Findings Of Fact In 1970, the Petitioner, WILLIAM C. HARRELL, was a student at Georgia Tech, a math major. Up to that time, he had been a very bright student and had been accepted for a full scholarship at Baylor University to study medicine. He planned to become a doctor, but that career opportunity was destroyed suddenly when he was involved in a severe automobile accident in which he was struck by a drunk driver. He sustained severe head injuries, almost died during neurosurgery, and was in a coma for many weeks thereafter. His initial medical prognosis following surgery was that he would be totally incapacitated, losing essentially all of his cognitive functions. In fact, however, he regained consciousness and over the ensuing four years, while under the care of Dr. Howard Chandler, his neurosurgeon in Jacksonville, Florida, effected a remarkable recovery. He had suffered severe memory and speech deficits as a result of the trauma, but through rehabilitation, gradually overcame much of this deficit. In 1974, his doctor released him and recommended that he try to renew his education and rebuild his life. He apparently began attending North Florida Junior College in Jacksonville, Florida, at approximately this time. He never was able to complete his college degree, however. His employment history thereafter is unclear in this record, but apparently he had some difficulty obtaining significantly rewarding employment. However, he did start his own lawn service business which he successfully operated for approximately 14 years. During this period of time in the late 1970's and early 1980's, he married and had a daughter and was enjoying some success at rebuilding a meaningful and productive life for himself and his family. Testimony adduced by the Petitioner through his witnesses, as well as evidence consisting of numerous testimonial letters regarding his character and reputation for honesty and sincerity (stipulated into evidence by the parties), established that the Petitioner is a willing and productive worker and an honest, sincere human being, both in his capacity as a husband and father and as to his dealings with customers of his lawn service business and as to his clients in his chosen career in insurance sales. In approximately late 1984 or 1985, the Petitioner's life began to go awry. He and his wife began experiencing severe marital difficulties, which ultimately culminated in the dissolution of their marriage. Thereafter, the Petitioner and his former wife became embroiled in a custody dispute regarding their young daughter. Apparently, the Petitioner's former wife had custody of their daughter, a very small child at the time; and they became embroiled in a bitter dispute over visitation rights, which was in litigation for approximately one year. The Petitioner states that he ultimately won visitation rights with his daughter as a result of this litigation, and his former wife became quite angry at this result. She was also, according to the Petitioner, quite jealous over his remarriage to his present wife and continued to actively obstruct his ability to have his daughter come to his home for visits. His former wife made statements to the effect that she would besmirch his reputation so that he would be unable to get employment and not ever be able to see his child again. The Petitioner states that his daughter at the time was subject to bed wetting frequently; and on one occasion, at least, when she was staying in his home, he would "wipe her bottom with toilet tissue". He states that during this visit or possibly on a number of them (the record is not clear), his daughter was very irritated and sore in the genital area due to bed wetting, and that he and his wife attempted to treat that condition while she was in their home. Apparently, his daughter made some mention of that incident to the former wife, who became angry and ultimately had the State Attorney file a criminal information against the Petitioner for sexual assault. This charge and the criminal litigation which ensued was the result of the bitter, ill feeling harbored against him by his former wife and was solely instigated at her behest. The date upon which the offense is supposed to have occurred was totally implausible because, according to the terms of the visitation decree, the Petitioner was only allowed to see his daughter on certain weekends. On the date he is alleged to have committed the sexual assault, his daughter was not even at his home or otherwise under his custody. Nevertheless, his former wife persisted in pursuing the matter; and ultimately, he was at the point of being tried for the charge of sexual assault, a felony. Upon advice of his attorney, an Assistant Public Defender, and after discussion with the State Attorney handling the case, an agreement was reached whereby the Petitioner would not be adjudicated guilty, but rather was given certain probationary terms. He was never convicted and adjudication was withheld in the matter. It is noteworthy that on the sentencing document executed by the Circuit Judge having jurisdiction of that case, (in evidence), the probationary sentence was noted by the judge to be less penalty than authorized by the sentencing guidelines because of the unlikelihood of any conviction should the matter be tried. The Petitioner maintains vehemently that he never committed this act and, further, that he did not consider, based upon his attorney's advice, that he had any felony charge on his record as a result of the outcome of that criminal matter. His attorney, Assistant Public Defender, E. E. Durrance, attested to that situation by a letter placed into evidence by agreement of the parties, which indicates that the Petitioner entered a plea of nolo contendere in that criminal case and that the court withheld adjudication of guilt which meant that the Petitioner does not have a felony conviction record. Based upon this advice at the time by his attorney, the Petitioner answered `1no" to question number 8 on the application for licensure involved in this case, wherein it was asked whether the applicant had ever been charged with a felony. The evidence in this proceeding reveals that, indeed, he was charged with a felony; but the Petitioner explained that he equated that question in his mind to mean whether he had a felony conviction on