The Issue Should Petitioner discipline Respondent's law enforcement certificate number 95835 for alleged offenses committed against his former wife, Alicia Grix, now Alicia Maxwell?
Findings Of Fact Chapter 943, Florida Statutes, grants authority to Petitioner to certify law enforcement officers in Florida and to impose discipline against law enforcement officers for failure to maintain necessary qualifications to perform their duties as law enforcement officers. Respondent was certified by Petitioner as a law enforcement officer having been issued law enforcement certificate number 95835. At times relevant to this inquiry Respondent has held that certificate. On February 10, 1993, Respondent was married to Alicia Grix, now Alicia Maxwell. On that date Respondent and Ms. Maxwell became engaged in an argument while in their home. The wife decided to leave the home and go for a drive to avoid further confrontation. When the wife was exiting the front door Respondent grabbed her by the hair and walked his wife toward the car. Respondent opened the door to the car and shoved his wife into the car on the driver's side. Her right leg was in the car while her left leg remained outside the car, at which point Respondent slammed her left leg with the car door. This occurred in a setting in which the wife was unable to get her left leg into the car because she was being prohibited from that act by Respondent's actions. Respondent slammed the door on his wife's leg several times. She then exited the car. Respondent then picked his wife up and slammed her to the ground causing her to strike her head and back on the ground. She got up from the ground and went into the house. Respondent followed her. After the two persons returned to the house, Respondent pushed his wife onto a couch located inside the house. As a result of the car door being slammed on her leg, Ms. Maxwell had an abrasion on her left leg between the knee and ankle which bled. Ms. Maxwell did seek medical attention for her wound. The laceration that Respondent caused was approximately an inch long. Respondent's acts did not leave a permanent scar. These circumstances transpired in a setting in which Ms. Maxwell did not give Respondent the permission to touch or strike her, and in a setting in which his physical conduct against his wife was contrary to her will. In the early morning hours of July 4, 1993, Respondent and Ms. Maxwell, who was still his wife, had another argument in their home. During this exchange Respondent pushed her on her chest with his hands, which caused her to take a step back. Respondent then raised his fist but did not strike his wife following that gesture. Again this was an incident in which Ms. Maxwell had not given permission to Respondent to touch or strike her, and he had struck her against her will. Following the incident on July 4, 1993, Ms. Maxwell applied to the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, and was granted a temporary injunction against domestic violence directed to the Respondent. That injunction in its operative terms stated: Respondent shall not come on any place where Petitioner is located including Petitioner's residence or employment; and shall not follow or shadow Petitioner at any place. Respondent shall not telephone Petitioner, except through an attorney. The Petitioner referred to was Ms. Maxwell, then the wife of the Respondent. The temporary injunction was issued on July 6, 1993. On July 12, 1993, a permanent injunction against domestic violence was issued in that case which contained the same admonition against contacts between the Respondent and his wife. The permanent injunction gave temporary custody of the children of that marriage to the wife with "visitation" by Respondent based upon "evaluation before visitation." The terms of the permanent injunction obligated the wife to refrain from having any contact with the Respondent in a similar manner to the prohibition against contacts directed from Respondent to the wife. This arrangement limiting contacts by the wife directed to Respondent was by stipulation of the parties governed by the injunction. The injunctions were issued in accordance with Section 741.30, Florida Statutes. Following the issuance of the permanent injunction, Respondent encountered Ms. Maxwell, who was still his wife, on Gaines Street in Tallahassee, Florida. She was in her car with their daughter. Respondent was in an unmarked patrol car, which by inference is found to have been