Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commissions personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The Pending Application Petitioner, Marie Elie Davis (Davis), has been employed by the County as a correctional officer since December 5, 1986, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Davis. 3/ Accompanying the application (registration) was an affidavit of compliance, dated August 10, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Davis had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Davis and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine and cannabis. You have unlawfully and knowingly committed petty theft. Following receipt of the Commission's letter of denial, Davis filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Davis denied that she failed to possess the requisite good moral character necessary for certification. Good Moral Character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre-employment interview of Davis on April 25, 1986, at which time she admitted that she had used marijuana and cocaine, and that she had been arrested in 1979 for shoplifting. Regarding her use of controlled substances, the proof demonstrates that Davis tried marijuana one or two times prior to 1980 and that she tried cocaine one time prior to 1980. Other than these isolated incidents she has not otherwise used controlled substances. Regarding her arrest, the proof demonstrates that in December 1979 Davis was arrested for shoplifting costume jewelry. She pled guilty to the offense of petit theft, and was fined $40. Notwithstanding the County's conclusion, based on its investigation and analysis of Davis' background, that Davis possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her isolated use of marijuana and cocaine almost 9 years ago, and her conviction in 1979 of petit theft. The Commission's action is not warranted by the proof. Here, Davis, born September 12, 1958, used marijuana two times and cocaine one time, the last time being almost 9 years ago when she was approximately 21 years of age. Such isolated and dated usage can hardly be termed proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. Nor, is her arrest and conviction for petit theft almost 9 years ago current or persuasive evidence of bad moral character. 4/ Currently, Davis has been employed by the County as a corrections officer, a position of trust and confidence, for almost two and one-half years. Her annual evaluations have been satisfactory, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Overall, Davis has demonstrated that she possessed the requisite good moral character when she was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that she currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Marie Elie Davis, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989.
Findings Of Fact Respondent was certified as a law enforcement officer by the Petitioner on September 21, 1981, and was issued certificate number 02-29370. Respondent made a total of 28 personal telephone calls totalling over $100.00 on her state telephone credit card issued by her employer, the Florida Department of Law Enforcement (FDLE), between January 31, 1985 and May 31, 1985. At the time she made these calls, she knew it was wrong. She falsified telephone credit card bills by signing or initialing the bill and writing case numbers on the bills to conceal the fact that these were personal phone calls. It is FDLE policy that persons making telephone credit card calls must sign or initial the bills to verify that the calls were made on state business. During January, 1985, the FDLE was brought into an interagency investigation of pornography in the Pinellas, Pasco, Hillsborough and Manatee County area. Respondent was assigned to assist an interagency task force that had been established for this investigation. She was employed as a Special Agent with the FDLE at the time. Respondent developed, and was in control of, a confidential informant during this investigation who was employed at a bookstore which was involved in this investigation. Although she initially denied to other law enforcement officers working the pornography case, and later to the State Attorney's Office, that she had ever received from the confidential informant mail which was delivered to the bookstore, she was, in fact, getting mail from the confidential informant. The informant was, in some instances, opening the mail received at the bookstore and delivering information to the Respondent from such mail. In other instances, the mail was delivered unopened to the Respondent by the confidential informant, and she would steam open the envelope and read the contents. During the course of an investigation into her actions, Respondent made repeated material misstatements to fellow law enforcement officers by leading them to believe that the informant was simply opening the mail and providing her information, when in fact, she actually received mail from the informant on numerous occasions and opened it herself. When her actions were discovered, she attempted to cover up what she had done by having the mail