Findings Of Fact On November 22, 1989, T. L. James & Company, Inc. was convicted of conspiracy to suppress and eliminate competition. This is a public entity crime. T. L. James executed a Public Entity Crimes Affidavit on July 24, 1994. On the affidavit T. L. James disclosed the conviction. Pursuant to Section 287.133, Florida Statutes, the Department of management Services (DMS) shall investigate public entity crimes to determine if the convicted company should be placed on the convicted vendors' list. After receiving the affidavit from T. L. James, DMS conducted an investigation and discovered mitigating factors as defined and listed in Section 287.133, Florida Statutes. These factors are: payment of fines and damages totalling $600,000, cooperation with the officials criminally investigating and prosecuting the case, cooperation with DMS' investigation, instituting safeguards in the bid estimation process to prevent further irregularities, and providing full and accurate notice. All other facts stipulated to by the parties pursuant to the Joint Stipulation previously filed in this case are hereby adopted and incorporated by reference.
Findings Of Fact Before 1989, the Petitioner, Gregory Miller, was a community control counselor (in effect, a juvenile probation officer) working for HRS. After several years of satisfactory job performance, his employment was terminated for unsatisfactory job performance in 1989. The Petitioner believes his termination by HRS was unfair. On January 30, 1991, the Petitioner, Gregory Miller, pled nolo contendere to attempted arson in violation of Section Section 806.01, Fla. Stat. (1991). Adjudication was withheld, and the Petitioner was placed on probation for two years. The attempted arson charge arose at a time in October, 1990, when the Petitioner, who has a 20-year history of substance abuse and suffers from bipolar disorder and borderline personality disorder, decompensated under financial and other stress and attempted to burn his automobile in order to fraudulently obtain property and casualty insurance benefits. At the time of the arson attempt, his car was parked in the garage, and a tenant was residing in the garage apartment overhead. The tenant noticed the fire started by the Petitioner, put it out and reported it to the Petitioner. The Petitioner berated him for putting the fire out and told him to get his personal belongings out of the garage apartment and leave. While the tenant was in the garage apartment gathering his belongings, the Petitioner was attempting to restart the fire. The tenant had been a worker's compensation client of the Petitioner. The Petitioner continued to have mental and emotional and substance problems that led to additional criminal charges. On February 13, 1991, he was arrested and charged with battery of a law enforcement officer, a third degree felony. On October 3, 1991, the Petitioner pled guilty to the lesser included offense of resisting arrest without violence, a misdemeanor, and was sentenced to seven days time served in jail. On or about December 22, 1991, the Petitioner overdosed on a mixture of drugs and alcohol in a possible suicide attempt. When confronted with law enforcement officers, the Petitioner struck the officers and was arrested and charged with battery of a law enforcement officer, a third degree felony. The Petitioner was involuntarily committed under the Baker Act, and on September 21, 1992, he pled nolo contendere to simple battery, a first degree misdemeanor, and was sentenced to one day time served in jail and ordered to pay $200 in fine and court costs. As a result of his other criminal charges, the Petitioner was charged with violation of his probation on the attempted arson charge. On or about March 16, 1992, the Petitioner pled guilty to violation of probation. Adjudication on the violation of probation was withheld, but probation was revoked, and he was resentenced under the attempted arson charge to a year of community control, followed by a year of probation. On or about March 8, 1992, the Petitioner was charged with driving with his license suspended or revoked for failure to maintain required insurance coverage. Since 1992, the Petitioner has not been involved in any additional criminal activity or charges. On February 23, 1993, his community control was converted to probation. He moved to Pasco County and, on December 22, 1993, his probation was terminated early. The Petitioner has sought professional counseling. On or about March 22, 1993, he was referred to a vocational rehabilitation counselor with the Department of Labor and Employment Security, Division of Vocational Rehabilitation. Since approximately early 1994, he also has been under the care of a psychiatrist. With the help of counseling, the Petitioner has been sober since before August, 1993. Fortunately, therapy seems to have been successful. Except for two short hospitalizations for decompensation and medication adjustment early in his counseling, the Petitioner has been sober and mentally stable over the course of the last three years. From a mental health standpoint, the Petitioner no longer seemed to be a danger to himself or others, and he was making good progress in rehabilitating himself. On or about May 18, 1995, the Petitioner sought employment with Action Youth Care, a provider on contract with HRS. When he applied for the job, he was required to complete an Affidavit of Good Moral Character that swore, in pertinent part, that he had "not been found guilty of, or entered a plea of nolo contendere or guilty to, any offense prohibited under . . . Section 806.01 [Florida Statutes, arson]." The affidavit also required the Petitioner to "acknowledge the existence of any criminal . . . record regardless of whether [he] was adjudged guilty by the court and regardless of whether or not those records have been sealed or expunged." The Petitioner signed without acknowledging his attempted arson record. When his name was screened, the attempted arson record disqualified him from employment, and the Petitioner was terminated from his employment pending his request for an exemption. Despite the Petitioner's commendable progress in rehabilitating himself, there still are signs that some instability persists. He does not seem to appreciate the seriousness of his criminal record and history of substance abuse and mental illness, as they relate to HRS's statutory obligation to properly assess his moral character under Section 409.175, Fla. Stat. (1995). Instead, he blames HRS's actions on a "political" conspiracy to prevent him from obtaining employment. Similarly, he attempts to excuse his criminal record by blaming it all on HRS--the termination of his employment in 1989 allegedly was the sole cause of his decompensation and the resulting criminal offenses. His excuse for falsifying his Affidavit of Good Moral Character was that it was reasonable not to disclose the arson record because it was only attempted arson, not arson. He does not seem to appreciate that there is little or no difference in blameworthiness between the two. (The only real difference between the two is how soon the fire goes out or is put out.) Finally, the Employee Closing Summary produced by Action Health Care upon termination of the Petitioner's employment stated that Action would not re-hire the Petitioner and that the Petitioner's "weak areas" included: "poor rapport with team"; "would not accept authority"; and "documentation skills." (No "strengths" were noted on the form.) The Petitioner again blamed HRS, contending that the person who completed the form was lying to cooperate with HRS's conspiracy against the Petitioner. It is found that the evidence, taken as a whole, was not clear and convincing proof of rehabilitation and good moral character at this time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that HRS enter a final order denying the Petitioner's request for an exemption from disqualification. DONE and ENTERED this 21st day of August, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1996.
