The Issue The issue is whether Respondents' real estate licenses should be disciplined on the ground that Respondents allegedly violated a rule and various provisions within Chapter 475, Florida Statutes, as charged in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: When the events herein occurred, Respondents, Edward D. Armbruster and Colleen Michele Armbruster, were licensed real estate brokers having been issued license numbers 0002159 and 0362890, respectively, by Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division). Respondents served as qualifying brokers and officers of Respondent, Armbruster Realty, Inc., a corporation registered as a real estate broker and located at 1031 West Nelson Avenue, DeFuniak Springs, Florida. The corporation holds license number 0211855, also issued by the Division. On July 10, 1996, Gerald and Joyce Singleton, who had just relocated to California, entered into a contract with James B. and Joyce Patten to sell their single-family residence located on Madison Street in the City of Freeport, Florida, for a price of $78,000.00. The contract called for the Pattens to pay $1,000.00 as an earnest money deposit, to be held in escrow by Respondents. The contract further provided that "[c]losing shall be within 30 days (more or less) after acceptance of this contract," and that "[i]n the event that buyer defaults and deposit is forfeited, it is agreed said deposit shall be divided equally between seller and broker." The transaction was handled by Geraldine Dillon (Dillon), a salesperson in Respondents' office, who is now retired. Because the Pattens had recently moved to Walton County from Washington State, and they were temporarily living with a relative in a mobile home, the time for closing was of the essence. Accordingly, the Pattens inserted into the contract a provision requiring that a closing be held within "30 days (more or less)." This meant that a closing should be held on or about August 10, 1996, give or take a few days. The parties acknowledge that property boundary problems were somewhat common in certain areas of Freeport, including the area where the subject property was located. To satisfy the bank and title company, a surveyor was engaged to prepare a survey of the property. However, the parties agree that the surveyor noted problems with the boundaries of the lot. When a second surveyor would not undertake the survey because of similar boundary problems, Joyce Patten, who was the principal negotiator for the couple, notified Dillon that they did not wish to close because of potential title problems and wanted a refund of their deposit. Notwithstanding this concern, Dillon advised Joyce Patten that a third surveyor would be hired, at the seller's expense, and he could "certify" the property. Although Joyce Patten expressed concern that the bank might not accept a third survey after two earlier ones had failed, and she did not want to pay for another survey, she did not instruct Dillon to stop the process. Accordingly, Dillon engaged the services of Tommy Jenkins, a local surveyor, to perform another survey. After a certified survey was obtained by Jenkins on August 12, 1996, which Respondents represent without contradiction satisfied the lender and title company, a closing was scheduled within the next few days. This closing date generally conformed to the requirement that a closing be held by August 10, 1996, "more or less." The seller, who by now had relocated to California, flew to Florida for the closing, and the title company prepared a closing statement and package. Just before the closing, however, Respondents learned through a representative of the title company that the Pattens were "cancelling the closing," apparently in violation of the contract. Shortly after the aborted closing, Joyce Patten requested that Dillon return their deposit. By this time, the Pattens had already entered into a second contract to buy another home in the same area and closed on that property before the end of August. Respondents were never informed of this fact by the Pattens. On August 21, 1996, Colleen Armbruster prepared a rather lengthy letter to the Pattens (with a copy to the sellers) in which she acknowledged that they had orally requested from Dillon that their escrow deposit be returned. The letter has been received in evidence as Petitioner's Exhibit 4. Armbruster stated that she was "perplexed" that they were demanding a refund of their earnest money deposit, given the fact that the seller had "met the terms and conditions of the sale." Armbruster outlined the three reasons in the contract which would allow the Pattens to withdraw without forfeiting their deposit, but noted that none were applicable here. Accordingly, she advised them that the seller would be consulted as to his wishes regarding the deposit, and that the Pattens should contact her if they had any questions. Through oversight, however, she did not include a notice to the Pattens that they must respond to her letter within a stated period of time reaffirming their demand for the trust funds, or the deposit thereafter would be disbursed pursuant to the contract. By failing to include