Findings Of Fact On or about July 29, 1987, Petitioner filed with Respondent an Application for Licensure as a Real Estate Salesman. The application revealed that Petitioner had been charged with attempted sexual battery, as to which adjudication had been withheld, and Petitioner had received five years' probation. The application also disclosed that he had served 17 days in Orange County Jail for possession of marijuana. Pursuant to order dated June 3, 1981, in Orange County Circuit Court Case No. CR 80206, Petitioner, having entered a plea of no contest to attempted sexual battery on his 15 year old stepdaughter, was placed on five years' probation for this second degree felony as to which adjudication of guilt was withheld. Pursuant to judgment entered on February 27, 1984, in Orange County Circuit Court Case No. 80-206, Petitioner, having been found to have violated his probation, was adjudicated guilty of the above-referenced count of attempted sexual battery in violation of Sections 777.04 and 794.011(4)(e), Florida Statutes. Pursuant to order of disposition in Orange County Court Case No. M083- 4486, Petitioner, having entered a plea of no contest to possession of cannabis, was fined $100 plus court costs for this misdemeanor as to which adjudication of guilt was withheld. Petitioner testified further that, in connection with this incident, he entered a plea of guilty to attempt to evade arrest. Petitioner testified that he was generally of good character and a solid citizen apart from the criminal record disclosed on the application and court records produced at the hearing. However, he offered no corroborative evidence in this regard, nor specific examples of his behavior from which good character could be inferred.
Findings Of Fact The Respondent, Mark A. Emme, was certified by the Criminal Justice Standards and Training Commission on June 6, 1983, and issued certificate number 02-33713. Answer, para. 1. On the night of April 29, 1985, the Respondent was employed as a Deputy Sheriff for the Lee County Sheriff's office and was on duty as a patrol officer assigned to a patrol car. The Respondent received a call to go to the Malibu Apartments to investigate a complaint of trespass or disturbance caused by Marc Haag. T. 151. In the week or so prior to this, the Respondent had investigated an alleged assault by Mr. Haag upon his former girlfriend. Id. In the few days following that investigation, the Respondent had been called to the apartment two or three times due to alleged disturbances by Mr. Haag, but each time he and other officers arrived, Mr. Haag had departed. T. 150-51. Two people lived in the apartment, Jean Price and Lori Johnson. T. 151. Ms. Price had informed the Respondent that Mr. Haag was not allowed in her apartment. Upon arrival at the apartment, the Respondent learned from Ms. Johnson that Mr. Haag did not have permission to be in the apartment. The Respondent was escorted to Ms. Price's bedroom by Ms. Johnson and her boyfriend, Dan Polakoff. Mr. Haag was inside the bedroom. T. 151. Mr. Haag has studied and trained in an oriental martial art (tae kwon do) for 25 years, and has fought in over 400 amateur fights. T. 11, 38. Mr. Haag was intoxicated on the evening of April 29, 1985. T. 48. Mr. Haag asserted that Ms. Johnson was the only person who lived in the apartment. T. 28. Thus, Ms. Johnson, upon Mr. Haag's own admission, had the authority to ask him to leave. Mr. Haag admitted that the events that occurred on April 29, 1985, were "domestic-related," and that he and his girlfriend were having "domestic problems." T. 9, 26. Mr. Haag was evasive about these "domestic problems" or about "his case," the charge of trespass or disorderly conduct. He initially refused to answer any questions concerning the nature of these problems. T. 26-27. Mr. Haag denied that Ms. Johnson had asked him to leave the apartment prior to the arrival of the police officers. T. 28. He initially disclaimed memory of whether Mr. Polakoff was present outside the apartment when he had been escorted outside by the Respondent. T. 30. He disclaimed any memory of Mr. Polakoff saying anything to him or arguing with him outside the apartment. T. 31. He claimed he could not remember having any problem with Mr. Polakoff, or arguing with Mr. Polakoff. T. 37. It is not credible that Mr. Haag would forget these matters given the