The Issue This is a case in which, by Administrative Complaint served on Respondent on September 17, 1985, the Criminal Justice. Standards And Training Commission seeks to revoke Certificate Number 502-3415, which was issued to Respondent on November 5, 1982. As grounds for the proposed revocation it is asserted that Respondent lacks good moral character and is therefore in violation of Section 943.1395(5), Florida Statutes.
Findings Of Fact Based on the admissions and stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact. The Respondent was certified by the Criminal Justice Standards And Training Commission on November 5, 1982, and was issued Certificate Number 502-3415. During December of 1984 and January of 1985, the Respondent was employed as a correctional officer at the Polk Correctional Institution. On January 29, 1985, Polk County Sheriff's Deputy Lawrence Annen and Department of Corrections Inspector Clayton Lambert served a search warrant and conducted a search inside the Polk County, Florida, residence of the Respondent and his wife. Upon the arrival of Deputy Annen and Inspector Lambert at the Respondent's home on January 29, 1985, the Respondent was present and was advised of the warrant and of his constitutional rights under the Miranda decision. The Respondent indicated that he understood his rights. Subsequent to the foregoing, the Respondent led then Deputy and the Inspector to a quantity of cannabis, which was present inside Respondent's residence. The Respondent pointed out the cannabis and stated "here it is" and "this is all I have." During the execution of the search warrant, the Respondent also stated that he and his wife had purchased the marijuana for $25 an ounce or baggie. The cannabis was seized by Deputy Annen as evidence and was later submitted to the Florida Department of Law Enforcement crime laboratory for analysis. It was confirmed by scientific analysis to be 9.1 grams of cannabis. On January 31, 1985, the Respondent was again advised of his constitutional rights under the Miranda decision by Inspector Lambert. The Respondent thereafter admitted smoking cannabis because it relaxed him and admitted giving his wife money with which to buy cannabis. The Respondent readily admitted, during the course of the formal hearing in this case, that he had unlawfully possessed and used cannabis and had furnished the funds for his wife to purchase cannabis. The Respondent was adjudged guilty, on March 20, 1985, as to the criminal charge of Possession of Less Than Twenty Grams of Cannabis before the County Court, in and for Polk County, Florida.
Recommendation For all of the foregoing reasons, it is recommended that the Criminal Justice Standards And Training Commission issue a Final Order revoking Respondent's Certificate Number 502-3415. DONE AND ORDERED this 16th day of May, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 16th day of May, 1986. APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by the parties. Findings proposed by Petitioner Paragraph 1 of the Petitioner's proposed findings consists of a summary of the procedural history of this case. It is rejected as a finding of fact, but is incorporated in substance into the introductory information in this Recommended Order. The following paragraphs of Petitioner's proposed findings are all accepted with a few minor editorial changes: 2, 3,-4, 5, 6, 7, 8, 9, 11, and 12. The substance of paragraph 10 of Petitioner's proposed findings is accepted with the deletion of unnecessary subordinate details. Findings proposed by Respondent The Respondent did not file any proposed findings of fact. COPIES FURNISHED: Joseph S. White, Esquire Office of General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Mr. Harry C. Frier Post Office Box 2062 Lakeland, Florida 33802 Daryl G. McLaughlin, Director Criminal Justice Standards And Training Commission Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey, Executive Director Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint, as amended, filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been the holder of a Class "B" security agency license, number B 0001057. On July 27, 1995, Respondent was tried, was found guilty, and was adjudicated guilty of grand theft, a third-degree felony, in violation of Section 812.014(1)(a), Florida Statutes. On July 27, 1995, Respondent was tried, was found guilty, and was adjudicated guilty of perjury not in an official proceeding, a first-degree misdemeanor, in violation of Section 837.012, Florida Statutes. In the foregoing proceeding, the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, placed Respondent on probation for terms of five years and one year to run concurrently, and ordered Respondent to pay restitution in the amount of $15,783.67 to the victim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint, as amended, and revoking Respondent's Class "B" security agency license number B 0001057. DONE and ENTERED this 21st day of February, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 95-5217 Petitioner's proposed findings of fact numbered 1-4 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Michele Guy, Esquire Department of State Division of Licensing The Capitol MS-4 Tallahassee, Florida 32399-0250 Mr. Daniel D. Goldberg 2812 Southwest 65th Avenue Miramar, Florida 33023 Honorable Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue Whether Petitioner should he permitted to take the CPA examination for licensure with the State Board of Accountancy. The Petitioner appeared at the hearing without legal counsel and therefore was advised as to his rights in administrative proceedings under Chapter 120, Florida Statutes. He indicated that he understood these rights and desired to represent himself during the proceedings.
