Findings Of Fact Through October 1, 1987, Respondent held a Class "K" license number K- 00-00347 for the instruction of persons seeking a Class "G" license to bear a firearm. While working at a security guard service, Respondent met Enrique Bonet, who asked Respondent if he would be interested in teaching firearm classes to students solicited by Mr. Bonet. Respondent agreed. After teaching not more than 25 students supplied by Mr. Bonet, Respondent terminated the arrangement with Mr. Bonet shortly after it began. Thereafter, Mr. Bonet continued to train persons seeking a Class "G" license, even though Mr. Bonet was not licensed to do so. Following each training session, Mr. Bonet forged Respondent's signature to the certificate that was submitted to Petitioner on behalf of each applicant. Respondent was unaware of Mr. Bonet's unlawful actions until one of Petitioner's employees contacted Respondent and informed him that scores were missing on one certificate bearing Respondent's signature. When asked for these scores, Respondent promptly stated that he had not trained anyone during the period of training shown on the application. After a copy of the application was provided to Respondent, he promptly identified his signature as a forgery.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint. Entered this 26th day of August, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1404 Treatment Accorded Petitioner's Proposed Findings of Fact Adopted. Adopted in substance. Adopted in substance although there is insufficient evidence as to when Respondent conducted the classes with students supplied by Mr. Bonet. Rejected as contrary to the greater weight of the evidence. Mr. Purcell's identification was uncertain and was not clear and convincing evidence. Rejected as contrary to the greater weight of the evidence. Petitioner's case can be largely reduced to the word of Respondent against the word of Mr. Bonet. Respondent attended the hearing, testified candidly, and assisted Petitioner's investigation by promptly identifying a fraudulent certificate. Respondent's demeanor was good. On the other hand, Mr. Bonet has vanished, leaving behind a trail of fraud and deceit by his own admission. In a statement not subject to cross-examination, Mr. Bonet asserted that Respondent was involved in Bonet's fraudulent activity. This assertion does not qualify as an admission against interest so as to be admis- sible under the hearsay exception. Nor does Mr. Bonet's hearsay statement supplement or explain other admissible evidence. Even if Mr. Bonet's statement were admissible, it would be rejected as against the greater weight of the evidence. Mr. Bonet's absence and admitted deceit militate against taking his testimony over Respon- dent's. Moreover, Petitioner produced only one person to corroborate Mr. Bonet's testimony concerning the involvement of Respondent in Mr. Bonet's unlawful activities. This witness's testimony was vague and uncertain. Petitioner should have produced one of the 60-65 other persons who took classes from Mr. Bonet while improperly supervised by Respondent. Even such testimony, however, would somehow have had to link Respondent with Mr. Bonet's unlawful activities. COPIES FURNISHED: R. Timothy Jansen, Esquire Assistant General Counsel Department of State Division of Licensing The Capitol Tallahassee, Florida 32399-0250 James E. Meade, Jr., pro se 8425 Mattituck Circle Orlando, Florida 32829 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of state 1801 The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact On March 28, 1990, Petitioner filed an application with Respondent for a Class "D" and "G" Watchman, Guard, or Patrolman, Statewide Gun Permit. On May 24, 1990, Respondent, through Marilyn D. Thompson, denied the application based on the provisions of Section 493.319, Florida Statutes. On July 24, 1989, Petitioner entered pleas of nolo contendere of the following charges in a proceeding brought against him in the Circuit Court in and for Dade County, Florida: Battery On A Law Enforcement Officer; Tampering With Or Fabricating Physical Evidence; and Resisting An Officer Without Violence To His Person. Adjudication of guilt was withheld by the court and he was sentenced to time served with statutory costs being imposed. Petitioner's application did not reflect having entered the nolo contendere pleas to these charges. Petitioner did not appear at the formal hearing to present any evidence in support of his application.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered which denies the subject application for licensure. RECOMMENDED this 19th day of October, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of October, 1990. COPIES FURNISHED: Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol, LL-10 Tallahassee, Florida 32399-0250 Mr. George Negron 1311 Sharazad Boulevard Opa Locka, Florida 33054 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulation of pari-mutuel wagering pursuant to Chapter 550, Florida Statutes (2003), and is responsible for licensing employees of pari-mutuel facilities. Respondent is a card dealer holding Florida occupational license number 6927724-1012 for employment as a card dealer at the Tampa Bay Downs racetrack. By application filed at the racetrack on December 3, 2003, Respondent applied for the referenced license. Persons unknown apparently conducted the application process for all employees of the facility. Employees completed the applications and submitted them at the racetrack, again to persons unknown. The application includes a section titled "Background Information." Question 1 asks in relevant part the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contender (no contest) to, even if you received a withhold of adjudication? Question 1 further provides as follows: YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Respondent answered the question in the affirmative. The question provides that if the applicant responds in the affirmative to the question, "form 0050-1" should be completed to disclose additional information about the convictions. Form 0050-1 includes space to list three criminal convictions. The application instructions related to the form state: "[i]f you have more than seven