clear evidence that Mr. Haag was trying to sleep in a bedroom in Ms. Johnson's apartment, Ms. Johnson had called the police to have Mr. Haag evicted and arrested, and Mr. Polakoff yelled at Mr. Haag and assaulted him outside the apartment. Mr. Haag had an interest in avoiding conviction of criminal charges arising from his presence in the apartment and his arrest on April 29, 1985. (Charges against Mr. Haag were ultimately not prosecuted.) This, coupled with his apparent evasion of the issues underlying his emotional state at the time of the arrest make his version of his own arrest unworthy of belief. Thus, the findings of fact which follow concerning the arrest of Mr. Haag are based upon the testimony of Deputy Sheriff Hudnall and the Respondent, rather than of Mr. Haag. It should be noted that the "statements" of Mr. Polakoff and Ms. Johnson were never properly placed into evidence (see the discussion in the Appendix), and thus are not evidence in the record concerning the arrest of Mr. Haag. The Respondent knocked on the bedroom door. The door was closed and locked. T. 151. Mr. Haag came to the door and opened it. Seeing that it was a police officer, he tried to close the door. The Respondent inserted his flashlight in the opening, and forced his way in. Id. The Respondent asked Mr. Haag why he was present in Ms. Johnson's apartment. Mr. Haag stepped back and assumed a karate stance. T. 152. Prior to confronting Mr. Haag, the Respondent had been warned that Mr. Haag had a violent temper, that he knew an oriental martial art (tae kwon do), and that he could easily injure the Respondent. T. 167. Mr. Haag was advised that he must leave or be arrested for disorderly conduct or trespass. T. 152. Mr. Haag insisted he had a right to be there. Id. The Respondent ordered Mr. Haag to leave, telling Mr. Haag that Ms. Johnson had called the police and wanted him to leave. Id. At that point, the Respondent informed Mr. Haag that he was under arrest. Id. The Respondent then tried to grab Mr. Haag. Mr. Haag backed away and assumed a karate stance. T. 152. The Respondent seized Mr. Haag's arm, wrestled him to the floor, placed his flashlight behind Mr. Haag's neck, and handcuffed Mr. Haag. T. 152-53. Mr. Haag struggled, but did not use his martial arts skills either by choice or due to the fact that he was intoxicated. T. 167. The Respondent then forcibly escorted Mr. Haag out of the apartment to the patrol car. Mr. Haag repeatedly asked the Respondent for his shoes, but the Respondent continued to move Mr. Haag out of the apartment. T. 9. Mr. Haag resisted all of the way, and the Respondent had to pull up on the handcuffs to make Mr. Haag move out of the room to the car. T. 153-54. During the entire arrest, Mr. Haag talked back to the Respondent, and physically resisted the arrest, but did not offer violent resistance (resistance intended to or likely to harm the arresting officer). On the way out, the Respondent and Mr. Haag were followed by Mr. Polakoff. T. 153. Once outside, the Respondent "put" Mr. Haag on the hood of the car. T. 154. It is likely due to the resistance of Mr. Haag that Mr. Haag was placed upon the hood of the car in a rough manner. At this point, Deputy Sheriff Ronald Hudnall arrived to assist. T. 44. When he arrived, Deputy Sheriff Hudnall observed Mr. Haag on the hood of the patrol car and the Respondent behind Mr. Haag "keeping him secure." T. 45. Deputy Sheriff Hudnall became primarily involved with Mr. Polakoff. Mr. Polakoff was "very verbal," and was angrily yelling at Mr. Haag. T. 45, 154. While Mr. Haag was lying on the hood, Mr. Polakoff assaulted Mr. Haag, trying to strike Mr. Haag in the face, and causing Mr. Haag to hit the hood of the patrol car. T. 47-48, 154. Deputy Sheriff Hudnall took Mr. Polakoff to the rear of the car. T. 154, 48. During the time that Deputy Sheriff Hudnall was present, Mr. Haag was very loud and obnoxious. T. 48. He was yelling such things as "what are you arresting me for," and generally screaming and yelling. T. 46. He also was screaming that he wanted his shoes. T. 154. The Respondent was having a difficult time getting Mr. Haag into the patrol car, and kicked Mr. Haag on the leg or in the mid-section to put him in the car. T. 46. Mr. Haag's shoes were then placed in the patrol car. T. 155. Mr. Haag suffered a bruise to his arm and hip and the tops of his toes on one