. The Final Order of the Division, through the Florida Real Estate Commission, adopted the Findings of Fact, Conclusions of Law and Recommendation in the Recommended Order and dismissed the Administrative Complaint. The affidavit which initiated this action was filed on February 5, 1988, and was later supplemented by the Petition for Small Business Party's Attorney's Fees and Costs. The affidavit, which was an application for an award of fees and costs, was timely, having been filed within 60 days after the date on which Jewell became a prevailing small business party. In this case, the 60 days is calculated from the date on the Certificate of Service showing mailing of the Final Order to the parties. See Section 57.111(4)(b)2, Florida Statutes. According to the affidavit of William C. Andrews, and the statements of account attached thereto, Jewell incurred legal fees of $3,252.50 and costs of $957.21. These fees and costs are found to be reasonable since the Division has not filed a counter affidavit or response questioning their reasonableness. According to the Petition, the disciplinary action in DOAH Case No. 87- 2192 was substantially unjustified at the time it was initiated: because the Administrative Complaint was an attempted disciplinary action taken against Petitioner's real estate broker-salesman's license for conduct not connected with the licensee's business as a broker-salesman, and there was a complete absence of evidence to show any wrong doing on the part of the Petitioner.
The Issue Is Petitioner currently qualified for licensure as a real estate salesman pursuant to Chapter 475, Florida Statutes, upon proof of rehabilitation and good moral character despite his answer to Question No. 9 of the licensing application and his prior criminal record?
Findings Of Fact The Respondent Agency denied Petitioner's application for licensure as a real estate salesperson in the state of Florida based upon Petitioner's arrests in 1971 for attempted auto larceny and house burglaries; his arrest in 1985 for criminal trespass; and his arrest and conviction for manslaughter in 1991. The charges in 1971 and 1985 were dismissed prior to prosecution. The agency is primarily concerned over Petitioner's 1991 conviction for manslaughter in a shooting death which arose out of a traffic altercation. The Petitioner affirmatively answered Question No. 9 on the application, which asked whether the Petitioner had ever been convicted of a crime. Question 9 also provided that applicants responding with a "yes" answer should "attach the details . . . in full on a separate sheet of paper." Along with his salesperson's application, the Petitioner submitted a one page explanation of his affirmative response to Question No. 9, whereby he explained the circumstances of the incident in 1991 which led to his arrest and conviction for manslaughter. Petitioner signed the application under oath stating that "all 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 . . ." There are some differences between the order of events and his motivations as described by Petitioner in his application and written narrative and as described by him in his oral testimony at formal hearing. Petitioner's oral testimony at formal hearing is more detailed than was his prior disclosure. In both his application's written narrative and his oral testimony at formal hearing, Petitioner clearly tried to explain a very sordid episode in the best light for himself. Petitioner admitted in oral testimony at formal hearing that he had left a lot of detail out of his application's written explanation, due to its length. Petitioner's licensure application explanation stated that he had followed another motorist in 1991 to get his vehicle's tag number, but at formal hearing Petitioner admitted that he also wanted to talk to the other motorist. Petitioner omitted from his application's written explanation the information that in an accident prior to the 1991 incident, when Petitioner had failed to get the other vehicle's tag number, law enforcement personnel had been unable to find the other motorist's vehicle. There are also discrepancies between Petitioner's application's written explanation and his formal hearing testimony as to Petitioner's position (in or out of his car) and the relative positions of Petitioner and his victim at the time the fatal shot was fired in 1991. Basically, however, the significant facts that Petitioner has never tried to hide from the Florida Real Estate Commission are these: In 1991, Petitioner's car was rammed by another car. In a belligerent manner, Petitioner displayed a gun to the occupants of the other car. After some evasive action, Petitioner decided to pursue, and did pursue, the other car. Both cars stopped in a gas station parking lot. Both drivers got out of their cars. Petitioner used his gun to hit the other driver in the head. The gun discharged, killing the other driver. Although the other driver was lying on the ground, Petitioner convinced himself that the other driver was not hurt. Petitioner fled the scene, but after obtaining an attorney, he voluntarily turned himself in to the police two days later. He was ultimately convicted by a jury of first degree manslaughter which is a first degree felony. He was sentenced to a term of 15 years, with credit. He was first incarcerated in October 1991. Petitioner represented credibly that he no longer believes in guns for motorists and that if he had it to do over again, he would have handled the traffic altercation that gave rise to his manslaughter conviction in a different