Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
The Issue Should the Criminal Justice Standards and Training Commission (the Commission) impose discipline on Respondent, in her capacity as a corrections officer for the alleged violation of Section 943.1395(7), Florida Statutes (2005)?1
Findings Of Fact Respondent was certified by the Commission on November 20, 1997, and was issued Correctional Certificate No. 176344. On November 22, 2005, Investigator Sally Cole was a law enforcement officer with the Jefferson County Sheriff's Office (Sheriff's Office) headquarted in Monticello, Florida. In her capacity as a law enforcement officer she had authority to serve arrest warrants. While Investigator Cole was in her office on the date at issue, the dispatcher for the Sheriff's Office called to tell Investigator Cole that there was a "lady in the lobby" of the office and jail complex related to the Sheriff's Office, who had an outstanding warrant pending against her. The woman referred to was Respondent, who was in Monticello, Florida to visit her husband, who was incarcerated at the Jefferson County Jail. Investigator Cole went to obtain the warrant which had been issued from Gadsden County, Florida. When Investigator Cole confirmed the information concerning the warrant issued by Gadsden County for Respondent's arrest, Warrant Number 05-717CFA, referring to a felony, Investigator Cole went to find Respondent. Investigator Cole located Respondent who was leaving the lobby of the Sheriff's Office complex and walking to the parking lot. Investigator Cole approached Respondent in the parking lot and explained information concerning the warrant. When Investigator Cole approached the Respondent, she told the Respondent that she was Investigator Sally Cole. When Investigator Cole tried to explain the information concerning the Gadsden County warrant to Respondent, the Respondent in reply continued to say that "she had never gotten in any trouble." Investigator Cole told Respondent that the Respondent was under arrest in view of the warrant from Gadsden County. Respondent got into her car. Two other persons were in the Respondent's automobile. They were her children. The children were ages 12 and 15. Investigator Cole told the Respondent to get out of the car. Respondent refused. Respondent started to become belligerent. Eventually Respondent got out of the car. By that time the Sheriff's Office dispatcher had made contact with other law enforcement officers, deputies, working for that agency. This contact was made because of a concern that Respondent was not being cooperative with Investigator Cole. Those persons who were contacted were Investigator Christopher Smith and Corporal Gerald Knecht. After Respondent got out of her car, Investigator Cole took her by the elbow to guide her inside the complex to be booked under the warrant issued by Gadsden County. Respondent started screaming at the deputy "to get her hands off of her." At that point the other deputies were in attendance to assist Investigator Cole. Respondent was not cooperating and tried to pull away from Investigator Smith when he was assisting in the escort. Investigator Smith told Respondent to cooperate and stop resisting. His identity was established by the badge on his belt which would remind Respondent that he was a law enforcement officer. During the incident, with her car keys in her hand and the attempt by the deputies to control her hands, Respondent in jerking away cut Corporal Knecht, either with the keys or her fingernails. This caused a minor laceration to the deputy. By the time the Respondent was brought inside the complex, she was "kind of dropping her weight, not wanting to walk and flailing her arms." This is understood to mean that someone had to support Respondent's weight. In addition Respondent was swinging her arms around, not with the intent to strike anyone, but snatching them away. Respondent was very upset and belligerent; not wanting to cooperate. Once in the lobby to the Sheriff's Office, Respondent began to be more difficult by trying to sit down and impede the escort. As the corridor to the jail was approached, then Corporal Virgil Joyner of the Jefferson County Sheriff's Office came to assist in controlling Respondent, in an effort to escort her to the area where she would be booked. Corporal Joyner had heard the commotion from where he was located in the booking area of the jail. Respondent was being very loud. He observed the struggle that the other deputies were having in trying to maintain control and advance Respondent into the jail portion of the Sheriff's Office. He got behind the Respondent and started pushing her in the direction of the jail portion of the Sheriff's Office. Finally, Respondent was placed in secure confinement in the jail part of the Sheriff's Office. Later when Investigator Cole went back to talk to Respondent, she apologized and said she was upset and again stated that she had never been in trouble and that she had not stolen anything. This refers to the nature of the arrest warrant from Gadsden County, which was in relation to allegations of theft. Because of the difficulties that the officers had experienced in trying to serve the warrant and book the Respondent, Investigator Cole charged the Respondent with resisting arrest with violence. That charge forms the basis for the present case.