offenses to document on form 0050-1, attach additional copies . . . as necessary." Respondent completed a form 0050-1. On the form, he stated that he had been convicted of a misdemeanor in 1987. The Respondent identified the offenses as "trespassing," "suspended license," and "cashed check." Respondent stated that the penalty had been probation, which was violated, and that he was required to finish the sentence. Respondent initially identified the location of the conviction as Pasco County, but crossed through the writing and changed it to Hillsborough County. Above Respondent's signature on the application is a statement that in material part provides as follows: I hereby certify that every statement contained herein is true and correct and that I understand that any misstatement or omission in this application may result in denial or revocation of my pari-mutuel license. Other than the information on the application, there was no evidence offered at the hearing that Petitioner was convicted of a misdemeanor in 1987 in Hillsborough County. Petitioner asserts that at the time he filed the application, he completed a second form 0050-1 on which he disclosed additional information related to felony convictions. At the hearing, he testified that an unidentified person allegedly involved in the application process instructed him to make the felony disclosures on a second form. Although there is no evidence contradicting Respondent's account of the events, the application submitted through the racetrack to Petitioner did not include a second form 0050-1. In 1983, Respondent was adjudicated guilty of felony charges, including Forgery and Uttering a Forged Check in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8101927CFAWS). In 1990, Respondent was adjudicated guilty of a felony charge of Grand Theft, Third Degree in Hillsborough County, Florida (Circuit Court, Thirteenth Judicial Circuit, Case No. 90-279). In 1991, Respondent was adjudicated guilty of a felony charge of Grand Theft in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8701762CFAWS). A few days after the application was completed, Respondent met with an employee of Petitioner (identified as "Nick") to discuss the felony convictions. "Nick" did not testify at the hearing. As filed with Petitioner, Respondent's application failed to include a second form 0050-1 and did not disclose the felony convictions identified herein. There is no evidence that Respondent has had any involvement in criminal activity since 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order suspending Respondent's occupational license for a period of three months. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 17th day of December, 2004. COPIES FURNISHED: Ralf E. Michels, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stefan Thomas Hoffer Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jerry M. Bonett 7801 Willowbrook Court Hudson, Florida 34667 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Hearing was delayed for thirty minutes in order to allow Ronald Scarlata additional time to appear. Because Scarlata failed to appear no further evidence was presented regarding why he should be entitled to a mortgage broker's license beyond the statements contained in his original application. The Department of Banking and Finance was then directed to present its evidence as to why Ronald Scarlata should not be licensed as a mortgage broker. The Department of Banking and Finance called two witnesses, Ehrlich and Spradley, and offered Exhibits 1-4 for identification. Exhibits 1, 3, and 4 were received and Exhibit 2 was rejected because it lacked relevance to the charges. Ronald Scarlata, the applicant for licensure, filed his application (Exhibit 1) together with a fingerprint card (Exhibit 3) with the Department of Banking and Finance as required by statute. The Department of Banking and Finance as a part of its normal procedure in reviewing such application, forwarded the fingerprint card of Ronald Scarlata to the Florida Department of Criminal Law Enforcement for a check of its files to determine if the applicant had ever been arrested in Florida. This check of the Florida Department of Criminal Law Enforcement files revealed no history of arrest of the applicant. The fingerprint card (Exhibit 3) was forwarded to the Federal Bureau of Investigation by the Florida Department of Criminal Law Enforcement for a check of its files. The check of its fingerprint cards by the Federal Bureau of Investigation revealed that the person by the name of Ronald A. Scarlata whose fingerprints matched those of the applicant had been arrested in Rochester, New York, for third degree burglary and attempted first degree grand larceny and was convicted of attempted second degree grand larceny. The Department of Banking and Finance caused the Florida Department for Criminal Law Enforcement to inquire directly to the Rochester, New York authorities to determine whether their records coincided with those of the Federal Bureau of Investigation. This inquiry resulted in the receipt of a TELEX message (Exhibit 4) received by 0. Allen Spradley, the addressee of the message, from the Rochester Police Department. This message confirms the information received by the Florida Department of Criminal Law Enforcement from the Federal Bureau of Investigation. Spradley, former employee of the Federal Bureau of Investigation fingerprint identification branch, stated that entry on the Federal Bureau of Investigation report indicated a conviction and sentencing as opposed to probation without adjudication of guilt or conviction. The crime of attempted grand larceny in the second degree involves moral turpitude. The application of Ronald Scarlata (Exhibit 1) indicates that the applicant answered question 5 on page 2, regarding prior arrests or indictments, in the negative, and subscribed the application on February 5, 1975.
The Issue The issues in this case are whether Petitioner committed a public entity crime as that term is defined in Section 287.133, Florida Statutes (2000), and, if so, whether it is in the public interest to place Petitioner's name on the convicted vendor list maintained by the Department of Management Services (the "Department").