associated with his law enforcement duties with the Capitol Police. Thereafter, while the wife was still in the car with their daughter and Respondent was on the sidewalk next to the street, Respondent began to talk to the daughter telling the daughter to call the Respondent. No words were exchanged between Respondent and the wife. This contact contravened the terms of the permanent injunction and constituted harassment. At that time the terms of the injunction were known to the Respondent. This incident took place sometime in July 1993. On the night of July 19, 1993, or early morning of July 20, 1993, Respondent accompanied his brother to the immediate neighborhood where Ms. Maxwell, then Respondent's wife was residing. The brother came into the wife's yard and looked into the window of the house. Respondent remained at a van that the brothers had driven to the location in the immediate vicinity of the wife's home. The brothers then left the scene in the van with the Respondent driving. Again this was a knowing violation of the permanent injunction which directed the Respondent to have no contact with the wife and constituted harassment. On July 21, 1993, Respondent and Ms. Maxwell, then his wife, met voluntarily at a location away from their respective residences. During a conversation the Respondent threatened the wife that he was going to take their kids away from her. He indicated that he had gone into her personal checking account and had taken money out of the account, which she subsequently confirmed. Although the two persons had met voluntarily, Respondent's actions in the meeting constituted harassment of the wife and were contrary to the permanent injunction with Respondent's knowledge. While Ms. Maxwell was still married to Respondent, he left a note on the windshield of her car which was parked in the lot near her place of employment. That note said Alicia, information given by the park I wish you quit tell [sic] Robin something and then turn around and tell her the opposit [sic] re: schools I'm no [sic] taken [sic] 98% of the bills I don’t know where you think I'm going to get more from. Please stop getting Robin's hopes up. Thank you. This contact was harassing and contrary to the permanent injunction and Respondent knew that it was. In the early morning hours of August 8, 1993, Respondent had further contact with Ms. Maxwell, then his wife, while in her home. The contact made between Respondent and the wife was around 2:50 a.m. Respondent pounded on the front door to the wife's residence. He then went into the back yard and entered the home through a sliding glass door in the back of the house. Respondent entered his wife's bedroom while she was calling the police to report his intrusion. Respondent asked who was on the phone. His wife told him it was the police. She asked Respondent to leave. He took the phone and hung it up on the receiver and told his wife that all he wanted to do was to talk to her. Respondent was aggravated that the wife had called the police. Respondent then left the house through the front door. His actions were harassing and constituted a knowing violation of the terms of the injunction against contact with his wife. On August 27, 1993, while Respondent was still married to the present Ms. Maxwell, he telephoned her contrary to the terms of the injunction, which he realized prohibited this telephone contact. This constituted harassment. The circumstances which have been described, in which the Respondent made inappropriate contacts with Ms. Maxwell following the issuance of the permanent injunction, were distressful to Ms. Maxwell. In association with events that have been described, Respondent was terminated from his employment as a law enforcement officer with the Capitol Police.
Recommendation Upon consideration of the findings of fact and conclusions of law reached it is recommended that a final order be entered which suspends Respondent's law enforcement certificate for two years. DONE AND ENTERED this 10th day of October, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 10th day of October, 1997. COPIES FURNISHED: Karen D. Simmons, Esquire Paul D. Johnston, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert Rand, Esquire Dee Dee Ayers, Esquire 908 Thomasville Road Tallahassee, Florida 32303 Angelo Cancio, Esquire Post Office Box 10293 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether Petitioner's application to renew his embalmer's license number F042986 should be approved.
