Findings Of Fact The Respondent, Alton Lynn Gillen, Jr., is a licensed Surety Agent doing business in the State of Florida. Respondent was charged by information, on or about December 23, 1980, in the Circuit Court of the Twentieth Judicial Circuit of the State of Florida, with a violation of the Racketeering Influenced and Corrupt Organization Act and with conspiracy to traffic in cannabis. On February 5, 1981, Respondent pled nolo contendere to the charges contained in the information. On May 13, 1981, an Order was entered in the Circuit Court of the Twelfth Judicial Circuit in and for Lee County, Florida, adjudicating Respondent guilty of a violation of the Racketeering Influenced and Corrupt Organization Act and of conspiracy to traffic in cannabis. Respondent was sentenced by the same order to state prison for a period or term of ten years. Respondent, having reserved his right to appeal as a condition of the nolo contendere plea, thereafter appealed this conviction and is currently awaiting its determination. Respondent, through his attorney, contacted Petitioner to ascertain whether or not he would be permitted to continue operating under his license after adjudication of guilt and while his appeal was pending. In a telephone conversation between Respondent's attorney and Onez O'Neill, Chief of Bureau of Licensing, on February 20, 1981, Respondent was advised that once the Department received formal notice of the convictions, a revocation proceeding would probably be instituted, but that his license would be reinstated upon receipt by the Department of certified copies of the information, judgment and sentence, and notice of appeal. Within a few days after being adjudicated guilty (May 13, 1981), Respondent obtained certified copies of those documents, as well as certified copies of notice of appearance by the appellate attorney, motion for supersedeas bond, and the supersedeas bond. On or about May 20, 1981, Respondent personally delivered those documents to O'Neill's office with a cover letter from his attorney (R-Ex 1). Since O'Neill was not in her office that day, Respondent gave the documents to the assistant chief, Joe Crutchfield. Respondent explained the nature of the problem and the reason for the delivery of the documents. Crutchfield assured him that everything appeared to be satisfactory and that he would personally discuss the matter with O'Neill the next day. On or about June 1, 1981, Petitioner caused a letter to be sent to Respondent by John Rich, a licensing specialist employed by Petitioner (R-Ex 2). This letter advised that Respondent could "continue operating as a bondsman under his current license until such time as the legal appeal process has been finalized...", subject to approval by the surety company underwriting Respondent. Based on the affirmative representations of Petitioner, by telephone and by its letter of June 1, Respondent continued to write bonds and incur financial obligations as a result thereof. Respondent also continued making contributions to a "build-up fund" held in trust for his underwriter. The buildup fund is money generated out of bond premiums which is held in an escrow account for the underwriter if it becomes legally liable for an estreature of a bond written by Respondent. On September 30, 1981, Petitioner renewed Respondent's license with full knowledge of his convictions (P-Ex 3). On April 5, 1982, Petitioner filed its Administrative Complaint seeking to revoke Respondent's license based on his adjudication of guilt of the two criminal charges to which he pleaded on February 5, 1981.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint, subject to refiling if Respondent's appeal is denied. DONE and ORDERED 30th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1982. COPIES FURNISHED: David A. Yon, Esquire Department of Insurance and Treasurer 428-A Larson Building Tallahassee, Florida 32301 Burton C. Conner, Esquire 207 N.W. Second Street Okeechobee, Florida 33472 The Honorable Bill Gunter Insurance Commissioner & Treasurer Department of Insurance The Capitol Tallahassee, Florida 32301
The Issue The issue is whether Petitioner should be exempt from disqualification for employment in a position of trust, pursuant to section 435.07, Florida Statutes.1/