this specific language, and sending the letter by regular rather than certified mail, return receipt requested, Respondents committed a technical, albeit minor, violation of an agency rule. Even so, the Pattens acknowledged receiving the letter, and there is no reason to believe that they did not understand its import, especially the requirement that they contact the broker if they disagreed with the proposed disbursement of the money. It can be reasonably inferred that the Pattens did not respond because they "figured [they weren't] going to be able to get [their] money back" due to their failure to perform. On September 13, 1996, the seller's attorney advised the Pattens by letter that the seller considered the deposit forfeited pursuant to paragraph 15(a) of the contract, which pertains to the "Default" provisions. The Pattens never responded to either letter, and they also failed to respond to telephone calls made by Respondents or their agents regarding this matter. In view of the Pattens' lack of response or reaffirmance of their demand, and the fact that they had already closed on another property, Respondents logically and fairly assumed that the Pattens were in agreement with the disbursement procedures outlined in Coleen Armbruster's letter of August 21. Accordingly, on September 17, 1996, Edward Armbruster, who had not been involved in this transaction to date, in good faith signed two disbursement checks giving $697.50 to the seller and retaining the balance for his firm. This division was consistent with the terms of the contract. In making this disbursement, there was no intent on the part of Respondents to trick, deceive, breach their trust, or in any way unlawfully deprive the Pattens of their deposit. Respondents did not notify the Florida Real Estate Commission (Commission) that they had received conflicting demands for a deposit, nor institute any other procedures regarding the deposit, since they no longer had any good faith doubt as to whom was entitled to their trust funds. This was because the Pattens had failed to respond to letters and telephone calls regarding the sellers' claim to the deposit. There is no evidence that Respondents have ever been the subject of prior disciplinary action during their lengthy tenure as licensees. At the same time, it is noted that Respondents acted in good faith throughout the process and genuinely believed that there was no dispute. It should also be recognized that, for at least part of the time, the Pattens were working two contracts simultaneously without advising the realtors.
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 finding Respondents guilty of a technical violation of Rule 61J2-10.032(1), Florida Administrative Code, and Section 475.25(1)(e), Florida Statutes, and that they be given a reprimand. All other charges should be dismissed. DONE AND ENTERED this 28th day of July, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 28th day of July, 1998. COPIES FURNISHED: Henry M. Solares, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Christine M. Ryall, Esquire 400 West Robinson Street Suite N-308 Orlando, Florida 32801-1772 Edward D. Armbruster Colleen M. Armbruster Post Office Box 635 DeFuniak Springs, Florida 32433 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent's real estate license in Florida should be disciplined because the Respondent committed fraud, misrepresentation, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes. Whether the Respondent's real estate license should be disciplined because the Respondent failed to account and deliver funds in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Joyce A. Wolford is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0313643 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Blue Ribbon Realty, 1400 N. Semoran Boulevard, Orlando, Florida 32807. As To Counts I and II Diane Ortiz was employed by Respondent Joyce Wolford to perform various duties, including operating the computer and taking messages. During her employment with Respondent, Diane Ortiz completed a contract for sale and purchase of certain real property which was signed by Jane Evers as buyer. In conjunction with the Evers contract, Ortiz did receive an earnest money deposit in the form of a cashier's check for the sum of $1000 and made payable to Blue Ribbon Realty. The earnest money deposit check given by Evers was turned over to Respondent by Ortiz. The endorsement on the Evers deposit check was Blue Ribbon Realty. The sale was contingent on Evers' assumption of the existing mortgage. The mortgagee did not approve Evers, and the transaction did not close. Evers contacted Ortiz and Respondent on several occasions and demanded return of her $1,000 deposit. Evers met personally with Respondent and demanded return of the $1,000 deposit. Evers sent a written demand for the return of the deposit by certified mail to Respondent on August 9, 1989. Despite Evers repeated demands for return of the $1000 deposit, Respondent has not returned any money to Evers. Jane Evers filed a lawsuit against Respondent Joyce Wolford in the County Court for Orange County, Florida, for the sum of $1,000 and court