Findings Of Fact On February 2, 1978, Respondent received from the Petitioner an application for permission to take the certified public accountant examination for state licensure. In answer to question 15 of the application form as to whether he had been convicted of a felony or misdemeanor, Petitioner answered "Yes" and submitted an accompanying letter which stated that he had been convicted on a plea of guilty to a charge of accepting a gratuity and that he had received a suspended sentence with two years probation. He further noted in the letter that although he was a member of the New York Bar during that period, no action had been taken against him for disciplinary reasons by chat organization and that he had' lived a clean and exemplary life since that time. Three individuals certified on Petitioner's application as to his good moral character and integrity, and he listed three others who would submit character references on request. (Exhibits 1-2) On May 1, 1973, in the United States District Court for the Southern District of New York, Case No. 70Cr.653, Petitioner, upon his plea of guilty, was convicted of a violation of Title 18, United States Code, Section 201 and 2 in that being a public official, to wit, a Special Agent, Internal Revenue Service, unlawfully, wilfully, and knowingly otherwise than as provided by law for the proper discharge of official duty, directly and indirectly, did ask, demand, exact, solicit, seek, accept, receive and agree to receive things of value, to wit $2,000, because of official acts to be performed by him in connection with an investigation." Petitioner was sentenced to a two-year period of confinement which was suspended and was placed on probation for like period. (Exhibit 4) Incident to its processing of Petitioner's application, Respondent received a letter from his probation officer stating that court records indicated Petitioner had been "seriously involved over a long period of time in numerous bribery and attempted bribery situations while working as a special agent for the IRS." However, the officer stated that petitioner had presented no problems while on supervision, made a satisfactory adjustment, and was terminated from probation on April 30, 1975. (Exhibit 4) Respondent's executive director testified that no inquiry had been made into the character references supplied by Petitioner on his application due to the fact than the amount of time to process applications for the May examination did not provide sufficient time to do so. However, he also testified that such references are not routinely investigated in processing applications. By letter of March 4, 1978, Petitioner was advised by Respondent that his application to take the May, 1978, CPA examination had been denied for failure to comply with Section 473.08(1)(c), F.S., in that "you were convicted on charges of `accepting a gratuity as an IRS agent, Title 18, U.S.C., Section 201(g)'." (Testimony of Thompson) Petitioner testified that he served as an investigative agent in the Internal Revenue Service for a period of seventeen years prior to his retirement for medical disability. He conceded that he was asked to resign from that employment due to the fact that he was being investigated for some 20 to 30 alleged instances of activities similar to that for which he was convicted. He was employed by accounting firms in New York for a number of years prior and subsequent to his employment with the Internal Revenue Service. He has been employed with an accounting firm in Florida since February, 1978. In 1974, he served as Chancellor, Knights of Pythias, in New York. He believes that he has been rehabilitated and should be permitted to take the State CPA examination. (Testimony of Kronish, Exhibit 1) Respondent does not have a consistent position on dealing with applications involving prior convictions, but considers each case on its individual merits. In cases where an application has been denied for such a reason, Respondent normally permits the applicant to appear before it personally if he files a second application. (Testimony of Thompson)
Recommendation That Petitioner Harry T. Kronish be permitted to take the next examination for the purpose of determining whether he shall be permitted to practice in this state as a certified public accountant. DONE and ENTERED this 1st day of September, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1978. COPIES FURNISHED: James S. Quincey, Esquire Post Office Box 1090 Gainesville, Florida 32602 Harry T. Kronish 4533 Jefferson Street Hollywood, Florida 33021 =================================================================
The Issue The issue in this case is whether Petitioner's application for a license to engage in the business of contracting should be granted or denied.
Findings Of Fact In June 2004, Petitioner submitted to Respondent an application for licensure as a certified general contractor. Petitioner had already passed the requisite contractor's examination. Question one at page six on the form used by Petitioner states: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, 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, intersection, 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. Petitioner answered this question in the affirmative and disclosed a federal bank robbery conviction from 1994. Petitioner served 58 months in prison, underwent three years of probation, and paid full restitution for that conviction. Question eight of the form used by Petitioner at Page 13 states: Have you, or a partnership in which you were a partner, or an authorized representative, or a corporation in which you were an owner or an authorized representative ever: * * * 8. Been convicted or found guilty of or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction within the past 10 years? Note: if you, the applicant/licensee, have had a felony conviction, proof that your civil rights have been restored will be required prior to Licensure. Because Petitioner has had a clean record since his bank robbery conviction in 1994, Petitioner answered this question in the negative. The "No" answer was provided despite the fact he had been found guilty of two misdemeanors: Unauthorized Use or Possession of Driver's License and Unlawful Possession of Cannabis upon the entry of a nolo contendere plea in 1989. On August 5, 2004, Respondent requested additional information from Petitioner concerning his work experience and equipment. On February 8, 2005, Respondent requested additional information regarding proof of restoration of Petitioner's civil rights. Neither of the requests asked Petitioner for further information about his criminal past. The application was reviewed by Respondent and was denied. The Board's (amended) stated grounds for its denial of the application were: (1) Petitioner was guilty of committing a crime -- bank robbery -- directly related to contracting or the ability to practice contracting pursuant to Subsection 489.129(1)(b), Florida Statutes (2004); (2) Petitioner was guilty of committing a crime -- bank robbery -- related to contracting or the ability to practice contracting pursuant to Subsections 455.227(1)(c) and (2), Florida Statutes; (3) Petitioner was guilty of making fraudulent misrepresentations on his application pursuant to