Findings Of Fact Petitioner currently holds embalmer's license number FO42986, first issued on September 27, 1982. Petitioner says he is currently "semi-homeless" with no permanent residential address and receives all mail at a post office box in Tampa. In May 2003, he retired from the United States Postal Service, and except for "flipping real estate intermittently," and "hustl[ing] a little bit on the side right now," he is unemployed. The Board has licensing authority over the practice of embalming.1/ Under section 497.142(10)(c)1.-3., an applicant for renewal of an embalming license must disclose on the application three categories of crimes: (i) any felony or misdemeanor that is directly related to the practice of embalming; (ii) "[a]ny other felony not already disclosed under subparagraph 1. that was committed within the 20 years immediately preceding the application under this chapter"; and (iii) "[a]ny other misdemeanor not already disclosed under subparagraph 1. that was committed within the 5 years immediately preceding the application under this chapter." This requirement is clearly stated not only in the License Renewal Application itself, but also in the License Renewal Notice sent to a licensee. A requirement to disclose this information is also found in Florida Administrative Code Rule 69K-1.007. In this case, only the criminal convictions described in subparagraphs 2. and 3. are in issue. A criminal conviction by itself does not automatically disqualify an applicant. Under the Board's licensing protocol, if an applicant has a criminal conviction for an offense listed in the statute, he "shall complete and submit with the application a form DFS-N1-1716, 'Criminal History Form' (Oct. 2006), which is incorporated by reference in Rule 69K-1.001, F.A.C. Applicant shall also make a written presentation to the Board, in the form of a letter to the Board, dated and signed by the applicant and attached to the application, addressing therein the [13] factors listed [in the rule]." Fla. Admin. Code R. 69K-1.008. The Board then reviews and considers this information before acting on the application. On July 7, 2013, and again in 2015, Petitioner submitted License Renewal Applications to the Board. Question 1 requires the applicant to state, yes or no, whether "the licensee [has] been convicted of, pled no contest to, or pled guilty to, any crime required to be reported pursuant to s. 497.142(10), which crime has not previously been reported to the [Board]." Petitioner checked the "No" box on each application and did not submit the required letter demonstrating that approval of his application would not create a danger to the public. The evidence shows, and Petitioner acknowledges, that he was found guilty of the following felonies in Hillsborough County within the 20 years immediately preceding the filing of the applications: 9/26/07 Threatening to throw, project, place or discharge any destructive device § 790.162, Fla. Stat. (He was sentenced to 24 months of incarceration for this offense, with credit for time already served) 5/2/13 Stalking, aggravated (repeated after injunction) § 784.048(4), Fla. Stat. (He was sentenced to 30 months of incarceration for this offense, with credit for time already served) Petitioner says he was incarcerated in Hillsborough County for each offense, but he was released on probation before serving the full sentences. The evidence shows, and Petitioner admits, that he was found guilty of the following misdemeanors in Hillsborough County within the five years immediately preceding the filing of the applications: 9/2/10 Willful violation of an injunction for protection against repeat violence, sexual or dating violence - § 784.047, Fla. Stat. 9/2/10 Willful violation of an injunction for protection against repeat violence, sexual or dating violence - § 784.047, Fla. Stat. 9/2/10 Criminal mischief (two counts) - § 806.13, Fla. Stat. 5/2/13 Battery - § 784.031, Fla. Stat. 5/2/13 Willful violation of an injunction for protection against repeat violence, sexual or dating violence - § 784.047, Fla. Stat. The Board did not have access to the state criminal database until after the 2013 application was filed and approved. However, a background check in April 2015, or before his renewal application was filed, revealed Petitioner's criminal record. By letter dated May 8, 2015, the Board requested that Petitioner file a written response regarding his criminal record so that it could decide whether to take action "against [his] license." See Resp. Ex. 1, p. 11. No response was filed. On July 10, 2016, the Board informed Petitioner that in light of his criminal record, it would consider whether his license could be renewed at its meeting on August 6, 2016, and invited him to attend. Id. at 8. He did not attend the meeting. On August 28, 2016, the Board issued its Notice of Intent to Deny the 2015 application.2/ The application was denied on one ground only -- that Petitioner failed to demonstrate that renewal of the license would not create a danger to the public. Petitioner timely requested a hearing. Petitioner gave no clear explanation as to why he did not disclose the criminal convictions. He noted the offenses did not relate to the practice of embalming, he is not "a good reader," and perhaps he misunderstood the clear and unambiguous language in the application and License Renewal Notice. Also, Petitioner's testimony regarding the nature of the crimes is somewhat confusing and lacking in details.3/ While characterizing them as "animal