Findings Of Fact Petitioner Victor Rudolph Cobham made application for filing for examination as a Life and Health Agent on February 12, 1987, (hereafter, "application"). Question 8 of that application and Petitioner's answers thereto read as follows: Have you ever been charged with a felony? Yes If YES, give date(s): Dec. 16, 1983 What was the crime? Possession of cocaine & cannabis Where and when were you charged? Dade County, Dec. 16, 1983 Did you plead guilty or nolo contendere? Nolo Contendere on Appeal Were you convicted? Yes - Conviction reversed by 3rd District Court of Appeal Was adjudication withheld? See attachments to application Please provide a brief description of the nature of the offense charged. See attachments to application If there has been more than one felony charge, provide an explanation as to each charge on an attachment. Certified copies of the Information or Indictment and Final Adjudication for each charge is required. In response to the above question 8 Petitioner listed no other charges, convictions, or pleas, however he had, in fact, been charged on at least three other occasions. Petitioner was charged by an August 3, 1978 Information with possession of a controlled substance (cocaine), possession of cannabis in a felony amount, and possession or sale of a controlled substance implement (paraphernalia) in Case No. 78-7960 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. All of these charges were felony charges. Petitioner plead guilty to all charges. Adjudication of guilt was withheld. Petitioner was also charged by a September 18, 1978 Information with failure to redeliver a hired vehicle (rental car) in Case No. 78-10543 in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, which charge constitutes a felony. Petitioner pled guilty. Adjudication was withheld. In 1967, Petitioner was also charged with passing a worthless bank check but the charges were dropped because the check was paid. Whether this was a felony or misdemeanor charge is not clear. On March 31, 1987, the Insurance Commissioner denied Petitioner's application to sit for the insurance agent's examination due to this failure to divulge in his responses to question 8 of his application the facts contained in findings of fact 4-6, supra. Petitioner's position was that he had subconsciously omitted the information on the two 1978 charges due to the lapse of time and that since these charges did not result in any "convictions" no fraud was committed by him in failing to disclose them in response to question 8 of the application. He further asserted that because the Third District Court of Appeal reversed his conviction in the 1983 case, he had a "clean record." He offered no specific explanation for failing to reveal the 1967 charges except that with respect to all charges, he also asserted that he had assumed the agency would do an extensive background check as a result of his admission concerning the 1983 charge and would therefore discover all the charges prior to 1983 as well. Having weighed the credibility of Petitioner's testimony; the undersigned finds that Petitioner committed a material misstatement, misrepresentation, and fraud upon his application and that his reasons for his misstatement, misrepresentation and fraud are neither logical nor credible as mitigation therefor. Petitioner was previously a licensed insurance agent but has allowed his licensure to lapse. He has worked in insurance in one way or another for most of his adulthood. He is now an articulate 56 year old man who has completed two years of college. By education, training, and experience, Petitioner knows the difference between a charge and a conviction. Question 8 on the application requested that he list and explain all charges, not just convictions. It asked for types of pleas entered and whether adjudication had been withheld, thereby giving Petitioner every opportunity to explain the status of his record. Petitioner is knowledgeable about the various nuances of the judicial dispositions of each of the charges brought against him, and his failure to reveal them on his application can only be construed as deliberate misstatement, misrepresentation, and fraud.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Department of Insurance and Treasurer enter a final order denying Petitioner's application for filing for examination as a Life and Health Agent. DONE and RECOMMENDED this 10th day of September, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 10th day of September, 1987. COPIES FURNISHED: William Gunter Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Angelo A. Ali, Esquire 400 Roberts Building 26 West Flagler Street Miami, Florida 33130 Lealand L. McCharen, Esquire Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32399-0300 =================================================================
Findings Of Fact Respondent is Mason Calvin Jackson, licensed by Petitioner at all times relevant to these proceedings to engage in the business of insurance as a life agent, a life and health agent and as a health insurance agent. On or about August II, 1987, Respondent entered a plea of guilty in the United States District Court for the Southern District of Florida to dealing in counterfit obligations or securities of the United States in violation of Title 18 U.S.C. Section 473. Respondent was adjudged guilty of the offense and subsequently sentenced to incarceration for six months followed by three years of probation. The maximum sentence for the offense is a fine of $5,000 and/or imprisonment of 10 years. Respondent's guilty plea, conviction and sentence are undisputed. No evidence was presented regarding the underlying factual basis upon which Respondent's guilty plea, conviction and sentence rest.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent has demonstrated a lack of fitness or trustworthiness to engage in the business of insurance in violation of Sect 626.611(7), Florida Statutes, and revoking his licenses and eligibility for licensure. DONE AND ENTERED this 24th day of August, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 88-1234, 88-1468 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Addressed in finding 1. Addressed in finding 1. Addressed in finding 2. Addressed in finding 3. RESPONDENT'S PROPOSED FINDINGS 1.-2. Addressed in finding 1. 3. Addressed in findings 2-3. COPIES FURNISHED: S. Marc Herskovitz, Esquire Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 John Witt, Esquire 1610 Southern Boulevard West Palm Beach, Florida 33406 Don Dowdell, Esquire General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Hon. William Gunter State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issue for consideration in this case is whether Petitioner should be granted a request for exemption from employment disqualification with the Department of Juvenile Justice.
