The Issue Whether the Petitioner is subject to disqualification under the statutes, and Whether the Petitioner should be granted an exemption.
Findings Of Fact In 1992, Petitioner acted as a look-out for Raymond Dickens when Raymond Dickens stole a set of tire rims from the Chevrolet dealer in Quincy. While acting as the look-out, Petitioner decided to disassociate himself from this act, and Petitioner reported the theft, which was in progress, to the police. The police investigated, and spoke with Petitioner about it. Petitioner admitted his part in the theft, identified Dickens and plead nolo contendere to grand theft. On September 23, 1992, the Court withheld adjudication, and placed Petitioner on probation for 18 months. In nine months Petitioner satisfactorily completed the probation. Thereafter, Petitioner took a course in Jacksonville on how to operate heavy equipment, and learned how to drive tractor trailers. His father, who had been a tractor trailer driver until he was injured, gave Petitioner a truck, and Petitioner began to drive with his father who continued to teach him how to be a driver. In 1995, Petitioner was self-employed or driving on contract for several companies. However, in fall of 1995, Petitioner's father did not want to be on the road, and Petitioner applied for and was employed as a human service worker at the State Hospital at Chattahoochee. The background investigation revealed Petitioner's plea to grand theft in 1992, and Petitioner was disqualified from employment. Petitioner requested an exemption, and the Department of Health and Rehabilitative Services denied his request after an appearance before its review committee. Thereafter, Petitioner requested a formal hearing, and, in the interim, was employed as a dump truck driver in Tallahassee until approximately six weeks prior to the formal hearing. Most recently, Petitioner has been putting his truck in order to take it back out on the road. Petitioner wanted an exemption to do work as a human service worker because he did it for five months, did a good job, and enjoyed it although it does not pay as much as truck driving.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that Victor Bush be determined not to be required to obtain an exemption because the disqualification which was applied to him was not effective until after the date of commission of the disqualifying offense, or alternatively, that Victor Bush be granted an exemption if the Department determines one is required. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996.
The Issue Whether Petitioner should be granted an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Petitioner, John F. Parks (Petitioner), was employed at Serenity West, an assisted living facility in Zephyrhills, Florida, on or about January 3, 2000. While employed there, Petitioner's duties included passing medications and dressing and otherwise assisting residents with activities of daily living. Pursuant to Chapter 435, Florida Statutes, the owner or administrator of an assisted living facility is required to conduct a level one background screening on all employees hired on or after October 1, 1998, who perform personal services for vulnerable persons. The purpose of background screening is to protect the public welfare by preventing individuals that have demonstrated behavior that may be harmful to vulnerable individuals from working in Florida’s health care facilities. Respondent, the Agency for Health Care Administration (Agency), conducted a level one background screening on Petitioner which revealed that, in 1979, Petitioner had pled guilty to the charge that he had committed a lewd and lascivious act in violation of Section 798.02, Florida Statutes. On or about April 7, 2000, the Agency notified Petitioner and his employer that it had received information that disqualified Petitioner from working as a caretaker of vulnerable persons. Petitioner was also advised of his right to seek an exemption from disqualification. On or about April 13, 2000, Petitioner filed an Application Request for Exemption from Disqualification (Application). The Agency's Application form required that the applicant explain the reason for the employment disqualification and provide a copy of the Florida Department of Law Enforcement criminal history, the arrest report, and the court disposition for any disqualifying violation. Petitioner completed the Application and included, as part of his application, copies of the arrest report and the court disposition related to the disqualifying offense. The documents submitted by Petitioner indicated that on April 4, 1979, he pled guilty to committing a lewd and lascivious act, a second degree misdemeanor, in violation of Section 798.02, Florida Statutes. According to those documents, Petitioner entered the plea in the County Court in and for Hillsborough County, Florida, in Case No. 79-2630. On April 24, 2000, the Agency conducted an exemption hearing on Petitioner's request for exemption from employment disqualification. The following day, the Agency denied Petitioner's request and advised him that as a result of the denial, he continued to be "ineligible for employment in those positions that require working with residents or patients of nursing homes, home health agencies, assisted living facilities, homemaker-companion-sitter services, or nurse registries." Petitioner challenged the Agency's denial of his request for exemption from employment disqualification and requested a formal hearing. The Agency forwarded the request to the Division of Administrative Hearings on or about October 25, 2000. In the December 1, 2000, Order Granting Continuance and Re-Scheduling Hearing, the final hearing was scheduled for January 4, 2001. A copy of the Order was mailed to Petitioner at his address of record, 5647 19th Street, Zephyrhills, Florida 33540. Petitioner provided several letters of reference to the Agency as part of his application for request for exemption. These letters appeared to be from a neighbor, as well as former colleagues and employers. The letters were favorable and described Petitioner as dependable, a good worker, a valued employee, and knowledgeable in his field. Most of the letters spoke highly of his patience and kindness toward the residents. Petitioner failed to appear at the hearing and no evidence of his rehabilitation was presented. Therefore, Petitioner is not eligible for or entitled to the exemption from employment disqualification that he seeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying Petitioner's request for an exemption from disqualification from employment. DONE AND ENTERED this 21st day of February, 2001, in Tallahassee, Leon County, Florida. 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 21st day of February, 2001. COPIES FURNISHED: Tracey S. Cottle, Esquire Agency for Health Care Administration 2727 Mahan Drive Building Three, Suite 3426C Tallahassee, Florida 32308 John Parks 5647 19th Street Zephyrhills, Florida 33540 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
The Issue Whether the Agency for Persons with Disabilities’ (Agency) intended decision to deny Petitioner’s application for exemption from disqualification for employment is an abuse of the Agency’s discretion.