Findings Of Fact AHCA is authorized to conduct certain background screenings for employees providing specific types of services within health care facilities licensed by AHCA. See § 408.809(1)(a), Fla. Stat. (employees subject to screening); § 408.803(9), Fla. Stat. (definition of “licensee”). Petitioner was required to participate in Respondent’s background screening process because he sought employment in a position providing direct services to residents of a health care facility licensed by AHCA under chapter 400, Florida Statutes. Petitioner underwent the required background screening, which revealed: On or about May 6, 1996, in Case No. 1995MM007600, Petitioner was adjudicated guilty of Battery under section 784.03(1)(a)1., Florida Statutes. At the time of this offense, Petitioner and Teresa Poole, the alleged victim, resided together or shared the same dwelling. On or about May 15, 2002, in Case No. 2002CF000065, Petitioner pled no contest to Battery under section 784.03(1)(a)1., a misdemeanor. Adjudication was withheld. At the time of this offense, Petitioner was residing with or was sharing the same dwelling with Erica Goode, the alleged victim. On or about July 6, 2009, in Case No. 2009MM000294, Petitioner pled no contest to Battery under section 784.03(1)(a)1. Christine Crowley, the alleged victim, and Petitioner are related by blood and have previously resided together in the same dwelling. Christine Crowley is Petitioner’s biological sister. Each of the above-referenced battery charges constitutes Domestic Violence under section 741.28, Florida Statutes. Under sections 435.04(3) and 408.809(4)(e), Florida Statutes, the above-referenced criminal offenses disqualify Petitioner from providing services in a health care facility licensed by AHCA, unless AHCA grants Petitioner an exemption pursuant to section 435.07. In addition to his disqualifying offenses, Petitioner's background screening revealed: On or about September 18, 1998, in Case No. 1998CF000638, Petitioner was arrested for Aggravated Battery under section 784.045(1)(a)1. Although Petitioner was not ultimately convicted, at the time of this charged offense, Petitioner was residing with or had previously resided with the alleged victim, Christina McCullum, in the same dwelling. A conviction of this charge would constitute Domestic Violence under section 741.28. On or about September 21, 1998, in Case No. 1998CT003202, Petitioner pled no contest to Driving While License Suspended (With Knowledge) under section 322.34(2), Florida Statutes. Petitioner maintains that he did not actually have knowledge. On or about February 1, 1999, in Case No. 1999CT00187, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about February 24, 1999, in Case No. 1998CT004442, Petitioner was adjudicated guilty of Driving While License Suspended (With Knowledge) under section 322.34(2). Petitioner maintains that he did not actually have knowledge. On or about January 25, 1999, in Case No. 1999CF000264, Petitioner was arrested for Burglary under section 810.02(3)(b) and Battery under section 784.03(1)(a)1. At the time of these offenses, Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about April 14, 1999, in Case No. 1999MM000766, Petitioner was arrested for Assault under section 784.011. Petitioner was not ultimately convicted. On or about July 14, 1999, in Case No. 1999CF2483, Petitioner was arrested for Aggravated Battery under section 784.045. Petitioner was not ultimately convicted. At the time of this alleged offense, the Petitioner had previously resided with the alleged victim, Christina McCullum, in the same dwelling. If convicted, this charge would constitute Domestic Violence under section 741.28. On or about December 12, 1999, in Case No. 1999CF000727 (later transferred to 1999MM002249), Petitioner was arrested for Battery under section 784.03(1)(a)1. and Resisting without Violence under section 843.02. At the time, Petitioner had previously resided with the victim, Christina McCullum in the same dwelling. The battery charge constitutes Domestic Violence under section 741.28. Petitioner was adjudicated guilty of the above-referenced Resisting without Violence charge and sentenced to a year of probation with a special condition of completion of a Batterer’s Intervention Program. i. On or about July 30, 2002, in Case No. 2002MM007400, Petitioner was charged for giving a worthless check under section 832.05(2), but the charges were ultimately dismissed. On or about November 5, 2003, in Case No. 2003CF000692, Petitioner was charged with Aggravated Battery under section 784.045(1)(a)1. Petitioner was not ultimately convicted. On or about March 18, 2004, in Case No. 2004CF000185, Petitioner was charged with Dealing in Stolen Property, under section 812.019(1). Petitioner was not ultimately convicted. On or about June 3, 2009, in Case No. 2009CF000362, Petitioner was charged with Burglary under section 810.02(3)(c) and Petit Theft under section 812.014(3)(a), Florida Statutes. Petitioner was not ultimately convicted. At the time of the above- referenced charges, Petitioner was the former spouse of, and had previously resided with, the alleged victim, Erica Goode/Crowley in the same dwelling. On or about June 26, 2009, in Case No. 2009MM000678, Petitioner was arrested for Battery under section 784.03(1)(a)1. and Disorderly Conduct (Affray) under section 870.01(1). Petitioner was not ultimately convicted. On or about July 9, 2009, in Case No. 2009MM000721, Petitioner was charged with violating a No Contact Order issued by the first appearance judge in the case referenced