related," Petitioner blamed them on disputes with "adversarial neighbors," drinking too much alcohol, using poor judgment, and taking "the law into [his] own hands." He now agrees this was "totally improper" conduct on his part. He testified that he no longer drinks alcoholic beverages, he regularly attends Alcoholic Anonymous meetings, and he has a better philosophy on life. To the extent they corroborate Petitioner's testimony that he has turned a new page in his life, the four character reference letters, all hearsay in nature, have been considered. See Fla. Admin. Code R. 69K- 1.008(3)("an applicant subject to this rule should submit any letters of reference they can obtain in support of their assertion that if licensed they would not be a danger to the public"). As to the first felony conviction in 2007, Petitioner explained that cars were speeding through his neighborhood and he feared that his cat might be hit by one of them. To force cars to slow down, he parked his car in the two-lane street in front of his house, blocking traffic in one lane, and told two complaining neighbors, "Touch that car and it will blow." Although he says there was no explosive device on the car, he was arrested and later convicted of threatening to discharge an explosive device. Petitioner admits he was drinking at the time of the incident. The second felony conviction in 2013 arose out of a dispute with another neighbor who had an autistic child in his late teens. It was not "animal related." Petitioner says he observed the teenager dumping "street garbage" over his back fence. One thing led to another, and the mother, who Petitioner characterized as the real "instigator, motivator, and provocateur," later obtained an injunction against him. One evening Petitioner drove to a convenience store for gasoline and says by pure accident he ended up at a gasoline pump adjacent to the mother, who was also refueling her vehicle. He was later arrested and convicted of repeated and aggravated stalking. Petitioner admits he was drinking at the time of the incident. No explanation was given for the five misdemeanor convictions except a contention that the violations of the injunction obtained by the mother were not willful. Petitioner could not recall the facts surrounding the criminal mischief or battery charges.4/ Petitioner testified that while he has not actively practiced embalming since the mid-1980s, or some 30 years ago, he has performed around 5,000 "hands-on embalming" cases without a problem, and he is not a danger to the public. He desires to maintain his license in the event he ever goes "back in [the business] part-time or whatever." If the license is renewed, he agrees he would come into contact with the deceased's relatives, other members of the public, such as doctors and medical examiners, and other employees at the funeral home. No evidence was produced regarding his ability to perform embalming services after being inactive in the profession for so many years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Funeral, Cemetery and Consumer Services enter a final order denying Petitioner's application for renewal of his embalmer's license. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2016.
The Issue The issue presented is whether Petitioner's application for licensure should be granted.
Findings Of Fact l. Petitioner became a certified law enforcement officer and was employed by the Metro-Dade Police Department in 1981. He worked for that agency through 1994, and his employment was terminated in 1996. During his employment with the Metro-Dade Police Department, he was trained as an investigator and was specifically trained in traffic accident investigation and reconstruction. He subsequently became an instructor for the Department and trained other police officers. During his employment with that agency, he received 12 commendations for good deeds and heroism. Initially, he received above-satisfactory evaluations. During his last seven years, he was rated as an outstanding employee. Although no longer employed by the Police Department, he continues to be used by the Metro-Dade Police Department, by the County Attorney's Office, and by the State Attorney's Office as a consultant on a regular basis and testifies on behalf of those agencies as an expert in traffic accident reconstruction. In 1994 he was charged with several felonies in Broward County. The jury found him not guilty of those charges, but he was convicted of lewd and lascivious behavior on June 10, 1995. The convictions were for five misdemeanors. Petitioner has engaged in no criminal activity either before or after his conviction and continues to maintain his innocence regarding the activity for which he was convicted. Petitioner was given six months' probation and has completed all conditions of that probation. None of the conditions of probation involved contact with people or restrictions on the employment in which he can engage. For the past three years, Petitioner has been employed in an administrative capacity by an investigative and security agency licensed by the Department. For a while he worked there under temporary licensing by the Department without incident. The agency which employs Petitioner performs a substantial amount of investigation and traffic accident reconstruction for insurance carriers. If licensed, Petitioner would perform that work in the field. Petitioner's ability to perform the duties of that employment is enhanced by his extensive educational background and experience. Petitioner