Recommendation Upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 943.1395(7), Florida Statute, suspending the Respondent's correctional officer certificate for a period of 20 days, to be followed by one year probation with appropriate conditions for successfully concluding the probationary period. DONE AND ENTERED this 21st day of August, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 21st day of August, 2007
The Issue The issues to be determined are whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact During all times relevant to this proceeding, Respondent has been licensed as an adjuster by the Department. Respondent has also been licensed in a similar capacity in Texas. Respondent has never been the subject of a disciplinary proceeding previously. On March 24, 2008, Respondent pled nolo contendere to one count of criminal use of personal information and one count of offense against intellectual property. Both offenses are felonies, and adjudication was withheld for each count. As a result of this plea, Respondent was sentenced to three years probation, 200 hours of community service, required to submit to anger management counseling, and required to pay costs, $2,121.36 in restitution to the Department for its investigative costs, and $1,258.50 in restitution to the victim, Thuy Daoheuang, for a missing ring. $400.00 of the amount due the victim was paid at the time of the plea, and payments of $200.00 each to the Department and to the victim were to be paid monthly. The terms of the plea allowed for early termination of probation if all conditions of probation were met. The conduct giving rise to the charges against Respondent, and ultimately resulting in his pleas to the criminal charges, stemmed from the termination of his relationship with a former girlfriend, Thuy Daoheuang. Ms. Daoheuang was also an insurance adjuster. After the termination of their relationship, Respondent accessed her insurance licensure information while performing continuing education checks for persons in his firm. Because of his relationship with her, Respondent knew the personal information necessary to have access to her profile. While viewing Ms. Daoheuang's information, Respondent selected the option to cancel her license. Respondent's action was impulsive and although he testified that he regretted it immediately, he could not "undo" the selection. However, he did not take any steps to call the Department and report the action or ask that it be corrected. Respondent's action resulted in the cancellation of Ms. Daoheuang's insurance license. The Department mailed her a letter indicating that her license had been canceled and upon her inquiry, reinstated the license. There was no evidence presented to indicate that her ability to transact insurance was disrupted. Respondent was contacted by investigators from the Department regarding the cancellation of Ms. Daoheuang's license. He admitted his actions and cooperated fully with their investigation. Respondent's employer was informed of the conduct and the resultant criminal action. The company withheld Respondent's annual raise in salary, but did not penalize him otherwise. He remains employed with the same company. The Department was integrally involved in the prosecution of Respondent, and Respondent has been making monthly payments to the Department by check since the acceptance of his plea, as required by his sentence. Respondent also completed the anger management course and has been remorseful for his actions. The criminal proceeding has been a source of great humiliation and Respondent has accepted responsibility for his actions.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered finding that Respondent has violated Section 626.611(14), Florida Statutes, as alleged in Count I of the Administrative Complaint; Dismissing Count II of the Administrative Complaint; and Suspending Respondent's license as an adjuster for a period of four months. DONE AND ENTERED this 28th day of May, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2009. COPIES FURNISHED: William Gautier Kitchen, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Lisa M. Hurley, Esquire Willard Hurley, LLC 517 East College Avenue Post Office Box 10007 Tallahassee, Florida 32302 Tracey Beal, Agency Clerk Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Alex Sink, Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues are 1) whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense(s); and, if so, 2) whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is seeking employment with The Arc of Alachua County, a service provider regulated by APD. Petitioner’s desired employment is to work as a direct service provider, which requires compliance with background screening requirements. The results of Petitioner’s background screening identified a history of criminal offenses. Petitioner received notification via letter dated April 4, 2016, from the Department of Children and Families (DCF), Respondent’s background screening entity, of her disqualification from employment due to a criminal history. The specific disqualifying offense listed in the letter was Larceny (a violation of section 810.014, Florida Statutes (2016)1/). Florida’s Legislature has designated certain criminal offenses as disqualifying