The Issue The issue in this case is whether the part of Department of Environmental Regulation Rule 17-103.170, Florida Administrative Code, which charges appellants $.50 per page for preparation and transmittal of records on appeal from final DER action, constitutes an invalid exercise of delegated legislative authority.
The Issue The issue for determination is whether Petitioner’s request for exemption from employment disqualification should be granted.
Findings Of Fact In July 1998, Petitioner held a position with the James E. Scott Community Association (Association) as a caretaker for juveniles. Petitioner had been employed with the Association since 1995. In July 1998, the Association, as a provider facility for Respondent, submitted a Request for Preliminary FCIC/NCIC and DHSMV Screening Check package (Screening Package) on Petitioner to the Respondent's Office of the Inspector General (OIG). Included in the Screening Package was an Affidavit of Good Moral Character (Affidavit). Petitioner executed the Affidavit on July 13, 1998. Petitioner indicated on the Affidavit that she had no disqualifying offenses that would deem her ineligible to work in direct contact with juveniles. The disqualifying offenses were enumerated on the Affidavit. The offense pertinent to Petitioner was an offense of Chapter 812, Florida Statutes, relating to theft, robbery and related crimes, if the offense was a felony. The OIG conducted a review of Petitioner's criminal history. OIG's review revealed that Petitioner had potential disqualifying criminal offenses. Her criminal record contained seven arrests by the Metro-Dade Police Department from 1975 to 1995, which were as follows: October 10, 1975, arrested and charged with shoplifting and fraud (insufficient funds check (IFC)). December 15, 1978, arrested and charged with shoplifting, felony; shoplifting; fraud (IFC); and a nonmoving traffic violation. December 10, 1983, arrested and charged with shoplifting, reduced to funds check, felony. April 18, 1984, arrested and charged with fraud (IFC), felony; fraud (IFC), misdemeanor; and larceny, grand, second degree. November 17, 1984, arrested and charged with shoplifting, petty. November 9, 1985, arrested and charged with larceny, grand. March 3, 1995, arrested and charged with fraud, welfare; and larceny, grand. By letter dated July 23, 1998, the supervisor of Respondent's Background Screening Unit notified Petitioner of the potential disqualification. Further, the Screening Unit's supervisor requested Petitioner to provide certified police reports and judicial dispositions on the arrests. Petitioner complied with the request and submitted certified documents regarding the arrests. The documents indicated that Petitioner's arrests in 1984, 1985, and 1995 for grand theft were disqualifying in nature because they involved violations of Chapter 812, Florida Statutes. Such violations were indicated in the Affidavit as being disqualifying offenses. Regarding the arrest on April 18, 1984, Petitioner, along with another person, exited a department store with clothing items for which she had not paid. The value of the clothing items was $630. The court made a finding of guilt, withheld adjudication, and imposed probation. As to the arrest on November 9, 1985, Petitioner and another person exited a department store with clothing for which they had paid. Petitioner's vehicle was searched, and additional clothing from a second department store was discovered. The court made a finding of guilt, withheld adjudication, and imposed probation and community control. Regarding the arrest on March 7, 1995, Petitioner and an accomplice received Aid to Families with Dependent Children (AFDC) benefits and Food Stamp benefits for which they were not entitled from August 1993 through August 1994. The value of the AFDC benefits was $3,111 and the Food Stamps benefits was $6,856. Petitioner pled guilty, and the court made a finding of guilt and adjudicated her guilty and, among other things, imposed probation, community service, and restitution. In completing the Affidavit, Petitioner had no intent to deceive. Petitioner’s employer advised Petitioner to complete the Affidavit indicating that she had no disqualifying offenses. However, the responsibility was upon Petitioner to complete the Affidavit and to complete it accurately and honestly. She should have known to indicate on the Affidavit that she had a disqualifying offense. Respondent reviewed the information. Respondent determined that Petitioner was ineligible for continued employment in a position of special trust or responsibility. By letter dated April 6, 1999, the Screening Unit’s supervisor notified Petitioner that she was ineligible based on the dispositions of the arrests on April 18, 1984, and March 7, 1995, and that she could request an exemption from disqualification. The Association was also notified simultaneously of Petitioner’s ineligibility and was instructed to immediately remove her from direct contact with juveniles. The Association removed Petitioner from direct contact with juveniles. Petitioner requested an informal exemption hearing, which was held on May 14, 1999. The hearing was conducted by a committee of three individuals, who only had the authority to make a recommendation to Respondent’s Inspector General who had final decision-making authority. In a report dated June 7, 1999, two of the committee’s members recommended that Petitioner’s exemption be denied, one member recommended granting the exemption. On May 14, 1999, Petitioner also executed a corrected Affidavit, indicating that she had disqualifying offenses. The committee’s recommendation and Petitioner’s file, along with the corrected Affidavit was forwarded to Respondent’s Inspector General. After reviewing the recommendation, the file, and the Affidavit, the Inspector General denied Petitioner’s request for exemption on June 9, 1999. By letter dated June 11, 1999, the Inspector General notified Petitioner that her request for exemption was denied. Respondent’s Inspector General denied Petitioner’s exemption because she failed to accurately complete the Affidavit; because of her recent conviction of welfare fraud and grand theft, regarding the March 7, 1995, arrest; and because she had not completed her obligations for the conviction of welfare fraud and grand theft. At the time of the denial and the hearing, Petitioner had not completed her probation, which would end in April 2000, and Petitioner had not paid restitution. Petitioner has performed in an exemplary manner during her employment with the Association. Petitioner’s witness provided support as to her good moral character. However, even Petitioner’s witness stated that Petitioner is unable to show good moral character until she completes her probation and pays restitution. Petitioner presented letters to support her position of good moral character. Respondent concedes that Petitioner does not present a threat to juveniles.
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 denying Earline Johnson an exemption from disqualification of employment to work in a position of special trust or responsibility with it. DONE AND ENTERED this 30th day of March, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 30th day of March, 2001. COPIES FURNISHED: Earline Johnson 1788 Northwest 58th Street Miami, Florida 33142-2422 Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General’s Office 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint with leave to file an amended administrative complaint alleging post-licensure misconduct only, within twenty days of the order of dismissal. DONE and ENTERED this 13th day of March, 1984, in Tallahassee, Florida. ROBERT T. BENTON II 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 13th day of March, 1984. COPIES FURNISHED: Dean Bunch, Esquire P. O. Drawer 1170 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue This issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner in violation of Section 760.10, Florida Statutes (2001).
