The Issue The issue in this case is whether Respondent's Class "D" Security Officer License and/or Class "G" Statewide Firearm License should be revoked or otherwise disciplined based upon the alleged violations of Chapter 493, Florida Statutes, set forth in the Third Amended Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence introduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: On or about June 7, 1989, Respondent filed an application for a Class "D" Security Officer License with the Department. The application form asked the applicant whether he had ever been arrested and to list any and all arrests. The application specifically provided that "falsification of this question may be grounds for denial of your license." Respondent answered affirmatively that he had been arrested. The only specific incident listed on the application was an arrest in 1979 for a charge of "asault [sic] with a deadly weapon intemp [sic] to kill Fay N.C. [sic]." The Application also required the applicant to set forth the outcome of all arrests. Respondent replied that the "charges was [sic] drop [sic]." On or about July 17, 1990, Respondent submitted an application with the Department for a Class "G" Statewide Firearms License. The application form for this license included an identical request regarding prior arrests. In response, Respondent checked the box indicating he had never been arrested and wrote "N/A" where he was supposed to indicate the date, charge and outcome of the arrests. Respondent has not provided any explanation for why his Class "D" Application disclosed an arrest in 1979, but his Class "G" Application did not reference this arrest. This discrepancy is not alleged in the Third Amended Administrative Complaint. Petitioner has submitted a certificate from the Cumberland County, North Carolina Superior Court which indicates that a criminal summons was issued for "Angelo Louis Lugo" on or about May 5, 1987, for a charge of "M Assault By Pointing A Gun." It is not clear whether this summons is directed at Respondent nor is it clear whether the Summons was ever served and/or the subject was arrested. The ultimate disposition of this criminal case is not clear. Respondent denies ever being served with the summons referenced in this court record. The evidence was insufficient to establish that Respondent was ever arrested in connection with this matter. Petitioner has submitted a second certified record from the Cumberland County, North Carolina Superior Court, which indicates that Respondent was issued a "Citation" on March 10, 1986, for the charge of "M Shoplifting Concealment Goods." No other evidence or explanation of this record has been provided. Respondent admits that he was issued a Notice to Appear in court after he was caught by store security personnel taking aspirin from a bottle. He testified that he did not list this matter on his applications because he was not "arrested." Instead, he claims that he was merely issued a citation to appear in court. The evidence presented in this case did not refute Respondent's version of the events surrounding this court record. In sum, the evidence was not clear and convincing that Respondent was ever formally "arrested" for this incident. The ultimate disposition of this criminal charge is not clear from the record in this proceeding. Counts III and IV of the Third Amended Administrative Complaint are based upon an incident that occurred on February 9, 1993 between Respondent and Jorge Ruiz. There is a good deal of conflicting evidence regarding this incident. Both Respondent and Ruiz have testified and/or given statements on several occasions about the incident including statements to the police, testimony in a related criminal proceeding against Respondent and depositions taken in connection with a civil lawsuit filed by Ruiz against Respondent, Respondent's employer and the Bank where Respondent worked. It is impossible and unnecessary to resolve all of the conflicts in the differing accounts of the incident as described by Respondent and Ruiz at various times. After considering all of the evidence presented, including the credibility and demeanor of the witnesses, the findings in this Recommended Order are based upon the clear and convincing evidence presented. On February 9, 1993, Respondent was working as an armed security guard at a Barnett Bank in Plantation, Florida. At approximately 1:30 p.m., Respondent was working outside the bank in the vicinity of the drive-thru lanes. He was there to direct traffic and monitor the area. Around this time, Jorge Ruiz pulled into the paved area in front of the drive-thru booths. Ruiz had been to the Bank on numerous occasions in the past and he had often used the drive-thru windows. Ruiz has a very powerful radio in his pick-up truck and he admits that he tends to play music at a loud volume. On at least one prior occasion, Ruiz had proceeded to the drive-thru station with his radio blasting. The tellers had complained about the noise coming through the intercom system. During the week or so prior to February 9, 1993, Ruiz and Respondent had at least one minor confrontation. During this prior instance, Respondent advised Ruiz that he had to turn his radio down before he reached the drive-thru booth because the intercom system picked up the background noise and it interfered with the tellers' ability to communicate with the customers. Ruiz replied that he would turn down the radio when he got to the window. When Ruiz entered the Bank's parking lot on February 9, 1993, his radio was playing loudly. Respondent approached the driver's side window of Ruiz' vehicle and asked Ruiz to turn his radio down. Ruiz responded with a number of obscenities. Respondent told Ruiz that unless he turned his radio down, he could not use the drive-thru facility. Ruiz refused to comply. Respondent stood in front of Ruiz' vehicle and directed him away from the drive-thru lane. Ruiz' vehicle moved forward and bumped into Respondent. Respondent drew his gun and shouted at Ruiz to stop the car and get out. Respondent claims that he intended to hold Ruiz while he called the police. The parties exchanged words and Ruiz' truck again moved forward striking Respondent. Respondent was not knocked down or otherwise injured, however, his gun discharged. The bullet penetrated the windshield of Ruiz' truck and hit the steering wheel. A fragment from the steering wheel struck Ruiz in the neck or chest area, causing a minor wound. Respondent contends that he was justified in drawing his weapon and/or using deadly force "to prevent the escape from custody of a person who committed a felony in his presence." This contention is rejected because there is no evidence that Ruiz was attempting to escape. Furthermore, it is not clear that Ruiz in fact committed a felony, nor does it appear that the use of force was reasonably necessary under the circumstances of this case. Respondent also contends that he was justified in drawing his weapon in self-defense because he was being threatened by a deadly weapon, i.e. Ruiz' truck, and he had no reasonable means of escape. Respondent claims that he was boxed in by a vehicle in front of the truck and had no reasonable way to retreat from the "deadly force" that confronted him. Respondent's contention