offenses, which would prevent an individual from working as a direct service provider. However, an individual may seek an exemption from the employment disqualification. The granting of an exemption from employment disqualification would allow for Petitioner’s employment as a direct service provider to APD clients. APD’s clients are a vulnerable population, consisting of those individuals whose developmental disabilities are statutorily defined as: intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. See § 393.063(12), Fla. Stat. Without APD’s services, these clients would otherwise require institutionalization. APD’s clients often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. These clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve; consequently, employment as a direct service provider to APD clients is regarded as a position of special trust. APD is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers for which Petitioner seeks to qualify. See §§ 110.1127(2)(c)1. and 393.0655, Fla. Stat. Many of the tasks direct service providers perform for, and/or assist individuals with disabilities with, include those of a social, personal needs, and/or financial nature. APD relies on DCF to initially receive exemption from employment disqualification requests and compile documents received related to such requests. On or around May 10, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire, a copy of her criminal record, character references, and other various documents (the Exemption Packet) to DCF in order to demonstrate support for the granting of an exemption from employment disqualification. DCF subsequently forwarded the Exemption Packet to APD for review. In beginning its exemption review, APD considered Petitioner’s disqualifying offense. Specifically, in December 1982, Petitioner committed the disqualifying offense of Larceny/Grand Theft (a violation of section 810.014). The court’s final disposition of the case included the withholding of adjudication of guilt, two years’ probation, and payment of costs. In its continued exemption review pursuant to section 435.07(3)(b), Florida Statutes, APD considered the following non- disqualifying offenses which Petitioner committed subsequent to her December 1982 disqualifying offense: an arrest for Worthless Check on December 23, 1995 (a violation of section 832.05, Florida Statutes); a second arrest for Worthless Check on December 23, 1995 (a violation of section 832.05); a conviction for Worthless Check on December 24, 1995 (a violation of section 832.05); an arrest for Driving While License Suspended/Revoked in June 1996 (a violation of section 322.34(2), Florida Statutes); an arrest for Worthless Check in January 2007 (a violation of section 832.05(4)(a)); and an arrest for Violation of Injunction Domestic Violence/Contempt of Court in August 2012 (a violation of section 741.31(4)(a), Florida Statutes). The Disqualifying Offense Petitioner provided an account of her disqualifying offense, Larcency/Grand Theft, in an addendum to the Exemption Questionnaire, dated August 3, 2015. Petitioner indicated in her account that she relocated to Tampa from Gainesville. She was 22 years old, single, and employed with the State of Florida. She became roommates with another female who was attending college at the University of South Florida. Petitioner stated “I have no explanation as to why the both of us committed a crime of theft.” Petitioner further explained that she received a two- year term of probation and completed all her court-ordered sanctions within a year. Petitioner also noted that “[s]ince that time, I have not committed any further crimes.” Petitioner provided the following record concerning her disqualifying offense: state attorney court record (13th Judicial Circuit, Hillsborough County, State Attorney). The Non-Disqualifying Offenses Court records received in evidence indicate a total of six non-disqualifying offenses as previously mentioned. Petitioner did not disclose any of her non-disqualifying offenses, nor did she provide accounts for such on the Exemption Questionnaire, despite the directions specifically requiring an applicant to do so. Petitioner did not provide records of her non- disqualifying offenses. Records of those offenses were obtained by APD as part of its detailed review process. Records of the non-disqualifying offenses obtained included: worthless check affidavit, witness form, copies of check, and no information filed court filing (Sears 12/23/1995); worthless check affidavit, witness form, and copy of check (Pic’n Save 12/23/1995); worthless check affidavit, witness form, copy of check, and court judgment (Pic’n Save 12/24/1995); worthless check affidavit, witness form, copy of check, copy of court diversion judgment and supporting documentation, and copy of dismissal of charge (Publix 1/30/2007); and warrant affidavit for arrest (Alachua County Sheriff’s Office, August 2012). Petitioner indicated that she has no current involvement with any court system; specifically, she stated “I have not experienced any criminal charges since my last event in 1982.” Regarding whether there was any degree of harm to any victim or property, including damage or injuries, Petitioner stated “I have not experienced any harm or damage to anyone or any property since my last event in 