Findings Of Fact At all times pertinent to the issues herein, the Department of Juvenile Justice was the state agency in Florida responsible for the custodial care of juvenile offenders either in agency-run facilities or in facilities operated under contract to the Department. Prior to February 21, 1999, Petitioner had applied for a position with the Okechobee Youth and Development Center which had requested a review of this application. Petitioner was advised that he was disqualified from employment because of his prior criminal record, and on February 21, 1999, he requested a desk review of his application. The request for desk review was granted, and in the letter notifying him of that he was also advised of the his responsibility to provide certain matters in support of his request. On March 8, 1999, Mr. Broff filed an application for employment with Eckerd Youth Alternatives, Inc., an institution which provides services to youth under contract to the Department of Juvenile Justice, and by letter dated March 11, 1999, Petitioner attempted to explain the background surrounding several of the disciplinary actions taken against him. However, by letter dated March 29, 1999, the Department's Inspector General, Mr. Turner, advised Petitioner that his request for exemption had been denied. Mr. Turner based his decision to deny the exemption based upon his conclusion that the matters submitted by Mr. Broff in support of his request did not constitute sufficiently "compelling evidence" upon which to base the granting of an exemption. Mr. Turner indicated that as a criminal justice agency, the Department must exercise great care and caution in selecting those persons who are allowed to work with the juveniles in its care and custody, and at the hearing, he defined what standards were applied in the selection process. These include the applicant's affidavit of good moral character and disclosure of all court action. Mr. Broff's criminal record is extensive. On November 29, 1985, he was arrested by the Rockledge Police Department and charged with shoplifting. Adjudication of guilty was withheld by the court. On May 28, 1986, he was arrested for grand larceny and four charges of failure to appear. He was convicted of the grand larceny charge, but the disposition of the failure to appear charge is unknown. On June 24, 1987, he was again arrested in Rockledge for shoplifting and was convicted. On June 28, 1988, Mr. Broff was arrested in Volusia County on a charge of possession of cocaine and narcotics equipment. The disposition of those charges is unknown. On November 27, 1988, he was arrested by the Brevard County Sheriff's Office on a charge of possession of dangerous drugs and two charges of possession of narcotics equipment. Disposition is unknown. On November 30, 1988, he was again arrested in Volusia County on a charge of possession of narcotics and a charge of possession of narcotic equipment. Disposition is unknown. Mr. Broff's seventh arrest came in Brevard County on March 17, 1991, when he was charged with retail theft and shoplifting. Pursuant to his plea of guilty, he was convicted of the charges. On June 6, 1991, he was arrested by the Cocoa Police Department and charged with grand larceny. He was convicted of the charge after a plea of guilty. Then, on October 23 and 25, and again on December 26, 1991, he was arrested by the Cocoa Police Department for shoplifting. It is not known what the outcome of the first and third charges was, but the second charge was dropped. On April 3, 1992, Mr. Broff was arrested by the Brevard County Sheriff's Office on charges of petty larceny and possession of narcotics equipment. Disposition of the charges is unknown. On May 8, 1992, he was arrested in Cocoa on a charge of shoplifting. Disposition of the charge is unknown. On May 19, 1992, the Brevard County Sheriff arrested Petitioner on a charge of burglary, grand larceny, and vehicle theft. The disposition of the burglary charge is unknown, but the grand larceny charge was reduced to larceny. He pleaded guilty to the lesser charge and to the vehicle theft charge and was convicted of both. On June 4, 1992, he was arrested in Brevard County on a charge of failure to appear. The disposition of that charge is unknown. On August 20, 1992, he was again arrested in Brevard County on four charges of failure to appear regarding allegations of burglary, grand theft, battery, and petty theft. The disposition of all four charges is unknown. However, on September 1, 1992, he was arrested in Rockledge on a charge of burglary and of grand larceny. He was convicted of the burglary and no action was taken on the grand larceny charge. On May 21, 1993, Mr. Broff was arrested by the Brevard County Sheriff's Office on a charge of battery and probation violation resulting out of a charge of retail theft. The battery charge was not prosecuted and the disposition of the probation violation is unknown. On June 11, 1993, he was again arrested in Brevard County on a charge of shoplifting on which adjudication was withheld. On December 18, 1993, he was arrested in Melbourne on a charge of aggravated assault with a knife. He was convicted pursuant to his plea of guilty. On May 28, 1994, he was again arrested in Melbourne of a charge of spousal battery. The charge was dropped. On April 24, 1995, he was again arrested on a charge of domestic battery. This time he was convicted pursuant to his plea of guilty. He was arrested again on October 25, 1995, in Brevard County on a third charge of domestic battery and was convicted pursuant to his plea. On November 12, 1995, he was arrested for violating his probation on the domestic battery charge and for cruelty toward his wife. He pleaded guilty and was convicted. Finally, on December 7, 1995, he was arrested in Brevard County on a charge of failure to appear on a retail theft charge and, pursuant to his plea, was found guilty. A review of the court records pertaining to those arrests reveals that little punishment of substance was imposed on the Petitioner as a result of his convictions. As to the battery charges he was placed on probation each time with no confinement imposed. The only confinement was imposed as a result of the first grand theft charge, for which he was sentenced to 150 days in the county jail; for the possession of drug paraphernalia charge, for which he was sentenced to 33 days in the county jail; and for the five-count charge involving burglary, vehicle theft, and the related offenses. In that case, he was sentenced to 24 months in prison on each of three charges, to serve concurrently, and was credited with 65 days. According to Mr. Turner, Petitioner did submit the affidavit of good character and a written explanation for some of the offenses he committed, along with background information which he believed might shed some insight onto his behavior. Based on the information submitted by the Petitioner, including his personal history, his explanation of the offenses, and the testimonials submitted in his behalf, Mr. Turner denied Petitioner's request for an exemption because of the serious nature of some of the offenses committed by Petitioner; several of the offenses involved his own family; by his own admission, most of his offenses were drug related; and, the overall length of the Petitioner's criminal history--25 arrests over ten years. Those factors were considered in conjunction with what Turner described as insufficient time having elapsed since Petitioner's last offense. In a telephone