Findings Of Fact Petitioner is a single male. He is the father of one child. At all times material to this proceeding, Petitioner was attempting to resolve child custody issues with the mother of Petitioner's child. Petitioner wanted to have physical custody of his child at least 50 percent of the time. In March 2002, Petitioner was arrested and charged with Battery/Domestic Violence against the his child's mother. In August 2002, the State Attorney's Office in Volusia County, Florida, filed a nolle prosequi in the criminal case against Petitioner. Petitioner applied for a position as a guitar teacher at Respondent's school. The application package included a Release of Information Agreement form and a Florida Department of Law Enforcement (FDLE) Volunteer & Employee Criminal History System (VECHS) Waiver Agreement and Statement form. Respondent directed all prospective employees to sign the forms so that Respondent could request a criminal history background report. The application package also contained fingerprint cards. Respondent used the fingerprint cards to complete criminal history background investigations on new employees. Petitioner never went to the local police station to complete the fingerprint cards. In order to maintain its accreditation, Respondent must comply with the By-Laws/Standards of the Florida Council of Independent Schools (FCIS). § 3.4.4 of the FCIS Accreditation Standards state that "[a]ll newly hired full and part-time employees must submit to a background check." At all times pertinent here, Ms. Dana Tate was Respondent's principal. Ms. Tate also was a single parent. Ms. Tate interviewed and hired Petitioner as a part- time guitar teacher in September 2002. Ms. Tate did not know anything about Petitioner's marital status when she hired him. Ms. Tate was especially pleased to hire Petitioner because the school had a difficult time hiring male teachers. Petitioner began working without signing the criminal history consent/waiver forms. Instead, Petitioner gave Respondent oral consent to check his criminal history background. During the hearing, Petitioner admitted that one of Respondent's secretaries asked him about turning in the fingerprint cards. Petitioner explained to the secretary that he had visitation time with his child during the time that the police station was available to take his fingerprints. Petitioner was a competent music teacher. Respondent has never questioned Petitioner's qualifications to teach guitar. However, another teacher was always present with students in Petitioner's classes. On one occasion, Respondent assigned Melonie Donnally to sit in Petitioner's class. Ms. Donnally was in the process of getting a divorce. During the class, Ms. Donnally and Petitioner shared their personal experiences in circuit court regarding custody of their children. Petitioner told Ms. Donnally that he had never married the mother of his child but that he had lived with her for many years. Petitioner also stated that he was trying to get 50 percent physical custody of his child. According to Petitioner, Ms. Donnally was shocked to learn that Petitioner was seeking physical custody of his child. The conversation ended when Petitioner suggested that Ms. Donnally share physical custody of her children with her husband. During the hearing, Ms. Donnally did not remember the details of the above-referenced conversation with Petitioner. However, she admitted that she had to fight for 50/50 shared parental responsibility with her ex-husband. There is no evidence that Ms. Donnally communicated the substance of her conversation with Petitioner to Ms. Tate or anyone else at the school. Acting on Petitioner's oral consent Ms. Tate requested FDLE to provide her with criminal history information on Petitioner. Ms. Tate received a report from FDLE on September 27, 2002. The report revealed Petitioner's arrest for battery/domestic violence. Ms. Tate decided to terminate Petitioner's employment based on the arrest report. On September 27, 2002, Ms. Tate confronted Petitioner about his arrest for battery/domestic violence in the school office. Ms. Tate told Petitioner that she was terminating his employment and gave him a final pay check. Petitioner explained that the criminal case against him had been dismissed. Because Ms. Tate was not willing to accept Petitioner's explanation, he became angry, speaking loudly and expressing his frustration with the system. Petitioner's body language became menacing. Because Ms. Tate wanted to end the conversation, she agreed to take a look at letters from Petitioner's girlfriend regarding the incident leading to Petitioner's arrest. Petitioner told Ms. Tate that he had other documents in his car that would support his explanation of the incident with his girlfriend. He left the building to retrieve the documents from his car. Ms. Tate was not comfortable with Petitioner being in the building. When Petitioner returned with his documents, Ms. Tate requested that he wait outside until she could copy the documents. Before leaving the premises, Petitioner told Ms. Tate that the school would be sorry about terminating his employment because he intended to make it public. Ms. Tate was alarmed about the disturbance that Petitioner had created at the school. She called the police. However, Petitioner left the campus before a police officer responded to Ms. Tate's call. On or about October 2, 2002, Petitioner called Ms. Tate on the telephone. Once again Petitioner was loud and intimidating, asking to speak to Ms. Tate's supervisor. Petitioner stated that Ms. Tate was an unreasonable woman with too much power. Petitioner also told Ms. Tate that he intended to picket in front of the school because Respondent was discriminating against him. Ms. Tate disconnected the call. After the telephone call a police officer was informed about the disturbing telephone call. The police officer subsequently left Petitioner a voice-mail message. During the hearing, Ms. Tate admitted that she eventually received some letters allegedly written by Petitioner's girlfriend. However, Ms. Tate based her September 27, 2002, decision to discharge Petitioner on the criminal history report. His behavior at the school and on the phone subsequent to the receipt of the report confirmed her decision. Despite the discussion between Petitioner and Ms. Donnally or any conversation that Petitioner had with Respondent's secretary about child custody, Ms. Tate was unaware that Petitioner was an unmarried father who was seeking physical custody of his child. Ms. Tate did not learn these facts until after she confronted Petitioner about his criminal history background report. Petitioner testified that Ms. Tate expressed her concerns about Petitioner's lifestyle problems in addition to his criminal history background report. Petitioner 's testimony in this regard is not credible. It is undisputed that Respondent replaced Petitioner with another male guitar teacher. There is no record evidence about the replacement teacher's marital status. There is no competent evidence that Respondent knowingly allowed any other person with a criminal arrest record, male or female, married or unmarried, to work at the school.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of June, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jack Cataldo 417 Nautilus Avenue Daytona Beach, Florida 32118 Thomas J. Leek, Esquire Cobb & Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, a law enforcement officer, is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a certified law enforcement officer, holding certificate number 92165. At all material times, the DeSoto County Sheriff’s Office employed Respondent until Respondent resigned shortly after giving the statement described below. In June 1995, a female narcotics informant alleged that she had traded sex for money with Respondent. The DeSoto County Sheriff’s Office commenced an investigation. According to the female informant, who did not testify in this case, there were no witnesses to the alleged incidents. After interviewing the female informant, the DeSoto County Sheriff’s Office or the female informant filed a criminal complaint with the State Attorney’s Office. On July 18, 1995, the State Attorney’s Office filed a memorandum declining to prosecute Respondent because the “[o]nly evidence is the word of an admitted prostitute and drug-user. Under these circumstances, [we] cannot prove the allegations beyond a reasonable doubt.” After receiving a copy of this memorandum, the DeSoto County Sheriff's Office scheduled an interview of Respondent concerning the allegations of the female informant. A lieutenant who had not