1982.” In answering the question about stressors in her life at the time of the disqualifying incident, Petitioner indicated that there were none, other than being on probation. Regarding whether there are any current stressors in her life, Petitioner stated “I have no current stressors with the law.” Petitioner indicated that her current support system and living arrangements include being married and having one daughter and numerous grandchildren. Petitioner also explained that her community activities/volunteer efforts include volunteering with the school system (field trips/activities) and attending church and performing functions for the church’s treasury department. Regarding educational and training achievements, Petitioner stated that she graduated from high school, started a career with the State of Florida, and attended a word processing/information course where she received the Most Outstanding Student Award. The Exemption Questionnaire asks whether an applicant has ever received counseling for any reason. Petitioner indicated that she has not received counseling for any reason; if she felt stress, she would call the Employee Assistance Program. Petitioner noted she has not experienced any “major post- traumatic [stress].” As to whether she has used and/or abused drugs or alcohol, Petitioner replied that she has “not abused any type of drugs or alcohol in [her] life.” Petitioner indicated the following regarding feeling remorse/accepting responsibility for her actions: “I am the type of person to feel remorse towards everything and every person that I have contact with. I always take full responsibility for any action(s) that I encounter when I am in the wrong.” The Exemption Questionnaire asks for an applicant’s prior three years’ work history. Petitioner provided the following information: 4/2016 to 5/2016--The Arc of Alachua County (support tech/direct care); 11/2007 to 7/2014--DCF--North Florida Evaluation & Treatment Center (Human Services Worker III); 3/2004 to 7/2007—DCF--State of Florida Foster Care (word processor/data management specialist); 4/1998 to 9/2003-- American Psychiatric Association (membership coordinator/secretary). In addition to the criminal record submitted, Petitioner also provided the following additional documents that were included in her Exemption Packet: local law background checks, a volunteer award (Head Start), three letters of reference attesting to Petitioner’s character, and an Affidavit of Good Moral Character. The letters were written by persons who have known Petitioner for several years; they described Petitioner as devoted, loyal, honest, kind, and trustworthy. Finally, Petitioner submitted a copy of an exemption letter she received from DCF, dated February 12, 2016. Leslie Richards, regional operations manager for APD’s Northeast Region, advised that APD reviewed all documentation provided by Petitioner in her Request for Exemption, the information indicated in Petitioner’s Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her volunteer award, character letters, and exemption from DCF. Following a review of Petitioner’s Exemption Packet, Agency Director Barbara Palmer, advised Petitioner by a letter dated September 26, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. Petitioner sent APD a request for hearing on or around October 11, 2016. APD received this request timely and subsequently forwarded this appeal to DOAH. Along with her request for hearing, Petitioner submitted a personal statement explaining her reasons for disputing the denial and requesting the hearing, a copy of the denial letter, and a copy of a training certificate summary for APD-approved courses through her former employer, the Arc of Alachua County. At hearing, Ms. Richards explained APD’s process of reviewing exemption requests and the consideration of Petitioner’s application for such. Per Ms. Richards, APD considers the disqualifying offense, the circumstances surrounding the offense, the nature of the harm caused to the victim, the history of the applicant since the incident, and finally, any other evidence indicating that the applicant will not present a danger if employment is allowed. Additionally, Ms. Richards testified that APD looks for consistency in the applicant’s account of events in his or her Exemption Questionnaire, the passage of time since the disqualifying incident, whether the applicant accepts responsibility for his/her actions, and whether the applicant expresses remorse for his or her prior criminal acts. Because an applicant will be occupying a position of special trust if granted an exemption, APD weighs all of these factors in its determination. Ms. Richards testified that all of Petitioner’s submissions were reviewed and taken into consideration; she noted that the starting point of APD’s review began with the date of the disqualifying offense and any criminal conduct occurring thereafter. Ms. Richards emphasized that in APD’s review, it was noted that Petitioner failed to disclose sufficient details of the account of her disqualifying offense. Specifically, Petitioner provided what appeared to be background information about the time frame surrounding the offense and the person whom she committed the offense with, but indicated in her statement “I have no explanation as to why the both of us committed a crime