Subsections 455.227(1)(h) and (2), Florida Statutes; and (4) Petitioner lacks "good moral character" under Subsections 489.111(1)(b) and (3), Florida Statutes. Petitioner was confused by the questions on the application concerning past criminal history. He freely and voluntarily provided information about the felony bank robbery conviction. He did not believe the misdemeanor charges were within the time frame (ten years) discussed in the application. Applicants routinely make mistakes and have omissions on the Board's application form, causing the Board to routinely send formal Requests for Additional Information to applicants. The Board processes hundreds of applications every week. Many applicants receive formal written Requests for Additional Information from the Board, including requests directed to the criminal history section of the Board's application package. Professional services have developed for the purpose of assisting applicants with these applications. One such service helps with 15 to 20 applications every week. Petitioner is not and has never been a contractor, or a certificateholder or registrant, under Chapters 455 or 489, Florida Statutes (2004). Obviously then, Petitioner has never been the subject of any DBPR disciplinary action proceedings or orders commenced under Section 455.225 or Subsection 489.129(1), Florida Statutes (2004). A licensed contractor may typically collect funds from his client and disburse them to vendors, subcontractors, and the like. Contractors could also have access and/or keys to houses of persons for whom they are working. These responsibilities require the contractor to act prudently and reasonably. It is noted that a contractor may utilize a "financially responsible officer" to manage and be responsible for all monies coming from the contractor's clients. Respondent maintains that the bank robbery conviction is evidence of Petitioner's bad moral character. No other evidence of Petitioner's character was presented by Respondent. Petitioner's family immigrated to the United States via Spain from Cuba in 1980. He had a high school diploma and attended college, but did not finish his degree. He was abusing alcohol and drugs and associating with the wrong sort of people at the time he committed the bank robbery in 1994. While in prison, Petitioner attended drug rehabilitation classes for a period of one year. The classes were held five days a week, eight hours per day. During this time, he was housed in a special dorm for inmates attending the classes. His drug rehabilitation courses continued for six months after he was released from prison. He has paid full restitution for the money he stole. Petitioner's last criminal conviction was the 1994 bank robbery. Since abandoning drugs after this conviction, Petitioner has not been arrested for any crime, has become a husband and father, and has dispatched his professional duties to the praise of his colleagues and employer. Petitioner has been regularly employed since he stopped using drugs. He is currently employed as a sales manager for a large telecommunications company. He has an excellent credit history. Petitioner owns his own home subject to a mortgage. Petitioner also owns his own painting business, which is licensed by Broward County, Florida. Rafael Antequera has known Petitioner for approximately five years. Petitioner currently is employed by Antequera's company, Antequera Enterprises, Inc., with whom Petitioner would become a general contractor upon approval of his certified general contractor's licensure application. Mr. Antequera trusts Petitioner with his company's supplies, equipment, and money. Mr. Antequera considers Petitioner to be a good, honest, hard-working, and reliable employee. Antequera believes that Petitioner has the ability to distinguish right from wrong and has the character to observe the difference. Mr. Carlos Alonso also has known Petitioner for more than four years. Mr. Alonso worked with Petitioner at Mr. Alonso's family construction company, Domas & Alonso Development, Inc. Petitioner worked for Mr. Alonso as a project manager from 2004 to 2005. His duties included ordering supplies, picking up supplies, and interacting with local building inspectors. Petitioner was in a position of great trust and was often given a blank bank check to obtain project supplies. Petitioner never misused or abused that position of trust and authority. Rev. Adam S. Zele is a pastor at Epworth United Methodist Church, where Petitioner attends church. Pastor Zele described Petitioner as a hard-working, devoted family man with religious conviction. Zele also has observed Petitioner in a business capacity. With full knowledge of Petitioner's prior criminal history, Pastor Zele awarded Antequera Enterprises a $20,000 bid to paint his church. Petitioner acted as the salesperson for the project, and Pastor Zele was confident enough in Petitioner to hand Petitioner a check in the amount of $10,000 for the first half of the work. Petitioner is actively involved with the activities of Epworth United Methodist Church. Petitioner is highly regarded by church officials and enjoys a reputation of being very reliable, honest, and a person of integrity and good morals. The Board recently granted a license with six years' probation to an applicant who had been convicted of a crime related to contracting. The nature of that crime was not clear from the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation granting a contractor's license to Petitioner. DONE AND ENTERED this 26th day of July, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 26th day of July, 2006. COPIES FURNISHED: Timothy P. Atkinson, Esquire Gavin Burgess, Esquire Oertel, Fernandez, Cole & Bryant, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 Diane L. Guillemette, Esquire Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent's certification as a correctional officer may be revoked or otherwise disciplined pursuant to Section 943.1395(5), Florida Statutes, for failure to maintain the qualifications set out in Section 943.13(7), Florida Statutes, requiring such officer to have good moral character. At formal hearing, Petitioner presented the oral testimony of Benny Morse Platt, D. H. Coburn, Gerald Abdul-Wasi, and Diane P. Enfinger, and had one exhibit admitted in evidence. Respondent presented the oral testimony of his wife, Frances W. Ping, and testified in his own behalf. One Hearing Officer Exhibit (the Prehearing Stipulation) was also admitted in evidence. Thereafter, Petitioner filed the transcript and submitted proposed findings of fact and conclusions of law within the extension of time granted by order. Petitioner's proposed findings of fact are ruled upon, pursuant to Section 120.59(2), Florida Statutes, in the appendix to this Recommended Order. Respondent submitted no post-hearing proposals.