Findings Of Fact On March 22, 2000, Petitioner and White Construction Company, Inc., were charged by a twelve-count criminal indictment by the Fifteenth Statewide Grand Jury in Leon County, Florida. Petitioner's indictment arose out of certain work he performed after he was retained by attorneys representing White Construction Company to do cost evaluation and preparation of cost damages and to testify regarding those matters in depositions and, if necessary, at trial. On August 30, 2000, Petitioner entered a plea agreement with the State of Florida in the Circuit Court of the Second Judicial Circuit in Leon County, Florida. Pursuant to the terms of the Plea Agreement, Petitioner entered a plea of guilty to Counts Seven and Eight of the indictment and agreed to pay restitution in the amount of $84,000 to the State of Florida, an amount equaling the fees that Petitioner was paid for his services. In the Plea Agreement, the State agreed to nolle prosse Counts One through Six and Nine through Twelve against Petitioner, and it also agreed that a formal adjudication of guilt would be withheld. Finally, the Plea Agreement provided, that by entering a plea of guilty, Petitioner "admits the facts of the charge." Counts Seven and Eight of the indictment charged Petitioner with two counts of Grand Theft, in the first degree, and both counts provided in relevant part the following: WHITE CONSTRUCTION CO., INC., by and through its officers, representatives and employees, and WILLIAM THOMAS COOPER, JR. as part of a related transaction . . . committed GRAND THEFT in the First Degree and did thereby knowingly obtain or use, or endeavor to obtain or use U.S. Currency or other property with an equivalent value, to-wit: "delinquency days," with a value of $100,000 or more, the property of another, to-wit: Florida Department of Transportation, hereinafter: FDOT, with the intent to temporarily or permanently deprive said person of a right to the property, or a benefit therefrom, or to appropriate the property for the defendants' own use or to the use of a person(s) not entitled thereto, by filing false or fraudulent claim(s) or lawsuits for damages allegedly attributable to the FDOT, and fraudulently opposing delinquency status declared by FDOT, that included false or fraudulent charges or claims in that the claim(s) presented contain(s), when all line items are considered together, damages and/or delays for the same days and the same equipment expenses on multiple occasions, and/or fraudulent or false claims for equipment not owned by WHITE CONSTRUCTION CO., INC. . . . Count Seven related to Project No. 36210-3439 on Interstate 75 in Marion County, Florida, and to activities which allegedly occurred between January 8, 1996, and January 30, 1998. Count Eight related to Project Nos. 36210-3440 and 36210-3441 on Interstate 75 in Marion County, Florida, and relates to activities which allegedly occurred between April 15, 1996, and January 30, 1998. At the hearing in this matter, Petitioner testified that he prepared damage and extension of time claims, based on information that was provided to him by the attorneys for White Construction Company. Petitioner testified that he did plead guilty to Counts Seven and Eight, which involved instances of billing the Florida Department of Transportation ("FDOT") for the same equipment at different locations on the same day. It is undisputed that first degree grand theft, pursuant to Subsection 812.014(2)(a)1., Florida Statutes (2000), in the context of doing business with a state agency, constitutes a "public entity crime" as defined by Subsection 287.133(1)(g), Florida Statutes. Petitioner did not notify the Department that he had been convicted of a public entity crime within 30 days of his conviction, as required by Subsection 287.133(3)(b), Florida Statutes (2000). Petitioner testified that, at the time of the plea, he was unaware of this statutory requirement. Petitioner was represented by counsel in the criminal proceedings, and testified that his lawyer did not mention Section 287.133, Florida Statutes (2000), in their discussions. Petitioner further testified that the statewide prosecutor did not mention the public entity crimes statute during plea negotiations. Section 287.133, Florida Statutes (2000), is not mentioned in the plea agreement. Petitioner further contends that the fact that adjudication was withheld as a result of his plea agreement establishes that he was never "convicted" of a public entity crime. Subsection 287.133(1)(b), Florida Statutes (2000), defines "conviction" as "a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere." (emphasis added) Petitioner's contention that he was not "convicted" is therefore without merit. However, Petitioner's belief that he had not been convicted of a crime is credited. Even if he had been aware of the requirements of Section 287.133, Florida Statutes (2000), Petitioner in all good faith would not have believed that he was under any obligation to report his conviction. In addition to requiring a person convicted of a public entity crime to inform the Department within 30 days of his conviction, Subsection 287.133(3)(b), Florida Statutes (2000), requires any public entity which receives information that a person has been convicted of a public entity crime to transmit that information to the Department in writing within 10 days. Subsection 287.133(1)(f), Florida Statutes (2000), defines "public entity" as "the State of Florida, any of its departments or agencies, or any political subdivision." The Office of Statewide Prosecution, which was the signatory party to Petitioner's plea agreement, never informed the Department of Petitioner's conviction. In 2002, the Florida Engineers Management Corporation on behalf of the Board of Professional Engineers issued a complaint against Petitioner, seeking to discipline his license as a professional engineer because of the acts alleged in the indictment and the crimes to which Petitioner pled guilty. Petitioner contested the proposed discipline and the matter went to a full evidentiary hearing before a judge of the Division of Administrative Hearings. See Florida Engineers Management Corporation v. Cooper, Case No. 02-3167PL (DOAH January 6, 2003). Neither the Florida Engineers Management Corporation nor the Board of Professional Engineers informed the Department that Petitioner had been convicted of a public entity crime. Petitioner presented documentary evidence indicating that Michael K. Bowen, an FDOT employee, filed the complaint that led to the investigation that culminated in Case No. 02-3167PL. The complaint was filed with the Board of Professional Engineers on September 13, 2001, more than one year after Petitioner's plea agreement