previously conducted an internal affairs investigation assumed responsibility for conducting the interview. The lieutenant contacted Respondent on the afternoon of July 18, told him that he was conducting an internal affairs investigation, and directed him to give an interview the following afternoon. The lieutenant, who had a superior rank over Respondent, did not inform Respondent of the nature of the investigation or of the identity of the complainant. The interview of Respondent took place on July 19, 1995, starting at 1:00 p.m. In addition to Respondent and the lieutenant, a major and captain of the DeSoto County Sheriff’s Office were present, as was a sergeant, who was present at the request of Respondent as an additional witness, but not an advisor. The lieutenant had a package of information at the start of the interview, but did not give it to Respondent until after the interview was completed. The package included a Notification of Charges/Allegations, stating that from January 1991 through June 1995 Respondent allegedly engaged the named female informant in prostitution at least ten times at Respondent’s residence. The form advised that, if sustained, these allegations constituted conduct unbecoming a deputy. The package also included an Admonition Form. This form, which is prepared by the DeSoto County Sheriff's Office, states that “prior to questioning an accused member . . ., [any member of the DeSoto County Sheriff's Office shall] present the following admonition to said accused . . . for the member to read.” The Admonition states in its entirety: I wish to advise you that you are being questioned as part of an official investigation of the DeSoto County Sheriff's Office. You will be asked questions specifically directed and narrowly related to the performance of your official duties and/or your continued fitness for office. You are entitled to all the rights and privileges guaranteed by the laws and Constitution of the State and the Constitution of the United States, including the right not to be compelled to incriminate yourself. I further wish to advise you that if you refuse to testify or to answer questions relating to the performance of your official duties or fitness for duty, you will be subject to departmental charges which, if sustained, could result in your dismissal from the DeSoto County Sheriff's Office. If you answer questions, as required, neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding. However, these statements may be used against you in relation to subsequent department charges. The lieutenant commenced the interview by stating that the purpose of the interview was an allegation of some misconduct and then reading the Admonition. After reading the Admonition, the lieutenant asked Respondent if he understood the Admonition, and Respondent replied that he did. Without letting Respondent read the Admonition, the lieutenant then asked Respondent about the allegation that he had engaged in sex for money at least ten times with the named female informant. Respondent admitted to a single incident of sexual intercourse four or five years ago, without any mention of any payment, but denied any other sexual relations. He explained that he had given her some money for information and for personal matters--as Respondent had known her socially for over 20 years and each was a friend of the other’s family. At the conclusion of his questions, the lieutenant asked the major if he had any questions. The major asked if Respondent would take a polygraph test and if Respondent knew that the female informant had taken and passed one. The major asked a few more questions, largely repeating the questions asked by the lieutenant. After the major was finished, the lieutenant asked Respondent to sign the Notification and Admonition forms. He then asked Respondent to raise his right hand and swear that the statement that he had given was the ”truth, so help you God.” After obtaining an affirmative answer from Respondent, the lieutenant proceeded to go over some of the forms when Respondent interrupted him, saying: Wait, wait, wait, wait. I . . . I . . . I . . . I can’t do this here. I won’t be able to live with myself. There was more than one time. I . . . I . . . I just can’t do this now. I’m not going to lie. It was more than one time. I’ll take the polygraph. Um . . . I think it was like . . . four times. I . . . I . . . I just can’t do that. The lieutenant asked Respondent if he had exchanged money for sex, and Respondent answered in the affirmative. He said that on two occasions he gave her about $15 or $20 and the rest of the time the money was for information. Respondent said that the sex acts took place only when he was off-duty and out of uniform. The lieutenant asked, “I guess you realize that that’s considered prostitution, right?” Respondent answered, “Yeh. That’s about it.” The interview continued, although no material information emerged. Respondent apologized for lying the first time during the interview and stated: “Jap [Respondent]. You sitting here lying to these people. You done worked for these people for eight years. You ain’t never lied to them. So why are you going to sit here and lie? . . . I just couldn’t walk out of here knowing that I had told you a lie.” Respondent also mentioned that a mutual acquaintance of his and the female informant had told him of the allegations and that Respondent had told his attorney the truth. Respondent's statements do not detail the two occasions on which Respondent paid money to the female informant, had sex with her, and did not obtain any information. They were friends for over 20 years and knew each other's families; the possible explanations are numerous. During the interview, Respondent expressed considerable remorse for lying initially and having sex with a known prostitute and drug abuser. Without more, given the background between the parties, Respondent's admission of this moral lapse does not constitute an admission of the crime of prostitution or a failure of good moral character. Advice of already-retained counsel might have clarified Respondent’s testimony by differentiating between the shame that Respondent felt and possible commission of a crime or failure to maintain good moral character. Certainly, contemporaneous legal advice might have lent meaning to Respondent’s dubious admission to the legal conclusion that he committed the crime of prostitution; the record provides no reason to believe that Respondent was aware of the legal elements of the crime, which another deputy testified had been prosecuted only once in the many years in DeSoto County. Another source of confusion is the Admonition itself. In general, the Admonition addresses the possibility of criminal and employment sanctions, but not professional discipline against Respondent’s law enforcement certificate. Most misleading is the second-to-last sentence, advising, “If you answer questions, as required, neither your statement nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent criminal proceeding.” This statement tells Respondent that he is required to answer questions, although clearly he is not. Following the statement concerning employment with the DeSoto County Sheriff's Office, this statement mentions criminal proceedings, but nowhere is there any statement of Respondent’s due-process rights regarding a disciplinary proceeding against his certificate. Respondent was confused in the interview due to the inadequate and untimely disclosure of the nature of the charges; the misleading statements contained in the Admonition; the reading of the Admonition by the lieutenant, rather than Respondent's being allowed to read the Admonition itself, as the Admonition allows Respondent to do; the belated administration of the oath; the alternative interrogations by the lieutenant, then the major, and then the lieutenant; the failure to explain all of Respondent’s rights; and the failure to provide Miranda rights. These serious deficiencies undermined the reliability of Respondent’s arguably inculpatory statements to the point that they are inherently unreliable and not even, on their face, inculpatory.
Recommendation It is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of December, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 29th day of December, 1997. COPIES FURNISHED: Paul D. Johnston Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert M. Bader Robert M. Bader Law Office Post Office Box 3551 Port Charlotte, Florida 33949 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Petitioner should be given an exemption from employment disqualification pursuant to Section 435.07, Florida Statutes.