conversation between Petitioner and Mr. Turner, Mr. Turner is alleged to have indicated the Department's policy to require a period of five years without offenses as evidence of rehabilitation. At the hearing Mr. Turner indicated he considered a minimum of ten years without offenses as acceptable. No evidence of a written department rule or policy defining the length of time required without offense was presented, and it is found there is no defined standard. Mr. Turner admits there is no set period required by the Department. Each case is viewed on its own merits. He considers Petitioner's criminal record the worst he has seen and it is his confirmed opinion that Petitioner should not be permitted to work with the type of clients served by the Department. This is not to say Petitioner should not be allowed to work elsewhere. Petitioner does not deny his criminal history or his former drug addiction. In fact, he contends, the criminal activity was to support his drug addiction. He contends, however, that before he became addicted to drugs and alcohol he had no problem with the law. He was an A/B student in high school and looked toward the possibility of a career in professional baseball. Once the substance abuse began, however, he quickly became addicted and fought for ten years to get clean. It was only when he was in prison that he realized the depths to which he had descended. By this time his self-image was at its worst. He contends that alcohol and drug abuse are manifestations of an inner problem. His mother suffered from a bipolar disorder and his father was an alcoholic who died when Petitioner was 15 years old. Petitioner admits he became just like them. Once Petitioner hit bottom he realized that he had to stop his self-destructive behavior. Fortunately for him, he found Faith Farm Ministries which reached out to him and he entered its long-term program, 18 months in a residential setting followed up by several years in an outpatient setting. It was there he was given back his sense of self-worth and an ability to set goals. Mr. Broff claims he got married when he should not have done so. He married a woman with addictions, and it was a mistake. He attended Brevard Community College where he earned a certificate in heating and air-conditioning repair and installation. That was not what he wanted to do, however. He wanted to become a counselor. For that, he needed further education and he was fortunate to find the help to get it. He continued counseling with his minister, with Alcoholics Anonymous, and with other agencies, all of which caused him to open himself to himself. He went to college and got both an associate and bachelor's degree. Mr. Broff contends that his criminal record is not a true picture of who he is. It reflects an acting-out of his thinking at the time. He is thankful there was someone there for him who gave him a sense of self-worth which allowed him to succeed. Based on his experiences, he believes he can give back to society and wants to do so. Petitioner has been granted an exemption by the Department of Children and Families based on more than three years without problem, as well as his demonstrated personal growth and rehabilitation. More than five years has passed since his last criminal activity, and, in fact, the last two entries were for incidents which took place well before the 5-year period began. He is confident he has rehabilitated himself and could serve as a role model for youth in the various programs conducted by the Department. He is currently working on a master's degree in counseling. Several individuals who are familiar with Petitioner's rehabilitation efforts, including representatives of rehabilitation facilities such as Faith Farm Ministries, Time for Freedom, Alpha Ministries, and Breakthrough Recovery Services, Inc.; representatives of the Department of Children and Families and the Department of Corrections; as well as individuals in the church and in business who know and have worked with him in later years, submitted letters of recommendation in his behalf reflecting his honesty, integrity, professionalism, and commitment to God and His Christian ministry. In these written testimonials, Petitioner is described as a stable and dependable individual whose efforts at counseling those still struggling are excellent. All are convinced of his complete rehabilitation. None of these letters are sworn and none are notarized. As such, their evidentiary value is diminished. In addition, Petitioner did not present any testimony in support of his position other than his own. However, no evidence was presented by the Department to indicate any recurrence of misconduct or of his unworthiness other that his criminal record. Though more direct evidence of rehabilitation by the Petitioner would have reinforced his claim thereof, it is found nonetheless that absent any showing of continuing misconduct, the evidence of record is sufficient to establish rehabilitation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a Final Order granting petitioner, Joey Broff, an exemption from disqualification from working with children or youth in programs operated by on under contract with this Department. DONE AND ENTERED this 27th day of September, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2000. COPIES FURNISHED: Joey Broff 4960 West Key Largo Drive Titusville, Florida 32780 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact The Respondent Michael Rush is a Doctor of Podiatry having been issued license number PO 0000529. The Respondent Rush was charged with and convicted of conspiracy to possess and import marijuana, Title 21 USC 841(a)(1), in the United States District Court, Connecticut. On March 30, 1981, the Respondent's conviction was affirmed, United States v. Rush, 666 F.2d 10 (2nd Cir. 1981). The Respondent Rush was incarcerated for a period of fourteen months, paid a fine of $15,000 and forfeited $33,000 from his savings account to the federal government pursuant to 21 USC 881(a)(6)(1976). The Respondent Rush is a resident of Broward County, Florida and maintains a professional office at 4700 Sheridan Street, Hollywood, Florida. Prior to the instant conviction, the Respondent Rush had never been charged with or convicted of any crime. The Respondent Rush has been active in community affairs, having participated in Little League, Boy Scouts, the Broward County Fair, and has received character references from a variety of local community leaders. The Respondent Rush is currently practicing his profession, has obtained professional liability insurance through the Podiatry Trust and is on the staff of Community Hospital of North Broward and Hollywood Pavillion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Administrative Complaint filed against Michael Rush by the Board of Podiatry be dismissed. DONE and ORDERED this 30th day of December, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1982.
The Issue Whether Petitioner's plea of guilty to the crime of grand theft is to a crime that involves moral turpitude or fraudulent or dishonest dealing, as required by Section 475.25(1)(f), Florida Statutes, before the Commission may lawfully deny his application for licensure as a real estate salesman. Whether Petitioner is now deemed qualified to hold a real estate licence because of the lapse of time since his plea of nolo contendere and Order Withholding Adjudication of Guilt and his subsequent good conduct and reputation, pursuant to Section 475.17(1)(a), Florida Statutes.