that he had no reasonable means of escape is rejected as not credible. Contrary to Respondent's claim, the evidence was clear that Respondent had reasonable means of escape. Moreover, there were alternate ways to handle the situation which would have diffused rather than exacerbated the tension and danger. Respondent claims that the gun discharged accidently when the truck hit him. No persuasive evidence was presented to refute this contention. Indeed, in some of his statements, Ruiz admitted that the gun may have gone off by accident when his truck struck Respondent. In sum, it is clear that Ruiz was belligerent and abusive and that his car bumped into Respondent twice. Nonetheless, Respondent's contention that he was justified in drawing his weapon and that he had no reasonable means of escape is rejected. While it can not be concluded from the evidence presented that Respondent deliberately shot at Ruiz, the evidence did establish that Respondent was guilty of negligence, misconduct and/or incompetency when he drew and pointed his loaded weapon at Ruiz. The circumstances did not justify Respondent pointing a loaded weapon at Ruiz. Without question, Respondent failed to demonstrate that level of discretion and caution that is expected of a person licensed to carry a firearm in the course of his employment. After the gun went off, Respondent immediately jumped into the truck and took Ruiz to a nearby hospital where Ruiz' minor injury was treated and he was released.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of State, Division of Licensing enter a Final Order dismissing Counts I, II, and III of the Third Amended Administrative Complaint filed against Respondent and finding Respondent guilty of the allegations contained in Count IV of that Third Amended Administrative Complaint. As a penalty for the violation, Respondent should be fined $1,500.00, his Class "G" Firearms License should be revoked and his Class "D" Security Guard License should be placed on probation for three years. DONE AND ENTERED this 28th day of December, 1994, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2566 Petitioner has not submitted any proposed Findings of Fact. Respondent's proposed recommended order included a section entitled Findings of Fact. However, that section does not include any individually numbered proposed findings of fact and the paragraphs contained in this section of Respondent's proposal include a mixture factual assertions, argument and legal conclusions. The proposal has been fully reviewed and considered. However, because proposed findings of fact have not been separately identified, no rulings are made with respect to Respondent's proposal. COPIES FURNISHED: Henri C. Cawthon Assistant General Counsel Department of State Division of Licensing The Capitol, MS #4 Tallahassee, Florida 32399-0250 James S. Benjamin, Esquire Benjamin & Aaronson, P.A. 100 Northeast Third Avenue, Suite 850 Fort Lauderdale, Florida 33301 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue Whether Petitioner's application for licensure as a Class "D" Security Officer should be denied on the grounds set forth in the Department of State, Division of Licensing's (Department's) March 26, 1992, letter to Petitioner?
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Petitioner is 56 years of age. He has had numerous brushes with the law, many of them alcohol-related, dating back to 1956, but he has never been convicted of a felony. In June of 1956, Petitioner attempted to purchase a beer in Sacramento, California. He was 19 years old at the time and, although in the military, under the legal drinking age. Petitioner was arrested and charged with a misdemeanor violation of California's alcoholic beverage control law. He received a ten-day suspended sentence. In November of 1956, when Petitioner was stationed on a military base in Amarillo, Texas, he and friend, without authorization, went into a room on the base where weapons were stored. They took possession of a .38 calibre firearm and started "playing with it." Petitioner was arrested and charged with the misdemeanor offenses of unlawful entry and wrongful appropriation. He received a bad conduct discharge, which was suspended. After attending a rehabilitation training program, he returned to active military service. In May of 1962, Petitioner was arrested for operating a motor vehicle under the influence of alcohol, a misdemeanor. He was subsequently convicted of the offense. His license was suspended for ten days and he was ordered to pay $25 in court costs. In the early part of 1964, Petitioner, along with several others, charged $700 worth of merchandise in a department store in Indianapolis, Indiana using credit card slips they had forged. Petitioner was arrested and charged with the felony offense of uttering a forged instrument. Adjudication of guilt on this charge was withheld and Petitioner was placed on three years probation. In October of 1968, while in Anderson Indiana, Petitioner was arrested and charged with theft by deception for having written checks in amounts that exceeded the balance of his checking account. The checks were actually written by Petitioner's estranged wife without his knowledge. The charge against Petitioner was dropped after restitution was made. In January of 1969, Petitioner was again arrested in Anderson, Indiana and charged with theft by deception for having written bad checks. These checks were written by Petitioner, but he did not realize at the time he wrote them that, because of his wife's check writing, he had insufficient funds in his account. Adjudication of guilt on this charge was withheld and Petitioner was placed on probation for a year. In February of 1970, Petitioner stayed in a Naples, Florida hotel for approximately three or four days. When he checked out, he did not have enough money to pay his bill. Petitioner was arrested and charged with the misdemeanor offense of defrauding an innkeeper. Less than a week later, Petitioner made restitution and the charge against him was dropped. The following month, while in Miami Beach, Florida, Petitioner was again unable to pay a hotel bill and, as a result, arrested and charged with defrauding an innkeeper. This charge was also dropped after Petitioner made restitution. In May of 1970, Petitioner was arrested and charged with breaking and entering a Naples, Florida restaurant with intent to commit grand larceny. The charge was unfounded and it was subsequently dropped. In January of 1971, Petitioner was driving a motor vehicle in Fort Myers, Florida that had an expired inspection sticker affixed to it. He was stopped by the police and a firearm belonging to a passenger was discovered in the vehicle. Petitioner was arrested and charged with unlawful possession of a firearm and driving a vehicle with an expired inspection sticker. The former charge was dropped. With respect to the latter charge, Petitioner was fined $30 or $35. In October of 1971, Petitioner was arrested in Naples, Florida and charged with writing a worthless check. The check was in the amount of $20 or $25. At the time he wrote the check, Petitioner was unaware that he did not have enough money in his account to cover the check. Petitioner subsequently made restitution and the charge was dropped. In