Findings Of Fact At the age of twenty-eight, Petitioner, Alexander Fonseca (Fonseca), was arrested for felony possession of marijuana on February 21, 1989. For this charge, adjudication was withheld, and Fonseca was credited for time served. Petitioner's other criminal history includes a 1983 arrest for misdemeanor possession of marijuana for which he was credited for time served; a 1988 arrest for driving with a suspended license for which adjudication was withheld; a 1988 arrest for driving with a suspended license for which he was found guilty; and a 1991 arrest for reckless driving for which adjudication was withheld. In April 1999, Fonseca sought employment as a Juvenile Probation Officer with the Department. In conjunction with his application for employment, Fonseca was required to submit to the Department's background screening process since he would be working with juveniles. Fonseca was told by a receptionist with the Department that if he had a criminal record he would not be hired. As part of the application and background screening process, Fonseca submitted a State of Florida application and an Affidavit of Good Moral Character. Fonseca failed to disclose on both of these documents his felony arrest for and adjudication withheld on felony possession of marijuana. The affidavit contained Fonseca's notarized signature dated April 27, 1999, attesting to the following statement: I attest that I have read the above carefully and state that my attestation here is true and correct that neither my adult nor juvenile record contains any of the listed offenses. I understand that it is my responsibility to obtain clarification on anything contained in this affidavit which I do not understand. I am aware that any omissions, falsifications, misstatements or misrepresentations may disqualify me from employment consideration and, if I am hired, may be grounds for termination at a later date. Fonseca did not disclose his criminal history because, based on what the receptionist told him, he did not believe that he would get the job if he revealed that he had a criminal history. His failure to disclose his criminal history was not an error or oversight. It was intentional. A Florida criminal history conducted by the Department revealed Fonseca's 1989 arrest for felony possession of marijuana. As a result, on May 6, 1999, Fonseca was determined to be disqualified and ineligible for a position in the Department working with juveniles. In a letter dated June 1, 1999, the Department advised Fonseca that he could request a desk review to pursue an exemption from employment disqualification. Fonseca was required to submit specified documentation, which he did. As Inspector General for the Department, Perry Turner makes the final departmental decision on exemption requests. In an interoffice memorandum dated July 29, 1999, Fonseca's exemption request was forwarded to Mr. Turner along with Fonseca's complete background screening file. In a desk review, Mr. Turner does not interview the applicant's seeking an exemption. Each applicant has an opportunity to submit to the Department documentation, which he desires the Department to consider in determining whether an exemption should be granted. In reaching his decision, Turner reviewed Fonseca's background screening file and the documentation submitted by Fonseca. On July 30, 1999, Turner denied Fonseca's request for an exemption. The denial was based upon the totality of the circumstances surrounding Fonseca's prior criminal history and his falsification of the notarized Affidavit of Good Moral Character. Mr. Turner notified Fonseca of the denial in a letter dated August 1, 1999. From his early teens until approximately ten years ago, Fonseca was heavily involved with drug and alcohol use and was chemically dependent. He sought help for his dependency and has been clean and sober since 1991. Fonseca is actively involved in the 12-Step Programs of Alcoholics Anonymous and Narcotics Anonymous. In 1992, Fonseca decided to go back to school. He graduated with a degree in criminal justice in 1998. Fonseca did not present any information to the Department concerning his addiction prior to the denial of his exemption request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Alexander Fonseca's application for an exemption from disqualification from employment pursuant to Section 435.07, Florida Statutes. DONE AND ENTERED this 27th day of April, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 27th day of April, 2000. COPIES FURNISHED: William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Alan K. Marcus, Esquire 7300 North Kendall Drive, Suite 540 Miami, Florida 33156 Lynne T. Winston, Esquire Department of Juvenile Justice Inspector General's Office 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issues are 1) whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offense(s); and, if so, 2) whether Respondent's intended action to deny Petitioner's request for an exemption from employment disqualification would constitute an abuse of discretion.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is seeking employment with The Arc of Alachua County, a service provider regulated by APD. Petitioner’s desired employment is to work as a direct service provider, which requires compliance with background screening requirements. The results of Petitioner’s background screening identified a history of criminal offenses. Petitioner received notification via letter dated April 4, 2016, from the Department of Children and Families (DCF), Respondent’s background screening entity, of her disqualification from employment due to a criminal history. The specific disqualifying offense listed in the letter was Larceny (a violation of section 810.014, Florida Statutes (2016)1/). Florida’s Legislature has designated certain criminal offenses as disqualifying offenses, which would prevent an individual from working as a direct service provider. However, an individual may seek an exemption from the employment disqualification. The granting of an exemption from employment disqualification would allow for Petitioner’s employment as a direct service provider to APD clients. APD’s clients are a vulnerable population, consisting of those individuals whose developmental disabilities are statutorily defined as: intellectual disability, autism, spina bifida, Prader-Willi syndrome, cerebral palsy, Down syndrome, and/or Phelan-McDermid Syndrome. See § 393.063(12), Fla. Stat. Without APD’s services, these clients would otherwise require institutionalization. APD’s clients often have severe deficits in their abilities to complete self-care tasks and communicate their wants and needs. These clients are at a heightened risk of abuse, neglect, and exploitation because of their developmental disabilities and inability to self-preserve; consequently, employment as a direct service provider to APD clients is regarded as a position of special trust. APD is the state agency responsible for regulating the employment of persons in positions of special trust as direct service providers for which Petitioner seeks to qualify. See §§ 110.1127(2)(c)1. and 393.0655, Fla. Stat. Many of the tasks direct service providers perform for, and/or assist individuals with disabilities with, include those of a social, personal needs, and/or financial nature. APD relies on DCF to initially receive exemption from employment disqualification requests and compile documents received related to such requests. On or around May 10, 2016, Petitioner submitted a Request for Exemption, Exemption Questionnaire, a copy of her criminal record, character references, and other various documents (the Exemption Packet) to DCF in order to demonstrate support for the granting of an exemption from employment disqualification. DCF subsequently forwarded the Exemption Packet to APD for review. In beginning its exemption review, APD considered Petitioner’s disqualifying offense. Specifically, in December 1982, Petitioner committed the disqualifying offense of Larceny/Grand Theft (a violation of section 810.014). The court’s final disposition of the case included the withholding of adjudication of guilt, two years’ probation, and payment of costs. In its continued exemption review pursuant to section 435.07(3)(b), Florida Statutes, APD considered the following non- disqualifying offenses which Petitioner committed subsequent to her December 1982 disqualifying offense: an arrest for Worthless Check on December 23, 1995 (a violation of section 832.05, Florida Statutes); a second arrest for Worthless Check on December 23, 1995 (a violation of section 832.05); a conviction for Worthless Check on December 24, 1995 (a violation of section 