Findings Of Fact By application dated August 6, 1990, Petitioner applied to Respondent for a Florida real estate salesman's license. Petitioner disclosed on the application, in response to question seven, that he had plead nolo contendere and adjudication of guilt had been withheld for the crime of grand theft on August 1, 1988. A subsequent criminal records check revealed that Petitioner entered a plea of guilty to the felony charge of Grand Theft, in the Circuit Court for Pinellas County, Florida on August 1, 1988. Adjudication was withheld and he was sentenced to four years probation, and among other conditions is required to repay the victim restitution in the amount of $21,033.00. Petitioner is presently on probation, which is scheduled to be completed on August 1, 1992. He is complying with the terms of his probation, and is making payments of $100 to $150 per month in restitution. Restitution is not complete. Petitioner has not been arrested for any other crime or violated any conditions of his release during the period of his probation. Petitioner testified that his arrest and conviction was based on the fact that he had over $20,000 of an elderly lady's money in his personal checking account, placed there at the request of her nephew and with her consent, for the purpose of investing it in a commodity trading pool. However, during the time the funds were in his personal account, a prior judgment holder levied on the account and removed $6,600 in order to satisfy the judgment. He did not intend to use the funds for his own personal gain. However, he plead guilty to the charge of grand theft on the advice of counsel and with the understanding that the court would withhold adjudication, which was done. Petitioner is presently licensed by the National Association of Security Dealers (Series 3,7 and 63) to sell commodities and securities, and in the States of Florida, Wisconsin, Illinois and Indiana to sell life, health and variable insurance and annuity products and has not been previously disciplined.
Recommendation Based on the foregoing, it is recommended that a Final Order be entered Denying Petitioner's application for a real estate salesman's license, on the basis that he has been convicted of a crime involving moral turpitude. RECOMMENDED this 18th day of April, 1991, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1991. COPIES FURNISHED: Joselyn M. Price, Esquire Assistant Attorney General Florida Department of Legal Affairs 400 West Robinson Street Orlando, Florida 32801 Richard M. Liebold 2201 Willow Tree Trail Clearwater, FL 34623 Darlene F. Keller Division Director Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, FL 32801 Jack McRay General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him, as modified at hearing, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the parties' prehearing stipulation filed October 21, 2004, the following findings of fact are made: Respondent is now, and has been since October 17, 1988, licensed as an insurance representative in the State of Florida holding 02-16, 02-18, and 02-40 licenses. His licensure identification number is A268617. In 2001, criminal charges were filed against Respondent in Orange County Circuit Court Case No. CR-01-2309/B. On or about February 20, 2002, Respondent submitted, in Orange County Circuit Court Case No. CR-01-2309/B, a verified Petition to Enter Plea of Guilty, which read as follows: My name is Robert Trueblood and I acknowledge that I am the Defendant charged in the above-styled criminal case[]. I am represented by a lawyer, Arthur L. Wallace, III. I wish to withdraw my plea of not guilty and plead guilty to: Count 2 - Sale of Unregistered Security and Count 3 - Sale of Security by Unregistered Agent. I understand that each of these counts is a third degree felony and each is punishable by up to five (5) years in the Department of Corrections and a $5,000.00 fine. I have told my lawyer all the facts and circumstances about the charges against me. I believe that my lawyer is fully informed on all such matters. My lawyer has counseled and advised me on the nature of each charge; on any and all lesser included charges; on all possible defenses that I might have in this cause; and all the penalties that might be imposed if convicted.[1] I understand that I may plead not guilty to any offense charged against me. If I choose to plead not guilty, the Constitution guarantees me the right to maintain that plea and (a) the right to a speedy and public trial by jury; (b) the right to see, hear and face in open Court all witnesses called to testify against me and to cross- examine said witnesses; (c) the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor; (d) the right to have the assistance of a lawyer at all stages of the proceedings and to have one appointed for me if necessary; and (e) also the right to take the witness stand at my sole option; and if I do not take the witness stand I understand the jury, at my request, will be told that this may not be held against me. I also understand that by pleading guilty and admitting the truth of the charges against me, I am waiving all of the rights referred to in the above paragraph and the Court may impose the same punishment as if I had ple[]d not guilty, stood trial and been convicted. I know that if I plead guilty there will be no further trial of any kind, which means that by pleading guilty I waive my right to trial. I understand that some of the charges filed against me in this case may have occurred in whole or in part in Florida Counties other than Orange. However, I wish to resolve, in Orange County, all the charges filed in case number CR 01-2309 and do affirmatively waive my right to venue in other counties where the crimes may have occurred. I am 55 years of age. I have gone to school up to and including 5 y[ea]rs [of] college. I am not under the influence of any alcoholic beverage, drug or medicine at the time I sign this plea agreement. My physical and mental health is presently satisfactory. No one has made any promise, assurance or guarantee to me that I would receive any consideration in exchange for pleading guilty other than as set out in this plea agreement. I declare that no one has subjected me to any force, duress, threats, intimidation or pressure to compel or induce me to enter a plea of guilty. I am entering this plea with the understanding that I may serve every day of the sentence I am agreeing to in this plea agreement. Although I may have received advice or opinions as to the potential for some type of early release, I hereby acknowledge under oath that I have not relied upon those opinions or that advice as an inducement to enter this plea. I believe that my lawyer has done all that a competent attorney could to counsel and assist me. He has answered all my questions about this case to my satisfaction and I AM SATISFIED WITH THE ADVICE AND HELP HE HAS GIVEN ME. I understand that if I am not a United States citizen, this criminal proceeding could cause me to be deported to the country of my origin. I understand that if I fail to pay any fines or costs as ordered by the Court, there will be a lien placed against me. I understand that I waive my right to appeal any rulings of the Court previously made in this case except as specifically stated herein. I understand that I have the right to appeal the judgment and sentence of the Court within thirty (30) days from the date of sentence. I understand that any appeal must be in writing. I understand that if I wish to take an appeal and cannot afford an attorney to help in my appeal, the Court will appoint an attorney to represent me for that purpose. I request the Court to accept my plea, knowing that upon it being accepted by the Court that nothing will remain to be done except for the Court to enter its judgment and sentence. I offer my plea freely and voluntarily and of my own accord and with full understanding of all matters set forth in the Information and in this Petition, the Certificate of my lawyer and Plea Agreement which are contained herein. Though I may have been assisted by my lawyer, I certify that the statement and representations herein above made are my own and have not been suggested directly or indirectly by him