February of 1976, in Lauderhill, Florida, Petitioner was arrested and again charged with writing a worthless check. The amount of this check was less than $50. Petitioner pled guilty to this misdemeanor offense and was fined $10. In addition to paying the fine, Petitioner made restitution. That same month, Petitioner was arrested in Sunrise, Florida and charged with battery on his wife. The charge was unfounded and it was subsequently dropped. In July of 1976, in Fort Lauderdale, Florida, Petitioner was arrested and charged with aggravated assault, assault and battery and petty larceny. All of these charges were unfounded; however, as a matter of convenience and pursuant to a plea agreement, Petitioner pled no contest to the assault and battery charge. Adjudication of guilt on this charge was withheld. Petitioner received a 90-day suspended sentence and a $352 fine, which was also suspended. The remaining charges against Petitioner were dropped. In December of 1977, Petitioner was again arrested in Fort Lauderdale, Florida. On this occasion, he was charged with two counts of writing worthless checks under $50. Petitioner subsequently made restitution and the charges were dropped. In February of 1980, in Jasper, Florida, Petitioner was arrested and charged with driving while intoxicated, speeding, driving without a valid drivers license and refusing to sign a summons. The latter charge was dropped. Petitioner pled guilty to the remaining charges and was adjudicated guilty on these charges by the trial court. For speeding and driving without a valid drivers license, he was fined. For driving while intoxicated, he was also fined and, in addition, his drivers license was suspended and he was ordered to attend DWI school. In May of 1985, in West Palm Beach, Florida, Petitioner was arrested on a Dade County, Florida warrant that had been issued in 1980, when he had been charged with two felony counts of writing worthless checks. The checks had actually been written by Petitioner's daughter. After his arrest, Petitioner made restitution and the charges against him were dropped. In November of 1985, Petitioner was arrested in West Palm Beach, Florida and charged with driving while intoxicated. He pled guilty to this misdemeanor charge. The trial court adjudicated Petitioner guilty and suspended his license for six months and ordered him to attend DWI school. Petitioner has not been in trouble with the law since. He is now a law-abiding citizen, who is better able to control is intake of alcohol. In filling out Section 5 of his application for licensure, which addressed the subject of criminal history, Petitioner did not intentionally make any misrepresentations or omit any required information. It was his understanding that he was required to disclose information relating only to felony convictions in this section of the application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order finding that Petitioner should not be denied licensure as a Class "D" Security Officer on the grounds cited in the Department's March 26, 1992, denial letter. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of August, 1992. STUART M. LERNER 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 18th day of August, 1992.
Findings Of Fact At all times relevant thereto, respondent Santiago Baez, held commercial driving instructor certificate card number 6498 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (Division). Baez who is fifty-eight years old, has been an instructor for at least eight years and was last employed at the Fajardo Driving School in Hialeah, Florida. Acting upon a tip received on July 14, 1986 from an informant that a driving instructor at Fajardo Driving School could obtain fraudulent drivers' licenses, the Florida Department of Law Enforcement (FDLE) undertook an investigation of the Division's driver license examination facility in Hialeah, Florida to ascertain if such licenses were being fraudulently issued by Division personnel. To assist in the investigation, the FDLE employed the services of a paid informant named Orlando Zirio. He was instructed to call "Jorge" at a particular telephone number and attempt to obtain a Florida driver's license. In actuality Jorge was the respondent. After telephoning respondent, Zirio and respondent agreed to meet on August 8 in the parking lot of the La Fonda Restaurant on West 60th Street in Hialeah. The restaurant shared a parking lot with the Division's driver license examination facility. Pursuant to instructions from the FDLE, Zirio told Baez that he was a drug smuggler, that he had lost all identification documents, and that he needed a Florida driver's license with a name different from his own to evade law enforcement officials. Zirio apparently had no luck with respondent that day. A series of meetings between Zirio and Baez took place during the next few weeks with Zirio repeatedly asking Baez to help him procure a driver's license. During such meetings, the FDLE orchestrated all of Zirio's communications with Baez. At some point in their meetings, Zirio told Baez he only had one identification card issued by the City of Key West. When Baez informed Zirio that he must have at least two identification documents to obtain a driver's license, Zirio replied he could not obtain the necessary documents. Zirio was then told to meet one Felix Aravjo who could provide false identification documents. After obtaining a Puerto Rican birth certificate and an American social security card in the name of Orlando Perez from Aravjo, Zirio met again with Baez on August 12 in the restaurant parking lot and handed the two identification documents to Baez. The two then entered the examination facility. With the assistance of a Division license examiner named Peralta, Zirio was issued a driver's license under the name of Orlando Perez. For their services, respondent received $250 and Peralta and Aravjo were each paid $300. Zirio was compensated $500 plus expenses by the FDLE for his undercover activities. Baez was arrested by FDLE agents on August 12, the day the license was issued by Peralta. He was charged with violating Subsection 322.212(2), Florida Statutes, which prohibits certain unlawful acts in relation to a driver's license. After being given a statement of his rights, Baez voluntarily answered in Spanish a series of questions posed by FDLE agents Valdes and Ventura. The interview was tape recorded by Valdes. It was later transcribed into English and reduced to writing by an unknown person. However, Agent Valdes reviewed the transcript and stated it accurately represented the questions asked and answers given during the interview. Baez later pled nolo contendere to criminal charges in September. Adjudication of guilt was withheld by the court. Unlike Peralta and Aravjo, Baez was not incarcerated or placed on probation, but was merely required to cooperate with officials in any further proceedings. Baez desires to continue as a driving instructor since it is the only livelihood that he knows. He has a pending job offer as an instructor if his license is reactivated. He did not deny that he committed the illicit conduct, was arrested and pled nolo contendere but stated that he agreed to help Zirio only after Zirio had made repeated requests for his assistance.