was entered. In the Recommended Order in Case No. 02-3167PL, the Administrative Law Judge recommended that the charges against Petitioner be dismissed, based on the conclusion that the allegations did not directly relate to the practice of engineering or the ability to practice engineering. The Agency's Final Order, dated May 15, 2003, rejected the Administrative Law Judge's conclusion and imposed a six-month license suspension and a fine of $1,000.00 on Petitioner. On June 16, 2003, Petitioner filed a notice of appeal with the First District Court of Appeal. Petitioner and the Board of Professional Engineers settled the appeal, and Petitioner voluntarily dismissed the case on October 23, 2003. See Cooper v. State of Florida, Board of Professional Engineers, Case No. 1D03-2542. Petitioner testified that he believed the dismissal of his appeal would mark the end of his legal problems, some three and one-half years after the filing of the indictment. By letter to Steve Rumph, the Department's inspector general, dated March 15, 2005, Cecil T. Bragg, Jr., FDOT's inspector general, reported the "criminal conviction of Luther White, Jr., William Thomas Cooper, Jr., and White Construction Company, Inc. of Chiefland, Florida." The letter notes that Petitioner entered his guilty plea to two counts of grand theft and agreed to repay FDOT $84,000 in addition to permanent debarment from doing business with or associating with any business doing work with FDOT. The letter correctly states that the plea agreement was entered on August 30, 2000. It is notable that Mr. Bragg concludes the letter by directing any questions to "Investigations Manager Michael K. Bowen." Michael K. Bowen was the same FDOT employee who filed the complaint against Petitioner with the Board of Professional Engineers on September 13, 2001. Thus, the documents in this case establish that FDOT knew of Petitioner's conviction no later than September 13, 2001,1 yet waited nearly four years before notifying the Department of Petitioner's conviction. At the hearing, no plausible explanation was offered for FDOT's failure to comply with the requirements of Subsection 287.133(3)(b), Florida Statutes (2000). In his questioning of Petitioner, the Department's counsel implied that it was merely standard practice for FDOT to wait until everyone involved in the case had been convicted before notifying the Department. Even if this implication is accepted, it does not bring FDOT's actions within the terms of the statute. The letter itself states that the individual Whites and White Construction Company entered into a plea agreement on July 7, 2004, and that FDOT's inspector general concluded all investigation in the matter on December 23, 2004. Both those dates are months before the March 15, 2005, letter from FDOT to the Department. As noted above, Subsection 287.133(3)(b), Florida Statutes (2000), required the agency to provide notice of the convictions to the Department within 10 days of receiving the information. At the hearing, Petitioner testified that he believed that FDOT intentionally dragged out these matters due to simple vindictiveness. Given the facts noted above, Petitioner's explanation is as plausible as any offered by the Department. By letter dated March 21, 2005, Mr. Rumph attempted to notify Petitioner that the Department had received information that he had been found guilty of a public entity crime and that the Department was commencing an investigation of the matter. Because the letter was sent to an old address and apparently not forwarded, Petitioner never received it. For reasons again unexplained, another year passed before the Department made any further effort to contact Petitioner. By certified letter dated April 6, 2006, the Department notified Petitioner of its intent to place him on the convicted vendor list. This letter was sent to the old address, but was forwarded to Petitioner's current address. Petitioner testified, both at this hearing and the hearing in DOAH Case No. 02-3167PL, that he was retained to provide cost evaluations and calculate cost damages based entirely on information provided to him by engineering firms hired by the attorneys for White Construction Company, as well as information provided by White Construction Company and FDOT. He made only brief visits to the job sites, was not allowed to question the calculations performed by the engineers, and had no knowledge that the information provided to him was untrue. Petitioner did not submit the claims that later proved fraudulent. Petitioner testified that he pled guilty "to make the trial go away and save me about $150,000 at that time." He did not concede that he had actually committed any crime. Petitioner's plea agreement provided that his total aggregate sentence would be ten years of probation, with the possibility of an early termination "upon proof by Defendant to the court's satisfaction that: (a) all restitution, fines, and costs have been paid; (b) Defendant has satisfied in full all other conditions of his probation; and (c) the interests of justice are best served by early termination of probation. The Defendant understands that the State will not agree to an early termination of probation any sooner than one-half of his probationary period." At the hearing, Petitioner testified that the order terminating his probation was entered on February 10, 2006, more than four years early. The early termination of probation leads to the reasonable inference that Petitioner complied with all the terms of his plea agreement, including the following: Defendant agrees, when directed by the State, to appear and testify truthfully and fully and to provide information truthfully and fully at all interviews, hearings, depositions, and trials involving the above- captioned case and any related investigations. Defendant agrees to provide all interview statements and testimony in all depositions, hearings and trials voluntarily. . . . Petitioner has performed no work for White Construction Company or any of its principals since March 2000. Petitioner has performed no work for any state agency since March 2000. On November 8, 2000, the Federal Highway Administration suspended Petitioner from participating in federally funded projects, based on the March 23, 2000, indictment. The suspension was imposed for the duration of the criminal proceedings. By letter dated April 11, 2005, the Federal Highway Administration notified Petitioner that his suspension had been terminated, due to the conclusion of the criminal proceedings.
The Issue Should Respondent have her Correctional Certificate No. 83134 disciplined for reasons alleged in the Administrative Complaint, Criminal Justice Standards and Training Commission, Case No. 9530?