Findings Of Fact Petitioner is a 68-year-old female residing in Jacksonville, Florida. Petitioner’s most recent employment is with Linda L. Curtis Health Care Agency (Curtis Agency), where she “sits with patients,” and provides entertainment and meals for patients. Respondent is the state agency responsible for licensing and regulating the employment of persons in positions of special trust. Specifically, the Agency’s mission includes serving and protecting vulnerable populations, including children and adults with developmental disabilities. In connection with her employment at Curtis Agency, Petitioner underwent background screening on July 26, 2017, and was deemed automatically disqualified from employment based on a past offense. See § 435.06, Fla. Stat. Petitioner applied to the Agency for an exemption from disqualification, pursuant to section 435.07, which the Agency denied and which forms the basis of the instant Petition for Administrative Hearing. Disqualifying Offense On September 25, 1999, Petitioner was arrested and charged with misdemeanor battery for an incident at her home involving her 18-year-old cousin, Shanique Barner, whom she was raising, along with the cousin’s baby. The altercation began when Petitioner approached Ms. Barner about failing to keep her bedroom clean, an issue about which Petitioner had spoken to Ms. Barner repeatedly. The confrontation became physical and both parties began punching and hitting each other. When the fight ended, Petitioner took Ms. Barner to the hospital for a tetanus shot and treatment for a bite or bites inflicted by Petitioner during the altercation. An off-duty officer at the hospital was informed of the domestic violence incident and the arresting officer was dispatched to Petitioner’s residence. At Petitioner’s home, the arresting officer observed Ms. Barner with a swollen left eye and two bite marks on her left arm. After taking both parties’ statements, the officer arrested Petitioner and took her to a detention facility for booking. Petitioner pled nolo contendere to the charge of domestic battery and adjudication was withheld. On October 4, 1999, Petitioner was sentenced to four months’ probation and ordered to pay court costs of $104. Terms of Petitioner’s probation included no contact with Ms. Barner, completion of an anger control program, and payment of the costs of supervision. Petitioner’s probation was early-terminated on November 2, 1999, at which time Petitioner had completed the anger management program, paid her fine and court costs in full, and was current in the monthly cost of supervision. Petitioner was 50 years old at the time of the disqualifying offense, and Ms. Barner was 18. By Petitioner’s account, Ms. Barner was a rebellious and troubled teenager, who had become pregnant at age 17 despite Petitioner’s attempts to persuade Ms. Barner to begin using birth control at age 15. Subsequent Non-Disqualifying Offense Petitioner had no further involvement with law enforcement until April 8, 2008, almost nine years later, when she was arrested and charged with aggravated battery with a deadly weapon. The details of the incident are unclear and disputed. The record supports the following findings: For a month prior to the incident, Petitioner had allowed a male friend, Mr. Jones, to temporarily live at her home. Mr. Jones was ill, had lost his employment, and had applied for social security disability, but had not received payments in time to pay his rent. Mr. Jones had a “roommate,” Ms. Green, who was identified only as Mr. Jones’ girlfriend’s daughter. Ms. Green also moved into Petitioner’s home, temporarily, at the request of the girl’s mother. Apparently, Ms. Green, like Ms. Barner, was not much of a housekeeper. Despite assurances from Mr. Jones that Ms. Green would “clean behind herself,” Ms. Green frequently left dirty dishes in the sink, with which Petitioner was met upon her return from work. On the date of the incident, Petitioner returned from a day at work to find dirty dishes in her sink, left there by an unwelcome, and apparently ungracious, guest whom Petitioner, no doubt, expected to be a short-term guest. Petitioner informed Mr. Jones that Ms. Green would have to leave. Ms. Green began removing her belongings, but not at a pace Petitioner found very efficient, so Petitioner “assisted” in removal of Ms. Green’s belongings. Ms. Green objected, telling Petitioner not to touch her belongings. Petitioner responded by informing Ms. Green she could not re-enter Petitioner’s home to remove the rest of her belongings. Petitioner told Mr. Jones to remove the remainder of Ms. Green’s belongings. Petitioner positioned herself to block Ms. Green’s entry to Petitioner’s home. When Ms. Green attempted to enter Petitioner’s home, a physical altercation ensued. The altercation was broken up by Mr. Jones and Ms. Barner,1/ but proved only a brief interlude in the fighting. A second physical altercation ensued but the evidence conflicted as to which party initiated the fight, and whether either party was armed with a weapon of some sort. Ms. Green emerged from this altercation with a deep cut above her left eye. Following Ms. Green’s injury, Petitioner left the scene in her vehicle. An officer who had been dispatched to the scene observed Petitioner’s vehicle on his way to the scene, conducted a traffic stop, and transported Petitioner back to the scene. After the investigation, Petitioner was arrested and transported to a detention facility for booking. The State Attorney’s office declined to prosecute Petitioner and the charge against Petitioner was dropped. Educational and Employment History Petitioner maintained consistent employment both prior and subsequent to the 2008 arrest. Between April 2004 and March 2007, Petitioner was employed as a shop foreman and an office manager for Air Distributors Inc., a metal and fiberglass fabricator. Petitioner was a part-time cashier at WalMart from March 2007 to November 2011. Petitioner was employed with River Region Human Services (River Region) from April 2009 through June 2014. River Region is a residential rehabilitation facility providing methadone maintenance treatment to recovering addicts. At River Region, Petitioner served as a Monitor Technician, observing client activities and medication administration, filing behavior and incident reports, conducting perimeter checks, and transporting clients to off-site services. The record does not support a finding of the exact date on which Petitioner’s subsequent employment with Curtis Agency commenced. In connection with Petitioner’s employment by River Region, Petitioner received an exemption from disqualification from the Department of Children and Families. While employed with River Region, Petitioner completed a number of trainings sponsored by that agency, including Non- Violent Practices in 2013, as well as HIV/AIDS Parts I and II, HIPAA, Clinical Documentation, and Security Awareness in 2014. Subsequent Personal History The record was devoid of any subsequent history on Petitioner. It is unknown whether Petitioner lives alone or with roommates of any sort. Petitioner’s Exemption Request In her application for exemption, Petitioner provided a lengthy account of both incidents. Notably, Petitioner prefaced her explanation as follows: “To start I want to relate both incidents occurred because I cared about others. I tried to deaden this concern for others, but it just wouldn’t happen.” While there is some credibility in associating Petitioner’s actions in the first incident with a concern for her cousin, whom she