The Issue Whether Petitioner has shown, by clear and convincing evidence, that she is rehabilitated from her disqualifying offenses; and, if so, 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 APD serves clients with disabilities such as autism, intellectual disabilities, Downs Syndrome, and Prader-Willi Syndrome. APD's clients range from those needing total care to those who can live on their own with minimal assistance. The services APD provides to its clients include personal care, respite care, adult day training, supported living, and a wide variety of other services. The aforementioned services are provided by APD's vendors in individual homes, group homes, and supported living arrangements. Petitioner is seeking to work as a direct service provider in a group home for persons with developmental disabilities. Section 435.06(2), Florida Statutes, mandates that an employer may not hire someone for a position requiring contact with any "vulnerable person" until a completed background screening "demonstrates the absence of any grounds for the denial or termination of employment." The Department of Children and Families ("DCF") administers the background screening process for APD. APD's Action Petitioner's background screening identified three felony counts that are disqualifying criminal offenses, and all for resisting an officer with violence to his person. On November 14, 2016, DCF notified Petitioner that she was disqualified from employment due to her criminal history and specifically because of the three counts of resisting an officer with violence to his person from a November 26, 1975, Miami Dade incident. On or around December 1, 2016, Petitioner submitted a request for exemption, which included the exemption application and questionnaire to DCF. The instructions provided: "[f]or EACH criminal offense appearing on your record, please write your DETAILED version of the events and be specific. Attach extra pages as needed and please type or write legibly. When Petitioner filled out the questionnaire, she provided the following answers to each question on the exemption questionnaire: Question #1 asked for "disqualifying incident(s)." Petitioner responded "3 Counts of Resisting Arrest with Violence." In response to Question #2 "Non-disqualifying Offenses(s)," Petitioner again provided none of the details surrounding these offenses. She listed two non-disqualifying offenses, "Battery" and "Petit Theft" to which she had criminal dispositions. Question #3 asks, "What is the current status in the court system?" Petitioner responded, "N/A." In Response to Question #4 on her Exemption Questionnaire, regarding "the degree of harm to any victim or property (permanent or temporary), damages or injuries," Petitioner indicated "N/A." In answering Question #5, about whether there were "any stressors in [her] life at the time of the disqualifying incident," Petitioner again indicated "N/A." Question #6 asked whether there are any current stressors in her life, Petitioner responded: "[D]ivorced living at home with my 3 minor children. I am a spokes-person for the SEIU union. Fight for Fifteen. I feed the homeless in my community." As confirmed at hearing, Petitioner listed educational achievements and training as the following: Fla College of Business – Certified Nursing Assistant (1985) National School of Technology – Surgical Tech (1998) Food Service – Brevard C.C. Under Question #8 of the Exemption Questionnaire, in response to the question whether she had ever received any counseling, Petitioner indicated "N/A." Question #9 of the Exemption Questionnaire asks, "Have you ever used/misused drugs and alcohol? Please be specific and list the age at which you started and how you started." Petitioner again responded "N/A." Question #10 of the Exemption Questionnaire asks whether Petitioner was involved in any community activities. Petitioner responded, "I have volunteered with Senator Dwight Bullard, Fla. State Rep. McGhee, Mayor Woodard, Joe Garcia, etc." Question #11 asks the applicant to "Document any relevant information related to the acceptance of responsibility for disqualifying and non-disqualifying offenses." Petitioner responded as follows: "Yes. I accept responsibility at the time of this offense I was 17 years of age and trying to fit in with my friends. I have learned when you know better you do better." The Exemption Questionnaire also requested Petitioner to provide her three prior years' work history. Petitioner provided detailed information about her 18-year work history in the health care field, which included care of the vulnerable community. Petitioner has worked in a hospital, nursing home, private home, and with both mental health and hospice patients. Petitioner's answer also outlines how she had performed some of the same job responsibilities as a direct service provider for the following employers: JR Ranch Group Home LLC: C.N.A 10/3/16 to present-Companion to individual bathing, feeding, dressing, grooming, etc. Nurse Plus Agency: C.N.A. 3/12/08 to 9/7/15- Working in private homes with hospice patients bathing, feeding grooming, shaving, R.O.M. T.C.C. vital signs, doctor's appointments, etc. Gramercy Park Nursing Home: C.N.A. 2/15/05 to 3/12/08-Working in skilled nursing facility doing patient care, vitals, charting, lifting, bathing, feeding, dressing, physical therapy, etc. Jackson M. Hospital: C.N.A. 1/7/98 to 5/8/2001-Working on HIV unit, patient care, R.O.M., bed making, bathing, feeding, dressing, shaving, oral care, transferring, lifting, etc. On December 15, 2016, DCF sent a letter to Petitioner requesting additional documentation to complete the exemption application. Petitioner was asked to "provide the arrest