The Issue Whether Petitioner should be given an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact At the age of twenty-eight, Petitioner, Alexander Fonseca (Fonseca), was arrested for felony possession of marijuana on February 21, 1989. For this charge, adjudication was withheld, and Fonseca was credited for time served. Petitioner's other criminal history includes a 1983 arrest for misdemeanor possession of marijuana for which he was credited for time served; a 1988 arrest for driving with a suspended license for which adjudication was withheld; a 1988 arrest for driving with a suspended license for which he was found guilty; and a 1991 arrest for reckless driving for which adjudication was withheld. In April 1999, Fonseca sought employment as a Juvenile Probation Officer with the Department. In conjunction with his application for employment, Fonseca was required to submit to the Department's background screening process since he would be working with juveniles. Fonseca was told by a receptionist with the Department that if he had a criminal record he would not be hired. As part of the application and background screening process, Fonseca submitted a State of Florida application and an Affidavit of Good Moral Character. Fonseca failed to disclose on both of these documents his felony arrest for and adjudication withheld on felony possession of marijuana. The affidavit contained Fonseca's notarized signature dated April 27, 1999, attesting to the following statement: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. Fonseca did not disclose his criminal history because, based on what the receptionist told him, he did not believe that he would get the job if he revealed that he had a criminal history. His failure to disclose his criminal history was not an error or oversight. It was intentional. A Florida criminal history conducted by the Department revealed Fonseca's 1989 arrest for felony possession of marijuana. As a result, on May 6, 1999, Fonseca was determined to be disqualified and ineligible for a position in the Department working with juveniles. In a letter dated June 1, 1999, the Department advised Fonseca that he could request a desk review to pursue an exemption from employment disqualification. Fonseca was required to submit specified documentation, which he did. As Inspector General for the Department, Perry Turner makes the final departmental decision on exemption requests. In an interoffice memorandum dated July 29, 1999, Fonseca's exemption request was forwarded to Mr. Turner along with Fonseca's complete background screening file. In a desk review, Mr. Turner does not interview the applicant's seeking an exemption. Each applicant has an opportunity to submit to the Department documentation, which he desires the Department to consider in determining whether an exemption should be granted. In reaching his decision, Turner reviewed Fonseca's background screening file and the documentation submitted by Fonseca. On July 30, 1999, Turner denied Fonseca's request for an exemption. The denial was based upon the totality of the circumstances surrounding Fonseca's prior criminal history and his falsification of the notarized Affidavit of Good Moral Character. Mr. Turner notified Fonseca of the denial in a letter dated August 1, 1999. From his early teens until approximately ten years ago, Fonseca was heavily involved with drug and alcohol use and was chemically dependent. He sought help for his dependency and has been clean and sober since 1991. Fonseca is actively involved in the 12-Step Programs of Alcoholics Anonymous and Narcotics Anonymous. In 1992, Fonseca decided to go back to school. He graduated with a degree in criminal justice in 1998. Fonseca did not present any information to the Department concerning his addiction prior to the denial of his exemption request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Alexander Fonseca's application for an exemption from disqualification from employment pursuant to Section 435.07, Florida Statutes. DONE AND ENTERED this 27th day of April, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 27th day of April, 2000. COPIES FURNISHED: William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Alan K. Marcus, Esquire 7300 North Kendall Drive, Suite 540 Miami, Florida 33156 Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General's Office 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue for determination is whether Respondent, as a member of the Public Service Commission, violated Section 350.042, Florida Statutes, by knowingly receiving an ex parte communication from a utility company regarding a matter that was being considered at a Public Service Commission proceeding and failing to place the communication on the record within 15 days of its receipt.
Findings Of Fact Respondent served as a member of the Florida Public Service Commission (PSC) from January 2002 until January 3, 2006. Respondent is subject to the requirements of Chapter 350, Florida Statutes, and Part III, Chapter 112, Florida Statutes, the Code of Ethics for public officers and employees, for his acts and omissions during his tenure as a member of the PSC. Upon taking office in 2002, Respondent was given training regarding his responsibilities in dealing with ex parte communications between Commissioners and parties. As stated by Respondent, this training “was a continuous discussion.” Based on that training, Respondent was aware that Section 350.042, Florida Statutes, provided that should he, as a Public Service Commissioner, knowingly receive an ex parte communication from a party regarding a docketed matter, he was obligated to place the communication on the record. October 14, 2002, the PSC held a special agenda conference to consider Docket No. 990649B-TP, which involved determining how much Verizon Telephone Company (Verizon) could charge other companies to lease its network. As Docket No. 990649B-TP involved determining how much Verizon could charge, it is clear that Verizon was a party to the matter. Several days prior to the special agenda conference, Michelle Robinson, who at the time was director of Verizon’s Florida regulatory affairs, prepared and provided a memorandum (the “Verizon Memo”) to Respondent’s then chief aide, Kimberly Griffin, and to the aides of the other PSC Commissioners. The Verizon Memo outlined Verizon’s position regarding PSC staff recommendations on Docket No. 990649B-TP that were to be considered at the October 14, 2002, PSC special agenda conference meeting. The Verizon Memo was from a party regarding a docketed matter. Although the Verizon Memo does not state at the top that it was from Verizon, the context of the Verizon Memo shows that it was from Verizon. In addition, since the document had a docket number on it, it was evident that it related to a docketed matter. Both Ms. Robinson and Ms. Griffin understood that the Verizon Memo would be prohibited ex parte communication should it be given to Respondent. They also understood that it was permissible under Section 350.042, Florida Statutes, for Ms. Robinson to share the Verizon Memo with Ms. Griffin because Ms. Griffin was PSC staff and the ex parte prohibitions of Section 350.042 did not apply to staff. Veronica Washington, who was Respondent’s secretary while Respondent was a Public Service Commissioner, testified that she would not have let Respondent see the Verizon Memo “[b]ecause it is ex parte communication because it is regarding an open docket.” During the PSC special agenda conference held October 14, 2002, Respondent read into the record, at length, comments and questions that were verbatim or almost identical to written statements contained in the Verizon Memo. At the final hearing, Respondent testified that if he had known the questions were from the Verizon Memo he would have filed them on the record, “[b]ecause that’s the statute. That’s the law.” Respondent also testified that his receipt of the ex parte communication was not “knowingly” and he blamed his receipt of the ex parte communication on his former aide, Kimberly Griffin. Per Respondent’s testimony, it was “impossible” for him to have gotten the words he used at the conference from anyone but Ms Griffin. Respondent’s professed lack of knowledge that the questions and comments came from an interested party is at variance with the pre-hearing stipulation of the parties, the testimony of other witnesses and cannot be credited. The context of the questions and comments indicate that they were from Verizon or another interested party challenging a staff recommendation. Additionally, Respondent maintained Ms. Griffin should have placed the Verizon Memo on the record because she was supposed to have placed “all written communiqués” on the record. However, in a previous interview conducted by the Ethics investigator in connection with this case, Respondent did not mention this alleged obligation of his staff to place such things on the record. Further, Section 350.042(1), Florida Statutes, establishes that a PSC Commissioner’s staff members do not have the responsibility of filing written communications that