832.05); an arrest for Driving While License Suspended/Revoked in June 1996 (a violation of section 322.34(2), Florida Statutes); an arrest for Worthless Check in January 2007 (a violation of section 832.05(4)(a)); and an arrest for Violation of Injunction Domestic Violence/Contempt of Court in August 2012 (a violation of section 741.31(4)(a), Florida Statutes). The Disqualifying Offense Petitioner provided an account of her disqualifying offense, Larcency/Grand Theft, in an addendum to the Exemption Questionnaire, dated August 3, 2015. Petitioner indicated in her account that she relocated to Tampa from Gainesville. She was 22 years old, single, and employed with the State of Florida. She became roommates with another female who was attending college at the University of South Florida. Petitioner stated “I have no explanation as to why the both of us committed a crime of theft.” Petitioner further explained that she received a two- year term of probation and completed all her court-ordered sanctions within a year. Petitioner also noted that “[s]ince that time, I have not committed any further crimes.” Petitioner provided the following record concerning her disqualifying offense: state attorney court record (13th Judicial Circuit, Hillsborough County, State Attorney). The Non-Disqualifying Offenses Court records received in evidence indicate a total of six non-disqualifying offenses as previously mentioned. Petitioner did not disclose any of her non-disqualifying offenses, nor did she provide accounts for such on the Exemption Questionnaire, despite the directions specifically requiring an applicant to do so. Petitioner did not provide records of her non- disqualifying offenses. Records of those offenses were obtained by APD as part of its detailed review process. Records of the non-disqualifying offenses obtained included: worthless check affidavit, witness form, copies of check, and no information filed court filing (Sears 12/23/1995); worthless check affidavit, witness form, and copy of check (Pic’n Save 12/23/1995); worthless check affidavit, witness form, copy of check, and court judgment (Pic’n Save 12/24/1995); worthless check affidavit, witness form, copy of check, copy of court diversion judgment and supporting documentation, and copy of dismissal of charge (Publix 1/30/2007); and warrant affidavit for arrest (Alachua County Sheriff’s Office, August 2012). Petitioner indicated that she has no current involvement with any court system; specifically, she stated “I have not experienced any criminal charges since my last event in 1982.” Regarding whether there was any degree of harm to any victim or property, including damage or injuries, Petitioner stated “I have not experienced any harm or damage to anyone or any property since my last event in 1982.” In answering the question about stressors in her life at the time of the disqualifying incident, Petitioner indicated that there were none, other than being on probation. Regarding whether there are any current stressors in her life, Petitioner stated “I have no current stressors with the law.” Petitioner indicated that her current support system and living arrangements include being married and having one daughter and numerous grandchildren. Petitioner also explained that her community activities/volunteer efforts include volunteering with the school system (field trips/activities) and attending church and performing functions for the church’s treasury department. Regarding educational and training achievements, Petitioner stated that she graduated from high school, started a career with the State of Florida, and attended a word processing/information course where she received the Most Outstanding Student Award. The Exemption Questionnaire asks whether an applicant has ever received counseling for any reason. Petitioner indicated that she has not received counseling for any reason; if she felt stress, she would call the Employee Assistance Program. Petitioner noted she has not experienced any “major post- traumatic [stress].” As to whether she has used and/or abused drugs or alcohol, Petitioner replied that she has “not abused any type of drugs or alcohol in [her] life.” Petitioner indicated the following regarding feeling remorse/accepting responsibility for her actions: “I am the type of person to feel remorse towards everything and every person that I have contact with. I always take full responsibility for any action(s) that I encounter when I am in the wrong.” The Exemption Questionnaire asks for an applicant’s prior three years’ work history. Petitioner provided the following information: 4/2016 to 5/2016--The Arc of Alachua County (support tech/direct care); 11/2007 to 7/2014--DCF--North Florida Evaluation & Treatment Center (Human Services Worker III); 3/2004 to 7/2007—DCF--State of Florida Foster Care (word processor/data management specialist); 4/1998 to 9/2003-- American Psychiatric Association (membership coordinator/secretary). In addition to the criminal record submitted, Petitioner also provided the following additional documents that were included in her Exemption Packet: local law background checks, a volunteer award (Head Start), three letters of reference attesting to Petitioner’s character, and an Affidavit of Good Moral Character. The letters were written by persons who have known Petitioner for several years; they described Petitioner as devoted, loyal, honest, kind, and trustworthy. Finally, Petitioner submitted a copy of an exemption letter she received from DCF, dated February 12, 2016. Leslie Richards, regional operations manager for APD’s Northeast Region, advised that APD reviewed all documentation provided by Petitioner in her Request for Exemption, the information indicated in Petitioner’s Exemption Questionnaire, the various records documenting Petitioner’s criminal history, her volunteer award, character letters, and exemption from DCF. Following a review of Petitioner’s Exemption Packet, Agency Director Barbara Palmer, advised Petitioner by a letter dated September 26, 2016, that her request for an exemption from her disqualifying offense was denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. Petitioner sent APD a request for hearing on or around October 11, 2016. APD received this request timely and subsequently forwarded this appeal to DOAH. Along with her request for hearing, Petitioner submitted a personal statement explaining her reasons for disputing the denial and requesting the hearing, a copy of the denial letter, and a copy of a training certificate summary for APD-approved courses through her former employer, the Arc of Alachua County. At hearing, Ms. Richards explained APD’s process of reviewing exemption requests and the consideration of Petitioner’s application for such. Per Ms. Richards, APD considers the disqualifying offense, the circumstances surrounding the offense, the nature of the harm caused to the victim, the history of the applicant since the incident, and finally, any other evidence indicating that the applicant will not present a danger if employment is allowed. Additionally, Ms. Richards testified that APD looks for consistency in the applicant’s account of events in his or her Exemption Questionnaire, the passage of time since the disqualifying incident, whether the applicant accepts responsibility for his/her actions, and whether the applicant expresses remorse for his or her prior criminal acts. Because an applicant will be occupying a position of special trust if granted an exemption, APD weighs all of these factors in its determination. Ms. Richards testified that all of Petitioner’s submissions were reviewed and taken into consideration; she noted that the starting point of APD’s review began with the date of the disqualifying offense and any criminal conduct occurring thereafter. Ms. Richards emphasized that in APD’s review, it was noted that Petitioner failed to disclose sufficient details of the account of her disqualifying offense. Specifically, Petitioner provided what appeared to be background information about the time frame surrounding the offense and the person whom she committed the offense with, but indicated in her statement “I have no explanation as to why the both of us committed a crime of theft.” Petitioner provided other details about this time in her life, but nothing specific about the crime itself. Ms. Richards stated that it left APD with a concern that Petitioner was not forthright with disclosure of the circumstances involving the crime. Ms. Richards also explained that APD took note that Petitioner failed to disclose any of her non-disqualifying offenses, and that this fact was also of concern. APD obtained records of the non-disqualifying