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on November 4, 1974, and was issued certificate number CORR/C-0148. Respondent was first employed by the Florida Department of Corrections on November 4, 1974, as a correctional officer at the Hendry Correctional Institution. At all times material to the issues in the case, the Respondent was so employed and held the rank of lieutenant. During early August of 1984, Benny Platt was incarcerated at the Hendry Correctional Institution as an inmate. Platt was acquainted with Respondent Ping, who approached Platt during this period of time requesting a $10,000 loan to defray Respondent's wife's doctors' bills. Another inmate at the prison, Mark Krebs, was a friend of Platt. On August 10, 1984, Krebs was being held in solitary confinement as a punishment for Krebs' violation of prison rules by drinking and fighting. Platt was interested in helping Krebs to be released from solitary confinement so that Krebs would be eligible for work release. Platt approached Lieutenant Coburn, another correctional officer at Hendry, to obtain some relief for Krebs after Krebs had been in solitary confinement for 2 days. It was common practice for inmates to approach Respondent Ping or any other lieutenant for these types of requests, however, at the particular time Platt approached Lt. Coburn on August 10, 1984, Ping was either on suspension or on some variety of leave due to Ping's two previous heart attacks. Lt. Coburn had worked at Hendry Correctional Institution since 1979 and knew Respondent Ping by virtue of their common employment. Respondent had been Lt. Coburn's superior for some period of time in the past. On August 10, 1984, when Platt requested that Lt. Coburn help Krebs, Lt. Coburn said he did not know if he could help but he would look into the situation. Lt. Coburn then asked Platt what Platt could do for him in return. Platt asked Lt. Coburn if he wanted one of the lieutenants, and Lt. Coburn replied, "For what." Platt told him it was for trying to borrow money from inmates. (TR 25-26) On August 11, 1984, as part of a planned investigative technique to verify Platt's story, Lt. Coburn had Platt place a collect telephone call to the Respondent at the Respondent's home. The Respondent accepted Platt's collect telephone call, and with Platt's permission, Lt. Coburn taped their conversation. Platt told the Respondent that he could not get the Respondent $10,000, but could get $5,000 to $6,000 at low interest with no problems. The Respondent replied that this amount would do. Platt then asked about Krebs' release from solitary confinement. The Respondent stated that he did not know what he could do, but as soon as he got back to Hendry, he would see what he could do. This is basically the reply made by Lt. Coburn when Platt had approached him earlier. On August 14, 1984, Respondent returned to work at Hendry. That day, Platt, under instructions from Lt. Coburn, approached Respondent at the prison and engaged him in conversation, which Lt. Coburn again taped with Platt's permission. Platt told Respondent Ping that he had arranged to get a $5,000 loan for Ping and told Ping to meet with Platt's niece at a place in La Belle, Florida, to pick up the money. Platt used the fictitious name "Sylvia Cox" as his niece's name. On August 17, 1984, Florida Department of Corrections Inspector Diane Enfinger, posing as Platt's niece, "Sylvia Cox," telephoned Respondent at his home. By arrangement, the two met on August 20, 1984, at the Crossroads Restaurant a/k/a White's Restaurant in La Belle, Florida. Prior to Respondent's arrival at the restaurant on August 20, 1984, Lt. Coburn provided Inspector Enfinger with $1,000 in cash loaned for the purpose by the Sanibel Police Department, and Lt. Coburn and Inspector Gerald Abdul-Wasi, a Tallahassee Department of Corrections internal inspector, placed recording and receiving equipment in the restaurant's supply room in order to be able to overhear and record the transmissions of a microphone concealed on Inspector Enfinger's person. Lt. Coburn and Inspector Abdul-Wasi concealed themselves in the kitchen where they had a clear view of the table designated for the money transaction. At the appointed time and date, Inspector Enfinger, masquerading as Sylvia Cox," arrived. Eventually, she approached Respondent Ping at his table and he asked her to join him and his wife and a female dinner guest who were with him. Mrs. Ping suggested that Respondent and "Sylvia Cox" go outside to get some papers. Mr. and Mrs. Ping described Mrs. Ping's intent in making this suggestion as a ruse to see if a promissory note or other record of the transaction would be required so that the Pings would know if the transaction constituted a legitimate loan or a "set up." Respondent and Mrs. Ping had plausible, if not probable, reasons for their state of mind and belief that some plot against them by Department of Corrections personnel was afoot, and Respondent had good probable cause not to trust inmate Benny Platt's several representations to him. Respondent Ping knew Platt's relatives were not from La Belle. Platt had dressed unusually on August 14, 1984 so as to cover the concealed microphone given him by Lt. Coburn and Platt's solicitation of Ping both by telephone and in person had followed warnings received by Mr. and Mrs. Ping concerning attempts to oust Ping from employment due to his heart condition and resultant excessive absences. Although the content of these warnings is pure hearsay, the evidence of the warnings has not been accepted for the truth of the content asserted, i.e. that there was any such plot afoot. It is admissible and has been considered only to show the Respondent's and Respondent's wife's state of mind. Respondent Ping testified that he never intended to accept the loan offered by Platt but that if there were loan papers to sign, he planned to explain to "Sylvia Cox" what he had suspected about a plot before he declined the loan, since in his view, a loan agreement would make the transaction legitimate. Otherwise, he was going to cry "foul" and accuse his superiors of trying to trap him. "Sylvia Cox" and the Respondent went outside to the parking area, but since the authorities' plan was for Cox/Enfinger to remain at a specific table inside the restaurant for her safety and for surveillance purposes, she requested that they return inside. Inspector Enfinger and the Respondent then sat at the designated table. Cox/Enfinger told Respondent that she was unable to get all the money, but had $1,000 with her and would get $4,000 to him later in the week. She produced no papers, but counted out ten one-hundred dollar bills onto the center of the table. Respondent picked up the stack of bills, holding it in both hands, then dropped the money, said he had "changed his mind" and did not need any money, and attempted to leave the table. Lt. Coburn and Inspector Abdul- Wasi came out of the kitchen and arrested Respondent for the offense of unlawful compensation by a public official, Section 838.016, Florida Statutes. There are several inferences that can be drawn from Respondent's dropping of the money, but it is immaterial that Respondent maintains he dropped the bills as part of his intent to unmask a "set up" and could not see the kitchen, or that Lt. Coburn and others believed Respondent fled upon seeing Lt. Coburn and Abdul-Wasi out of the corner of his eye. What is material is that a loan, not a gift, was always contemplated by Platt, Cox/Enfinger, and Respondent. According to Platt, Respondent's original request for a $10,000 loan occurred nearly two weeks before Krebs was confined. This renders it impossible for Respondent's original loan request to have been on a quid pro