they (as opposed to Commissioners) receive from interested parties. Respondent’s former aide, Ms. Griffin, and former secretary, Ms. Washington, understood that the ex parte prohibitions of the law did not apply to staff. While maintaining that Ms. Griffin must have given him the materials recited by him into the record because he normally met with his aide prior to PSC meetings to receive materials, Respondent has no memory of discussing the subject Verizon issue with Ms. Griffin and testified that he “had no prior knowledge of” the Verizon Memo. Testimony of Ms. Griffin establishes that, other than technical names or technical information which she would put in quotes, she would never give verbatim language from regulatory entities or parties to a PSC Commissioner. Rather, Ms. Griffin explained, while she would sometimes provide actual verbiage from staff recommendations, she would only summarize information received from regulated entities. Ms. Griffin’s understanding was that she could receive direct information from a regulatory lobbyist and act as a “buffer” between regulatory entities and Respondent by taking the information and providing it “to the Commissioner in a way that would make sure we were within ex parte rules.” She was sure that she did not give a copy of the Verizon Memo or verbatim information or questions contained in the Verizon Memo to Respondent. Michelle Robinson, who prepared the Verizon Memo for Verizon, also denied giving a copy of, or the information contained in, the Verizon Memo to Respondent. Other than blaming his aide for giving him ex parte material at a pre-agenda meeting which he claims not to remember, Respondent has no explanation for the questions and comments he recited at the October 14, 2002, PSC special agenda conference. While admitting that the questions and comments were not his own, Respondent never told anyone that they were not his. Ms. Griffin was in attendance at the October 14, 2002, special agenda conference. When she heard some of the questions raised by Respondent regarding Verizon’s position on the issue, she was surprised because, based upon what she had read and studied of the Verizon Memo, Respondent’s comments sounded very similar to the Verizon Memo. While Ms. Griffin tried to maintain her composure and did not press the issue during the agenda conference, afterwards she asked Respondent where he got the questions and what he was reading from. Respondent responded that “it was just some questions” he had come up with to ask. Notwithstanding Respondent’s lack of recall, the testimony of Ms. Griffin provided direct evidence that Respondent was evasive when confronted with his comments. In the year following the October 14, 2002 PSC agenda conference, some of Respondent’s comments, which Respondent now admits were almost identical to those contained in the Verizon Memo, were quoted and attributed to Respondent in a brief that Verizon filed in the Supreme Court of Florida. When newspaper articles came out reporting the incident, Respondent “had no external reaction.” He did not respond to the newspapers and never told anyone that the questions and comments were not his own. He did not give notice to the parties that he had received the questions and comments, and never placed any document on the record disclosing the source of those questions and comments. As established by the testimony and the evidence, Respondent knew at the time that he read the questions and comments at the PSC meeting that they were from an interested party to the proceeding. Respondent knowingly received an ex parte communication from a utility company regarding a matter that was being considered at a PSC proceeding, and he failed to place the communication on the record within 15 days of its receipt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order and Public Report be entered finding that Respondent, Rudolph “Rudy” Bradley, violated Section 350.042, Florida Statutes (2002), and imposing a civil penalty of $5,000.00. DONE AND ENTERED this 11th day of June, 2007, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 11th day of June, 2007. COPIES FURNISHED: James H. Peterson III, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Kaye Starling Florida Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Wilson Jerry Foster, Esquire Law Offices of Wilson Jerry Foster 1342 Timberlane Road, Suite 102-A Tallahassee, Florida 32312-1775 Phillip C. Claypool, General Counsel Florida Commission on Ethics Post Office Box Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The issue presented for decision in this case is whether Respondent committed the violations of Sections 106.07(5) and 106.19(1)(c), Florida Statutes (1995), as set forth in the Order of Probable Cause and accompanying Statement of Findings issued by the Florida Elections Commission on August 13, 1998.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Respondent John Morroni is a member of the Florida House of Representatives, representing District 50. He was first elected in 1992, and has been reelected subsequently. In 1995, Representative Morroni was serving his second term and beginning his reelection campaign for 1996. Representative Morroni appointed Robert P. Symanski, a certified public accountant, as his campaign treasurer. Representative Morroni designated himself as deputy treasurer for the campaign. Prior to the commencement of each campaign, Representative Morroni signed a "Statement of Candidate" form, attesting that "I have received, read, and understand the requirements of Chapter 106, Florida Statutes." Thomas Carey is a trial lawyer from Clearwater. Representative Morroni had known Mr. Carey before 1992. After Representative Morroni was elected, Mr. Carey served as the liaison between the Florida Academy of Trial Lawyers and Representative Morroni. Mr. Carey is nationally known as a leader in efforts to prevent drunk driving, having served as a local and a national officer of Mothers Against Drunk Driving. Mr. Carey had worked with Representative Morroni in connection with drunk-driving issues. Representative Morroni was reelected without opposition in 1994. After that election, Mr. Carey approached Representative Morroni and offered to throw a kick-off party for his next campaign, telling Representative Morroni to let him know when the time was right to plan such a function. At some point in the summer of 1995, Representative Morroni called Mr. Carey and told him the time was right to plan the kick-off party for the 1996 campaign. Mr. Carey told Representative Morroni that his home could not be used for the party, but that his sister’s house would be ideal for the party. Mr. Carey and Representative Morroni decided that the party would be held on the last week of August. Mr. Carey obtained the consent of his sister, Patricia Rowan, and her husband, Dr. Patrick Rowan, to use their home on Clearwater Beach for the party. The Rowans also agreed to contribute $500 each as an in-kind contribution to defray the costs of the party. In July 1995, Mr. Carey was in the midst of a large jury trial, and did not have the time to oversee the details of the party. At this time, Mr. Sandy Golden was working as a volunteer for Mr. Carey on drunk driving issues, and was beginning to take on some paid personal duties for Mr. Carey. Mr. Carey delegated the planning of the party to Mr. Golden and his friend, Marilyn Curtis. Mr. Golden testified that he had nothing to do with the planning of the party, beyond getting his friend Ms. Curtis involved. Mr. Golden testified that he found Ms. Curtis and that Mr. Carey hired her to coordinate the party. Mr. Carey testified that he had no recollection of "hiring" Ms. Curtis. He testified that he believed Ms. Curtis was volunteering her services, and that it was only after the fact that he agreed to pay her, at the urging of Mr. Golden. Ms. Curtis testified that she had no discussions with Mr. Carey concerning payment for her services. She testified that Mr. Golden assured her that she would be paid. Mr. Carey testified that at the outset he established a budget of $1,500 for the party, and that he based this number on the fact that he and each of the Rowans could lawfully provide $500 as in-kind contributions to the Morroni campaign. Neither Mr. Golden nor Ms. Curtis remembered a firm dollar amount being established before the party. Ms. Curtis telephoned Representative Morroni to obtain a list of invitees and other information for the party. Representative Morroni testified that he knew Ms. Curtis had planned major events for corporate clients, including the president of Outback Steakhouse, and he was concerned that his campaign kickoff party not be too ostentatious. Representative Morroni cautioned Ms. Curtis that this was not a fundraiser, but a party for his campaign co-chairs and friends, and that a "fancy" party was not required or wanted. Ms. Curtis designed and mailed the invitations. She was reimbursed for the printing and mailing of the invitations by personal check from Mr. Carey, in the amount of $106.44, dated August 16, 1995. The party was held at the Rowans’ house on August 26, 1995. Mr. Carey testified that he arrived early and was presented with invoices from the various vendors who provided goods and services for the party. It is undisputed that Mr. Carey paid the following amounts by personal checks dated August 26, 1995: $52.50 for valet parking services; $296.80 for bartending services; and $900 for catering services and dinner buffet; $100 for photography services. By check dated September 13, 1995, Mr. Carey paid an invoice of $79.18 for floral arrangements. At Mr. Golden’s urging, Mr. Carey wrote a check for $300 to Ms. Curtis to compensate her for 15 hours' work on the party, at a rate of $20 per hour. This check was written on August 27, 1995, the day after the party. Thus, Mr. Carey wrote checks totaling $1834.92 to cover expenses for the party, including the $300 payment to Ms. Curtis and the late payment of $79.18 to the florist. There was some dispute at the hearing as to how Mr. Carey came to write these checks and whether he was reimbursed for his outlay of all the expenses for the party. Representative Morroni testified that it was obvious the party cost more than the $500 an individual is allowed by law to contribute, and that he remembered a passing conversation in which he complimented Mr. Carey on the party and expressed the hope that someone was sharing the expenses with him. Representative Morroni testified that a more detailed discussion as to the division of expenses would have been improper, given that this was a party and there were 28 other campaign people present. He also considered Mr. Carey to be knowledgeable and experienced in political matters, and thus not in need of a lecture about contribution limits. Mr. Golden testified that he was present during the brief conversation between Mr. Carey and Representative Morroni. Mr. Golden’s recollection was similar to that of Representative Morroni. Mr. Golden recalled Representative Morroni complimenting Mr. Carey on the party, then reminding Mr. Carey of the $500 limitation and telling Mr. Carey to be sure he "split out" the costs of the party. Mr. Carey testified that a more detailed conversation took place. As noted above, Mr. Carey testified that he had established a $1,500 budget for the party, based on $500 contributions from him and from each of the Rowans. As the invoices rolled-in during the party, Mr. Carey became concerned that the $1,500 budget was going to be exceeded, and concerned as to the logistics of paying the invoices. Mr. Carey testified that he discussed these matters with Representative Morroni in the presence of Mr. Golden and Mrs. Rowan. One option discussed was for Mr. Carey and the Rowans to write $500 checks to the Morroni campaign, which would in turn pay the invoices. Another option was to divide each invoice three ways and write three separate checks to cover each one. Mr. Carey testified that Representative Morroni suggested that, because Mr. Carey had already paid some of the invoices, he keep writing his personal checks to cover them, then have the Rowans reimburse him. Mr. Carey thought this the most workable option, and so continued paying the invoices by personal check. Mr. Carey testified that the group still had to deal with the contingency of the expenses exceeding the $1,500 budget. Mr. Carey testified that, at Representative Morroni’s suggestion, Mr. Golden agreed that any amount over $1,500 would be attributed to him, and that Mr. Golden would reimburse Mr. Carey by working for him without pay on drunk-driving issues. Mr. Golden flatly denied ever agreeing to such an arrangement or agreeing to make a contribution of any kind to the Morroni campaign. As noted above, Representative Morroni testified that he had no recollection of this detailed conversation taking place, let alone suggesting the payment/reimbursement plan outlined by Mr. Carey. Representative Morroni’s testimony, as corroborated by Mr. Golden's, is credited on this point. Representative Morroni testified that he had a difficult time getting hold of Mr. Carey to obtain the contribution details for inclusion in his campaign finance report. As the reporting deadline approached, Representative Morroni made several telephone calls to Mr. Carey. At length, he reached Mr. Carey, who gave him the needed information over the telephone. Representative Morroni relayed the information to Mr. Symanski, his campaign treasurer, who in turn included the information in the campaign treasurer’s report for the period July 1, 1995 through September 30, 1995, filed October 10, 1995. Mr. Carey testified that he had no clear recollection of providing the numbers to Representative Morroni, and that he believed Mr. Golden had provided the information to the Morroni campaign. Mr. Carey testified that if he did call Representative Morroni with the information, he simply would have been relaying information provided to him by Mr. Golden. Representative Morroni’s testimony is credited, and it is found that Mr. Carey provided the numbers to Representative Morroni. It was undisputed that the figures included in the referenced treasurer’s report accurately reflected Mr. Carey’s oral report to Representative Morroni. The relevant figures related to the kick-off party were as follows, all listed as "in-kind contributions" and dated August 26, 1995: Name Amount Description Dr. Patrick Rowan $500 Kick-off Party Expenses Mrs. Patrick Rowan $500 Kick-off Party Expenses Mr. Tom Carey $500 Kick-off Party Expenses Ms. Marilyn S. Curtis $79.26 Kick-off Party Expenses Mr. Sandy Golden $300 Kick-off Party Expenses Thus, the total reported expenses for the party were $1,879.26, as compared to $1,834.92 in actual paid invoices. Representative Morroni testified that he took these figures from Mr. Carey at face value, seeing no reason to question their accuracy or completeness. He knew that all the individuals listed as contributors were present at the party and were involved in its organization. Representative Morroni testified that he took down the figures and reported them directly to Mr. Symanski. Mr. Symanski testified that he had no previous experience serving as a campaign treasurer, and felt that it was not his position to "challenge" someone who claimed to have made an in-kind contribution. His practice was to refer any questions regarding in-kind contributions to Representative Morroni. Mr. Symanski testified that $1,800 "seemed like a lot more than what we would have spent, but if that’s what they said they spent, that’s what I recorded." He testified that the $500 allocations for the party did not raise concerns in his mind, because he knew beforehand that the costs of the party would have to be split up in some fashion. Both Representative Morroni and Mr. Symanski testified that, as a general matter, they reported in-kind contributions based upon the word of the contributor. They did not ask for receipts or other verification of the amount claimed by the contributor, provided those amounts seemed reasonable. Neither man was aware of any legal requirement that a candidate or campaign obtain documentation of the value of in-kind contributions. Other factual issues were raised by the parties that are ultimately tangential to the resolution of this case but nonetheless require resolution to complete the record. First, the Commission questions the veracity of Mrs. Rowan’s testimony regarding the $500 contributions made by her and her husband, because Dr. and Mrs. Rowan initially executed affidavits, on forms sent by the Commission’s investigator, attesting that they made no contributions to the Morroni campaign. Mrs. Rowan’s explanation of this seeming contradiction is credited. She testified that her husband has been extremely ill, having been diagnosed with a brain tumor in January 1998. In fact, as of the date of the hearing, Dr. Rowan had already outlived his initial prognosis of one year. The Rowans learned of Dr. Rowan’s condition at roughly the same time they executed the original affidavits. Mrs. Rowan testified that under the circumstances neither she nor Dr. Rowan paid much attention to the affidavits. Mrs. Rowan testified that someone later mentioned to her a newspaper article listing her as a contributor to the Morroni campaign. The article jogged her memory regarding the party and caused her to execute a corrected affidavit reflecting her $500 in-kind contribution. She had no explanation as to why the corrected affidavit was not provided to the Commission until the date of the hearing. On the date of the kick-off party, Mrs. Rowan wrote a check to her brother, Mr. Carey, in the amount of $4,200. She testified that $1,000 of this amount was the contribution of her and her husband to the party expenses, and the remainder was payment for legal services performed by Mr. Carey. Her testimony is credited on this point. Respondent presented testimony regarding a subsequent falling-out between Mr. Carey and Mr. Golden over tactics in the crusade against drunk driving, as well as testimony regarding Mr. Golden’s feeling that Representative Morroni had "sold out" on the drunk-driving issue. Respondent’s purpose was to provide an ulterior motive for Mr. Golden’s filing the confidential complaint in this matter some two years after the events occurred, and to at least imply that Mr. Golden is mentally unstable and unreliable as a witness. It is found that the facts concerning the Carey/Golden feud, all of which occurred after the events here at issue, are irrelevant to this proceeding, except as they provide some indicia that both Mr. Carey and Mr. Golden have reasons, rational or otherwise, to make each other look as bad as possible. Mr. Golden’s motive in filing the confidential complaint is irrelevant. As to Mr. Golden’s reliability as a witness, the only relevant point on which his testimony is contradicted concerns whether he agreed to have the party expenses exceeding the purported $1,500 budget attributed to him, to be "worked off" at a later time. For the reasons set forth in the Conclusions of Law below, it makes no difference to the resolution of this case whether Mr. Golden or Mr. Carey is credited as to whether this arrangement was made. The relevant point is whether Representative Morroni was aware of any such arrangement, such that he could be found to have willfully signed a false or incorrect report. Representative Morroni’s testimony that he was not aware of such an arrangement is credited.