foot were skinned during the arrest. P. Exs. 3-6. Mr. Haag had no shoes on during the arrest. Mr. Haag was injured when his foot was caught beneath a door during the arrest. T. 116. These injuries were proximately caused by Mr. Haag's resistance to the arrest and by the reasonable efforts of the Respondent to effectuate the arrest in the face of this physical resistance. The Respondent then left the Malibu Apartments intending to take Mr. Haag to the Lee County Jail. Enroute to the Lee County Jail, the Respondent saw a car making a left hand turn the wrong way into the south bound lane of highway 41, which is a divided highway, and driving the wrong way. The Respondent pursued the car at a high rate of speed, and three oncoming cars were forced off the road. Eventually, the Respondent pulled the driver over on the median of the highway. T. 155-56. The driver, John Mossup, was very intoxicated, and had to lean on his car for support. T. 156. Mr. Mossup had been arrested once before for driving under the influence, loitering, and prowling. T. 160. The Respondent attempted to administer a field sobriety test, but had difficulty because Mr. Mossup was so drunk and had trouble paying attention. T. 157. An officer often has to raise his voice to get the attention of an intoxicated person to administer a sobriety test in the field. T. 176. The engines of nearby cars were running, and additional background noise came from passing traffic. T. 157. As the Respondent attempted to administer the sobriety test, City of Ft. Myers officer Curtis Richard Roberts arrived. Officer Roberts was accompanied by an Officer Dennison, who did not testify. The Respondent was by this time quite upset, and was yelling at Mr. Mossup to shut up. T. 76. At about the same time, Lee County Deputy Sheriff Steven Ford also arrived. T. 50-51. He told the Respondent to stop the test and arrest Mr. Mossup. T. 158. The Respondent then placed Mr. Mossup under arrest, and told him to place his hands on the hood of the car so that the Respondent could conduct a frisk search. T. 52. Mr. Mossup refused and tightened up, thus making it difficult for the Respondent to handcuff him. T. 52-53. He was yelling obscenities, but was not trying to hit the police officers. T. 77-78. The Respondent had to overcome this resistance with force. He did so with the assistance of Deputy Ford. T. 53. The force used by these offices to handcuff Mr. Mossup at this point was reasonable in light of the resistance put up by Mr. Mossup. After Mr. Mossup had been handcuffed, he continued to be uncooperative, stating at times that he needed his medicine in his car, and would not go to the Respondent's car. T. 54. He was pulling away, and attempting to keep himself from being pulled to the rear of the sheriff's car. The Respondent struck Mr. Mossup several times in the ribs with his fist. T. 55, 159, 78. When the Respondent and Mr. Mossup got to the sheriff's car, Mr. Mossup refused to get in. T. 53. The Respondent struck Mr. Mossup in the stomach with his flashlight, causing Mr. Mossup to double over; Mr. Mossup sat in the car, and his feet were moved inside by the officers. T. 53-54, 161. There are ways to persuade an uncooperative person to submit to an arrest and handcuffing, which include talking to him and, if that fails, to apply pressure to places such as finger joints or on the handcuffs, or bending a finger out of place, all of which cause pain to the person arrested and make struggle less attractive. T. 56-57, 79. One of the two other officers on the scene would have used other such tactics to get Mr. Mossup into the patrol car. T. 57. The arresting officer on the scene the longest will typically have greater insight into which techniques are needed to subdue a belligerent person during an arrest. T. 62. The Respondent struck Mr. Mossup during the arrest in the ribs with his fists and in the stomach with his flashlight because the arrest was taking place in the median of a busy highway, and the Respondent wanted to complete the arrest quickly before Mr. Mossup pushed or caused a bystander or an officer to fall into the highway to be injured or killed. T. 159-60. Mr. Mossup may have had a small lump above his left eye when he was placed in the car, and had a scab on his nose, but otherwise his face was not injured in the way it became injured later; that is, the left eye