report (from arresting agency) and CERTIFIED court disposition JUDGMENT AND SENTENCE" for the following offenses appearing on [her] criminal history screening report: 05/20/2013 MIAMI-DADE POLICE DEPARTMENT, BW DRIVING WHILE LICENSE SUSPENDED 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 5/11/2002 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 12/22/2001 MIAMI-DADE POLICE DEPARTMENT, COUNTY ORD VIOL 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATTERY 1/13/1998 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, AGGRAV BATT-POL OFF 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, BATTERY 9/28/1996 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSLT - WEAPON 4/11/1994 MIAMI-DADE POLICE DEPARTMENT, AGG ASSAULT –WEAPON 01/14/1991 MIAMI-DADE POLICE DEPARTMENT, SHOPLIFTING 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, ASSAULT 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, RESISTING OFFICER 11/07/1981 MIAMI-DADE POLICE DEPARTMENT, DISORDERLY CONDUCT The DCF letter also instructed Petitioner that if she could not obtain the arrest report and/or court disposition, she might submit a notarized written "detailed statement on each arrest explaining why you were arrested. You must include the victim's age and relationship to you and the sentence you received (probation, jail, prison, etc)." Additionally, the letter requested proof of income, an affidavit of good moral character, two to five letters of recommendation, and a personal history explaining what happened with each arrest, current home life, education, training, family members, goals, and community involvement. The letter provided Petitioner a 30-day deadline and notified Petitioner "[n]o further action [would] be taken on [her] application for exemption until we receive the requested information." (emphasis added). On or about December 21, 2016, Petitioner complied with the DCF letter and provided 99 pages of documents including Florida Criminal History Record requested, certified police arrest reports, notarized printed dockets of her criminal offenses with court dispositions, notarized document from the Clerk of Circuit and County Court Harvey Ruvin listing all Petitioner's criminal charges and court dispositions available in Miami-Dade, certificate of parole, 2009 certificate of restoration of civil rights, taxes, nursing assistant certification, certificate of liability insurance, continuing education certificates, program certificates, June 13, 2015, White House Conference on Aging program listing Petitioner as a speaker at the White House, 2015 newspaper articles detailing Petitioner's substantive work in minimum pay raise advocacy nationwide for the Fight for Fifteen campaign, letters of recommendation, driving history records, ACHA exemption to work in the healthcare field as a Certified Nursing Assistant ("CNA"), and a personal statement. Petitioner's personal statement and testimony at hearing provided a comprehensive history of how she has been a caregiver since 1982 "working [i]n hospitals, nursing homes, mental health, hospice, private homes, SLF, etc." Petitioner's statement further detailed that she became a Certified Nursing Assistant in 1985 after the disqualifying offense incident and became a surgical technician in 1997. Petitioner also provided the requested following explanations for each of her arrests: 1.) 11/26/1975: I was arrested for (3) counts of resisting arrest with violence. At the time I was 17 years of age hanging with the wrong crowd. 2.) 11/07/1981: Was at a party drinking got in fight with boyfriend. No case action. 3.) 01/14/1991: In store buying groceries didn't realize there were a pair of socks in my buggy charged with petty theft no way I would have stolen a pair of one dollar socks. Judge was dumbfounded. 4.) 04/11/1994: Got into argument with my mother in which she was drinking she called police to say I had a gun. In which was not true. Office[r] ask me had I ever been to jail I stated yes he then said put your hands behind your back then placed me under arrest. My Mom was there next morning to bond me out. Case No Action. 5.) 09/28/1996: I was witness to a murder I told officer what I seen but didn't want to speak in front of people, also did not want to be labeled as a snitcher. I told the officer I would come to talk but I would not walk with him. I proceeded to walk away the officer grabbed me by the back of my hair, the officer and I proceeded to fight at that time other people got involved. The lead detective asked the officer why he did that. The lead detective promise me he would come to court with me in which he did case was dismissed. Case No Action. 6.) Boyfriend and I got into argument he was drinking and he wanted to drive I told him no he wouldn't give me my keys, so I proceeded to knock head lights out. Case No Action. 7.) 01/13/1998: Got in fight with boyfriend. Case No Action. Petitioner responded to the best of her ability to each of DCF's requests for information. DCF summarized Petitioner's 99 document submission in an Exemption Review Summary ("summary") and forwarded the application, questionnaire, and supporting documents to APD for review. The summary correctly identified Petitioner's 1975 acts of resisting an officer as the disqualifying offenses. The summary outlined twelve non-disqualifying offenses with which Petitioner was charged. However, the summary categorized one non-disqualifying offense as a driving charge and outlined an additional nine non-disqualifying offenses as dismissed or dropped, as Petitioner had reported in her personal statement when she said "no action" was taken. The summary only listed a 1991 shoplifting charge and a 2001 county ordinance violation for