above. Petitioner was not ultimately convicted. On or about August 21, 2009, in Case No. 2009MM000922, Petitioner was arrested for Battery under section 784.03(1)(a)1. Petitioner was not ultimately convicted. At the time of this arrest, Petitioner was residing in the same dwelling with the alleged victim, Michelle Vanhoose. On or about January 2011, in Case No. 2010CF000620, Petitioner was adjudicated guilty of Aggravated Stalking under section 784.048(3), Florida Statutes. Licensed professionals under the Department of Health may work at a facility licensed by AHCA, if granted an exemption by the Department of Health, but may only work within the scope of that professional license, unless AHCA itself grants the applicant an exemption. Petitioner does not have an active license or exemption from disqualification from the Department of Health. Petitioner does not dispute that he has disqualifying offenses and subsequent criminal history, but claims his application and entire file support his rehabilitation by clear and convincing evidence. AHCA received Petitioner’s application for exemption in accordance with sections 408.809 and 435.07, on or about June 15, 2017. AHCA conducted a telephonic hearing with Petitioner on August 2, 2017. During the telephonic hearing, in addition to discussing the results of Petitioner’s background screening, as evidence of his rehabilitation, Petitioner pointed out that he has been working, getting an education, and has not been arrested in six years. Petitioner also submitted several positive letters of recommendation from close friends and family. After the telephonic hearing, AHCA denied Petitioner’s request for an exemption and sent Petitioner the Denial Letter, signed by AHCA’s manager for the Background Screening Unit, Samantha Heyn, on behalf of AHCA. Although Ms. Heyn did not attend AHCA’s telephonic hearing with Petitioner, she previously spoke to Petitioner in a phone call about his exemption request. In making the decision to deny Petitioner’s application, Ms. Heyn and pertinent AHCA staff with the background screening unit considered Petitioner’s entire case file, including all submissions received from Petitioner and his explanations during the teleconferences. AHCA also considered the time elapsed since the offenses, the nature and harm to the victims, the circumstances surrounding the offenses, Petitioner’s history since the offenses, and all other supporting documentation provided by Petitioner before deciding to deny Petitioner's request for exemption from disqualification. Petitioner testified that he has ambitions to work as a licensed health care professional. During the administrative hearing, Petitioner testified that he is in his current predicament because of vindictive people falsely accusing him of crimes, and AHCA personnel who have labeled him a criminal. Similarly, during his earlier teleconference with AHCA, Petitioner stated that he was in his current situation due to racism, labeling, vindictive people out to destroy him, and other factors out of his control. Petitioner’s statements at the initial teleconference with AHCA were conflicting as to whether the courses he took for batterer’s intervention and anger management were court-ordered, conditions of a plea deal with prosecutors, or fully voluntary outside of the criminal justice system. Petitioner was arrested for violent and domestic crimes after taking each course. While Petitioner has stated that he takes full responsibility for his actions, his other statements at the teleconference and at the administrative hearing reflect a lack of candor and an unwillingness to accept responsibility for his past criminal episodes. While the letters of recommendation from close family and friends, successful educational pursuits, and a clean record for the last six years demonstrate progress toward rehabilitation, this fairly recent success does not annul Petitioner's extensive criminal history, lack of candor, and unwillingness to accept responsibility. The records of successful exemption applicants offered by Petitioner were not helpful to Petitioner’s case. The criminal backgrounds were not the same as Petitioner’s and the evidence was insufficient to permit a useful comparison between the facts and circumstances of those applicants with those of Petitioner. In view of all of the evidence, it is found that Petitioner failed to meet his burden to prove by clear and convincing evidence of rehabilitation when he presented his case to AHCA, and the evidence presented at the final hearing failed to demonstrate that AHCA abused its discretion in denying Petitioner’s request for exemption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a final order denying Petitioner’s request for an exemption from disqualification for employment. DONE AND ENTERED this 16th day of March, 2018, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 16th day of March, 2018.