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Elections Commission enter a final order dismissing the charges against the Respondent, Representative John Morroni. DONE AND ENTERED this 28th day of April, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 28th day of April, 1999. COPIES FURNISHED: Michael T. McGuckin Assistant General Counsel Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Chris Haughee, Esquire Greene, Donnelly & Schermer 102 West Whiting, Suite 201 Tampa, Florida 33602-1480 Barbara Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Steven Christensen, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue Whether Petitioner's application for licensure as a real estate sales associate should be denied based on his criminal history.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On July 6, 2000, in United Stated District Court for the Southern District of Florida Case No. 99-777-CR-SEITZ/001, Petitioner was convicted of one count of "conspiracy to possess with intent to distribute cocaine" in violation of 21 U.S.C. § 846 (which crime had been committed over a period ending October 27, 1999) and sentenced to 87 months in federal prison. He was subsequently ordered to "self surrender at the facility designated by the Bureau of Prisons on August 21, 2000." On September 6, 2005, Petitioner filed with the Commission an application for licensure as a real estate sales associate. At the time he filled out his application he had not completed his federal prison sentence. The application materials he submitted revealed his conviction and sentence in United Stated District Court for the Southern District of Florida Case No. 99-777-CR-SEITZ/001. Having determined that Petitioner's "criminal history" constituted "grounds for denial of [Petitioner's] license application, the Commission, on February 13, 2006, issued its Notice of Intent to Deny the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 19th day of June, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 19th day of June, 2006. COPIES FURNISHED: Rolando J. Sanabria 200 East 65th Street Hialeah, Florida 33013 Thomas Barnhardt, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Nancy B. Hogan, Chairman Division of Real Estate 400 West Robinson Street, Suite 802, North Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Marvin Couch, the Respondent, should be required to pay attorney's fees and costs to Linda Chapin, the Petitioner, pursuant to Section 112.317(8), Florida Statutes?
Findings Of Fact Linda Chapin's Public Office. Linda Chapin was elected to the Orange County Commission in November, 1990. Ms. Chapin ran for office as a Democrat. At all times relevant to this proceeding, Ms. Chapin served as Chairman of the Orange County Commission. Ms. Chapin was sworn in as a member of the Orlando-Orange County Expressway Authority (hereinafter referred to as the "Authority") on December 19, 1990. Ms. Chapin was automatically considered to be an ex-officio member of the Authority due to her position as Chairman of the Orange County Commission. Ms. Chapin's Treatment of Her Son's Employment with Greiner Engineering. In a letter dated December 18, 1990, Ms. Chapin informed the Chairman of the Authority that her son, Andrew Chapin, was employed by Greiner Engineering (hereinafter referred to as "Greiner"), as a project coordinator on the "Central Connector Interchange at I-4", a project of the Authority. In the December 18, 1990, letter to the Chairman of the Authority Ms. Chapin informed the Chairman that she had requested an opinion of the Orange County Attorney as to whether her son's employment and her public office might create any conflict of interest. A copy of an opinion from Harry A. Stewart, then Orange County Attorney, indicating no conflict of interest, was attached to the letter. The December 18, 1990, letter and the opinion of the Orange County Attorney were provided to the Authority at the meeting of the Authority held on December 19, 1990. Approval of Greiner for the project referenced by Ms. Chapin in her December 18, 1990, letter to the Chairman of the Authority had been approved by the Authority at an August 22, 1990, meeting of the Authority. Greiner was therefore approved by the Authority before Ms. Chapin was elected to the Orange County Commission and before she became an ex-officio member of the Authority. (Stipulated Fact). Ms. Chapin did not vote to retain the services of Greiner while sitting as a member of the Authority between December 19, 1990, and May 22, 1991 or at any other time. (Stipulated Fact). Ms. Chapin has voted on the payment of invoices submitted by Greiner to the Authority. (Stipulated Fact). Andrew Chapin was an employee of Greiner. Andrew Chapin did not, however, hold any position of control of Greiner. Nor did he own a material interest in Greiner. The May 9, 1991, Newspaper Article. On May 9, 1991, an article was printed in The Orlando Sentinel (hereinafter referred to as the "May 9th Article"). (Stipulated Fact). The article was printed under the title "Pignone's interest in connector questioned." The article, as the title suggests, discussed whether another member of the Orange County Commission, Fran Pignone, had a conflict of interest with an Orange County road project. The May 9th Article included the following statement concerning Ms. Chapin: And Chapin noted in her letter that she tries to "tread very carefully" because she sits on the agency proposing to build the road and her son Andrew works for an engineering firm that is designing one of the interchanges. Mr. Couch read the May 9th Article. Based upon the May 9th Article, Mr. Couch believed that Ms. Chapin may have been involved in some impropriety as a member of the Authority. (Stipulated Fact). Mr. Couch's Ethics Complaint. After reading the May 9th Article, Mr. Couch telephoned the Florida Commission on Ethics and requested complaint forms. On May 13, 1991, Mr. Couch filed a Complaint against Ms. Chapin (hereinafter referred to as the "Complaint") with the Florida Commission on Ethics. (Stipulated Fact). The Complaint contained the following allegations: Chairman Chapin violated Part III, Chapter 112, Florida Statutes by serving on the Orlando/Orange County Expressway Authority and voting to retain the services of an engineering company that employs her son as admitted by Chairman Chapin in Orlando Sentinel dated week of May 6-10th. The allegations in the Complaint were based solely upon the information contained in the May 9th Article. In particular, Mr. Couch relied upon the paragraph of the May 9th Article quoted in finding of fact 14. The May 9th Article does not support the allegations contained in the Complaint. The May 9th Article does not indicate that Ms. Chapin voted to retain Greiner. The May 9th Article suggests just the opposite. It is stated in the article that Ms. Chapin "tries to 'tread very carefully' . . ." because of her son's work for Greiner. At the time the Complaint was filed, Mr. Couch did not know when Ms. Chapin had become a member of the Authority or when Greiner was retained by the Authority. (Stipulated Fact). Although Mr. Couch was aware generally of when Ms. Chapin was elected to the Orange County Commission, Mr. Couch was unaware at the time he filed the Complaint when Greiner had been retained by the Authority. Mr. Couch made no effort to obtain information to substantiate his Complaint other than the May 9th Article. (Stipulated Fact). Mr. Couch's Press Release. Simultaneously with the filing of the Complaint, a document (hereinafter referred to as the "Press Release") was provided to several radio and television stations in Orange County, weekly newspapers and The Orlando Sentinel: At the top of the Press Release, the following heading appeared: "Orange County Republican Executive Committee". The heading