Findings Of Fact Before 1989, the Petitioner, Gregory Miller, was a community control counselor (in effect, a juvenile probation officer) working for HRS. After several years of satisfactory job performance, his employment was terminated for unsatisfactory job performance in 1989. The Petitioner believes his termination by HRS was unfair. On January 30, 1991, the Petitioner, Gregory Miller, pled nolo contendere to attempted arson in violation of Section Section 806.01, Fla. Stat. (1991). Adjudication was withheld, and the Petitioner was placed on probation for two years. The attempted arson charge arose at a time in October, 1990, when the Petitioner, who has a 20-year history of substance abuse and suffers from bipolar disorder and borderline personality disorder, decompensated under financial and other stress and attempted to burn his automobile in order to fraudulently obtain property and casualty insurance benefits. At the time of the arson attempt, his car was parked in the garage, and a tenant was residing in the garage apartment overhead. The tenant noticed the fire started by the Petitioner, put it out and reported it to the Petitioner. The Petitioner berated him for putting the fire out and told him to get his personal belongings out of the garage apartment and leave. While the tenant was in the garage apartment gathering his belongings, the Petitioner was attempting to restart the fire. The tenant had been a worker's compensation client of the Petitioner. The Petitioner continued to have mental and emotional and substance problems that led to additional criminal charges. On February 13, 1991, he was arrested and charged with battery of a law enforcement officer, a third degree felony. On October 3, 1991, the Petitioner pled guilty to the lesser included offense of resisting arrest without violence, a misdemeanor, and was sentenced to seven days time served in jail. On or about December 22, 1991, the Petitioner overdosed on a mixture of drugs and alcohol in a possible suicide attempt. When confronted with law enforcement officers, the Petitioner struck the officers and was arrested and charged with battery of a law enforcement officer, a third degree felony. The Petitioner was involuntarily committed under the Baker Act, and on September 21, 1992, he pled nolo contendere to simple battery, a first degree misdemeanor, and was sentenced to one day time served in jail and ordered to pay $200 in fine and court costs. As a result of his other criminal charges, the Petitioner was charged with violation of his probation on the attempted arson charge. On or about March 16, 1992, the Petitioner pled guilty to violation of probation. Adjudication on the violation of probation was withheld, but probation was revoked, and he was resentenced under the attempted arson charge to a year of community control, followed by a year of probation. On or about March 8, 1992, the Petitioner was charged with driving with his license suspended or revoked for failure to maintain required insurance coverage. Since 1992, the Petitioner has not been involved in any additional criminal activity or charges. On February 23, 1993, his community control was converted to probation. He moved to Pasco County and, on December 22, 1993, his probation was terminated early. The Petitioner has sought professional counseling. On or about March 22, 1993, he was referred to a vocational rehabilitation counselor with the Department of Labor and Employment Security, Division of Vocational Rehabilitation. Since approximately early 1994, he also has been under the care of a psychiatrist. With the help of counseling, the Petitioner has been sober since before August, 1993. Fortunately, therapy seems to have been successful. Except for two short hospitalizations for decompensation and medication adjustment early in his counseling, the Petitioner has been sober and mentally stable over the course of the last three years. From a mental health standpoint, the Petitioner no longer seemed to be a danger to himself or others, and he was making good progress in rehabilitating himself. On or about May 18, 1995, the Petitioner sought employment with Action Youth Care, a provider on contract with HRS. When he applied for the job, he was required to complete an Affidavit of Good Moral Character that swore, in pertinent part, that he had "not been found guilty of, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Section 806.01 [Florida Statutes, arson]." The affidavit also required the Petitioner to "acknowledge the existence of any criminal . . . record regardless of whether [he] was adjudged guilty by the court and regardless of whether or not those records have been sealed or expunged." The Petitioner signed without acknowledging his attempted arson record. When his name was screened, the attempted arson record disqualified him from employment, and the Petitioner was terminated from his employment pending his request for an exemption. Despite the Petitioner's commendable progress in rehabilitating himself, there still are signs that some instability persists. He does not seem to appreciate the seriousness of his criminal record and history of substance abuse and mental illness, as they relate to HRS's statutory obligation to properly assess his moral character under Section 409.175, Fla. Stat. (1995). Instead, he blames HRS's actions on a "political" conspiracy to prevent him from obtaining employment. Similarly, he attempts to excuse his criminal record by blaming it all on HRS--the termination of his employment in 1989 allegedly was the sole cause of his decompensation and the resulting criminal offenses. His excuse for falsifying his Affidavit of Good Moral Character was that it was reasonable not to disclose the arson record because it was only attempted arson, not arson. He does not seem to appreciate that there is little or no difference in blameworthiness between the two. (The only real difference between the two is how soon the fire goes out or is put out.) Finally, the Employee Closing Summary produced by Action Health Care upon termination of the Petitioner's employment stated that Action would not re-hire the Petitioner and that the Petitioner's "weak areas" included: "poor rapport with team"; "would not accept authority"; and "documentation skills." (No "strengths" were noted on the form.) The Petitioner again blamed HRS, contending that the person who completed the form was lying to cooperate with HRS's conspiracy against the Petitioner. It is found that the evidence, taken as a whole, was not clear and convincing proof of rehabilitation and good moral character at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioner's request for an exemption from disqualification. DONE and ENTERED this 21st day of August, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 21st day of August, 1996.