which Petitioner was prosecuted. On March 17, 2017, Agency Director Barbara Palmer advised Petitioner by letter that her request for an exemption from the disqualification has been denied. The basis for the denial was that Petitioner failed to submit clear and convincing evidence of her rehabilitation. On May 1, 2017, Petitioner requested to appeal APD's denial. Hearing At hearing, as well as in the exemption package, Petitioner took full responsibility for her disqualifying offenses. At hearing, Cunningham also showed remorse. In her personal statement she stated she "paid her debt to society . . . learned from [her] mistakes." Petitioner also credibly explained the circumstances at hearing for her 1975 disqualifying convictions and testified that she was 17 years old when she broke into the neighbor's empty house across the street and was hanging out there. When she was arrested they were handling her roughly. She was originally charged with burglary, larceny and resisting arrest. The burglary and larceny charges were dropped and she pled to three counts of resisting an officer with violence to his person. Petitioner was sentenced to a youth program but left it, was bound over as an adult, and was sentenced to prison where she served three and a half years. Petitioner successfully completed her parole on August 23, 1981, and her civil rights were restored on May 8, 2008. Petitioner testified to her other non-disqualifying offenses as she had detailed in her personal statement. She explained that the 1981 criminal charge was dropped and stemmed from a fight with her boyfriend while at a party where she had been drinking. In 1994, her mom, who was a drinker, was acting out and called the police on Petitioner. Her mother lied and told the police Petitioner had a gun, which she did not. The police asked Petitioner if she had been to jail previously and she answered yes and was arrested. Her mother came and got her out of jail the next morning and the case was dismissed. Petitioner verified that in 1996, she would not tell the police officer what she saw regarding a murder because she was going to the police station to report it privately. The officer grabbed her from behind, they fell to the ground, and she was arrested for Battery on an Officer. The next day the lead detective came to court and testified on Petitioner's behalf that the officer's behavior was inappropriate and Petitioner was released and the charges were dropped. Petitioner also explained that she received another arrest because her boyfriend was drunk and took her car keys and was going to drive. Petitioner testified she could not stop him so she knocked the headlights and windows out of her car to prevent him from driving and ultimately the charges were dropped. Petitioner confirmed at hearing that at least nine of the criminal charges she obtained were either dismissed or dropped and she had not been arrested in over 10 years. Petitioner's credible detailed testimony during the hearing was information that APD did not have the benefit of having while reviewing her application. Petitioner affirmed that she had a July 1999 public assistance fraud case on which adjudication was withheld for her trading food stamps to pay her light bill. DCF failed to ask Petitioner about the case in the request letter with the list of other charges. Petitioner admitted that the public assistance fraud case was the only case in which Petitioner had to make restitution. She paid back the total amount of food stamps she sold and then her food stamps were reinstated. Evelyn Alvarez ("Alvarez"), APD Regional Operations Manager for the Southern Region, made an independent review of Petitioner's Request for Exemption, Petitioner's Exemption Questionnaire, and documentation submitted on December 21, 2016. Among the factors identified by Alvarez as a basis for the recommendation of denial of the exemption was the perception that Petitioner's application was incomplete. Alvarez determined Petitioner did not take responsibility for her arrests or show any remorse. Alvarez testified that APD needs to be able to rely on the answers provided by the applicant in the Exemption Questionnaire to get the information needed to decide whether to grant an exemption. Although she relied on other information gathered as well, what the applicant stated in the Exemption Questionnaire is very important. Alvarez explained that she considered both Petitioner's disqualifying and non-disqualifying offenses, the circumstances surrounding those offenses, the nature of the harm caused to the victim, the history of the applicant since the disqualifying incident, and finally, any other evidence indicating whether the applicant will present a danger to vulnerable APD clients if employment is allowed. Alvarez also testified that she looked for consistency in the applicant's account of events in her Exemption Questionnaire, whether or not the applicant accepted responsibility for her actions and whether the applicant expressed remorse for her prior criminal acts. Alvarez concluded that there were inconsistencies between Petitioner's account of her disqualifying and non-disqualifying offenses compared with those found in the police reports. Alvarez further testified she was concerned that Petitioner had numerous traffic citations. Alvarez explained the citations concerned her because individuals who are granted exemptions would potentially be in positions to transport clients and an applicant that maintains a good driving record demonstrates an ability to ensure the health and safety of clients being served. At hearing, Petitioner testified that her driving record "was not the best." The summary detailed that the 2008 infractions included