quo arrangement for promised aid to Krebs. Indeed, Platt testified that, "I needed some favors done, so I told [Coburn] if I could talk to Lt. Ping I could get them done." (TR 11). Platt was clearly attempting to ingratiate himself with Lt. Coburn by his attempts to solicit Ping in order to persuade Lt. Coburn to secure Krebs' release from solitary confinement. Platt, at Lt. Coburn's urging, initiated the idea of releasing Krebs when Platt first phoned Respondent, but Respondent, no more than Lt. Coburn, ever agreed to a quid pro quo arrangement. No witness ever directly stated that the loan was conditioned on such an arrangement between Platt and Respondent. Platt vaguely termed it a "money situation," but Lt. Coburn confirmed that the money transaction between Platt and Respondent was to be a loan (TR 29,32). Respondent Ping never indicated to Cox/Enfinger what the money was for (TR 75). Further, it strains reason that since accommodations were made on a regular basis between corrections officers and inmates to get other inmates out of solitary confinement, that anyone involved in this "money situation" could have believed the real $1,000 (let alone the promised sum of $5,000) was being paid by Platt to Respondent in exchange for getting Krebs out of solitary confinement. Additionally, absent any proof that Krebs would have remained in solitary confinement for what seems an extraordinary length of time (August 9 - August 20) or that Respondent released Krebs, or that Lt. Coburn did not release Krebs, all of the "money situation" seems totally separate and apart from any services, illicit or otherwise, which Respondent may have been asked by Platt to perform. Further, Respondent's behavior, while rather extreme and based on suspicion, is adequately explained by his state of mind. His belief that he was being "set up" is not incredible under the foregoing facts as found. On August 21, 1984, Respondent was terminated from his employment at the Hendry Correctional Institution. On January 21, 1986, the Respondent entered a plea of nolo contendere in absentia to the charge of acceptance of unauthorized compensation pursuant to Section 944.37, Florida Statutes, with knowledge that same is a misdemeanor of the first degree and upon the assurance of the Court that adjudication would be withheld. (P-1). Such a plea is not admissible in a civil proceeding or in an administrative penal proceeding for any recognized purpose. See Sections 90.410, 90.610, Florida Statutes; Section 610.4, Ehrhardt, Evidence (1984); Barber v. State, 413 So.2d 482 (Fla. 2d DCA 1982), United States v. Georgalis, 631 F.2d 1199,1203 (5th Cir. Unit B, 1980) reh. den. 636 F.2d 315 (1981) and Holland v. Florida Real Estate Commission, 352 So.2d 914 (Fla. 1st DCA 1977). However, Respondent admitted the plea and waived any objections to admission of the plea. (TR-77).
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing this cause as against Respondent. DONE and RECOMMENDED this 18th day of December, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2143 Respondent filed no post-hearing proposals. The following constitutes specific rulings upon Petitioner's proposed findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes: Covered in FOF 1. Covered in FOF 2. 3, 4, 7. Covered in FOF 3. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 4. Covered in FOF 4. Rejected as mere recitation of testimony, as subordinate and unnecessary, as largely not credible and as not supported by the greater weight of the credible evidence in the facts as found. Except as subordinate and unnecessary, covered in FOF 6. Rejected as unnecessary. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 5 and 7. Except as subordinate and unnecessary, covered in FOF 8. Rejected as unnecessary. 14, 15, 16. Rejected as not supported by the greater weight of the credible evidence as a whole as found in FOF 9. 17-18. Rejected as unnecessary. 19, 20, 21. Covered in FOF 10-11, and 14. 22. Rejected as unnecessary. 23, 24. Covered in FOF 12. 25. Rejected as unnecessary. 26, 27. Except as subordinate and unnecessary, covered in FOF 13. 28, 29, 30. Except as subordinate and unnecessary, covered in FOF 14. Covered in FOF 16. Except as subordinate and unnecessary, covered in FOF 17. 33, 34, 35, 38 and 39. To the extent supported by the credible evidence as a whole, covered in FOF 17. 36, 37. Rejected as largely subordinate and unnecessary and otherwise as immaterial and as not supported by the greater weight of the credible evidence as found in FOF 17-18. Rejected as unnecessary. Covered in FOF 20. Except as subordinate and unnecessary, covered in FOF. COPIES FURNISHED: Joseph S. White, Esquire Post Office Box 1489 Tallahassee, Florida 32302 Gerald T. Ping 6690 Southwest 88th Trail Okeechobee, Florida 34574 Robert R. Dempsey, Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Director Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
The Issue The issue is whether Respondent is guilty of failing to maintain good moral character and, if so, what penalty should be imposed.
Findings Of Fact Petitioner issued Respondent law enforcement certificate number 102033 on December 3, 1989. Respondent has remained certified continuously since that date. Respondent's law enforcement experience includes a related assignment while serving in the United State Marine Corps. He then worked as a deputy sheriff and police officer in Los Angeles, California. In 1989, Respondent was employed by the Tampa Police Department for three or four months, and, in 1990, he was employed by the Cocoa Police Department for two years. For the last seven years, Respondent has been employed outside of law enforcement; currently, he is a sales manager at a Chevrolet dealership in Cocoa. While working for the Cocoa Police Department, Respondent continued to reside in the Tampa area, where his wife and three children also resided. On November 20, 1991, pending the later entry of a final dissolution decree, a circuit judge in Tampa entered an Injunction for Protection from Domestic Violence. The injunction ordered Respondent and his then-wife "from entering the dwelling, or from entering upon the curtilage of the dwelling of the other . . .." The injunction warned that an "intentional violation" of its provisions "shall constitute contempt of court, punishable by incarceration and/or fine." Respondent was six feet tall and 220 pounds, and his then-wife was five feet, three inches tall and 115 pounds. On December 11, 1991, Respondent intentionally entered the driveway of the townhouse at which his then-wife was residing. A sheriff's deputy responding to a telephone call from Respondent's then-wife saw her in the driver's seat of her vehicle, parked in the driveway, and Respondent standing next to her holding the top of the door, so as to prevent her from closing the door. Respondent and his then-wife were arguing. The deputy arrested Respondent. A judge revoked bail on various criminal charges arising out of an earlier altercation between Respondent and his then-wife. Respondent remained in jail for 18 months awaiting trial on these charges. At trial, he was acquitted of all but two charges--trespassing and battery for grabbing the hands of his then-wife--but the court withheld adjudication of guilt on these charges.