was followed by an address and telephone number. It was indicated that Mr. Couch should be contacted "for further information" and his telephone number was listed. The Press Release was titled "Republican Party Files Ethics Complaints Against Chapin/Pignone." The Press Release indicated that Mr. Couch had filed complaints with the Florida Commission on Ethics against Ms. Chapin (and Ms. Pignone) and indicated: Orange County Chairman Linda Chapin is being charged with violating the Government in the Sunshine law by meeting with fellow Commissioner Fran Pignone privately and allegedly discussing county business and by serving on the Orlando/Orange County Expressway Authority and voting to retain the services of an engineering company that employs her son. The Press Release contained the following quoted statements from Mr. Couch: "These commissioners have betrayed the public trust by meeting behind closed doors without the benefit of their having either the public or the press present to protect our interests," stated Couch. "Linda Chapin voting for the firm that employs her son represents the very worst type of backroom, financial impropriety I have seen in some time," Couch continued. "We need a full and public investigation of these activities," Couch concluded. Although Mr. Couch appeared to have a difficult time during the final hearing remembering how the Press Release came into being, his deposition testimony and other evidence during the final hearing indicates that he created the first draft of the Press Release on a personal computer. The Press Release was then provided to a public relations consultant and political ally, Douglas M. Guetzloe, of Advantage Consultants, Inc. Mr. Guetzloe finalized and ultimately distributed the Press Release. The precise quotes from Mr. Couch contained in the Press Release were created by Mr. Guetzloe but were based upon general comments from Mr. Couch and were ultimately approved by Mr. Couch. The Press Release was prepared at the request, direction and with the approval of Mr. Couch. Mr. Couch was provided a copy of the Press Release for review before it was distributed. Mr. Couch approved the Press Release or it would not have been distributed. Mr. Couch directed that his name and telephone number be included on the Press Release. Mr. Couch also disclosed the filing of the Complaint with television stations (Channels 2, 6 and 9) in Orange County, radio station WDBO and The Orlando Sentinel. Mr. Couch's Purpose in Filing the Complaint. Mr. Couch testified that he filed the Complaint against Ms. Chapin because he was a concerned citizen who just wanted the proper authorities to check out Ms. Chapin's actions with regard to Greiner and determine if there were any improprieties. This testimony is not credible. Mr. Couch is the Chairman of the Republican Executive Committee in Orange County. He was elected to that position in February, 1991. Mr. Couch has been a member of the Republican Executive Committee since 1988. As characterized by Mr. Guetzloe, Mr. Couch was playing "adversarial politics". Mr. Couch, a Republican, filed the Complaint and issued the Press Release in an effort to criticize a member of the opposition party, a Democrat. Mr. Couch used the Commission for his political purposes, charging Ms. Chapin had committed a violation of Florida law, when there was no basis for his allegations. Mr. Couch was motivated because of his belief that Ms. Chapin was "getting too big for her britches". He believed that "something had to be done about it." Mr. Couch's actions evidenced a malicious intent to injure the reputation of Ms. Chapin. The Complaint was frivolous and without basis in law or fact. Legal Representation of Ms. Chapin and Disposition of the Complaint. The Orange County Attorney's office represented Ms. Chapin before the Commission. There was no written agreement between Ms. Chapin and Orange County concerning her representation by the Orange County Attorney. Mr. Wilkes, the Orange County Attorney at the time the Complaint was filed, determined that the charges against Ms. Chapin in the Complaint arose out of her position on the Orange County Commission. Mr. Wilkes made this determination based upon the fact that Ms. Chapin served on the Authority by virtue of Section 348.753, Florida Statutes, which provides that the Chairman of the Orange County Commission will serve as an ex officio member of the Authority. Mr. Wilkes also concluded that the actions complained of in the Complaint were actions which would have been taken in Ms. Chapin's official position. Based upon the conclusions described in finding of fact 38, Mr. Wilkes concluded that Ms. Chapin was entitled to representation by his office pursuant to Section 706 of the Orange County Code. Ms. Chapin made no request for this representation. Mr. Wilkes' conclusion was reasonable and, although Mr. Couch has questioned the propriety of Orange County providing representation for Ms. Chapin, the evidence on this question was unrefuted. On or about July 16, 1991, after Ms. Chapin received a copy of the Complaint, a Motion for Summary Judgment and Attorney Fees was prepared and filed with the Commission by the Orange County Attorney's Office. On September 18, 1991, the Commission entered a Public Report and Order Dismissing Complaint. Pursuant to this Order the Complaint was determined to be legally deficient and was dismissed. A Petition for Attorney's Fees and Costs dated October 14, 1991, was filed by the Orange County Attorney's Office on behalf of Ms. Chapin. Cost and Attorney's Fees Incurred. The Orange County Attorney at the time, Thomas J. Wilkes, and Joseph L. Passiatore, an Assistant Orange County Attorney, represented Ms. Chapin before the Commission. Ms. Chapin's attorneys performed research (factual and legal), reviewed and initiated correspondence, reviewed orders of the Commission, took the deposition of Mr. Couch and prepared and participated in the final hearing of this matter. Mr. Wilkes invested 22.9 hours through October 14, 1991, and 1 hour subsequent to October 14, 1991, representing Ms. Chapin in this matter. Through September 20, 1991, the date the order dismissing the Complaint was received, Mr. Passiatore invested 25 hours representing Ms. Chapin in this matter. Subsequent to September 20, 1991, Mr. Passiatore spent 20.5 hours through January 6, 1992, representing Ms. Chapin in this matter (preparing a draft of the Petition, conducting discovery and preparing for the final hearing of this case). Between January 6, 1992, and the date of the final hearing of this case, Mr. Passiatore spent 20 hours preparing for the final hearing. Ms. Chapin is seeking reimbursement for 22.9 hours of Mr. Wilkes' services and 45.5 hours of Mr. Passiatore's services. The 22.9 hours spent by Mr. Wilkes and the 45.5 hours spent by Mr. Passiatore in the defense of Ms. Chapin constituted reasonable amounts of time. Motions for summary judgement are neither specifically authorized by the Commission's rules nor prohibited. The filing of the motion for summary judgement was, however, prudent and reasonable in light of the frivolous nature of the Complaint and the potential harm to Ms. Chapin's reputation caused by the issuance of the Press Release. A reasonable hourly rate for Mr. Wilkes' and Mr. Passiatore's services to Ms. Chapin is $175.00 per hour. Based upon an hourly rate of $175.00 per hour, the 22.9 hours invested by Mr. Wilkes and the 45.5 hours invested by Mr. Passiatore would result in total attorney's fees of $11,970.00. Mr. Wilkes and Mr. Passiatore were not paid $175.00 an hour for their services. They received their normal salaries as the Orange County Attorney and an Assistant Orange County Attorney, respectively. Mr. Wilkes and Mr. Passiatore were paid their salaries during the time that they represented Ms. Chapin, and all costs associated with this matter were paid, out of the Orange County General Fund. Any recovery of attorney's fees and costs in this case will deposited in the Orange County General Fund. The evidence failed to prove what Mr. Wilkes' and Mr. Passiatore's salaries were. As of February 11, 1992, reasonable costs of $661.90 had been incurred by the Orange County Attorney's Office in defense of Ms. Chapin. If Ms. Chapin had been determined to have violated the law as alleged in the Complaint, she would have been required to reimburse Orange County for the cost incurred by Orange County in defending her. The evidence failed to prove that, at the time of the final hearing of this matter, Ms. Chapin was liable for or subject to any amount of attorney's fees or costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order dismissing the Petition for Attorney's Fees and Costs be DISMISSED. DONE and ENTERED this 11th day of May, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 11th day of May, 1992. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. Chapin's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 4. 2 6. 3 7-8. 4 9. 5-6 10. 7 12. 8 17. 9 13, 18 and 22. 10 14 and 19. 11 19. 12 22. 13 20-21. 14 21. 15-16 Hereby accepted. 17 16. 18-21 Hereby accepted. 22 34. 23 24 and 27-28. 24 25. 25 27-29. 26 27-28. 27 29. 28 28. 29 23. 30 See 23e and 26. 31 Hereby accepted. 32 30. 33 Hereby accepted. 34 37. 35 40. 36 41. 37 42. 38 44-48. 39-40 45. 41 49. 42 46. 43 47. 44 48. 45 49. 46 51. 47 56. 48 Hereby accepted. 49 54. 50 54. Mr. Couch's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2. 2 4. 3 17. 4 41. 5 42. Not relevant to this proceeding. Not supported by the weight of the evidence. 8 37. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Joseph L. Passiatore Assistant Orange County Attorney Orange County Administration Center Post Office Box 1393 Orlando, Florida 32802-1393 Marvin Couch 974 Pinelli Street Orlando, Florida 32803 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006 =================================================================