Findings Of Fact On August 26, 1992, Respondent was certified by Petitioner as a correctional officer. Respondent holds Correctional Certificate No. 831334. On May 5, 1993, James Alford Hagins, Jr. entered the offices of the State of Florida, Department of Highway Safety, Division of Drivers' Licenses, in Ocala, Florida. This office was a location for obtaining drivers' licenses. Although Mr. Hagins is a male, on this occasion, he was dressed as a woman. The purpose for his visit was to apply for a duplicate driver's license in the name of Pamela Edwards Turner-Williams, the Respondent. Once inside the offices, Mr. Hagins approached Karen Izzo, who at that time was a driver's license examiner for the Division of Drivers' Licenses. Her employment involved the issuance of licenses. Ms. Izzo recognized that Mr. Hagins was a man in women's clothing. In requesting a duplicate license in Respondent's name, Mr. Hagins presented supporting documentation. Ms. Izzo processed the license application in Respondent's name to the extent of preparing a duplicate license with Respondent's name and Mr. Hagins' photograph. In addition to being confident that the applicant for license was not a female, certain questions that Ms. Izzo asked Mr. Hagins convinced Ms. Izzo that he was not the Respondent. As a consequence, after processing the duplicate license, to include a signature that confirmed under oath that the information in the application was correct, Ms. Izzo notified her supervisor concerning the fraudulent application. At that time, Stephanie Standridge was Ms. Izzo's supervisor. Ms. Standridge came to the counter where Ms. Izzo was processing the license application for Mr. Hagins and asked Mr. Hagins to accompany her to her office. He complied with that request. Deborah Dobson, who at that time was an assistant regional administrator for the drivers' license offices in the area, noticed Mr. Hagins. She instructed Ms. Izzo to tell her supervisor to question Mr. Hagins about the application. On this date, Alice Smith, an employee of the Division of Drivers' Licenses, was in the reception area of the Ocala office. She overheard the Respondent state "Where is Pamela, where is Pamela?", referring to Respondent's first name being used by Mr. Hagins in disguise. Respondent was also pretending to be someone else. At that time, Respondent stated in a loud voice "Well, we've got to go, we've got to go, I've got to go to work". Ms. Smith told Respondent that "Well, she'll be out in just a minute, ma'am, they're finishing up her application". This referred to the processing of the application of Mr. Hagins, who was pretending to be the Respondent. Ms. Smith had noticed Respondent prior to these events at the reception area when Ms. Smith saw Respondent and Mr. Hagins at the counter where Ms. Izzo was processing the application for duplicate license. After making her comments about leaving the office, Respondent went around the counter where the reception area was into an area which was restricted to the public. In particular, she went to the office where Ms. Standridge had taken Mr. Hagins to inquire concerning the application for duplicate license. In addition to Respondent, Ms. Standridge and Mr. Hagins, Ms. Smith, Ms. Dobson, and Maria Esther Fincher, another employee with the Division of Drivers' Licenses, entered Ms. Standridge's office, or the environs. When Respondent first entered Ms. Standridge's office, she stated "I've got to go, I'm late for work, Pam come on, let's go". Again, the use of the name "Pam" referred to Mr. Hagins assuming the role of the Respondent. When Respondent made these remarks, Ms. Dobson replied "Ma'am, I'm sorry, but this is the supervisor of the office, and she's questioning this lady (referring to Mr. Hagins) about her application. You can go, but she needs to stay". Respondent then stated "No, we're going, and I'm taking these papers with me." At that point, Respondent picked up some documents that Ms. Standridge had been looking at concerning the application. Those documents included Respondent's driving record, the duplicate license issued to Mr. Hagins as the Respondent, Mr. Hagins' application under oath for the duplicate license, and a Discover credit card. Ms. Dobson did not believe that some of the documents should be removed from the offices of the Division of Drivers' Licenses. Therefore, she told Respondent that Respondent could not take the documents. To prohibit Respondent from taking the documents, Ms. Dobson took one end of the documents and held the documents to thwart Respondent's purposes in removing them. Against her will and without consent, Respondent slapped Ms. Dobson's hand in the struggle. This was followed by Respondent taking her hand and wrist and striking Ms. Dobson between Ms. Dobson's wrist and elbow "real hard". Again, Ms. Dobson did not will this action nor consent to it. At that juncture, Ms. Dobson let go of the documents. Respondent maintained control of the documents. However, when exiting Ms. Standridge's office, some documents were dropped. This included the Discover credit card and some bank envelopes, together with Respondent's driving record and the duplicate license that was issued to Mr. Hagins in Respondent's name. As Respondent was attempting to leave Ms. Standridge's office, Ms. Smith tried to retrieve the papers. Ms. Smith told Respondent "those are ours, you can't have those". After Ms. Smith grabbed one end of the papers, Respondent pulled them back toward the Respondent; and Ms. Smith let go of the other end. During the struggle over the papers, Ms. Fincher was hit in the jaw while Respondent was holding the papers over Respondent's head to keep them from being retrieved. Although Ms. Fincher did not exercise her will or consent in being struck by Respondent, Respondent's actions in striking Ms. Fincher were not intentional. The Discover credit card that had fallen was in Respondent's name. Among the items that were successfully removed from the drivers' license office by Respondent's efforts were mortgage papers, a Form 34 from the drivers' license office, related to an application for a driver's license, a corrections certification card, First Union Bank envelopes, and a Florida firearm's certification card. After the altercation, Respondent told Mr. Hagins to leave the drivers' license office, which he did. Respondent also left. Mr. Hagins was followed out of the office and was observed during his escape to have removed a wig and clothing, which