The Issue Whether Petitioner, Levita Parker, was subject to a discriminatory practice by Respondent, Orange County Public Schools (Orange County), in violation of the sections 760.10 and 112.3187, Florida Statutes1/; and, if so, what remedy is appropriate.
Findings Of Fact Petitioner is a female, who, at all times relevant to the discrimination allegation was (and is currently) employed by the Orange County Public Schools. Petitioner has been employed by Orange County for approximately 18 years. She is under contract as a “classroom teacher,” however she has been working as a behavioral specialist for the last 11 years. Petitioner is certified to teach Exceptional Student Education (ESE), Business Education and Education Leadership. Petitioner, along with the school principal and others, attended a “brain storming meeting” on October 5, 2016.4/ During that meeting, options were discussed on how to address the August 2016 resignation and departure of an ESE teacher. Many options were discussed, and later the assistant principal sent Petitioner an email directing her to assume responsibility for two classes on the following Monday. Petitioner refused to teach the two classes. In November 2016, Petitioner was presented with a “Directive.” In part, the directive provides: Under certain circumstances it becomes necessary to provide written clarification or guidance regarding the expectations of the district. Such letters are referred to as directives, and are not disciplinary in nature. (Emphasis added). Petitioner did not lose any pay for her failure to teach the two classes. For school years 2015-2016 and 2016-2017, Petitioner received “effective” or “highly effective” evaluations. Petitioner failed to identify the alleged protective whistleblowing action in which she participated. Petitioner failed to identify a causal connection between whatever the alleged protected activity was and the alleged adverse employment action. Petitioner failed to present any credible evidence that Respondent discriminated against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner. DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 31st day of July, 2017.
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint filed against the Respondent are true, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the responsibility for certification of correctional officers within the State of Florida. Respondent holds Correctional Certificate No. 200857, issued to her by Petitioner. Shortly after 2:00 a.m., on January 8, 2005, Corporal Andrew Markham of the City of Sebring Police Department was dispatched to the scene of a reported traffic crash at the intersection of Center Street and Northeast Lakeview Drive in Sebring, Florida. Corporal Markham found no vehicles in the intersection or any evidence of a crash there. Adjacent to the intersection, in the parking lot of the Sebring Public Library, Corporal Markham saw a car with its brake lights illuminated. He approached the car to determine whether the occupants could provide any information about the reported traffic accident. Corporal Markham observed that the front of the car was damaged from its collision with a low barrier wall that bordered the parking lot. The windshield was also damaged from what Corporal Markham concluded was the impact of the occupants' heads with the windshield when the car hit the barrier. When Corporal Markham approached the car, he saw Respondent exit the driver's seat and begin to walk away. Corporal Markham stopped Respondent to speak with her. Respondent had blood on her face, as did the other occupant of the car. At the time of the incident, Respondent denied being the driver of the car. At the hearing, Respondent admitted that she was the driver. During his conversation with Respondent at the scene, Corporal Markham smelled the odor of alcohol on Respondent, noted that she was unsteady, and that her eyes were red. When Corporal Markham asked Respondent to take field sobriety tests, she continued to insist that she was not the driver of the car and would not take the tests. Based on his observations at the scene, his training, and his 13 years of experience as a police officer, Corporal Markham believed Respondent was under the influence of alcoholic beverages to the extent that her normal faculties were impaired. Therefore, he arrested Respondent for the offense of driving under the influence of alcohol. Corporal Markham first transported Respondent to the Highlands County Medical Center to receive treatment for her injury. At the Medical Center, Respondent refused medical treatment, and Corporal Markham transported her to the Highlands County Jail. At the jail, Respondent was taken to the area where breath tests are conducted. Corporal Markham read Respondent the "Implied Consent" that informed her that if she refused to take the test, she could lose her driving privilege for up to one year. Respondent refused to take a breath test at the jail. Deputy Loran Danielson of the Highlands County Sheriff's Office was the officer on duty to conduct the breath tests at the jail. When Deputy Danielson met Respondent, he noted that her breath smelled strongly of alcohol, her eyes were bloodshot, her speech was slurred, and she was unsteady on her feet. Based on his observations of Respondent, his training, and his 10 years of experience as a Deputy Sheriff, Deputy Danielson was of the opinion that Respondent was under the influence of alcoholic beverages to the extent that her normal faculties were impaired. During the time that Deputy Danielson talked to Respondent, she told him that she had consumed "many" drinks, and if she took the breath test, it would show "I'm drunk." On September 27, 2004, less than four months before the incident at issue in this case, Petitioner issued Respondent a Letter of Acknowledgement for an earlier driving under the influence (DUI) violation by Respondent. At the hearing, Respondent admitted that she had "a few drinks" with friends at a bar just prior to her arrest, but she denied that