delivered back to the bookstore. From March to July, 1986, Respondent made repeated material misstatements to the State Attorney's Office, her supervisors at FDLE, and an inspector at FDLE, about mail she had received in the pornography investigation. Due to concerns of the State Attorney's Office that evidence obtained in the pornography investigation may have been tainted due to it having been obtained illegally from mail delivered to the bookstore, Respondent's supervisor directed her in April, 1986, to prepare a memorandum explaining all of the mail she had received from the confidential informant. Her memorandum stated that she had only received mail on two occasions in August, 1985. In fact, she had received mail on many more occasions. FDLE procedures require an agent to write a report within five to fifteen days of receiving any evidence, and to tag such evidence and make it a part of such report by reference with an exhibit number. Respondent failed to follow these procedures, resulting in inaccurate and misleading reports to her supervisors and to the State Attorney's Office concerning this matter. The credibility of law enforcement officers is critical to their ability to carry out their responsibilities, and the Respondent's actions in the pornography investigation demonstrate her lack of credibility.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent. DONE AND ENTERED this 19th of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989. APPENDIX DOAH CASE NUMBER 88-4737 Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-5. Adopted in Finding of Fact 2. 6-7. Adopted in Finding of Fact 3. 8-10. Adopted in Finding of Fact 4. 11-12. Adotped in Finding of Fact 5. 13-18. Adopted in Finding of Fact 6. 19-20. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 24-27. Rejected as unnecessary and cumulative. 28. Adopted in Findings of Fact 6 and 7. 29-31. Adopted in Finding of Fact 5. 32-33. Adopted in Finding of Fact 2. 34. Rejected as unnecessary. 35-37. Adopted in Finding of Fact 5. 38. Adopted in Finding of Fact 8. Rulings on the Respondent's Proposed Findings of Fact: Not a proposed Finding of Fact. Adopted in Finding of Fact 1. A1. Not a proposed Finding of Fact. A2-13. Rejected in Findings of Fact 4-7 and otherwise as simply a summary and argument on the evidence and not a proposed Finding of Fact. B1-2. Adopted in Finding of Fact 2. C. Not a proposed Finding of Fact. COPIES FURNISHED: Elsa L. Whitehurst, Esquire P.O. Box 1489 Tallahassee, FL 32302 Maria Scruggs-Weston 1825- 45th Street, South St. Petersburg, FL 33711 Jeffrey Long, Director Criminal Justice standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esquire General Counsel P.O. Box 1489 Tallahassee, FL 32302
Findings Of Fact Respondent was certified as a law enforcement officer by the Petitioner on August 11, 1986, and was issued certificate number 35-86-002-03. From the time of his certification until approximately the end of August, 1987, the Respondent was employed as a police officer with the Tampa Police Department. During an interview with Captain Benny Holder on July 31, 1987, Respondent admitted that he had been using a motor vehicle which he knew was stolen, and that he had failed to report the recovery of this stolen vehicle or take any action to return it to its owner. Additionally, Respondent had lied to his supervisors when he had previously denied any knowledge or use of a stolen vehicle. Respondent lived with his cousin, Christopher Brown, and he allowed Brown to use the vehicle which he knew had been stolen. Debra Flowers also lived with Respondent and Brown, and Flowers reported to Officer Carl Anderson that Respondent had driven the stolen vehicle numerous times. Between approximately September, 1986, and July, 1987, Respondent used, and allowed his cousin to also use, a motor vehicle which he knew had been reported stolen. Respondent took no action to report the recovery of this stolen vehicle. Respondent was terminated from the Tampa Police Department based upon his failure to report the recovery of this stolen vehicle, his use of the stolen vehicle, and his failure to truthfully answer questions about these matters when initially confronted by his supervisors.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent. DONE AND ENTERED this 9th day of May, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1989. COPIES FURNISHED: Joseph S. White, Esquire P. O. Box 1489 Tallahassee, FL 32302 Gregory E. Harvin 5707 Society Park Boulevard, #A Tampa, FL 33617 Jeffrey Long, Director Criminal Justice standards and Training Commission P. O. Box 1489 Tallahassee, FL 32302 Daryl McLaughlin Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esquire General Counsel P. O. Box 1489 Tallahassee, FL 32302
The Issue Whether Petitioner should he permitted to take the CPA examination for licensure with the State Board of Accountancy. The Petitioner appeared at the hearing without legal counsel and therefore was advised as to his rights in administrative proceedings under Chapter 120, Florida Statutes. He indicated that he understood these rights and desired to represent himself during the proceedings.