Recommendation Based on the foregoing findings of fact and conclusions of law it is Recommended that respondent be found guilty of violating Rules 15A- 2.09(2)(a) and 15A-2.11(1)(j) Florida Administrative Code, and that his commercial driving instructor certificate card be suspended for one year from date of the emergency suspension. DONE AND ORDERED this 28th day of October, 1986 in Tallahassee Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986.
The Issue Whether Petitioner carried his burden of proving his good moral character and entitlement to a yacht salesperson's license under chapter 326, Florida Statutes.
Findings Of Fact Based on the stipulations of the parties, the oral and documentary evidence, and the record as a whole, the following Findings of Fact are made: Stipulated Facts Respondent is the state agency charged with enforcing chapter 326, the Yacht and Ship Brokers Act, and the administrative rules promulgated thereunder. On June 8, 2016, Petitioner submitted to Respondent an application for a yacht salesperson's license. On Petitioner's application, the application question, number 14, relating to criminal history, was answered "yes." Petitioner failed to attach a complete and signed statement of the charges and facts, together with the dates, names, and location of the court in which the proceedings were held or were pending, as required by the application for the yacht salesperson's license. On October 12, 2012, Petitioner entered a plea of guilty to conspiracy to commit bank and wire fraud, a felony, in the United States District Court, Southern District of Florida, Miami Division, in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was adjudicated guilty of conspiracy to commit bank and wire fraud in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was sentenced to 57 months' incarceration in the custody of the United States Bureau of Prisons in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was sentenced to three years of supervised release following incarceration in case number 1:1220156CR-UNGARO. On October 12, 2012, Petitioner was ordered to pay $6,567,496.00 in restitution in case number 1:1220156CR-UNGARO. On April 22, 2016, Petitioner was released from incarceration and placed under supervised release, set to expire on or about April 21, 2019. Petitioner failed to certify to Respondent that Petitioner has never been convicted of a felony in Petitioner's application for a yacht salesperson's license. Petitioner timely received a copy of Respondent's Notice of Intent to Deny License Application on July 19, 2016. Petitioner completed programs in Residential Drug Abuse Treatment Program, the Wellness Program, and the Community Treatment Services Program at Dollan Mental Health Clinic. Petitioner served his time without issue. Petitioner has been sponsored by a South Florida yacht broker who is going to supervise his activity as a yacht salesman. Facts Adduced at the Hearing Pursuant to chapter 326, Respondent has regulatory jurisdiction over yacht and ship licensees and is responsible for the approval or denial of applications for licensure for yacht salespersons and yacht brokers. Petitioner's younger sister, Beatriz Llorente, who is a practicing real estate and criminal defense attorney, testified. She described Petitioner as a "father figure" to her. She testified that Petitioner's conviction for conspiracy to commit bank fraud "devastated" her, because she felt that her reputation was being questioned.1/ When she drove him to federal prison, Petitioner "asked her for forgiveness." She was familiar with his prison experience. As far as she knew, Petitioner had no disciplinary problems in prison and was awarded maximum gain time. Furthermore, his 57-month sentence was reduced to less than two and one-half years. Despite his incarceration and current probation status, she stated that he is very active with his children and shares a great deal of time with them. He told her, "I will work for the rest of my life to regain your trust." His sister is convinced that Petitioner has overcome his faults, and she emphatically stated he is of good character. On cross-examination, she testified that Petitioner had no drug or alcohol problems when he was growing up, but they arose during the years preceding his conviction. An attorney friend of Petitioner's, Francisco Pines, testified. Pines has known Petitioner since 1988. They attended school together. More recently, their families have interacted and spent time together. They participated together in recreational activities, such as boating and fishing, before Petitioner's incarceration for the federal crime. Since Petitioner was released from prison, Pines has had contact with him three or four times. Pines was also asked about Petitioner's character. In his view, Petitioner knows that what he did was wrong and has made changes to get his life in order. Pines testified that Petitioner is very loving, caring and nurturing with his children. The witness has seen a "change for the better." According to him, Petitioner has always demonstrated a strong work ethic, more so now than before the criminal incident. A licensed mental health counselor, Sandra Rico, was also called by Petitioner. Beginning in 2011, she provided mental health therapy and counseling to Petitioner related to his anxiety due to a crisis in his marriage. She determined that he used and abused alcohol to relieve this anxiety. She treated him on and off until 2013. She also emailed him while he was in federal prison to make sure that he was getting continued treatment for his anxiety and alcohol abuse issues. After he was released from prison, Rico counseled him once a month from July 2016 through the fall of 2016. Her current treatment with him is more in the nature of prevention and maintenance, and to help him develop coping skills. She testified that the therapy he received in prison helped him and that Petitioner changed while in prison. As examples, she cited that he is more involved and willing to do more of her treatment assignments and that he now journals his feelings. Rico related that she is surprised by Petitioner's progress and that she believes he is no longer drinking. He is making better choices and being more careful. She opined that he gathers his thoughts more deliberately now, primarily because he wants to impress his children and reach "goals" he has set for himself. In her opinion, he is of good character now. His treatment with her continues "as needed." Lazaro R. Navarro is the chief executive officer at Florida Yachts International and manages approximately ten sales associates. He has known Petitioner's family for over 15 years. When Petitioner was released