costs. A Final Judgment in the civil lawsuit was rendered for Jane Evers against Joyce Wolford for $1,000 principal plus $73 in court costs on March 15, 1990. Respondent has not satisfied the Final Judgment awarded to Evers or any portion thereof. As To Counts III and IV Anthony Pellegrino did enter a contract to purchase certain real property known as Lakefront Motel near Clermont, Florida. Respondent Joyce Wolford did negotiate the contract. Pellegrino did give Respondent a $5,000 earnest money deposit in the form of a cashier's check to secure the contract for purchase of Lakefront Motel. The cashier's check given as a deposit by Pellegrino was endorsed to Blue Ribbon Realty account #0880510063. The Lakefront transaction did not close, and Pellegrino demanded that Respondent return the $5,000 earnest money deposit on several occasions. Respondent has not returned the $5,000 deposit or any portion thereof to Pellegrino. The $5,000 earnest money deposit for the Lakefront contract was transferred to a mortgage company for a transaction involving a condominium that Pellegrino sought to purchase. Said condominium transaction did not close. In neither case did Respondent request the Florida Real Estate Commission to issue an escrow disbursement order. On July 2, 1990, the Florida Real Estate Commission entered a Final Order in the case of Department of Professional Regulation v. Joyce Wolford, finding Respondent guilty of failure to account and deliver a commission to a salesman and imposing a reprimand and an administrative fine of $1000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found guilty of having violated Subsections 475.25(1)(b) and (d), Florida Statutes (1989), as charged in Counts I, II, III and IV of the Administrative Complaint. It is further recommended that Respondent's real estate license be suspended for two years, imposing an administrative fine in the amount of $1,000 and, upon completion of the suspension period, placing Respondent on probation for a period of two years with such conditions as the Commission may find just and reasonable. DONE AND ENTERED this 8th day of October, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 8th day of October, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: Paragraphs 1,2,3,4,5,6,9,10,11,12,13,14,15,16,1,7,18,19,20,21,22,24 (in part), 25 Rejected as cumulative or irrelevant: 7,8,23,24 (in part) Respondent's proposed findings of fact: Accepted in substance: Paragraph 1 Rejected as against the greater weight of the evidence: Paragraph 2,3 COPIES FURNISHED: Janine B. Myrick, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Raymond Bodiford, Esquire 47 East Robinson Street Orlando, FL 32801 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0750
Findings Of Fact Respondent, James K. Hart (Hart), was at all times material hereto licensed as a real estate broker-salesman in the State of Florida, having been issued license number 0302051. On November 26, 1986, in the Criminal Court of Washington County, Tennessee, Hart entered a voluntary plea of nolo contendere to the felony charge of attempt to commit a felony (conspiracy to distribute cocaine in excess of 30 grams). On October 6, 1987, the court found Hart guilty, and he was sentenced to three years confinement and ordered to pay a fine of $75,000. Hart did not notify petitioner within thirty days of having pled nolo contendere or having been convicted of such felony. Hart served 10 months and 27 days of his sentence in the county jail at Johnson City, Tennessee, and then, on August 27, 1988, was released to serve a two-year term of probation. Currently, Hart is serving his two-year term of probation, and reporting to authorities in Broward County, Florida. Hart is currently 50 years of age, and employed to sell kitchen cabinets. From such employment he grosses an income of $25,000 a year. At hearing, Hart offered proof that, as a consequence of his conviction, he owed approximately $220,000 to members of his family and his attorneys. According to Hart, absent the ability to practice as a real estate salesman, his chosen profession, he has no expectations of paying such debts or of providing for his retirement years. While the offense for which he was convicted involved a conspiracy to distribute cocaine, he avers that he has never used drugs, but committed the offense solely because of greed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the real estate broker-salesman's license of respondent, James K. Hart, be revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June 1989. WILLIAM J. KENDRICK 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 June 1989. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Not relevant. Addressed in paragraph 2. Addressed in paragraph 4. COPIES FURNISHED: STEVEN W. JOHNSON, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32801 KENNETH G. STEVENS, ESQUIRE 412 NE 4TH STREET FORT LAUDERDALE, FLORIDA 33301 DARLENE F. KELLER, DIVISION DIRECTOR DIVISION OF REAL ESTATE DEPARTMENT OF PROFESSIONAL REGULATION 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32801
The Issue Whether Petitioner is qualified for registration as an associated person.