Recommendation It is RECOMMENDED that the Criminal Justice and Training Commission enter a final order finding Respondent guilty of failing to maintain good moral character and reprimanding his certificate. DONE AND ENTERED this 29th day of July, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1999. COPIES FURNISHED: Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Richard D. Courtemanche, Jr. Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 David Barnard Post Office Box 360971 Melbourne, Florida 32936-0971
The Issue Whether Petitioner's, David A. Reed, application for a real estate sales associate license should be granted so that he may sit for the salesperson's examination.
Findings Of Fact FREC is the state agency responsible for licensing real estate sales associates and brokers in the State of Florida, pursuant to Chapter 475, Florida Statutes (2009).1 Petitioner applied for a real estate sales associate license. FREC stated several factual grounds for the proposed denial of Petitioner's application in the Notice of Intent to Deny. In 1994, Petitioner was arrested and plead guilty to three counts of lewd and lascivious assault on children in the Circuit Court in and for Lee County, Florida. Adjudication was withheld, and Petitioner was placed on supervised probation for ten years and ordered to enroll, and successfully complete, the sex offender treatment program. From 1992 to 1994, Petitioner committed repeated lewd and lascivious assaults upon his daughter and two nieces. His daughter and one niece were between ages six and eight during this time, and his other niece was between the ages of ten and 12. Petitioner successfully completed the sex offender program and was released from the program in 1999 and supervised probation was terminated early that same year. Thereafter, Petitioner was required, under Florida law, to register as a sex offender and report his whereabouts to law enforcement. Upon his release from treatment, Petitioner was informed that he could schedule a counseling session with his therapist or participate in a group therapy session. Petitioner has indicated that this is unnecessary, and he has not sought assistance in this area. Petitioner has not been arrested or charged with any other disqualifying offense since 1994. Petitioner has started, and still maintains, a successful lawn maintenance business. Petitioner is now working, part-time, for his sister, Valarie Tillman, a real estate broker/owner, in her real estate office in Ft. Myers. She sent a letter of recommendation and testified in his behalf and has offered him a position as a sales associate, should his license be approved. Petitioner also offered four other notarized letters of recommendation. However, they cannot be considered as persuasive in these Findings of Fact because they are hearsay, and the authors are not subject to cross-examination under oath. Petitioner did not present any disinterested witnesses (or other evidence) who could favorably describe Petitioner's dealings in business matters or transactions. Petitioner did not present sufficient evidence to show that he was honest, truthful, trustworthy, had good moral character, or had a good reputation in the community for fair dealing. Petitioner did not present sufficient evidence to show that he was competent and qualified to make real estate transactions and conduct negotiations with safety to investors "and to those with whom the applicant may undertake a relationship of trust and confidence." Petitioner presented insufficient evidence of rehabilitation from his criminal past. Petitioner plead guilty to three felony counts of lewd and lascivious assault on children. These egregious acts, coupled with a lack of sufficient evidence of rehabilitation, convinces the undersigned to conclude that Petitioner has not satisfied his burden of showing that he is qualified for licensure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner's application for licensure as a real estate sales associate in the State of Florida. DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 28th day of December, 2010.
Findings Of Fact Background In June 1988, respondent, Florida Department of Law Enforcement, Criminal Justice standards and Training Commission (Commission), acting on a tip from the local media that intervenor, Metropolitan Dade County, Department of Corrections and Rehabilitation (County), had in its employ a number of corrections officers who were not certified, undertook a review of the County's employment records. Following a comparison of the County's records and those of the Commission, the Commission identified 363 individuals, including the petitioner, who were employed by the County as correctional Officers but who had not been certified by the Commission. On August 10-11, 1988, Commission personnel visited the County's personnel office, and audited the personnel file of each of the 363 individuals in question. The audit demonstrated that the files were disorganized, lacking documentation required by Rule 11B-27.002, Florida Administrative Code, to apply for certification, and that the County had failed to apply for certification on behalf of the 363 officers. Over the course of their two-day visit, the Commission's personnel set up an "assembly line" and, together with the County's staff, attempted to complete the documentation on each file. Variously, registration forms and affidavits of compliance were prepared, and birth certificates, fingerprint cards and other missing documentation was assembled. On August 12, 1988, the Commission's personnel returned to Tallahassee with the subject registration forms and affidavits of compliance. Over the course of time, these applications were processed and the vast majority of the individuals were certified; however, the Commission declined, for reasons hereinafter discussed, to certify petitioner. The pending application Petitioner, Linda Dunham (Dunham), has been employed by the County as a correctional officer since February 26, 1988, without benefit of certification. On August 10, 1988, as a consequence of the aforementioned audit, the County, as the employing agency, applied for certification on behalf of Dunham. 3/ Accompanying the application (registration) was an affidavit of compliance, dated February 26, 1988, signed by Fred Crawford, Director of Metropolitan Dade County, Department of Corrections and Rehabilitation, which comported with existing law and which certified that such employing agency had collected, verified, and was maintaining on file evidence that Dunham had met the provisions of Section 943.13(1)-(8), and Section 943.131, Florida Statutes, or any rules adopted pursuant thereto. Among the provision of section 943.13 is the requirement that the applicant be of good moral character. By letter dated November 1, 1988, the Commission notified Dunham and the County that her application for certification as a correctional officer was denied for lack of good moral character because: You have unlawfully and knowingly possessed and introduced into your body cocaine, cannabis and amphetamine. Following receipt of the Commission's letter of denial, Dunham filed a timely request for a formal hearing pursuant to Section 120.57(1), Florida Statutes. In her request for hearing, Dunham denied that she failed to possess the requisite good moral character necessary for certification. Good moral character Pursuant to Rule 11B-27.0011, Florida Administrative Code, the County, as the employing agency, is responsible for conducting a thorough background investigation to determine the moral character of an applicant. Consistent with such mandate, the County routinely uses previous employment data, law enforcement records, credit agency records, inquiries of the applicant's neighbors and associates, and a pre-employment interview, at which a polygraph examination is administered, to assess an applicant's moral character. In assessing an applicant's character, the County is bound by the provisions of Rule 11B-27.0011(2), Florida Administrative Code, which provides: The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant for certification, employment, or appointment at any time proximate to such application for certification, employment, or appointment conclusively establishes that the applicant is not of good moral character as required by Section 943.13(7). The unlawful use of any of the controlled substances enumerated in Rule 11B-27.00225 by an applicant at any time remote from and not proximate to such application may or may not conclusively establish that the applicant is not of good moral character, as required by Section 943.13(7), depending upon the type of controlled substance used, the frequency