offenses and considered them in its review. Ms. Richards noted that the nature of the offenses, particularly the Worthless Checks and the Violation of the Injunction Domestic Violence/Contempt of Court, were troubling because those offenses involved monetary transactions and interpersonal relations. Ms. Richards observed that the individuals APD serves are highly susceptible to abuse, neglect, and exploitation, and a person who is in a role as a direct service provider would be assisting those individuals in a social and financial capacity. APD reviewed Petitioner’s involvement with three DCF investigations involving allegations of abuse toward a vulnerable adult, Petitioner’s spouse. Although there were no findings against Petitioner in these cases, based on the issues presented, DCF did make the recommendation for Petitioner to pursue family counseling. Ms. Richards noted that there is no evidence that Petitioner followed through with DCF’s recommendation, and by Petitioner’s own admission on the Exemption Questionnaire, has “not received counseling for any reason.” In addition to both the criminal offense and DCF- related information, APD noted Petitioner’s less than stellar driving record. Ms. Richards advised that a direct service provider will often be in a position to transport clients, and Petitioner’s driving record reflects a series of both moving and non-moving violations, which pose a concern. The record reflects a total of five driving-related violations: driving while license suspended/revoked (previously mentioned); tag not assigned (criminal traffic); red light camera citation; unlawful speeding; and a second red light camera citation. Ms. Richards testified regarding APD’s consideration of Petitioner’s prior employment history with DCF, and the subsequent exemption for employment granted to Petitioner by DCF. At hearing, APD presented employment evaluations and records of written disciplinary action taken against Petitioner by DCF while in its employ. Ms. Richards specifically noted that some of the disciplinary issues for which Petitioner was cited included: sleeping on the job while employed at a forensic facility; not securing the front door of a building at a forensic facility; tardiness; inappropriately streaming media on a state-owned computer; insubordination (refusal to work a shift); failure to report to work; and poor performance/negligence (failure to answer phones/answer front door of facility). Petitioner ultimately was dismissed from DCF due to her inability to perform her job functions because of an injury. Ms. Richards explained that these disciplinary issues gave APD great pause in considering granting Petitioner an exemption, as they were indicators for potential behaviors that could pose a great risk to individuals served by APD, many of whom are unable to communicate their wants and needs. The setting in which Petitioner committed these workplace violations mirrors those in which clients of APD are served. Ms. Richards did state that APD considered the exemption granted by DCF to Petitioner, however, the weight of the prior disciplinary issues outweighed that decision when compared to the possible jeopardy in which APD clients could be placed. Should Petitioner obtain future successful employment with DCF, APD would consider that in a subsequent exemption application review. Petitioner testified on her own behalf at the hearing. She spoke about the circumstances surrounding the disqualifying offense, reiterating her statement from the addendum to the Exemption Questionnaire. She provided no new information or surrounding details about the crime. Again, she stated that she has not had any legal issues since 1982. Regarding her non- disqualifying offenses, Petitioner remarked that she “didn’t consider those bad checks as crimes,” and though she denied being convicted of such, she admitted having overdrafted checks. Petitioner also stated that regarding the DCF investigations and the Injunction Violation/Contempt of Court charge, “that’s not why we are here today, so I am not going to talk about that.” Petitioner did admit to the driving infractions on her record, but stated that two of them, running red lights, were due to the fault of her daughter, as she was the driver at the time, rather than Petitioner. Petitioner stated that she is older and wiser and has changed. She enjoyed working at the adult day care program with the Arc of Alachua County. She indicated that any bad checks she has written, she “took care of.” Petitioner offered explanations for the disciplinary situations involving her prior employment with DCF, attempting to minimize her role. She explained that she and her husband, who Petitioner described as a vulnerable, disabled adult, no longer have domestic issues; however, they are currently homeless. Petitioner stated that APD’s denial is keeping her in an adverse financial situation, stating “I cannot find a job right now because of this denial.” When cross- examined by counsel regarding her ability to obtain gainful employment with DCF and its covered providers, Petitioner admitted that she can seek a job under DCF’s purview. Petitioner presented the testimony of two witnesses. Her sister, Sherry McCrae, a retired police officer, stated that she lived with her sister the entire time she was in college; Petitioner provided a source of support to her during this period. Ms. McCrae stated that her sister has been working all the years since the disqualifying incident. She affirmed that their maiden name is Williams, Petitioner’s last name at the time of the disqualifying incident. Petitioner’s second witness, Faye Williams, testified that after Petitioner’s disqualifying incident, she got a job and was active in the community. Petitioner has a desire “to be a part of something.” She loves people, especially children. Petitioner asserted that she enjoys working with individuals with disabilities; at her last place of employment, she believed she found her “purpose and mission.” She loves helping people. She admits she made some mistakes, but that was long ago. Petitioner argued that she “really only committed one crime”; she has rehabilitated herself and that should be enough for APD. She believes APD abused its discretion in denying her request for exemption. The individuals APD serves are vulnerable and highly susceptible to abuse, neglect, and exploitation, due to their developmental disabilities. APD’s representative observed that APD’s clients must be assigned to direct care providers without fear of their endangerment. This necessarily requires reliance on a caregiver’s good character and trustworthiness. Individuals who provide direct care are frequently responsible for assisting individuals in making decisions of a financial, medical, and social nature. APD must weigh the benefit against the risk when considering granting an exemption. Ms. Richards cautioned that Petitioner’s criminal history reflects a pattern of poor judgment. Petitioner’s failure to disclose certain details in her account regarding her disqualifying offense calls into question her trustworthiness. Additionally, failure to disclose her non-disqualifying offenses, along with a failure to recognize that those offenses are truly crimes, is not only troubling, but calls into question Petitioner’s trustworthiness. It also demonstrates a complete lack of remorse and acceptance of responsibility for her actions. Petitioner did not admit to any of the harm she caused to her victims. Petitioner’s minimization of the discipline she received while employed by DCF also gives great pause, as the individuals she was charged with caring for were clients in a forensic setting, a clear parallel to the clients she would serve should an exemption be granted by APD. Petitioner’s multiple driving citations are concerning as well, and demonstrate a pattern of questionable decision- making, especially when considering her for a position where she could potentially transport clients. All of the aforementioned factors, along with proximity in time of her application to her last arrest (2012), caused APD to question Petitioner’s fitness for providing services to the vulnerable individuals for which it is responsible, the most vulnerable population in the state. Petitioner failed to meet her burden of proving clear and convincing evidence of rehabilitation, and therefore, the denial of the exemption was proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Director of the Agency for Persons with Disabilities issue a final order upholding the denial of Petitioner’s exemption request. DONE AND ENTERED this 22nd day of February, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 2017.