The Issue An Administrative Complaint dated January 22, 1998, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, by failing to disclose on his licensure application that on August 9, 1993, he had pled nolo contendere to passing a worthless check. The issue for resolution is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact Since approximately July 1, 1996, and at all times relevant, Respondent Donald J. Berry has been licensed as a real estate salesperson pursuant to Chapter 475, Florida Statute. He was born in England on April 4, 1966. The application for licensure which Mr. Berry submitted to the Department of Business and Professional Regulation (DBPR), Division of Real Estate, and which he signed and acknowledged on April 18, 1996, includes these pertinent parts: 9. Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including a sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. . . . AFFIDAVIT OF APPLICANT The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s) (he) is the person so applying, that (s) (he) has carefully read the application, answers, and the attached statements, if any, and that all succeeding answers and statements are true and correct, and are as complete as his/her knowledge, information and record of permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives by him/her in response to inquiries concerning his/her qualifications. (Petitioner's Exhibit No. 1.) Before he completed and signed the application, Mr. Berry called the Division of Real Estate and told them that the documentation he had was an arrest report. He understood from the staff-person's response that he could write information on the application and enclose what he had. He then checked "yes" in response to question no. 9, and wrote on the application form, "Driving with a suspended driving license." He also, so he thought, enclosed a copy of the arrest warrant from when he was stopped for traffic charges and was found to have an outstanding capias for "obtaining property for worthless check." Sometime later after he submitted his application, someone from the Division of Real Estate called to tell him that he needed the disposition report on the charges. He contacted the clerk of court's office and a staff-person from there called the Division of Real Estate. The Division then obtained records from the Orange County Court that Mr. Berry had pled "no contest" to the worthless check charge and was fined $115, with adjudication withheld. Later, Mr. Berry was told by an investigator from the Division of Real Estate that there was no record that an arrest report had been attached to his application. The only testimony in this proceeding was from Mr. Berry. He explained that he had tried, in good faith, to respond accurately to question no. 9. He did not have any documentation on the arrest for driving with a suspended license and had only a copy of his arrest report for the 1993 worthless check charge. He thought he included the information being sought and was not trying to hide anything. As he explained, he knew the agency had his social security number and could check up on him. He did not write anything about the worthless check on his application form because he had the separate paper (the arrest report) describing that charge.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the agency enter its final order dismissing the Administrative Complaint. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. MARY 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate Suite N 308 Hurston Building, North Tower 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801-1772 Donald J. Berry, pro se 2901 Dickens Circle Kissimmee, Florida 34747 Lynda L. Goodgame, General counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Respondent, Lamar S. Green's, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent was certified by Petitioner on November 18, 1998. He holds law enforcement Certificate No. 197843. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a bailiff with the Polk County Sheriff's Office. On October 15, 2006, Deputy Jeff Blair of the Polk County Sheriff's Office responded to a residence in Lakeland regarding a child custody dispute. Upon arrival at the residence, Deputy Blair met with Tracy Fields. Ms. Fields wanted Deputy Blair to get her children back from her ex-husband, Mr. Fields. Based on the initial information he obtained, Deputy Blair told Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. (Apparently, it was later determined that a restraining order as a result of domestic violence had been issued against Mr. Fields. It appeared that the restraining order had been issued prior to October 15, 2006. It is also similarly unclear as to whether the restraining order awarded custodial responsibility and visitation and would have provided the "court order" Deputy Blair required.) Subsequently, Respondent, Ms. Fields' boyfriend, arrived on the scene. Deputy Blair did not know Respondent and Respondent was not in uniform. Deputy Blair repeated his statement to Respondent and Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. Respondent reacted angrily to Deputy Blair, became confrontational, and questioned Deputy Blair as to his time in service as a law enforcement officer by telling him that given his identification number, he had not been a deputy