The Issue Whether Petitioner's plea of nolo contendere to the crime of petit theft was to a crime that involves moral turpitude, whereby the Commissioner may lawfully deny an applicant for a bail bondsman's license, pursuant to Section 648.34(2)(f), Florida Statutes. Whether Petitioner failed to divulge that he had been charged with a felony on two different occasions when he applied for examination as a Life and Health Insurance Agent on July 6, 1987, and again on September 28, 1987, when he applied for licensure as a bail bondsman. Whether Petitioner's failure to divulge prior arrests and one conviction demonstrates a lack of fitness or integrity to qualify for licensure as a bail bondsman.
Findings Of Fact On or about August 28, 1978, in Hillsborough County, Florida, the Respondent was charged with throwing a deadly missile into an occupied vehicle [a felony violation pursuant to Section 790.19, Florida Statutes (1978)], based upon an Information filed by the State Attorney as Case No. 78-4345A in the Circuit Court of the Thirteenth Judicial Circuit of Florida (Hillsborough County). This case was later dismissed. On or about December 9, 1983, in Hillsborough County, Florida, the Respondent was charged with grand theft, a felony, based upon an Information filed by the State Attorney in Case No. 83-13308B. Court records show that on or about May 14, 1984, the Respondent pled nolo contendere to an amended Information charging him with petit theft, a misdemeanor violation pursuant to Section 812.014, Florida Statutes. On or about July 6, 1987, the Respondent filed an Application for Filing for Examination as a Life and Health Insurance Agent with the Department. To question 8 posed on the written and sworn application, "Have you ever been charged with a felony?," the Respondent answered "No." That response failed to disclose the 1978 charge or the 1983 charge noted above. On or about September 28, 1987, the Respondent filed an application with the Department of Insurance for examination as a bail bondsman. To question 8 posed on the written and sworn application, "Have you ever been convicted or pleaded guilty or no contest to a crime involving moral turpitude, or a felony . . .", the Respondent responded "No." That response failed to disclose the 1984 plea of nolo contendere to petit theft noted above. On or about February 2, 1989, the Department notified the Respondent that his application for examination as bail bondsman was denied. Petitioner testified that he marked "no" on the application because he did not believe that petit theft was a crime that involved moral turpitude. Petitioner's two character witnesses both testified that they knew Petitioner for many years, and that he was a hard worker and of good character. His prior arrests would not impair his ability to do a good job as a bail bondsman.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner' application for examination as a bail bondsman be DENIED. DONE AND ENTERED this 22nd day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL N. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Respondent's proposed findings of fact: Accepted in substance. COPIES FURNISHED: Gerry Gordon, Esquire 1304 South DeSoto Avenue Tampa, FL 33606 Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Robert F. Langford, Jr., Esquire Office of Legal Services Department of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The issue is whether Petitioner is entitled to a license as a limited surety/bail bond agent.
Findings Of Fact On July 22, 2002, Petitioner signed, under penalty of perjury, a statement declaring that his application for a license as a limited surety/bail bond agent was true. In the application, Petitioner answered "no" to the question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgment of conviction was entered?" By Information dated February 28, 1971, the State of Florida charged Respondent with "unlawfully and feloniously break[ing] and enter[ing]" into a dwelling with the intent to commit a felony--namely, grand larceny. By Order entered October 15, 1971, the court acknowledged that Respondent had entered a plea of guilty to "breaking and entering with intent to commit a misd[demeanor]," withheld adjudication of guilt, and placed Petitioner on three years' probation. By Order entered August 15, 1974, the court terminated Petitioner's probation, noting that he had successfully completed it.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order denying Petitioner's application for a license as a limited surety/bail bond agent. DONE AND ENTERED this 30th day of June, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 June, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Santiago Lavan-dera Law Office of Pena and Lavan-dera 7950 Northwest 155th Street, Suite 201 Miami Lakes, Florida 33016 Eduardo Federico Godoy 969 East 29th Street Hialeah, Florida 33013 Ladasiah Jackson Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts were found: At all times material to these proceedings, Respondent was a licensed Ordinary Life, including Disability Agent, doing business as Steven Miller Insurance and Associates located at 718 Broadway, Suite 2, Daytona Beach, Florida. On June 2, 1983, the Respondent was charged by a Criminal Information in Case No. 83-2219-CC with two (2) felony counts, Count I being presentation of a fraudulent insurance claim, in violation of section 817.234, Florida Statutes, and County II being grand theft of the second degree, in violation of section 812.014, Florida Statutes. On January 5, 1984, the Respondent entered a plea of nolo contendere to the felony offense of Grand Theft of the Second Degree, a Third Degree Felony, Case No. 83-2219-CC, in the Circuit Court for the Seventh Judicial Circuit of Florida in and for Volusia County, Florida. On January 5, 1984, the Circuit Court for the Seventh Judicial Circuit accepted Respondent's plea of Nolo Contendere and placed Respondent on three (3) years of supervised probation, withholding adjudication of guilt and imposition of sentence. On July 8, 1985, Respondent was discharged from probation after successfully completing eighteen (18) months of his three (3) year probationary period. Respondent's testimony was that: (1) his boat, a 24- foot Regal Royal was taken while parked across from his home just prior to June 29, 1982; (2) he reported the theft to the Daytona Beach Police Department on June 29, 1982; (3) he filed an insurance claim several months after reporting the theft to the police and was paid; (4) approximately one (1) year later his boat was found in the possession of his wife's sister and her husband; and (5) he plead nolo contendere to the charge of grand theft on advice of counsel that a plea of nolo contendere was the same as pleading innocent, would not affect his insurance license and the plea would avoid putting a strain on his marriage. Mainly this testimony went unrebutted by the Petitioner.