Findings Of Fact In 1970, the Petitioner, WILLIAM C. HARRELL, was a student at Georgia Tech, a math major. Up to that time, he had been a very bright student and had been accepted for a full scholarship at Baylor University to study medicine. He planned to become a doctor, but that career opportunity was destroyed suddenly when he was involved in a severe automobile accident in which he was struck by a drunk driver. He sustained severe head injuries, almost died during neurosurgery, and was in a coma for many weeks thereafter. His initial medical prognosis following surgery was that he would be totally incapacitated, losing essentially all of his cognitive functions. In fact, however, he regained consciousness and over the ensuing four years, while under the care of Dr. Howard Chandler, his neurosurgeon in Jacksonville, Florida, effected a remarkable recovery. He had suffered severe memory and speech deficits as a result of the trauma, but through rehabilitation, gradually overcame much of this deficit. In 1974, his doctor released him and recommended that he try to renew his education and rebuild his life. He apparently began attending North Florida Junior College in Jacksonville, Florida, at approximately this time. He never was able to complete his college degree, however. His employment history thereafter is unclear in this record, but apparently he had some difficulty obtaining significantly rewarding employment. However, he did start his own lawn service business which he successfully operated for approximately 14 years. During this period of time in the late 1970's and early 1980's, he married and had a daughter and was enjoying some success at rebuilding a meaningful and productive life for himself and his family. Testimony adduced by the Petitioner through his witnesses, as well as evidence consisting of numerous testimonial letters regarding his character and reputation for honesty and sincerity (stipulated into evidence by the parties), established that the Petitioner is a willing and productive worker and an honest, sincere human being, both in his capacity as a husband and father and as to his dealings with customers of his lawn service business and as to his clients in his chosen career in insurance sales. In approximately late 1984 or 1985, the Petitioner's life began to go awry. He and his wife began experiencing severe marital difficulties, which ultimately culminated in the dissolution of their marriage. Thereafter, the Petitioner and his former wife became embroiled in a custody dispute regarding their young daughter. Apparently, the Petitioner's former wife had custody of their daughter, a very small child at the time; and they became embroiled in a bitter dispute over visitation rights, which was in litigation for approximately one year. The Petitioner states that he ultimately won visitation rights with his daughter as a result of this litigation, and his former wife became quite angry at this result. She was also, according to the Petitioner, quite jealous over his remarriage to his present wife and continued to actively obstruct his ability to have his daughter come to his home for visits. His former wife made statements to the effect that she would besmirch his reputation so that he would be unable to get employment and not ever be able to see his child again. The Petitioner states that his daughter at the time was subject to bed wetting frequently; and on one occasion, at least, when she was staying in his home, he would "wipe her bottom with toilet tissue". He states that during this visit or possibly on a number of them (the record is not clear), his daughter was very irritated and sore in the genital area due to bed wetting, and that he and his wife attempted to treat that condition while she was in their home. Apparently, his daughter made some mention of that incident to the former wife, who became angry and ultimately had the State Attorney file a criminal information against the Petitioner for sexual assault. This charge and the criminal litigation which ensued was the result of the bitter, ill feeling harbored against him by his former wife and was solely instigated at her behest. The date upon which the offense is supposed to have occurred was totally implausible because, according to the terms of the visitation decree, the Petitioner was only allowed to see his daughter on certain weekends. On the date he is alleged to have committed the sexual assault, his daughter was not even at his home or otherwise under his custody. Nevertheless, his former wife persisted in pursuing the matter; and ultimately, he was at the point of being tried for the charge of sexual assault, a felony. Upon advice of his attorney, an Assistant Public Defender, and after discussion with the State Attorney handling the case, an agreement was reached whereby the Petitioner would not be adjudicated guilty, but rather was given certain probationary terms. He was never convicted and adjudication was withheld in the matter. It is noteworthy that on the sentencing document executed by the Circuit Judge having jurisdiction of that case, (in evidence), the probationary sentence was noted by the judge to be less penalty than authorized by the sentencing guidelines because of the unlikelihood of any conviction should the matter be tried. The Petitioner maintains vehemently that he never committed this act and, further, that he did not consider, based upon his attorney's advice, that he had any felony charge on his record as a result of the outcome of that criminal matter. His attorney, Assistant Public Defender, E. E. Durrance, attested to that situation by a letter placed into evidence by agreement of the parties, which indicates that the Petitioner entered a plea of nolo contendere in that criminal case and that the court withheld adjudication of guilt which meant that the Petitioner does not have a felony conviction record. Based upon this advice at the time by his attorney, the Petitioner answered `1no" to question number 8 on the application for licensure involved in this case, wherein it was asked whether the applicant had ever been charged with a felony. The evidence in this proceeding reveals that, indeed, he was charged with a felony; but the Petitioner explained that he equated that question in his mind to mean whether he had a felony conviction on his record or a finding of guilt which he, of course, did not. The Petitioner's testimony about this entire situation was unrebutted. Due to observation of the Petitioner's obvious candor and sincerity in his testimony, as corroborated by the numerous testimonial letters stipulated into evidence, all of which testimony and evidence was unrebutted, the Petitioner's testimony is accepted in this regard. The Hearing Officer finds that, indeed, he did not commit the felony of sexual assault. The Hearing Officer further finds that he answered in the negative to the subject question on the application regarding the existence of a felony charge because he believed that he could honestly answer "no" because he had no conviction. Thus, his answer was due to a misunderstanding of the legal import of his criminal court experience in this matter and was not due to any effort to misrepresent his past record or to mislead the Respondent in an attempt to gain licensure. In 1986, the Respondent was arrested for petty theft or "shoplifting," which is the other basis for the denial of his application for licensure. This occurred when the Petitioner was embroiled in his severe marital discord described above. The dissolution of his marriage and related litigation had cost him virtually all of his significant, material possessions. He was unable to maintain steady employment, except for his lawn service, which he started himself. That was a very seasonal business; and at times, he was very short of funds. On one day, he made the mistake, as he admits himself, of going to a supermarket, buying a cup of coffee, for which he paid, but placing a package of ham into his pants pocket and walking out the door. He was arrested for stealing a $2.58 package of ham and was prosecuted and paid a small fine. The Petitioner is very remorseful that this occurred and states that it occurred at an emotional and financial low point in his life when he could obtain no regular, remunerative employment nor help from anyone. He was consequently thrust into a period of depression at this time. When he took the package of ham, he was in such an emotional state that he did not care about the consequences. He has since remarried, however, and has worked hard to rebuild his life, both his employment career and his family life. Since embarking upon his insurance