The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters alleged in the Administrative complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Division of Real Estate was the state agency responsible for the licensing of real estate salespersons and the regulation of the real estate sales profession in Florida. Respondent, Mark T. West, was licensed by the Division as a real estate salesperson on March 3, 1997, upon passage of the salesperson examination, and held license number SL-0647923. Notwithstanding Respondent's testimony that he has not been actively engaged in the practice of real estate, licensure records maintained by the Division reflect that from March 11, 1997 through the present, he has been active as a salesperson with two broker corporations, TRI W Group, Inc., from March 11, 1997 through September 17, 2000, and TRI-W Brokerage Inc., from September 18, 2000 to the date of certification, February 22, 2001. On December 15, 1995, Respondent submitted an application for licensure to the Department of Business and Professional Regulation, Division of Real Estate. His application reflected he was born in St. Petersburg, Florida, on September 20, 1961. Question 9 on the application asks whether the applicant has ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. The question indicates it's applicability to any violation of the law of any municipality, county, state, or nation, including traffic offenses other than minor traffic offenses, and requires the applicant to provide details, including dates and outcomes, in full, on a separate sheet of paper. The time period of applicability is not limited. On his application, Respondent, in answer to question 9, indicated "Yes" and listed a violation of failure to yield to a fire engine. No other offenses were reflected on the form, nor was any separate sheet listing other offenses found in the records of the Division. After the application was filed, consistent with its usual practice, the Division conducted a criminal records background check on Respondent which revealed other offenses had been charged against him. On January 17, 1980, Respondent was charged with DWI in Pinellas County. His driver's license was suspended for 90 days, and he was fined. On September 11, 1982, Respondent was charged with a misdemeanor charge of obstructing a police officer in the performance of his duties. Though Respondent claims he did nothing wrong and the police officer was reprimanded for charging him, the fact remains that Respondent pleaded guilty to the charge on December 2, 1982, and adjudication was withheld. On January 13, 1986, Respondent was charged, in two separate cases, with obtaining property by worthless check. Both checks were for $81.90 and, according to Respondent, were given in payment for paint which he purchased to paint someone's home. He claims he was not paid for the job and, therefore, had no funds with which to satisfy the checks he wrote. Respondent pleaded guilty in both cases and was placed on probation in each case along with a requirement to make restitution and pay costs. He was discharged from probation after nine months. Respondent claims that as to all offenses to which he pleaded guilty, he did so upon advice of counsel. Respondent was interviewed regarding his application on January 13, 2000, by an investigator with the Division to whom he indicated at the time that he did not believe he was required to list any offense over ten years in the past. At hearing, however, Respondent modified that answer by indicating his belief the ten-year limitation related only to traffic offenses. Once the Administrative Complaint was served upon Respondent, in his election of rights, he claimed he had listed all the prior disciplinary actions on a separate sheet of paper which he enclosed with the application when it was submitted. He reiterated that claim in a letter to the Division on November 15, 2000, and he persists in that claim as of the date of this hearing. Review of the application in question reveals that Respondent had previously submitted application for licensure in September, 1994, and had failed the examination for licensure on November 11, 1994, and on January 1, April 3, and June 12, 1995. A review of Respondent's investigative file failed to disclose the prior application or whether Respondent had listed his other offenses on that application. He claims he did so, however. Respondent attended real estate school in preparation for taking the licensure exam. He cannot recall, however, whether, at the school, he was taught how to fill out the application and what was required to be on it. However, he admits to having read the application and realizes it had to be accurate and complete. He contends he believed he had complied with the disclosure requirements and signed the affidavit of completeness which appears on the application. Respondent admits that all his difficulties with the law are not listed on the application form itself. He also admits that there is no time limit listed on the application and that the application form, as he submitted it, does not reflect there is an attachment or continuation in any form. No explanation was given by the counsel for the Commission for the almost five-year delay between the filing of the application for examination by Respondent and the filing of the Administrative Complaint by the state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order finding Respondent guilty of a violation of Subsections 475.25(1)(e) and (m), Florida Statutes, placing his license as a real estate sales person on probation for one year under such terms and conditions as the Commission may prescribe, and imposing an administrative fine of $1,000. DONE AND ENTERED this 24th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2001. COPIES FURNISHED: Juana C. Watkins, Esquire Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Mark T. West 222 145th Avenue, East Madeira Beach, Florida 33708 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner, the Department, was the state agency responsible for the licensing and monitoring of the operation of interstate motor carriers in this state. The Respondent, PAT, was an interstate motor carrier of automobiles operating over the roads of this state. On October 10, 1991, Officer Ralph Vargas, an officer with the Department's Office of Motor Carrier Compliance stopped the Respondent's automobile carrier being operated by an employee of the Respondent in Boynton Beach, Florida, going north on US Highway #1. The stop was a random routine Level III safety inspection. Review of the documents carried by the driver reflected that the driver's driver license and the vehicle registration were in order. However, a review of the outside of the cab revealed that there was no required fuel decal being displayed. The driver showed Officer Vargas the cab card issued by the State of Florida for the fuel decal reflecting a decal had been issued for this vehicle. However, the decal was not displayed on the outside of the vehicle even though Mr. Vargas could see an area where an decal had been