Findings Of Fact On February 2, 1978, Respondent received from the Petitioner an application for permission to take the certified public accountant examination for state licensure. In answer to question 15 of the application form as to whether he had been convicted of a felony or misdemeanor, Petitioner answered "Yes" and submitted an accompanying letter which stated that he had been convicted on a plea of guilty to a charge of accepting a gratuity and that he had received a suspended sentence with two years probation. He further noted in the letter that although he was a member of the New York Bar during that period, no action had been taken against him for disciplinary reasons by chat organization and that he had' lived a clean and exemplary life since that time. Three individuals certified on Petitioner's application as to his good moral character and integrity, and he listed three others who would submit character references on request. (Exhibits 1-2) On May 1, 1973, in the United States District Court for the Southern District of New York, Case No. 70Cr.653, Petitioner, upon his plea of guilty, was convicted of a violation of Title 18, United States Code, Section 201 and 2 in that being a public official, to wit, a Special Agent, Internal Revenue Service, unlawfully, wilfully, and knowingly otherwise than as provided by law for the proper discharge of official duty, directly and indirectly, did ask, demand, exact, solicit, seek, accept, receive and agree to receive things of value, to wit $2,000, because of official acts to be performed by him in connection with an investigation." Petitioner was sentenced to a two-year period of confinement which was suspended and was placed on probation for like period. (Exhibit 4) Incident to its processing of Petitioner's application, Respondent received a letter from his probation officer stating that court records indicated Petitioner had been "seriously involved over a long period of time in numerous bribery and attempted bribery situations while working as a special agent for the IRS." However, the officer stated that petitioner had presented no problems while on supervision, made a satisfactory adjustment, and was terminated from probation on April 30, 1975. (Exhibit 4) Respondent's executive director testified that no inquiry had been made into the character references supplied by Petitioner on his application due to the fact than the amount of time to process applications for the May examination did not provide sufficient time to do so. However, he also testified that such references are not routinely investigated in processing applications. By letter of March 4, 1978, Petitioner was advised by Respondent that his application to take the May, 1978, CPA examination had been denied for failure to comply with Section 473.08(1)(c), F.S., in that "you were convicted on charges of `accepting a gratuity as an IRS agent, Title 18, U.S.C., Section 201(g)'." (Testimony of Thompson) Petitioner testified that he served as an investigative agent in the Internal Revenue Service for a period of seventeen years prior to his retirement for medical disability. He conceded that he was asked to resign from that employment due to the fact that he was being investigated for some 20 to 30 alleged instances of activities similar to that for which he was convicted. He was employed by accounting firms in New York for a number of years prior and subsequent to his employment with the Internal Revenue Service. He has been employed with an accounting firm in Florida since February, 1978. In 1974, he served as Chancellor, Knights of Pythias, in New York. He believes that he has been rehabilitated and should be permitted to take the State CPA examination. (Testimony of Kronish, Exhibit 1) Respondent does not have a consistent position on dealing with applications involving prior convictions, but considers each case on its individual merits. In cases where an application has been denied for such a reason, Respondent normally permits the applicant to appear before it personally if he files a second application. (Testimony of Thompson)
Recommendation That Petitioner Harry T. Kronish be permitted to take the next examination for the purpose of determining whether he shall be permitted to practice in this state as a certified public accountant. DONE and ENTERED this 1st day of September, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1978. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 Harry T. Kronish 4533 Jefferson Street Hollywood, Florida 33021 =================================================================
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on October 2, 1981, and was issued certificate number 02- 29012. On September 7, 1985, the Respondent, who was then employed as a policeman by the town of Mount Dora, arrested Roger Bivins for driving under the influence of alcohol and speeding. Subsequent to arresting Mr. Bivins, the Respondent transported him to the Lake County, Florida, jail for booking. The Respondent and Mr. Bivins entered the jail booking room at about 4:15 a.m. Sergeant Paul Bass and Officer Edward Johnson, jail correctional officers, were on duty in the booking room at the time. The Respondent instructed Mr. Bivins to be seated on a bench in the booking room. Mr. Bivins, whose hands were handcuffed behind his back, complied. The Respondent checked the arrest affidavit and booking sheet which had been prepared in connection with the arrest of Mr. Bivins, and submitted them to Sergeant Bass for approval. The Respondent then turned his attention to Mr. Bivins who sat on the bench. The Respondent asked Mr. Bivins if "he could have his handcuffs back." Mr. Bivins answered "no" and added that he intended to have a lawyer "take care of it." Mr. Bivins offered no physical resistance, nor did he physically threaten the Respondent. The Respondent became angry and shouted at Mr. Bivins. The Respondent said he could "take his gun and badge off." The Respondent then grabbed Mr. Bivins by the arm, stood him up, and hurled him very hard head-long four to five feet into some steel jail bars. Mr. Bivins, who was still handcuffed with his hands behind him, could not catch himself. Mr. Bivins struck the bars with the right cheek of his face and then fell backward onto his back, dazed. His face and back were injured as a result. Sergeant Bass intervened and assisted Mr. Bivins to a nearby desk. Sergeant Bass observed an injury to Mr. Bivins' face and observed "seven or eight welts" on Mr. Bivins' back. Sergeant Bass was concerned about these injuries and contacted the jail nurse, Mary Jo Robbins. Ms. Robbins, a licensed practical nurse employed by the Lake County Jail, saw Mr. Bivins at about 4:55 a.m. Ms. Robbins observed the welts on Mr. Bivins' back and hematomas under his right eye. The hematomas appeared "purplish" and swollen to Ms. Robbins who concluded Mr. Bivins had suffered a "pretty hard lick." Ms. Robbins gave Mr. Bivins Tylenol capsules for his pain, and recommended that he go to the hospital to get an X-ray of his face because the force of the blow suffered by Mr. Bivins could have fractured a facial bone. Although no bone was broken, Mr. Bivins suffered pain for two to three days thereafter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that certificate number 02-29012 held by the Respondent, Milton J. Tinis, be revoked. Hearing Officer WILLIAM B. THOMAS 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 22nd day of July, 1987. COPIES FURNISHED: Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302 Mr. Milton J. Tinis 1502 Tyringham Road Eustis, Florida 32726 Rod Caswell, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Petitioner is entitled to an exemption to work in a position of special trust.
