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 Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offenses; and, if so, whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact APD serves clients with disabilities such as autism, intellectual disabilities, Downs Syndrome, and Prader-Willi Syndrome. APD's clients range from those needing total care to those who can live on their own with minimal assistance. The services APD provides to its clients include personal care, respite care, adult day training, supported living, and a wide variety of other services. The aforementioned services are provided by APD's vendors in individual homes, group homes, and supported living arrangements. Petitioner is seeking to work as a direct service provider in a group home for persons with developmental disabilities. Section 435.06(2), Florida Statutes, mandates that an employer may not hire someone for a position requiring contact with any "vulnerable person" until a completed background screening "demonstrates the absence of any grounds for the denial or termination of employment." The Department of Children and Families ("DCF") administers the background screening process for APD. APD's Action Petitioner's background screening identified three felony counts that are disqualifying criminal offenses, and all for resisting an officer with violence to his person. On November 14, 2016, DCF notified Petitioner that she was disqualified from employment due to her criminal history and specifically because of the three counts of resisting an officer with violence to his person from a November 26, 1975, Miami Dade incident. On or around December 1, 2016, Petitioner submitted a request for exemption, which included the exemption application and questionnaire to DCF. The instructions provided: "[f]or EACH criminal offense appearing on your record, please write your DETAILED version of the events and be specific. Attach extra pages as needed and please type or write legibly. When Petitioner filled out the questionnaire, she provided the following answers to each question on the exemption questionnaire: Question #1 asked for "disqualifying incident(s)." Petitioner responded "3 Counts of Resisting Arrest with Violence." In response to Question #2 "Non-disqualifying Offenses(s)," Petitioner again provided none of the details surrounding these offenses. She listed two non-disqualifying offenses, "Battery" and "Petit Theft" to which she had criminal dispositions. Question #3 asks, "What is the current status in the court system?" Petitioner responded, "N/A." In Response to Question #4 on her Exemption Questionnaire, regarding "the degree of harm to any victim or property (permanent or temporary), damages or injuries," Petitioner indicated "N/A." In answering Question #5, about whether there were "any stressors in [her] life at the time of the disqualifying incident," Petitioner again indicated "N/A." Question #6 asked whether there are any current stressors in her life, Petitioner responded: "[D]ivorced living at home with my 3 minor children. I am a spokes-person for the SEIU union. Fight for Fifteen. I feed the homeless in my community." As confirmed at hearing, Petitioner listed educational achievements and training as the following: Fla College of Business – Certified Nursing Assistant (1985) National School of Technology – Surgical Tech (1998) Food Service – Brevard C.C. Under Question #8 of the Exemption Questionnaire, in response to the question whether she had ever received any counseling, Petitioner indicated "N/A." Question #9 of the Exemption Questionnaire asks, "Have you ever used/misused drugs and alcohol? Please be specific and list the age at which you started and how you started." Petitioner again responded "N/A." Question #10 of the Exemption Questionnaire asks whether Petitioner was involved in any community activities. Petitioner responded, "I have volunteered with Senator Dwight Bullard, Fla. State Rep. McGhee, Mayor Woodard, Joe Garcia, etc." Question #11 asks the applicant to "Document any relevant information related to the acceptance of responsibility for disqualifying and non-disqualifying offenses." Petitioner responded as follows: "Yes. I accept responsibility at the time of this offense I was 17 years of age and trying to fit in with my friends. I have learned when you know better you do better." The Exemption Questionnaire also requested Petitioner to provide her three prior years' work history. Petitioner provided detailed information about her 18-year work history in the health care field, which included care of the vulnerable community. Petitioner has worked in a hospital, nursing home, private home, and with both mental health and hospice patients. Petitioner's answer also outlines how she had performed some of the same job responsibilities as a direct service provider for the following employers: JR Ranch Group Home LLC: C.N.A 10/3/16 to present-Companion to individual bathing, feeding, dressing, grooming, etc. Nurse Plus Agency: C.N.A. 3/12/08 to 9/7/15- Working in private homes with hospice patients bathing, feeding grooming, shaving, R.O.M. T.C.C. vital signs, doctor's appointments, etc. Gramercy Park Nursing Home: C.N.A. 2/15/05 to 3/12/08-Working in skilled nursing facility doing patient care, vitals, charting, lifting, bathing, feeding, dressing, physical therapy, etc. Jackson M. Hospital: C.N.A. 1/7/98 to 5/8/2001-Working on HIV unit, patient care, R.O.M., bed making, bathing, feeding, dressing, shaving, oral care, transferring, lifting, etc. On December 15, 2016, DCF sent a letter to Petitioner requesting additional documentation to complete the exemption application. Petitioner was asked to "provide the arrest report (from arresting agency) and CERTIFIED court disposition JUDGMENT AND SENTENCE" for the following offenses appearing on [her] criminal history screening report: 05/20/2013 MIAMI-DADE POLICE DEPARTMENT, BW DRIVING WHILE LICENSE SUSPENDED 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 12/22/2001 MIAMI-DADE POLICE DEPARTMENT, COUNTY ORD VIOL 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATT-POL OFF 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSLT - WEAPON 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSAULT –WEAPON 01/14/1991 MIAMI-DADE POLICE DEPARTMENT, SHOPLIFTING 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, ASSAULT 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, DISORDERLY CONDUCT The DCF letter also instructed Petitioner that if she could not obtain the arrest report and/or court disposition, she might submit a notarized written "detailed statement on each arrest explaining why you were arrested. You must include the victim's age and relationship to you and the sentence you received (probation, jail, prison, etc)." Additionally, the letter requested proof of income, an affidavit of good moral character, two to five letters of recommendation, and a personal history explaining what happened with each arrest, current home life, education, training, family members, goals, and community involvement. The letter provided Petitioner a 30-day deadline and notified Petitioner "[n]o further action [would] be taken on [her] application for exemption until we receive the requested information." (emphasis added). On or about December 21, 2016, Petitioner complied with the DCF letter and provided 99 pages of documents including Florida Criminal History Record requested, certified police arrest reports, notarized printed dockets of her criminal offenses with court dispositions, notarized document