his record or a finding of guilt which he, of course, did not. The Petitioner's testimony about this entire situation was unrebutted. Due to observation of the Petitioner's obvious candor and sincerity in his testimony, as corroborated by the numerous testimonial letters stipulated into evidence, all of which testimony and evidence was unrebutted, the Petitioner's testimony is accepted in this regard. The Hearing Officer finds that, indeed, he did not commit the felony of sexual assault. The Hearing Officer further finds that he answered in the negative to the subject question on the application regarding the existence of a felony charge because he believed that he could honestly answer "no" because he had no conviction. Thus, his answer was due to a misunderstanding of the legal import of his criminal court experience in this matter and was not due to any effort to misrepresent his past record or to mislead the Respondent in an attempt to gain licensure. In 1986, the Respondent was arrested for petty theft or "shoplifting," which is the other basis for the denial of his application for licensure. This occurred when the Petitioner was embroiled in his severe marital discord described above. The dissolution of his marriage and related litigation had cost him virtually all of his significant, material possessions. He was unable to maintain steady employment, except for his lawn service, which he started himself. That was a very seasonal business; and at times, he was very short of funds. On one day, he made the mistake, as he admits himself, of going to a supermarket, buying a cup of coffee, for which he paid, but placing a package of ham into his pants pocket and walking out the door. He was arrested for stealing a $2.58 package of ham and was prosecuted and paid a small fine. The Petitioner is very remorseful that this occurred and states that it occurred at an emotional and financial low point in his life when he could obtain no regular, remunerative employment nor help from anyone. He was consequently thrust into a period of depression at this time. When he took the package of ham, he was in such an emotional state that he did not care about the consequences. He has since remarried, however, and has worked hard to rebuild his life, both his employment career and his family life. Since embarking upon his insurance sales career in recent months (as a temporarily licensed agent), he has been very successful. Although a new, inexperienced agent, he is one of the highest sales producing agents for Gulf Life Insurance Company's office, where he is employed, and is one of the highest producers in terms of collection of premiums due. His employer, supervisor and customers uniformly praise his honest, sincere and human approach to insurance sales and his sensitivity to the feelings of his customers or clients. The Petitioner's tetimony, as corroborated by other testimony and the numerous testimonial letters stipulated into evidence, establish in an unrefuted way, that he is, indeed, a sincere and honest person, who earnestly desires the opportunity to engage in an honorable profession within the field of insurance marketing. The incident involving the theft of the package of ham appears to be an isolated incident of aberrant conduct and does not, in itself, establish a lack of trustworthiness or fitness to engage in the business of insurance, given its singular nature and the emotional and financial straits in which the Petitioner found himself at the time. The Petitioner was candid in admitting this instance of petty theft, a misdemeanor. He did not fail to disclose this on the application in question because there was no category on that application calling for him to admit such an incident. The alleged failure to disclose involved question number 8, concerning the felony charge. Indeed, he did answer no? but gave that answer for the reasons delineated above. Further, it is noteworthy that upon inquiry by the Department after its own investigation had revealed indications of a criminal record incident, the Petitioner freely obtained certified copies of all pertinent court documents and otherwise cooperated and disclosed all information concerning the alleged felony charge. This full disclosure made by the Petitioner occurred before the agency took its purported final action in denying his application for examination and licensure. Thus, although he did not answer the question in an affirmative way concerning the felony charge at issue, he did fully disclose it and all circumstances surrounding it to the Department when the matter arose and was questioned in the Department's investigatory process.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the applications of William C. Harrell for examination and licensure as a life, health and general-lines agent be granted. DONE AND ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of February, 1990. APPENDIX TO RECOMMENDED ORDER The Petitioner filed no proposed findings of fact. Accordingly, rulings on the Respondent's proposed findings of fact will be made. Respondent's Proposed Findings of Fact Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. It was not established that a knowing misrepresentation on the application was made. Accepted, but not as dispositive of material issues presented and not to the extent that it is indicated that a misrepresentation was made in the application. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and as not, in itself, dispositive of the material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and not in accordance with the preponderant weight of the evidence since it was proven that the Petitioner did not commit sexual battery. Accepted, to the extent that it shows the factual background underlying the procedural posture of this case, but not as dispositive of material issues presented. COPIES FURNISHED: Mr. William C. Harrell P.O. Box 5503 Jacksonville, FL 32247 John C. Jordan, Esq. Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esq. General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 =================================================================
The Issue The issue is whether Respondent's certification as a Firefighter II Compliance should be permanently revoked for the reasons stated in the Administrative Complaint (Complaint), dated June 6, 2018.