sales career in recent months (as a temporarily licensed agent), he has been very successful. Although a new, inexperienced agent, he is one of the highest sales producing agents for Gulf Life Insurance Company's office, where he is employed, and is one of the highest producers in terms of collection of premiums due. His employer, supervisor and customers uniformly praise his honest, sincere and human approach to insurance sales and his sensitivity to the feelings of his customers or clients. The Petitioner's tetimony, as corroborated by other testimony and the numerous testimonial letters stipulated into evidence, establish in an unrefuted way, that he is, indeed, a sincere and honest person, who earnestly desires the opportunity to engage in an honorable profession within the field of insurance marketing. The incident involving the theft of the package of ham appears to be an isolated incident of aberrant conduct and does not, in itself, establish a lack of trustworthiness or fitness to engage in the business of insurance, given its singular nature and the emotional and financial straits in which the Petitioner found himself at the time. The Petitioner was candid in admitting this instance of petty theft, a misdemeanor. He did not fail to disclose this on the application in question because there was no category on that application calling for him to admit such an incident. The alleged failure to disclose involved question number 8, concerning the felony charge. Indeed, he did answer no? but gave that answer for the reasons delineated above. Further, it is noteworthy that upon inquiry by the Department after its own investigation had revealed indications of a criminal record incident, the Petitioner freely obtained certified copies of all pertinent court documents and otherwise cooperated and disclosed all information concerning the alleged felony charge. This full disclosure made by the Petitioner occurred before the agency took its purported final action in denying his application for examination and licensure. Thus, although he did not answer the question in an affirmative way concerning the felony charge at issue, he did fully disclose it and all circumstances surrounding it to the Department when the matter arose and was questioned in the Department's investigatory process.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That the applications of William C. Harrell for examination and licensure as a life, health and general-lines agent be granted. DONE AND ENTERED this 9th day of February, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 9th day of February, 1990. APPENDIX TO RECOMMENDED ORDER The Petitioner filed no proposed findings of fact. Accordingly, rulings on the Respondent's proposed findings of fact will be made. Respondent's Proposed Findings of Fact Accepted. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. It was not established that a knowing misrepresentation on the application was made. Accepted, but not as dispositive of material issues presented and not to the extent that it is indicated that a misrepresentation was made in the application. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and as not, in itself, dispositive of the material issues presented. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter, and not in accordance with the preponderant weight of the evidence since it was proven that the Petitioner did not commit sexual battery. Accepted, to the extent that it shows the factual background underlying the procedural posture of this case, but not as dispositive of material issues presented. COPIES FURNISHED: Mr. William C. Harrell P.O. Box 5503 Jacksonville, FL 32247 John C. Jordan, Esq. Department of Insurance and Treasurer Office of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Don Dowdell, Esq. General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 =================================================================
The Issue The issue in this case is whether Respondent, a certified law enforcement officer, failed to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duties, a failure that, if proved, would warrant the imposition of discipline upon Respondent's certificate.
Findings Of Fact Respondent Pablo Barrios ("Barrios") is a Florida- certified law enforcement officer and, as such, falls under the regulatory and disciplinary jurisdiction of Petitioner Criminal Justice Standards and Training Commission ("Commission"). At the time of the final hearing, and at all times relevant to this case, Barrios was employed as a police officer by Florida International University ("FIU"). The events giving rise to this proceeding took place on July 17, 2003. That morning, Barrios attended an in-service training class taught by Sgt. Alfonso. There were about a dozen other FIU police officers in the class. Shortly after the class began, Barrios and Sgt. Alfonso got into an argument over Barrios's use of a digital recorder. (Sgt. Alfonso was apparently offended that Barrios would record the lecture; Barrios claimed that he was merely using the device to keep track of the time.) Sgt. Alfonso asked Barrios to leave the classroom. Barrios did leave, remarking on his way out that if he (Barrios) had intended to turn on the recording device, he would first have told everyone in the "fucking room." Barrios later returned to the classroom and sat in the back. The lesson proceeded to conclusion uneventfully. When the class ended, Capt. Wright entered the room. Someone had reported the verbal altercation between Barrios and Sgt. Alfonso, and Capt. Wright was there to find out what had happened. To that end, Capt. Wright asked each of the officers present to prepare a statement describing the incident and stating specifically whether "improper language" had been used. In response to Capt. Wright's request, Barrios wrote the following statement: I was single[d] out by Sergeant Alfonso for taking out [sic] a personal recorder out of my laptop bag. Capt. Wright considered Barrios's statement to be incomplete. He therefore wrote the following question beneath Barrios's description of the event: Lt. Barrios, was improper language ever used during the incident. Barrios answered the captain's query, in writing, with one word: "No."1 Ultimate Factual Determinations The undersigned infers (and is convinced) that Barrios knew, when presented with Capt. Wright's imprecisely drafted question regarding the use of "improper language," that this interrogatory, though ambiguous and open to interpretation, was meant to require Barrios to either admit or deny using the "f" word during the incident. The undersigned further infers (but is not convinced) that Barrios was likely aware that Capt. Wright would misinterpret Barrios's negative answer as an affirmation that no one (including Barrios) had uttered the word "fuck" or any of its cognates. The undersigned is not clearly convinced, however, that Barrios intended to mislead Capt. Wright.2 Rather, since admitting that his language had been "improper" would have been tantamount to confessing misbehavior,3 Barrios likely intended to deny having engaged in inappropriate behavior. The undersigned is also not clearly convinced that Barrios's statement was false, for two reasons. First, the undersigned is not convinced that Barrios believed his language to have been improper.4 To the contrary, the evidence persuades the undersigned that Barrios subjectively believed his words were justified. It is likely, in other words, that Barrios made what was, for him, a true statement. Second, Barrios's statement has not been clearly and convincingly falsified——that is, shown via ordinary evidence to be objectively untrue. Because the adjective "improper" reflects an opinion or judgment about something, such an opinion could be falsified only if5 (among other things) there were a clear objective standard against which to measure or judge the thing in question.6 The Commission offered no evidence regarding such an objective standard for determining that Barrios's language was improper and hence failed objectively to falsify Barrios's denial that improper language had been used.7 In sum, the Commission failed clearly and convincingly to prove, as was its burden, that Barrios made a "false statement" with the intent to mislead Capt. Wright.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Barrios not guilty of failing to maintain good moral character by knowingly making a false statement in writing with the intent to mislead a public servant in the performance of his official duties. DONE AND ENTERED this 16th day of February, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 16th day of February, 2005.