Recommendation Based upon the findings of facts and conclusions of law recited herein, it is RECOMMENDED that the Respondent be found guilty of violating section 626.611(14), Florida Statutes. For such violation, considering the circumstances surrounding the violation, it is RECOMMENDED that the Petitioner enter a final order suspending the Respondent's license for a period of two (2) years. DONE and ENTERED this 24th day of October, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 24th day of October, 1985. APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact No. 1. Adopted in Finding of Fact No. 2. Adopted in Finding of Fact No. 3. Adopted in Finding of Fact No. 4 with the exception of the language that "Respondent was sentenced." Petitioner's Exhibit No. 3 specifically states that sentence was withheld and Respondent was placed on probation. Rejected on a conclusion of law rather than a proposed finding of fact. Adopted in Finding of Fact No. 5 with the exception of the date July 1, 1985. Respondent's Exhibit No. 2 shows the order was entered on July 8, 1985. Rulings on Respondent's Proposed Findings of Fact: (Respondent did not number the paragraphs in his Proposed Findings of Facts but for purposes of this Appendix a number has been assigned to each paragraph.) This information was considered as background information and, therefore, covered in the background portion of this Recommended Order. Adopted in Finding of Fact No. 1. This information was considered as background information and, therefore, was covered in the background portion of this Recommended Order. The information in the first sentence was considered as background information and, therefore, was covered in the background portion of this Recommended Order. The second sentence is Respondent's interpretation of what Petitioner alleges and is not a finding of fact but more a conclusion of law. 5.-6. Other than as adopted in Finding of Fact No. 6, rejected as immaterial, unnecessary and unsupported hearsay. 7. Adopted in Finding of Fact Nos. 4 and 5 with the exception of the language "after completing six months he was released." Petitioner's Exhibit No. 2, Respondent's Exhibit No. 2 and Respondent's testimony on lines 15-19, page 15 of the transcript shows Respondent served eighteen (18) months of his probationary period. COPIES FURNISHED: Lisa Santucci, Esquire 413-B Larson Building Tallahassee, Florida 32301 Thomas F. Woods, Esquire Gatlin, Woods, Carlson & Girtman 1030 East Lafayette Street Tallahassee, Florida 32301 Honorable William Gunter Department of Insurance and Treasurer State Treasurer and Insurance Commissioner The Capitol - Plaza Level Tallahassee, Florida 32301
The Issue Whether the registration of the Respondent, Betty Lou Haber, license #0034988 should be revoked or suspended, or whether Respondent should be otherwise disciplined.
Findings Of Fact An administrative complaint was filed by the Petitioner, Florida Real Estate Commission, on September 29, 1978, seeking to revoke or suspend or otherwise discipline Respondent Haber. The administrative complaint charged that the licensee was presently confined in a state prison. Respondent requested an administrative hearing. A stipulation was entered by Barry A. Cohen, Esquire, the attorney for Respondent, confirming that Respondent Haber was and had been continuously confined in the Broward Correctional Institution since August 16, 1977. Said stipulation is attached hereto and made a part hereof. Prior to the hearing a letter was received by the Petitioner, Florida Real Estate Commission, advising the Petitioner that Respondent did not intend to proceed to hearing and requesting Petitioner to close the matter. The Division of Administrative Hearings was not so notified. A copy of said letter is attached hereto and made a part hereof. Petitioner presented the aforesaid stipulation and aforesaid letter and a witness at the hearing. The witness, Martha Iglesias, Inmate Records Supervisor for the Broward Correctional Institution, testified that Respondent Haber was an inmate of said institution, having been found guilty by a jury of First Degree Murder in Case #75-518 in the Circuit Court in and for Hillsborough County, Florida, and sentenced to be imprisoned in the State Penitentiary for a period of her natural life.