The Issue Whether Petitioner, Grant Maloy, willfully violated Subsection 106.143(4)(a), Florida Statutes.
Findings Of Fact Petitioner, Grant Maloy, is a Seminole County Commissioner. In September 2000, as an incumbent Republican, he won the Republican primary for his commission district which, in Seminole County, is tantamount to election. In November 2000, he was reelected in the general election. In the same September 2000, primary election, Bob West ("West") was the top vote-getter in a three-way primary for Commission District 5 which included incumbent Commissioner Daryl McLain, who finished second. West did not have a majority of the votes; consequently, he and Daryl McLain were in an October second primary. West sought Petitioner's endorsement and, as a result, Petitioner authored a letter endorsing West over the incumbent Commissioner Daryl McLain, seeking campaign contributions for West. Petitioner's endorsement letter stated, in part, "Enclosed is a letter from Bob [West] and a return envelope for your contribution." The endorsement letter was typed by Petitioner's wife, Althea Maloy, on a personal computer. She created a letterhead similar to the Maloy campaign letterhead and, with the permission of Petitioner, signed "Grant" to the endorsement letter. The endorsement letter also contained the following political disclaimer: "PD POL ADV PAID FOR AND APPROVED BY THE GRANT MALOY CAMPAIGN FOR SEMINOLE COUNTY COMMISSION DIST 1, REPUBLICAN." West paid for all paper, envelopes and postage for the endorsement letter mailing. Althea Maloy and other campaign volunteers "stuffed" the endorsement letter and an undated letter from West into the envelopes provided by West. Petitioner's wife, Althea Maloy, was acting as a West campaign volunteer as it relates to her activities regarding the endorsement letter. The undated letter sent by West stated, in part, " . . . Commissioner Grant Maloy would like to join together with me to ask for your financial support in my bid to defeat Daryl McLain." This letter also contained the following political disclaimer: "Pd. pol. adv. approved by Bob West, Paid for by the campaign account of Bob West for County Commissioner, Dist 5, Rep." During the investigation, Respondent requested the envelope in which the endorsement letter and West's undated letter were mailed. The complainant faxed the envelope to the Respondent. The facsimile of the envelope received by Respondent did not contain a political disclaimer. West is a computer software consultant. He testified that every envelope used in his campaign was programmed to have an appropriate political disclaimer on its face; he testified that the envelope used for the endorsement mailing was a oversized envelope. He opined that the facsimile copy of the envelope received by Respondent was too large for the fax machine and, therefore, the political disclaimer did not copy or was turned under to allow transmission and, as a result, was not copied. This testimony is accepted as credible. Mrs. Phyllis Hampton, General Counsel, Florida Elections Commission, was qualified as an expert witness on Florida elections law. Mrs. Hampton opined that Subsection 106.143(4)(a), Florida Statutes, would be satisfied if either the envelope in which the letters were sent contained the appropriate political disclaimer or the September 11, 2000, endorsement letter was sent with another letter which contained the appropriate political disclaimer. Her testimony is accepted as credible. Other than his support, as reflected in the endorsement letter, Petitioner contributed nothing of value to the West campaign. On April 28, 1999, Petitioner signed a Statement Of Candidate indicating that he had received, read, and understood Chapter 106, Florida Statutes. Petitioner knew his endorsement letter would be mailed with a West letter as reflected by the reference to the West letter in the endorsement letter and, therefore, believed that the sponsor of the letter would be clear to the recipient. Petitioner believed that West would ensure compliance with in Chapter 106, Florida Statutes, and had a "good faith" belief that Chapter 106, Florida Statutes, had been complied with.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is recommended that the Florida Elections Commission enter a final order finding that Petitioner, Grant Maloy, did not violate Subsection 106.143(4)(a), Florida Statutes, as alleged and dismissing the Order of Probable Cause. DONE AND ENTERED this 4th day of October, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 4th day of October, 2001. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Frederick Nelson, Esquire The Law Offices of Frederick H. Nelson 1110 Douglas Avenue, Suite 1002 Altamonte Springs, Florida 32714 Barbara M. Linthicum, Executive Director Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Capitol, Room 2002 Tallahassee, Florida 32399-1050
The Issue Whether Petitioner may be granted an exemption from employment disqualification, pursuant to Section 435.07(3), Florida Statutes, which would allow him to work in a position of special trust (i.e. youthful offender counseling) for the Department of Juvenile Justice.
Findings Of Fact On February 16, 1999, a request for a Preliminary Florida Criminal Information Center/National Criminal Information Center (FCIC/NCIC) and Division of Highway Safety and Motor Vehicle (DHSMV) Screening Check was submitted on behalf of Petitioner by Dawn Torres of Youth Service International, Cypress Creek Academy. The screening package contained an Affidavit of Good Moral Character signed by Petitioner and notarized on January 11, 1999, in which Petitioner indicated that he did not have a disqualifying criminal history. There is every reason to believe that this affidavit was actually signed by Petitioner on January 8, 1999, at the same time he signed a consent to background screening and a job application which described a prior "misdemeanor" of assault on an ex-girlfriend. (Respondent's Composite Exhibit 1). This means the affidavit was notarized improperly. Cypress Creek Academy is a youth rehabilitation facility located in LeCanto, Florida. On February 19, 1999, Petitioner's preliminary screening was rated as "favorable" based upon an FCIC (Florida) check only. Petitioner was therefore employed by Cypress Creek Academy on April 12, 1999. (Petitioner's Exhibit 1). An FBI Identification Record dated May 9, 1999, indicated Petitioner had pled guilty to, and been found guilty of, assault on June 30, 1994, and that he had been sentenced to six months' jail time (suspended), 12 months' probation, and attendance at the Mens' Anger Program. In a letter dated May 17, 1999, Petitioner was asked by DJJ to provide, within 30 days of receipt of the letter, certified copies of arrest reports and judicial dispositions referencing the assault charge. Petitioner submitted the requested information to DJJ. It showed that Petitioner was arrested on June 3, 1994, by the Fairfax, Virginia, Police Department for abduction and assault and battery on a minor (17 years of age). On June 30, 1994, Petitioner pled guilty to assault and battery in the Fairfax County, Virginia, Juvenile and Domestic Relations District Court and was then found guilty. He was sentenced to a six months' jail sentence (suspended) and 12 months' active probation; ordered to attend the Mens' Anger Program; and instructed to have "no violation towards victim." A Show Cause Summons (Criminal) was issued by Fairfax County, Virginia, on June 23, 1995, to Petitioner concerning his failure to attend the Mens' Anger Program and his failure to contact his probation officer from September 26, 1994, to March 20, 1995. On September 21, 1995, the Fairfax County, Virginia, Juvenile and Domestic Relations District Court found Petitioner guilty of contempt based upon his plea of guilty. He was sentenced to a jail term of 60 days (with 57 days suspended), placed on probation for an additional 12 months, and again ordered to attend the Mens' Anger Program. By departmental letter of June 22, 1999, DJJ notified Petitioner of his ineligibility for continued employment and his right to request a departmental exemption hearing. Simultaneously, Cypress Creek Academy was notified that Petitioner was ineligible/disqualified from employment as a youth counselor and that he must be