from the Clerk of Circuit and County Court Harvey Ruvin listing all Petitioner's criminal charges and court dispositions available in Miami-Dade, certificate of parole, 2009 certificate of restoration of civil rights, taxes, nursing assistant certification, certificate of liability insurance, continuing education certificates, program certificates, June 13, 2015, White House Conference on Aging program listing Petitioner as a speaker at the White House, 2015 newspaper articles detailing Petitioner's substantive work in minimum pay raise advocacy nationwide for the Fight for Fifteen campaign, letters of recommendation, driving history records, ACHA exemption to work in the healthcare field as a Certified Nursing Assistant ("CNA"), and a personal statement. Petitioner's personal statement and testimony at hearing provided a comprehensive history of how she has been a caregiver since 1982 "working [i]n hospitals, nursing homes, mental health, hospice, private homes, SLF, etc." Petitioner's statement further detailed that she became a Certified Nursing Assistant in 1985 after the disqualifying offense incident and became a surgical technician in 1997. Petitioner also provided the requested following explanations for each of her arrests: 1.) 11/26/1975: I was arrested for (3) counts of resisting arrest with violence. At the time I was 17 years of age hanging with the wrong crowd. 2.) 11/07/1981: Was at a party drinking got in fight with boyfriend. No case action. 3.) 01/14/1991: In store buying groceries didn't realize there were a pair of socks in my buggy charged with petty theft no way I would have stolen a pair of one dollar socks. Judge was dumbfounded. 4.) 04/11/1994: Got into argument with my mother in which she was drinking she called police to say I had a gun. In which was not true. Office[r] ask me had I ever been to jail I stated yes he then said put your hands behind your back then placed me under arrest. My Mom was there next morning to bond me out. Case No Action. 5.) 09/28/1996: I was witness to a murder I told officer what I seen but didn't want to speak in front of people, also did not want to be labeled as a snitcher. I told the officer I would come to talk but I would not walk with him. I proceeded to walk away the officer grabbed me by the back of my hair, the officer and I proceeded to fight at that time other people got involved. The lead detective asked the officer why he did that. The lead detective promise me he would come to court with me in which he did case was dismissed. Case No Action. 6.) Boyfriend and I got into argument he was drinking and he wanted to drive I told him no he wouldn't give me my keys, so I proceeded to knock head lights out. Case No Action. 7.) 01/13/1998: Got in fight with boyfriend. Case No Action. Petitioner responded to the best of her ability to each of DCF's requests for information. DCF summarized Petitioner's 99 document submission in an Exemption Review Summary ("summary") and forwarded the application, questionnaire, and supporting documents to APD for review. The summary correctly identified Petitioner's 1975 acts of resisting an officer as the disqualifying offenses. The summary outlined twelve non-disqualifying offenses with which Petitioner was charged. However, the summary categorized one non-disqualifying offense as a driving charge and outlined an additional nine non-disqualifying offenses as dismissed or dropped, as Petitioner had reported in her personal statement when she said "no action" was taken. The summary only listed a 1991 shoplifting charge and a 2001 county ordinance violation for which Petitioner was prosecuted. On March 17, 2017, Agency Director Barbara Palmer advised Petitioner by letter that her request for an exemption from the disqualification has been denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. On May 1, 2017, Petitioner requested to appeal APD's denial. Hearing At hearing, as well as in the exemption package, Petitioner took full responsibility for her disqualifying offenses. At hearing, Cunningham also showed remorse. In her personal statement she stated she "paid her debt to society . . . learned from [her] mistakes." Petitioner also credibly explained the circumstances at hearing for her 1975 disqualifying convictions and testified that she was 17 years old when she broke into the neighbor's empty house across the street and was hanging out there. When she was arrested they were handling her roughly. She was originally charged with burglary, larceny and resisting arrest. The burglary and larceny charges were dropped and she pled to three counts of resisting an officer with violence to his person. Petitioner was sentenced to a youth program but left it, was bound over as an adult, and was sentenced to prison where she served three and a half years. Petitioner successfully completed her parole on August 23, 1981, and her civil rights were restored on May 8, 2008. Petitioner testified to her other non-disqualifying offenses as she had detailed in her personal statement. She explained that the 1981 criminal charge was dropped and stemmed from a fight with her boyfriend while at a party where she had been drinking. In 1994, her mom, who was a drinker, was acting out and called the police on Petitioner. Her mother lied and told the police Petitioner had a gun, which she did not. The police asked Petitioner if she had been to jail previously and she answered yes and was arrested. Her mother came and got her out of jail the next morning and the case was dismissed. Petitioner verified that in 1996, she would not tell the police officer what she saw regarding a murder because she was going to the police station to report it privately. The officer grabbed her from behind, they fell to the ground, and she was arrested for Battery on an Officer. The next day the lead detective came to court and testified on Petitioner's behalf that the officer's behavior was inappropriate and Petitioner was released and the charges were dropped. Petitioner also explained that she received another arrest because her boyfriend was drunk and took her car keys and was going to drive. Petitioner testified she could not stop him so she knocked the headlights and windows out of her car to prevent him from driving and ultimately the charges were dropped. Petitioner confirmed at hearing that at least nine of the criminal charges she obtained were either dismissed or dropped and she had not been arrested in over 10 years. Petitioner's credible detailed testimony during the hearing was information that APD did not have the benefit of having while reviewing her application. Petitioner affirmed that she had a July 1999 public assistance fraud case on which adjudication was withheld for her trading food stamps to pay her light bill. DCF failed to ask Petitioner about the case in the request letter with the list of other charges. Petitioner admitted that the public assistance fraud case was the only case in which Petitioner had to make restitution. She paid back the total amount of food stamps she sold and then her food stamps were reinstated. Evelyn Alvarez ("Alvarez"), APD Regional Operations Manager for the Southern Region, made an independent review of Petitioner's Request for Exemption, Petitioner's Exemption Questionnaire, and documentation submitted on December 21, 2016. Among the factors identified by Alvarez as a basis for the recommendation of denial of the exemption was the perception that Petitioner's application was incomplete. Alvarez determined Petitioner did not take responsibility