Findings Of Fact Petitioner, Anthony Thomas, is an applicant for employment at a provider facility controlled by the Department of Juvenile Justice (the Department). As such, Petitioner must complete forms designated to reveal pertinent information regarding Petitioner's background. Part of the documentation required of Petitioner is an affidavit of good moral character. This form lists numerous offenses or acts which disqualify an applicant from employment in a position of special trust. On July 10, 1995, Petitioner completed an affidavit of good moral character and affirmed, under penalty of perjury, that he met the moral character requirements for employment but did not disclose that his record contained one or more of the disqualifying acts or offenses. In fact, Petitioner does have a history containing one or more such acts or offenses. In October, 1987, Petitioner was charged with handling and fondling a child under the age of sixteen years, a second degree felony. In January, 1988, Petitioner entered a plea of guilty to the charges and received a suspended sentence with probation and mandatory counseling. Subsequently, Petitioner violated the terms of his probation and was brought before the court for failure to complete counseling and to remit the fees outstanding for same. In 1994, Petitioner completed the counseling requirement, paid all outstanding fees, and was released from probation having successfully complied with the order of the court. A background search completed by the Department for the July 1995, application revealed the foregoing information. The Petitioner received an unfavorable and disqualifying rating in August of 1995 which he did not dispute. In October of 1996, Petitioner again applied for employment for a position of special trust for a provider facility controlled by the Department. On the affidavit of good moral character for this application Petitioner truthfully revealed that his record contained one or more of the disqualifying acts or offenses listed. Notwithstanding the truthful disclosure, Petitioner again received an unfavorable and disqualifying rating for this employment request. Upon receipt of this denial, Petitioner timely requested an exemption and filed a request for an administrative review of the decision denying same. Petitioner has been employed at the Hope Center for approximately six and one-half months. In order to qualify for this employment, Petitioner obtained an exemption from the Department of Children and Families to work in a position of special trust. Hope Center is a residential facility for adults many of whom have the mental age of a child. Petitioner assists the residents with daily living skills. Throughout his employment at Hope Center, Petitioner has exhibited exemplary conduct and has been entrusted with residents for field trips and apartment visits. Petitioner seeks employment at a Department facility because of his interest in working with youthful offenders and to improve his earning level. Petitioner has similar prior experience working at an academy in Maryland. He met Tadar Muhammad at the Maryland facility when they both served as youth counselors. As director of group living for the Florida facility with whom Petitioner now seeks employment, Mr. Muhammad opined that he would have to have more information before deciding whether or not to hire Petitioner to a position of special trust. While many of Petitioner's witnesses knew of his criminal background, none were aware of the specifics of the charges. In 1987, while still a teenager himself, Petitioner was employed as a youth counselor for a facility known in this record as "PAL." During this time, Petitioner, who was in a position of trust, engaged in sexual conduct with a minor female under sixteen years of age who attended activities at PAL. Petitioner denied having sexual relations with a second minor female. When Petitioner was arrested and charged, both females from the PAL facility were named as participants in the sexual acts with Petitioner. Although Petitioner pled guilty to the charges naming both females, he maintains he was sexually active with only one of the minors. The position now sought by Petitioner does not include minor females. Moreover, Petitioner would not be left with any minor unsupervised. Petitioner maintained he entered the plea because of fear of possible incarceration. Petitioner planned to attend college on an athletic scholarship which the criminal court permitted. Petitioner enjoys a good reputation among his coworkers and peers. Those who testified in his behalf maintain that the acts of his past do not reflect adversely on his current character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a Final Order granting Petitioner an exemption to work at Everglades Academy with youthful male offenders. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Anthony Thomas, pro se 5565 Northwest 185th Street Miami, Florida 33055