was raising the record does not support a finding that the incident between Petitioner and Ms. Green, whom she was removing from her home for being untidy, is at all related to a concern for others. In her lengthy explanation of both incidents, Petitioner blamed the victim. With respect to her cousin, Petitioner explained that her cousin hit her first. With respect to Ms. Green, Petitioner explained that the victim came at her first with “something in her hand,” which Petitioner “immediately knocked out and caught.” Petitioner wrote: It was an unopened small red object. That’s when I recognized it was a small box cutter. As she kept coming I push [sic] it and cut her across her eyebrow. Petitioner’s account is troubling in many respects. First, if Petitioner recognized the object as a box cutter, she had time to drop the weapon, rather than use it against the victim, whether in self-defense or otherwise. Second, Petitioner’s account of the incident differs significantly from the accounts given by both Petitioner’s cousin and Mr. Jones to the officer at the scene. Both witnesses told the officer that, after the initial altercation between Petitioner and Ms. Green, Petitioner retrieved a scraper from her car, which she carried with her to her perch outside the door blocking Ms. Green’s reentry to her home.2/ If the witnesses’ accounts are accurate, Petitioner was untruthful on her application, and attempted to shift blame to the victim, when in actuality Petitioner was the party who intentionally armed herself for an anticipated second altercation with Ms. Green. Petitioner made no attempt to explain the discrepancy between her version of the 2008 incident and the version recounted in the police report. The lack of explanation is notable because Petitioner went out of her way to contradict other aspects of the police reports on both incidents. For example, while the police report noted Ms. Green suffered wounds on her chest, nose, and above her left eye, Petitioner insisted the 2008 report was incorrect and she cut Ms. Green only above the eye. As to the 1999 incident, the police report noted Ms. Barner had a swollen left eye and two bite marks on her left arm. Petitioner insisted the report was wrong, arguing that she bit Ms. Barner on the chest and not the arm. The remainder of Petitioner’s application is bereft of detail. In response to the question regarding the degree of harm to the victims or property, Petitioner noted only “Bite mark,” and “laceration over eyebrow.” Petitioner’s demeanor at hearing evidenced a complete lack of understanding of the seriousness of her actions against Ms. Green. Assuming Petitioner’s version of the events is accurate, Petitioner could have permanently blinded Ms. Green by intentionally striking her in the face with a box cutter. Regarding whether Petitioner had stressors in her life at the time of the disqualifying offense, Petitioner responded “None.” That response is contrary to Petitioner’s detailed description of the 1999 incident, which evidences significant stress between her teenage cousin, who was rebellious in many respects, including refusing to pick up after herself, not to mention bringing into the household an unexpected mouth to feed. With regard to current stressors and support system, Petitioner responded that she had no stress in her life and that prayer is her support system. She described her current living arrangements as a “2 bedroom, 2 bath apartment,” and that she has maintained her own household since she was 17 years of age. Petitioner failed to grasp the importance of distinguishing her current life circumstances and living arrangements from those at the time of the disqualifying offense and subsequent non-disqualifying offense. Without any distinguishing circumstances, the Agency is justified in questioning whether Petitioner’s circumstances are more stable. Petitioner stated that she had never received any counseling for any reason, and that she had never used or abused drugs or alcohol. Petitioner’s response to the question regarding whether she feels remorse and accepts responsibility for her actions reads as follows: Regret was immediately felt during incidents. We are responsible for our actions so to keep this always in mind take on fruitage of God’s spirit faith, goodness, kindness, love, longsuffering, joy, peace, mildness and self- control. Petitioner’s response is telling--it uses passive language and avoids the first person. Petitioner did not state, nor did she testify, that she regretted her actions, or that she was responsible for the harm caused. Both her written account and her live testimony evidence her intent to shift blame to the victims and acknowledge responsibility only in the broadest sense. Personal References Petitioner included two reference letters in support of her application: one from Ms. Barner and one from someone named Trinette Simmons. In Ms. Barner’s letter, she refers to Petitioner as her mom and explains that Petitioner cared for her from two weeks of age until five years of age, that she came to live with Petitioner again at age 13, and that she has “periodically resided at [Petitioner’s] residence for some years.” Ms. Barner states that Petitioner encouraged her and helped her graduate from school after becoming pregnant at age 17, and that love has always been in her mom’s heart. Petitioner did not explain her relationship to Ms. Simmons. The letter from Ms. Simmons states that she has known Petitioner since 2002, that Petitioner is capable of handling any situation “with thoughtfulness and maturity,” and that Petitioner is “a team player, as well as a team leader, who can adjust to changes within any environment.” The references are from persons who knew her when the 2008 incident occurred, but neither letter addresses the incident or explains that Petitioner’s behavior at that time was uncharacteristic, or that it has changed significantly since that incident. Moreover, neither of the letters is from an employer or other authority figure who has observed Petitioner interact with River Region clients or Curtis Agency patients. The Agency is charged with protecting the most vulnerable populations in Florida--children and adults with developmental disabilities. Some members of this population are uncommunicative, can be hostile, and act out. The Agency must be confident that any applicant seeking to work directly with these clients has demonstrated self-control and maturity to handle difficult, and often stressful, interactions with the clients. Both Petitioner’s disqualifying, and subsequent non- disqualifying, offense evidence Petitioner’s lack of self-control and good judgment when faced with stressful situations involving individuals who are defiant and refuse to take a course of action requested by Petitioner. Neither of Petitioner’s personal references document Petitioner’s ability to control herself and her reactions when faced with similar difficulties more recently. Petitioner’s account of the incidents shifts the blame to the victims and fails to demonstrate true remorse or responsibility for her actions, the harm she inflicted, and the potential for more serious harm based on her choices at the time of the incidents. While Petitioner seems to truly interested in continuing to help vulnerable citizens, even in a volunteer capacity as she nears retirement, she did not present evidence sufficient to demonstrate her rehabilitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 3rd day of October, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 3rd day of October, 2017.