she was intoxicated. Respondent said the crash occurred because she had taken her eyes off the road to speak to passengers in the back seat. Respondent said she refused to take the field sobriety tests or the breath test at the jail because she was scared. Respondent explained that one term of her probation for the prior DUI conviction was that she was not to drink alcohol. Respondent expressed remorse for her behavior on January 8, 2005, and claimed she has stopped drinking alcohol. Respondent stated that her career as a correctional officer is very important to her, and she requested another opportunity to prove she is a responsible person and capable correctional officer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner Department of Law Enforcement, Criminal Justice Standards and Training Commission, enter a final order finding that Respondent Tena D. Grant failed to demonstrate good moral character as required by Subsection 943.13(7), Florida Statutes, and ordering that her certification as a correctional officer be revoked. DONE AND ENTERED this 4th day of April, 2006, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2006.
The Issue The issue presented is whether Petitioner's application for licensure as a real estate sales associate should be granted.
Findings Of Fact Petitioner Martha L. Socarras is a Hispanic female born in 1970. In March 2006 Petitioner filed with the Department of Business and Professional Regulation, Division of Real Estate, an application for licensure as a real estate sales associate. On that application, she answered in the affirmative question numbered 1 in the Background Information portion of the application. That question asked if she had ever been convicted of a crime, found guilty, or entered a plea of guilty. In support of her application she submitted a certified copy of the Judgment in a Criminal Case entered by the United States District Court for the Southern District of Florida on December 8, 1999. That Judgment recites that Petitioner pled guilty to one count of conspiracy to file false claims against Health and Human Services, mail fraud, and paying kickbacks. Counts 2 through 27 were dismissed by the prosecution. Petitioner was sentenced to two years in prison followed by three years of supervised probation. The Judgment also recites that the actual monetary loss was $700,000 and assessed the total amount of restitution to be paid by Petitioner as $1,114,676.04. The Judgment then provides that the amount of restitution was reduced to partial restitution in the amount of $500,000 due to Petitioner's inability to pay the full amount. The Judgment further provides that restitution to the Palmetto Government Benefits Administration was to be paid through the federal court. Petitioner was released from the Federal Correctional Institution in Danbury, Connecticut, on January 4, 2002, but was detained by the United States Immigration & Naturalization Service. At the time of her release, she still owed $499,500 in restitution. In March 2002 an Immigration Judge granted Petitioner permanent resident status at the conclusion of the immigration removal proceeding. On January 3, 2005, Petitioner completed her probation and was discharged from supervision. Petitioner filed her application for licensure only a year later. Petitioner also provided to the Department of Business and Professional Regulation an unexecuted consent agreement between herself and the federal government providing that she would pay the $500,000 in restitution at the rate of $200 per month commencing February 1, 2005. Petitioner attributes her criminal conduct to ignorance of the Medicare laws. She was employed for three years by her brother's medical equipment business. Although Medicare performed several audits of that business during Petitioner's employment there, the last audit revealed that Petitioner and her brother were paying "commissions" to persons for referring patients to her brother's business. Petitioner asserts that she did not know that what they were doing was illegal. At the final hearing Petitioner testified that she had offered to the federal government property she owns which is sufficient in value to pay the required restitution but did not know if the federal government would accept her offer. The several letters of recommendation which Petitioner submitted to the Department are from persons who have known her as long as 18 years. None appear to know about her criminal conviction or to have noticed that she was missing for two years. One alleges the author has known Petitioner for five years, which must mean she met Petitioner while Petitioner was in prison. Similarly, the persons who testified on her behalf at the final hearing did not appear to know that she had a conviction or that she was in prison for two years. One witness testified she has known Petitioner for ten years and that she saw Petitioner three or four times a week. Another witness testified both that he has had no business dealings with Petitioner and that he transacts business with her. As evidence of rehabilitation, Petitioner offered evidence that she is a very religious person and active in ministry. However, that aspect of her life appears to have pre- existed her criminal conduct, existed during her criminal conduct, and continues to exist. It, therefore, fails to prove rehabilitation. Petitioner offered no evidence concerning her employment since her release from prison. Her witnesses offered vague testimony indicating she works in the title insurance industry, but no evidence was offered as to her role therein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 13th day of November, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th of November, 2006. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Daniel Villazon, Esquire Daniel Villazon, P.A. 1020 Verona Street Kissimmee, Florida 34741 Michael E. Murphy, Director Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is whether Respondent should be terminated from employment with the school district.