of theft.” Petitioner provided other details about this time in her life, but nothing specific about the crime itself. Ms. Richards stated that it left APD with a concern that Petitioner was not forthright with disclosure of the circumstances involving the crime. Ms. Richards also explained that APD took note that Petitioner failed to disclose any of her non-disqualifying offenses, and that this fact was also of concern. APD obtained records of the non-disqualifying offenses and considered them in its review. Ms. Richards noted that the nature of the offenses, particularly the Worthless Checks and the Violation of the Injunction Domestic Violence/Contempt of Court, were troubling because those offenses involved monetary transactions and interpersonal relations. Ms. Richards observed that the individuals APD serves are highly susceptible to abuse, neglect, and exploitation, and a person who is in a role as a direct service provider would be assisting those individuals in a social and financial capacity. APD reviewed Petitioner’s involvement with three DCF investigations involving allegations of abuse toward a vulnerable adult, Petitioner’s spouse. Although there were no findings against Petitioner in these cases, based on the issues presented, DCF did make the recommendation for Petitioner to pursue family counseling. Ms. Richards noted that there is no evidence that Petitioner followed through with DCF’s recommendation, and by Petitioner’s own admission on the Exemption Questionnaire, has “not received counseling for any reason.” In addition to both the criminal offense and DCF- related information, APD noted Petitioner’s less than stellar driving record. Ms. Richards advised that a direct service provider will often be in a position to transport clients, and Petitioner’s driving record reflects a series of both moving and non-moving violations, which pose a concern. The record reflects a total of five driving-related violations: driving while license suspended/revoked (previously mentioned); tag not assigned (criminal traffic); red light camera citation; unlawful speeding; and a second red light camera citation. Ms. Richards testified regarding APD’s consideration of Petitioner’s prior employment history with DCF, and the subsequent exemption for employment granted to Petitioner by DCF. At hearing, APD presented employment evaluations and records of written disciplinary action taken against Petitioner by DCF while in its employ. Ms. Richards specifically noted that some of the disciplinary issues for which Petitioner was cited included: sleeping on the job while employed at a forensic facility; not securing the front door of a building at a forensic facility; tardiness; inappropriately streaming media on a state-owned computer; insubordination (refusal to work a shift); failure to report to work; and poor performance/negligence (failure to answer phones/answer front door of facility). Petitioner ultimately was dismissed from DCF due to her inability to perform her job functions because of an injury. Ms. Richards explained that these disciplinary issues gave APD great pause in considering granting Petitioner an exemption, as they were indicators for potential behaviors that could pose a great risk to individuals served by APD, many of whom are unable to communicate their wants and needs. The setting in which Petitioner committed these workplace violations mirrors those in which clients of APD are served. Ms. Richards did state that APD considered the exemption granted by DCF to Petitioner, however, the weight of the prior disciplinary issues outweighed that decision when compared to the possible jeopardy in which APD clients could be placed. Should Petitioner obtain future successful employment with DCF, APD would consider that in a subsequent exemption application review. Petitioner testified on her own behalf at the hearing. She spoke about the circumstances surrounding the disqualifying offense, reiterating her statement from the addendum to the Exemption Questionnaire. She provided no new information or surrounding details about the crime. Again, she stated that she has not had any legal issues since 1982. Regarding her non- disqualifying offenses, Petitioner remarked that she “didn’t consider those bad checks as crimes,” and though she denied being convicted of such, she admitted having overdrafted checks. Petitioner also stated that regarding the DCF investigations and the Injunction Violation/Contempt of Court charge, “that’s not why we are here today, so I am not going to talk about that.” Petitioner did admit to the driving infractions on her record, but stated that two of them, running red lights, were due to the fault of her daughter, as she was the driver at the time, rather than Petitioner. Petitioner stated that she is older and wiser and has changed. She enjoyed working at the adult day care program with the Arc of Alachua County. She indicated that any bad checks she has written, she “took care of.” Petitioner offered explanations for the disciplinary situations involving her prior employment with DCF, attempting to minimize her role. She explained that she and her husband, who Petitioner described as a vulnerable, disabled adult, no longer have domestic issues; however, they are currently homeless. Petitioner stated that APD’s denial is keeping her in