Findings Of Fact The Respondent is a licensed certified public accountant in the State of Florida (Petitioner's Exhibit 1). The Respondent's license number is AC 20884 (Petitioner's Exhibit 1). The information filed by the State Attorney for the Sixth Judicial Circuit, in and for Pinellas County, Florida, in Case No. CRC-88-16361-CFANO-A, alleged that the Respondent unlawfully did solicit Detective Rick Shaw to commit the offense of murder in the first degree, an offense prohibited by Section 782.04(1)(a), Florida Statutes; and in the course of such solicitation, did command, urge, hire, or request the Mr. Shaw to engage in specific conduct which would constitute such offense or an attempt to commit such offense, to wit: to unlawfully and from a premeditated design effect the death of Zena Leider, a human being, contrary to Section 777.04(2), Florida Statutes (Petitioner's Exhibit 2). On or about December 4, 1989, the Respondent was convicted in Case No. CRC-88-16361-CFANO-A of one count of solicitation to commit murder in the first degree (Petitioner's Exhibit 2). On or about December 4, 1989, the Respondent was sentenced to be committed to the custody of the Department of Corrections to be imprisoned for a term of 17 years. After serving a period 12 years, the balance of the sentence shall be suspended; and he will be placed on probation for a period of five (5) years (Petitioner's Exhibit 2). Daniel Hevia, CPA, was accepted as an expert in the profession of accountancy and testified concerning that profession (Transcript, pg. 24). Accountancy is based upon professional judgment, both technical and ethical. People practicing accountancy must have good ethics and a strong character because of the types of judgments which have to be made in the profession (Transcript, pg. 26). Accountants have to have mature judgment and maintain good mental stability because the public places a great deal of trust in CPA's (Transcript, pg. 27). Good moral character means a personal history of honest, fairness, respect for the rights of others and for the laws of the State of Florida and the nation (Transcript, pg. 25). The Respondent's conviction shows a lack of good judgment and an absence of ethics and good character which adversely effect the Respondent's ability to practice public accounting (Transcript, pg. 42). In the opinion of Mr. Hevia, the Respondent violated Section 473.323(1)(m), Florida Statutes (Transcript, pgs. 28 and 30).
Recommendation Having proved that the Respondent has violated Section 473.323(1)(m), Florida Statutes, by failing to maintain good moral character; and having proved that the Respondent has violated Section 473.323(1)(d), Florida Statutes, by being convicted of a crime relating to his ability to practice public accounting, it is, therefore RECOMMENDED that the license of the Respondent be revoked. DONE AND ENTERED this day of June, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-6424 The Respondent did not file proposed findings of fact. The Petitioner filed proposed findings which were read and considered. The following proposed findings were adopted or rejected for the reasons stated: 1-10. Adopted. 11-12. Rejected, as repetitive and cumulative. 13-14. Adopted. COPIES FURNISHED: Ms. Martha Willis Executive Director Board of Accountancy Department of Professional Regulation 4001 Northwest 43rd Street Suite 16 Gainesville, FL 32606 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Tobi C. Pam, Esq. Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 David S. Leider D.C. #118606 Sumter Correctional Institution P.O. Box 667 Bushnell, FL 33513-0667
The Issue Whether Petitioner's, David A. Reed, application for a real estate sales associate license should be granted so that he may sit for the salesperson's examination.