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order for Specific Worksite Only (“SWO”) and Amended Order of Penalty Assessment (“AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Allstate is a corporation engaged in business in the State of Florida. Allstate was organized on May 23, 2005. Edgar A. Ezelle is the president and registered owner of Allstate. The address of record for Allstate is 8217 Firetower Road, Jacksonville, Florida 32210. In March 2017, Respondent was hired as the general contractor to renovate a hotel at a jobsite located at 3050 Reedy Creek Boulevard. When Respondent accepted the project, Prestige Handyworkers, LLC (“Prestige”), a subcontractor, was working on the jobsite. Although Prestige was hired by the previous general contractor, Respondent continued to work with Prestige. On June 15, 2017, the Department’s investigator, Kirk Glover, conducted a routine visit to the jobsite to conduct a compliance investigation. Mr. Glover observed six individuals performing construction-related work at the site. Mr. Glover conducted an interview of the individuals and took notes during the course of his interviews. Mr. Glover identified the individuals as: Luis Miguel Paz; Joseph A. Pizzuli; Roger Penley, Jr.; Georgios Rapanakis; Stavros Georgios Rapanakis; and Joseph Youngs. The six individuals were employed by subcontractor Prestige to perform work on behalf of Allstate. Luis Miguel Paz, Joseph A. Pizzuli, and Roger Penley, Jr., were engaged in painting work; Georgios Rapanakis and Stavros Georgios Rapanakis were supervising the other workers; and Joseph Youngs was engaged in cleanup of the construction site. The workers did not testify at the final hearing. Mr. Glover then contacted Allstate president, Edward Ezelle, who confirmed he was the general contractor for the jobsite and that he retained Prestige as the subcontractor for the site. Mr. Glover conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Prestige or its employees. Prestige did not have workers’ compensation coverage for its employees. The search of CCAS revealed that Mr. Ezelle had an active workers’ compensation coverage exemption, effective July 27, 2015, through July 26, 2017. Based on the results of his investigation, on June 16, 2017, Mr. Glover issued an SWO to Allstate for failure to maintain workers’ compensation coverage for its employees. On June 19, 2017, Mr. Glover hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”). The Records Request directed Respondent to produce business records for the time period of June 16, 2015, through June 15, 2017. Respondent did not provide any business records to the Department. Mr. Ezelle testified that Allstate did not conduct business in Florida for the period of September 2016 through March 2017. While the undersigned has no reason to doubt Mr. Ezelle’s testimony that his business was not active during that time period, Respondent failed to produce records in response to the Records Request to support his testimony. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, June 16, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses the imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Glover’s observations at the jobsite on June 16, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5474 to calculate the penalty. Classification code 5474 applies to work involving painting. Ms. Jackson applied the approved manual rates for classification 5474 for each of the six individuals working on the jobsite. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $11.05 for the period of June 16, 2015, through December 31, 2015; and $11.02 for the period of January 1, 2016, through June 15, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Georgios Rapanakis and Starvos Georgios Rapanakis had a workers’ compensation exemption for the period of June 16, 2015, through June 10, 2016. However, they were not covered by an exemption from June 11, 2016, through June 15, 2017. Although Mr. Ezelle has an exemption, his exemption was not in effect for a short period of July 19, 2015, through July 26, 2015. None of the other employees had an exemption. Based upon the Department’s calculation, the penalty assessment for the imputed payroll would be $153,908.20. On November 17, 2017, the Department filed a Motion for Leave to Amend Order of Penalty Assessment (“Motion for Leave to Amend”). The Department sought leave from the undersigned to amend the penalty assessment. The Department, as a party, is not authorized to amend a penalty without leave from the undersigned after the matter was filed with the Division. See § 120.569(2)(a) and Fla. Admin. Code R. 28-106.202. Despite the AOPA reflecting an issued date of July 14, 2017, the record supports a finding that the AOPA was issued November 17, 2017, the date the undersigned granted the Department’s Motion for Leave to Amend. Thus, the Department issued the AOPA for the imputed payroll 105 business days after Respondent received the Records Request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order as follows: finding that Respondent failed to secure and maintain workers’ compensation coverage for its subcontractors; and dismissing the Amended Order of Penalty Assessment against Respondent. DONE AND ENTERED this 26th day of January, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 26th day of January, 2018. COPIES FURNISHED: Christina Pumphrey, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Edgar Ezelle Allstate Custom Contracting, Inc. 8217 Firetower Road Jacksonville, Florida 32210 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue Whether Petitioner's application for licensure as a real estate sales associate should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Respondent is the State of Florida entity responsible for certifying applicants seeking to qualify under Chapter 475, Florida Statutes, for licensure as real estate sales associates. On or about April 19, 2006, Petitioner submitted his application for licensure as a real estate sales associate to Respondent. In the application, Petitioner answered "yes" to a background question which asks, in pertinent part: 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? . . . If you answered "Yes," attach the full details including dates and outcome, including any sentence and conditions imposed, on a separate sheet of paper. Petitioner provided information that indicated that he had been convicted of making a false statement to a federal grand jury in Brooklyn, New York, in October 2001. Petitioner spent one month in custody and has three years' supervised release on the federal charge. His federal supervision was terminated in December 2004. In addition, on July 29, 2003, Petitioner was arrested and charged with stealing a MP3 player from a Target department store. He pled nolo contendre to retail petit theft; adjudication of guilt was withheld. For this offense, he served two days in jail, served 270 days' probation, paid fines and court costs, did community service, and went to impulse control class. Petitioner has been employed by The Orlando Sentinel, the daily newspaper in Orlando, Florida, for approximately four years. He delivers newspapers in an affluent residential neighborhood, has access to gated communities, and is aware when his customers are not at home. To some degree, this job has fiduciary implications. His job supervisor holds him in high regard, considers him trustworthy, and would trust him regarding her real estate transactions. Petitioner is a student at Valencia Community College. Petitioner makes a good impression, appears to be contrite, and, for the past several years, has had no criminal involvement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Real Estate Commission, enter a final order denying the application of Petitioner, Shahzad Ahmed, for licensure as a real estate sales associate. DONE AND ENTERED this 2nd day of March, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 March, 2007. COPIES FURNISHED: Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Daniel Villazon, Esquire Daniel Villazon, P.A. 1020 Verona Street Kissimmee, Florida 34741 Tom Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Nancy B. Hogan, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner, Juan Ramon Leal, is entitled to be licensed as resident legal expense sales representative.