even has a degree in photography, which further enhances his ability to perform surveillance, investigations, and traffic accident reconstruction. Petitioner's employers, who are both certified law enforcement officers, rely on Petitioner's "outstanding" investigative abilities and guidance. He is considered very knowledgeable in the requirements of Chapter 493, Florida Statutes, the framework for investigative and security services administered by the Department. His skills are considered superior, and he is respectful to all with whom he comes in contact. He conducts himself with the utmost professionalism. Petitioner respects the law and asserts that he has never knowingly broken it. He further respects the rights of others as evidenced by his testimony, the testimony of other law enforcement officers, and the many awards, letters of praise from citizens, and commendations from his superiors admitted in evidence. There is no relationship between the misdemeanors for which Petitioner was convicted and the licenses for which he has made application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered granting Petitioner's application and issuing to him a Class "C" Private Investigator license, a Class "D" Security Officer license, and a Class "G" Statewide Firearm license. DONE AND ENTERED this 31st day of July, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 31st day of July, 1997. COPIES FURNISHED: C. Michael Cornely, Esquire Hartman and Cornely, P.A. 10680 Northwest 25 Street, Suite 200 Miami, Florida 33172 Kristi Reid Bronson, Esquire Department of State Division of Licensing The Capitol, Mail Station 4 Tallahassee, Florida 32399-0250 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell, General Counsel Department of State The Capitol, Plaza 2 Tallahassee, Florida 32399-0250
The Issue Should the Respondent's license as a real estate salesperson in the State of Florida be revoked, suspended or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. At all times material to this proceeding, the Respondent was licensed as a real estate salesperson in the State of Florida, having been issued license number 0605704. The last license was issued as a voluntary inactive salesperson with an address of 820 Manatee Avenue, Ellenton, Florida 34222. By application dated September 3, 1993, and received by the Department on September 10, 1993, Respondent applied to become a real estate salesperson in the State of Florida. Question 9 on the Application provides as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? The question applies to any viola- tion of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication with- held, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungment or sealing prior to answering "NO". If you answered "YES", attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state, and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent answered "YES" to question 9 and provided information about one arrest for reckless driving in September 1984. A criminal background check performed as part of application process indicated that Respondent had also been convicted in June 1987 of reckless driving and had pled nolo contendere (no contest) to a felony charge of obtaining property by worthless check. Adjudication was withheld and Respondent received credit for time served. The Respondent did not have a criminal background check performed. Therefore, he failed to report the reckless driving conviction in June 1987 because he had forgotten about the conviction. As to the worthless check charge, the Respondent did not consider it part of his record since the charge against him for issuing worthless check was a mistake, and reimbursement was made on the check. The mistake was that Respondent's brother, Bret Gardner had signed a check for Respondent to purchase materials. However, in the process of using the check to purchase the materials the Respondent identified himself with his driver's license and his driver's license's number was placed on the check.. Since their names are similar and they are close to the same age (difference of two years), the Respondent was charged with issuing the worthless check rather than Bret Gardner. There was one other occasion in the past where Respondent was mistaken for Bret Gardner in a court proceeding. Apparently, the no contest plea was the easiest way for the court to clear up the matter. Respondent attended a real estate school operated by his mother, Claudia Gardner, and before filing his application the Respondent discussed Question 9 with his mother. Since the Respondent had been charged with other traffic violations (speeding tickets, etc.) it was his mother's opinion that by listing the one conviction - and if others should have been reported - then it would show that the Respondent was not attempting to conceal any convictions. Hindsight is 100 percent better than foresight. Respondent's mother's advice surely proves this out. The failure to furnish all the information concerning his criminal record was not intentional on the part of the Respondent. However, this does not relieve him of the responsibility to have made an effort to check his record, particularly since he was advised of its importance by the last paragraph in question 9 which was emphasized by being in bold print. Furthermore, having questioned his mother concerning the necessity to report his record - even assuming that time was of the essence in making his application - there was no reason why the Respondent could not have checked