affixed. He can not recall whether he felt the area to see if it was sticky and he was unable to determine whether the former decal had been issued by the State of Florida or not. He did not see a CVSA, (Commercial Vehicle Safety Alliance) decal either. As a result of this infraction, Mr. Vargas assessed a penalty in the amount of $50.00 and issued a temporary permit at a cost of $45.00, both of which were paid by the driver at the scene. It is this penalty and permit which the Respondent contests. The pertinent statute in issue here required a vehicle of this kind to have both a cab card and a fuel decal which must be affixed to the vehicle. Mr. Vargas also issued the driver a warning for having an unauthorized passenger, (his son) on board and for not having his log book current. Mr. Hurley contends that just one week prior to this stop, the vehicle and driver were in California where a CVSA inspection was accomplished. While this was being done, Mr. Hurley personally inspected the vehicle to insure that all required decals were affixed. Again, before the truck left New Jersey on the instant trip, he again checked to insure the required decals were there. They were. Because he is aware of the extended time required to get a replacement decal for a vehicle, Mr. Hurley routinely purchases several extra $4.00 cab card and fuel decal sets for his trucks so that if, as here, one is lost or removed, he can, upon notice, get a replacement to the driver overnight. Here, he claims the decal must have been peeled off by someone while the vehicle was on this trip. It is his experience that Florida's decals are easily pulled off and, unlike the decals in some other states, there is no built in voiding process which would void the decal in the event it is stolen. Here, Mr. Hurley claims, the driver did not know the decal was gone. Had he known, he could have called the home office on the truck phone and have it delivered. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein denying Professional Auto Transport, Inc.'s request for a refund of the $50.00 civil penalty and $45.00 permit fee. RECOMMENDED this 12th day of June, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of June, 1992. COPIES FURNISHED: Vernon L. Whittier, Jr. Assistant General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Richard L. Hurley President Professional Auto Transport, Inc. Box 492 Lakewood, N.J. 08701 Ben G. Watts Secretary Department of Transportation Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Alphonso J. Clark is the holder of Florida teacher's certificate number 129341, valid since July 1, 1971, certifying him in the areas of administrative supervision, science, physical education, and guidance. For a period of approximately sixteen years, he was employed with the School Board of Pinellas County. During the 1982-83 school year, respondent held the position of Dean of Students at Clearwater High School. He was dismissed from employment by the Pinellas County School Board on June 8, 1983. No evidentiary hearing has held prior to that dismissal, and respondent was not questioned by any member of the School Board regarding the acts giving rise to his dismissal. Some time in 1978, respondent met Marc Hayes for the first time at a hotel lounge in Clearwater Beach. Mr. Hayes told respondent that he was from Michigan and knew executives with automobile manufacturers who received vehicles from their manufacturer and were willing to sell such vehicles at a substantially reduced price. Respondent indicated that he would be interested in purchasing a luxury vehicle at a reduced price. At this time, no formal order was given by the respondent for a specific automobile, nor was any money exchanged. Respondent did advise Mr. Hayes of his place of employment and where he could be located in the event that Mr. Haves was able to find a vehicle that respondent might desire to purchase. Some time in 1979, Mr. Hayes brought a 1978 silver "anniversary edition" Corvette to Clearwater High School for respondent's inspection to determine if he would be interested in buying it. The odometer on the Corvette indicated that it had been driven approximately 10,000 miles. There was a slight tear in the driver's seat, the interior had been stained and had a bad odor, the right rear fender had been damaged and repaired, the mirror on the driver's side was cracked and the exterior paint had a rough finish. Nevertheless, respondent agreed to purchase the Corvette for $7,000 because he felt he would be receiving a good bargain. Mr. Hayes then went to respondent's home and received a down payment of $1,000 from the respondent. Respondent did not sign any contract or loan agreement reflecting the transaction, nor did he receive any title or other document from Mr. Hayes reflecting his ownership or interest in the vehicle. Respondent told Mr. Hayes that he would pay the remainder of the purchase price upon receipt of the title. Respondent made two or three other payments to Mr. Hayes. When he made his final payment, Mr. Hayes gave him a Michigan titled to the Corvette. The title had respondent's name on it with a Michigan address. After asking Mr. Haves why the former owner's name did not appear on the title, it was respondent's understanding that the executive selling the car might get in trouble with his company. The respondent had never before purchased a car in a private transaction and without third- party financing. After purchasing the Corvette, respondent obtained a Florida registration, secured a Pinellas County license tag, and had the car insured and inspected. He drove the vehicle on a daily basis over the course of the next three years and its appearance was never altered. On two occasions over this approximate three-year period, respondent was stooped by law enforcement officers and the Corvette's registration, license, and vehicle inspection number were checked. On both occasions, respondent was given no indication that anything was wrong with the car. One of these occasions was apparently due to the fact that respondent's ex-wife had reported to the police that the Corvette had been stolen. Respondent explained that this occurred after a domestic dispute with his then wife. When she said "With your luck, the car is stolen," he retorted "if my luck is as good as marrying you, it probably is stolen." Thereafter, she reported the car as stolen. During the early months of 1983, detectives with the Clearwater Police Department were involved in the investigation of an interstate stolen car ring. A Mr. Raymond Huntley was first arrested for arranging for the sale of stolen vehicles. Apparently, Mr. Huntley obtained the cars from Wade Clark, who is the brother of respondent Alphonso Clark. It was determined that the stolen cars were being delivered to Florida from Michigan through Marc Hayes. A check of police records revealed that Marc Hayes had been arrested in Pinellas County on December 31, 1982, for a traffic law violation while driving a 1982 Cadillac which was registered in the respondent's name. This was the first time in the ongoing auto theft ring investigation