of use, and the age of the applicant at the time of use. Nothing herein is intended, however, to restrict the construction of Section 943.13(7), only to such controlled substance use. The substances enumerated in rule 11B-27.00225 are amphetamines, barbiturates, cannabis (marijuana), opiates, cocaine, phencyclidine, benzodiazepines, and methaqualone. Pertinent to this case, the County undertook a pre- employment interview of Dunham on November 23, 1987, at which time she admitted that she had used marijuana, cocaine, and amphetamines. Regarding such use, the proof demonstrates that in 1970 Dunham was traveling with a dinner theatre and would occasionally take amphetamines, which she obtained from a friend, to stay awake. In the early 1970s, Dunham also used marijuana approximately twice a month over a three-year period. After terminating such use in the early 1970s, she did not again use marijuana until 1985 when she tried it one time at a birthday party. Dunham's use of cocaine was sporadic and infrequent, totalling no more than 5 times over the course of her life, with the last time being in 1985. Other than as heretofore found, Dunham has not used any controlled substances. Notwithstanding the County's conclusion, based on its investigation and analysis of Dunham's background, that Dunham possessed the requisite good moral character for employment and certification, the Commission proposed to deny certification based on her prior use of controlled substances. The Commission's action is not warranted by the proof. Here, Dunham, born January 22, 1953, was 18-20 years of age when she used amphetamines and marijuana in the early 1970s, and her use of cocaine was limited to approximately five times during the course of her life, with the last time being in 1985. But for having tried marijuana one more time in 1985, Dunham has not otherwise used controlled substances. Considering the totality of the circumstances, Dunham's use of controlled substances was not proximate or frequent within the meaning of rule 11B-27.0011(2), or persuasive evidence of bad moral character. 4/ To date, Dunham has been employed by the County as a correctional officer, a position of trust and confidence, for over one year. Her annual evaluations have been satisfactory, and her periodic drug screenings have all met with negative results. By those who know of her, she is considered an excellent employee, observant of the rules, honest, fair and respectful of the rights of others. Dunham was certified by the Commission on June 17, 1988, for completion of the 675-hour basic correctional officer course, and has received two commendations during the course of her employment with the County. She is current on all her financial obligations, and otherwise enjoys a good reputation in the community. Overall, Dunham has demonstrated that she possessed the requisite good moral character when she was employed by the County as a correctional officer, and has demonstrated in this de novo proceeding that she currently possesses the requisite good moral character for certification.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of petitioner, Linda Dunham, for certification as a correctional officer be approved. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of June 1989. WILLIAM J. KENDRICK 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 26th day of June 1989.
The Issue Whether the Petitioner is entitled to an exemption to work in a position of special trust.
Findings Of Fact Petitioner, Anthony Thomas, is an applicant for employment at a provider facility controlled by the Department of Juvenile Justice (the Department). As such, Petitioner must complete forms designated to reveal pertinent information regarding Petitioner's background. Part of the documentation required of Petitioner is an affidavit of good moral character. This form lists numerous offenses or acts which disqualify an applicant from employment in a position of special trust. On July 10, 1995, Petitioner completed an affidavit of good moral character and affirmed, under penalty of perjury, that he met the moral character requirements for employment but did not disclose that his record contained one or more of the disqualifying acts or offenses. In fact, Petitioner does have a history containing one or more such acts or offenses. In October, 1987, Petitioner was charged with handling and fondling a child under the age of sixteen years, a second degree felony. In January, 1988, Petitioner entered a plea of guilty to the charges and received a suspended sentence with probation and mandatory counseling. Subsequently, Petitioner violated the terms of his probation and was brought before the court for failure to complete counseling and to remit the fees outstanding for same. In 1994, Petitioner completed the counseling requirement, paid all outstanding fees, and was released from probation having successfully complied with the order of the court. A background search completed by the Department for the July 1995, application revealed the foregoing information. The Petitioner received an unfavorable and disqualifying rating in August of 1995 which he did not dispute. In October of 1996, Petitioner again applied for employment for a position of special trust for a provider facility controlled by the Department. On the affidavit of good moral character for this application Petitioner truthfully revealed that his record contained one or more of the disqualifying acts or offenses listed. Notwithstanding the truthful disclosure, Petitioner again received an unfavorable and disqualifying rating for this employment request. Upon receipt of this denial, Petitioner timely requested an exemption and filed a request for an administrative review of the decision denying same. Petitioner has been employed at the Hope Center for approximately six and one-half months. In order to qualify for this employment, Petitioner obtained an exemption from the Department of Children and Families to work in a position of special trust. Hope Center is a residential facility for adults many of whom have the mental age of a child. Petitioner assists the residents with daily living skills. Throughout his employment at Hope Center, Petitioner has exhibited exemplary conduct and has been entrusted with residents for field trips and apartment visits. Petitioner seeks employment at a Department facility because of his interest in working with youthful offenders and to improve his earning level. Petitioner has similar prior experience working at an academy in Maryland. He met Tadar Muhammad at the Maryland facility when they both served as youth counselors. As director of group living for the Florida facility with whom Petitioner now seeks employment, Mr. Muhammad opined that he would have to have more information before deciding whether or not to hire Petitioner to a position of special trust. While many of Petitioner's witnesses knew of his criminal background, none were aware of the specifics of the charges. In 1987, while still a teenager himself, Petitioner was employed as a youth counselor for a facility known in this record as "PAL." During this time, Petitioner, who was in a position of trust, engaged in sexual conduct with a minor female under sixteen years of age who attended activities at PAL. Petitioner denied having sexual relations with a second minor female. When Petitioner was arrested and charged, both females from the PAL facility were named as participants in the sexual acts with Petitioner. Although Petitioner pled guilty to the charges naming both females, he maintains he was sexually active with only one of the minors. The position now sought by Petitioner does not include minor females. Moreover, Petitioner would not be left with any minor unsupervised. Petitioner maintained he entered the plea because of fear of possible incarceration. Petitioner planned to attend college on an athletic scholarship which the criminal court permitted. Petitioner enjoys a good reputation among his coworkers and peers. Those who testified in his behalf maintain that the acts of his past do not reflect adversely on his current character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a Final Order granting Petitioner an exemption to work at Everglades Academy with youthful male offenders. DONE AND ENTERED this 29th day of May, 1998, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1998. COPIES FURNISHED: Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Anthony Thomas, pro se 5565 Northwest 185th Street Miami, Florida 33055
The Issue The issue to be determined is whether Respondent, Larry Beard, violated section 473.323(1)(l), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what penalty should be imposed?