an adverse financial situation, stating “I cannot find a job right now because of this denial.” When cross- examined by counsel regarding her ability to obtain gainful employment with DCF and its covered providers, Petitioner admitted that she can seek a job under DCF’s purview. Petitioner presented the testimony of two witnesses. Her sister, Sherry McCrae, a retired police officer, stated that she lived with her sister the entire time she was in college; Petitioner provided a source of support to her during this period. Ms. McCrae stated that her sister has been working all the years since the disqualifying incident. She affirmed that their maiden name is Williams, Petitioner’s last name at the time of the disqualifying incident. Petitioner’s second witness, Faye Williams, testified that after Petitioner’s disqualifying incident, she got a job and was active in the community. Petitioner has a desire “to be a part of something.” She loves people, especially children. Petitioner asserted that she enjoys working with individuals with disabilities; at her last place of employment, she believed she found her “purpose and mission.” She loves helping people. She admits she made some mistakes, but that was long ago. Petitioner argued that she “really only committed one crime”; she has rehabilitated herself and that should be enough for APD. She believes APD abused its discretion in denying her request for exemption. The individuals APD serves are vulnerable and highly susceptible to abuse, neglect, and exploitation, due to their developmental disabilities. APD’s representative observed that APD’s clients must be assigned to direct care providers without fear of their endangerment. This necessarily requires reliance on a caregiver’s good character and trustworthiness. Individuals who provide direct care are frequently responsible for assisting individuals in making decisions of a financial, medical, and social nature. APD must weigh the benefit against the risk when considering granting an exemption. Ms. Richards cautioned that Petitioner’s criminal history reflects a pattern of poor judgment. Petitioner’s failure to disclose certain details in her account regarding her disqualifying offense calls into question her trustworthiness. Additionally, failure to disclose her non-disqualifying offenses, along with a failure to recognize that those offenses are truly crimes, is not only troubling, but calls into question Petitioner’s trustworthiness. It also demonstrates a complete lack of remorse and acceptance of responsibility for her actions. Petitioner did not admit to any of the harm she caused to her victims. Petitioner’s minimization of the discipline she received while employed by DCF also gives great pause, as the individuals she was charged with caring for were clients in a forensic setting, a clear parallel to the clients she would serve should an exemption be granted by APD. Petitioner’s multiple driving citations are concerning as well, and demonstrate a pattern of questionable decision- making, especially when considering her for a position where she could potentially transport clients. All of the aforementioned factors, along with proximity in time of her application to her last arrest (2012), caused APD to question Petitioner’s fitness for providing services to the vulnerable individuals for which it is responsible, the most vulnerable population in the state. Petitioner failed to meet her burden of proving clear and convincing evidence of rehabilitation, and therefore, the denial of the exemption was proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of the Agency for Persons with Disabilities issue a final order upholding the denial of Petitioner’s exemption request. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 22nd day of February, 2017.
The Issue The issue in this case is whether Petitioner is eligible for licensure as a real estate sales associate.
Findings Of Fact Petitioner was born on October 2, 1969. On or about November 30, 2005, Petitioner applied to the Commission for a real estate sales associate license. Question No. 1 was one of four questions on the application that asked the applicant to provide background information about himself/herself. Question No. 1 provided in pertinent part the following: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendre (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. . . . The application directed applicants, who responded "yes" to Question No. 1, to provide details regarding "any criminal conviction, . . . including the nature of the charges, dates, outcomes, sentences, and/or conditions imposed." Petitioner answered Question No. 1 in the affirmative. In accordance with the directions on the application, Petitioner provided the details related to all the criminal matters with which she had been charged and/or convicted and the ultimate disposition or action taken as a result thereof. Petitioner was forthright and honest in disclosing the background information that was requested. In all, Petitioner listed ten separate offenses on a form that was submitted as part of her application packet. For each offense, Petitioner was required to and did provide the type and description of the offense; the date and place (county and state) the offense occurred; and the penalty imposed and/or the disposition