failure to pay required tolls, improper left, and lack of proof of insurance. Petitioner also had other driving offenses, such as a DWLS and Driver License in 2007 and a safety belt violation in 2006. After her review, Alvarez decided that Petitioner had exhibited a continuing pattern of criminal offenses over an extended period of time, many of which were violent and involved fights, and she concluded Petitioner had not demonstrated rehabilitation. At hearing, Tom Rice ("Rice"), APD Program Administrator for Regional Supports/Licensing, testified that an individual's good character and trustworthiness is important for individuals who provide direct care for APD because service providers 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. Rice explained that APD's clients are susceptible to abuse because they are reliant on others to assist with intimate tasks, such as getting dressed, going to the bathroom, feeding, medicine, and funds. Direct service providers need to care and keep clients safe. Rice verified that Petitioner was eligible to work in an APD group home as a CNA. Rice also testified that APD was concerned with Petitioner's failure to disclose details in her accounts regarding her criminal offenses because it calls into question her trustworthiness. He further testified such factors demonstrate a pattern of poor judgment and decision-making and provide cause for APD to question Petitioner's fitness for providing services to the vulnerable individuals for which it is responsible and that is why Petitioner was denied. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from her disqualifying offenses of resisting an officer with violence to his person and that she will not present a danger to disabled or otherwise vulnerable persons with whom she would have contact if employment in a group home were allowed. Petitioner has shown she is a responsible individual by successfully holding jobs in the health field for approximately 18 years. Her employment has been in positions where she cared for vulnerable persons and no evidence was presented that Petitioner was a danger while doing so. Instead, Petitioner's exemption package mirrors her credible testimony of her previous employment serving as a companion, bathing, feeding, dressing, grooming, taking vital signs, transporting patients to doctor's appointments, and working in a private home, which are personal care services that some direct service providers also supply. Petitioner was honest and forthright about her past and supplied 99 pages detailing her past to comply with DCF's request to complete her application. Petitioner testified convincingly that she has turned her life around. Petitioner's only disqualifying offenses occurred over 40 years ago. Even though she was arrested at least twelve times since then, nine of the charges were dismissed and Petitioner's last criminal arrest was 2002. Petitioner also obtained three certificates after her disqualifying offenses. Petitioner received licensure as a CNA and she has been successfully practicing under her license with an ACHA exemption in the health care field. Some of Petitioner's work has even been with vulnerable adults in both a hospital and nursing home. The undersigned further finds that denial of Petitioner's exemption request would constitute an abuse of discretion. As discussed above, it appears Respondent relied heavily on the initial application submitted, hearsay in the police reports, and traffic infractions, and failed to adequately consider the 99 pages and nine dismissed charges Petitioner provided regarding her rehabilitation. In doing so, Respondent failed to properly evaluate Petitioner's disqualifying offenses having occurred over 40 years ago and the last non-disqualifying criminal arrest being at least 15 years ago and the majority of the charges being dismissed. The evidence also indicates that Petitioner has performed successfully in a healthcare work setting, including some care of vulnerable individuals. Additionally, Petitioner has gone above and beyond to contribute in the community. She volunteers with the homeless and also volunteers with legislators and a mayor, and advocated nationally for a minimum wage increase in the Fight for Fifteen campaign, serving as the spokes-person. In 2015, the White House also extended an invitation to Petitioner to speak because of her advocacy, and Petitioner passed the background check and screening that the secret service conducted. As Petitioner testified at hearing, had she been any type of threat or been dangerous or violent based on her previous arrests, she would not have passed the high security screening and been allowed in the White House to speak. Petitioner also testified she does not have anything to hide. She demonstrated, by credible and very compelling evidence, that she made wrong decisions and took the initiative to turn her life around. For these reasons, it is determined that no reasonable individual, upon fully considering the record in this proceeding could find that Petitioner is not rehabilitated. The concerns expressed by Respondent in formulating its intended action, without the benefit of hearing testimony, particularly with those regarding her untruthfulness and lack of remorse for her actions, were effectively refuted by the credible testimony at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Persons with Disabilities, enter a final order granting Petitioner, Molita Cunningham's, request for an exemption from disqualification from employment. DONE AND ENTERED this 13th day of September, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 13th day of September, 2017. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Molita Cunningham 12437 Southwest 220th Street Miami, Florida 33170 (eServed) Jada Williams, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue The issues are whether Respondent violated Sections 943.13(7), 943.1395(6), and 943.1395(7), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on February 14, 1986. Since that time, Respondent has held Correctional Certificate Number 81761. On or about May 8, 1994, Respondent was in the front yard of his residence. Police officers pulled into Respondent's driveway and requested that Respondent approach the patrol car. Respondent walked away from the police car. As he walked away, Respondent dropped an item from his pocket. The item that Respondent dropped was a bag containing white powder. The white powder was cocaine. Respondent was aware of the presence of the bag on his person. Respondent's possession of the bag containing cocaine was unlawful. One of the police officers advised Respondent that he was under arrest. The police officer instructed Respondent to put his hands behind him. Respondent refused to put his hands behind him. The police officers physically restrained Respondent. Respondent subsequently entered a plea of nolo contendere to the offenses of attempted possession of cocaine and resisting officer without violence. On July 17, 1995, Respondent was adjudicated guilty of these two offenses by the county court judge, in and for Putnam County, Florida, in Case Number 95-2767MM06. The court suspended any fine or cost which might be imposed for the conviction of resisting officer without violence. The court ordered Respondent to pay a fine of $241.50, prosecution costs of $50, and an investigation cost of $50 for the conviction of attempted possession of cocaine.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's certification as a correctional officer. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Johnnie Holcy, Jr. Route 6, Box 300 Palatka, Florida 32177 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue The issue in the case is whether the application filed by John Stover Mark (Petitioner) for licensure as a resident independent all lines adjuster should be approved.
Findings Of Fact On June 13, 2005, the Petitioner was driving his vehicle and was stopped for unlawful speeding. During the traffic stop, the law enforcement officer discovered that a grand theft warrant had been issued and was outstanding against the Petitioner. Prior to the traffic stop, the Petitioner was unaware of the warrant. The Petitioner was arrested on the warrant and charged with a third degree felony count of grand theft. The Petitioner testified that the charge was related to a claim by his former employer that the Petitioner had stolen tools from a construction job site. According to the Petitioner, he had been employed in the construction industry for many years by the same employer and had become unhappy with the lack of financial support he believed he was receiving from the employer. Eventually, he decided to quit the job and called his employer from the job site to do so. The Petitioner testified that he advised the employer that he was leaving the job and that the tools that belonged to the employer were being left at the job site. The abandoned tools apparently went missing, and the Petitioner was subsequently charged with the theft of the equipment. Although the Petitioner testified that he entered a plea of nolo contendere to the charge upon advice of his public defender, the court records indicate that the Petitioner entered a guilty plea to one count of grand theft, a third degree felony, on July 29, 2005, in Case No. 05-CF-012565, Circuit Court for the Thirteenth Judicial Circuit, Hillsborough County, Florida. The confusion related to the actual plea entered is immaterial to the disposition of this case. In any event, adjudication was withheld, and the Petitioner was sentenced to make restitution and pay court costs and to complete a five-year probationary period. The probation was terminated by order of the Court after approximately two years after the Petitioner had complied with all other requirements of his sentence. The Petitioner was subsequently injured in an automobile accident and through the services of the Department of Education, Division of Vocational Rehabilitation (DVR), received training for another occupation for which he was physically capable. The Petitioner testified that the DVR provided computer equipment and also funded the educational training that was a requirement for licensure as an insurance adjuster. The Petitioner testified that he disclosed the grand theft felony to his DVR counselor, who was apparently unconcerned or unaware that the felony incident posed an impediment to the Petitioner's prospects for licensure as an insurance adjuster. After completing the relevant training, the Petitioner filed an application for licensure as a resident independent all lines adjuster on July 11, 2007. The application contained the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony 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 answered the question in the affirmative. The Petitioner truthfully answered other questions on the application related to the felony problem and properly disclosed the relevant information. There is no evidence that the Petitioner has failed to disclose the grand theft incident in response to any inquiry material to this case, or has made any attempt to conceal the matter from the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for licensure as a resident independent all lines adjuster be denied. DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of May, 2008. COPIES FURNISHED: William Gautier Kitchen, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 John Stover Mark 8143 Sudbury Drive Port Richey, Florida 34668 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