way. He testified, "Generally, I have learned to put my trust in the Lord," and that he had learned to forgive himself but still did not understand why he did what he did in 1991. Petitioner was visibly upset and wept several times during his oral testimony at formal hearing. Doctor Bilak, Ph.D., is a Florida-licensed clinical psychologist. He was tendered (by deposition) without objection as an expert in psychological evaluations and testing for emotional and mental disorders. He saw Petitioner on November 6, 1996. He interviewed Petitioner, took a history, and administered a Minnesota Multiphasic Personality Inventory (MMPI) at a later date. Dr. Bilak saw Petitioner a total of three times. There was no evidence of major psychological problems or any psychopathological inclinations at any of the three sessions. Dr. Bilak opined, "He has a clean bill of health psychologically." Mostly from conversation, and without I.Q. testing, Dr. Bilak concluded that Petitioner is of above average intelligence with no deterioration of his cognitive skills. The MMPI showed no significant pathology of any kind, but did show that Petitioner was suffering mild to moderate levels of psychological distress related to the licensing process. Dr. Bilak's ultimate conclusion was that Petitioner was undergoing a "phase of life problem," either occupational or due to "transiting" (adjusting) from prison inmate to outside world. Dr. Bilak further concluded in November 1996 that Petitioner had current good moral character sufficient to be a real estate salesman, but Dr. Bilak admittedly had no knowledge of Petitioner's reputation for fair dealing, nor of Petitioner's reputation for honesty, truthfulness, or trustworthiness. As a result of his 1991 conviction, Petitioner served approximately two years in prison. Since then, he has completed two years of community control. He has about six and one-half years of probation remaining. Petitioner has served all of his sentence thus far without any unfavorable incidents. Petitioner has made restitution. He has completed the counseling required by the Department of Corrections. Petitioner's other witnesses, without exception, attested to the Petitioner's trustworthiness, self-control, good character, and good reputation. Respondent agency presented no testimony to the contrary. Prior to his release from prison, Martha Bryan hired Petitioner to work in her restaurant. Due to the work release program and the prior interviews connected therewith, she was aware of Petitioner's manslaughter conviction and at least some of the circumstances surrounding the killing when she hired him. In spite of that, she felt comfortable with Petitioner, even when they were alone in the restaurant at night. Petitioner proved himself completely trustworthy while employed in her restaurant for five days a week. Ms. Bryan considered his position of cook as one of trust. Because she felt comfortable with Petitioner and was favorably impressed with his skill with computers and with his intelligence and personality, Ms. Bryan hired him to work in her title insurance office. Before doing so, she made full disclosure about Petitioner's past to her 10-13 associates and partners and received assurances from them that they also would feel comfortable with him. Ms. Bryan's underwriters had no problem with Ms. Bryan hiring Petitioner, since Petitioner had not stolen any money. During the approximately one and a half years that he worked in the title insurance office, Petitioner did nothing to jeopardize his parole, work release, or house arrest statuses. He had a key to the office and opened the office before Ms. Bryan arrived most mornings. He often stayed in the office alone during the lunch hour because he was not permitted to leave the premises under the terms of his work release. Sometimes, Petitioner remained on the premises after Ms. Bryan and all the other employees had left for lunch or for the day. Ms. Bryan has never practiced real estate, but holds an inactive real estate license. According to her, Petitioner was in constant contact with the public and real estate salespersons at the title insurance office in much the same manner as he would be if he were a real estate salesperson. Ms. Bryan habitually trusted Petitioner with confidential client files and up to two million dollars in checks. She never worried when employees or clients were alone with Petitioner. Her associates and partners had expressed to Ms. Bryan their similar confidence in Petitioner. Petitioner worked under stressful conditions in Ms. Bryan's title business, particularly when he was assigned to the front desk dealing with customers. She never received complaints from anyone. She perceived Petitioner as working well with clients in stressful situations. After Petitioner graduated to "house arrest," Ms. Bryan occasionally used him as a courier to the bank or the post office on occasion. Ms. Bryan believes that Petitioner "treated the [title insurance company] job as if it were the best job in the world." She described him as "an unusual case," and stated, "I couldn't pick another Ron out of ten men." She understands his reputation in the community to be good. Petitioner worked for Ms. Bryan from sometime in 1993 to August 1994. Thereafter, he began work in his attorney's office, but Ms. Bryan and her husband still see Petitioner during works hours and socially. They continue to hold him in high regard. Alvin J. Baker is a communications technician with American Telephone and Telegraph. He is a deacon of his church and teaches a Sunday School