for her arrests or show any remorse. Alvarez testified that APD needs to be able to rely on the answers provided by the applicant in the Exemption Questionnaire to get the information needed to decide whether to grant an exemption. Although she relied on other information gathered as well, what the applicant stated in the Exemption Questionnaire is very important. Alvarez explained that she considered both Petitioner's disqualifying and non-disqualifying offenses, the circumstances surrounding those offenses, the nature of the harm caused to the victim, the history of the applicant since the disqualifying incident, and finally, any other evidence indicating whether the applicant will present a danger to vulnerable APD clients if employment is allowed. Alvarez also testified that she looked for consistency in the applicant's account of events in her Exemption Questionnaire, whether or not the applicant accepted responsibility for her actions and whether the applicant expressed remorse for her prior criminal acts. Alvarez concluded that there were inconsistencies between Petitioner's account of her disqualifying and non-disqualifying offenses compared with those found in the police reports. Alvarez further testified she was concerned that Petitioner had numerous traffic citations. Alvarez explained the citations concerned her because individuals who are granted exemptions would potentially be in positions to transport clients and an applicant that maintains a good driving record demonstrates an ability to ensure the health and safety of clients being served. At hearing, Petitioner testified that her driving record "was not the best." The summary detailed that the 2008 infractions included failure to pay required tolls, improper left, and lack of proof of insurance. Petitioner also had other driving offenses, such as a DWLS and Driver License in 2007 and a safety belt violation in 2006. After her review, Alvarez decided that Petitioner had exhibited a continuing pattern of criminal offenses over an extended period of time, many of which were violent and involved fights, and she concluded Petitioner had not demonstrated rehabilitation. At hearing, Tom Rice ("Rice"), APD Program Administrator for Regional Supports/Licensing, testified that an individual's good character and trustworthiness is important for individuals who provide direct care for APD because service providers are frequently responsible for assisting individuals in making decisions of a financial, medical, and social nature. APD must weigh the benefit against the risk when considering granting an exemption. Rice explained that APD's clients are susceptible to abuse because they are reliant on others to assist with intimate tasks, such as getting dressed, going to the bathroom, feeding, medicine, and funds. Direct service providers need to care and keep clients safe. Rice verified that Petitioner was eligible to work in an APD group home as a CNA. Rice also testified that APD was concerned with Petitioner's failure to disclose details in her accounts regarding her criminal offenses because it calls into question her trustworthiness. He further testified such factors demonstrate a pattern of poor judgment and decision-making and provide cause for APD to question Petitioner's fitness for providing services to the vulnerable individuals for which it is responsible and that is why Petitioner was denied. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from her disqualifying offenses of resisting an officer with violence to his person and that she will not present a danger to disabled or otherwise vulnerable persons with whom she would have contact if employment in a group home were allowed. Petitioner has shown she is a responsible individual by successfully holding jobs in the health field for approximately 18 years. Her employment has been in positions where she cared for vulnerable persons and no evidence was presented that Petitioner was a danger while doing so. Instead, Petitioner's exemption package mirrors her credible testimony of her previous employment serving as a companion, bathing, feeding, dressing, grooming, taking vital signs, transporting patients to doctor's appointments, and working in a private home, which are personal care services that some direct service providers also supply. Petitioner was honest and forthright about her past and supplied 99 pages detailing her past to comply with DCF's request to complete her application. Petitioner testified convincingly that she has turned her life around. Petitioner's only disqualifying offenses occurred over 40 years ago. Even though she was arrested at least twelve times since then, nine of the charges were dismissed and Petitioner's last criminal arrest was 2002. Petitioner also obtained three certificates after her disqualifying offenses. Petitioner received licensure as a CNA and she has been successfully practicing under her license with an ACHA exemption in the health care field. Some of Petitioner's work has even been with vulnerable adults in both a hospital and nursing home. The undersigned further finds that denial of Petitioner's exemption request would constitute an abuse of discretion. As discussed above, it appears Respondent relied heavily on the initial application submitted, hearsay in the police reports, and traffic infractions, and failed to adequately consider the 99 pages and nine dismissed charges Petitioner provided regarding her rehabilitation. In doing so, Respondent failed to properly evaluate Petitioner's disqualifying offenses having occurred over 40 years ago and the last non-disqualifying criminal arrest being at least 15 years ago and the majority of the charges being dismissed. The evidence also indicates that Petitioner has performed successfully in a healthcare work setting, including some care of vulnerable individuals. Additionally, Petitioner has gone above and beyond to contribute in the community. She volunteers with the homeless and also volunteers with legislators and a mayor, and advocated nationally for a minimum wage increase in the Fight for Fifteen campaign, serving as the spokes-person. In 2015, the White House also extended an invitation to Petitioner to speak because of her advocacy, and Petitioner passed the background check and screening that the secret service conducted. As Petitioner testified at hearing, had she been any type of threat or been dangerous or violent based on her previous arrests, she would not have passed the high security screening and been allowed in the White House to speak. Petitioner also testified she does not have anything to hide. She demonstrated, by credible and very compelling evidence, that she made wrong decisions and took the initiative to turn her life around. For these reasons, it is determined that no reasonable individual, upon fully considering the record in this proceeding could find that Petitioner is not rehabilitated. The concerns expressed by Respondent in formulating its intended action, without the benefit of hearing testimony, particularly with those regarding her untruthfulness and lack of remorse for her actions, were effectively refuted by the credible testimony at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner, Molita Cunningham's, request for an exemption from disqualification from employment. DONE AND ENTERED this 13th day of September, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 13th day of September, 2017. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Molita Cunningham 12437 Southwest 220th Street Miami, Florida 33170 (eServed) Jada Williams, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact Petitioner Donald Greig Shephard, Jr., is a 35-year-old Minnesotan who moved to Florida in May of 1979. He is a businessman who has been married approximately five years. He owns a home in Spring Hill, Florida. He received the bachelor's degree in business administration from the University of Minnesota in 1970. In the mid-70s, he started his own retail business in Minnesota, Phoenix Sound and Video. At this time, he was a regular user of cocaine and, over a period of six months, sold the drug in one-gram quantities as a means of paying for his own habit. When the authorities apprehended one of the persons to whom petitioner had sold cocaine, he identified petitioner as the source of the drug and petitioner was eventually convicted, on a plea of guilty to count one of a three-count indictment charging unlawful distribution of cocaine, in July of 1978. "On January 4, 1979, the Honorable Miles W. Lord, U.S. District Court Judge, District of Minnesota, committed [petitioner] to the custody of the Attorney General for imprisonment for a term of three years; on the condition that [he] be confined in jail type or treatment institution for a period of six months, the execution of the remainder of the sentence of imprisonment suspended and [his] being placed on probation for a period of two and one-half years." Joint Exhibit No. 1. Question No. 6 on the form application petitioner furnished respondent asked: 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 vio- lations), without regard to whether convicted, sentenced, pardoned or paroled? To this petitioner answered: "Yes." Question No. 6 further directed, "If yes, state details including the outcome in full". In response to that, petitioner stated: Possession of a controled [sic] substance (cocaine) 1.5 gram, 3 year probation in Minnesota, July 1978 ending Oct. 1981[.] As a result of his conviction, petitioner was incarcerated at the Ramsey County Workhouse in St. Paul, Minnesota. On the second or third day of his incarceration, he entered a drug rehabilitation program. Less than 90 days later he was released. He has not had a drug problem since. Toward the end of his incarceration, he helped counsel other people with drug problems. In retrospect, he believes it was probably best that he was apprehended and that he had an opportunity to overcome his drug dependency. He has applied for clemency. His only previous arrests were for traffic offenses, and he has not been arrested since. On October 16, 1981, his probation terminated. In addition to Phoenix Sound and Video, Mr. Shephard has owned part or all of three other retail businesses, and has operated still others. Sherwood Commercial Brokers was his most recent employer. He left off working for them in January of 1982 because he had obtained no real estate salesman's license at that time, and has been unemployed since. Respondent's proposed findings of fact and conclusions of law have been considered in preparation of the foregoing findings of fact and the proposed findings have been adopted to the extent they were relevant and supported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent grant petitioner's application for licensure as a real estate salesman. DONE AND ENTERED this 19th day of April, 1982, 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 19th day of April, 1982. COPIES FURNISHED: D. Greig Shephard, Jr. 982 Deltona Boulevard Spring Hill, Florida 33526 Jeffrey A. Miller, Esquire Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner should be exempt from disqualification from employment in a position of trust, pursuant to section 435.07, Florida Statutes (2016).1/
Findings Of Fact Based on the evidence presented at hearing, the following findings of fact are made: The Agency is the state entity which supports vulnerable persons with various developmental disabilities. The Agency contracts with direct service providers and is responsible for regulating the employment of persons serving in positions of trust with these providers. Vision Builders One, Inc., is a service provider for the Agency. Mr. Gaskin applied with Vision Builders One, Inc., to become a caregiver, a position of trust which requires completion of level 2 background screening. The Department of Children and Families conducts initial screening on behalf of the Agency. Background screening and local criminal records revealed a significant history of involvement with law enforcement for Mr. Gaskin.2/ In response to inquiries concerning possession of cocaine on December 2, 1988, Mr. Gaskin stated: I was young, not thinking straight, and decided to experiment with selling illegal drugs. I was arrested in a known location for having three cocaine rocks. I was placed on probation. On February 8, 1989, Mr. Gaskin entered a plea of nolo contendere to possession of a controlled substance, cocaine, a felony of the third degree. In response to inquiries concerning violation of probation on May 31, 1990, Mr. Gaskin stated: I didn’t want to result back to selling illegal drugs. I was unable to find employment; therefore, I didn’t have money to pay my probation fees. I violated and was sentenced to 18 months in prison. In response to inquiries concerning resisting an officer without violence on April 9, 1993, Mr. Gaskin stated: I do not recall this arrest or charge. Once researched, the clerk was unable to locate court documents for this charge. In response to inquiries concerning contempt of court regarding child support on November 15, 1993, Mr. Gaskin stated: I was unemployed and unable to pay the child support purge. In response to inquiries concerning possession of cocaine on February 15, 1994, Mr. Gaskin stated: I was hanging out with a few guys, and one of them left cocaine in the backseat of my car, unknowingly to me. This charge against me was dropped. In response to inquiries concerning cocaine possession on February 5, 1995, Mr. Gaskin stated: I was parked in my car and had cocaine in my possession when the law officers approached my car. I received one year house arrest probation, six months weekend jail, and 75 hours of community service work, in addition to court fines and suspended driver license. On June 19, 1995, Mr. Gaskin entered a plea of nolo contendere to possession of a controlled substance, cocaine, a felony of the third degree. In response to inquiries concerning a domestic battery on July 20, 2000, Mr. Gaskin stated: My wife and I were separated. I stayed away for four weeks and when I returned to our home, my wife had a male friend in the house. I was upset and she wouldn’t let me in our home, so I knocked the door in to enter. When entering, she and I exchanged hurtful words and we struck each other. She called police and I was arrested. Those charges were downsized to lesser charges. I was sentenced to one year probation, attend and complete an anger management class. On January 31, 2001, Mr. Gaskin entered a plea of nolo contendere to trespass of an occupied dwelling, a misdemeanor of the first degree and to domestic battery, a misdemeanor of the first degree. In response to inquiries concerning contempt of court for violation of a protective injunction regarding domestic violence on September 3, 2000, Mr. Gaskin stated: My bondsman neglected to notify me of my court date; therefore, I didn’t appear on day of court. When informed of the contempt of court, I turned myself in, so no arrest record. The bondsman notified the court of negligence and the contempt of court