was not swollen shut, and his face was not lacerated and bleeding. T. 63, 156, 68-69, 17. After Mr. Mossup had been placed in the left-hand side (driver's side) of the back seat of the Respondent's car, he continued to yell and began to kick the screen separating the back seat from the front seat, and to hit the top of his forehead against the window. T. 17, 67-68. Mr. Mossup's primary concern continued to be his medicine. T. 61, 57. The Respondent walked to the back of his car and told Mr. Mossup to stop. T. 80. Mr. Haag testified that the Respondent sprayed mace into the back seat, T. 24, but this testimony is rejected as not credible. T. 83, 64-66, 108, 141, 144. Although he was doing everything possible to cause a disturbance, T. 32, and it was a possibility that the window might have been broken, T. 68, Mr. Mossup did not appear to be banging on the car with enough force or with the intention to hurt himself, T. 80, 33, and neither of the two of the other officers on the scene observed any injuries to Mr. Mossup's face or head after he caused this commotion. T. 81, 84. While it is true that the windows in the back seat were tinted, T. 168, it is unclear to what degree this might have made it more difficult to see Mr. Mossup in the back seat. Several officers testified that they saw Mr. Mossup acting violently in the back seat, and no officer testified that it would have been impossible to see into the back seat from the outside. The Respondent asked Deputy Sheriff Ford if he could transport Mr. Mossup, but he could not because he was needed to stay on patrol in the area. T. 163. Thus, the Respondent had to take both prisoners to the jail in his car. The Respondent normally would not have attempted to transport two such prisoners when one was violent to begin with. T. 163. Deputy Sheriff Ford was the senior officer, however. Id. During the drive to the jail, Mr. Mossup continued to yell obscenities at the Respondent, to taunt the Respondent with insults, to kick the screen between the front and back seats, and to bang either his head or his feet against the window in the back seat. T. 18, 163-64. Mr. Mossup was directly behind the Respondent, and thus could not be seen by the Respondent. T. 164. The Respondent told Mr. Mossup that if he did not stop, he (the Respondent) would do something about it. T. 18. Mr. Mossup continued the disturbance. Id. Mr. Haag shouted that Mr. Mossup was about to break the window. Id. The Respondent called headquarters on his radio stating that his prisoner was becoming disorderly in the back-seat and mentally disordered, and asked for another unit to meet him. T. 58, 164. Headquarters dispatched Deputy Sheriff Steven Edlin to assist. T. 58, 87. The Respondent stopped his car, got out, and opened the back door on the driver's side. Mr. Mossup may have then kicked the Respondent in the wrist, T. 164, 25, 36, but if he did, the blow was not enough to cause the Respondent to be unable to use his hand to punch. The Respondent's wrist was bruised after the incident. T. 164. The Respondent then lost control of his temper. T. 26. He took Mr. Mossup out of the car and punched him seven or eight times in the face. T. 19- Mr. Mossup's hands were still handcuffed behind his back. Mr. Mossup fell to the ground screaming that the Respondent not hit him any more. T. 20-21. The Respondent punched him a few more times while he was on the ground. Id. Mr. Mossup continued to scream not to hit him any more. T. 21. All of his hostilities were gone at this point. Id. Deputy Sheriff Steven Edlin then arrived. T. 87. He arrived after the beating had ceased. T. 21, 166. As he arrived, he saw the Respondent's car parked in the roadway, and saw Mr. Mossup lying face down on the ground by the vehicle. T. 87. Mr. Mossup's head was towards the front of the vehicle, about four feet from the car. T. 92. The Respondent was standing by the door of his car, and the back door on the driver's side was open. T. 92-93. The Respondent said to Deputy Sheriff Edlin that he thought he had broken his hand. T. 88. Deputy Sheriff Edlin immediately took Mr. Mossup into custody to transport him to the jail. T. 89. Mr. Mossup was hysterical and crying; his left eye was swollen completely shut, he had a cut across the bridge of his nose, and he was bleeding badly from his face. Id.; T. 59, 20; P. Ex. 1. While Mr. Mossup was crying, he