Findings Of Fact On January 4, 1994, Respondent completed an applicant security check form for employment with the Petitioner. The form specified a series of questions related to past or pending criminal charges to which Respondent was to check either a "yes" box or a "no" box. On each occasion, Respondent checked the "no" box. At the conclusion of the form is a certification as follows: I certify that the above responses are true, complete, and correct to the best of my knowledge and are made in good faith. I understand that any incompleteness or false information on this form may be just cause for a rejection of my application for employment or dismissal in the event I am employed by the School Board of Palm Beach County. Respondent did not disclose that in 1987 she was charged with aggravated assault and possession of a weapon. As a result of the charges, Respondent was sentenced to one year probation, required to pay a fine and court costs, and fifty hours of community service. When Mr. Lachance learned of the results of the background search (which differed from Respondent's application), he met with Respondent who admitted the criminal charges but who alleged that she had believed them to be resolved. The recommendation was then made to the Board to terminate Respondent's employment as a bus driver.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That School Board of Palm Beach County, Florida enter a final order dismissing the Respondent from her employment with the school district in accordance with the Board action of April 7, 1995. DONE AND ENTERED this 12th day of January, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2884 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 5 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Lee M. Rosenberg, Esq. School District of Palm Beach County Office of the General Counsel 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406 Ms. Tina King 5030 Elcharo North West Palm Beach, Florida 33415 Dr. Bernard Shulman Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue Whether Petitioner's application for licensure as a general lines agent should be granted.
Findings Of Fact By application dated July 12, 2002, Ms. Baskinger applied to the Department for a license as a general lines agent. On the application, Ms. Baskinger answered affirmatively to the following question: Have you ever been charged, convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? On December 27, 2000, a one-count information was filed in the Circuit Court of the Twentieth Judicial Circuit In and For Charlotte County, State of Florida, charging Ms. Baskinger with welfare fraud in violation of Section 414.39, Florida Statutes, a third degree felony. On June 27, 2001, Ms. Baskinger entered a plea of guilty to the crime. Adjudication of guilt was withheld and Ms. Baskinger was placed on probation for a period of four years and ordered to pay restitution in the amount of $4,869.14. Ms. Baskinger was also required to perform 75 hours of community service. Ms. Baskinger made full restitution, and an Order Terminating Probation was entered on July 3, 2002. On July 12, 2002, Ms. Baskinger applied for licensure as a general lines agent. The Department denied her application for licensure by letter dated August 22, 2002, stating that the application was denied on the basis of Subsections 626.611(1), (7), (14), 626.621(8), and 626.731(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying the application of Teresa M. Baskinger for licensure as a general lines agent. DONE AND ENTERED this 4th day of March, 2003, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2003. COPIES FURNISHED: Teresa M. Baskinger 4461 Ewing Circle Port Charlotte, Florida 33948 Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the grounds set forth in Respondent's Notice of Intent to Deny.
Findings Of Fact The "Key for License Denials," attached hereto as Exhibit "A," is hereby adopted and incorporated by reference as the Key to the Commission's Findings of Fact in this case. Pursuant to the Key for License Denials, the Commission finds the following facts in this case, to wit: 2,4,5
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order announcing its intention to continue to process Petitioner's application for licensure as a real estate sales associate rather than denying the application on the grounds stated in its December 28, 2011, Notice of Intent to Deny. DONE AND ENTERED this 12th day of April, 2012, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2012.