very long. Respondent subsequently apologized to Deputy Blair and identified himself as a deputy sheriff, serving as a bailiff. While Deputy Blair was discussing the matter with Ms. Fields and Respondent, Deputy Blair received a report that a "911" call had been made reporting Ms. Fields at Mr. Fields' house, which was obviously untrue since she was with him. In addition, Mr. Fields agreed to meet Deputy Blair and his watch commander at a gas station to return the Fields' children. He failed to meet them. Neither of these incidents resulted in an incident report; however, Deputy Blair was directed to author an Incident Report regarding Respondent's conduct. In June 2006, Respondent was re-assigned from his post as a court bailiff to the court holding section based on a memorandum from a judge to Respondent's supervisor regarding Respondent's work performance. The stated reason for Respondent's reassignment was his reported absenteeism from his courtroom duties. Respondent was told this by his Captain, and he acknowledged that he understood. Respondent explained to his Captain that he had been having difficulties with his bowels that made it necessary to be absent from the courtroom from time to time. On September 15, 2006, Respondent testified as a witness before Polk County Circuit Court Judge Carpanini in a domestic violence injunction hearing in Fields v. Fields, Polk County Circuit Court Case No. 2006DR-6613. During direct examination, Respondent was questioned about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of the testimony: T. Fields: Has there been any other type of harassment that you feel Mr. Fields has employed upon you? Respondent: He's contacted the Polk County Sheriff's Office and filed a complaint with the internal affairs against me, which is not true. I have documentation and we'll have testimony from the deputy that was at the Kroger's Dance Studio that what he alleges in the complaint is not factual, also he alleged a, tried to put an injunction of protection against me, stating I threatened his secretary that I didn't (inaudible) him. It was denied. He then entered a voluntary dismissal up of [sic] that injunction, but there still is an investigation at the sheriff's office that's going to be followed up on where he filed a bogus complaint against me there. T. Fields: And because of this harassment Mr. Green, you've had to hire an attorney haven't you? Respondent: That's correct. T. Fields: And you've been removed from your current position as a bailiff here at the courthouse? Respondent: That's correct. T. Fields: And was that on or before- Judge Carpanini: Mrs. Fields is this; this case doesn't involve Mr. Green. It involves you so please move on. During cross-examination, Respondent was questioned further about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of that testimony: ML: You know, you mentioned with Mrs. Fields earlier that you've been removed from your job, your current job here at the courthouse because of Mr. Fields. Respondent: Believe so. That investigation isn't complete. Respondent's testimony set forth hereinabove is ancillary to the matter at issue before the Circuit Court and not dispositive of any issue in the domestic violence case involving Mr. and Mrs. Fields, and, as pointed out by the presiding Circuit Court Judge, this testimony is not germane to the issue being considered by the Court. In addition, it clearly expresses Respondent's opinion or belief on why his job was changed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Lamar S. Green, be found not guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes; and that no disciplinary action be taken against Respondent's law enforcement certification. This matter should be dismissed. DONE AND ENTERED this 22nd day of May, 2008, 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 22nd day of May, 2008. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact At all times material hereto, Respondent is and has been eligible for licensure and licensed as a life insurance agent, a an ordinary life including health insurance agent, as a general lines insurance agent, and as a health insurance agent. On July 25, 1986, Respondent pled guilty and was found guilty in the United States District Court for the Southern District of Florida of conspiracy to possess with intent to distribute cocaine, a felony. He was sentenced to serve one year and one day in a penal institution and was fined $50. On September 10, 1986, Respondent pled guilty and was convicted in the United States District Court for the Southern District of Florida of conspiracy to import marijuana, a felony. He was given a five year sentence to run concurrent with his other sentence, with the requirement that six months be served in a jail-type institution, and with the execution of the remainder of the sentence of imprisonment being suspended. Additionally, Respondent was placed on probation for a period of five years to commence upon his release from confinement, was assessed a fine of $50, and was required to perform 250 hours of community service work during his first year of probation, 200 hours of community service work during his second year of probation, and 100 hours of community service work during his third year of probation. Other charges involving either the sale or possession of machine