he had worn as part of the disguise. The wig was recovered, together with a black bra, black slip and yellow handbag. The yellow handbag had a Discover credit card bill in Respondent's name. Respondent was seen entering a van. Ms. Smith took the tag number of that van. The tag number on the van was found to match Respondent's name. The drivers' license office also had the Respondent's home address, which matched the address on the duplicate driver's license which had been issued to Mr. Hagins. Corporal Johnny Johnston of the Ocala Police Department instituted an investigation of the fraud in obtaining the duplicate driver's license. His efforts took place on May 5, 1993. Corporal Johnston went to the address which the Division of Drivers' Licenses had for Respondent in Ocala, Florida. Respondent arrived at that address subsequently. Respondent was advised of her rights under the Miranda decision and requested an attorney. Nonetheless, she consented to have Corporal Johnston search her home. During the search, Corporal Johnston observed a valid 1993 Florida driver's license issued to Respondent in the pocket of a Florida Corrections uniform shirt inside a kitchen closet. Corporal Johnston located a Florida Firearm's Certification Card in Respondent's name in a wallet underneath a pillow on the bed in the bedroom. Corporal Johnston recovered an expired Florida driver's license in the name of Respondent, First Union Bank envelopes, Lomas mortgage documents, and a credit card form. Those items were in Respondent's name. Under the pillow was found a plastic bag containing a controlled substance, rolling papers and matches. A field test revealed that the substance in the bag was marijuana. Corporal Johnston utilized a kit in performing the field test, which uses reagents to identify the suspected substance by the color produced in using the reagents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which revokes Respondent's corrections certificate. DONE AND ENTERED this 30th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 July, 1996. APPENDIX TO RECOMMENDED ORDER The following discussion is given concerning the proposed findings of fact of the Petitioner. 1-9. Subordinate to facts found. 10. Not necessary to the resolution of the dispute. 11-23. Subordinate to facts found. 24. Rejected in the suggestion that Respondent is accountable for striking Ms. Fincher. 25-29. Subordinate to facts found. 30. Not necessary to the resolution of the dispute. 31-33. Subordinate to facts found. 34-35. Not necessary to the resolution of the dispute. 36-44. Subordinate to facts found. Not supported by competent evidence. Subordinate to facts found. Not necessary to the resolution of the dispute. 48-53. Subordinate to facts found. 54. Not supported by competent evidence. 55-59. Subordinate to facts found. 60-63. Rejected in the suggestion that there is competent evidence supporting laboratory results that the substance was marijuana. 64. Not necessary to the resolution of the dispute. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 Pamela Turner-Williams 2731 N.W. 17th Street Ocala, FL 32675 A. Leon Lowry, II, Director Department of Law Enforcement Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, FL 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489
The Issue Does Petitioner, Captain Ronald G. Beermunder, have standing to bring this action? Does the Division of Administrative Hearings (DOAH) have jurisdiction over this matter? Do the 2008 Firearms Instructor's Training Manual and the 2011 Certificate of Firearms Proficiency for Statewide Firearm License constitute agency statements that amount to a rule as defined in section 120.52(16), Florida Statutes (2014)?1/ If so, has the Division adopted the statements through the chapter 120 rulemaking procedure?
Findings Of Fact The Parties The Division licenses and regulates private investigative, security, and repossession services in Florida. §§ 493.6100 and 493.6101, Fla. Stat. Some Division licensees may bear firearms in the course of regulated activities. § 493.6115(2), Fla. Stat. A licensee who bears a firearm must also possess a Class "G" license. § 493.6115(2), Fla. Stat. An applicant for a Class "G" license must satisfy minimum training criteria for firearms established by statute and rule of the Department. The criteria include 28 hours of range and classroom training taught and administered by a Class "K" licensee. § 493.6105(5), Fla. Stat. Additionally, each Class "G" licensee must submit proof annually that he or she has received a minimum of four hours of firearms recertification training, also taught by a Class "K" licensee during each year of the license period. § 493.6113(3)(b), Fla. Stat. Captain Beermunder has been a licensed Class "K" firearms instructor since 2009. A Brief History of the Manual, the Certificate, and Rules Over the years, the Division has prepared various versions of a Firearms Instructor's Training Manual for Class "K" instructors to use when teaching Class "G" students. The Division has also prepared various versions of a Certificate of Firearms Proficiency for Statewide Firearm License for use by Class "K" instructors to certify a Class "G" student's completion of training. In 1996, the Division, housed, at the time, at the Secretary of State, incorporated the existing versions of the manual and the certificate in Florida Administrative Code Rule 1C-3.1000(6), now rule 5N-1.100. Over the following years, the Division prepared and relied upon various updated versions of the manual and the certificate, including the 2008 version of the Manual and the 2011 Certificate. It did not adopt these versions by reference in a rule. In the euphemistic words of Mr. Wilkinson, the assistant director of the Division, who took that position in 20113/: "Well, I have to acknowledge that my predecessors were not observant in their duties to update manuals and go through the proper rulemaking process." In 2014, after Captain Beermunder began his challenges to use of the 2008 Manual and the 2011 Certificate, the Department amended rule 5N-1.134. The amendment incorporated revised versions of the manual and the certificate as permitted by section 120.54(1)(h). The rule, as amended, became effective May 21, 2014. The Division stopped relying on the 2008 Manual on May 21, 2014, upon adoption of the 2014 version. On May 20, 2014, the Division sent all Class "K" instructors an "Important Notice," along with a compact disc (CD) containing an electronic version of