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Terrell Laverne Solomon, is now, and was at all times material hereto, a licensed real estate salesperson in the State of Florida, having been issued license number SL- 0653405. On or about June 16, 1997, Respondent filed an application (dated June 10, 1997) with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" (by checking the appropriate box) to the following question: 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? This question applies to any violation 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 withheld, 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, or applicable law of another state, you are responsible for verifying the expungement 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 the question by checking the box marked "Yes," and attached a handwritten note which revealed the following details: I pleaded guilty for drug possession and carrying a concealed weapon. However, I don't know the exact date, but it been [sic] 10 to 15 years ago. I also have a conviction for driving under the influence in [19]84. The application concluded with Respondent's acknowledgement before a Notary Public of the State of Florida as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. On July 28, 1997, Respondent passed the salesperson examination and was issued license number SL-0653405 as an inactive salesperson. From September 17, 1997, through the date of hearing, Respondent has been licensed as an active salesperson associated with Anita Berger Realty, Inc., a broker corporation located at 21414 West Dixie Highway, North Miami Beach, Florida. Following approval of Respondent's application, and his licensure as a real estate salesperson, the Department received the results of a state and federal records search which revealed a criminal history that included charges not disclosed on Respondent's application. That records search revealed the following criminal history in the Circuit and County Courts, Eleventh Judicial Circuit, Dade County, Florida (where Respondent was "convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld"): 2/ On April 8, 1978, Respondent was arrested and charged in Case No. M78-56023 with misdemeanor Battery, Resisting an Officer Without Violence, and Disorderly Conduct; and on August 19, 1981, was convicted of each charge and sentenced to a term of probation with special conditions. On September 17, 1979, Case No. 79- 12245, Respondent, upon entry of a plea of guilty, was found guilty of Shooting into an Occupied Dwelling; however, the court withheld an adjudication of guilt. (c) On June 17, 1985, Case No. 85-8549, Respondent, upon entry of a plea of guilty, was adjudicated guilty of Leaving the Scene of an Accident Involving Personal Injury (Count I), a third degree felony proscribed by Section 316.027, Florida Statutes, and Possession of a Controlled Substance, to- wit: Heroin (Count 2), a third degree felony proscribed by Section 893.13, Florida Statutes; however, the court stayed and withheld the imposition of sentence as to each count and placed Respondent on probation for a period of 4 years under the supervision of the Department of Corrections. Respondent's probation was subsequently revoked and on April 18, 1989, and he was committed to the custody of the Sheriff of Dade County, Florida, to be imprisoned for a term of 24 days, with credit for time served. On December 30, 1989, Case No. 89- 50035, Respondent was arrested and charged with carrying a concealed firearm, and on December 31, 1989, was convicted and sentenced (the specifics of which are not of record). As heretofore noted, Respondent's application did reveal that he had entered a plea of "guilty for drug possession" (ostensibly the June 17, 1985, conviction) and "carrying a concealed weapon" (ostensibly the December 30, 1989, conviction). The remaining criminal history was not disclosed. Upon discovery of such information, the Department apprised Respondent of its discovery and requested an explanation. Respondent addressed the Department's concerns as follows: In regard with Section 455.225(1), Florida Statutes. I answer [sic] Question 9 on my application truthfully and to best of my ability. It was never my intention to violate Section 455.225 and 475.21, Florida Statutes. I enclose[d] a letter from Metro- Dade Police Department [with my application which] stated that I have felony arrest and misdemeanor arrest. At the time I was being finger printed for DBPR, I ask [sic] the finger printing officer can I have a copy of my convictions and was denied. I also enclosed a hand written letter statement, all the conviction I can remember, and that's why I check [sic] Question 9 Yes. I'm not proud of my past life, but I work hard to obtain my real estate license and wouldn't do anything to jeodarize [sic] my license. I just didn't remember my past convictions, that's why I answer [sic] question nine Yes. (Emphasis in original.) Thereafter, on October 26, 1999, the Department issued the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid incidents on his application, charged that Respondent has "obtained a license by means of fraud, misrepresentation, or concealment" in violation of Section 475.25(1)(m), Florida Statutes (Count I), and that Respondent has "failed to disclose in his application for a real estate salesperson [license] information that Rule 61J2-2.027(2), Florida Administrative Code, requires" and therefore, violated Section 475.25(1)(e), Florida Statutes (Count II). According to the complaint, the disciplinary action sought for such violations was stated to be as follows: . . . [T]he penalty for each count or separate offense may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. 