charges were dropped. In response to inquiries concerning failure to appear on March 1, 2002, Mr. Gaskin stated: I do not recall this arrest or charge. I will be following up on researching to receive clarification that this was actually me. Once the research is completed I will provide a detailed statement. In response to inquiries concerning violation of probation for trespassing in an occupied dwelling March 1, 2002, Mr. Gaskin stated: I was violated because my wife made an untrue statement to the police that I was harassing her. I called to ask for visitation with my son and we got into a verbal argument. In response to inquiries concerning driving while license suspended on July 24, 2010, Mr. Gaskin stated: I got a traffic ticket leaving work which violated my probation. I notified my probation officer and turned myself in, so there wasn’t an arrest. My probation was re-instated; I then paid it off and completed it to its entirety. Since September 10, 2002, Mr. Gaskin has been released from all confinement, supervision, and non-monetary sanctions imposed for the disqualifying offenses he committed. Since April 14, 2016, Mr. Gaskin has been released from all monetary conditions. Mr. Gerry Driscoll is the regional operations manager for the Southeast Region in the Agency. He has served in his current position for 3 years and has been employed with the Agency for 17 years. Mr. Driscoll credibly testified that the Agency has responsibility for a very vulnerable population, many of whom are unable to later tell others about the actions of their caregivers. This population is thus very susceptible to exploitation. Mr. Driscoll noted that the Agency must consider any prior instance of violence very carefully. While in his written submission to the Agency Mr. Gaskin stated that he never caused any harm or injury to any victim, at hearing he admitted that he caused injury to his wife when he hit her after breaking into their home and injury to others in selling them controlled substances, testimony that is credited. Mr. Gaskin submitted three character reference letters to the Agency stating generally that he is hardworking, intelligent, and committed. Mr. Gaskin further stated that he was very remorseful and admitted he had made poor choices in his life in the past. He explained that he just wants an opportunity to be a productive citizen, to work, and to take care of his family. Mr. Gaskin seems sincere in his desire to care for vulnerable persons, and asks for a chance to work with them to demonstrate that he is rehabilitated. However, the statute requires that rehabilitation be shown first through other work history and by additional means: only then may an exemption to disqualification be granted. While Mr. Gaskin stated that he is rehabilitated, he offered little evidence to clearly demonstrate that. He completed some courses toward certification as a firefighter in 2004-2005, but has evidently not pursued that further. He completed some courses required as a condition of probation, but has not participated in other counseling or coursework. Mr. Gaskin’s work history in the past decade, a very important element in demonstrating rehabilitation, has been very “sketchy,” as Mr. Driscoll testified. Mr. Gaskin indicated that his last employment ended in July 2014. He was employed by Manpower Staffing Services doing temporary work for about 14 months in several jobs such as maintenance worker, demolition worker, and equipment/maintenance technician. He also worked at United Parcel Service for a couple of months in 2010. Although Mr. Gaskin has not had steady work in recent years, he noted that when needed, he assists his father-in-law with handyman work, his son with his entertainment business, his cousin with his bail bonds business, and his nephew with his marketing business. He noted that he also assists at his church. Passage of time is a factor to be considered in determining rehabilitation, and the last disqualifying offense was many years ago. However, Mr. Gaskin’s history since his disqualifying offenses continues to reflect minor incidents and does not contain sufficient positive indications of rehabilitation. Petitioner failed to prove by clear and convincing evidence that he is rehabilitated and that he will not present a danger if he is exempted from his disqualification from employment in a position of trust.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying Mr. Dwayne Gaskin’s application for exemption from disqualification. DONE AND ENTERED this 21st day of September, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 21st day of September, 2016.
Findings Of Fact At all times relevant to the Notice to Show Cause, the Respondent, Londonaire Lounge, Inc., was the holder of License No. 26-664, a Series 4-COP license held with the State of Florida, Division of Beverage. On January 22, 1975, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On January 23, 1976, the Respondent, Londonaire Lounge, Inc., licensed under the Beverage Laws as a corporation, had listed Robert Larson as its vice president/secretary in its statement on file with the State of Florida, Division of Beverage. In fact, Robert Larson had served in that capacity from November 27, 1973 to January 28, 1974 and subsequent to that time, Nicholas Balistreri was, in fact, the corporate secretary and had been serving in that capacity for more than ten (10) days subsequent to Robert Larson's removal as vice president/secretary. On or about the evening of January 6, 1976, Nicholas Balistreri, a corporate officer and employee of the Respondent went to the licensed premises at 1553 South Lane Avenue, Jacksonville, Florida about the time of closing. He was in the company of a man names Paul Spencer and both of these individuals were riding in Balistreri's automobile. Spencer and Balistreri entered the licensed premises and Spencer went into the office of the licensed premises and was joined by Balistreri and another individual who was an agent of the United States Drug Enforcement Administration. Spencer had in his possession approximately 35 grams of cocaine, a Schedule II controlled substance listed under Title 21, United States Code, Section 812(c). Spencer removed the cocaine and Balistreri, the agent, and Spencer ingested a quantity of the cocaine. The agent was acquainted with Spencer from some other occasion. After the individuals had ingested the cocaine, Balistreri told the agent and Spencer that no sale of that substance could be made in the licensed premises. Balistreri and Spencer then left with the agent of the Drug Enforcement Administration and returned to Balistreri's apartment in Balistreri's car, at which time Balistreri and Spencer were arrested. Balistreri was subsequently charged and convicted of having in his possession with the intent to distribute the substance, the aforementioned cocaine, a Schedule II controlled substance, listed under Title 21, United States Code, Section 812(c), in violation of Title 21, United States Code, Section 841(a)(1) and Title 18, United States Code, Section 2. He was sentenced to three years confinement for that offense. Subsequent to the arrest of Balistreri, charges were placed against the Respondent, i.e., a Notice to Show Cause was filed against the Respondent corporation. Balistreri remained as an employee of the corporation until after the informal conference with the Division of Beverage and the date of Balistreri's dismissal from the corporation occurred in May, 1976. The above facts were as stipulated to by the parties.