Findings Of Fact On December 6, 1990, Cliff J. Guerrieri submitted a Uniform Application for Securities Industry Registration (Form U4) to the National Association of Securities Dealers (NASD) for registration as a securities dealer in Florida. A copy of this form was forwarded to the Department of Banking and Finance by NASD. On this Form U4, Petitioner answered "No" to Question 22A relating to having been convicted of or plead guilty of nolo contendere to: a felony or misdemeanor involving: fraud, false statements, or omissions, wrongful taking of property, or bribery, forgery, counterfeiting or extortion? gambling? any other felony? A check by NASD revealed that Petitioner had pleaded nolo contendere to two charges of petit theft in the County Court, Pinellas County, Criminal Division, on March 10, 1986 (Exhibits 3 and 4); pleaded nolo contendere to exposure of sexual organs in the County Court, Hillsborough County, Criminal Division, on September 7, 1989 (Exhibits 5 and 6). Petitioner's employer was notified of these omissions, and on March 7, 1991, Petitioner submitted an Amended Form U4 on which he again checked "No" to Item 22A, but checked "Yes" to Item 22B, which asks if he had ever been charged with any felony or misdemeanor specified in Questions A(1) or (2). Additionally, Petitioner submitted court records admitted here as Exhibits 3, 4, 5 and 6. Although Petitioner testified that he sent Exhibits 3, 4, 5 and 6 with his amended U4, Respondent acknowledged receipt of Exhibits 3, 4, 5 and 6, but denied receiving a copy of the amended U4 dated March 7, 1991. Petitioner testified that the petit theft charges involved license plates in or on his brother's car, which Petitioner was driving when he was stopped and charged with these violations. No further explanation was provided from which the degree of Petitioner's culpability could be ascertained. With respect to the exposure charge, Petitioner stated that he was changing clothes in an open convertible when he was apprehended. Again, no further explanation was provided from which Petitioner's culpability could be ascertained. With respect to the failure to note his criminal conviction on his initial application, Petitioner testified that his initial reading of Item 22 on the U4 led him to conclude erroneously that all of Items 22A through N involved securities violations and since he had never committed such a violation, his sworn answers to Item 22 was correct. Respondent's sole witness testified that Petitioner's application would have been denied even if he had initially submitted a correct application based solely on his convictions. The convictions plus the failure to disclose constituted the given reason for denial of Petitioner's application.