the 2014 Firearms Instructor's Training Manual. The notice informed instructors of the changes to the 2008 Manual and that a supply of revised 2011 Certificates would be forwarded in June 2014. On June 25, 2014, the Division issued another "Important Notice" to Class "K" instructors, along with a supply of the newly adopted 2014 Certificates. It sent a second CD because the one sent in May contained typographical errors. The "Important Notice" informed Class "K" instructors that they could continue using the 2011 Certificate until their stock of certificates ran out. If an applicant submitted the 2011 Certificate, the Division would accept it. New Criminal Statute in 2013 and Investigation of Beermunder The Legislature amended section 493.6120, Florida Statutes (2012), in 2013 to make it a third-degree felony to knowingly possess, issue, sell, submit, or offer "a fraudulent training certificate, proficiency form, or other official document that declares an applicant to have successfully completed any course of training required for licensure under this chapter." § 493.6120(5), Fla. Stat.; Ch. 2013-251, § 6, Laws of Fla. The Division began investigating several Class "K" instructors, including Captain Beermunder, for violation of the new statute. The Division turned the investigation of Captain Beermunder over to the Department of Agriculture Law Enforcement unit. Investigator Padgett issued a probable cause statement that led to the State Attorney of Santa Rosa County charging Captain Beermunder with multiple felony violations. During the Department's investigation and determination of probable cause, the Division relied upon the 2008 Manual and the 2011 Certificate, neither of which were ever adopted as rules. Before this rule challenge hearing, Captain Beermunder entered a no contest plea to nine felony counts of issuing fraudulent certificates, reserving the right to appeal the ruling on a motion in limine raising an issue of whether charges relied upon an unpromulgated rule. The Division is acting against Captain Beermunder's license on the basis of his no contest plea. The nine counts of amended information that Captain Beermunder pled no contest to in criminal case no. 13001343CFMXAX charged him, using identical language except for the differing names of the applicants and different dates in 2013, with issuing a Certificate of Proficiency for the Security Officer G-License applicants when he "knew or reasonably should have known that the certificate, form, or document was fraudulent in violation of Sections 493.6120(7) and 493.6105(5), Florida Statutes." Section 493.6105(5) states among other things: In addition to the requirements outlined in subsection (3), an applicant for a Class "G" license must satisfy minimum training criteria for firearms established by rule of the department, which training criteria includes, but is not limited to, 28 hours of range and classroom training taught and administered by a Class "K" licensee; however, no more than 8 hours of such training shall consist of range training. Every one of the charges to which Captain Beermunder pled no contest were based upon issuing certificates of firearms proficiency fraudulently stating that the applicant had completed 28 hours of training. The Legislature established the requirement for 28 hours of training in 1997 when chapter 97-248, section 3, Laws of Florida, amended section 493.6105, Florida Statutes (1996), to raise the hours of training requirement to 28. The requirement has been in effect ever since. It was in effect when Captain Beermunder was first licensed in 2009.
The Issue The primary issue in this disciplinary proceeding is whether Respondent, which operates a liquor store and sells alcoholic beverages on the premises under a license issued by Petitioner, sold beer to a person under the age of 21, in violation of the statutes governing holders of beverage licenses. If Petitioner proves the alleged violation, then it will be necessary to consider whether penalties should be imposed on Respondent.
Findings Of Fact At all relevant times, Respondent Holiday Liquors 2002, Inc., d/b/a Holiday Liquors ("Holiday"), has held a license to sell alcoholic beverages at retail. Consequently, Holiday is subject to the regulatory and disciplinary jurisdiction of Petitioner Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (the "Division"). On March 23, 2007, five agents of the Division placed under surveillance the liquor store that Holiday operates, covertly watching for sales to underage buyers. At around 10:45 p.m., Special Agent Eric Scarbrough observed a woman enter the store and purchase a six-pack of beer. To Agent Eric Scarbrough the woman appeared to be young——too young, perhaps, to purchase alcohol legally. Agent Scarbrough and his partner followed the woman's car as she drove away from the store's premises. Soon, they pulled her over, making a "traffic stop." The agents could see the six-pack in the car, in plain view. According to Agent Scarbrough, whose testimony in this regard the undersigned credits as true, the woman identified herself to him as Edith Rosario and produced her driver license, which showed November 6, 1986, as her date of birth. Agent Scarbrough confiscated the beer and issued the woman a Notice to Appear. Later that night, he also gave a Notice to Appear to the licensee's agent, Jakia Bergum, charging her with one count of selling alcohol to a person under the age of 21.1 Notwithstanding the foregoing, the undersigned is unable to find that the alleged underage buyer ("Ms. Rosario") was, in fact, under the age of 21 on March 23, 2007. This is because the Division did not offer any nonhearsay evidence in support of the woman's age. (Ms. Rosario did not testify at hearing.) The evidence being insufficient as to a material element of the Division's case (i.e. the age of the alleged underage buyer), it must be concluded, as a matter of ultimate fact, that Holiday is not guilty of selling alcoholic beverages to a person less than 21 years of age, as charged in the Administrative Action [Complaint].
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding Holiday not guilty of the instant charge. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.stae.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2008.
The Issue Whether Respondent's real estate broker's license should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in any business transaction, pursuant to Section 475.25(1)(b) Florida Statutes(1983).