Recommendation Based upon the findings of facts and conclusions of law, and in consideration of the aggravating and mitigating factors, and the agreement of the counsel of the Petitioner that the Petitioner does not seek revocation or suspension, it is recommended that the Respondent, Londonaire Lounge, Inc., be fined in the amount of $750.00, against its License No. 26-664, Series 4-COP. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles Tunicliff, Esquire Division of Beverage Department of Business Regulation The Johns Building 725 Bronough Street Tallahassee, Florida 32304 H. R. Fallin, Esquire 1239 King Street Jacksonville, Florida 32204
The Issue The issues in this case are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(a) and (b), by unlawfully possessing a controlled substance, cocaine, and by driving or being in actual physical control of a vehicle while under the influence of alcoholic beverages, when effected to the extent that his normal faculties were impaired or with a blood or breath alcohol level of .08 or above, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner, Criminal Justice Standards and Training Commission, is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. At all times relevant, Respondent was a certified Florida Correctional Officer, having been issued certificate number 279704. On October 14, 2010, Respondent was operating or in actual physical control of his motor vehicle in South Miami, Florida. South Miami Police Officer Junior Vijil observed Respondent's vehicle stopped in the middle of the intersection of 58th Court and Southwest 73rd Street. After observing Respondent's driving pattern, Officer Vijil initiated a traffic stop. Officer Vijil approached Respondent's vehicle and made initial contact with Respondent. Officer Vijil observed certain indicators of potential impairment and requested Respondent to step out of the vehicle. Respondent complied with Officer Vijil's request. At the time of the traffic stop, Respondent had a passenger in the front seat of his vehicle. When Respondent exited the vehicle, at Officer Vijil's request, the passenger remained seated in the vehicle. Officer Vijil called for backup officers and awaited their arrival prior to performing field sobriety exercises with Respondent. The passenger remained seated, unsupervised, in Respondent's vehicle for several minutes until additional law enforcement personnel arrived. When South Miami Police Officer Louis Fata arrived on the scene, Officer Vijil initiated field sobriety exercises. At the conclusion of the field sobriety exercises, Officer Vijil did not immediately arrest Respondent, but rather, requested Respondent provide consent to search the vehicle. Respondent consented to the search. Officer Vijil began the search of the vehicle by first looking in the front interior compartment. He observed, in plain sight, a small, dark, plastic baggie in the center console. The center console's lid was absent. Although the baggie was dark in color, Officer Vijil could observe a white powdery substance that he believed was cocaine. After locating the suspicious substance, Officer Vijil removed the same from Respondent's vehicle and secured it in his patrol vehicle. A field test of the white substance was performed by Officer Vijil and Officer Fata, which resulted in a presumptive positive result for cocaine. Officer Vigil interviewed Respondent and the passenger concerning their knowledge of the suspected cocaine. After both individuals denied any knowledge of the substance, Officer Vijil arrested Respondent for possession of a controlled substance. Karen Wiggins, a criminalist at the Miami-Dade Police Department Forensic Service Bureau, performed a series of tests on the substance at issue, and credibly testified that the suspected substance was cocaine. Pursuant to the Joint Stipulation, the parties stipulate that, on October 14, 2010, Respondent did unlawfully drive or was in actual physical control of a vehicle while under the influence of alcoholic beverages, when effected to the extent that his normal faculties were impaired; or with a blood or breath alcohol level of .08 or above.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of violating sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), by his violation of section 316.193, Florida Statutes. It is further recommended that Respondent be placed on probation for a period of six months, with the requirement that Commission-approved substance abuse counseling be completed prior to the end of the probationary period. It is further recommended that the Commission enter an final order dismissing the allegation that Respondent unlawfully constructively possessed a controlled substance in violation of section 893.13(6)(a), Florida Statutes. DONE AND ENTERED this 2nd day of August, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2013.
Findings Of Fact Respondent, George Thomas Darby, at all times relevant to these proceedings, was licensed as a professional bail bondsman and limited surety agent. The Respondent was previously licensed as an ordinary-combination life, including disability agent, but such license expired on March 30, 1981. On January 7, 1982, a grand jury indictment was issued in the United States District Court for the Northern District of Florida, Panama City Criminal Division, against the Respondent, George Thomas Darby. The indictment specifically charged that the Respondent: Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other stated individuals to possess with the intent to distribute more than 1,000 pounds of the Schedule I control substance marijuana, in violation of Sections 841 and 846 of Title 21 of the United States Code. Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other specified persons to import into the United States the Schedule I control substance marijuana in violation of Sections 952 and 963 of Title 21 of the United States Code. Did knowingly and intentionally import into the United States a Schedule I control substance in violation of Section 952 of Title 21 and Section 2 of Title 18 of the United States Code. Did knowingly and intentionally possess with the intent to distribute the Schedule I control substance marijuana in violation of Section 841 of Title 21 and Section 2 of Title 18 of the United States Code. On July 14, 1982, George Thomas Darby was convicted in the United States District Court for the Northern District of Florida, Panama City Criminal Division, as follows: Defendant has been convicted as charged of the offense of from on or about January, 1975, until the date of the indictment, in the Northern' District of Florida and elsewhere, knowingly combining, conspiring, and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952 and 963, as charged in Count 111(3) of the indictment. Pursuant to the above conviction, the Respondent, George Thomas Darby, was sentenced to a term of five years imprisonment and fined $15,000. The Respondent, by answer, admitted and further, at the formal hearing by stipulation, accepted as true the following facts: That you, George Thomas Darby, on or about July 14, 1982, in the United States District Court of the Northern District of Florida, in Case No. MCR 82-00203-07, were found guilty of knowingly combining, conspiring and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952, and 953, as charged in Count 111(3) of a previous grand jury indictment, Criminal Case No. MCR82-00203. The violation of either of the aforementioned titles is a felony as defined by Title 18, U.S.C. Section I(1). The Respondent has been licensed as a professional bail bondsman since October, 1976. His primary business as a bail bondsman has been in Jackson County, Florida. The Respondent has had no prior criminal convictions and no complaints or other disciplinary actions by the Department of Insurance against any license held by him from that Department. The Respondent has voluntarily ceased writing bail bonds since February of 1982, to the date of the hearing. Prior to the above-referenced conviction, the Respondent enjoyed a reputation as an honest, hardworking, and law-abiding citizen in the Jackson County area. On January 31, 1983, Clyde M. Taylor, Jr., Esquire, counsel for the Respondent in the above-referenced criminal action, filed an appellate brief in the United States Court of Appeal for the Eleventh Circuit on behalf of George Thomas Darby, seeking to reverse the July 14, 1982, district court conviction. At the time of the formal hearing, this appeal was pending.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Insurance enter a Final Order dismissing its Administrative Complaint against the Respondent, George Thomas Darby. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance Suite 413-B, Larson Building Tallahassee, Florida 32301 Clyde M. Taylor, Jr., Esquire 1105 Hays Street Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1983.