class there. He knows Petitioner through church activities through a group called "Men For Social Change." He has known Petitioner since mid-1993 and has dealt with him either twice per week or weekly up until approximately eight months before formal hearing when Petitioner changed churches. He has observed no emotional or angry reactions in Petitioner, but described Petitioner as a person who is intent on asking questions until he gets answers. Although Mr. Baker was not aware of Petitioner's conviction for manslaughter until the day of formal hearing, he expressed himself as not feeling betrayed by this lack of confidence. He described Petitioner's general reputation as "a fine and outstanding citizen." Reverend James D. Johnson, Pastor of Trinity United Methodist Church in Lake City, Florida, knows Petitioner as one of his parishioners. He stated that, "I wish I had thirty more members like him." Through one source or another, Reverend Johnson became aware the Petitioner was on probation for manslaughter, even though Petitioner did not personally reveal this information to him. In Reverend Johnson's experience, Petitioner has always acted as a normal individual. Reverend Johnson can depend on Petitioner to do anything he was asked to do on the Trinity church premises. Reverend Johnson and Petitioner meet every week or so in order that Petitioner can prepare and publish the Sunday Church Bulletin. Petitioner is reliable in this regard in every way. Petitioner has been provided with keys to every building and every room at the church. Petitioner has occasionally been entrusted to carry the church's money bag to the bank. Petitioner has co-chaired a church program at Trinity. Petitioner is trustworthy when left alone with women and children at Trinity church. The Reverend Johnson has observed Petitioner counseling with some of his parish's troubled young people about how to stay out of trouble. In regard to Petitioner's reputation for truth and veracity and/or good moral character in the community, Reverend Johnson stated, "All I hear about Ron is good." Joyce P. Tunsil is a retired public school teacher and a substitute teacher at the local Junior College. She has served on the local zoning board and has been an activist in the Lake City, Florida community for some period of time. She is the mother of Petitioner's attorney. She met Petitioner in 1993 at church. She later met him in her son's law office. After working in Ms. Bryan's title insurance office, Petitioner worked for his attorney as a secretary/clerk for approximately two years, leaving for other employment in July, 1996. During most of that period of time, Ms. Tunsil was a volunteer business manager for her son. During this period of time, Ms. Tunsil observed the Petitioner being punctual, polite, conscientious, efficient, and working overtime when necessary. In the law office, Petitioner did preparation of court documents and real estate closing statements, among other duties. Part of Petitioner's job was to do financial entries of cash and check payments into the computer and to reconcile monthly statements. Sixty percent of the time he was on his own without supervision. He proved himself trustworthy. Petitioner was good with children and with difficult clients. Due to the nature of the law practice, certain types of clients presented very stressful situations which could have resulted in physical altercations, however Ms. Tunsil observed that Petitioner was able to defuse these types of situations. Petitioner told Ms. Tunsil about his criminal history. She is aware that Petitioner counsels young people and teenagers and is involved in "Men For Social Change." She believes Petitioner to be fully rehabilitated, to have a positive character, and to be able to conduct himself positively and effectively in business, home and social situations. She perceives his general reputation in the community as "positive." At the time of formal hearing, Petitioner was a purchasing technician for the State of Florida, Department of Veteran Affairs, at the Lake City Florida Veterans' Home. He sought this employment in order to better himself, to make more money, and to build retirement security. He admitted his prior manslaughter conviction on his employment application, and his immediate supervisor is aware of his conviction. As a purchasing technician, Petitioner deals primarily with computers, but also has access to all types of patient- members and supplies, including drugs. He has worked in this capacity successfully for some time with no unfavorable incidents. Petitioner was trained on computers in the Air Force. He was honorably discharged in 1975. He worked with the Federal Aviation Authority as an air traffic controller while attending college. He has a degree in business, and is interested in going back to school in order to get a Bachelor of Science degree in computer science. He wants to become a real estate sales person in order to better himself and make more money.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order providing that subject to successful completion of the necessary examinations, the Petitioner be granted a real estate salesperson's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of April, 1997. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Merrill C. Tunsil, Esquire Post Office Box 2113 Lake City, Florida 32056-2113 William N. Halpern Assistant Attorney General 400 West Robinson Street Suite 107 South Tower Orlando, Florida 32801 Henry M. Solares, Division Director Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