that respondent's name had been mentioned. After checking with the National Auto Theft Bureau, it was determined that the vehicle identification number on the Cadillac was invalid, and it was later determined that the Cadillac was a stolen vehicle. The Cadillac itself was never located by the Clearwater Police Department. While the Cadillac registration was not received into evidence in this proceeding, respondent admitted that it was registered in his name. He explained that Marc Hayes desired to have a car available to him in Florida, and requested respondent to keep the Cadillac at his home, use it when he wanted, but have it available for the use of Mr. Hayes or his friends when they were in Florida. Hayes suggested that the Cadillac be registered in respondent's name since respondent would also be driving it. Respondent had no knowledge as to the whereabouts of the Cadillac, but assumed that Mr. Hayes had taken it, as he had done on other occasions. After discovering that the stolen Cadillac was registered in the respondent's name, and after arresting respondent's bother, the respondent himself became a suspect in the auto theft ring investigation. The detectives learned that respondent owned a Corvette. After going to the parking lot of Clearwater High School and looking through the windshield on the driver's side, the detectives were able to obtain the vehicle identification number for the Corvette. Further investigation revealed a Florida registration in the respondent's name with the same identification number, but it was discovered that the number was an invalid identification number for the Corvette. The Corvette was thereafter placed under surveillance. After locating the car in an open, but wooded area across the street from the respondent's residence, the detectives ordered that the Corvette be seized, and it was towed away for the purpose of inspecting the confidential vehicle identification number. An examination of the back of the confidential identification number plate revealed that the numbers had been altered. After checking the true numbers, the detectives ascertained that the Corvette had been reported stolen in Michigan in 1978. When the respondent discovered that the Corvette was missing from the lot across from his home, he called the Indian Rocks Beach Police to inquire about it. Be also called the owner of the property upon which the car was parked. Respondent first learned that the Corvette had been impounded when three law enforcement officers came to talk to him at Clearwater High School on or about May 3, 1983. While two of the officers testified that respondent acknowledged during that May 3rd conversation that he knew the Corvette was "hot," respondent denies making such a statement. Respondent was arrested on May 3, 1983, and was charged with auto grand theft. During the criminal proceedings, the original owner of the Corvette testified that he bought the car in February of 1978. Its sticker price at that time was $12,124, but he was able to purchase it on a company discount for approximately $10,000. The Corvette was stolen from the Ford Motor Company parking lot in Dearborn, Michigan in November of 1978. After respondent's arrest, a newspaper article appeared in the St. Petersburg Times on May 5, 1983, reporting that respondent was "one of three deans responsible for disciplining students at Clearwater High," and had been arrested and charged with auto grand theft. The same article reported that respondent's brother and others had also been arrested and that one of the cars recovered was the Corvette respondent drives to school. Respondent's arrest also received other coverage by the news media. After the St. Petersburg Times article appeared, the principal of Clearwater High School, as well as one of the other dean of students, received many inquiries from parents, students and other teachers regarding respondent's arrest. While there was some student support for the respondent, most of the comments from parents were negative. They voiced concern over the propriety of one who is arrested for auto theft having the authority to discipline their children. Prior to the publicity surrounding respondent's arrest, the principal considered respondent an effective employee. By letter dated May 4, 1983, respondent was notified that the Superintendent of Schools was suspending him from his duties as of the close of the school day on May 4, 1983, as an emergency measure. By letter dated May 9, 1983, respondent was notified that the Superintendent would recommend to the School Board on May 25, 1983, that respondent be dismissed and his contract cancelled on charges of immorality and misconduct in office. Respondent was advised that he was entitled to a hearing, but that the request for a hearing had to be received by May 23, 1983. By Final Order dated June 8, 1983, the School Board noted that respondent's request for a public hearing was not received until May 25, 1983, found that respondent was guilty of immorality and misconduct in office and dismissed him from employment effective May 26, 1983. At a judicial hearing held on January 19, 1984, Circuit Judge Maynard F. Swanson of the Circuit Court for Pinellas County granted a motion to suppress the contents of the Corvette, including the confidential vehicle identification number. Judge Swanson found that at the time the vehicle was seized, the law enforcement officers did not have probable or reasonable cause to believe that the Corvette was stolen. The criminal case against the respondent was dismissed by Order dated October 15, 1984, and filed on October 31, 1984.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against respondent on May 18, 1984, be DISMISSED. Respectfully submitted and entered this 29th day of January, 1985, in Tallahassee, Florida. DIANE D. TREMOR 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 29th day of January, 1985. COPIES FURNISHED: Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Fla. 32301 L. Haldane Taylor 331 E. Union Street Jacksonville, Fla. 32202 Ronnie G. Crider 410 S. Lincoln Avenue Clearwater, Fla. 33516 Pamela L. Cooper 911 E. Park Avenue Tallahassee, Fla. 32202
The Issue Whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2009), and Florida Administrative Code Rule 11B-27.004(4), and if so, what penalty should be imposed?