Findings Of Fact Ernest Brown is a registered real estate salesman holding a registration issued by the Florida Real Estate Commission. Brown received notice of the instant hearing as required by the statutes and rules. His probation officer testified she had contacted him and he had advised her that he would not attend the proceedings. Brown was placed on probation with an adjudication of guilt withheld by the Circuit Court of Pinellas County, Florida, on January 25, 1989 (see Exhibit 2). Paragraph 10 of the conditions of probation requires that Brown serve 180 days in the Pinellas County Jail on weekends from 7:00 p.m. Friday until 7:00 p.m. Sunday. Because of the appeal of his case, Brown did not begin serving this jail term until August 24, 1989. He has served 72 of the 180 days according to the records of his probation officer. Brown is currently in the custody of the State's probation department.
Recommendation The Board's counsel advised the Hearing Officer after hearing that Respondent had surrender his license. This constitutes an ex parte communication of which notice is hereby given to all parties. This fact is immaterial to consideration of the matter at hand. The Board has long taken the position, quite correctly, that surrendering of a license did not impair jurisdiction to consider violations of its statutes by a licensee while licensed. Similarly, surrender of a license cannot terminate the Hearing Officer's consideration of the matter after hearing. The instant case was duly heard and the Recommended Order prepared prior to receipt of any pleadings relative to surrender by Brown of his license. At this point, the Board may accept surrender of the license and dismiss the Administrative Complaint, in which case Brown would be considered not to have had any disciplinary action against him, or the Board may enter its final order based upon the record and this Recommended Order. Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the license of Ernest Brown. DONE and ORDERED this 23rd day of April, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mr. Ernest B. Brown 2027 Thirteenth Street, South St. Petersburg, Florida 33172
The Issue Whether Respondent committed the violations alleged in Administrative Complaint, as amended? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been since April 30, 1982, certified by the Commission as a law enforcement officer. He holds certificate number 08-82-002- 01. Respondent is now, and has been since early 1982, employed by the Florida Highway Patrol (hereinafter referred to as the "FHP"). He currently holds the rank of sergeant, a rank he has held since 1986, with the exception of a brief period of time in 1990 when he served as a lieutenant. As a sergeant, Respondent is responsible, on a regular basis, for the direct supervision of eight troopers. There are occasions, however, when as many as 40 troopers are under his supervision. During the time that he has been with the FHP, Respondent has received numerous commendations and his overall work performance has been rated as either satisfactory or above. Only twice during the period of his employment has he been disciplined- - in 1983, for the negligent operation of his FHP vehicle, for which he received a written reprimand, and, more recently, for the incidents which gave rise to the issuance of the instant Amended Administrative Complaint. These incidents all occurred during the time Respondent held the rank of lieutenant. Respondent was promoted to the rank of lieutenant and assigned to the investigative section of the FHP's Troop "E" in Miami on or about February 1, 1990. His duties included working out of uniform (in civilian clothes) investigating driver's license fraud. Among the other investigative lieutenants assigned to Troop "E" with whom Respondent worked were Lieutenants Jimmy Hobbie, Paul Sharpe and Kenneth Glass. Respondent shared an office with Lieutenant Hobbie. They each had their own desk. Lieutenants Sharpe and Glass occupied other nearby offices. Respondent enjoyed a congenial, professional relationship with his fellow investigative lieutenants. At no time did he ever have an exchange of angry or threatening words with them. On at least three separate occasions between February 19, 1990 and April 15, 1990, while in his office and in the presence of Lieutenants Hobbie and Sharpe, with whom, at the time, he was engaged in casual, light conversation injected with attempts at humor, Respondent removed his .38 caliber FHP-issued service revolver from his holster, placed it near the side of his head, pulled the hammer partially back, and, without firing any shots, returned the revolver to his holster. On none of these occasions did Respondent intend to harm or threaten anyone. He was simply trying to be funny. Neither Hobbie nor Sharpe, however, were amused by Respondent's careless and potentially dangerous display of his firearm. 