with the Division of Real Estate to determine if he should follow through on a check of his record so as to advise the Division of Real Estate of any changes to be made prior to the issuance of the license. The Department presented no evidence that had the Florida Real Estate Commission (Commission) been presented Respondent's complete record it would have denied him licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and after having reviewed considered Rule 61J2-24.001, Florida Administrative Code, concerning disciplinary guidelines and the recommended range of penalties for a violation of Section 475.25(1), Florida Statutes, and considering mitigating circumstances as provided for in Rule 61J2-24.001(4), Florida Administrative Code, it is recommended that the Commission enter a final order finding Respondent guilty of having violated Section 475.25(1)(m), Florida Statutes. It is further recommended that the Respondent be assessed an administrative fine in the amount of $300.00, and his license be suspended for a period of six months, the suspension be stayed and the Respondent's license be placed on probation for a period of six months under terms and conditions deemed appropriate by the Commission. That upon the probation being successfully completed, the suspension of the Respondent's license would be lifted subject to any further terms and conditions the Commission may deem appropriate. DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida. WILLIAM R. CAVE 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 30th day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4165 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner, Department's Proposed Findings of Fact: 1. Proposed findings of fact 1 through 8 are adopted in substance as modified in Findings of Fact 1 through 11 in the Recommended Order. Respondent Gardner's Proposed Findings of Fact: 1. The Respondent's proposed findings of fact are intermingled with argument and other matters not considered findings of fact, and are not in numbered paragraphs nor do the lend themselves to numbering. However, I have responded to what I consider proposed findings of fact and have adopted them in substance as modified in Findings of Fact 1 through 11 in the Recommended Order. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Bart Claude Gardner 820 Manatee Avenue Ellenton, Florida 34222 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the charges against respondent, R. Hughes, Inc. d/b/a The Odyssey, contained in the Notice To Show Cause in this case. RECOMMENDED this 6th day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1984.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes (2007); Chapters 120, 455, and 475, Florida Statutes (2007); and the rules promulgated pursuant thereto. Respondent is now, and was at all times material hereto, a licensed real estate associate in the State of Florida, having been issued License No. SL-3144440. On or about May 5, 2005, Respondent filed an application with Petitioner for licensure as a real estate sales associate. Pertinent to this case, Item 1 on the Background Information section of the application required that Respondent answer "Yes" or "No" (by checking the appropriate box) to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." "YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. Respondent answered the question by checking the box marked "No." The application concluded with Respondent's Attest Statement before a Notary Public of the State of Florida as follows: I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. * * * I understand the types of misconduct for which disciplinary proceedings may be initiated. On October 7, 2005, Respondent passed the sales associate examination. From October 7, 2005, to November 14, 2005, her license was in inactive status. From November 14, 2005, through the date of hearing, Respondent has been licensed as an active sales associate with Perfect Gulf Properties, Inc., doing business as Century 21 Sunshine Realty. Following approval of Respondent's application and her licensure as a real estate associate, Petitioner received the results of a state and federal records search which revealed a criminal history not disclosed on Respondent's application. That records search revealed a criminal conviction in the Circuit Court, Eighteenth Judicial Circuit, Brevard County, Florida. On January 24, 1991, Respondent was convicted of robbery with a weapon, not deadly, a first-degree felony, and sentenced to three and a half years' incarceration. Respondent maintains that based on a telephone conversation with someone at the Brevard County Courthouse and the fact that she is/was a notary, registered voter, served on a jury, and is a licensed minister, that the record of her criminal activity had been expunged. This is not credible. Respondent did not initiate any action to cause her criminal record to have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, nor did she make any reasonably, prudent inquiry regarding the status of her criminal record prior to answering questions regarding same and affirming to accuracy of her application for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered adopting the foregoing Findings of Fact and Conclusions of Law, and which, for the violations found, Respondent's license be revoked and that she be charged fees in accordance with Subsection 455.227(3), Florida Statutes. DONE AND ENTERED this 15th day of July, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2008.