Findings Of Fact Based on the testimony of the witnesses and documentary evidence presented in this proceeding, the following Findings of Fact are found: Petitioner is the state agency charged with regulating the practice of certified public accounting in the State of Florida, pursuant to section 20.165 and chapters 455 and 473, Florida Statutes. At all times relevant to these proceedings, Respondent has been licensed as a certified public accountant by the State of Florida, having been issued license number AC 007921 on September 4, 1979. Respondent’s license is currently listed as “current, inactive,” and expires December 31, 2015. No evidence of any prior discipline against Respondent’s license was offered. On or about November 10, 1994, an Information was filed against Respondent by the State Attorney for the Sixth Judicial Circuit in and for Pinellas County, charging him with six counts: 1) sexual battery, a capital felony; 2) lewd and lascivious act in the presence of a child under the age of 16 years, a second-degree felony; 3) handling and fondling a child under the age of 16 years, a second-degree felony; 4) lewd and lascivious act in the presence of a child under the age of 16, a second-degree felony; 5) lewd and lascivious act in the presence of a child under the age of 16, a second-degree felony; and 6) handling and fondling a child under the age of 16, a second- degree felony. The victim in the criminal proceedings was nine years old. Counts 3 and 4 were nolle prossed. After a jury trial, on October 16, 1996, Respondent was found guilty of Counts 1 and 2. Respondent pled nolo contendere to Counts 5 and 6. On November 1, 1996, Respondent was originally sentenced to life in prison for Count 1 and 40 years in prison for Count 2, to be imposed consecutively. Respondent appealed his conviction and sentence to the Second District Court of Appeal. In Larry Beard v. State of Florida, Case No. 96-4909 (Fla. 2d DCA Mar. 24, 1999), the Second District affirmed the convictions for Counts 1 and 2, but vacated the judgments with respect to Counts 5 and 6, because the trial court failed to renew the offer of assistance of counsel to Mr. Beard at the plea hearing. For the same reason with respect to the sentencing hearing, the sentences for all four counts were reversed, and the case was remanded for resentencing for Counts 1 and 2. The Court directed that Respondent be given the opportunity to withdraw his plea with respect to Counts 5 and 6. On November 24, 1999, Respondent was re-sentenced to the same sentences for Counts 1 and 2. Counts 5 and 6 were nolle prossed. Respondent again appealed the sentencing order to the Second District Court of Appeal. In Larry Beard v. State of Florida, Case No. 2D00-271 (Fla. 2d DCA June 26, 2002), the Second District affirmed the judgment and sentence for Count 1 and found no error in the application of a sexual predator designation. With respect to Count 2, the State conceded that the 40-year sentence was a scrivener’s error (the trial judge orally imposed a 40-month sentence at the sentencing hearing), and the court found that it was imposed based upon an incorrect sentencing scoring sheet. The case was again remanded to the trial court to address the sentence in Count 2. The sentence ultimately imposed for Count 2 is not in the record of this proceeding. Regardless of the changes in sentencing, the fact remains that Respondent was convicted of capital sexual battery in violation of section 794.011(2), Florida Statutes, and a lewd act upon a child, in violation of section 800.04, Florida Statutes (1993). Respondent has been incarcerated within the Florida Department of Corrections since November 7, 1996, and remains incarcerated. On or about January 6, 1998, Respondent requested that his license be placed in a “current, inactive” status. He did not at that time, or anytime thereafter before December 2012, notify the Department that he had been convicted of any crime. Respondent used two other individuals, James Galloway and Penny Loulargous, to assist him in maintaining his license in an inactive status after his incarceration. His address was at different times listed “in care of” these individuals. In December 2012, Respondent wrote to the Department requesting that his address be changed from Mr. Galloway’s address to the Okaloosa Correctional Institution located in Crestview, Florida. Upon receiving the address change request, the Department opened an investigation to determine why he was in prison. However, in June 2013, the investigation was closed, in error, for lack of jurisdiction. In July 2014, correspondence was sent to accountancy licensees whose licenses were in inactive or delinquent status about an amnesty program authorized by legislation passing during the 2014 session. Respondent responded to the Department correspondent with a letter of his own, asking questions regarding the continuing education requirements for attaining active status. As a result, the Department re-opened the investigation that was closed in June 2013. This re-opened investigation led to the charges at issue in these proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Accountancy enter a final order finding Respondent guilty of violating section 473.323(1)(l), Florida Statutes, and revoking his license. DONE AND ENTERED this 13th day of October, 2015, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 October, 2015.