Recommendation Revoke the non-active salesman license held by the Respondent, Betty Lou Haber. DONE and ORDERED this 18TH day of April, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Manuel E. Oliver, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barry A. Cohen, Esquire 100 Twiggs Street, Suite 4000 Tampa, Florida 33602 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact CASE HISTORY This case arises based upon an Administrative Complaint brought by the Petitioner, State of Florida, Department of Professional Regulation against one Alfonso Bach setting forth allegations as established in the Issues portion of this Recommended Order. The date of the Administrative Complaint is May 6, 1981. Following a request for formal hearing the matter was forwarded to the Division of Administrative Hearings on May 13, 1981. After assignment, a formal hearing was held on July 21, 1981, in keeping with Subsection 120.57(l), Florida Statutes. In the course of the hearing no testimony was presented by either party; the Petitioner offered a series of exhibits, 1-3. These exhibits are discussed in the Conclusions of Law portion of this Recommended Order. MATERIAL FACTS After reviewing the Petitioner's proffered Exhibits 1-3 and upon consideration of argument in support of and in opposition to the admission of these exhibits, the exhibits have not been admitted. Consequently, there being no other basis for determining facts, no material facts are found.
Recommendation It is therefore RECOMMENDED that the prosecution by Administrative Complaint referred to herein, State of Florida, Department of Professional Regulation, PD 0005572, be dismissed. 1/ DONE AND ENTERED this 28th day of September 1981 in Tallahassee, Florida. CHARLES C. ADAMS 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 28th day of September 1981.
The Issue The issue is whether the Respondent is entitled to the issuance of a state license as a yacht and ship broker.
Findings Of Fact Ronald DeMarco is 52 years old, and a resident of Coral Springs, Florida. He is a co-owner of International Yacht Brokers, Inc., in Miami Beach. The company which was opened approximately six or seven years ago, is owned by Mr. DeMarco and a co-owner, Angela Chiarello. Mr. DeMarco moved to South Florida from New York in 1986 and, in May 1991, became a licensed ship and yacht broker. The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes (Department) is the state agency which administers the Yacht and Ship Brokers' Act, Sections 326.001-326.006, Florida Statutes. Mr. DeMarco was hired, by Anthony Galgano, as an employee of Hidden Harbour Marina. Mr. Galgano was Mr. DeMarco's wife's cousin's brother. After Hidden Harbour Marina was sold, Mr. DeMarco continued to work for the new owner. Mr. Galgano moved to another office at the end of the same yard. Mr. DeMarco entered into a plea agreement signed by a United States District Judge for the Northern District of Ohio, dated April 29, 1996. In the agreement, which was received as Petitioner's Exhibit number 3, Mr. DeMarco acknowledged that the government could prove, beyond a reasonable doubt, that he conspired with Anthony Galgano and Lauren Freidman to steal and obtain by fraud, alter the hull identification number, and sell a 28' Regal boat. In June 1990 Mr. DeMarco notarized false documents purporting to transfer title to the 28' boat. In the plea agreement, Mr. DeMarco also acknowledged his involvement, with Angela Chiarello, Anthony Galgano, and others, in a conspiracy to steal, alter the identity of, and sell in interstate and foreign commerce a 36' Regal Commodore boat. According to the affidavit, Mr. DeMarco directed his co- defendant, Ms. Chiarello, to notarize documents related to the transfer of the 36' boat, in June 1991. Mr. DeMarco testified that he was 45 years old when he notarized the document at issue. Despite the description of his activities in the plea agreement, Mr. DeMarco also testified that he was only charged with one count of notarizing a fraudulent document, that related to the 28' Regal, and that he only pleaded to that one count. (T. 192.) As a result of the plea agreement, in 1996, Mr. DeMarco was placed on probation for three years and fined $2,000. The Judgment, dated April 29, 1996, was received in evidence as Petitioner's Exhibit number 2. On June 24, 1998, Mr. DeMarco's probation was terminated early. According to Mr. DeMarco, he accepted the plea agreement because he did not have money for an attorney, although he did have a public defender. He also testified that he spoke to Peter Butler, the head of the section of the Department which regulates ship brokers, while he was considering accepting the offer of a plea. Mr. Butler told Mr. DeMarco that his license would be the subject of a Notice of Intent to Revoke as a result of a plea. According