The Issue An administrative complaint dated October 23, 1997, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, when he falsely indicated on his licensure application that he had never been convicted of a crime nor pled guilty or nolo contendere. The issue for disposition in this proceeding is whether the violation occurred, and if so, what discipline is appropriate.
Findings Of Fact Respondent, Ibrahim Z. Gonzalez, is, and has been at all relevant times, a licensed Florida real estate broker-salesperson, having been issued license no. 3003291 in accordance with Chapter 475, Florida Statutes. On February 17, 1984, in San Diego, California, Respondent pled guilty to one count of sexual battery- a felony, and was jailed, fined, and placed on probation. Respondent's court-appointed attorney told him the conviction would only affect him if he sought employment with the federal government or law enforcement. On August 3, 1989, after a plea of guilty, Respondent was convicted in the U. S. District Court for the Southern District of New York of making false statements on a government application. Specifically, in 1985, Respondent withheld disclosure of the 1984 California conviction described above when he applied for employment with the U. S. Postal Service. For the federal conviction, he was placed on probation and fined $1,000. By 1989, Respondent had obtained a real estate license in New York. His court-appointed lawyer advised him to "stick to real estate" because, as the California lawyer told him, he would never be able to work for the federal government or in law enforcement. In May 1995, Respondent applied for licensure as a real estate broker in Florida. On the application form he answered "no" to this question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "YES", attach the details including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. The affidavit that Respondent executed at the end of the application form states: The above named, and undersigned, applicant for licensure as real estate broker under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that s(he) is the person so applying, that s(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that s(he) knows of no reason why this application should be denied; and s(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. Respondent contends that he did not disclose his prior convictions when he applied to practice real estate in New York and Pennsylvania and he remains licensed in those states. He claims that because real estate has nothing to do with law enforcement or federal employment, he did not have to reveal the convictions on his application. Respondent has practiced his real estate profession in Florida for 3 years without any disciplinary incidents.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter its final order finding Ibrahim Z. Gonzalez guilty of violating Section 475.25(1)(m), Florida Statutes, and revoking his Florida real estate brokers' license. DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Legal Section, Suite N 308 Zora Neale Hurston Building North Tower 400 West Robinson Street Orlando, Florida 32801-1771 Francisco Colon, Jr. 341 North Maitland Avenue Suite 360 Maitland, Florida 32751 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda Goodgame General Counsel Department of Business and Professional Regulation Northwood Center 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue An Administrative Complaint dated January 22, 1998, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, by failing to disclose on his licensure application that on August 9, 1993, he had pled nolo contendere to passing a worthless check. The issue for resolution is whether that violation occurred and, if so, what discipline is appropriate.