Findings Of Fact The Department is the state agency responsible for licensing and regulating firefighters in the State. Respondent is certified in Florida as a Firefighter II Compliance. He holds Certificate No. 139586. Until the incident underlying this controversy arose, Respondent was employed by the Sarasota County Fire Department as a firefighter/paramedic. He now is working in the emergency room of a local hospital. The parties have stipulated that on March 21, 2018, Respondent entered a plea of nolo contendere to aggravated assault with a weapon, a third-degree felony punishable by imprisonment of one year or more under Florida law. Adjudication was withheld, Respondent was placed on probation for a period of two years, and he was ordered to pay court costs, fines, and fees in the amount of $1,525.00. See also Dep't Ex. 19. In response to the Complaint, Respondent essentially argues that: (a) he should not have been charged with the underlying criminal offense because he was defending himself against an aggressor in a road rage incident, and (b) he entered a nolo contendere plea based on bad advice from his attorney. At hearing, Respondent gave his version of the events resulting in his arrest. Also, two police officers involved with his arrest testified to what they observed and reported. Their testimony conflicts in many respects with Respondent's testimony. The undersigned will not attempt to reconcile the conflicts, as this proceeding is not the appropriate forum in which to relitigate the criminal charge. During the criminal case, Respondent was represented by a criminal law attorney who presented him with two options: enter into a plea arrangement or go to trial and risk a harsher penalty if he were found guilty. Respondent says he accepted his counsel's recommendation that he enter a plea of nolo contendere on the belief that he would not have a felony arrest on his record. After the plea agreement was accepted by the court, Respondent learned that the plea required revocation of his certification and loss of his job. Respondent also testified that even though he paid counsel a $15,000.00 fee, his counsel did little or no investigation regarding what happened, as he failed to depose a single witness before making a recommendation to take a plea.1/ In hindsight, Respondent says he would have gone to trial since he now believes he had a legitimate claim to the "castle defense," and the so-called victim in the incident (the driver of the other car) has a long criminal history and is now incarcerated. At this point, however, if Respondent believes an error in the legal process occurred, his only remedy, if one exists at all, is through the court system and not in an administrative proceeding. A felony plea constitutes noncompliance with the certification statute and requires permanent revocation of a certification. According to a Department witness, however, five years after all requirements of the court's sentencing have been met, the Department has the authority "in a formal process" to make a "felony conviction review" that may result in the reissuance of a certification. Except for this incident, Respondent has no other blemishes on his record. He served in the United States Marine Corps, with combat tours of duty in Iraq and Afghanistan, he was honorably discharged, and he was honored for saving a life at a Target store while off-duty. He has apologized for his actions, taken an anger management course, and received further treatment for Post-traumatic Stress Disorder at a local Veteran's Administration facility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order permanently revoking Respondent's certification. DONE AND ENTERED this 15th day of February, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 15th day of February, 2019.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulation of pari-mutuel wagering pursuant to Chapter 550, Florida Statutes (2003), and is responsible for licensing employees of pari-mutuel facilities. Respondent is a card dealer holding Florida occupational license number 6927724-1012 for employment as a card dealer at the Tampa Bay Downs racetrack. By application filed at the racetrack on December 3, 2003, Respondent applied for the referenced license. Persons unknown apparently conducted the application process for all employees of the facility. Employees completed the applications and submitted them at the racetrack, again to persons unknown. The application includes a section titled "Background Information." Question 1 asks in relevant part the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contender (no contest) to, even if you received a withhold of adjudication? Question 1 further provides as follows: YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Respondent answered the question in the affirmative. The question provides that if the applicant responds in the affirmative to