to Mr. DeMarco, Mr. Butler also told him that he would get his license back " . . . as soon as all my commitments were done, probation and community service and stuff like that . . . ." (T. 188.) Mr. Butler testified, refreshing his memory with contemporaneously taken notes of their telephone conversation on June 29, 1998, that he told Mr. DeMarco that anyone could apply but he should review applicable rules and statutes, and that the Department would review his application. He denied telling Mr. DeMarco that he would be eligible to get his license back when his probation was terminated. Mr. Butler testified that some convicted felons are licensed by the state as yacht and ship brokers. Of approximately 3,800 licenses issued, with 1,700 currently active, Mr. Butler would guess that fewer than 100 of those licenses are issued to persons with felony convictions. By error, Mr. Butler issued a license to a convicted felon who was living in a halfway house at the time. After Mr. DeMarco brought that matter to Mr. Butler's attention, the Department issued a Notice of Intent to Revoke the license. (T.62-6 and 95.) Under the Yacht and Ship Brokers' Act, the Department does not regulate the selling and buying of new boats of any size or used boats equal to or smaller than 32 feet or in excess of 300 gross tons. The buying or selling of one of the vessels described in Mr. DeMarco's plea agreement would not be regulated under the Act. In his cross-examination of Peter Butler, the Respondent's counsel also established that Mr. Butler did not check Mr. DeMarco's letters of reference, and could not refute their representations concerning Mr. DeMarco's good moral character and integrity. Five of the eight letters of reference submitted to the Department by Mr. DeMarco were dated prior to the date of his conviction. Mr. Butler noted, in his testimony during cross- examination, that Rule 61B-60.003(3)(a)7., Florida Administrative Code, provides in pertinent part: Except as provided in sub-sub-paragraph 6.d. of this rule, no information relating to criminal, administrative or civil actions shall be considered if more than 5 years has elapsed from the satisfaction of the terms of any order, judgment, restitution agreement, or termination of any administrative or judicially-imposed confinement or supervision of the applicant, whichever is more recent. Any action, proceeding, or grievance filed against the applicant, individually or otherwise, which relates to the applicant's prospective duties, responsibilities, and obligations of licensure under chapter 326, Florida Statutes, may be considered with no limitation as to time. In reviewing Mr. DeMarco's application, Mr. Butler determined that the application failed to demonstrate that the applicant is of good moral character. He also determined that not more than five years have elapsed subsequent to the completion of his "penalty phase" and that his crime was "industry-related". (T. 66.) Following a review by a staff investigator, Mr. Butler's recommendation to deny a license is reviewed in the Department by someone on the legal staff, the bureau chief, and ultimately signed by the Division Director. (T. 52, 53 and 93.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order denying the Respondent's application for a yacht and ship brokers' license. DONE AND ENTERED this 22nd day of July, 1999, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 22nd day of July, 1999. COPIES FURNISHED: William Oglo, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Fred C. Bamman, III, Esquire Bamman and Guinta Post Office Box 399 Pompano Beach, Florida 33061 Philip Nowick, Director Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact Mr. Stills filed a sworn application for eligibility to sit for the licensure examination for limited surety agents with the Department of Insurance on February 24, 1992. The application contains these questions: Q: Have you ever been charged with or convicted of or pleaded guilty of no contest to a crime involving moral turpitude, or a felony, or a crime punishable by imprisonment of one (1) year or more under the law of any state, territory or county, whether or not a judgment or conviction has been entered? What was the crime? Where and when were you charged? Did you plead guilty or nolo contendere? Where you convicted? Was adjudication withheld? Please provide a brief description of the nature of the offense charged: If there has been more than one such felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. Mr. Stills answered "no" to the main question and filed no response to subquestions a through f. Discharging a firearm - 1973 Mr. Stills had been charged with the misdemeanor of discharging a firearm within city limits on September 10, 1973, a violation of Section 790.15, Florida Statutes (1973). The