Findings Of Fact Since approximately July 1, 1996, and at all times relevant, Respondent Donald J. Berry has been licensed as a real estate salesperson pursuant to Chapter 475, Florida Statute. He was born in England on April 4, 1966. The application for licensure which Mr. Berry submitted to the Department of Business and Professional Regulation (DBPR), Division of Real Estate, and which he signed and acknowledged on April 18, 1996, includes these pertinent parts: 9. Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including a sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. . . . AFFIDAVIT OF APPLICANT The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s) (he) is the person so applying, that (s) (he) has carefully read the application, answers, and the attached statements, if any, and that all succeeding answers and statements are true and correct, and are as complete as his/her knowledge, information and record of permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives by him/her in response to inquiries concerning his/her qualifications. (Petitioner's Exhibit No. 1.) Before he completed and signed the application, Mr. Berry called the Division of Real Estate and told them that the documentation he had was an arrest report. He understood from the staff-person's response that he could write information on the application and enclose what he had. He then checked "yes" in response to question no. 9, and wrote on the application form, "Driving with a suspended driving license." He also, so he thought, enclosed a copy of the arrest warrant from when he was stopped for traffic charges and was found to have an outstanding capias for "obtaining property for worthless check." Sometime later after he submitted his application, someone from the Division of Real Estate called to tell him that he needed the disposition report on the charges. He contacted the clerk of court's office and a staff-person from there called the Division of Real Estate. The Division then obtained records from the Orange County Court that Mr. Berry had pled "no contest" to the worthless check charge and was fined $115, with adjudication withheld. Later, Mr. Berry was told by an investigator from the Division of Real Estate that there was no record that an arrest report had been attached to his application. The only testimony in this proceeding was from Mr. Berry. He explained that he had tried, in good faith, to respond accurately to question no. 9. He did not have any documentation on the arrest for driving with a suspended license and had only a copy of his arrest report for the 1993 worthless check charge. He thought he included the information being sought and was not trying to hide anything. As he explained, he knew the agency had his social security number and could check up on him. He did not write anything about the worthless check on his application form because he had the separate paper (the arrest report) describing that charge.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the agency enter its final order dismissing the Administrative Complaint. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate Suite N 308 Hurston Building, North Tower 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801-1772 Donald J. Berry, pro se 2901 Dickens Circle Kissimmee, Florida 34747 Lynda L. Goodgame, General counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact Petitioner's application for licensure as a real estate salesman reveals that he was born in Miami, Florida, in 1960. In 1979 Petitioner asked a friend to take him to a department store so he could do some shopping. While Petitioner was inside the store shopping, his friend was stealing hub caps in the parking lot until he was caught by the police who arrested both Petitioner and his friend. Petitioner was charged with grand larceny from a building and possession of a barbiturate (methaqualone), but the charges were dropped. In 1981 Petitioner borrowed a car from an acquaintance in order to go out on a date. While Petitioner was driving the car, he was stopped for a traffic violation at which time it was discovered that the borrowed car was a rental car which had been stolen. Although Petitioner was arrested for vehicular theft of an automobile, that charge was dismissed. In 1984 while Petitioner was attempting to locate the home of a friend, he stopped at a house which turned out to. be on the wrong street. As he was returning from the front door of the house to his car, he was stopped by the police. Since the home was located in a neighborhood subject to burglaries and Petitioner did not live in that neighborhood, he was arrested and charged with trespassing and with loitering and prowling. Pursuant to the advice of his public defender, Petitioner plead to one of those charges adjudication was withheld on that charge and the other charge was dropped. Petitioner was not placed on probation and no fine was imposed on him although he believes that he paid court costs. Petitioner disclosed all of the above-described arrests to Respondent in his application for licensure although the application seeks information regarding convictions and not arrests where no conviction or adjudication ever occurs. For the past five years Petitioner has been employed by United Cerebral Palsy. His duties include vehicle maintenance, building maintenance, and lawn maintenance for two group homes. He receives weekly advances from his employer for purchasing supplies. Petitioner has been married for approximately one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered approving Petitioner's application for licensure as a real estate salesman, subject to the successful completion of any required examination. DONE and RECOMMENDED this 19th day of November, 1985, at Tallahassee, Florida. LINDA M. RIGOT, 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 19th day of November, 1985. COPIES FURNISHED: Bernard Stefon Gonzalez Post Office Box 610104 North Miami, FL 33261 Ralph Armstead, Esquire Department of Legal Affairs 400 West Robinson Street Orlando, FL 32801 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Orlando, FL 32801| Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301