Findings Of Fact FREC is the state agency responsible for licensing real estate sales associates and brokers in the State of Florida, pursuant to Chapter 475, Florida Statutes (2009).1 Petitioner applied for a real estate sales associate license. FREC stated several factual grounds for the proposed denial of Petitioner's application in the Notice of Intent to Deny. In 1994, Petitioner was arrested and plead guilty to three counts of lewd and lascivious assault on children in the Circuit Court in and for Lee County, Florida. Adjudication was withheld, and Petitioner was placed on supervised probation for ten years and ordered to enroll, and successfully complete, the sex offender treatment program. From 1992 to 1994, Petitioner committed repeated lewd and lascivious assaults upon his daughter and two nieces. His daughter and one niece were between ages six and eight during this time, and his other niece was between the ages of ten and 12. Petitioner successfully completed the sex offender program and was released from the program in 1999 and supervised probation was terminated early that same year. Thereafter, Petitioner was required, under Florida law, to register as a sex offender and report his whereabouts to law enforcement. Upon his release from treatment, Petitioner was informed that he could schedule a counseling session with his therapist or participate in a group therapy session. Petitioner has indicated that this is unnecessary, and he has not sought assistance in this area. Petitioner has not been arrested or charged with any other disqualifying offense since 1994. Petitioner has started, and still maintains, a successful lawn maintenance business. Petitioner is now working, part-time, for his sister, Valarie Tillman, a real estate broker/owner, in her real estate office in Ft. Myers. She sent a letter of recommendation and testified in his behalf and has offered him a position as a sales associate, should his license be approved. Petitioner also offered four other notarized letters of recommendation. However, they cannot be considered as persuasive in these Findings of Fact because they are hearsay, and the authors are not subject to cross-examination under oath. Petitioner did not present any disinterested witnesses (or other evidence) who could favorably describe Petitioner's dealings in business matters or transactions. Petitioner did not present sufficient evidence to show that he was honest, truthful, trustworthy, had good moral character, or had a good reputation in the community for fair dealing. Petitioner did not present sufficient evidence to show that he was competent and qualified to make real estate transactions and conduct negotiations with safety to investors "and to those with whom the applicant may undertake a relationship of trust and confidence." Petitioner presented insufficient evidence of rehabilitation from his criminal past. Petitioner plead guilty to three felony counts of lewd and lascivious assault on children. These egregious acts, coupled with a lack of sufficient evidence of rehabilitation, convinces the undersigned to conclude that Petitioner has not satisfied his burden of showing that he is qualified for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner's application for licensure as a real estate sales associate in the State of Florida. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of December, 2010.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. 2/ Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance, but not with those of petitioner. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Esteban Tabaoado (Tabaoado), has been employed by the County as a correctional officer periodically since September 11, 1984, without benefit of certification. On or about September 9, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Tabaoado. 3/ Accompanying the application (registration) was an affidavit of compliance, dated September 9, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Tabaoado had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Tabaoado and the County that his application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine. Following receipt of the Commission's letter of denial, Tabaoado filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In his request for hearing, Tabaoado denied that he failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Under the provisions of rule 11B-27.0011(2), the use of a controlled substance does not conclusively establish that an applicant lacks the good moral character necessary for certification unless such use was "proximate" to his application. The Commission has not defined the term "proximate," and offered no proof at hearing as to what it considers "proximate" usage within the meaning of rule 11B-27.0011(2). Variously, the law enforcement agencies of the state have been left with no definitive guideline from the Commission, and have adopted various standards. Pertinent to this case, Dade County has adopted a term of one year as the standard by which it gauges the "proximate" use of a controlled substance to an application for employment. Under such policy, an applicant who has refrained from such use for at least one year preceding application will not be automatically rejected as lacking good moral character. Rather, the applicant's entire background will be evaluated to determine whether he currently possesses the requisite moral character for employment. 