Findings Of Fact At all times pertinent to the charges, Respondent Thomas F. Steffan Jr. was a licensed real estate salesman having been issued license number 0402257. Respondent has since been issued a license as a real estate broker, same license number. Mr. and Mrs. Walther Ellis were the owners of certain property located on Windsor Road, Bonita Springs, Florida. Mr. and Mrs. Ellis listed their property for sale with Wesley Brodersen of Gulder Real Estate, Inc. in Bonita Springs, Florida. The Respondent was employed at Gulder Real Estate, Inc. during the time that the Ellises listed said property with Gulder Real Estate, Inc. On or about May 23, 1984, the Respondent solicited and obtained a Catherine A. Griffin as a prospective purchaser of the Ellis' property. Mrs. Griffin submitted a contract for sale and purchase, witnessed by Respondent, which contract for sale and purchase the Respondent in turn submitted to the Ellises. Pursuant to the terms of the May 23, 1984 contract for sale and purchase, Mrs. Griffin had placed down a total deposit of $5,000.00. The Ellises rejected the terms of sale (offer) as expressed in the May 23, 1984 contract for sale and purchase. Thereafter, Mrs. Griffin, as buyer, along with her husband, Donald Griffin, who is not a buyer in the transaction but was intimately involved in the negotiations, continued to express an interest in the property and the Ellises continued to express an interest to sell the property. In July, 1984, contract negotiations were once again begun and Mr. Griffin informed the Respondent what terms would be acceptable to his wife, Catherine A. Griffin. Mr. Griffin further requested that the signatures of Mr. and Mrs. Ellis be obtained first on a new contract for sale and purchase setting out the terms he had dictated to Respondent. Somewhere during this time period, Mr. Griffin directed Respondent to have completed a survey of the property at the Griffins'expense. Respondent next communicated with Mr. Ellis and a new contract for sale and purchase was prepared by the Respondent and signed by Mr. Ellis personally and signed by Mr. Ellis for Mrs. Ellis with Mrs. Ellis' express consent and permission. Subsequent thereto, the Respondent brought the new contract for sale and purchase to the Griffins. In the presence of Mr. and Mrs. Donald Griffin the Respondent presented the offer. Mr. Griffin immediately signed the new contract for sale and purchase in the presence of both Respondent and Mrs. Griffin on the line indicating he was signing as a witness to the buyer's signature/execution. However, as this contract (offer) was physically handed by Mr. Griffin to his wife for formal execution, it was further reviewed by Mr. Griffin, who became aware that the terms of purchase contained in the new contract for sale and purchase were not as he had dictated them to the Respondent. Mr. Griffin advised his wife not to accept the offer, instructed her not to sign, and, in fact, the new contract for sale and purchase was not signed or accepted by Mrs. Griffin. Respondent requested that the Griffins think about the offer for a while longer and they agreed to do so over an extended vacation. While the Griffins were on vacation, the Respondent, apparently believing the offer contained in the second contract for sale and purchase would eventually be accepted, notified Mr. Ellis that the offer had already been accepted. Believing that the offer had been accepted by a bona fide purchaser, Mr. Ellis requested a copy of the signed contract. Due to the fact that the Respondent did not have a contract signed by a bona fide buyer (Catherine A. Griffin) but believing that one would be obtained in the very near future because Donald Griffin had signed the second contract and because Donald Griffin had indicated that he could finance the entire operation by himself, the Respondent caused a photo copy of the signature of Catherine A. Griffin to be placed onto the second contract without the permission , consent, or knowledge of either Donald Griffin or Catherine Griffin. The altered copy of the second contract is apparently no longer in existence and did not come into evidence. The only real point of contention in the parties' respective proposed findings of fact and conclusions of law is concerning what representation was made by Respondent to Mr. Walther Ellis concerning who had accepted the second contract. Respondent admits he represented to Mr. Ellis that Mr. Griffin, controlling the transaction for buyers, had accepted the second contract. Mr. Ellis maintained that Respondent represented to him that the second contract had been accepted on his terms but he is not clear·whether Respondent told him Mrs. Griffin accepted it or who accepted it. (Walther Ellis Deposition Page 22). Mrs. Ellis's testimony presents no independent confirmation of any of this as her information in all respects is second-hand. Mr. Brodersen's testimony is that the Respondent's representation to him was that "the Griffins" had accepted the second contract for purchase and sale and that Respondent told Mr. Ellis the same thing in Brodersen's presence and also told Brodersen that the last copy of the signed contract had been mailed to Mr. Ellis by Respondent the day previous to this three-way conversation. Mr. Brodersen thought Mr. Ellis never got the fraudulent contract but testified further that Respondent later admitted to Brodersen that he had altered this copy of the second contract so as to fraudulently reflect Mrs. Griffin's signature and further admitted to Brodersen that he, Respondent, had mailed that fraudulent copy to Mr. Ellis. Mr. Brodersen never saw the fraudulent contract. Mr. Ellis testified to receiving in the mail a copy of the second contract with a suspicious-looking set of signatures which he turned over to his attorney. The parties stipulated the attorney does not now have the contract copy. By itself, the testimony of Investigator Jacobs that Respondent by telephone admitted falsifying Mrs. Griffin's signature onto a copy of the second contract for purchase and sale and further admitted destroying one copy of the fraudulent contract would fail as not having the proper predicate for voice identification. However, in light of Mr. Ellis's and Mr. Brodersen's testimony, Mr. Jacobs' testimony on Respondent's creation of the fraudulent document is accepted as corroborative pursuant to Section 120.58 Florida Statutes. The remainder of his testimony is rejected. At no time did Catherine A. Griffin and/or Donald Griffin as her agent or on his own behalf accept the Ellis' offer contained in the second contract for sale and purchase nor did Catherine A. Griffin nor Donald Griffin ever execute the second contract as a buyer. The transaction was never closed and Mrs. Griffin was returned her deposit money when she requested it in September 1984. Mr. Ellis admits having told Respondent he was not anxious for the deal to close and did not care if the deal failed to go through. Mr. Griffin spoke at length and with considerable feeling at the hearing of his desire that Respondent not receive a permanent record as a result of a single mistake committed while under stress from Respondent's father's medical condition. That Respondent was under such stress when all this occurred was confirmed by Mr. Brodersen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered whereby Respondent Thomas F. Steffan Jr.'s licenses as a real estate salesman and broker be suspended for a period of one year and that he pay an administrative fine of $1,000.00. DONE and ORDERED this 8th day of October, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 8th day of October, 1985. COPIES FURNISHED: James T. Mitchell, Esquire Staff Attorney Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Thomas F. Steffan Jr., Pro Se 18645 Sandpiper Road Ft. Myers, Florida Harold R. Huff, Director Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301