or anyone else, and that the decision to plead guilty was made by me. I further represent that my attorney has advised me of considerations bearing on the choice of which plea to enter and the pros and cons of such plea, the likely results thereof as well as any possible alternative which may be open to me. I represent to the Court that the plea bargain attached hereto was negotiated by my attorney with my full and complete consent thereto and that the decision to plead guilty was made by me. I fully concur in the efforts of my attorney and agree to the terms of the bargained plea. The Plea Agreement between Respondent and the prosecutor (which was referenced in Respondent's Petition to Enter Plea of Guilty) read as follows: The Defendant, and the State, pursuant to the provisions of Fla. R. Crim. P. 3.171, agree and stipulate to recommend to the Court the following resolution of the above- styled case: Defendant agrees to plead guilty as charged to Count 2 - Sale of Unregistered Security and Count 3 - Sale of Security by Unregistered Agent. The State will stand silent as to the issue of adjudication. The Defendant shall be sentenced to five (5) years of supervised probation with all standard conditions, as well as the following special conditions: The Defendant shall testify truthfully when requested by the State, without the necessity of subpoena, in reference to any and all matters related to the facts and circumstances surrounding the Defendant's charges in this case. The Defendant shall pay restitution in an amount to be determined. The Defendant agrees the amount of restitution owed is not limited to the transactions to which he is entering this plea. Defendant shall pay court costs as directed by the Court. Defendant shall be required to pay $3,5000.00 for costs of prosecution to the Office of Statewide Prosecution, Department of Legal Affairs for the State of Florida. The Defendant shall pay $500.00 to the Florida Department of Law Enforcement and $500.00 to the Office of Comptroller, Department of Banking and Finance for costs of investigation involved in this case. The Defendant shall have no contact, directly or indirectly, with any of the witnesses in this case. [4]. If the Defendant violates any law while awaiting sentencing or if he fails to appear for sentencing as ordered by the Court, the State shall not be bound by this agreement and may recommend any lawful sentence and the Court may impose any sentence permissible under the law. The Defendant shall not be entitled to withdraw his plea of guilty in this case. [5]. The State agrees to nolle prosequi Count 4 - Sale of Unregistered Security, Count 5 - Sale of Security by Unregistered Agent, Count 6 - Sale of Unregistered Security, and Count 7 - Sale of Security by Unregistered Agent. [6]. If the sentence agreed upon in this plea agreement is a departure from the sentencing guidelines, both the State of Florida and the Defendant agree not to appeal this sentence. [7]. Should the Defendant violate his community control or probation, he affirmatively agrees that he shall be sentenced pursuant to the sentencing guidelines. [8]. The Defendant affirmatively agrees not to request that the Court impose a sentence lower than the sentence outlined above. [9]. Both the State and the Defendant understand that the trial judge has the ultimate responsibility for the sentence the defendant actually receives and that the recommendations made above are not binding on the trial judge unless adopted thereby. The Defendant shall not be entitled to withdraw his pleas of guilty in the event that the trial judge imposes a sentence different from that recommended above. On February 20, 2002, after Respondent entered his guilty pleas in Orange County Circuit Court Case No. CR-01- 2309/B to Count 2 (alleging the "Sale of Unregistered Security," in violation of Section 517.07, Florida Statutes) and Count 3 (alleging the "Sale of Security by Unregistered Agent," in violation of Section 517.12(1), Florida Statutes), the court accepted the pleas, withheld adjudication, and placed Respondent on two concurrent five-year terms of probation, with the special condition that he "serve 1 Day[] in the Orange County Jail, with 1 Day[]'s credit for time served." Other special conditions, including those described in the Plea Agreement set out above, were also imposed.2 Respondent failed to notify Petitioner in writing within 30 days after entering his guilty pleas in Orange County Circuit Court Case No. CR-01-2309/B that he had entered the pleas. Respondent has previously been disciplined by Petitioner's predecessor, the Department of Insurance (DOI). By Consent Order issued November 1, 2000, in DOI Case No. 31036-00-AG, Respondent was suspended for a period of three months. The Consent Order approved the parties' Settlement Stipulation for Consent Order, which provided, in pertinent part, as follows: * * * The Department has caused to be made an investigation of the Respondent and other individuals involved in the marketing and promotion of Legends Sports, Inc. As a result of that investigation, the Department alleges that the Respondent induced individuals to invest in Legends Sports, Inc. and represented that the investment was guaranteed by a surety insurer. However, the investment was not a good investment, the purported surety insurer did not exist or was not authorized to conduct business in this state, and the investment resulted in substantial losses to individual investors. The investigation resulted in a multi- count criminal information (hereinafter referred to as the "criminal actions") being filed against Respondent and other Legends Sports agents in the Seminole County Circuit Court in Sanford, Florida, Case No. 98- 4569CFW. Specifically, Respondent was charged with the following felonies: sale of unregistered securities, sale of securities by an unregistered dealer and unlawful transaction of insurance. Respondent has entered or will enter a plea of guilty to lesser included charges which are first degree misdemeanors. As a result of the plea, the Court in the criminal action, among other things, placed the Respondent on probation. As a condition of probation, the Court ordered the Respondent to pay restitution to the individuals who invested in Legends Sports through the Respondent and suffered financial losses as a direct consequence of such investments. The restitution amount represents the commissions received by the Respondent (hereinafter referred to as the "restitution order in the criminal action"). The Court in the criminal action also ordered that a criminal restitution judgment, that is not dischargeable in bankruptcy, be entered for the full amount of the promissory notes sold by the Respondent, unless a judgment has already been entered in that amount in favor of the Receiver for Legends Sports. Respondent denies knowingly misrepresenting the Legends Sports investment. * * * 13. This Settlement Stipulation for Consent Order is subject to the approval of the Insurance Commissioner. Upon his approval, and without further notice, the Insurance Commissioner may issue a Consent Order providing for the following: Incorporation by reference of the terms and conditions of this Settlement Stipulation For Consent Order. Respondent's licensure and eligibility for licensure as an insurance agent within the state are SUSPENDED for a period of three (3) months pursuant to section 626.641(1), Florida Statutes. The suspension shall take effect on 11/1/2000. * * * Approximately a year earlier, by Consent Order issued July 12, 1999, in DOI Case No. 99-CE58350, Respondent was fined $250.00 for failure to comply with continuing education requirements. Respondent's health has deteriorated in recent years. He has "been in the hospital several times with . . . heart [problems]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of twice violating Section 626.621(8), Florida Statutes, as alleged in Counts I and II of the Amended Administrative Complaint, and of violating Section 626.621(11), Florida Statutes, as alleged in Count III of the Amended Administrative Complaint, and suspending his licenses for nine months for having committed these violations. DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2004.