guns were dismissed. No underlying facts regarding the marijuana conviction were offered in evidence. Respondent and a companion negotiated with federal undercover agents for the sale of approximately 4700 automatic weapons (machine guns). Those discussions ultimately lead into negotiations for the sale of 15 kilos of cocaine. The final agreement was that the first transaction would involve 10 kilos of cocaine. On July 10, 1985, Respondent and two companions sold to the undercover agents 2 kilos of cocaine, Respondent explaining to the undercover agents that there would be a delay in him supplying the additional 8 kilos. The actual sale took place at Respondent's insurance office, as had many of the telephone contacts between Respondent and the federal agents. Respondent and his companions were arrested at Respondent's insurance office immediately following Respondent's sale of the 2 kilos of cocaine to the federal agents. Three firearms were seized from Respondent and his companions at the time of their arrests. No evidence was offered to show that Respondent has completed serving his probation or that his civil rights have been restored. Respondent has been licensed by Petitioner since 975. None of his insurance licenses have been previously revoked.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of the factual allegations contained within the Administrative Complaint filed herein, revoking Respondent's licenses, and revoking Respondent's eligibility for licensure as an insurance agent in this state. DONE and RECOMMENDED this 30th day of June, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 30th day of June, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 88-1374 Petitioner's proposed findings of fact numbered 1, 2, and 4-6 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 3 has been rejected as being irrelevant to the issues under consideration herein. Petitioner's proposed findings of fact numbered 7 and 8 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Robert C. Byerts, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 Leslie L. Florez, Esquire Ocean Bank Building, Suite 604 780 N.W. LeJune Road Miami, Florida 33126 Don Dowdell, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300
The Issue Whether the Department of Financial Services should issue Petitioner, Alejandro Javier Friguls (“Petitioner”), a license as a resident personal lines insurance agent.
Findings Of Fact On September 11, 2015, the Department received an application from Petitioner seeking a license as a resident personal lines insurance agent. A personal lines insurance agent is an insurance agent who transacts business related to property insurance and casualty insurance sold to individuals and families for noncommercial purposes. See § 626.015(5) and (15), Fla. Stat. The Department has jurisdiction over licensing procedures for personal lines agents in the State of Florida. See § 626.016(1), Fla. Stat. On November 23, 2015, pursuant to its statutory responsibility, the Department issued a Notice of Denial notifying Petitioner of its intent to deny his application.2/ The Department denied Petitioner’s application based on his criminal history record. On January 19, 2012, in Seminole County Circuit Court, Petitioner pled nolo contendere to one charge of possession of Oxycodone, a third-degree felony under section 893.13(6)(a), Florida Statutes. The court accepted Petitioner’s plea but withheld adjudication of guilt for the crime. (The Notice of Denial states that Petitioner was “adjudicated guilty” of the felony. The Department conceded at the final hearing that this allegation in the Notice of Denial was incorrect and that Petitioner’s adjudication of guilt was withheld.) The court placed Petitioner on probation for one year. The court notified Petitioner that if he violated the terms of his probation, the court could revoke his probation and adjudicate him guilty. Petitioner served his probation without incident. He completed his probation on January 18, 2013. After receiving Petitioner’s application on November 12, 2015, the Department completed a form entitled Effect of Criminal History Record Worksheet (“Worksheet”). On this Worksheet, the Department classified Petitioner’s crime as a third-degree felony. Thereafter, citing to section 626.207, Florida Statutes, the Department determined that Petitioner’s felony subjected him to a 7-year disqualifying period from applying for a license. The Worksheet also recorded that the Department calculated that Petitioner would not become eligible to apply for an insurance license until January 18, 2021.3/ Based on the competent substantial evidence received in the record, Petitioner proved, by a preponderance of the evidence, that the Department should not have denied his application as a personal lines insurance agent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order rescinding the Notice of Denial issued to Petitioner on November 23, 2015, and grant Petitioner’s application for licensure as a resident personal lines insurance agent. DONE AND ENTERED this 1st day of June, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 1st day of June, 2016.
The Issue The issue to be determined in this case is whether Petitioner's application for licensure as a Resident Customer Representative insurance agent should be granted.