4/ Pertinent to this case, the County undertook a pre-employment interview of Tabaoado on January 31, 1984, at which time he admitted to having used cocaine approximately eight times, the last time being in 1980, and to having used marijuana a few times, the last time being in June of 1983. Thereafter, on September 11, 1984, Tabaoado was employed by the County as a correctional officer, and served satisfactorily until 1986. On December 14, 1986, evidence that Tabaoado had a substance abuse problem surfaced. On that date, Tabaoado telephoned his former supervisor, Lieutenant Lois Spears, a confidante, and advised her that he had been using drugs and did not think he could work that night. Lt. Spears advised Tabaoado not to report for work that evening, but to report the next morning to the administrative offices. The following day, Tabaoado met with Lt. Spears and Ervie Wright, the director of the Department's program services, which include employee counseling. At that time, Tabaoado conceded that he had been abusing cocaine, and Mr. Wright recommended that he seek assistance for his problem. On January 5, 1987, the County terminated Tabaoado's employment as a correctional officer for failure to maintain a drug-free life-style. On October 19, 1987, following Tabaoado's attendance at a drug rehabilitation program, the County re-employed him as a correctional officer. To date, Tabaoado has been so employed for approximately one and one-half years without incident, and his performance has been above satisfactory. By those who know of him, he is considered an excellent employee, observant of the rules, and of good moral character. Recently, on January 20, 1989, Tabaoado married Olfuine Tabaoado, who has been a correctional officer with the County for almost three years. According to Ms. Tabaoado, she has never known him to use drugs during the one- year period that she has known him, and Tabaoado has proven to be a good father to her son from a previous marriage. While Tabaoado may have abstained from the use of drugs since his re- employment with the County, or even since January of 1987, the proof is not compelling in this regard. Rather, the proof demonstrates that Tabaoado's use of drugs, at least of cocaine, was frequent and protracted. Here, Tabaoado, born September 2, 1960, to the extent that he would admit it, used cocaine 8 times until 1980 and marijuana a "few times" until 1983. Thereafter, following his initial employment by the County as a correctional officer, he used cocaine to such an extent that by December 14, 1986, he was unable to perform his job and was in need of professional help to address his drug abuse. Such frequent and protracted use on his part does not evidence the requisite good moral character necessary for certification as a correctional officer. Here, Tabaoado chose not to testify at hearing, and there is no competent or persuasive proof to demonstrate that he successfully completed the drug rehabilitation program; when, if ever, he ceased using cocaine; whether he now has an appreciation of the impropriety of his conduct; or whether he can reasonably be expected to avoid such conduct in the future. Notably, on October 5, 1987, prior to his re-employment, Tabaoado underwent another pre-employment interview. At that time, Tabaoado told the interviewer, who had also conducted his first interview, that he had not used any drugs since his last interview on January 31, 1984. Such response was patently false, since he had abused cocaine at least as recently as December 1986. Considering the totality of the circumstances, it is concluded that Tabaoado has failed to demonstrate that he currently possesses the requisite good moral character for certification as a correctional officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Esteban Tabaoado, for certification as a correctional officer be DENIED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th of June 1989. WILLIAM J. KENDRICK 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 28th day of June 1989.
The Issue The issue in this case is whether Petitioner's application for a license to engage in the business of contracting should be granted or denied.
Findings Of Fact In June 2004, Petitioner submitted to Respondent an application for licensure as a certified general contractor. Petitioner had already passed the requisite contractor's examination. Question one at page six on the form used by Petitioner states: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, intersection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Petitioner answered this question in the affirmative and disclosed a federal bank robbery conviction from 1994. Petitioner served 58 months in prison, underwent three years of probation, and paid full restitution for that conviction. Question eight of the form used by Petitioner at Page 13 states: Have you, or a partnership in which you were a partner, or an authorized representative, or a corporation in which you were an owner or an authorized representative ever: * * * 8. Been convicted or found guilty of or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction within the past 10 years? Note: if you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure. Because Petitioner has had a clean record since his bank robbery conviction in 1994, Petitioner answered this question in the negative. The "No" answer was provided despite the fact he had been found guilty of two misdemeanors: Unauthorized Use or Possession of Driver's License and Unlawful Possession of Cannabis upon the entry of a nolo contendere plea in 1989. On August 5, 2004, Respondent requested additional information from Petitioner concerning his work experience and equipment. On February 8, 2005, Respondent requested additional information regarding proof of restoration of Petitioner's civil rights. Neither of the requests asked Petitioner for further information about his criminal past. The application was reviewed by Respondent and was denied. The Board's (amended) stated grounds for its denial of the application were: (1) Petitioner was guilty of committing a crime -- bank robbery -- directly related to contracting or the ability to practice contracting pursuant to Subsection 489.129(1)(b), Florida Statutes (2004); (2) Petitioner was guilty of committing a crime -- bank robbery -- related to contracting or the ability to practice contracting pursuant to Subsections 455.227(1)(c) and (2), Florida Statutes; (3) Petitioner was guilty of making fraudulent misrepresentations on his application pursuant to Subsections 455.227(1)(h) and (2), Florida Statutes; and (4) Petitioner lacks "good moral character" under Subsections 489.111(1)(b) and (3), Florida Statutes. Petitioner was confused by the questions on the application concerning past criminal history. He freely and voluntarily provided information about the felony bank robbery conviction. He did not believe the misdemeanor charges were within the time frame (ten years) discussed in the application. Applicants routinely make mistakes and have omissions on the Board's application form, causing the Board to routinely send formal Requests for Additional Information to applicants. The Board processes hundreds of applications every week. Many applicants receive formal written Requests for Additional Information from the Board, including requests directed to the criminal history section of the Board's application package. Professional services have developed for the purpose of assisting applicants with these applications. One such service helps with 15 to 20 applications every week. Petitioner is not and has never been a contractor, or a certificateholder or registrant, under Chapters 455 or 489, Florida Statutes (2004). Obviously then, Petitioner has never been the subject of any DBPR disciplinary action proceedings or orders commenced under Section 455.225 or Subsection 489.129(1), Florida Statutes (2004). A licensed contractor may typically collect funds from his client and disburse them to vendors, subcontractors, and the like. Contractors could also have access and/or keys to houses of persons for whom they are working. These responsibilities require the contractor to act prudently and reasonably. It is noted that a contractor may utilize a "financially responsible officer" to manage and be responsible for all monies coming from the contractor's clients. Respondent maintains that the bank robbery conviction is evidence of Petitioner's bad moral character. No other evidence of Petitioner's character was presented by Respondent. Petitioner's family immigrated to the United States via Spain from Cuba in 1980. He had a high school diploma and attended college, but did not finish his degree. He was abusing alcohol and drugs and associating with the wrong sort of people at the time he committed the bank robbery in 1994. While in prison, Petitioner attended drug rehabilitation classes for a period of one year. The classes were held five days a week, eight hours per day. During this time, he was housed in a special dorm for inmates attending the classes. His drug rehabilitation courses continued for six months after he was released from prison. He has paid full restitution for the money he stole. Petitioner's last criminal conviction was the 1994 bank robbery. Since abandoning drugs after this conviction, Petitioner has not been arrested for any crime, has become a husband and father, and has dispatched his professional duties to the praise of his colleagues and employer. Petitioner has been regularly employed since he stopped using drugs. He is currently employed as a sales manager for a large telecommunications company. He has an excellent credit history. Petitioner owns his own home subject to a mortgage. Petitioner also owns his own painting business, which is licensed by Broward County, Florida. Rafael Antequera has known Petitioner for approximately five years. Petitioner currently is employed by Antequera's company, Antequera Enterprises, Inc., with whom Petitioner would become a general contractor upon approval of his certified general contractor's licensure application. Mr. Antequera trusts Petitioner with his company's supplies, equipment, and money. Mr. Antequera considers Petitioner to be a good, honest, hard-working, and reliable employee. Antequera believes that Petitioner has the ability to distinguish right from wrong and has the character to observe the difference. Mr. Carlos Alonso also has known Petitioner for more than four years. Mr. Alonso worked with Petitioner at Mr. Alonso's family construction company, Domas & Alonso Development, Inc. Petitioner worked for Mr. Alonso as a project manager from 2004 to 2005. His duties included ordering supplies, picking up supplies, and interacting with local building inspectors. Petitioner was in a position of great trust and was often given a blank bank check to obtain project supplies. Petitioner never misused or abused that position of trust and authority. Rev. Adam S. Zele is a pastor at Epworth United Methodist Church, where Petitioner attends church. Pastor Zele described Petitioner as a hard-working, devoted family man with religious conviction. Zele also has observed Petitioner in a business capacity. With full knowledge of Petitioner's prior criminal history, Pastor Zele awarded Antequera Enterprises a $20,000 bid to paint his church. Petitioner acted as the salesperson for the project, and Pastor Zele was confident enough in Petitioner to hand Petitioner a check in the amount of $10,000 for the first half of the work. Petitioner is actively involved with the activities of Epworth United Methodist Church. Petitioner is highly regarded by church officials and enjoys a reputation of being very reliable, honest, and a person of integrity and good morals. The Board recently granted a license with six years' probation to an applicant who had been convicted of a crime related to contracting. The nature of that crime was not clear from the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation granting a contractor's license to Petitioner. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 26th day of July, 2006. COPIES FURNISHED: Timothy P. Atkinson, Esquire Gavin Burgess, Esquire Oertel, Fernandez, Cole & Bryant, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 Diane L. Guillemette, Esquire Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