incident occurred in Pensacola, Florida. Mr. Stills accidently discharged a shotgun in an incident involving his father. Mr. Stills had been called to his father's home because of a dispute his father was having with a neighbor. His father met him on the back porch, with a shotgun in his hand. Mr. Stills calmed his father, and was able to get him to give him the shotgun. The shotgun was an old one, and as Mr. Stills attempted to unload it, the hammer slipped and the gun accidently discharged. The neighbor called the police, and the charge was filed, and Mr. Stills paid a small fine. Second degree murder - 1984 On May 31, 1984, Mr. Stills was arrested and charged with second degree murder, in violation of Sections 775.087(2) and 782.04(2), Florida Statutes (1983). The arrest arose from an argument which Mr. Stills had with the decedent. On May 24, 1980, Mr. Stills and the decedent had an argument in which the decedent threatened to kill Mr. Stills. Mr. Stills then left. Later that afternoon, the decedent approached Mr. Stills at another location, and appeared to reach for something. Out of fear generated by the decedent's earlier threat Mr. Stills had already armed himself, and when the victim made a threatening movement, Mr. Stills shot him out of fear for his own safety. He was arrested, charged with second degree murder, but acquitted in a jury trial on March 21, 1985 based on his plea of self defense. Firearms chares - 1987 Mr. Stills was charged on April 15, 1987, in an Information with the felony of carrying a concealed firearm, in violation of Section 790.01(2), Florida Statutes (1987), and the misdemeanor of improper exhibition of a firearm, in violation of Section 790.10, Florida Statutes (1987). On that date, Officer John Gonzalez responded to a request for police assistance; the call said a man was displaying a firearm in a threatening manner. Officer Gonzalez arrived at the location given to him, and saw Petitioner, who generally fit the description of the man allegedly waiving a firearm about. Mr. Stills was then seated in an automobile. He was not waiving a gun about or threatening anyone. Officer Gonzalez approached him from the passenger side of the car, where he observed a revolver sitting on the passenger seat; the gun was loaded. He then arrested Mr. Stills. The charge of carrying a concealed firearm was dismissed by the court. Mr. Stills entered a plea of guilty to the misdemeanor of exhibiting a firearm on July 20, 1987. After exchanging correspondence with the Department, Mr. Stills amended his application, disclosing the charges and sending the necessary backup information required by the application form. He stated he had misread the question as requiring only information on felony convictions, and he had none. When the Department denied Mr. Still's application it gave these specific reasons: He had been charged with discharging a firearm within the City of Pensacola on September 17, 1973. He had been charged with second degree murder on May 21, 1984, but had been found not guilty on March 21, 1985. On April 15, 1987, he had been charged with carrying a concealed firearm and improper exhibition of a firearm, that he had pled guilty to the misdemeanor charge and been placed on three months probation yet Mr. Stills had failed to acknowledge any of these charges on his application. The Department relied on Section 648.32(2)(f), Florida Statutes, and 648.45(2)(e), Florida Statutes, to deny his application.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Department enter a Final Order finding Mr. Stills eligible for licensure as a limited surety agent, and permitting him to sit for the licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of March 1993. WILLIAM R. DORSEY, JR. 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 31st day of March 1993. APPENDIX The following constitute my rulings on findings proposed by the Department as required by Section 120.59(2), Florida Statutes. Adopted in Findings of Fact 1. Adopted in Findings of Fact 2. Adopted in Findings of Fact 3. Adopted, as modified in Findings of Fact 4. Adopted in Findings of Fact 5. Adopted in Findings of Fact 5. Adopted in Findings of Fact 5. Adopted in Findings of Fact 6. Adopted in Findings of Fact 7. Adopted in Findings of Fact 7. Adopted in Findings of Fact 9. COPIES FURNISHED: James A. Cassidy, Esquire 6121 Palm Beach Lakes Boulevard Suite 403 West Palm Beach, Florida 33409-0223 Daniel T. Gross, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL 11 Tallahassee, Florida 32399-0300
The Issue The parties stipulated on the record that the issues for determination in this proceeding are: Whether the crime of manslaughter for which Ms. Antel was convicted is a crime of moral turpitude, and Whether sufficient rehabilitation has taken place since the crime was committed.