Findings Of Fact At all times material to the allegations in the Administrative Complaint, Respondent was a certified law enforcement officer, certified by the CJSTC. At the time relevant to the Administrative Complaint, Respondent was acquainted with a person named Terrence Hicks. Mr. Hicks was apparently involved in some business dealings with a Mr. Brichler. In connection with these business dealings, Mr. Brichler had possession of several motorcycles owned by Mr. Hicks. Respondent accessed information regarding Mr. Brichler from a secure Florida Department of Highway Safety and Motor Vehicles DAVID system on two different occasions: Friday, September 26, 2008, and Monday, October 27, 2008. Respondent was not working on any investigation regarding Mr. Brichler at the time he accessed the DAVID system. No traffic citations, field contact cards, or offense reports regarding Mr. Brichler were generated by Respondent or any other deputy. After the second time he accessed the system, on or about November 3, 2008, Respondent went to Mr. Brichler's home to inquire about the motorcycles. Based upon his conversation with Mr. Brichler, Respondent claims that he determined that the dispute between Brichler and Mr. Hicks was civil in nature, and he generated no complaint or paperwork as a result. At the time he visited Mr. Brichler's home, Respondent was off duty. However, he was in uniform and arrived at the home in a marked, county-issued vehicle. Mr. Brichler contacted the Volusia County Sheriff's Office in or about February 2009, stating that Respondent had come to his home in November 2008 and identified himself as Deputy Sanchez. Mr. Brichler claimed in his complaint that the officer coming to his house provided him with a business card bearing the insignia for the Volusia County Sheriff's Office, with the office's address and telephone number. The card had a line stating, "Presented By:" followed by a blank line, with the words Deputy Sheriff written underneath. Written on the blank line was "Deputy Sanchez." According to the police report, there is no Deputy Sanchez that has worked or does work for the Volusia County Sheriff's Office. The complaint indicates that Brichler realized that the person identifying himself as Deputy Sanchez was actually Respondent, because he read an article about two deputies that had been arrested for racing motorcycles, and the photograph of one of the deputies was of Respondent, identifying him as Deputy Lopez. He supplied the business card with Deputy Sanchez written on it to Deputy Turner, who investigated his complaint. Respondent admits accessing the DAVID system to gain information on Mr. Brichler, and admits going to his home to ask about the motorcycles. With respect to the business card, Respondent states that it was a blank, generic business card provided by the sheriff's office. Mr. Brichler did not testify in this proceeding. During his interview with Deputy Turner, Respondent denied giving Mr. Brichler a business card with "Deputy Sanchez" written on it. He admitted accessing the DAVID system and going to Mr. Brichler's house.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Criminal Justice Training and Standards Commission enter a Final Order: dismissing the Administrative Complaint in Case No. 11-1236PL; finding that Respondent failed to maintain in violation of section 943.1395(7), as defined in rule 11B-27.0011(4)(c)2.,; and suspending his certification for a period not to exceed five days. DONE AND ENTERED this 9th day of August, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 9th day of August, 2011. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Omar Lopez Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issued involved is whether the Florida Highway Patrol had good cause for the suspension of Trooper Byrne. The factual grounds stated in the Statement of Particulars for the action taken was as follows: Byrne was negligent in delaying approximately four (4) hours administering a blood alcohol test to the driver of the vehicle involved in a fatal accident. The blood alcohol test, when administered, was not administered in the presence and under the supervision or control of a trooper inasmuch as the driver had been turned over to his father at the jail. Byrne did not notify or request the Florida Highway Patrol dispatcher to notify the medical examiner that a blood alcohol test was needed. Byrne failed to notify the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge from the Grand Jury's proposed report that portion of the report critical of the manner the investigation was handled. Trooper Byrne failed to obtain the names and addresses of all witnesses to the accident. The diagram prepared by Trooper Byrne in his initial accident report does not properly reflect painted median in the roadway or a left turn lane for eastbound traffic. Further, the diagram does not show the north edge of the roadway widens to accommodate room for a left turn lane and no passing zone is not properly drawn in relationship to the location of the speed sign shown in the diagram.
Findings Of Fact J. T. Byrne is a Florida Highway Patrol trooper and has permanent career service status in his position. Byrne was suspended for sixteen (16) hours by a letter to him from Colonel J. E. Beach dated January 17, 1977. Byrne filed a timely appeal of his suspension to the Career Service Commission which forwarded this matter to the Division of Administrative Hearings to conduct a formal hearing. On June 5, 1976, at approximately 1:15 A.M., Trooper J. T. Byrne was dispatched to an accident scene on FTU Boulevard approximately one tenth of a mile west of its intersection with State Road 520. Upon his arrival at the scene there were Florida Technological University police, sheriff's deputies, and emergency vehicles already present. One of the enforcement officers present advised Byrne that there had been a fatality. Byrne checked the victim then called his dispatcher to advise the dispatcher that a medical examiner and a Florida Highway Patrol homicide investigator would be needed. Immediately thereafter, the driver of the car involved, Edward Romfh Kirkland, Jr., was introduced to Byrne by one of the enforcement officers at the scene who gave Kirkland, Jr.'s driver license to Byrne. Byrne spoke with Kirkland, Jr., and noted his appearance. Kirkland, Jr. was unsteady on his feet, emotionally upset and was crying. Byrne smelled alcoholic beverage on Kirkland, Jr.'s breath. Byrne placed Kirkland in his patrol car and commenced his accident investigation. The accident investigation included interviews with the victim's brother, an eyewitness observer, and Kirkland, Jr. Byrne also prepared a sketch and a verbal description of the scene. Byrne administered a field sobriety to Kirkland, Jr. after conducting his accident investigation. Kirkland, Jr. performed these tests in a manner which would indicate that his faculties were not impaired. Byrne, with the assistance of other officers, obtained the name of only one eyewitness although inquiries were made of many observers at the scene. At approximately 1:45 A.M. Trooper Fuller Baker, Homicide investigator, arrived at the scene and began his investigation which was separate and distinct from the accident investigation conducted by Byrne. Baker also administered a field sobriety test to Kirkland, Jr. and reached the conclusion that Kirkland, Jr.'s faculties were not impaired. The homicide investigation is a very detailed investigation of the facts surrounding a death involving operation of a motor vehicle. As opposed to an accident investigation which is from one to three pages in length, the homicide investigation may be thirty-five to forty pages long. The homicide report is a long term detailed investigation for the purpose of gathering information upon which to evaluate and base any criminal prosecution. The accident