told Deputy Sheriff Edlin that the Respondent had "beat the shit out of him." T. 59. This statement apparently occurred within only a few minutes of the beating, and while Mr. Mossup was still in a hysterical state from the beating. T. 21, 166. Upon arrival at the jail, Sergeant Charles C. Powell determined that Mr. Mossup needed medical treatment; he refused to allow Mr. Mossup to be admitted to the jail until he had had medical treatment. T. 98. Mr. Mossup was still extremely upset, and stated that an officer had beat him up. Id. The injuries that Mr. Mossup had when he arrived at the jail were much different than the small lump observed above his eye when he was first arrested. T. 69. The next morning, there was a red substance that appeared to be blood on the edge of the front seat, the cage area separating the front and back seat, and on the floor of the back seat of the Respondent's car. T. 139. The substance was never analyzed to verify that it was blood. T. 144. Since Mr. Mossup had a scab on the bridge of his nose when he was arrested, and a blood-like substance was found the next day in the Respondent's car, it is possible that banging around in the back seat by Mr. Mossup caused the scab to have been torn and to have been a partial cause of the bleeding later observed on Mr. Mossup's face. This, however, does not explain how Mr. Mossup received the injury to his eye. Nor is the existence of some bleeding caused by Mr. Mossup himself inconsistent with additional bleeding injuries caused later by the Respondent. As will be discussed ahead, the preponderance of the evidence leads to the conclusion that the Respondent beat Mr. Mossup as found in finding of fact 36. The Respondent related to Sergeant Powell what had happened with Mr. Mossup on the way to the jail. The Respondent's version of what happened as related briefly to Sergeant Powell was essentially the same as his testimony at the formal administrative hearing. The Respondent's version of events is contradicted in significant ways by Deputy Sheriff Edlin's observations. The Respondent asserted that after he stopped the car and opened Mr. Mossup's door, Mr. Mossup came out of the patrol car aggressively, kicking and moving toward the Respondent. T. 164-65, 100. The Respondent further claimed that he and Mr. Mossup fell to the ground, and that he (the Respondent) then stood up and closed the back door of the patrol car. T. 165. The Respondent then stated that Mr. Mossup tried to get up, and the Respondent had to hold Mr. Mossup as close to the car as possible to hold him down, and that Mr. Mossup's head was toward the trunk, or the rear of the vehicle. Id. At the jail on the night in question when he arrived, the Respondent told Sergeant Powell that he had had to hold Mr. Mossup down until another officer got there. T. 100. Mr. Mossup was six feet two inches tall and weighed from 180 to 190 pounds. T. 156. The Respondent was five feet eight inches tall. If Mr. Mossup in fact had continued to struggle, to try to get up and assault the Respondent, as the Respondent testified, the Respondent would have been holding Mr. Mossup down when Deputy Sheriff Edlin arrived, and Mr. Mossup would have been struggling angrily. Yet Deputy Sheriff Edlin testified that when he arrived, the car door was open, the Respondent was not holding an angry, violent Mr. Mossup down, but was standing up. Mr. Mossup was lying with his head toward the front of the car, not wedged against the car toward the trunk. Mr. Mossup was not behaving like an angry drunk who had just assaulted a police officer, but was behaving like a drunk who had just been beaten: he was crying and hysterical. See finding of fact 39 above. These are important differences. If true, the observations of Deputy Sheriff Edlin show that when Deputy Sheriff Edlin arrived, the door was open, Mr. Mossup was no longer violent or aggressive, but was defeated and hysterical, that the Respondent was not holding down a violent prisoner, but was standing over a substantially intoxicated prisoner who had been beaten into submission. Another bit of evidence consistent with the conclusion that the Respondent beat Mr. Mossup is the fact, as testified to by the Respondent, that the Respondent opened the back door after he stopped. It would have been more consistent with a finding that Mr. Mossup assaulted the Respondent had