Findings Of Fact Petitioner, Donna Antel, submitted her application for license as a real estate salesperson on August 1, 1966. In that application she revealed information regarding conviction of a crime. In December 1982, Donna Antel moved to Florida with her husband, to start a new life after a series of business, financial and personal problems in New York State. Shortly afterwards, it became obvious that the problems also moved with them--the ex-wife began harassing them and the husband's children came to stay, causing severe financial and emotional stress on the relationship. In August 1983, Ms. Antel sat in the bedroom with a rifle, contemplating suicide. He husband walked in, and she shot him. She was tried for 1st degree murder. On December 14, 1984, she was convicted of manslaughter in a jury trial, in Brevard County, Florida. Ms. Antel was sentenced to ten years in prison; she served eleven months in prison and six months on a work release program. On May 6, 1986, she was released on parole. After release from prison, Ms. Antel received psychological counseling and has completed her course of therapy. She has committed no parole violations and is due to be fully released sometime in 1993. For the six months proceeding the final hearing Ms. Antel was employed as an assistant property manager.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered denying Petitioner's application for licensure. DONE and RECOMMENDED this 20th day of July, 1987, in Tallahassee, Florida. MARY CLARK 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 20th day of July, 1987. APPENDIX The following constitute my specific rulings on the findings of fact proposed by the Respondent. Adopted in Paragraph #1. Adopted in Paragraph #1. Adopted in Paragraph #3 Rejected as unnecessary. Adopted in paragraph #2. Adopted in paragraph #2 Rejected as cumulative and unnecessary. Adopted in paragraph #3. Adopted in paragraph #3. Petitioner's post-hearing submittals were filed on July 15, 1987, well after the established deadline. COPIES FURNISHED: Harold Huff Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Vincent W. Howard, Jr., Esquire Howard & Reyes, Charter 210 North Park Avenue Sanford, Florida 32771 Lawrence S. Gendzier, Esquire Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801
The Issue Whether Petitioner's application for licensure as a yacht salesperson should be granted.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a 47-year old resident of Hollywood, Florida. He is married and has a five-year old step-daughter. His wife's father is the minister of the First Methodist Church in Hollywood. Petitioner is an active member of his father-in-law's church. In recent years, he has volunteered a significant amount of his time to perform tasks on behalf of the church. Petitioner is now, and has been since June of 1997, employed as a salesperson by Rex Yacht Sales (Rex) in Fort Lauderdale. As a salesperson for Rex, he sells new boats and he also sells used boats that are 32 feet or less in length.3 Approximately, 75 percent of the sales he makes are of used boats. Petitioner specializes in the sale of sailboats. He possesses a considerable amount of knowledge concerning sailboats as a result of the years (since he was a young child) that he has devoted to sailing. Petitioner owned, lived aboard, and captained a sailboat named the "Wave Dancer" from 1975 until the late 1980's. He acquired the "Wave Dancer" in return for his participation in an illicit drug smuggling operation. In 1975, when he was still living in his hometown of Port Washington, New York, Petitioner was approached by a childhood friend, Dan Locastro. Locastro advised Petitioner that he (Locastro) and his associates wanted to buy a sailboat to use to transport marijuana from St. Thomas in the Virgin Islands to the New England coast. Locastro promised Petitioner that, if Petitioner were able locate a sailboat for them to purchase and if he thereafter successfully captained the newly purchased sailboat on its journey to and from the Virgin Islands, Petitioner could keep the sailboat. Approximately a month later, Petitioner notified Locastro that he had located a sailboat for Locastro and his associates. The sailboat was the "Wave Dancer." Locastro and his associates subsequently purchased the "Wave Dancer." They purchased the boat in the name of Richard Harrison. Following the purchase of the "Wave Dancer," Petitioner, accompanied by Locastro, sailed the boat to an island near St. Thomas. There, 500 pounds of marijuana were loaded onto the "Wave Dancer." Petitioner then sailed the boat to the New England coast, where he delivered the marijuana. Petitioner participated in this illicit smuggling operation because he wanted his own sailboat. He was neither arrested, nor charged, for having participated in this operation. As promised, Petitioner was allowed by Locastro and his associates to keep the "Wave Dancer" after the conclusion of operation. The boat was subsequently titled in Petitioner's name. For approximately 12 or 13 years, Petitioner (who was then single) lived in the Caribbean aboard the "Wave Dancer." He earned a living by taking tourists (usually one couple at a time) out in the water on his boat. In the late 1980's, Petitioner decided to return to the United States to live with and care for his parents, who, because of their advanced age, required his assistance. Before moving back to the United States, Petitioner put the "Wave Runner" up for sale. He was unsuccessful in his efforts to sell the boat. He discussed with a friend of his, Ken Fish, the possibility of Fish purchasing the boat for $50,000.00, but no sale was consummated. Petitioner was still the owner the "Wave Runner" when he flew to the United States and moved in with his parents (in their home). He left the "Wave