from federal prison, the family asked Navarro if he would consider employing Petitioner and sponsoring him. He gave Petitioner a job doing "online marketing," which involved managing leads and performing back office work. Navarro characterized Petitioner as a great asset to his company and trustworthy. He has no doubts about Petitioner and his work habits. Petitioner arrives at work early and is usually the last one to leave. Petitioner has exceeded all of his expectations, and is a very dedicated employee. As the employing yacht broker, Navarro supervises Petitioner and ensures that all of his work is done correctly. Although no details were offered, Navarro testified that Petitioner has accepted full responsibility for his criminal conduct and is a great father. Based upon the financial procedures and protocols used at Navarro's yacht company, he testified that Petitioner would not need to handle or accept any cash as a part of his sales responsibilities. Instead, finances and money exchanges are handled and processed by a closing specialist and the chief financial officer.2/ Navarro commented that he would trust Petitioner with money handling, if that occasion arose. Petitioner offered his own testimony. He received a Florida real estate license in February 2005 and worked for his cousin as a real estate salesperson until 2008. He was indicted for conspiracy to commit bank and wire fraud in March 2012. This federal indictment stemmed from activities in 2006 while he worked as a licensed real estate salesperson. He confirmed that he visited with Rico for mental health counseling related to problems with his wife, as well as anxiety related to the government's criminal investigation of him in 2009. Although his prison sentence did not include mandatory alcohol or drug treatment, he followed the advice of a psychiatrist at the prison and voluntarily enrolled in a residential drug and alcohol abuse treatment program. He also participated in a health and nutrition wellness class for nine weeks. He completed both programs successfully. While in prison, he took several foreign language classes, thinking they would be useful for the yachting business. He also participated in a hazmat (hazardous materials) program outside the prison on a naval base. Apparently, a Navy Admiral retained him for the program. Also, while in prison, he was hired on the naval base to provide cleaning and maintenance services at a dormitory. He was allowed to serve a reduced prison sentence-- 32 months of his 57-month sentence, and he was released six months early to go to a halfway house. While there, he became eligible for home confinement. He was released from home confinement in April 2016. Although he is still under supervised release (probation), he is no longer required to make personal visits and can report to his probation officer remotely through the Internet. He is jointly and severally liable for over $6 million in restitution with the other defendants in his criminal case. It was undisputed that he is current with his restitution payments of $151.00 each month. Petitioner is active in his Catholic Church and gave "his testimony" at a recent church retreat. He characterizes his relationship with his children as being one of honesty and emphasized that it is important to have God in his life. When Respondent called requesting additional information for his application, he promptly provided his federal Termination Report and Certificates of Completion. Pet. Exs. 3, 4, and 5. Petitioner expressed a passion for boating and believes he is good at sales. He wants the yacht salesperson's license, in part, so that he can pay off the criminal restitution more quickly. He claims to no longer act impulsively and believes that his children are the most important thing in his life. On June 8, 2016, Petitioner submitted to Respondent an application for a yacht and ship salesperson's license. On Petitioner's application, he answered question number 14 "Yes," indicating that he had a criminal history.3/ Applicants who answer "Yes" to question number 14 on the application are directed to attach a complete and signed statement of the charges and facts, together with the dates, names, and location of the court in which the proceedings were held or are pending.4/ However, Petitioner failed to submit this statement. When asked about this omission, Petitioner testified, "I turned back for the next one (question), and I didn't bother looking. It shows part of impulsive behavior." Petitioner thought the information request at the bottom of the page he overlooked was simply a part of the next question.5/ Respondent obtained a Florida Department of Law Enforcement criminal background check on Petitioner, which indicated that, on October 12, 2012, Petitioner pled guilty to conspiracy to commit bank and wire fraud. Resp. Ex. 4. Certified court records obtained by the Division indicated that Petitioner was adjudicated guilty of conspiracy to commit bank and wire fraud in violation of 18 U.S.C. § 1349, a felony, and sentenced to 57 months' incarceration in the custody of the United States Bureau of Prisons with three years of supervised release following incarceration. Petitioner was ordered to pay $6,567,496.00 in restitution.6/ Notably, Petitioner's federal "Judgment In A Criminal Case" included Special Conditions of Supervision. This included a "Related Concern Restriction." Petitioner testified that this provision prohibited him from "touch[ing] funds" while under supervised release. His employer at Florida Yacht International wrote a letter, ultimately filed with the probation office, that Petitioner "would not be dealing with any funds." Resp. Ex. 1, pp. 1-7.7/ Petitioner certified on his application that, in February 2005, he was licensed as a real estate sales associate in the state of Florida, having been issued license number SL3111375. Petitioner testified that, in order to become a real estate sales associate, he completed a pre-licensing course; applied with and was approved to take the state licensing exam by the Department of Business and Professional Regulation; and passed the Florida Real Estate Sales Associate Examination. Petitioner stated that, at the time, he was familiar with the laws regulating the profession of real estate contained in chapter 475, Florida Statutes.8/ Petitioner testified that between 2005 and 2008, he worked as a real estate sales associate for Llorente Realty Group, under a supervising broker, Petitioner's cousin. While employed there as a Florida licensed real estate sales associate, Petitioner engaged in an illegal real estate fraud scheme which lead to his 2012 federal criminal conviction. On several occasions, Petitioner provided up to $150,000.00 of his own funds to make seven or eight improper short-term loans of approximately ten to 15 days each. Petitioner made a profit of approximately eight to ten percent per loan.9/ Petitioner testified that these transactions involved buying houses under an individual's name (the straw buyer) and, after closing, executing a quitclaim deed to transfer title of the property to one of the co-conspirators, to whom Petitioner had made the loan. The property was subsequently transferred to the co-conspirator's family trust, leaving the outstanding mortgage in the name of the straw buyer. When the straw buyer failed to pay the outstanding mortgage, the lender would initiate foreclosure proceedings against the straw buyer who was no longer in possession of the property. This fraudulent scheme was carried out against several lending institutions. After the lenders became aware of the scheme, a criminal investigation was initiated. The government characterized his involvement as a breach of his fiduciary duty. In mid-2009, Petitioner was notified that he was under federal investigation for his involvement in the "straw buyer" scheme. After finding out about the investigation, Petitioner began to have relationship problems with his wife and to abuse alcohol. This prompted him to see Rico, a licensed mental health counselor. On March 8, 2012, Petitioner was indicted on eight counts related to the bank fraud scheme. On October 12, 2012, Petitioner entered a plea of guilty and was adjudicated guilty of conspiracy to commit bank and wire fraud, a felony, in the United States District Court, Southern District of Florida, Miami Division, in case number 1:1220156CR-UNGARO. Resp. Ex. 1. Petitioner was incarcerated at Pensacola Prison Camp beginning March 1, 2013. Petitioner earned eight months' "gain time" off of his sentence. Additionally, while incarcerated, Petitioner completed the RDAP, Residential Drug and Alcohol Treatment Program, which qualified Petitioner for a 12-month reduction in his sentence. Due to these reductions and good behavior, Petitioner served only 32 months of his 57-month sentence in federal prison. During his incarceration, Petitioner also completed a nine-week wellness course on various subjects such as nutrition and exercise and worked at Naval Air Station Pensacola, Corry Station Naval Technical Training Center, and the Pensacola Prison Camp. On October 27, 2015, Petitioner was released to a halfway house and shortly thereafter began working for Navarro at Florida Yacht International as a clerk. On November 10, 2015, Petitioner became eligible for home confinement, and, by April 18, 2016, Petitioner completed TDAPT, a transition recovery program. On April 21, 2016, Petitioner was released from custody, and, on April 22, 2016, he was placed under supervised release, currently set to expire on April 21, 2019. Petitioner testified that he has paid $6,000.00 towards the restitution he owes in the amount of $6,567,496.00. As previously mentioned, this restitution is owed with several co- conspirators who are jointly and severally liable with him. Resp. Ex. 1, p. 5. Petitioner testified that he is up to date on required payments pursuant to the order of restitution. Navarro monitors and supervises Petitioner's work and is ultimately responsible for Petitioner under his own yacht broker license. Petitioner is also currently employed as a part- time driver for Uber. In compliance with the Related Concern Restriction of his criminal conviction, Petitioner has not been placed in a position of trust or responsibility over sums of money at Florida Yachts International. Petitioner stated that upon obtaining a job as a clerk with Florida Yachts International, Navarro was required to certify to Petitioner's supervisors through the halfway house that Petitioner "would not be dealing with any funds," pursuant to the "Related Concern Restriction" of Petitioner's Special Conditions of Supervision.10/ Resp. Ex. 1, p. 4; Resp. Ex. 4, p. 51. Following his release from incarceration, Petitioner continues to see Rico for therapy sessions on a monthly basis. Rico provided a letter of recommendation for Petitioner. As mitigation and in an effort to show his good moral character, Petitioner testified that he is not abusing alcohol anymore, has made substantial efforts to reconnect with his children, and has maintained a close relationship with his sister both before and after his incarceration. Licensed yacht salespersons are not restricted and may work under any licensed yacht broker. They may also switch their registered broker if they wish to work for someone else. Additionally, salespersons become eligible to apply for their own yacht and ship broker license after two years as a salesperson. A representative of Respondent, Chelisa Kirkland, testified for Respondent. A yacht salesperson's license is only required for the sale of used or pre-owned vessels in excess of 32 feet. Vessels less than 32 feet and new vessel sales of any size do not require a license. Kirkland confirmed that Petitioner's probation, or court supervision, does not end until April 2019. Applying the statutory and rule criteria, Respondent denied Petitioner's application for a yacht salesperson's license. More specifically, Respondent was concerned about the nature and seriousness of the federal crime, particularly because Petitioner held a professional real estate license at the time the criminal bank fraud offenses were committed. Additionally, as of the date of the application, Petitioner's government supervision and probation had not been completed, and there was a very significant amount of restitution still owed, in excess of $6,000,000.00. Finally, Respondent felt that there had not been a significant passage of time since the conviction in 2012. As a result of the totality of these circumstances, Kirkland recommended that Petitioner's application be denied. She acknowledged that her recommendation was based solely on the conviction for conspiracy to commit bank and wire fraud. She conceded that Florida law does not impose an "automatic" denial just because Petitioner owes restitution, is still under supervision, or was convicted of a federal crime.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes, confirm its previous denial and enter a final order denying Petitioner's application for a yacht salesperson's license. DONE AND ENTERED this 13th day of February, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 13th day of February, 2017.
The Issue The issue for consideration in this case is whether Respondents' Class B, Class D, Class G and Class MB security licenses should be disciplined because of the matters alleged in the Administrative Complaint.