3/ Consistent with the explanation he offered the Department for his failure to fully disclose his criminal history, Respondent explained, at hearing, that his response to item 9 on the application was, at the time, an accurate reflection of his recollection, and that it was not his intention to mislead the Department by failing to disclose the matters he overlooked. Specifically, the Respondent offered the following explanation at hearing: THE COURT: Why didn't you disclose your 1978 and 1979 problems with the disorderly conduct and battery and the discharging the firearm? THE WITNESS: There's no reason. When I went to get the fingerprint card done, I asked the officer, can I get a print out of my convictions and my felony record, and he told me that he didn't do that and I didn't know that I had to take it a step further. I only checked Question 9, yes, to show that I did have criminal past and I didn't know that I had to take it a step further than that. If I would have known that, I would have took the opportunity to go do that. But I didn't know that I had to check the question and to present that for the application. THE COURT: What the question asked you, if you answered, yes, then attach the details, the dates and the outcome. THE WITNESS: Yes, that's true and I know I should have done it. But I asked them to give me -- I couldn't put it on nobody but myself. I should have taken it a step further. To get the convictions. I wasn't trying to hide anything from the Department. * * * CROSS-EXAMINATION BY MS. MARSH: Q Mr. Solomon, looking at your 1978 charge with the battery, resisting the officer and disorderly conduct and the 1979 charge with the shooting in the occupied dwelling . . . were you considering that if you disclosed those to the commission, that they would deny you a licensure? A No, that's why I checked the question, yes. I don't know how you look at it, but if I wanted to tell the truth about it, I would have checked, no, to the felony arrest. * * * Q Did you believe the Department would find all of your prior criminal cases? A Yes. I knew that they would find it but I didn't know that it would lead to this here, because I did check the question, yes. I didn't know it would lead to this, I would have taken that extra day and not taken the test and gotten the background check. (Transcript, pages 24-27). Here, Respondent's explanation for his failure to disclose the full scope of his criminal history is credited, and it is resolved that, at the time he submitted his application, Respondent did not intend to mislead or deceive the Department. In so concluding, it is observed that Respondent's testimony was candid, the nature of the incidents he disclosed were serious, as opposed to trivial, and his assumption that the complete details of his criminal history would be revealed when the Department (as it stated it would do on the application) checked his response against local, state, and federal records was well founded. Consequently, while his response to item 9 on the application was incomplete, Respondent's failure to more fully detail his criminal history is more appropriately characterized as a careless, thoughtless, or heedless act as opposed to a willful or intentional effort to mislead the Department as to the true character of his history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered adopting the foregoing Findings of Fact and Conclusions of Law, and which, for the violation found, imposes a 30-day suspension and an administrative fine of $250. DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 2nd day of May, 2000.
The Issue The issue is whether Petitioner’s application for a real estate sales associate license should be granted.
Findings Of Fact Petitioner is 36 years old. He has a bachelor’s degree and a master’s degree in environmental science. He also has a Juris Doctorate degree. Petitioner was licensed to practice law in Illinois in May 2002. His license was suspended in August 2006 by the Illinois Supreme Court as a result of the October 2005 criminal offenses discussed below. See Findings 12-14. The suspension of Petitioner’s license to practice law is for a period of 18 months and “until further order of the Court.” Thus, the suspension runs through at least February 2008. Petitioner is currently working part-time at a Barnes & Nobles bookstore in Tampa. Before that, he worked as an executive recruiter for several months. Before coming to Florida, Petitioner worked as an inspection and enforcement officer for the United States Environmental Protection Agency (EPA) in Illinois, and as an attorney and manager for title insurance companies in Illinois and Colorado. Petitioner has been offered a sales associate job by the Keller Williams real estate firm in the Tampa area. The offer is contingent upon the approval of Petitioner’s license application. Petitioner has a long history of alcohol and substance abuse, which he freely acknowledged in his testimony at the final hearing. He has been using illegal substances since his high-school years.2 Petitioner has four criminal offenses in his background, each of which involved alcohol. In June 1991, Petitioner was arrested in Indiana for driving under the influence (DUI). He pled guilty to the offense and spent four days in jail. Petitioner was 20 years old and in college at the time. In February 2004, Petitioner was arrested in Colorado for DUI with a blood-alcohol level of 0.17 percent, which was more than twice the legal limit. He pled guilty to the lesser offense of “driving while ability impaired” and was sentenced