Runner" behind in the Virgin Islands in the care of his friend Fish. Approximately nine months after he left the Virgin Islands, Petitioner received a telephone call from Fish, who indicated that he was having financial difficulty and that he wanted to use the "Wave Runner" in a "marijuana scheme." Approximately six months later, Fish again telephoned Petitioner. This time he told Petitioner that he wanted "to do a cocaine smuggling venture with [the "Wave Runner]." At first, Petitioner told Fish that he (Fish) was "out of his mind." Later during the conversation, however, Petitioner relented and agreed to allow Fish to use the "Wave Runner" in the proposed "cocaine smuggling venture." Petitioner gave his permission without receiving any promise from Fish that he (Petitioner) would receive anything in return. The "cocaine smuggling venture" was unsuccessful. The "Wave Runner" was seized by authorities in Martinique. In the spring of 1991, in United States District Court for the Southern District of Florida Case No. 91-349-CR- HIGHSMITH, Petitioner was criminally charged by the United States government for his role in the "cocaine smuggling venture" with conspiracy to import cocaine into the United States. Petitioner's role in the "cocaine smuggling venture" was limited to permitting Fish to use the "Wave Runner" to transport cocaine into the United States. After his arrest in May of 1991, Petitioner agreed to, and he subsequently did, cooperate with federal authorities by participating in federal undercover drug enforcement operations under the supervision of federal agents. At times during these operations, he was required to place himself in situations where his personal safety was compromised. In or around January of 1994, pursuant to a plea agreement, Petitioner entered a plea of guilty in United States District Court for the Southern District of Florida Case No. 91- 349-CR-HIGHSMITH to one count of conspiracy to import cocaine. On January 30, 1995, Petitioner was adjudicated guilty of said crime and, as punishment, placed on probation for five years and fined $17,500.00. Such punishment constituted a substantial downward departure from the range provided in the United States Sentencing Guidelines. At the sentencing hearing, the sentencing judge explained that he was "constrained to substantially modify the sentence in this case downward" because of the risks Petitioner had taken to assist federal authorities in their drug-fighting efforts. Although under no legal obligation to do so, Petitioner continued to provide similar assistance to federal authorities (at a substantial personal risk) after his sentencing. In September of 1996, Petitioner filed with the Department an application for licensure as a yacht salesperson. Question 13 on the application form read as follows: CRIMINAL HISTORY: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendre (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the law of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. Yes No The application form instructed those applicants whose answer to Question 13 was "Yes" to "attach [their] complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or [were] pending." On the application form that he submitted to the Department, Petitioner answered "Yes" to Question 13, but he did not attach the required signed statement. He merely appended to the application form a copy of the judgment entered in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH. On or about October 1, 1996, the Department sent the following letter to Petitioner: The Department of Business and Professional Regulation, Section of General Regulation is in receipt of your application for a yacht Salesman. A review of your application has disclosed the following deficiencies: You answered Yes to question 13 which asked "Have you been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendre (no contest), even if adjudication was withheld?" The paragraph under question 15 further states "If your answer to question 13, 14, 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." You will need to submit a signed statement of the charges and facts, within twenty-one (21) days to this office before your application can be checked for form. Should you have any questions, please contact me. After receiving the Department's October 1, 1996, letter, Petitioner telephonically requested additional time to respond. By letter dated December 13, 1996, Petitioner's attorney, John J. Lynch, Esquire, responded on Petitioner's behalf to the Department's October 1, 1996, letter. Lynch's letter, which was received by the Department on December 17, 1996, read as follows: I represent the Applicant, Richard E. Parker. In response to concerns raised by Richard Parker's application's disclosure of charges and crimes and the results thereof, please consider the following as part of the application process: The subject matter was limited to involvement in a conspiracy to import controlled substances. Mr. Parker voluntarily entered a guilty plea in the U.S. District Court, Southern District of Florida, Miami, Florida, in an action entitled, "United States v. Richard Parker" Criminal No. 91-349-CR- Highsmith. Upon being aware of potential liability, he cooperated fully with the U.S. Government. During a four-year period, he provided extensive assistance to the U.S. Government in ongoing investigations and provided training and resources to special agents. Mr. Parker's participation as a Government agent put him at considerable risk. His case remains under court seal to protect information which may be used by the Government in future criminal prosecutions. I cannot provide a complete transcript of the court proceedings without jeopardizing Mr. Parker's safety. To appreciate Mr. Parker's significant assistance to the U.S. Government, a