immediately removed from direct contact with juveniles. However, according to Petitioner's evidence presented at hearing, Petitioner only worked at Cypress Creek Academy from April 12, 1999, until June 3, 1999. (Petitioner's Exhibit 1). Also, the Academy's director was unable to assess Petitioner's performance fully, since he had worked there less than two months, but the director felt Petitioner would be an asset, and if exempted, that Petitioner would be eligible for rehire. (Petitioner's Exhibit 1). Petitioner timely requested an exemption, which was denied by DJJ. He then timely requested this disputed-fact hearing. The circumstances surrounding the June 3, 1994, incident giving rise to disqualification were described by Petitioner as follows: In 1994, Petitioner, who was barely 21 years old, was living with his 17-year-old girlfriend and her mother. He and the girlfriend got into a dispute and she kicked him in the stomach. He instinctively lashed out and hit her, even though intellectually, he knew it was wrong to hit a woman. Petitioner believed that his girlfriend also should have been criminally charged, but that did not happen. Petitioner claimed that although his girlfriend bailed him out of jail and wanted to drop the charges, his public defender made him plead guilty against his own better judgment. Petitioner maintained that his "instinctive" reaction to hit back was due to having been a battered child. His sister confirmed a dysfunctional and abusive family history. Petitioner's NCCI report does not reveal any criminal charges against Petitioner since 1994. Petitioner completed the Mens' Anger Program in Virginia as of June 26, 1996, pursuant to the Court's 1995 suspended sentence, by attending 22 out of 24 sessions. His only excuse for his delay in attending this program (see Finding of Fact 10, above) was that he was trying to straighten himself out. Petitioner testified that he has completed his probation in Virginia, but he presented no corroboration thereof, either from his probation officer or from any other Virginia authority. This defect in Petitioner's presentation is of concern because he has had nearly 10 months since the exemption process began in which to obtain these records, if they exist. Petitioner denied that he attempted to camouflage his prior criminal record from either Cypress Creek Academy or DJJ. He reasonably pointed-out that if he had been actively attempting to hide his prior criminal record when he signed the January 11, 1999, affidavit stating that he had no prior criminal record, he would not also have signed a consent to background screening on January 8, 1999 and on the same date disclosed the details of the assault on his ex-girlfriend to his potential employer, describing it as a misdemeanor. (Respondent's Composite Exhibit 1). I have weighed the fact that Petitioner is a high school graduate who has completed one year of college (Respondent's Exhibit 1) against his representation that he just did not read the good moral character affidavit he signed, and I have compared the lengthy and complex single-spaced disclosure forms involved, including the affidavit, which lists a variety of felonies by their Florida Statute numbers. I have also considered the detail of Petitioner's disclosure of the facts of the assault but mischaracterization of it as a "misdemeanor" rather than a felony. I accept that Petitioner's failure to disclose that his prior criminal history in Virginia was a disqualifying felony was careless and irresponsible rather than a deliberate attempt to conceal his criminal record from the employer and DJJ. On the other hand, his carelessness and lack of responsibility with regard to the affidavit/oath do not speak favorably for his current good character when it applies to a position of counseling young offenders. Since 1995, Petitioner has married and fathered a child. Since leaving Virginia, Petitioner has worked as a security guard in Reno, Nevada, dealing with cash, personal safety of casino patrons, and safety of patrons' vehicles. Currently, Petitioner is a regular church-goer and is working 52 hours a week to support his family. Petitioner's wife testified that he is non-violent toward her, even if she hits him; that he "scares me because he's so religious"; that she gets mad because he does so much for others; and that he is a "real caring person" and a "good father." Petitioner's sister testified to Petitioner's being entirely non-violent since he became a church-goer.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order denying Petitioner an exemption at this time and clearly stating therein upon what date it will consider a new application for exemption. DONE AND ENTERED this 30 day of May, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 30th day of May, 2000.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: On January 27, 1986, the Petitioner, Gary J. Anthony, submitted an application for examination as a limited surety agent (bail bondsman) with the Department of Insurance and Treasurer. By letter dated August 27, 1986, the Respondent denied Anthony's application, stating in part that: your Application for Examination as a Limited Surety Agent must be denied because your history of arrests and charges indicates a person of untrustworthiness and lack of high character and approved integrity. On August 26, 1986, the Petitioner was arrested in Connecticut and charged with the felony offense of aggravated assault. The Petitioner was subsequently convicted of misdemeanor assault. In 1970, the Petitioner was arrested by civilian authorities and surrendered to military authorities for an alleged 5 day unauthorized absence. There was no evidence as to what action, if any, the military took with regard to this alleged offense. The Petitioner subsequently received an honorable discharge for his service with the United States Marine Corps. On June 27, 1972, the Petitioner was arrested in Connecticut and charged with the felony offense of assault in the first degree. The Petitioner was subsequently convicted of misdemeanor assault. On December 23, 1974, the Petitioner was arrested and charged with assault and battery in the Municipal Court of the City of Vero Beach, Florida. A nolle prosequi was entered by the City of Vero Beach in regard to this offense. On November 3, 1975, the Petitioner was charged by Information with disorderly intoxication in St. Lucie County, Florida. After a jury trial, the Petitioner was found not guilty. On July 18, 1980, the Petitioner was charged by Information with burglary, false imprisonment, aggravated battery and possession of a firearm while engaged in a felony offense in Broward County, Florida. A nolle prosequi was entered by the State Attorney's Office as to each charge. On June 17, 1981, the Petitioner was charged by Information with disorderly conduct by fighting in Indian River County, Florida. The Petitioner was subsequently convicted of the misdemeanor offense of disorderly conduct. On February 3, 1982, the Petitioner was arrested and charged with battery in Indian River County, Florida. The charges stemmed from a shoving match between the Petitioner and another customer at a Maryland Fried Chicken Store. Although the Petitioner entered a plea of no contest to the misdemeanor offense of battery, there was no evidence indicating whether or not the court entered an adjudication of guilt. On February 24, 1982, the Petitioner was charged by Information with obstruction of justice in Indian River County, Florida. A nolle prosequi was entered by the State Attorney's Office as to this charge. On May 20, 1982, the Petitioner was charged by Information with burglary of a structure while armed with intent to commit assault, shooting into an occupied dwelling, and aggravated assault with a deadly weapon in Indian River County, Florida. After a jury trial, the Petitioner was found not guilty of all charges. The Petitioner has never pled guilty or no contest to, and has never been convicted of a felony. The Petitioner has been convicted of 3 misdemeanor offenses, once of disorderly intoxication (1981) and twice of misdemeanor assault (1972 and 1968). The Petitioner indicated on his application for examination as a limited surety agent that he had been charged with a felony offense on 3 occasions. The Petitioner neglected to include the Connecticut felony charges which occurred in 1968 and 1972. The Petitioner's failure to include this information was an oversight and unintentional. The Petitioner resides in Vero Beach, Florida, and has lived there since 1973. The Petitioner is self-employed as a automobile dealer. Mark Gibbons, a fifteen-year veteran detective with the Indian River County Sheriff's Department has worked personally with the Petitioner for the past three years. Whenever the sheriff's office needs unmarked automobiles, Gibbons can rely on the Petitioner to loan vehicles from his car lot. The Petitioner has been familiar with some major undercover operations in Vero Beach and the operations have always remained secret. Gibbons' opinion is that the Petitioner is trustworthy and honest and has high