Findings Of Fact The Petitioner is a receptionist for an insurance agency and is seeking licensure as a Florida Resident Customer Representative from the Department of Financial Services. The Department is an agency of the State of Florida responsible for the licensing of insurance agents and customer representatives in the State of Florida, in accordance with the provisions of Chapter 626, Florida Statutes. On October 22, 2003, the Petitioner filed a license application (electronically) with the Department seeking licensure as a Resident Customer Representative insurance agent. On her application for licensure, the Petitioner answered the following question in the negative: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? When the Petitioner signed her application for licensure she signed an "Applicant Affirmation Statement" and mailed it to the Department. In that statement, she swore that all the answers on the questions on the application were true and correct to the best of her knowledge and belief. She knew of the requirement to be truthful and honest on the application and that had been stressed to her by her instructor for the insurance pre-licensing course which she attended. On March 16, 1995, the Petitioner entered a plea of nolo contendere to one count of forgery and one count of uttering a forged instrument, both felonies. The related arrest had occurred on November 10, 1994. The Petitioner was sentenced to three years probation, required to make restitution, pay court fines and costs and to perform fifty hours of community service. She was to write a letter of apology to the victim and to have no contact with the victim. Adjudication of guilt was withheld. She performed all of the requirements of her sentence. She was excused by the court from providing the fifty hours of community service because she was pregnant at the time. The Petitioner acknowledges that she answered the question incorrectly and had made a mistake, because she felt the phrase "punishable by one year or more" meant that she had been imprisoned for one year or more, which she had not. She testified that she intentionally answered the question in the negative because she was not aware that her felony crimes were potentially punishable by one year or more. She signed the 1995 plea agreement, which indicated that it was then her understanding that the offenses could carry a maximum sentence of ten years imprisonment. At the time she answered the relevant question on her application, however, she did not have a present understanding or recollection that that would be the case. The point is, she answered in good faith. She did not intentionally answer the question untruthfully but rather due to a mistaken impression, after some nine or so years had elapsed, concerning the nature and effect of the punishment or potential punishment her crimes carried. The Petitioner has not had a criminal history since her 1995 plea, with the exception of a June 7, 2000 arrest in Hernando County, Florida, after her return to Florida from Tennessee, for purported violation of probation with regard to the 1995 felony case. The Petitioner's testimony demonstrates in a credible way that indeed she had fulfilled the requirements of her probation. The judge had released her from her community service requirement and the reason for the arrest, because she was believed to have failed to pay relevant costs and restitution, apparently was a mistake. She established that at or around the time of her moving to Tennessee she had paid the relevant monetary sums required with two cashiers checks. The court terminated her probation. It is found that this arrest was based upon a mistake. The Petitioner's supervisor corroborated the testimony of the Petitioner and established that the circumstances and mental impression leading to the Petitioner's negative answer show no intent to be untruthful or to defraud. The Petitioner and her witnesses (her supervisors) established that she has been fit and trustworthy in her work with the insurance agency. Petitioner has routinely handled sums of money for the agency and for insurance clients, always with proper accounting and never with any funds being missing or mis-appropriated. The Petitioner's employment provides her family's only livelihood for her and her child. Her employment is dependent on her being granted licensure as a Customer Representative. Denial of the license application will create a hardship for her. She was nineteen years of age at the time of the arrest and plea, made full restitution and complied with the terms of her probation.
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 a final order be entered by the Department granting the licensure applied; or granting it for a probationary period of two years under reasonable terms and conditions specified by the Department in that final order. DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 December, 2004. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Tanya C. Lollie 4732 Elwood Road Spring Hill, Florida 34608 Elizabeth Penny, Certified Legal Intern Ladasiah Jackson, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0333
The Issue Whether the Petitioner, Alejandro S. Contreras, (Petitioner or applicant) is entitled to have his application for licensure as a general lines agent be granted.