portion of the Honorable Judge Highsmith's sentencing comments has been enclosed. Pages 11, 12, 14 and 15 of the sentencing memorandum specify the efforts made by Mr. Parker, and recognized by the Court to rectify his prior conduct. (Note: All individuals, other than Mr. Parker, have been redacted to preserve a measure of safety since the matter remains under court seal). In recognition of [his] assistance, Mr. Parker was placed on probation for five years and fined on January 30, 1995. The fine was paid and probation has commenced. I trust this supplemental response answers concerns regarding this unfortunate episode in Mr. Parker's life. As his attorney asserted in the foregoing letter, as of the date of the letter, Petitioner had paid the $17,500.00 fine imposed in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH. On January 17, 1997, the Department issued its Notice of Intent to deny Petitioner's application for licensure. On February 12, 1997, Petitioner requested a Section 120.57(1) hearing on the matter. On August 12, 1997, Petitioner filed a motion in United States District Court for the Southern District of Florida Case No. 91-349-CR-HIGHSMITH requesting that "his period of probation [be reduced] from a term of 60 months to a term of 32 months thereby terminating his probation on September 30, 1997." In support of his motion, he stated the following: On January 30, 1995, Richard Parker was sentenced by this Court to five years probation for his participation in a cocaine conspiracy. The Court imposed this lenient sentence because of the extraordinary cooperation Richard Parker had rendered (a transcript of the sentencing is attached hereto as Exhibit A). As part of his cooperation Parker had gone to Columbia in a sailboat, at great personal risk and with no protection from law enforcement, and developed a case involving significant arrests, convictions, and seizure of cocaine. Since sentencing Parker has remarried and complied with all terms of probation. Parker had promised the agents and the Court that his cooperation would continue regardless of the sentence imposed by the Court. True to his word, following sentencing, at the request of the DEA, Richard Parker traveled alone to Columbia and negotiated the location in the Caribbean Sea for an air drop of 300 kilos of cocaine. Parker then captained a sailboat and traveled to Dominica and Barbados, St. Kitts and the British Virgin Islands with DEA agents on board and participated in the recovery of the 300 kilos of cocaine as it was dropped from a plane in 50 kilogram packages. Parker received no payment for this cooperation. Parker rendered substantial assistance to the Government after sentencing because of his moral commitment to cooperation as a form of restitution, because of his sense of obligation and gratitude, and because he had given his word to the Government and this Court. It is now over 2 1/2 years since Parker was sentenced. Parker has complied fully with all conditions of probation. Parker has committed himself to building a productive law-abiding life. The Count may well recall that Parker's marriage ended during his cooperation and sentence. Parker has recently married again becoming the father of a four-year old in the process. Parker has spent his life working on and sailing boats. Parker has applied to the State of Florida for a license to be a yacht salesman. The issuance of these licenses in Florida is regulated by the Department of Business and Professional Regulation (DBPR). The DBPR has denied Parker's request for a license citing Parker's conviction as irrefutable proof of moral turpitude as a basis for denial. Parker has petitioned for review and a hearing before an administrative law judge is scheduled for October 14, 1997. Undersigned counsel has been advised that the hearing scheduled for October 14, 1997, will be the final hearing regarding Parker's petition for a license to sell boats in the State of Florida. Regarding this issue, undersigned counsel has become aware of an administrative decision where an application for a license as a yacht and ship salesman was granted by DBPR to an applicant who had been convicted of a drug felony, sentenced to probation and had been terminated from probation. Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes v. Orr, Docket No. YS95025 (Final Order No. BPR-95-03991, 7/20/95). It is respectfully submitted that evidence of successful completion of probation by Parker prior to the time of final hearing on October 14, 1997, will either result in the DBPR rescinding their denial of Parker's application or a reversal of DBPR's denial by the administrative law judge. Assistant United States Attorney John Schlessinger has conferred with the United States Probation Officer Anthony Gagliardi regarding this motion and has authorized undersigned counsel to state that the United States has no objection to a reduction of probation from 60 months to 36 months. Richard Parker has applied to the State of Florida for a yacht salesman license so that he can support himself and his family. Richard Parker, through his cooperation, has rebutted any presumption of moral turpitude that attached to his conviction and has affirmatively and courageously demonstrated good moral character; Richard Parker has honored and will continue to honor his pledge to the United States and to this Honorable Court never to break the law again. . . . The Final Order in the Orr case, which was referenced in Petitioner's Motion to Modify Probation, contained the following "findings of fact" and "conclusions of law":
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order granting Petitioner's application for licensure as a yacht salesperson. DONE AND ENTERED this 9th day of December, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1997.