The Issue By a two-count Amended Administrative Complaint, the Department of Insurance has charged Respondent, a licensed Florida life and health insurance agent, pursuant to Count I with violations of Sections 626.611(7), 626.611(14) and 626.621(8), F.S. arising out of his plea of nolo contendere to a felony charge of grand theft, and pursuant to Count II with violating Section 626.611(7) F.S. arising out of adjudication of guilt to multiple misdemeanor charges of issuing worthless bank checks.
Findings Of Fact Respondent is currently eligible for licensure and licensed in Florida as a life insurance agent and as a health insurance agent. He has been so licensed since 1985, and except for the facts, as set out infra., no disciplinary charges have ever been filed against him. Count I of the Amended Administrative Complaint On December 6, 1989, Respondent was charged by Information in the Circuit Court of the Eighth Judicial Circuit, in and for Alachua County, Florida, in Case No. 89-4842-CF, with a felony, to wit: Grand Theft in the third degree, a violation of Section 812.014, F.S. Respondent admitted that Case No. 89-4842-CF arose out of his writing a check on First Union Bank to cover computers previously contracted for by Respondent for his insurance agency. When he wrote the check, Respondent knew that he was short of funds but expected to deposit sufficient funds to the appropriate account before his check was presented for payment. When this "kiting" episode occurred, Respondent was short of funds due to an illegal conversion of funds perpetrated by one of his employee agents. Respondent did not get the money into his account in a timely manner and did not later "make the check good" before prosecution began. In accord with the appropriate regulatory rules, Respondent reported the illegal conversion by his employee agent to the Petitioner Department of Insurance and cooperated with that agency. He also reported the offending employee agent's illegal conversion to the local State Attorney. He cooperated in a criminal prosecution and filed a civil action in his own right against the offending agent. These events further depleted his assets and in part accounted for his being unable to make his check good. On July 19, 1990, in response to the Information filed against him, Respondent entered a plea of nolo contendere to grand theft, a felony in the third degree, in Circuit Court Case No. 89-4842-CF. With adjudication of guilt withheld, Respondent was placed on probation for one year and ordered to pay restitution in the amount of $7,139.29 to First Union Bank. Pursuant to court papers and Respondent's testimony, it appears that he was first given until July 19, 1991 to complete restitution on this charge. Respondent testified without refutation that he had received an extension from the circuit court until July of 1993 in which to make this restitution. That date had not yet been reached as of the date of formal hearing. With regard to his nolo contendere plea to a third degree felony, adjudication withheld, Respondent's unrefuted testimony is that he was represented by an attorney, Johnny Smiley, until Mr. Smiley was suspended from practicing law by the Florida Bar and that Mr. Smiley failed several times to appear on his behalf in court, did not advise him of any alternative misdemeanor pleas, and never properly advised him of all the potential consequences of pleading nolo contedere to a felony charge of grand theft, including that if that offense is construed as an offense involving moral turpitude, then Section 626.611(14), F.S. may be read to mandate revocation or suspension of his professional insurance licenses. It may be inferred from Respondent's testimony that Respondent, the prosecutor, and the circuit court judge assumed that Respondent would be able to continue selling insurance and thereby would be able to meet the restitution requirements of his plea bargain and probation. At formal hearing on January 3, 1992, Respondent represented that he had made some restitution and hoped to complete restitution under the foregoing circuit court order by January 31, 1992. Respondent further represented that a circuit judge had indicated that once Respondent made restitution on all charges (including those misdemeanor adjudications that gave rise to Count II of the instant amended administrative complaint, see infra.), the court would entertain a motion to set aside his grand theft plea. What the circuit judge may or may not have indicated is not admissible for proof of the matters asserted, but it is admissible to show Respondent's reliance thereon and his motivation beyond the obvious motivations for making restitution as soon as possible. By stipulation of the parties, the record in this instant disciplinary cause was left open for 60 days after formal hearing so that Respondent could amplify on this testimony. Pursuant to Fla. Rule of Criminal Procedure 3.850, and Art. I Section 16 of the Florida Constitution, Respondent has filed a Motion for Post- Conviction Relief in Circuit Court Case No. 89-4842-CF. However, a copy of this motion was not filed as an exhibit with the Division of Administrative Hearings until the day before the record herein closed by Order of March 5, 1992. Because the record was closed, the outcome, if any, of that circuit court motion/exhibit is not before the undersigned. Also, Respondent's motion/exhibit alone is not sufficient evidence for the undersigned to infer that Respondent has paid all required restitution amounts as of the date of this recommended order. Count II of the Amended Administrative Complaint From September 7, 1990 through July 30, 1991, the Respondent was charged by several Informations in the Circuit Court of the Eighth Judicial Court, in and for Alachua County, Florida, in Case Nos. 90-3267-CF-A, 90-3310- CF-A, 90-3881-CF-A, 91-2236-CF-A, 91-2237-CF-A, 91-2238-CF-A, 91-2712-CF-A, and 91-2713-CF-A, with one count per case of a third degree felony, to wit: Issuing a Worthless Check, a violation of Section 832.05(4), F.S. According to Respondent's unrefuted testimony, the negative balance situation arising from his earlier felony plea bargain, the need to make restitution in that case, and his attorney fees and costs associated with suing the agent who had taken money from Respondent's agency and one of Respondent's insurance carriers had caused an additional shortage of personal funds at a time Respondent was desperately fighting to save his marriage and keep his family, consisting of a wife and two small daughters, together. He admitted that he had issued seventeen worthless bank checks during this stressful period for personal expenses, primarily for telephone charges, groceries, and furniture. Nonetheless, Respondent's marriage failed and the couple is now divorced. By a plea bargain executed July 30, 1991, Respondent agreed to enter a nolo contendere plea to four first degree misdemeanor charges of issuing worthless bank checks and agreed to make restitution totalling $6,492.88 on thirteen others. The restitution agreement covering 17 checks included restitution for nine worthless checks for which the State had agreed to allow deferred prosecution. Five check charges were to be