Findings Of Fact At all times pertinent to the issues herein, the Department of State, Division of Licensing, (Division), was the state agency responsible for the licensing of private investigators in Florida. On or about February 26, 1992, Petitioner herein, Lyman S. Bradford submitted to the Division an application for a Class "A" Private Investigative Agency license. On the same day, he also submitted an application for a Class "C" Private Investigator's license. In Section 12(a) of the former application and Section 7(a) of the latter, Petitioner indicated he had been convicted of attempted possession of cocaine, a misdemeanor, in 1988. He further indicated probation had been completed. On the basis of her analysis of Petitioner's applications, on March 12, 1992, Joni Rozur, the Division's reporting representative, recommended both applications be approved based on Petitioner's previous licensure as a Class "C" licensee, and noted that his experience met or exceeded the statutory requirements. She also noted, however, that approval was pending receipt of a criminal history report. When that record was received by the Division, it reflected that Petitioner had been arrested in September, 1988 for failure to appear for trial on the attempted possession charge and when brought before the court on October 20, 1988, pleaded not guilty. In November, 1988, however, Petitioner changed his plea of not guilty to nolo contendere and as a result, adjudication of guilt was withheld and he was placed on probation for 6 months with 15 hours community service, and ordered to pay costs. On January 5, 1989, Mr. Bradford failed to meet with his probation officer as ordered and he was brought before the court on February 15, 1989 for a preliminary hearing on a charge of violation of probation. Bond was set at $2,000.00. When he appeared in court on April 12, 1989 on the violation of probation charge, Petitioner pleaded not guilty and hearing was set for May 10, 1989. On that date, Petitioner did not appear and after several other hearings, on June 2, 1989, the judge released Petitioner from his bond on his own recognizance. At a hearing on the violation of probation charge held on August 2, 1989, Petitioner was found guilty and his prior probation was revoked. By way of sentence, he was placed on an additional 6 months probation with conditions. Court action, mostly involving Petitioner's motions for continuance, was periodic for a while, but after a motion to set aside his prior plea to the charge was denied, on December 27, 1990 Petitioner entered a plea of guilty to and was found guilty of violation of probation. He was placed on a new period of probation for 1 year with 300 hours of community service; ordered to undergo drug evaluation and treatment as necessary; ordered to be subjected to random urine testing; and ordered to serve 1 year in jail (suspended). His prior probation was revoked. The criminal information relative to Petitioner which Ms. Rozur relied on to change her recommendation to denial also included Petitioner's arrest on September 14, 1989 on a charge of trafficking in cocaine. Petitioner was tried before a jury in circuit court on that charge on August 21, 1991, and after a trial on the merits, pursuant to his plea of not guilty, was found not guilty. The evidence put before the jury during that trial consisted of the testimony of the two arresting officers who indicated they had observed the transaction and seized a substance at the scene later identified as cocaine; that of the Petitioner's co-actor in the supposed sale; and that of the confidential informant who set up the controlled buy. The evidence, as proffered through the testimony of Deputy Martinez who was present at the scene, indicated that a confidential informant had reported that a sale of cocaine, involving the Petitioner, would take place on an evening in September, 1989. After the confidential informant was given authority to set it up, the Petitioner did not appear and the officers left. Supposedly, Petitioner did appear later and when the informant called the officers again, he was told to set the buy up again another time. The second buy, at which Petitioner was allegedly the broker between the dealer and the confidential informant, took place in the parking lot of a motel in West Palm Beach on September 14, 1989. The informant was fitted with a radio transmitter for recording the conversations among the parties but it failed to work. Nonetheless, Martinez claims he saw Petitioner and his partner meet with the informant outside the motel room and the other officer purportedly overheard their conversation through the closed window. When the parties moved around to the side of the building out of sight and hearing, the two officers, accompanied by a drug detection dog, came out and arrested Petitioner and his associate. During the course of the arrest, cocaine was found both on the associate and wrapped in a pillow case in the back seat of the associate's car. Petitioner had no cocaine in his possession. On the basis of the above information relating to the Petitioner's original conviction, the subsequent violation of probation charge, and the arrest for but acquittal of a charge of trafficking in cocaine, the Division, on May 13, 1992, denied both applications by the Petitioner alleging that his criminal record, as cited, was clear and convincing evidence of a lack of good moral character. The Hearing Officer, however, over strenuous objection of counsel for Respondent, declined to consider as evidence any matters relating to the Petitioner's arrest for trafficking in cocaine on the basis that the acquittal of that offense came after a trial on the merits before a jury subsequent to a plea of not guilty. Under those circumstances, the Hearing Officer would not permit the Division to present evidence regarding the alleged commission of an offense of which the Petitioner had been found not guilty. In retrospect, however, there is some question as to whether or not that evidence should have been considered. At the hearing, Petitioner presented 4 letters from prominent attorneys in practice in southeast Florida going back to 1982 and 1987 through 1991, commenting on his excellent investigative work. In addition, Petitioner also presented 9 letters of recent date from various individuals including a detective with the Palm Beach County Sheriff's Office, the Directress of his church's outreach ministry, the Chief of Police for Palm Beach Gardens, attorneys, a retired highway patrolman, a recovery agent, the assistant manager of the local American Cancer Society unit, and a fire battalion chief, all of whom have known the Petitioner for several years. In these letters, he is described as professional and thoroughgoing, capable, progressive, charitable, efficient, competent, trustworthy, conscientious, and possessed of good moral values and integrity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered by the Division of Licensing denying Petitioner's applications for a Class "A" Private Investigative Agency License and a Class "C" Private Investigator License at this time. RECOMMENDED this 30th day of September, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3631S The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted and incorporated except for the last sentence which is rejected. Accepted and incorporated herein. Accepted but as a comment on the evidence. Accepted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. - 8. Rejected. Accepted. Accepted. COPIES FURNISHED: Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, M.S. #4 Tallahassee, Florida 32399-0250 Thomas C. Gano, Esquire Lubin & Gano, P.A. Second Floor, Flagler Plaza 1217 South Flagler Drive West Palm Beach, Florida 33401 Hon. Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel The Capitol, PL-02 Tallahassee, Florida 32399-0250