Findings Of Fact At all times material to the allegations of this case, the Respondent is the state agency charged with the responsibility of regulating persons seeking licenses to become resident legal expense sales representatives. As such the Respondent appropriately received and considered the application for licensure submitted by the Petitioner on or about April 3, 2002. On June 27, 2002, the Respondent issued its decision regarding the Petitioner's application for licensure. Such decision denied Petitioner's request based upon his criminal history and the short amount of time that had elapsed between the alleged criminal activity and the application for licensure. On July 6, 2000, when he was 20 years of age, the Petitioner was arrested for possession of a controlled substance, unauthorized possession of a driver's license, and carrying a concealed weapon. As to the controlled substance charge, at the time of the arrest, the Petitioner was delivering to an individual, who was a confidential informant for the police, 400 tablets of a drug commonly known as ecstasy. The Petitioner knew that the package contained an illegal substance and that he was committing an illegal act. As to the charge of possessing an unauthorized driver's license, the Petitioner held fake identification so that when carded at dance clubs he could enter with his older girlfriend. There is no evidence that the fake license was used for any other purpose. As to the charge of possession of a concealed weapon, the Petitioner was arrested and his vehicle was thoroughly searched. The "concealed weapon" was a hunting knife under the seat or in the crack of the seats. The knife was not presented in the course of any of the activities cited by the police. In fact, the arresting officer described the Petitioner as "sincerely remorseful" and "cooperative." Subsequent to his arrest the Petitioner attempted to assist the police but proved unsuccessful. On May 10, 2001, the Petitioner pled nolo contendere to the possession charges. As he had no prior criminal record, adjudication of guilt was withheld and he was placed on probation. The Petitioner successfully completed all requirements of his probation. Thereafter, on March 14, 2002, the probation was terminated. On April 3, 2002, within the month of his probation being completed, Petitioner applied for the license at issue in this proceeding. Because the Department denied the license, the Petitioner sought the instant administrative review of the denial and sought relief from the criminal court having jurisdiction over his probation and record. To that end, Petitioner obtained an Order to Seal his criminal records. This order was entered on August 15, 2002. Had the Petitioner waited until after that date to apply for licensure, the pertinent criminal records would have been under seal and therefore unavailable for review. It is the Department's position that the Petitioner lacks fitness and trustworthiness to hold the license based upon the nature of the criminal activity and the recentness in time to the application for licensure. The Petitioner's employer, Nicolo Bonanno, testified that the Petitioner is a trustworthy employee, that he has had business dealings with the Petitioner for approximately 3 years, and that he has no hesitation in supporting his licensure. Mr. Bonanno is himself a licensee through the Department. The arresting officer expressed complimentary statements regarding the Petitioner including his demeanor during and subsequent to the arrest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance enter a final order granting the license sought by the Petitioner. DONE AND ENTERED this 23rd day of January, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 23rd day of January, 2003 COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Eugene J. LaNeve, Esquire 717 Ponce de Leon Boulevard Suite 215 Coral Gables, Florida 33134 Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue Whether Petitioner's employment should be terminated on the grounds alleged in the Administrative Complaint dated June 3, 1998.