the question, "form 0050-1" should be completed to disclose additional information about the convictions. Form 0050-1 includes space to list three criminal convictions. The application instructions related to the form state: "[i]f you have more than seven offenses to document on form 0050-1, attach additional copies . . . as necessary." Respondent completed a form 0050-1. On the form, he stated that he had been convicted of a misdemeanor in 1987. The Respondent identified the offenses as "trespassing," "suspended license," and "cashed check." Respondent stated that the penalty had been probation, which was violated, and that he was required to finish the sentence. Respondent initially identified the location of the conviction as Pasco County, but crossed through the writing and changed it to Hillsborough County. Above Respondent's signature on the application is a statement that in material part provides as follows: I hereby certify that every statement contained herein is true and correct and that I understand that any misstatement or omission in this application may result in denial or revocation of my pari-mutuel license. Other than the information on the application, there was no evidence offered at the hearing that Petitioner was convicted of a misdemeanor in 1987 in Hillsborough County. Petitioner asserts that at the time he filed the application, he completed a second form 0050-1 on which he disclosed additional information related to felony convictions. At the hearing, he testified that an unidentified person allegedly involved in the application process instructed him to make the felony disclosures on a second form. Although there is no evidence contradicting Respondent's account of the events, the application submitted through the racetrack to Petitioner did not include a second form 0050-1. In 1983, Respondent was adjudicated guilty of felony charges, including Forgery and Uttering a Forged Check in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8101927CFAWS). In 1990, Respondent was adjudicated guilty of a felony charge of Grand Theft, Third Degree in Hillsborough County, Florida (Circuit Court, Thirteenth Judicial Circuit, Case No. 90-279). In 1991, Respondent was adjudicated guilty of a felony charge of Grand Theft in Pasco County, Florida (Circuit Court, Sixth Judicial Circuit, Case No. 8701762CFAWS). A few days after the application was completed, Respondent met with an employee of Petitioner (identified as "Nick") to discuss the felony convictions. "Nick" did not testify at the hearing. As filed with Petitioner, Respondent's application failed to include a second form 0050-1 and did not disclose the felony convictions identified herein. There is no evidence that Respondent has had any involvement in criminal activity since 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order suspending Respondent's occupational license for a period of three months. DONE AND ENTERED this 17th day of December, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 2004. COPIES FURNISHED: Ralf E. Michels, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stefan Thomas Hoffer Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Jerry M. Bonett 7801 Willowbrook Court Hudson, Florida 34667 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Under the provisions of Chapter 494, Florida Statutes, the Department is charged with the responsibility and duty of administering and enforcing the provisions of said chapter, which includes the duty of granting or denying an application for a mortgage broker license, as set forth in Section 494.037, Florida Statutes. Applicant is a resident of the State of Florida and has a present address at 2400 North Ocean Boulevard, Fort Lauderdale, Florida 33305. On November 26, 1985, Applicant submitted a partially completed Application for Registration as a Mortgage Broker (hereinafter Application), under the provisions of Chapter 494, Florida Statutes. From the Application, Applicant was born March 19, 1935. He is a citizen of the United States and is a resident of the State of Florida. The files of the Department indicate that Applicant is not now and never has been granted a license as a mortgage broker by the Department. On February 28, 1986, the Department entered a Final Order Denying the Application for Registration as a Mortgage Broker and Notice of Rights against Applicant (hereinafter Denial Order). Applicant timely requested a hearing and William J. Kendrick, Hearing Officer, was assigned to preside over these proceedings. An administrative hearing was held on August 18, 1986, and on October 22, 1986, said Hearing Officer entered a Recommended Order recommending that Applicant's Application be approved. The Department has reviewed the Hearing Officer's Findings of Fact and adopts and incorporates them by reference with two minor exceptions which are discussed in the Conclusions of Law section herein.