Findings Of Fact At all times pertinent to the issues herein, the Department of State, Division of Licensing, was the state agency responsible for the licensing and regulation of private security guards and guard agencies in Florida. Respondent held a Class B Security Agency license, a Class D Security Officer license, a Class G Statewide Firearm license, and a Class MB Security Agency Manager license, all issued pursuant to and under the restrictions contained within the provisions of Chapter 493, Florida Statutes. Though the Class B Security Agency license was issued in the name of Alert Security Services, in reality, Respondent Maraia was the proprietor and operator of the agency under the license. Peter F. Walker was employed as the assistant manager of the 7 - 11 convenience store in Indian Shores, Florida on July 21, 1993. About 11:30 PM, that evening, he observed Respondent in the store about 8 to 20 feet away, wearing his security guard uniform shirt with khaki shorts. A patch on the shoulder of the shirt bore the logo, "Alert Security." As another customer was checking out, Mr. Walker heard a gunshot and then something hitting the floor. At this point, only Mr. Walker, his customer, and the Respondent were in the store. When Walker asked the Respondent about it, Respondent replied that a customer had come up behind him and was trying to take Respondent's weapon from the holster he had stuck in the waistband in the back of his shorts. Respondent claimed that when this happened, the clip from the weapon fell to the floor and one round in the clip went off. Later on, however, Respondent claimed the weapon had dropped and fired when it hit the floor. As Mr. Walker remembers it, however, he heard the shot before anything hit the floor. Patrolman Angela Cole had just pulled into the 7 - 11 parking lot late on the evening of July 21, 1993 when she heard a pop - as if someone had run over a bottle. She checked around the area and seeing nothing unusual, went into the store where she saw the clerk and the Respondent, whom she knew. Respondent was wearing a security badge and carrying a 9 mm weapon in plain view. When Cole spoke with Respondent and asked him why he wasn't in proper security guard uniform, because his dress that evening was not consistent with his usual security uniform, he indicated he was not feeling well. In response to her inquiry regarding the noise she had heard, and why he had the weapon in plain view, Respondent claimed he had dropped his weapon and he and the clerk were joking about it. At this point, however, Respondent seemed nervous and didn't want to discuss the matter further. Also about the same time, Patrolman Vance Nussbaum, of the Indian Shores Police Department entered the store to see Respondent, who had his 9 mm weapon in plain view and was wearing a security badge, engaged in conversation with the store clerk. The pistol was in a holster tucked into Respondent's pants in the back. Nussbaum took hold of the gun and shook it and then chastened Respondent for poor gun safety. At that point, Respondent indicated someone had just hit the magazine release on the weapon and the magazine fell to the floor. That individual was no longer in the area, however. Taken together, it is clear that on the evening in question, Respondent's 9 mm pistol, which was in his possession at the time, was somehow discharged. No report of this weapon discharge was ever filed with the Division, however. On May 23, 1993, Officer Nussbaum responded to a call to the Holiday Villas II in Indian Shores. Upon his arrival at the scene, he saw June Hawks, who he knew to be a part-time security guard employed by Respondent, on duty in the resort's parking lot after a fire alarm had been sounded. This same activity was also observed, the following day, by E. D. Williams, Chief of the Indian Shores Police Department who presumed Ms. Hawks was working for Respondent. Chief Williams drew this conclusion because he had seen Respondent doing this work at the resort the night before and assumed the same firm was still in charge. On August 2, 1993, Officer Nussbaum responded to a call to a Pick-Kwick in Madiera Beach based on a call about a drunk individual which call had come in to the Pinellas County Sheriff's Office from an individual who described himself as Chris "Myers", a reserve police officer with the Indian Shores Police Department. It is found that Chris "Myers" is, in actuality, the Respondent, Christopher Maraia, who had represented himself as a reserve police officer. This call was sent out to street units for response, thereby impacting on police operations in the area. When Nussbaum arrived at the scene, he observed Respondent, fully dressed in the uniform of a security guard, with patches, badge and weapon, in the company of a Madiera Beach Police Officer. At one time, Respondent had been a reserve officer with the Indian Shores Police Department but that status had terminated in December 1992. Keith Stillwagen had been employed by Mr. Maraia, off and on, for several years, but worked for him primarily as a security guard at the 34th Street Food Lion market in St. Petersburg between January and March, 1993. He was hired by Mr. Maraia personally, and the identification card Maraia issued to him bore Maraia's signature and license number. This employment was not reported to the Division as required. These allegations were investigated by Gary Floyd, an investigator with the Department of State, who initially interviewed Respondent regarding the alleged hiring of Ms. Hawks and Mr. Stillwagen. In a sworn statement to the investigator, Respondent indicated Alert Security Services had hired Stillwagen on weekends from January to March, 1993, and had also employed Hawks on holidays between April and June, 1993. He admitted that the firm did not notify the Department of State about the hirings and could give "no good reason" for failing to do so as required. In another sworn statement given to Investigator Floyd, Respondent indicated he had worked at Holiday Villas II on July 21, 1993 and had, while out of uniform but wearing a badge on his belt, visited a nearby 7 - 11 store. He admitted that at the time he had a 9 mm pistol with him and it had accidentally discharged when he dropped it. Respondent denied anyone had grabbed for the weapon. He did not report the discharge. On August 9, 1993, Floyd took a third statement from Respondent in which he admitted making the call about the drunk and initially indicating he was a reserve police officer with the Indian Shores Police Department. He acknowledged this was not a true statement in that he had not held that status for a year and a half at the time. The following day, August 10, 1993, Respondent reiterated his statement to Floyd that he had been at the 7 - 11 when leaving a duty station and claimed he was not in uniform at the time. While he may not have been in full uniform, other credible evidence of record indicates he was dressed in a uniform shirt which bore the patch of his security guard; was displaying a security officer's badge; and was armed. 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 issued in this case, dismissing Counts II and IV of the Administrative Complaint, but finding Respondent, Maraia, guilty of Counts III, V and VI thereof and Respondent, Alert Security Services, guilty of Count I. It is also recommended that the Class "D", "G", and "MB" security licenses held by Respondents, Christopher J. Maraia, Sr. be revoked; that the C lass "B" license held by Respondent, Alert Security Services, be suspended for one year; and that Respondents jointly and severally pay an administrative fine of $500.00. RECOMMENDED this 31st day of March, 1994, 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 31st day of March, 1994. COPIES FURNISHED: Richard R. Whidden, Jr., Esquire Assistant General Counsel Department of State Division of Licensing The Capitol, Mail Stop 4 Tallahassee, Florida 32399-0250 Christopher J. Maraia, Sr. Alert Security Services 15518 Redington Drive, Redington Beach, Florida 33708 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250 Phyllis Slater General Counsel Department of State The Capitol Plaza Level 02 Tallahassee, Florida 32399-0250