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 Richard Stephan Flatt, M.D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation (Petitioner) as a medical doctor and was so licensed at all times here relevant. Respondent has been a Board certified Dermatologist since 1957 and has practiced Dermatology in Sarasota for some 20 years. He is 54 years old. Tana Williams was a patient of Respondent in 1971 when he first treated her for warts, and he also treated Ms. Williams' daughter. Afterward she left Sarasota but returned in 1975 or 1976, at which time she was divorced. She visited Respondent's office for treatment of warts on 5 April 1976. Her appointment was near the close of Respondent's office hours. During this visit she told Respondent she was divorced; that she liked older men; and that she would like to see him socially. He suggested she come back to the office after 5:30 p.m. when his nurse normally departed. Upon her return after 5:30, Respondent and Ms. Williams discussed an arrangement whereby he would contribute $250 per month towards her support and spend weekends at the apartment she would occupy. According to Respondent's testimony, at this time he was going through a mid-life crisis and was delighted with the prospects of being desired by a woman 23 years his junior. Some two weeks later the first weekend was shared. Although the situation was very satisfactory to Respondent, the $250 per month was insufficient even to pay the rent, let alone satisfy Ms. Williams' money requirements. Accordingly, Respondent found the liaison was costing more than he could fund from his ready cash. After the 5 April 1976 visit, Ms. Williams did not again visit Respondent's office, or consider herself Respondent' s patient. In addition to cash, Ms. Williams also wanted drugs for her nervous condition and Respondent began supplying her with Quaaludes in the latter part of 1978. By 1979, Ms. Williams was psychologically dependent on Quaaludes and was taking 10 to 12 per day. As Respondent became more financially strapped the Quaaludes were provided for the additional purpose of being converted by Ms. Williams into cash to help maintain her life style. In 1976 Respondent began ordering Quaaludes and Preludin from New York drug houses under his DEA authorization. The Quaaludes started out in quantities of 200 every few months but increased to 1,000 nearly every month by the end of 1979. Most, if not all, of the 11,000 300 mg. Quaaludes Respondent ordered on an Official Order Form for Controlled Substances were given to Ms. Williams. In addition, Respondent ordered Preludin which he also gave to Ms. Williams. Both Preludin and Quaaludes are Class II controlled substances. Due to Ms. Williams' increasing dependence on Quaaludes, nearly half of these drugs given her by Respondent were taken by her. Petitioner presented no evidence that Preludin was wrongfully prescribed or abused. During the nearly four years the relationship continued, several interruptions occurred, due largely to Ms. Williams' living with other men, one of whom she married for a short period of about two months. During the periods Ms. Williams was living with other men, she would contact Respondent to continue or renew their liaison and even threatened suicide and to publicize their relationship to his wife if he did not continue to see her. In the latter months of their association, assignations were arranged at motels at which Respondent gave Ms. Williams money and/or drugs in exchange for sex. In addition to supplying Ms. Williams with drugs obtained on Official Order Forms, Respondent also wrote prescriptions in Ms. Williams' name, in the names of his children, or in the name of a fictitious person. Those prescriptions written in names other than Ms. Williams, Respondent took to Wallpole's Pharmacy personally and picked up the drugs. By this procedure from late 1978 through 1979 Respondent acquired an additional 1,249 300-mg. Quaaludes, 150 Preludin Endurettes, and 100 Preludin tablets which he gave to Ms. Williams. Using a confidential informant, the Sarasota police made two controlled buys of Quaaludes from Ms. Williams and on one of these occasions the informant was wired for sound so his conversations with Ms. Williams could be monitored. With information received from the confidential informant and a surveillance of Ms. Williams' residence, the police became aware that Respondent was Ms. Williams' supplier of drugs. On the morning of 8 February 1980, Ms. Williams was arrested at her home on charges of possession and sale of controlled substances. After being advised of her rights, she was taken down to the State Attorney's office where she was told that she could get up to 10 years in prison for possession and sale of drugs, but that if she cooperated with the police in their case against Respondent, the State Attorney's office would recommend probation rather than jail when she was sentenced. Prior to the arrest of Ms. Williams the Sarasota Police, state and federal drug authorities were aware of Respondent's involvement and were investigating. Respondent, too, was aware of his increasing vulnerability to criminal prosecution and requested a pharmacist to pass the word to the proper authorities that he would like to surrender his DEA certificate, under the authority of which he ordered controlled substances. On February 12, 1980 federal, state and local authorities, armed with information that Respondent had ordered some 11,000 Quaaludes from three New York drug companies during the period from 1976 to the present, visited Respondent's office, told him he was suspected of narcotics violation, read him his rights and asked to see his records. Respondent cooperated fully with the authorities and presented his records which confirmed that Respondent could not account for more than 10,600 Quaaludes during the period from 1976 to the date of the inspection. Respondent made a voluntary statement to the police in which he acknowledged many of the facts noted above. He also voluntarily surrendered his narcotics license. On 22 May 1980, Respondent pleaded guilty in the Circuit Court in and for Sarasota County of two counts of possession of methaqualone and two counts of sale of methaqualone. Adjudication of guilt was withheld, but the Court sentenced Respondent to probation for a period of three years and a $5,000.00 fine on each of the two counts of possession and sale.