Findings Of Fact The Petitioner is an applicant for licensure as a general lines agent. He is employed by the Twin Peaks Insurance Agency and is considered a valued employee. The Respondent is the state agency charged with the responsibility of regulating the insurance industry in Florida and must make determinations regarding the licensure of general lines agents. In January of 1988, when he was approximately 21 years old, the Petitioner purchased an automobile from “a friend.” Subsequently, the Petitioner was charged with possession of forged/fictitious registration or indicia of ownership of a motor vehicle. The Petitioner quickly discovered why the vehicle had been a good buy: it had been stolen. Regardless, after being charged, the Petitioner entered a plea of nolo contendere to the matter and the judge withheld adjudication, placed the Petitioner on a one-year probation, and imposed community service. The Petitioner successfully completed the terms of his probation. The crime, as charged, was a third-degree felony. Such felonies may be punishable with up to five years of imprisonment. Clearly, by acknowledging the wrong doing and taking responsibility for his actions, the Petitioner saved himself from a potentially harsher penalty. Since the incident described, the Petitioner has not been charged with any criminal conduct. The Petitioner is now 38 years of age, has worked at the insurance agency for the past year, and has successfully completed classes and training to become licensed. To that end, the Petitioner completed an application for licensure at the Department’s online website. According to Petitioner the form was completed at an early hour and he scanned the questions quickly. One of the application questions asked the following: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? The Petitioner’s response was “no.” According to the Petitioner, he believed the question meant “had he been punished with a year in prison for anything.” In fact, the Petitioner has not been in prison for anything. He was, however, charged with a crime that could have been punished with one year in prison. He did, in fact, plead nolo contendere to that crime. His correct answer should have been “yes.” When the Department ran the background checks for licensure the incorrect answer was discovered and the Petitioner’s application was denied for giving a false response. Prior to his employment the Petitioner disclosed his past to his employer. He did not attempt to hide any information from the employer and was helpful in providing all requested information to the Department when the issue of the answer first arose. It took an exchange of several letters before the Petitioner comprehended the information and findings relied upon by the Department. In denying the licensure, the Department has deemed the Petitioner’s incorrect response a material misstatement, misrepresentation, or fraud in attempting to obtain the license. The Petitioner did not, however, understand the question on the application form and did not understand that he had incorrectly answered it. It is entirely possible that the Petitioner’s comprehension of English (or lack thereof) compounded the problem. Regardless, the Petitioner did not intend to misstate his criminal past. Further, such an effort would have been inconsistent with having disclosed the past to his employer. The Petitioner is hard-working and trusted by his employer and will be considered a loss if the license is not approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a Final Order approving the application of the Petitioner. S DONE AND ENTERED this 28th day of January, 2005, 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 28th day of January, 2005. COPIES FURNISHED: Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Alejandro S. Contreras 300 Northeast 12th Avenue, No. 405 Hallandale, Florida 33009 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue An administrative complaint dated October 23, 1997, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, when he falsely indicated on his licensure application that he had never been convicted of a crime nor pled guilty or nolo contendere. The issue for disposition in this proceeding is whether the violation occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Ibrahim Z. Gonzalez, is, and has been at all relevant times, a licensed Florida real estate broker-salesperson, having been issued license no. 3003291 in accordance with Chapter 475, Florida Statutes. On February 17, 1984, in San Diego, California, Respondent pled guilty to one count of sexual battery- a felony, and was jailed, fined, and placed on probation. Respondent's court-appointed attorney told him the conviction would only affect him if he sought employment with the federal government or law enforcement. On August 3, 1989, after a plea of guilty, Respondent was convicted in the U. S. District Court for the Southern District of New York of making false statements on a government application. Specifically, in 1985, Respondent withheld disclosure of the 1984 California conviction described above when he applied for employment with the U. S. Postal Service. For the federal conviction, he was placed on probation and fined $1,000. By 1989, Respondent had obtained a real estate license in New York. His court-appointed lawyer advised him to "stick to real estate" because, as the California lawyer told him, he would never be able to work for the federal government or in law enforcement. In May 1995, Respondent applied for licensure as a real estate broker in Florida. On the application form he answered "no" to this question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "YES", attach the details including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. The affidavit that Respondent executed at the end of the application form states: The above named, and undersigned, applicant for licensure as real estate broker under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that s(he) is the person so applying, that s(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that s(he) knows of no reason why this application should be denied; and s(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. Respondent contends that he did not disclose his prior convictions when he applied to practice real estate in New York and Pennsylvania and he remains licensed in those states. He claims that because real estate has nothing to do with law enforcement or federal employment, he did not have to reveal the convictions on his application. Respondent has practiced his real estate profession in Florida for 3 years without any disciplinary incidents.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter its final order finding Ibrahim Z. Gonzalez guilty of violating Section 475.25(1)(m), Florida Statutes, and revoking his Florida real estate brokers' license. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. MARY 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Legal Section, Suite N 308 Zora Neale Hurston Building North Tower 400 West Robinson Street Orlando, Florida 32801-1771 Francisco Colon, Jr. 341 North Maitland Avenue Suite 360 Maitland, Florida 32751 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792