dismissed. What happened next is not entirely clear because, despite an order of the circuit court accepting the plea bargain, the case numbers in the plea bargain and on the subsequent judgments do not match, and it appears that on July 30, 1991, Respondent plead nolo contendere and was adjudicated guilty of eight first degree misdemeanor charges, ordered to serve six months probation on each, the probations to run concurrently, and was further ordered to make restitution pursuant to the plea/restitution agreement. Pursuant to court papers and Respondent's testimony, it appears that he was also given six months, or until approximately January 31, 1992, to make restitution on these cases. That date had not yet been reached as of the date of formal hearing. Respondent remained on probation as of the date of formal hearing. Respondent testified at formal hearing that he hoped to make full restitution on these cases by January 31, 1992, and that unless he also made full restitution on the grand theft case, he could not file a motion to vacate his plea therein. (See, Finding of Fact 7, supra.) Respondent did not file any evidence of restitution in these misdemeanor cases, although he was given until March 5, 1992 to do so. The filing as an exhibit herein of his Motion for Post- Conviction Relief in the circuit court felony case covered in Count I of the instant amended administrative complaint is not sufficient for the undersigned to infer that Respondent has made full restitution on these misdemeanor charges covered in Count II of the instant amended administrative complaint. (See, Finding of Fact 8, supra.) Respondent presented the testimony of Reverend L.D.J. Berry, pastor of a Baptist Church in St. Thomas, Florida, to the effect that the minister has bought insurance from Respondent and has always found him to be helpful and honest in insurance matters. Although Reverend Berry has counselled with Respondent, Respondent is not a member of Reverend Berry's parish. Reverend Berry has never been a recipient of one of Respondent's bad checks. Reverend Berry considered the Respondent to be of good character, even knowing of his bad check history.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order that: Finds Respondent guilty of violating Sections 626.611(14) F.S. and 626.621(8) F.S. and not guilty of violating Section 626.611(7), F.S. as alleged in Count I of the Amended Administrative Complaint; Finds Respondent not guilty of violating Section 626.611(7) F.S. as alleged in Count II of the Amended Administrative Complaint; and Suspends Respondent's licensure and eligibility for licensure as a life and health insurance agent for six months and provides for a probationary period subsequent to reinstatement of his licenses to run concurrently with any criminal probations left for him to serve, up to the maximum of two years provided by Section 626.691 F.S., during which period of license probation, Respondent's insurance business shall be monitored by the Department of Insurance upon such terms as the Department shall determine to be appropriate. RECOMMENDED this 29th day of April, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3109 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Accepted substantially; modified to eliminate subordinate, unnecessary, and cumulative findings: 1, 2, 3, 4, 5, 7, 13, and 15. Rejected because as stated, it is a mischracterization of the weight of the evidence, but sunstantially covered within the recommended order: 6, 8, 14, 16. Accepted as modified. What has been rejected has been rejected so that the recommended order conforms the greater weight of the credible record evidence as a whole: 9, 10, 11, 12, 17. Respondent's PFOF: Accepted substantially, but modified to eliminate subordinate unnecessary, and cumulative findings or otherwise C, D, E, F. Accepted as modified. What has been rejected was rejected to conform the recommended order to the greater weight of the credible record as a whole: A, B. COPIES FURNISHED: Michele Guy, Esquire Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 S. Scott Walker, Esquire Watson, Folds, Steadham, et al. P. O. Box 1070 Gainesville, Florida 32602 Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 200 E. Gaines Street 412 Larson Building Tallahassee, Florida 32399-0300
Findings Of Fact Hearing was delayed for thirty minutes in order to allow Ronald Scarlata additional time to appear. Because Scarlata failed to appear no further evidence was presented regarding why he should be entitled to a mortgage broker's license beyond the statements contained in his original application. The Department of Banking and Finance was then directed to present its evidence as to why Ronald Scarlata should not be licensed as a mortgage broker. The Department of Banking and Finance called two witnesses, Ehrlich and Spradley, and offered Exhibits 1-4 for identification. Exhibits 1, 3, and 4 were received and Exhibit 2 was rejected because it lacked relevance to the charges. Ronald Scarlata, the applicant for licensure, filed his application (Exhibit 1) together with a fingerprint card (Exhibit 3) with the Department of Banking and Finance as required by statute. The Department of Banking and Finance as a part of its normal procedure in reviewing such application, forwarded the fingerprint card of Ronald Scarlata to the Florida Department of Criminal Law Enforcement for a check of its files to determine if the applicant had ever been arrested in Florida. This check of the Florida Department of Criminal Law Enforcement files revealed no history of arrest of the applicant. The fingerprint card (Exhibit 3) was forwarded to the Federal Bureau of Investigation by the Florida Department of Criminal Law Enforcement for a check of its files. The check of its fingerprint cards by the Federal Bureau of Investigation revealed that the person by the name of Ronald A. Scarlata whose fingerprints matched those of the applicant had been arrested in Rochester, New York, for third degree burglary and attempted first degree grand larceny and was convicted of attempted second degree grand larceny. The Department of Banking and Finance caused the Florida Department for Criminal Law Enforcement to inquire directly to the Rochester, New York authorities to determine whether their records coincided with those of the Federal Bureau of Investigation. This inquiry resulted in the receipt of a TELEX message (Exhibit 4) received by 0. Allen Spradley, the addressee of the message, from the Rochester Police Department. This message confirms the information received by the Florida Department of Criminal Law Enforcement from the Federal Bureau of Investigation. Spradley, former employee of the Federal Bureau of Investigation fingerprint identification branch, stated that entry on the Federal Bureau of Investigation report indicated a conviction and sentencing as opposed to probation without adjudication of guilt or conviction. The crime of attempted grand larceny in the second degree involves moral turpitude. The application of Ronald Scarlata (Exhibit 1) indicates that the applicant answered question 5 on page 2, regarding prior arrests or indictments, in the negative, and subscribed the application on February 5, 1975.