report, which is privileged by law (see Conclusions of Law), is primarily used for statistical evaluation of motor vehicle accidents. Having completed his investigation, Byrne placed Kirkland, Jr. under arrest at the scene and took him to the sheriff's Department to conduct a breathalyzer examination. In route to the Sheriff's Department, Kirkland, Jr. told Byrne that he had been assaulted and knocked unconscious by victim's brother following the accident and prior to Byrne's arrival at the scene. Arriving at the Sheriff's Department, Byrne was met by Edward Rohmf Kirkland, Sr., an attorney at law, who was present representing his son. When Kirkland, Sr. learned that his son was going to be given a breathalyzer examination, he indicated that he wanted to have a blood analysis done on his son. Byrne indicated to Kirkland, Sr. that such a test would be desirable, and he would permit such a test to be performed. At this time, Trooper Baker arrived at the Sheriff's Department and spoke with Byrne outside the hearing of the Kirklands. Baker asked Byrne with what offense he had charged Kirkland, Jr. Byrne stated that he had arrested him for driving while under the influence. They discussed the condition of Kirkland, Jr., and both agreed that he did not appear to have his faculties impaired. Byrne was of the opinion, however, that a test should be run as a precaution and Kirkland, Jr. charged if the test was positive. As the accident investigator, Byrne did not feel he should give the test because for him to do so could have created problems concerning the admissibility of the evidence at a subsequent criminal prosecution. Baker concurred in Byrne's analysis, but Baker did not feel that the condition of Kirkland, Jr. was such to form probable cause for administration of a breathalyzer examination. Baker suggested that Byrne charge Kirkland, Jr. with a charge which could be proven, driving too fast for conditions, and release him to his father, an attorney, who had indicated he was going to have a voluntary blood analysis performed. Subsequent to their conversation, Byrne charged Kirkland with the civil charge of driving too fast for conditions and released Kirkland, Jr. At that time Byrne left the Sheriff's Department, leaving Kirkland, Jr. and his father in the presence of Trooper Baker. Byrne thought that Baker would follow through and accompany the Kirklands to the blood analysis as a part of the homicide investigation. Baker did not follow through with the examination. Subsequently, the victim's father was the source of derogatory comments regarding the handling of the investigation of his daughter's death. Because of this, the matter was presented to the Orange County Grand Jury, whose report indicated insufficient evidence existed to prosecute Edward Romfh Kirkland, Jr., but which report was critical of the handling of the homicide investigation. Both Troopers Byrne and Baker received copies of the report and attached Court Order. Byrne and his immediate supervisor, Sergeant W. E. Sunberg, Jr., discussed the Grand Jury's report and the criticisms therein. Subsequently both Baker and Byrne received suspensions by the Florida Highway Patrol. With regard to the allegation that Trooper Byrne failed to advise the Department that the Court had granted him and the Department fifteen (15) days to file with the Court a Motion to Repress or expunge the Grand Jury's criticism, the Hearing Officer finds that substantial and competent evidence indicates that Trooper Byrne's immediate supervisor was advised of the criticisms of the Grand Jury. In addition, the Court's directions concerning a Motion to Repress or expunge the report of the Grand Jury does not create any right in the Department to repress or expunge any portion of the report. Further, there was no criticism levied against Trooper Byrne in the Grand Jury report. Regarding the allegation that Trooper Byrne failed to notify the dispatcher to advise a medical examiner of the necessity of blood alcohol testing, the memorandum upon which this requirement is based was not introduced into evidence. Testimony regarding the requirements created by the memorandum was received. The requirements of such a notification would only be applicable in a factual situation in which a victim or suspect would be unable to take a breathalyzer examination. The facts indicate that there was nothing about the victim's condition which would warrant a test for blood alcohol content, and Kirkland, Jr. was able to take the breathalyzer. Therefore, the factual situation did not necessitate Trooper Byrne advising the medical examiner of the possibility of blood analysis testing. The uncontroverted testimony of Byrne was that he and other officers in attendance at the scene did interview many observers at the scene and could only discover the one witness to the accident. The basis for the allegation that Byrne failed to obtain the names of all of the witnesses was based upon the fact that the victim's father hired a private investigator who later discovered two additional witnesses. The evidence, however, indicates that it took several minutes for Byrne to arrive at the accident scene and there is no evidence that the witnesses later discovered by the private investigator were at the accident scene when Byrne arrived. A comparison of Exhibit 4, the first diagram prepared by Byrne the night of the accident, with Exhibit 5, the diagram prepared by Byrne several months later, indicates several differences. Clearly, the shape of the road, the left turn lane at the intersection, and the position of the speed sign were immaterial to the accident. Both diagrams depict essentially the same salient facts, to wit: the location of the initial impact, the path of the vehicle, the final location of the victim, and the fact the vehicle completed its passing after entering the no passing zone. The initial diagram was supplemented by a written description and measurements which are a part of the accident investigation report. The initial diagram was sufficiently accurate for the purposes of that report when considered with Byrne's written report and measurements. There is no requirement that the diagram of an accident investigation report be a scaled drawing. In the absence of such a requirement, the diagram must be considered sufficient if it contains that data necessary to give the reader an accurate depiction of the events before, during, and after the accident. Byrne's original diagram, together with the written narrative which is part of the diagram, presented this information. While Byrne's second diagram is more detailed, his first diagram is not sufficiently inaccurate to mislead or misstate the actual operative facts. Regarding the allegations that Byrne was negligent in the blood alcohol testing of Kirkland, Jr., it should be noted that Byrne arrived on the scene at 1:15 A.M. and began his actual accident investigation at approximately 1:45 A.M. He was at the Sheriff's Department with Kirkland at approximately 2:45 to 3:00 A.M. based upon the testimony that Trooper Byrne left the Sheriff's Department at 3:17 A.M. One and