Findings Of Fact For the past seventeen years, Respondent has been employed by the Petitioner. At the time of the formal hearing, he held the position of a fire alarm foreman. He previously held the positions of a fire alarm technician and a trades helper. Respondent has been a good employee and has a good work record. Respondent is represented by the National Conference of Firemen and Oilers, AFL-CIO, Local 1227. Gary Mitten is the president of that union. Pursuant to its rule making authority and to implement Sections 231.02 and 230.23(5), Florida Statutes, the Petitioner revised its Rule 3.12, effective September 3,1997, to provide as follows: Definitions: For the purposes of this policy: "Prospective Employee" means an applicant who has received an offer of employment. "Conviction" means a determination of guilt that is the result of a plea or a trial regardless of adjudication of guilt. A prospective or current employee who is recommended to fill a non-instructional position shall, as a condition of employment, file a complete set of fingerprints taken by an authorized law enforcement officer or a designated employee of the District trained to take fingerprints. The prints will be processed pursuant to the requirements of Section 231.02(2)(a), Florida Statutes. * * * A prospective or current employee may be disqualified or may be terminated from continued employment if the prospective or current employee has been convicted of a crime classified as a felony or first degree misdemeanor directly related to the position of employment sought or convicted of a crime involving moral turpitude or any of the offenses enumerated in Chapter 435, Florida Statutes. * * * 6. Any provision of the law notwithstanding, all personnel currently required to be certified under Section 231.17, Florida Statutes, and by January 1, 1998, for all other personnel currently employed by the District who have not been fingerprinted and screened in the same manner outlined in Section (1) shall submit a complete set of fingerprints taken by an employee of the school or district who is trained to take fingerprints. The prints shall be processed according to Section 231.02(2)(a), Florida Statutes. Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. Such action shall be subject to appeal. . . . Section 231.02, Florida Statutes, pertains to the qualifications of school personnel and provides, in pertinent part, as follows: To be eligible for appointment in any position in any district school system, a person shall be of good moral character . . . (2)(a) Instructional and noninstructional personnel who are hired to fill positions requiring direct contact with students in any district school system or laboratory school shall, upon employment, file a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. These fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. . . . Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. . . . Any provision of law notwithstanding, by January 1, 1997, . . . for all other personnel currently employed by any district school system or any other public school who have not been fingerprinted and screened in the same manner outlined in paragraph (a) shall submit a complete set of fingerprints taken by an authorized law enforcement officer or an employee of the school or district who is trained to take fingerprints. The fingerprints shall be submitted to the Department of Law Enforcement for state processing and the Federal Bureau of Investigation for federal processing. . . . Employees found through fingerprint processing to have been convicted of a crime involving moral turpitude shall not be employed in any position requiring direct contact with students. . . . Personnel who have been fingerprinted or screened pursuant to this subsection and who have not been unemployed for more than 90 days shall not be required to be refingerprinted or rescreened in order to comply with the requirements of this subsection.1 Section 435.03, Florida Statutes, provides, in pertinent part, as follows: All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. For the purposes of this subsection, level 1 screenings shall include, but not be limited to, employment history checks and statewide criminal correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies. Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction: * * * (n) Chapter 796, relating to prostitution. Section 435.06, Florida Statutes, provides, in pertinent part, as follows: When an employer or licensing agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record which indicates noncompliance with the standards in this section. It shall be the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification shall be proof of mistaken identity. The employer must either terminate the employment of any of its personnel found to be in noncompliance with the minimum standards for good moral character contained in this section or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to s. 435.07. Section 435.07, Florida Statutes, provides exemptions from disqualification, in pertinent part, as follows: Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification. The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: * * * (b) Misdemeanors prohibited under any of the Florida Statutes cited in this chapter or under similar statutes of other jurisdictions; * * * (3) In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. . . . In December 1997, Respondent was fingerprinted pursuant to School Board Rule 3.12. The subsequent screening reflected that Respondent was arrested by the Riveria Beach Police Department on March 13, 1997, and charged with solicitation of prostitution, which is a misdemeanor offense pursuant to Section 796.07, Florida Statutes. This is also a disqualifying offense pursuant to Section 435.03(2)(n), Florida Statutes. Respondent subsequently entered a plea of nolo contendere; he was assessed a monetary fine, and adjudication of guilt was withheld. James P. Kelly is responsible for conducting background screenings of employees as Chief of the Petitioner's police department. Melinda Wong is the director of Petitioner's employee records and information services departments. Mr. Kelly and Ms. Wong serve as members of Petitioner's Criminal Background Check Committee, which was formed to consider the results of background screenings and to consider appeals of employees found to have a disqualifying conviction. By memorandum dated January 5, 1998, Respondent was notified as to the results of the background screening and advised, in pertinent part, as follows: This past year you were fingerprinted pursuant to Florida Statutes, Section 231.02. Based on the criminal history indicated below, the Criminal Background Check (CBC) Committee will recommend your termination from employment with the District. You have a right to appear before the CBC Committee to appeal that determination and request exemption from the requirement that you be disqualified from further employment. In order for an exemption to be granted, you must demonstrate sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; and any other evidence or circumstances indicating that you will not present a danger if continued employment is allowed. On March 13, 1997, in Riveria Beach, Florida, you were arrested for solicitation of prostitution for which you subsequently pled guilty. . . . Respondent appeared before the Committee accompanied by Mr. Mitten, his union representative. Respondent told the Committee that he had been drinking on the night in question and had let a friend, who he later identified as Billy Scott, drive his vehicle. Respondent further related that he had fallen asleep and that when he awakened, he and Mr. Scott were being arrested for solicitation of prostitution. Respondent asserted that his plea was one of convenience and entered only after the Public Defender told him the plea would not affect his employment.2 The Committee thereafter caused the School Police to investigate the circumstances surrounding Respondent's arrest. From that investigation, it was revealed that the supporting arrest documents do not reflect the presence of another person in Respondent's vehicle. Casting further doubt on Respondent's versions of the events was the fact that Respondent was cited as driving with an open container of alcohol. The citation indicates that Respondent was the driver of the vehicle, and not merely a passenger. Further, an interview of the arresting officer led the investigator to conclude that Respondent was in the car alone at the time of the incident. Based on the information that had been made available to it, the Committee concluded that Respondent's version of the events had not been confirmed. Respondent was invited to appear before the Committee to explain the discrepancies between his version of the events and the results of the investigation. Respondent, accompanied by Mr. Mitten, told the Committee that the person driving the car was Billy Scott, who was visiting from California. Respondent also said that Mr. Scott had told him that he (Scott) was not formally booked because he had a brother-in-law (Respondent was not certain as to the relationship) on the Riveria Beach Police Department who had interceded on his behalf. Respondent thereafter gave the investigator the telephone number and address of Mr. Scott's temporary residence. The investigator verified that the address was a valid address and called the telephone number, leaving a message on an answering machine. Later, a person claiming to be Mr. Scott telephoned the investigator and verified Respondent's version of the events. Subsequent to that call, the investigator received a call from a woman who stated that the investigator had left a message on her answering machine, that she had a son named Billy Scott, that Billy Scott had not been to California since he was an infant, and that Billy Scott did not have a relative who worked for the Riveria Beach Police Department. Based on the information before it, the Committee concluded that Respondent had committed a disqualifying offense and that the evidence offered by Respondent in mitigation of that offense was not credible. Because there was no mitigating evidence within the meaning of Section 435.07(3), Florida Statutes, the Respondent's work record was not considered.3 The Committee recommended to the Superintendent that Respondent's employment be terminated. The Superintendent accepted that recommendation and, in turn, recommended to the School Board that Respondent's employment be terminated. The School Board thereafter accepted the recommendation of termination from the Superintendent and voted to terminate Respondent's employment, subject to his right to contest the proposed action pursuant to Chapter 120, Florida Statutes. Respondent's testimony at the formal hearing was similar to the explanation of the events he gave the Committee. That self-serving, uncorroborated testimony is insufficient to establish by clear and convincing evidence that he is entitled to an exemption, as required by Section 435.07(3), Florida Statutes. Respondent asserts that the disqualification does not apply to his position because his position does not require direct contact with students. That assertion is rejected. The evidence is clear that Respondent's job duties require his presence at the various schools of the district at times the children are present. Although Respondent typically checks in at a school's office when he first comes on campus, he thereafter is not monitored or otherwise supervised while on the school campus. This opportunity to have contact with students provides the Petitioner with a sufficient basis to consider him to be an employee who has direct contact with students.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that terminates Respondent's employment. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998
The Issue Whether the Agency’s intended action to deny Petitioner’s application for exemption from disqualification from employment is an abuse of the Agency’s discretion.