Findings Of Fact The Respondent, Benny R. Hardy, is a licensed law enforcement officer in the State of Florida, holding License No. GF-7656. The Petitioner is an agency of the State of Florida charged with the licensing of and the regulation and enforcing of licensure, practice and conduct standards for law enforcement officers. The Respondent was hired on the police force of the City of Umatilla, Florida, on September 16, 1975, rising to the position of Chief of Police. He served in that capacity until his termination of employment by his resignation on March 23, 1983. The Respondent resigned from his employment due to his having been charged with a felony, involving obtaining drugs with a forged prescription. He entered a plea of nolo contendere to that charge and an order was entered on March 25, 1983, placing the Respondent on probation for three years and withholding adjudication of guilt, it appearing to the satisfaction of the court that the Respondent was "not likely again to engage in a criminal course of conduct . . . ." Certain conditions were imposed upon Respondent's probationary status and the court reserved jurisdiction to adjudge the Respondent guilty and impose any legally appropriate sentence if the conditions of that probation are violated. There is no evidence that Respondent has ever been the subject of any disciplinary proceeding such as this in the past. His licensure status is presently "inactive." The Respondent, however, after due and proper notice of hearing, failed to appear at the hearing at the appointed date and time and had still not appeared at 10:40 a.m., when the hearing was adjourned.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence and testimony of record, it is, therefore RECOMMENDED: That a final order be entered by the Criminal Justice Standards and Training Commission revoking Law Enforcement Certificate No. GF-7656 presently held by Respondent. DONE and ENTERED this 12th day of December, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 December, 1983. COPIES FURNISHED: Dennis S. Valente, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Benny R. Hardy Post Office Box 1014 Umatilla, Florida 32784 James W. York, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 G. Patrick Gallagher, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Bennie M. O'Kelley submitted an application to the Division of Licensing, Department of State, for licensure as a Class F, Unarmed Guard. O'Kelley indicated on his application that he had never been arrested, although he had been arrested some 15 times, the last time having been for assault and battery in 1969. In 1969, O'Kelley served 90 days in the Dade County Stockade for assault and battery. O'Kelley introduced evidence that he had been licensed by the Department of State earlier as an Unarmed Guard and stated that he had revealed his misdemeanor arrests on that application. O'Kelley stated that he knew that he could not be licensed if he had been arrested for a felony and assumed that misdemeanors were not disqualifying, and that therefore he did not have to report his misdemeanor conviction and arrests on his application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and considering the fact that O'Kelley has had a clean record for the past ten years, the Hearing Officer would recommend that his application for a Class F, Unarmed Guard, license be granted; however, because of O'Kelley's admitted history of being arrested for fighting, the Hearing Officer recommends that favorable consideration not be given to O'Kelley's application for a Class G, Armed Guard, license. DONE and ORDERED this 19th day of February, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Gerald Curington Division of Licensing The Capitol Tallahassee, Florida 32304 Bennie M. O'Kelley 4711 SW 38th Street Hollywood, Florida 33023
The Issue The issue in the case is whether the application filed by John Stover Mark (Petitioner) for licensure as a resident independent all lines adjuster should be approved.
Findings Of Fact On June 13, 2005, the Petitioner was driving his vehicle and was stopped for unlawful speeding. During the traffic stop, the law enforcement officer discovered that a grand theft warrant had been issued and was outstanding against the Petitioner. Prior to the traffic stop, the Petitioner was unaware of the warrant. The Petitioner was arrested on the warrant and charged with a third degree felony count of grand theft. The Petitioner testified that the charge was related to a claim by his former employer that the Petitioner had stolen tools from a construction job site. According to the Petitioner, he had been employed in the construction industry for many years by the same employer and had become unhappy with the lack of financial support he believed he was receiving from the employer. Eventually, he decided to quit the job and called his employer from the job site to do so. The Petitioner testified that he advised the employer that he was leaving the job and that the tools that belonged to the employer were being left at the job site. The abandoned tools apparently went missing, and the Petitioner was subsequently charged with the theft of the equipment. Although the Petitioner testified that he entered a plea of nolo contendere to the charge upon advice of his public defender, the court records indicate that the Petitioner entered a guilty plea to one count of grand theft, a third degree felony, on July 29, 2005, in Case No. 05-CF-012565, Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida. The confusion related to the actual plea entered is immaterial to the disposition of this case. In any event, adjudication was withheld, and the Petitioner was sentenced to make restitution and pay court costs and to complete a five-year probationary period. The probation was terminated by order of the Court after approximately two years after the Petitioner had complied with all other requirements of his sentence. The Petitioner was subsequently injured in an automobile accident and through the services of the Department of Education, Division of Vocational Rehabilitation (DVR), received training for another occupation for which he was physically capable. The Petitioner testified that the DVR provided computer equipment and also funded the educational training that was a requirement for licensure as an insurance adjuster. The Petitioner testified that he disclosed the grand theft felony to his DVR counselor, who was apparently unconcerned or unaware that the felony incident posed an impediment to the Petitioner's prospects for licensure as an insurance adjuster. After completing the relevant training, the Petitioner filed an application for licensure as a resident independent all lines adjuster on July 11, 2007. The application contained the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered. The Petitioner answered the question in the affirmative. The Petitioner truthfully answered other questions on the application related to the felony problem and properly disclosed the relevant information. There is no evidence that the Petitioner has failed to disclose the grand theft incident in response to any inquiry material to this case, or has made any attempt to conceal the matter from the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure as a resident independent all lines adjuster be denied. DONE AND ENTERED this 13th day of May, 2008, 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 May, 2008. COPIES FURNISHED: William Gautier Kitchen, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 John Stover Mark 8143 Sudbury Drive Port Richey, Florida 34668 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter. When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.