moral character. Gibbons is familiar with the Petitioner's reputation in the community and among the detectives in the sheriff's office and the Petitioner's reputation is good. Richard P. Breen, the director of the City of Vero Beach Airport, has known the Petitioner for approximately four years on a casual, social basis. Prior to becoming the director of the city airport, Mr. Breen worked for 20 years with the Federal Communications Commission in Washington, D.C., as an attorney. Breen's opinion is that the Petitioner is trustworthy and honest and has very good integrity. Edward Bogan, a certified public accountant, does accounting work for the Petitioner's automobile business and has known the Petitioner for about 10 years. Bogan's opinion is that the Petitioner is trustworthy and honest and a man of high integrity. Bogan has never known the Petitioner to do anything dishonest or illegal with regard to his business financial records. Richard Appell, Jr., is an assistant vice-president of the Barnett Bank in Indian River County and has known the Petitioner for about 3 years. Appell is a consumer lending officer in charge of indirect lending. In indirect lending, the bank sets up arrangements with car dealerships to do financing of cars that the dealerships sell to individuals. Appell has contact with the Petitioner on a weekly basis involving indirect lending. The Petitioner frequently takes credit applications completed by customers to Appell and requests financing or indirect lending. Appell's opinion is that the Petitioner is honest and trustworthy and of high character. Appell and the Barnett Bank have never had any problems with the Petitioner misrepresenting cars, down payments or amounts financed. When the bank approves an indirect lending transaction, it must rely on the integrity of the dealer because the bank does not see the car or the customer. Ben Russo, the owner of a Dodge automobile dealership in Vero Beach, has known the Petitioner for about 15 years. Russo first met the Petitioner through buying and selling used cars in the Vero Beach area. Because of their common business, Russo has contact with the Petitioner about every other day. In Russo's opinion, the Petitioner is trustworthy and honest and has high moral character. Terrence O'Brien, City Attorney for the City of Vero Beach, has known the Petitioner on a social basis for about six years. In O'Brien's opinion, the Petitioner is honest and trustworthy. Robert J. Vatland, president of Vatland Oldsmobile, Inc., in Vero Beach, has known the Petitioner for approximately 10 years. In all of their business transactions, the Petitioner has been honest and has always exercised good judgment. Casper W. Maier, sales manager for Ennessy Buick- Cadillac, Inc., in Vero Beach, has done business with the Petitioner since 1979. In all of their business transactions, the Petitioner has been honest and sincere. In Maier's opinion, the Petitioner is honest and trustworthy. Dennis Widenhoffer, assistant manager at Firestone Service Center in Vero Beach, has known the Petitioner on a business and social basis for about 10 years. The Petitioner has been honest and fair in all of his transactions with Widenhoffer. John Purdy, a superintendent for Reynolds, Stalls and McClain Drywall Company has known the Petitioner for about 20 years and is a close personal friend of the Petitioner. Purdy sees the Petitioner on a social basis about once each week. In Purdy's opinion, the Petitioner is honest and trustworthy and has high moral character. American Bankers, Inc., has entered into an agreement to write the bonds for the Petitioner if Petitioner becomes a licensed bail bondsman. The Petitioner is honest and trustworthy and has high moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner, Gary J. Anthony, be allowed to take the examination for limited surety agent and if he passes the examination, be eligible for licensure as a limited surety agent. DONE AND ENTERED this 14th day of January, 1987, at Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3620 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (Note: The Petitioner's first Finding of Fact was numbered 6.). Addressed in Procedural Background section of Recommended Order. Adopted in substance in Findings of Fact 17, 18, 19 20 and 26. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 24. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Addressed in Procedural Background section. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in Finding of Fact 28. Adopted in substance in Findings of Fact 17, 18, 19, 20 and 26. Rejected as subordinate. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Fact 4. Adopted in Finding of Fact 27. Partially adopted in Finding of Fact 14. Matters not contained therein are rejected as not supported by the weight of the evidence. Adopted in Findings of Fact 3 through 13. Adopted in Finding of Fact 15. Rulings on Proposed Findings of Fact submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Rejected as misleading and/or not supported by the weight of the evidence. 9. Rejected as subordinate. 10. Adopted in substance in Finding of Fact 3. 11. Adopted in substance in Finding of Fact 4. 12. Adopted in substance in Finding of Fact 5. 13. Adopted in substance in Finding of Fact 6. 14. Adopted in substance in Finding of Fact 7. 15. Adopted in substance in Finding of Fact 8. 16. Adopted in substance in Finding of Fact 9. 17. Adopted in substance in Finding of Fact 11. 18. Adopted in Substance in Finding of Fact 12. Partially adopted in Finding of Fact 14. Matters not contained therein are rejected as not supported by the weight of the evidence. Rejected as subordinate and/or a recitation of testimony. COPIES FURNISHED: Clifford M. Miller, Esquire Miller & Miller 601 21st Street, Suite 408 Vero Beach, Florida 32960 Lealand L. McCharen, Esquire 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed Florida real estate sales associate. In September 2001, the Respondent was required to complete a 14-hour credit continuing education course and test from the Bert Rogers Real Estate School in order to renew her license. In December 2001, Tamera L. Burns (Burns) filed a complaint with the Petitioner asserting that she had completed a signed, but otherwise blank answer sheet on behalf of and at the direction of the Respondent, and that she faxed the answer sheet to the real estate school. The Respondent's relationship with Burns began in 2000 when the Respondent placed an advertisement to rent a house the Respondent owned. Burns responded to the ad and rented the house from the Respondent. There were discussions about Burns purchasing the house from the Respondent. During the period of time that Burns rented the home from the Respondent, the two women became friends. Their children played together and spent some nights together. Burns sometimes "babysat" for the Respondent without being paid for her services. Burns began to consider a real estate career, and the two women discussed working together. At the time the Respondent allegedly instructed Burns to complete the answer sheet, Burns was seeking to obtain a real estate sales license of her own and was preparing to take a state real estate test in October 2001. During the summer and fall of 2001, the friendship apparently became strained because of personal disagreements between the women. There were also financial issues between the women. Rental checks written by Burns and given to the Respondent for rent due in May and again in November of 2001, "bounced" because Burns did not have sufficient funds to cover the checks. When the Respondent brought the checks to Burns' attention, Burns gave funds to the Respondent to cover the checks. Burns also began to allow additional persons and pets to reside in the house beyond those authorized by the Respondent at the time the house was rented. The Respondent objected to the additional tenants. Burns apparently vacated the house in November or December of 2001. At the hearing, Burns testified that the Respondent provided the test materials to Burns, and that the Respondent instructed Burns to take the test and to fax the answer sheet to the Bert Rogers Real Estate School. The Respondent testified at the hearing that she personally completed the test answer sheet and that she provided her test materials to Burns after the Respondent had completed and submitted the answer sheet, in order to provide additional material to Burns who was preparing for her own examination. Burns testimony was not persuasive. The Respondent's testimony was persuasive and is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a Final Order dismissing the Administrative Complaint filed against Respondent Marsha V. Lee. DONE AND ENTERED this 13th day of April, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2004. COPIES FURNISHED: Marsha V. Lee 865 Snow Queen Drive Chuluota, Florida 32766 Alfonso Santana, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Nancy P. Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jason Steele, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802N Orlando, Florida 32801