one half hours to investigate an accident and transport Kirkland, Jr. to the Sheriff's Department does not appear to be an excessive delay. Regarding the allegation that Byrne failed to follow through and supervise and control the blood alcohol testing of Kirkland, Jr., although Byrne had arrested Kirkland, Jr. at the scene for driving while under the influence of alcoholic beverages, it was both Byrne's and Baker's opinion that they had no probable cause for administration of chemical blood tests. Baker was of the opinion that Kirkland, Jr. had not been driving under the influence of alcoholic beverages, while Byrne, having initially based his opinion that Kirkland was driving under the influence upon the smell of alcoholic beverages on Kirkland's breath and Kirkland's unsteadiness on his feet, changed that opinion based upon the additional information obtained from Kirkland, Jr. while transporting him to the Sheriff's Department that Kirkland, Jr. had been knocked unconscious by the victim's brother. Both officers had administered field sobriety tests to Kirkland, Jr., whose performance on the tests indicated that his faculties were not impaired. Further, the testimony of both troopers and two state's attorneys indicated that although Byrne was the arresting officer and the officer who transported Kirkland to the Sheriff's Department, Byrne was not the preferred officer to administer chemical blood tests to Kirkland, Jr. The administration of such tests by the officer in charge of the accident investigation creates admissibility problems regarding any evidence derived from the testing period (See Conclusions of Law below.) Trooper Baker, as the homicide investigator present, would have been the preferred officer to give and supervise the test. Regarding the allegation that Trooper Byrne released Kirkland, Jr. into the custody of his father, this was not demonstrated. Kirkland, Jr. is over 21 years of age and therefore was not released into anyone's custody but was released on his own recognizance in accordance with the prevailing procedures in Orange County. Although his father was present at the Sheriff's Department, it is clear that he was present in his capacity as his son's attorney.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Career Service Commission not sustain the disciplinary action taken by the agency. DONE and ORDERED this 27th day of April, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1977. COPIES FURNISHED: Ed Strickland, Esquire Kirkman Building Tallahassee, Florida 32304 William R. Sharpe, Esquire 29 East Pine Street Orlando, Florida 32801 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 =================================================================
The Issue Did the Department of Transportation (Department) improperly deny a refund to Petitioner of a penalty assessed pursuant to Chapter 316, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of enforcing the provisions of Chapter 316, Florida Statutes. On June 7, 1999, the Department's Inspector Clemente Igracio stopped Petitioner's truck for an inspection. After inspecting Petitioner's truck, Inspector Igracio issued a Safety Report Citation numbered 0862152 wherein Petitioner was cited for the alleged violations of Sections 316.515(1) and (3) and 316.550, Florida Statutes. The total fine imposed was $1,600.00 which included a fine of $1,250.00 for the alleged violation of Section 316.515(3), Florida Statutes. However, since the maximum fine imposed for a Section 316.515(3), Florida Statutes, violation is $1,000.00, the total fine imposed was $1,350.00, which Petitioner paid. Subsequently, due to mitigating circumstances, the Department refunded Petitioner the $100.00 that it had paid for the alleged violation of Section 316.550, Florida Statutes. Petitioner does not protest the Section 316.515(1), Florida Statutes violation nor does it protest the Section 316.550, Florida Statutes violation. Petitioner stipulated that the combined length of the truck and trailer was 65 feet, 9 inches. Petitioner also stipulated that the length of the trailer was 42 feet, 10 inches. Inspector Igracio categorized the truck as a "straight- truck" because it had two axles and load-carrying capacity on the power unit. The vehicle in question is a two-axle vehicle with the cargo unit and motive power unit located on the same frame so as to form a single, rigid unit. The subject vehicle and trailer combination was 65 feet, 9 inches in overall length. The subject trailer was 42 feet, 10 inches in length. Petitioner did not have a permit to be over the legal length.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying the refund sought by Petitioner. DONE AND ENTERED this 20th of June, 2000, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2000. COPIES FURNISHED: Peter Byra West Coast Towing 124 South Berkley Road Auburndale, Florida 32823 Kelly A. Bennett, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Should the Respondent's license as a real estate salesperson in the State of Florida be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to this proceeding, the Respondent was licensed as a real estate salesperson in the State of Florida, having been issued license number 0605704. The last license was issued as a voluntary inactive salesperson with an address of 820 Manatee Avenue, Ellenton, Florida 34222. By application dated September 3, 1993, and received by the Department on September 10, 1993, Respondent applied to become a real estate salesperson in the State of Florida. Question 9 on the Application provides as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? The question applies to any viola- tion of the laws 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 with- held, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungment or sealing prior to answering "NO". If you answered "YES", attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state, and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent answered "YES" to question 9 and provided information about one arrest for reckless driving in September 1984. A criminal background check performed as part of application process indicated that Respondent had also been convicted in June 1987 of reckless driving and had pled nolo contendere (no contest) to a felony charge of obtaining property by worthless check. Adjudication was withheld and Respondent received credit for time served. The Respondent did not have a criminal background check performed. Therefore, he failed to report the reckless driving conviction in June 1987 because he had forgotten about the conviction. As to the worthless check charge, the Respondent did not consider it part of his record since the charge against him for issuing worthless check was a mistake, and reimbursement was made on the check. The mistake was that Respondent's brother, Bret Gardner had signed a check for Respondent to purchase materials. However, in the process of using the check to purchase the materials the Respondent identified himself with his driver's license and his driver's license's number was placed on the check.. Since their