The Issue The issue is whether Respondent's Correctional Certificate No. 164605 should be disciplined for the reasons set forth in the Administrative Complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary proceeding, Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), seeks to discipline Correctional Certificate No. 164605 held by Respondent, Eric T. Jenkins, on the grounds that in December 1998 he was in possession of more than 20 grams of cannabis, a controlled substance, and he illegally carried contraband (cannibis) onto the grounds of Florida State Prison (FSP) while employed at FSP as a correctional officer. In his request for a hearing, Respondent denied the allegations. Periodically, and without notice, the Department of Corrections (DOC) sends a small contraband interdiction team (team) to various state correctional institutions for the purpose of intercepting contraband that may be covertly brought into the facility by DOC employees or inmate visitors. The team consists of a small number of specially trained DOC employees, including K9 units, and a volunteer Florida Highway Patrol trooper, who assists the team in making arrests. On Sunday, December 20, 1998, a team targeted FSP and arrived on the premises around 5:00 a.m. The inspection lasted until shortly after the last shift of employees reported to work around 4:00 p.m. Besides patting down employees and visitors, the team also searched the vehicles of employees that were parked in the employees' parking lot inside the prison. Respondent worked the last shift that day and arrived shortly before 4:00 p.m. He was driving an Isuzu Amigo with Florida vehicle tag "WSM 82B." To assist the team in its search, the team used several specially trained dogs (Blue, Smokey, and Thor) who were assigned the task of sniffing parked vehicles for narcotic odors. When a dog recognizes a narcotic odor, it "alerts" or responds to the odor and remains passively in front of the vehicle. After Blue "alerted" at the rear of Respondent's vehicle, a second dog, Thor, was brought to the vehicle and he also responded in the same manner. Respondent was then notified that the team wished to search his vehicle, and he executed a written Consent to Search form ageeing to a search. A search conducted by a DOC officer discovered a latex glove hidden under the front passenger seat of Respondent's vehicle. Inside the glove were two compressed baggies containing approximately 55 grams of a substance that appeared to be cannibis. Laboratory testing by a state chemist confirmed that the substance was indeed cannabis, and that it weighed 51.5 grams. Although the street value of the drugs was only around $275.00, in a prison environment, the drugs had a far greater value. Respondent initially agreed to be interviewed by a Florida Highway Patrol trooper at the prison regarding the contraband. He subsequently had a change of heart and declined to answer any questions. Respondent was then arrested for "drug offenses," booked into the Bradford County Jail, and charged with violating Sections 893.13 and 944.47(1)(a)4., Florida Statutes (1997). However, the disposition of the criminal matter is unknown. In any event, after being arrested, Respondent was immediately terminated from his position at FSP. In mitigation, Respondent has been certified as a correctional officer since June 26, 1996, and there is no evidence that prior disciplinary action has been taken against him. In aggravation, Respondent used his official authority to facilitate his misconduct; he was employed as a correctional guard when the misconduct occurred; Respondent has made no efforts of rehabilitation; Respondent stood to receive pecuniary gain by selling the contraband in the prison; and there are two established counts of violations of the statute requiring that correctional officers maintain good moral character.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order determining that Respondent has failed to maintain good moral character, as charged in the Administrative Complaint, and that his Correctional Certificate No. 164605 be revoked. DONE AND ENTERED this 29th of June, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2000. COPIES FURNISHED: A. Leon Lowrey, Jr., Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Karen D. Simmons, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Eric T. Jenkins 1000 Bert Road Jacksonville, Florida 32211
The Issue Whether Respondent committed the violation alleged in the Administrative Complaint. If so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, the holder of a Class "D" security guard license (license number D94-13786). He has been licensed since November 16, 1994. From April 3, 1996, through and including November 24, 1996, Respondent was employed as security guard by Delta Force Security (Delta), a business which provides security services. Ermelindo Onativia is now, and was at all times material to the instant case, the owner and manager of Delta. Among Delta's clients during the period of Respondent's employment was Motor World, an automobile dealership in Plantation, Florida. On the weekend of November 23 and 24, 1996, Respondent's assignment was to provide security services at Motor World. His shift was to begin at 7:00 p.m. on Saturday, November 23, 1996, and end at 5:00 a.m. on Sunday, November 24, 1996. Onativia met Respondent at Motor World at the beginning of Respondent's shift on November 23, 1996, and reminded Respondent to "punch the time clock" when he made his rounds at the dealership. After conversing with Respondent, Onativia left the dealership. Onativia returned to Motor World at 2:00 a.m. on November 24, 1996, to check on Respondent. Respondent, however, was not there. He had left his assigned post without obtaining Onativia's permission to do so. Onativia remained at the dealership until 5:00 a.m. At no time during the period that he was at the dealership did he see or hear from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Respondent guilty of the violation of Section 493.6118(1)(f), Florida Statutes, alleged in the Administrative Complaint and disciplining him therefor by fining him in the amount of $1,000.00 and placing him on probation for a period of one year, subject to such conditions as the Department may specify. DONE AND ENTERED this 18th day of February, 1998, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1998.