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 5th day of December, 2011, 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 5th day of December, 2011. COPIES FURNISHED: Kevin Vaughn, Jr. 931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409 Tom Barnhart, Esquire Special Counsel Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair, Florida Real Estate Commission 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel, Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On April 19, 1985, an Order Withholding Adjudication Of Guilt and Placing Defendant on Probation was entered in the Circuit Court for Palm Beach County in Case Number 84-5138CFA02, State of Florida vs. Zedekiah Clayton (hereinafter referred to as the "Felony Order".) The Petitioner was the defendant in that criminal case. According to the Felony Order, Petitioner entered a plea of guilty to aggravated battery without a firearm, a third degree felony. Adjudication of guilt was withheld and Petitioner was placed on three years probation and ordered to pay restitution and court costs. Petitioner contends that he did not plead guilty as reflected in the Felony Order, but, instead, entered a plea of nolo contendere. His contention is supported by the Commitment Form which accompanied the Felony Order. This Commitment Form includes the handwritten notations of the deputy clerk who was apparently present at the time the plea was entered. According to this Form, the Petitioner entered a plea of nolo contendere. While the Commitment Form and Felony Order are in conflict, Petitioner's testimony is credited and it is found that he entered a plea of nolo contendere rather than guilty. On May 22, 1986, Petitioner entered a plea of guilty to a misdemeanor battery count in Palm Beach County Circuit Court Case Number 86-4501CFA02, State of Florida vs. Zedekiah Clayton (the "1986 case"). The initial charge in this case was false imprisonment as reflected on the arrest record dated May 4, 1986. However, the charge was reduced to a misdemeanor battery count. Petitioner was adjudicated guilty and ordered to pay a fine of $125.00. The court specifically directed that Petitioner's probation from the earlier Felony Order should not be violated as a result of this charge. On December 19, 1989, Petitioner filed an application with Respondent for a Class "D" security guard license and a Class "G" statewide gun permit. Section 13 of the application requires the applicant to list any and all arrests and informs the applicant that falsification of the answer "... may be grounds for denial of your license." In response to this question, Petitioner listed the arrest which led to the entry of the Felony Order. However, Petitioner did not list his arrest in the 1986 Case under this section of the application. Petitioner contends that he did not know that he was ever formally placed under arrest in the 1986 Case because he voluntarily accompanied the police officer to the station. He also stated that his attorney advised him that he did not have to disclose the incident because it was a misdemeanor. However, the application form refers to all arrests, not just felony arrests. Petitioner clearly understood that he had to appear in court and he also paid the $125.00 fine assessed against him in that case. There is no acceptable excuse for Petitioner's failure to disclose the 1986 case on his application form.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter a Final Order denying Petitioner's application for a Class "D" security guard license and a Class "G" gun permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of June, 1990. J. STEPHEN MENTON 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 15th day of June, 1990. APPENDIX Case Number 90-1409S Both parties have submitted Proposed Recommended Orders. To the extent tht the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1-5. Incorporated in the preliminary statement. Subordinate to Findings of Fact 4 and 5. Rejected as constituting legal argument. The subject matter of this proposal is covered in part in Findings of Fact 2 and 3. Rejected as not supported by competent, substantial evidence. Rejected as constituting legal argument. Rejected as constituting a conclusion rather than a proposed Finding of Fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Incorporated in the preliminary statement and adopted in part in Finding of Fact 4. Incorporated in the preliminary statement. Adopted in part in Finding of Fact 5. COPIES FURNISHED: James K. Green, Esquire 250 Australian Avenue Suite 1300 West Palm Beach, Florida 33401 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol (MS #4) Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