names are similar and they are close to the same age (difference of two years), the Respondent was charged with issuing the worthless check rather than Bret Gardner. There was one other occasion in the past where Respondent was mistaken for Bret Gardner in a court proceeding. Apparently, the no contest plea was the easiest way for the court to clear up the matter. Respondent attended a real estate school operated by his mother, Claudia Gardner, and before filing his application the Respondent discussed Question 9 with his mother. Since the Respondent had been charged with other traffic violations (speeding tickets, etc.) it was his mother's opinion that by listing the one conviction - and if others should have been reported - then it would show that the Respondent was not attempting to conceal any convictions. Hindsight is 100 percent better than foresight. Respondent's mother's advice surely proves this out. The failure to furnish all the information concerning his criminal record was not intentional on the part of the Respondent. However, this does not relieve him of the responsibility to have made an effort to check his record, particularly since he was advised of its importance by the last paragraph in question 9 which was emphasized by being in bold print. Furthermore, having questioned his mother concerning the necessity to report his record - even assuming that time was of the essence in making his application - there was no reason why the Respondent could not have checked with the Division of Real Estate to determine if he should follow through on a check of his record so as to advise the Division of Real Estate of any changes to be made prior to the issuance of the license. The Department presented no evidence that had the Florida Real Estate Commission (Commission) been presented Respondent's complete record it would have denied him licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and after having reviewed considered Rule 61J2-24.001, Florida Administrative Code, concerning disciplinary guidelines and the recommended range of penalties for a violation of Section 475.25(1), Florida Statutes, and considering mitigating circumstances as provided for in Rule 61J2-24.001(4), Florida Administrative Code, it is recommended that the Commission enter a final order finding Respondent guilty of having violated Section 475.25(1)(m), Florida Statutes. It is further recommended that the Respondent be assessed an administrative fine in the amount of $300.00, and his license be suspended for a period of six months, the suspension be stayed and the Respondent's license be placed on probation for a period of six months under terms and conditions deemed appropriate by the Commission. That upon the probation being successfully completed, the suspension of the Respondent's license would be lifted subject to any further terms and conditions the Commission may deem appropriate. DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 30th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4165 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 8 are adopted in substance as modified in Findings of Fact 1 through 11 in the Recommended Order. Respondent Gardner's Proposed Findings of Fact: 1. The Respondent's proposed findings of fact are intermingled with argument and other matters not considered findings of fact, and are not in numbered paragraphs nor do the lend themselves to numbering. However, I have responded to what I consider proposed findings of fact and have adopted them in substance as modified in Findings of Fact 1 through 11 in the Recommended Order. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bart Claude Gardner 820 Manatee Avenue Ellenton, Florida 34222 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether respondent's certification as a correctional officer should be revoked for having pled nolo contendere to a felony.
Findings Of Fact Respondent, Leland M. Large (Large), was certified by petitioner, Criminal Justice Standards and Training Commission (Commission), on July 1, 1974, and was issued certificate number A-2364. Currently, Large is employed as a correctional officer by Metropolitan Dade County, Department of Corrections and Rehabilitation (County), and has been so employed for 16 years. On October 15, 1985, Large entered a plea of nolo contendere to the felony offense of arson, Section 806.01, Florida Statutes, before the Circuit Court, in and for the Eleventh Judicial Circuit of Florida. The court accepted the plea, withheld an adjudication of guilt, and placed Large on a 12-month period of probation. On May 15, 1986, the court granted a motion for early termination of Large's probation. Regarding the crime with which he was charged, the proof demonstrates that in September 1985, Large owned a Toyota Corolla automobile which, because of an accident, was not road worthy. At that time, Large did not have the money to repair the car, was unable to sell it, and was having problems maintaining the payments on the vehicle. Accordingly, to relieve himself from the car payments, Large took the car to a secluded location and burned it. At hearing, Large testified that although he did take the car to a secluded location with the intention of burning it, and in furtherance of such intent smashed a window in the car and poured gasoline at its rear, that the actual burning of the car was an accident. According to Large, after having poured gasoline at the rear of the car, "I got disgusted with myself and I was going to change my mind and I threw a cigarette down and that is what started the fire." Large's testimony that the burning of the car was accidental is not credited, and it is found that he did intentionally burn the subject vehicle to relieve himself of the obligation to make further payments on it. To mitigate the gravamen of his offense, Large offered proof at hearing that at the time he burned the car he was an alcoholic who was not fully cognizant of his actions, but has since recovered. Regarding his rehabilitation, the proof demonstrates that following the entry of his plea of nolo contendere to the crime of arson, Large was suspended by the County for 28 days. During this period, Large was an inpatient at an alcohol rehabilitation center and successfully completed the program. Since such time, Large has remained sober and current in his financial obligations. To date, Large, who is currently 38 years of age, has been employed by the County as a correctional officer for 16 years, and his annual evaluations have ranged from satisfactory to outstanding. By those who know of him, he is considered an excellent employee, observant of the rules, honest, fair, respectful of the rights of others, and otherwise of good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered which revokes the certification of respondent, Leland M. Large. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of July 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Respondent's proposed findings of fact are addressed as follows: 1-4. Addressed in paragraphs 1 and 6 to the extent pertinent. 5. Addressed in paragraph 5. 