Findings Of Fact Background Petitioner is a 37-year-old female residing in Jacksonville, Florida. She desires to work as a Medicaid waiver provider, an independent solo provider of community-based services to the Agency’s clients with developmental disabilities. On October 12, 2009, the Agency granted Petitioner an exemption from disqualification from employment for an offense of grand theft committed on December 28, 2001. Between 2004 and 2009, Petitioner was a service provider for Agency clients both in a group home setting and as a solo provider of community-based services. On July 14, 2011, the Florida Department of Children and Families issued Petitioner a notice that she was ineligible for continued employment in a position of special trust working with children or the developmentally disabled based on a felony offense of aggravated assault committed on December 30, 2010. The Disqualifying Offense On December 30, 2010, Petitioner was driving by her boyfriend’s home and noticed a vehicle backing out of his driveway. Petitioner knew the vehicle belonged to another woman, Ms. Stevens. Petitioner called her boyfriend on his cellular phone, confirmed he was in the car, and began conversing with him. Petitioner and her boyfriend engaged in a series of calls with each other over the next few minutes while she followed Ms. Stevens’ vehicle. Petitioner wanted the driver of the car to pull off the road so she could talk to her boyfriend in person. Petitioner pulled her vehicle alongside Ms. Stevens’ vehicle. The situation escalated. The vehicles were traveling on a parallel path on a two-lane road in a residential subdivision. In her anger, Petitioner threw an open soda can through the rear window of Ms. Stevens’ vehicle. Finally, Petitioner’s vehicle struck Ms. Stevens’ vehicle. Shortly thereafter, both vehicles pulled off the road. Petitioner’s boyfriend exited the vehicle, but Ms. Stevens took off and returned with a law enforcement officer. The police report notes approximately $700 in damage to the two vehicles. During the entire incident, Petitioner’s two minor children were back seat passengers in Petitioner’s vehicle. Following an investigation, the police determined Petitioner was the primary aggressor. Petitioner was charged with one count of aggravated battery with a deadly weapon, and one count of criminal mischief and reckless driving. Petitioner served two days in jail. Petitioner pled nolo contendere to both charges, adjudication was withheld, and Petitioner was placed on 12 months’ probation, ordered to complete 75 hours of community service, attend anger management training, and pay fines and fees amounting to $1,068. Petitioner attended a one-day anger management class through the Salvation Army in 2011. Petitioner was released from probation on May 3, 2012. Employment Following the Disqualifying Offense Petitioner worked as an executive housekeeper for a Hilton Garden Inn in Jacksonville from June 2012 to November 2013. Petitioner worked briefly as a manager at a Subway restaurant between March and October 2014. In November 2014, Petitioner began employment as a manager at a Burger King restaurant in Jacksonville, where she remained employed on the date of hearing. Subsequent Criminal History Petitioner has had no disqualifying offense since the 2011 aggravated battery offense. Petitioner was cited for three traffic infractions between 2011 and 2013. One of the infractions was a criminal charge of driving without a valid driver’s license. The other two citations were for speeding and failing to yield the right- of-way. Petitioner’s Exemption Request Petitioner’s exemption package was slim. In addition to the exemption questionnaire, in which she provided little information regarding herself, Petitioner submitted a one-page narrative letter and two very brief character reference letters. On the questionnaire, Petitioner reported no damage to any persons or property from the disqualifying offense. Further, Petitioner reported no stressors in her life at the time of the offense. As to her current stressors, Petitioner reported none, and listed her family, church, and herself as her current support system. Petitioner reported no counseling other than the one- day anger management class completed in 2011. Petitioner listed no educational achievements or training. As for accepting responsibility for her actions, Petitioner wrote, “I feel very remorse [sic] for my actions and I take full responsibility for them.” One of the character reference letters was from a co- worker (perhaps even someone under her supervision) and did not identify the name of the employer or dates she worked with Petitioner. The letter described Petitioner as “dependable and committed to do her best” as well as “proficient in all cores of her profession.” The author further described Petitioner as a Christian who is very involved with her church and youth ministry, and who is considered a good and loving mother. The author of the second character reference letter did not identify her relationship to Petitioner, but indicated that she had known Petitioner for six years. She described Petitioner as “dependable and committed to the community as a youth leader and big sister to the children of her church.” Further, she wrote, “[Petitioner] is a compassionate and loving person, but above all she is a Christian who loves her children and her church.” In her personal statement, Petitioner described the events surrounding the disqualifying offense as follows: I was involved with a young man at the time of this incidence [sic]. What happen [sic] on that day was this young man had been calling my phone all day and we passed each other on the street in the same neighborhood and I followed him. We both at this time kept calling each others [sic] phone back to back. After a few blocks both cars came to a stop. Neither of us got out of the car. Each of us pulled off the same time and our cars bumped each other. After a few more blocks we stopped again. He got out of the car from the passenger side. I then realize [sic] that he was not the driver. A few minutes later the car came back. An off duty police officer with JSO wrote me a ticket for reckless driving, operating a vehicle with no insurance and criminal mischief. Mean while [sic] two more officers with JSO arrived on the scene and one of the officers decided to arrest me and charged me with aggravated assault with a deadly weapon (with no intent to kill). Petitioner offered nothing else related to the disqualifying offense. Petitioner’s narrative does not reveal an understanding of the seriousness of her offense or offer any explanation for her behavior. Nor