of the matter. Finally, in accordance with the directions on the application, Petitioner indicated whether all sanctions had been satisfied, with respect to each offense. Petitioner listed a "disorderly conduct" offense which occurred on November 26, 1988, in Hillsborough County, Florida. This incident involved an altercation with a family member (her mother) and resulted in the police being called. As a result of this incident, Petitioner received counseling and adjudication was withheld. At the time of this incident, Petitioner was 19 years old. Petitioner listed an offense related to passing six worthless checks. At the time of this offense, Petitioner was 24 years old. This offense occurred in Hillsborough County, Florida, on October 22, 1993. As a result of this offense, Petitioner was put on six months' probation. Petitioner paid the checks and the required fines and also successfully completed probation. Adjudication was withheld in the case. According to Petitioner, the worthless check charge was the result of her allowing her brother to rent a car, using Petitioner's debit/checking card. When Petitioner's brother kept the rental car longer than he had agreed to, the rental company assigned the additional charges to her debit card. At the time this occurred, Petitioner was unaware that her brother had kept the rental car for an extended time and that the additional rental car charges were debited from her checking account, thereby reducing her checking account balance. As a result, there was no money in her account to pay for several (presumably six) checks that Petitioner had written on that debit/checking account. Between June 1994 and April 1996, Petitioner was involved in four offenses involving theft. Three of the four offenses involved petty theft and one involved grand theft. Petitioner described these four "theft" offenses on her application as set forth in paragraphs 11 through 14. On December 9, 1994, Petitioner was charged with grand theft and resisting a merchant. The incident which led to this charge occurred in Marion County, Florida. In describing the incident which resulted in the grand theft charge, Petitioner stated that she was with two people who were shoplifting and one of those people gave her the merchandise (clothes) to take to the vehicle. As to the incident which led to the resisting merchant charge, Petitioner stated that as she was "exiting the door, a man came behind me and grabbed me by the neck without [identifying] himself." In response to this action, Petitioner stated that she "snatched away" from the man. As a result of the foregoing offenses, Petitioner was placed on three (3) years probation. Adjudication was withheld upon Petitioner's successful completing probation. On March 29, 1995, Petitioner was charged with petty theft as a result of her "shoplifting a watch that was $12.99." Petitioner was convicted of this offense and placed on six months' probation. Petitioner completed her probation and paid all applicable fines. On May 19, 1995, in Hillsborough County, Petitioner was charged with petty theft. According to Petitioner, she was pulled over for a traffic violation and after the law enforcement officer(s) ran a check of the tag, it was determined that the tag had been reported as stolen. Petitioner indicated that she was unaware that the tag was stolen. Petitioner was found guilty of petty theft for this incident and was put on probation for one year. Petitioner satisfied all sanctions imposed for this conviction. On April 26, 1996, Petitioner was charged with and convicted of petty theft, in Hillsborough County, Florida. This offense was the result of Petitioner's "shoplifting [a] tool [worth] less than $10.00." As a result of her conviction of this petty theft charge, Petitioner was put on probation for one year. Petitioner completed the probationary period. Petitioner was charged on two separate occasions with violation of probation. Both of these charges relate to Petitioner's probation as a result of the grand theft and resisting merchant conviction discussed in paragraph 11 above. The first charge of violating probation occurred on June 6, 1995, in Alachua County, Florida, when Petitioner went to court on the petty theft charge, based on the March 1995 shoplifting incident in that county. When Petitioner appeared in court for that petty theft charge, a warrant was issued for a probation violation in connection with the grand theft conviction in Marion County. As a result of the probation violation, Petitioner's probation in Marion County was reinstated and Petitioner attended counseling for six weeks. Adjudication was withheld in this probation violation case. On December 5, 1997, Petitioner was, for the second time, charged with violating her probation. Based on Petitioner's explanation, this violation of parole was related to Petitioner's changing her address and about "new [criminal] charges."6 As a result of this probation violation, her probation was reinstated until the required fee was paid. Apparently, the fee was paid, and thereafter, Petitioner's probation was terminated in June 1998. During the period of time between 1994 and 1996, Petitioner was charged, on two separate occasions, with driving with a suspended license. Petitioner was first charged with driving with a suspended license on June 6, 