6-13 and 15-39. These proposed findings are not relevant to the disposition of this case, but have been addressed in paragraphs 3-5 so that respondent's position could at least be depicted. 14. Addressed in paragraph 2, otherwise rejected as not shown to be relevant. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 James C. Casey, Esquire 10630 N.W. 25th Street Miami, Florida 33172 Jeffrey Long, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302-1489 Daryl McLaughlin Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On November 16, 1987, the Respondent signed, under oath, an application for an independent motor vehicle dealer license for the business name of Southern Auto Sales which was submitted to the Department, and, based upon that application, the Department issued an independent motor vehicle dealer license, number 7VI-011359, to Respondent d/b/a Southern Auto Sales on November 30, 1987. In the application referred to above, Respondent answered no to the question, Has the applicant or any partner or corporate officer or director: Been arrested on a felony or equivalent charge anywhere?; Been convicted of a felony or equivalent anywhere? In 1988, 1989, and 1990, Respondent submitted to the Department a Short Form Application, commonly referred to as a renewal application, and the Department renewed license number 8VI-011359 in 1988, 9VI-011359 in 1989, and 0VI-011359 in 1990. The number before the prefix VI indicates the year of issuance. Respondent signed each of these renewal applications under oath wherein the affirmation stated " . . . the information contained in this application is true and correct and that nothing has occurred since I filed my last application for a license or application for renewal of said license, as the case may be, which would change the answers given in such previous application." Additionally, the instructions for the renewal application advised the applicant that the short form could be used if the applicant was currently licensed and, among other things, there were no changes in the applicant's personal background such a criminal conviction. Respondent, currently holds an independent motor vehicle dealer license, number 1VI-011359, issued by the Department on May 1, 1991. Respondent, using the name William J. Butler, was arrested and charged in December 1977 with uttering a forgery. The Respondent pled guilty to the charge of uttering a forgery in April 1978 before the Circuit Court, Harrison County, Mississippi and was sentenced to four years in the Mississippi Department of Corrections. In 1978, the Respondent, using the name William J. Butler, was arrested and charged with uttering a forgery. Respondent was subsequently convicted and sentenced by the Circuit Court, Jackson County, Mississippi to four years in the Mississippi Department of Corrections, said sentence to run concurrently with the sentence imposed by the Circuit Court, Harrison County, Mississippi. William J. Butler and Bernard J. Haney, the Respondent in this case, are one in the same person. On October 25, 1979, after serving only approximately 1 1/2 years of the two four-year sentences, Respondent was paroled by the Mississippi Parole Board with conditions for supervision made a part of the parole. In 1981 Respondent sought and received treatment for alcoholism, having been an alcoholic for a period of twenty years. After treatment, with the help of Alcoholics' Anonymous, Respondent has maintained a life of sobriety. In November 1988 a Warrant for Retaking a Paroled Prisoner was issued against Respondent, and he was recommitted to the Mississippi Department of Corrections for "absconding supervision" of his parole. However, with the help of some "new" friends, gained after his treatment for alcoholism, Respondent was incarcerated for only a short period, and was "honorably discharged" from the Mississippi Department of Corrections on December 20, 1984. The Harrison County charge of uttering a forgery was in connection with a check for $169.92, and the Jackson County charge of uttering a forgery was in connection with a check for $139.36. There is nothing stated in the Discharge Certificate that should have led the Respondent to believe or understand that his criminal record had been expunged and his rights restored upon receiving his "honorable discharge" from the Mississippi Department of Corrections in December 1984. However, considering the circumstances surrounding his commitment in the first place, his recommitment in 1984 and his immediate release thereafter, Respondent's testimony that such was his belief and understanding is credible. There is insufficient evidence to show that at the time of his initial application for licensure in 1987 or at the time of his renewal applications in 1988, 1989 and 1990, that Respondent acted fraudulently or willfully misrepresented the facts when he answered no to the questions concerning any prior arrests or convictions for a felony. After the release in 1979 and up to the date of his initial application for licensure, the Respondent's criminal record is clear except for the arrest in 1984 where the charges were dropped but the arrest resulted in his recommitment. From the date of his initial application until the date of the hearing the Respondent's criminal record is clear except for an arrest in 1990 concerning charges of tampering with an odometer. Apparently, these charges have been dropped and the matter handled civilly through the Polk County Citizen Dispute Settlement Center.
Recommendation Having considered the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department enter a Final Order dismissing the administrative complaint filed herein. DONE and ENTERED this 27th day of August, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner - 9. Adopted in Findings of Fact 5, 6, 7, 8, 1, 1, 2, 3, and 4, respectively. 10. Stated more as an argument than a finding of fact, otherwise rejected since there was no substantial competent evidence in the record to prove that there was fraudulent or willful misrepresentation of the facts in the application. Rulings on Proposed Findings of Fact Submitted by the Respondent Respondent's Proposed Recommended Order is divided into three principal parts: (a) Proposed Findings of Fact; (b) Comments on Testimony and Evidence; and (c) Proposed Conclusions of Law. Only the Proposed Findings of Fact will be addressed to in this Appendix. Adopted in substance in Finding of Fact 1. - 3. Unnecessary. Adopted in substance in Finding of Fact 1. - 7. Covered in Preliminary Statement. Conclusion of Law. Covered in the Preliminary Statement, otherwise unnecessary. Covered in the Preliminary Statement. - 12. Covered in the Preliminary Statement, otherwise unnecessary or not material or relevant. COPIES FURNISHED: Michael J. Alderman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A432 Tallahassee, FL 32399-0504 Charles R. Mayer, Esquire Post Office Box 267 Highland City, FL 33846 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Charles J. Brantley, Director Division of Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500