Recommendation Accordingly, it is recommended that the application of Cliff J. Guerrieri for registration as an associated person be denied. RECOMMENDED this 19th day of November, 1991, in Tallahassee, Florida. K. N. AYERS 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 November, 1991. COPIES FURNISHED: Cliff J. Guerrieri 4201 North "A" Street Apartment 14 Tampa, FL 33609 Honorable Gerald Lewis Comptroller Department of Banking and Finance Suite 1302, The Capitol Tallahassee, FL 32399-0350 Ashley Peacock, Esquire Department of Banking and Finance Suite 1302, The Capitol Tallahassee, FL 32399-0350 William G. Reeves General Counsel Department of Banking and Finance Suite 1302, The Capitol Tallahassee, FL 32399-0350 =================================================================
Findings Of Fact Respondent, Carl A. Perry, is licensed by Petitioner as a real estate salesman. At all times material hereto, he was employed by F.E.C. Real Estate Corporation. On September 23, 1979, Respondent negotiated and procured a contract whereby Ronald Joeckel and his wife were to buy and Lynn C. Burdeshaw and his wife were to sell certain real property owned by the Burdeshaws and located in Pompano Beach, Florida. In order to secure that Deposit Receipt Contract, the Joeckels gave Respondent on that date a $100 deposit. The Deposit Receipt Contract required an additional deposit of $1,900, and on October 11, 1979, Respondent received a $1,900 check from the Joeckels. The check was dated October 20, 1979. Respondent did not give this check to his employer until November 23, 1979. When F.E.C. Real Estate Corporation deposited the check for $1,900 in its trust account, the check was dishonored by the bank upon which it was drawn for the reason that the Joeckels did not have sufficient funds to cover the check. Instead of advising the Burdeshaws that the Joeckels' $1,900 check was dishonored, Respondent contacted Ronald Joeckel on several occasions. Joeckel each time advised Respondent that he would cover the check, and Respondent relied upon that information and believed that the Joeckels would fulfill their contract for the purchase of the Burdeshaws' property. Respondent was in error; the Joeckels breached the Deposit Receipt Contract, and the Burdeshaws sold their property to another purchaser soon thereafter. Respondent's employer, F.E.C. Real Estate Corporation, was not the listing broker for the Burdeshaws' property. Shell Coast Realty held that listing. Other than this Administrative Complaint, Respondent has had no other complaint made against him.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered reprimanding Respondent, Carl A. Perry, for his conduct, admonishing Respondent, Carl A. Perry, to abstain from similar conduct, and placing him on probation for a period of one year. RECOMMENDED this 21st day of December, 1981, in Tallahassee, Florida. LINDA M. RIGOT, 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 21st day of December, 1981. COPIES FURNISHED: William R. Scherer, Esquire Grimmett, Conrad, Scherer & James, P.A. 707 Southwest. Third Avenue Post Office Box 14723 Fort Lauderdale, Florida 33302 Mr. Carl A. Perry c/o F.E.C. Real Estate Corporation 4634 North Federal Highway Lighthouse Point, Florida 33064 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 =================================================================
Findings Of Fact Respondent, Robert C. Akers, at all times relevant hereto, was a licensed real estate broker in Brooksville, Florida, having been issued license number 0000587 by Petitioner, Department of Professional Regulation. Victoria Weeks was employed by Respondent as a real estate salesperson. In May, 1978, Weeks negotiated the sale of a residence to be built on Lot 19, Block 7, Unit 2 of Hill 'N' Dale Subdivision in Hernando County, Florida, to Roseann Iannaccone. The sale was conditioned upon the buyer being approved by the Farmers Home Administration (FHA) for a mortgage loan of approximately $25,500. A part of the mortgage loan application was personally prepared by Iannaccone. Another part was prepared with the assistance of Akers' secretary. Respondent himself prepared or assisted in the preparation of two requests for verification of employment dated June 18, 1978, and April 3, 1979, respectively, which were a part of the application (Petitioner's Exhibit 1). Both verification sheets stated that Iannaccone was employed by Respondent in the position of secretary, that she earned approximately $30 to $40 per week, and that employment was considered to be "permanent". During the period of March, 1977, through August, 1980, Iannaccone was employed by Sam Sack, the developer of Ridge Manor, a subdivision in Hernando County. Sack shared office space with Akers' real estate firm, which handled sales within the subdivision. Although she worked for Sacks, Iannaccone also devoted a portion of her time to assist Akers and Weeks, who occupied the same office. She performed such jobs as typing, answering the telephone, sending out promotional letters, and cleaning the office. For this she was paid by Akers on a periodic basis, depending on the amount of work performed. Akers also advanced her money periodically which she "worked out" by performing various jobs in the office or at his home. The compensation averaged out to approximately $30 to $40 per week. This relationship continued until August, 1980, when Sam Sack left Brooksville; Iannaccone then moved from Brooksville to Seffner, Florida, where she now resides. During the time period in question, no payroll records were kept by Respondent, nor did he deduct her compensation for tax purposes. Similarly, Iannaccone did not report the money as income on her income tax return. When Iannaccone filed her application with the FHA, she was advised by the FHA to report all income on her application, regardless of whether it was for part-time employment, or whether it had been reported for income tax purposes (Respondent's Exhibit 2). For this reason, Akers filled out the verification of employment forms and reported that Iannaccone earned around $30 to $40 per week as his employee. Because her primary employer, Sam Sack, was expected to remain in the Brooksville area indefinitely, Akers also indicated that her employment with him would be permanent. Respondent has been a real estate broker-salesman in Brooksville for over 20 years. He has been president of the Hernando County Board of Realtors and is active in many civic and community affairs. He enjoys a reputation of honesty, integrity and fair dealing, and has never been the subject of any prior disciplinary proceedings. (Respondent's Exhibit 1).