1/ To the contrary, they were troubled by Respondent's actions, but they did not express their concerns to Respondent. On March 30, 1990, Respondent displayed a firearm in arresting an individual named Mark Barken for driver's license fraud. Prior to locating and arresting Barken, Respondent had been told by Barken's brother that Barken was a heroin addict and that Barken had recently threatened the brother with a shotgun and told the brother that he was going to kill him and his wife. Based upon the information he had been provided by the brother, Respondent considered Barken to be an unstable, dangerous and violent individual. Therefore, when he received a tip that Barken was at a drug treatment and rehabilitation facility in Perrine, he asked Lieutenant Hobbie to accompany him to the facility to assist in arresting Barken. Hobbie agreed to provide such backup support. Respondent and Lieutenant Hobbie drove to Perrine and waited together outside the facility for Barken to leave. After a while, Respondent left the surveillance area for brief moment. When he returned, Hobbie advised him that Barken, or at least someone who looked like Barken, had just left the facility. Respondent thereupon got into his FHP vehicle and drove off in the direction Hobbie had told him Barken was headed. Hobbie remained behind in the surveillance area. Shortly thereafter Respondent spotted Barken, who was with a companion. As Respondent approached the two, they ran across the street into a parking lot. Respondent followed them. As he pulled into the lot, he identified himself as a law enforcement officer 2/ and ordered Barken and his companion to stop, turn around and face him with their hands up. The pair stopped, but they did not comply with Respondent's other directives, even after these directives had been given several times. Believing that it would be prudent to do so, Respondent took a shotgun with him as he exited the vehicle and initially held it in a port-arms position in an effort to gain control of the situation. Ultimately, Respondent did gain control of the situation. When Lieutenant Hobbie arrived on the scene, Barken and his companion were laying face down on the pavement and Respondent was pointing a shotgun in their direction. 3/ Following Hobbie's arrival, Respondent placed the shotgun back in his vehicle and Barken and his companion were taken into custody. On or sometime between April 16, 1990, and April 20, 1990, while seated at his desk in the office he shared with Lieutenant Hobbie, Respondent jokingly pointed his revolver out the open doorway of the office and in the direction of a reception area. As he did so, he commented to Hobbie, who was in the office with him, "Wonder what he would do if he would, you know, look up and see me pointing this gun at him." From where he was situated, Hobbie was unable to see the person to whom Respondent was referring. After making this comment, Respondent put the gun back in his holster. At around lunchtime, on or sometime between April 16, 1990, and April 20, 1990, Respondent walked into Lieutenant Sharpe's office and the two began to engage in a friendly conversation. Their discussion centered upon their plans for lunch. During the conversation, Respondent was standing immediately in front of the desk at which Sharpe was seated. At some point in their discussion, Respondent decided that he needed to tuck his shirt in his pants. Before loosening his pants, he unholstered his service revolver and laid the revolver on Sharpe's desk. As Respondent placed the revolver on the desk, he carelessly pointed the barrel of the gun in Sharpe's direction and pulled the hammer partially back. Sharpe reacted by quickly changing his position to avoid being in the line of fire in the event the revolver discharged. Respondent saw Sharpe's reaction. He immediately removed the revolver from the desk and placed it back in his holster without bothering to tuck in his shirt. Although concerned about this incident, Lieutenant Sharpe did not discuss his concerns with Respondent; 4/ however, he did report the incident shortly after it had occurred to Randy Snow, who was his, as well as Respondent's, immediate supervisor. 5/ On April 25, 1990, Respondent and Lieutenants Hobbie, Sharpe and Glass were standing in close proximity to one another in the secretarial area of Troop "E" headquarters and engaged in informal and friendly conversation when Respondent, in response to a remark make by Hobbie and in an effort to be humorous, removed his service revolver from his holster, pointed it at Hobbie's head and pulled the hammer partially back. Hobbie turned his head to the side and ducked. Glass threw his hands up and exclaimed, "That's loaded," in response to which Respondent stated, "I know it is." Respondent then put the revolver back in his holster. At the time of this April 25, 1990, incident, an internal investigation of Respondent's conduct was already underway. During the course of the investigation, Respondent, who had not yet completed his probationary period as a lieutenant, was returned to the rank of sergeant and placed on "administrative duty." Following the conclusion of the investigation, Respondent was dismissed by the FHP on the ground that he was unfit for duty. The FHP subsequently determined that it did not have just cause to dismiss Respondent for fitness deficiencies. Accordingly, pursuant to a settlement agreement with Respondent, it rescinded Respondent's dismissal and instead suspended Respondent for ten days without pay for the improper display of a weapon. In accordance with the terms of the settlement agreement, Respondent successfully participated in the FHP's Employee Assistance Program. He also took a firearms retraining course, which he also successfully completed. Since Respondent's return to work, his overall work performance has been rated as exceeding performance standards and he has received a letter of commendation from his supervisor. There have not been any reoccurrences of the improper conduct for which he was suspended. Apparently, he has mended his ways. He is today considered to be an effective, hard working and honest law enforcement officer who is an asset to the FHP.