1994, in Alachua County, Florida, after she was pulled over for a traffic violation. For this offense, Petitioner was placed on six-month non-reporting court probation. All sanctions were satisfied and adjudication was withheld. On August 31, 1996, in Hillsborough County, Florida, Petitioner was, again, charged with driving with driving with a suspended license. In this case, Petitioner paid outstanding tickets and adjudication was withheld. Petitioner appears remorseful about the criminal activities in which she engaged. She testified that the time period in which most of the criminal activities occurred was a difficult time in her life, having recently experienced the death of two close relatives (her father and grandmother) and a close friend. According to Petitioner, this was a traumatic time in her life and the events (the deaths of three people with whom she had close relationships) that occurred near that time affected her behavior. Petitioner explained that soon thereafter, she moved to Gainesville, where she had previously attended college, and got involved with the "wrong" crowd. It is undisputed that Petitioner has not been charged with a criminal offense for over nine years. Furthermore, there is no evidence that Petitioner has been involved in any criminal activity since completing her probation in June 1998. Since 1996, Petitioner has worked on a regular basis and held positions of responsibility. From 1996 through 1998, Petitioner worked in a six-doctor office as an office clerk. In that position, she posted payments and assisted in collections. In 1998 through 1999, Petitioner worked for a cars sales company and was the lead collection person for the dealership. In 2000, Petitioner returned to the six-doctor office, where she had previously been employed. This time, Petitioner worked in the collections area and was also the internal computer person for the office. After leaving the six-doctor office, Petitioner went to work for a collection agency as a free agent. In addition to the foregoing positions, Petitioner has worked in marketing, where she increased her client base from six (6) to seventy-one (71). At the time of the hearing, Petitioner was self-employed in business aimed at assisting customers with "credit repair." In about 1998, Petitioner joined a church in Tampa. Petitioner is still an active member of that church and is involved in several church activities. Currently, Petitioner is in the church choir and is secretary of the young adult women mission circle. Petitioner is a volunteer in various community service activities. Currently, Petitioner is a volunteer coach for a youth basketball team at the Boys and Girls Club. Petitioner also serves as a mentor to children. Hector Cordero, a member of the same church as Petitioner, and a personal friend of Petitioner7 testified on Petitioner's behalf and vouched for her honesty and integrity. Petitioner's testimony regarding her past criminal offenses, her employment history, and her community service activities is found to be credible. Notwithstanding the credible testimony of Petitioner, she has failed to comply with a directive of the Commission. In a letter advising Petitioner of the meeting at which her application would be considered, the Commission directed Petitioner to furnish at least three letters from persons who know of her honesty, truthfulness, trustworthiness, good character and good reputation, two of which must be from individuals not related to her. The letter explicitly stated the letters of recommendation would assist the Commission in determining her eligibility for licensure. As of the date of this hearing, there is no evidence that Petitioner ever provided the requested letters of recommendation. At this proceeding, Petitioner was given the opportunity to provide letters of recommendation. Such letters could have been from previous employers, community organizations and others with whom she had worked, who know of and could vouch for Petitioner's honesty, truthfulness, trustworthiness, good character and good reputation. Also, these letters of recommendations could verify and support Petitioner's employment history and community service activities for the past nine or ten years and thereby show rehabilitation. Although the record in this case was left open to provide Petitioner an opportunity to late-file letters of recommendation for consideration, she failed to provide any such letters or documentation. In view of the fact that Petitioner's criminal history spanned nine years, it was important that she provide evidence that established that she met the eligibility requirements for the licensure as noted in Subsection 475.17(1), Florida Statutes. Also, in light of her criminal background, Petitioner should have provided evidence to demonstrate that she is now rehabilitated and will pose no threat to the public and investors. The evidence presented by Petitioner in this case is insufficient to demonstrate that she meets the eligibility requirements for licensure as a real estate sales associate and that she is rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order denying Petitioner's application for licensure as a real estate salesperson. DONE AND ENTERED this 9th day of January, 2007, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 9th day of January, 2007.