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the complaint against Robert C. Akers be dismissed. DONE AND ENTERED this 13th day of May, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of May, 1981.
The Issue The issue in the case is whether the Petitioner should be granted an exemption from employment disqualification, pursuant to section 435.07, Florida Statutes (2014).
Findings Of Fact The Petitioner is seeking employment as a direct service provider in a “position of special trust” with disabled persons. The Respondent is the state agency responsible for making disqualification and exemption determinations related to persons seeking such employment. A person seeking employment in a “position of special trust” is subjected by law to a background screening process. A person who has committed one of a specified group of criminal offenses is disqualified from the employment. A disqualified person has the opportunity to seek an exemption from the disqualification. The Petitioner's background screening revealed that, in 2002, the Petitioner was charged in Seminole County, Florida, with fraudulent use of a credit card, a third-degree felony violation of sections 817.61 and 817.67(2), Florida Statutes (2014). Pursuant to section 393.0655(5)(j), Florida Statutes (2014), violations of section 817.61 are disqualifying offenses.1/ The Petitioner entered a plea of guilty, and was placed on probation for five years, ordered to complete 50 hours of community service, and required to make restitution in the amount of $2,416.20 to “People’s First Bank” in Panama City, Florida. The sentencing order prohibited the Petitioner from “work[ing] where you have unsupervised access to cash, equipment or merchandise of others” and prohibited the Petitioner from entering the premises of a Burger King. Adjudication was withheld. In the Respondent’s request for exemption, the Respondent stated that she had been shopping in a clothing store with someone else who was using a credit card. In the exemption request, the Respondent wrote “[a]t the time, I honestly didn’t know that this was not her mom (sic) card as that’s what she told me before going to the store.” The Respondent insinuated that she was arrested because she had been observed with the person using the card. At the time of the offense, the Petitioner was employed at a Burger King, where, on at least one occasion, she worked the drive-thru window. A customer who came through the drive-thru window accidently left a credit card. The Petitioner took the credit card and used it to make various purchases. According to the arrest report, the customer realized at some point that she was not in possession of the credit card, and that charges were appearing on her account. She reported the issue to law enforcement authorities, who, after an investigation, determined that the Petitioner had the credit card and was using it, at which time she was arrested. At all times material, the Petitioner was aware of the source of the credit card, and knew that it was not hers. In the request to the Respondent for an exemption from employment disqualification, the Petitioner set forth a false statement of the circumstances surrounding her arrest. The background screening also revealed two non- disqualifying offenses that occurred subsequent to the 2002 disqualifying offense. In 2004, the Petitioner entered a plea of nolo contendere to, and was adjudicated guilty of, a charge of petty theft, apparently related to a shoplifting incident at a T.J. Maxx department store. In 2006, the Petitioner was charged with a “failure to appear” violation related to the sentence imposed for the petty theft. In addition to the criminal offenses referenced herein, the Petitioner has been involved in a number of minor traffic offenses identified in the exhibits presented by the Respondent, but the offenses were relatively insignificant. The Petitioner has a high school diploma, and is gainfully employed. She was described as a good employee in several letters of recommendation submitted to the Respondent with her request for exemption, which were included in the exhibits admitted at the request of the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order denying the Petitioner's request for an exemption from disqualification. DONE AND ENTERED this 14th day of July, 2015, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2015.