does the narrative back up her statements on the questionnaire that she feels remorse and has accepted responsibility for her actions. In formulating its decision to deny Petitioner’s request for exemption, the Agency considered the following factors to be significant: Petitioner’s disqualifying offense occurred just a year after having been granted an exemption from a prior disqualifying offense of grand theft. The offense demonstrated a lack of good judgement and decisionmaking. Petitioner was the primary aggressor. Petitioner’s children were in the car at the time of the incident. Petitioner was 32 years old at the time of the incident. Petitioner reported no life stressors at the time of the disqualifying offense and no significant changes in her life subsequently. Petitioner was not forthcoming in her application about the damage to the vehicles incurred during the incident. Petitioner’s driving record raises a concern with her ability to safely transport Agency clients. The Agency also considered that Petitioner’s character references were not from past or current employers, that they revealed very little about the relationship between the author and Petitioner, and that they did not acknowledge the disqualifying offense or offer any indication of changes in Petitioner’s life. Final Hearing Petitioner’s attitude at hearing was defensive. Petitioner took issue with the description of events surrounding the disqualifying offense noted in the police report. Petitioner particularly stressed that the vehicles were stopped, rather than traveling down the one-lane road side by side, when she threw the soda can into Ms. Stevens’ vehicle. Petitioner denied that she intentionally struck Ms. Stevens’ vehicle, but rather insisted that the vehicles “bumped” as they were both pulling off the road at the same time. Petitioner offered no witnesses on her behalf. Petitioner introduced one additional character reference letter from Reverend Charles G. Skinner, Pastor, Twin Springs Missionary Baptist Church. Pastor Skinner stated that he had pastored Petitioner for 10 years and had witnessed “spiritual maturity” in her life. In the letter, Pastor Skinner described Petitioner as an active member of the church, a devout Christian and mother “with an humbling nature exhibiting a thirst for erudition.” Petitioner did not demonstrate her humble nature at the hearing. Petitioner was defensive, argumentative, and spent her time pointing out “inaccuracies” in the police report. Petitioner has no understanding of the seriousness of her offense, and was “baffled” that the charge included a reference to a deadly weapon when she had no weapon at the time. Petitioner downplayed the event, testifying that the whole incident took maybe 8 to 10 minutes, and that the vehicles were traveling slowly, perhaps 15 to 20 miles per hour. Petitioner acknowledged that her children were in the vehicle at the time of the incident, but insisted they were not in danger and that she would never do anything to put her children in danger. Throughout the hearing, Petitioner emphasized she had no idea Ms. Stevens was driving the vehicle in which her boyfriend was riding, until the vehicles pulled off the roadway. Apparently Petitioner believed that the facts were more favorable to her if it was only her boyfriend she was trying to run off the road, rather than her boyfriend and “the other woman.” Petitioner failed to appreciate that no matter who was driving the vehicle, Petitioner’s actions put them at risk.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner’s request for an exemption from disqualification. DONE AND ENTERED this 24th day of March, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 24th day of March, 2016.
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint and, if so, what penalty should be imposed. More specifically the issue is whether a federal misdemeanor can be construed as a felony for purposes of Section 943.13(4), Florida Statutes.
Findings Of Fact Based upon the stipulation filed by the parties, the testimony of the witness and the documentary evidence received at the hearing, I make the following findings of fact: The Respondent was certified as a law enforcement officer by the Commission on March 31, 1985, and was issued certificate no. 12-85-002-01. On January 31, 1986, the Respondent entered a plea of guilty to the offense of forgery of a United States Treasury check, a violation of Title 18 USC Section 510(b)-(c) and (2), in the United States District Court, in and for the Southern District of Florida, case no. 85-8098-Cr-PAINE. The acts which gave rise to the criminal charge against Respondent had occurred prior to Respondent's certification. The Superseding Information charged that Respondent, along with two other named defendants, had falsely made and forged an endorsement on a check made payable to another. This alleged forgery occurred on or about April 31, 1984, at Fort Pierce, St. Lucie County, Florida. Respondent had been employed as a police officer by the Fort Pierce police department for approximately seven months when the warrant for his arrest was issued. He subsequently resigned his position. Respondent was adjudged guilty of the charge set forth in paragraph 2, and was placed on probation for a period of one (1) year. Respondent was also required to make restitution to First Citizens Federal Savings and Loan Association of Fort Pierce in the amount of $179.71. Respondent was not required to serve a sentence of confinement. Respondent completed his probation and made restitution as required. The original charge against Respondent had been a felony, however, during the course of negotiations the charge was reduced to a misdemeanor. Respondent refused to plead guilty to the felony charge and testified he would have continued to fight a felony conviction. Respondent pled guilty to the federal misdemeanor on the belief that it would not affect his certification. Petitioner offered no evidence to establish the facts underlying the alleged criminal offense, i.e., that Respondent did, in fact, forge an endorsement on a check payable to another.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's law enforcement certificate, no. 12-85-002-01. DONE and RECOMMENDED this 28th day of October, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1988. COPIES FURNISHED: Diamond R. Horne 101 C Seaway Drive Fort Pierce, Florida 34950 Joseph S. White Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Department of Law Enforcement Criminal Justice standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Criminal Justice standard and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