to probation and community service. In July 2004, Petitioner was arrested again in Colorado for DUI. He pled guilty and was sentenced to probation and community service. In October 2005, Petitioner was arrested at a concert in Boca Raton for possession of cocaine, criminal mischief (two counts), resisting arrest with violence, and battery of a law enforcement officer (three counts). The offenses were felonies. Petitioner testified that he does not recall any of the circumstances surrounding the incident because he was “extremely intoxicated” at the time. The police report of the incident, which Petitioner does not dispute,3 states that Petitioner punched a patron at the concert, punched a police officer, kicked another police officer, spit on a paramedic, damaged handcuffs and a police car, and was in possession of 0.5 grams of cocaine. The report also indicates that Petitioner was yelling, cursing, and acting belligerently throughout the incident. In January 2006, Petitioner pled no contest to the charges, and adjudication was withheld by the court. He was sentenced to 24 months of probation and 50 hours of community service; he was required to undergo an anger management class; and he was required to successfully complete a substance abuse treatment program and undergo random drug testing. Petitioner successfully completed his probation without incident and without any positive drug tests. An Order formally terminating Petitioner's probation was entered on March 15, 2007. Petitioner’s criminal offenses were not acts of youthful indiscretion or the result of momentary lapses of judgment. All of the offenses, except for the first DUI, were committed when Petitioner was in his 30’s and working in a professional capacity. Petitioner credibly testified that he has taken steps to turn his life around. He is active in a church group in the Tampa area, and he testified that he has not had a drink of alcohol or used illegal drugs since December 31, 2005. Petitioner does not currently attend Alcoholics Anonymous (AA) meetings, although he has done so in the past. He testified that he continues to live by AA’s principles and that he has a support system in place to help him remain completely abstinent from alcohol and drugs. There is no evidence that Petitioner committed any acts of fraud or dishonest dealing in connection with his work with the EPA or the title insurance companies. In October 2006, Petitioner applied for a real estate sales associate license. He was still on probation at that time. Petitioner fully disclosed his criminal history and the suspension of his license to practice law in Illinois in his license application. Petitioner’s license application was considered by the Commission at its meeting on December 13, 2006. Petitioner appeared at the Commission meeting with his attorney and responded to questions from members of the Commission. The Commission voted at the meeting to deny Petitioner’s license application. The denial was memorialized in a Notice of Intent to Deny dated January 3, 2007. The grounds for denial listed in the Notice of Intent to Deny included Petitioner’s criminal record, as revealed in the license application; the recent nature of Petitioner’s criminal offenses; the fact that Petitioner’s criminal history “shows a pattern and practice of criminal behavior over an extended period of time”; the fact that Petitioner “has not had sufficient time free of government supervision to establish rehabilitation”; and the suspension of Petitioner’s license to practice law in Illinois.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying Petitioner’s application for a real estate sales associate license. DONE AND ENTERED this 8th day of May, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 8th day of May, 2007.
The Issue The issue is whether Petitioner's application for a real estate license may lawfully be denied based on her criminal history.
Findings Of Fact The Commission is a state licensing and regulatory agency charged, inter alia, with granting or denying real estate licenses. Certain administrative services are provided to the Commission by the Division of Real Estate (Division) of the Department of Business and Professional Regulation (Department). Ms. Ellis, at the time of the hearing, was a 34-year- old female residing in Tallahassee, Florida. She is currently employed as a legal secretary and has held a commission as a notary public in Florida since 1997. On July 20, 2007, a DBPR 0010-2 Master Individual Application, prepared by Ms. Ellis, was received by the Department. The application sought a real estate sales associate license. In a letter dated August 7, 2007, the Department notified Ms. Ellis that her application was incomplete. Specifically, the letter noted that she had checked the "yes" block on the inquiry addressing criminal matters and requested additional information with regard to her involvement with the criminal justice system. The letter also requested matters, labeled "Questions 2, 3, and 4," that were not relevant to her application. In a letter dated October 23, 2007, Ms. Ellis responded to the demand for additional information. She provided the Department with letters of recommendation written by her father, Tallahassee attorney Vinson Barrett, and fellow legal secretary Adriana Bernstein. The gist of the letters was that she is a good worker, honest, an exemplary mother, trustworthy, and maintains good working relationships with her fellow workers. In a letter dated October 29, 2007, she provided additional documents illuminating her involvement with the criminal justice system. Despite her input, the Commission rejected