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395, Florida Statutes, by virtue of his having engaged in the conduct described in Findings of Fact 10, 18, 19 and 21 of this Recommended Order, and (2) issuing him a written reprimand and placing him on probation for a period of two years, during which time he shall be required to undergo firearms training and meet any other terms and conditions deemed appropriate by the Commission. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of April, 1993. STUART M. LERNER 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 27th day of April, 1993.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent, William E. Ford, Jr., was certified by the Criminal Justice Standards and Training Commission on May 20, 1976, and was issued Certificate Number 02-16845. After Harry L. Harper, a felony prosecutor in the office of the State Attorney for the Fourteenth Judicial Circuit, had known respondent, who worked as a deputy in the Bay County Sheriff's office, for about a year, it fell to him to draw and sign the information charging respondent and his wife Barbara with conspiracy to deliver cocaine. The jury who heard the case found respondent Ford guilty of conspiracy to deliver cocaine. On April 18, 1986, after the jury returned its verdict, the Honorable Don T. Sirmons entered an order withholding adjudication of guilt and placing respondent on probation on conditions which included 60 days in jail. State v. Ford No. 85- 1938 AG (14th Cir.1986). Petitioner's Exhibit No. 1.
Findings Of Fact 12. The factual allegations contained in the Order of Penalty Assessment issued on February 1, 2010, the Amended Order of Penalty Assessment issued on March 18, 2010, the 2nd Amended Order of Penalty Assessment issued on September 28, 2010, and the 3rd Amended Order of Penalty Assessment issued on December 28, 2010, attached as “Exhibit A”, “Exhibit B”, “Exhibit D“, and “Exhibit F”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from Wine Warehouse of St. Petersburg, Inc., the Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2nd Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On February 1, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”), issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-360-D3-OPA to Wine Warehouse of St. Petersburg, Inc. The Order of Penalty Assessment assessed a total penalty of $26,455.55 against Wine Warehouse of St. Petersburg, Inc. for its failure to secure workers’ compensation for its employees as required by Chapter 440, Florida Statutes. The Order of Penalty Assessment included a Notice of Rights wherein Wine Warehouse of St. Petersburg, Inc. was advised that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On February 4, 2010, the Order of Penalty Assessment was served on Wine Warehouse of St. Petersburg, Inc. by certified mail. A copy of the Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 18, 2010, the Department issued an Amended Order of Penalty Assessment to Wine Warehouse of St. Petersburg, Inc. The Amended Order of Penalty Assessment assessed a total penalty of $12,368.81 against Wine Warehouse of St. Petersburg, Inc. The Amended Order of Penalty Assessment included a Notice of Rights wherein Wine Warehouse of St. Petersburg, Inc. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty- one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On March 24, 2010, the Amended Order of Penalty Assessment was served on Wine Warehouse of St. Petersburg, Inc. by certified mail. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 14, 2010, Wine Warehouse of St. Petersburg, Inc. filed a request for an administrative hearing (“Petition”) with the Department, which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-6375. A copy of the Petition is attached hereto as “Exhibit C”. 6. On September 28, 2010, the Department issued a 2nd Amended Order of Penalty Assessment to Wine Warehouse of St. Petersburg, Inc. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $10,169.99 against Wine Warehouse of St. Petersburg, Inc. 7. On September 29, 2010, the Department filed a Motion to Amend Order of Penalty Assessment with the attached 2nd Amended Order of Penalty Assessment with the Division of Administrative Hearings in DOAH Case No. 10-6375. On December 23, 2010, Administrative Law Judge B. J. Staros entered an Order granting the Department’s Motion to Amend. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On December 28, 2010, the Department issued a 3rd Amended Order of Penalty Assessment to Wine Warehouse of St. Petersburg, Inc. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $10,037.97 against Wine Warehouse of St. Petersburg, Inc. 9. On December 28, 2010, after receiving written notification from Wine Warehouse of St. Petersburg, Inc. that it did not wish to proceed to an administrative hearing in this matter, the Department filed a Joint Motion to Relinquish Jurisdiction in DOAH Case No. 10-6375. As a result, Administrative Law Judge B. J. Staros entered an Order Closing File, relinquishing Jurisdiction of this matter to the Department. A copy of the Order Closing File is attached hereto as “Exhibit E”, 10. OnJanuary 13, 2011, the Department and Wine Warehouse of St. Petersburg, Inc. entered into a Settlement Agreement wherein Wine Warehouse of St. Petersburg, Inc. agreed to pay the Department the penalty assessed in the 3rd Amended Order of Penalty Assessment in the amount of $10,037.97. 11. On January 27, 2011, the 3rd Amended Order of Penalty Assessment was served by certified mail on Wine Warehouse of St. Petersburg, Inc. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein Wine Warehouse of St. Petersburg, Inc. was advised that any request for an administrative proceeding to challenge or contest the 3rd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 3rd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference.