her application at its November 14, 2007, meeting. Ms. Ellis did not attend this meeting. The Commission recited findings of fact using reference "keys" as follows: CRIMES IN APPLICATION Applicant's criminal record is revealed in application. * * * UNPERSUASIVE TESTIMONY Applicant's testimony or evidence in explanation/mitigation was unpersuasive. CRIMES RECENT Applicant's criminal history is recent in time. PATTERN OF CRIME Applicant's criminal history shows a pattern and practice of criminal behavior over an extended period of time. * * * The Commission made the following conclusions of law: * * * Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181 F.S. * * * F. Found guilty of a course of conduct or practices which show applicant is so incompetent, negligent, or dishonest that money, property, and rights of others may not safely be entrusted to applicant. 475.25(1)(o), 475.181 F.S. * * * Applicant is subject to discipline under 475.25 (specify), 475.181 F.S. The Commission concludes that it would be a breach of its duty to protect the health, safety, and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families, or personal belongings of the citizens of Florida. 455.201, F.S. A "Summary of Applicants, FREC Meeting: November 14, 2007" prepared for the Commission meeting in Ms. Ellis' case, is inaccurate, and unless read closely and supplemented with additional facts, would cause a reasonable person to believe that Ms. Ellis was convicted of four offenses. In fact, she was found guilty of two offenses, battery and stalking. Although it is apparent that the Commission once had rules in place that perhaps provided guidance in relation to the standards expected of an applicant's behavior, the rules have been repealed and new rules have not be adopted. The events giving rise to the findings recited by the Commission, relate to incidents arising from Ms. Ellis' interaction with law enforcement authorities while a resident of Tampa, Florida. Ms. Ellis moved into Ms. Lisa Nawrocki's home at East 99th Street, in Tampa during the latter part of 1998 with her two children. She and Ms. Nawrocki had a series of disputes with their neighbors. From late 1998 until October 1999, law enforcement was summoned by Ms. Ellis, Ms. Nawrocki, or their neighbors on 30 occasions. On January 31, 1999, Ms. Ellis was arrested for a battery precipitated by a dispute with one of her neighbors. She pleaded not guilty, but was found guilty of battery at a bench trial. She was sentenced on May 26, 1999, to one year of probation and community service. Ms. Ellis was also directed to attend an anger management class. Ms. Ellis alleged to the media that she and Ms. Nawrocki were victims of "hate" crimes. Ms. Ellis asserted to the media that their difficulties with their neighbors arose because she was a homosexual. Ms. Ellis was arrested again on August 25, 1999, as a result of a confrontation with neighbors. The neighbors were witnesses against Ms. Ellis in another case so she was charged with witness tampering. In order to avoid a trial and possible imprisonment, with attendant separation from her children, she pleaded guilty to the lesser offense of stalking and was sentenced to one year of probation on October 27, 1999. Because the latter offense was a violation of probation on the battery offense of January 31, 1999, her probation was revoked. She was sentenced to 30 days in jail. After serving six days in jail Ms. Ellis was released after promising the judge that she and Ms. Nawrocki would move out of their troubled neighborhood on East 99th Street, and relocate to Tallahassee, Florida. Ms. Ellis did in fact move to Tallahassee and has experienced no involvement with the criminal justice system since her move. Her probation, resulting from the battery conviction was successfully completed on March 7, 2000. Her probation resulting from the stalking charge, which was continued subsequent to her release from confinement, was successfully completed on May 15, 2001. All of the charges resulted from the neighborhood dispute that began late 1998 and ended with her departure from her neighborhood early in November 1999. There is no record of Ms. Ellis' involvement with the criminal justice system before or since these events. The period of the neighborhood dispute is insufficiently long to be termed as "a pattern and practice of criminal behavior over an extended period of time." Ms. Ellis' unrebutted testimony at the hearing was that since the end of 1999, she has been employed as a legal secretary in Tallahassee. Ms. Ellis testified that she works with confidential attorney-client matters and that she has maintained the accounts of law firms. Ms. Ellis' testimony at the hearing is supported by the written evidence of record, including a letter penned by Attorney Vinson Barrett, who stated that she was honest and trustworthy. Her testimony is deemed credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission withdraw its Notice of Intent to Deny the Application of Dawn J. Ellis, if she is otherwise qualified, that the Commission certify to the Department of Business and Professional Regulation that Dawn J. Ellis has satisfied the applicable statutory and rule criteria for licensure as a real estate sales associate. DONE AND ENTERED this 25th day of March, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of March, 2008. COPIES FURNISHED: Dawn J. Ellis 3409 Cedarwood Trail Tallahassee, Florida 32312 Garnett Chisenhall, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation Suite 802 - North Tower 400 West Robinson Street Orlando, Florida 32801 S. W. Ellis, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