Mr. Mossup opened the back door himself. But Mr. Mossup's hands were handcuffed behind his back. Mr. Mossup probably could not have opened the door himself. The Respondent did not explain why he opened the back door after he stopped. With a backup officer on the way, it would seem to have been more prudent for the Respondent to have left Mr. Mossup inside the car until help had arrived instead of opening the door to try to deal with Mr. Mossup alone. The only other reason for opening the door would have been to beat Mr. Mossup. The Respondent testified that after Mr. Mossup left the car, he (the Respondent) closed the back door. However, this testimony has been rejected in favor of Deputy Sheriff Edlin's testimony that the door was open when he arrived. The fact that the door was open leads to the inference that Mr. Haag had a better view than had the door been closed. However, even if Mr. Haag viewed the beating through the tinted windows, there is no evidence that one could not see the outside through the tinted windows of the patrol car. It is inferred that the Lee County Sheriff's office did not tint the windows of its patrol cars so that one could not clearly see the outside from the inside of the patrol car. While it is true that Mr. Haag was an unreliable witness with regard to the circumstances of his own arrest, his testimony concerning the beating of Mr. Mossup is supported by the physical evidence of injury to Mr. Mossup, by Mr. Mossup's own statements immediately after the incident and while still hysterical from the beating, and, most importantly, by the observations of Deputy Sheriff Edlin as discussed above. Deputy Sheriff Edlin had no reason to testify untruthfully, nor did it appear that he was mistaken in his observations when he arrived at the scene. His demeanor was straightforward, clear, and unequivocal. His observations are believed. The testimony of the Respondent is rejected as not credible. There is insufficient credible evidence to conclude that the Respondent used excessive force in the arrest of Mr. Haag. An internal investigation was conducted by Lieutenant George Miter of the Lee County Sheriff's Department. The allegations of excessive force against Mr. Mossup and Mr. Haag were sustained, and the Respondent was terminated from employment. T. 109-123. The reasons that the allegations were sustained are not known on this record because the evidence considered in the internal investigation is not a part of this record. Thus, this fact is of little weight in resolving issues presented in this case. Prior to the night of April 29, 1985, there is no evidence that the Respondent used excessive force in making an arrest. His prior work with the Ft. Myers Police Department was acceptable and without complaint. T. 171; R. Exs. 5 and 6. He had made over 200 arrests, including arrest of persons driving under the influence, and had had no complaints or reports of excessive force. T. 173. None of the five officers who testified and who worked for the Lee County Sheriff's office had heard any reports that the Respondent had previously used excessive force with respect to an arrest. T. 185, 146, 148, 49, 85. Reports of excessive force normally get around to other officers when excessive force occurs. T. 185, 149. He has been commended on several occasions for his work with other officers in making arrests or, on one occasion, in the confrontation and calming of a mentally ill person. R. Exs. 1-4. While this evidence is favorable to the Respondent, it is not inconsistent with the finding that on the night of April 29, 1985, the Respondent lost his temper and beat Mr. Mossup.
Recommendation For these reasons, it is recommended that the Criminal Justice Standards and Training Commission enter its final order denying the motion to dismiss and revoking the certification of Mark A. Emme as a law enforcement officer. DONE and ENTERED this 14th of September, 1987. WILLIAM C. SHERRILL, JR. 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 14th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0181 The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties. Findings of fact proposed by the Petitioner: As to Marc Haag: 10a, 10b, 14a, 14b, 14c. These proposed findings of fact are based upon statements of witnesses that were not properly offered into evidence. The statements were read or paraphrased by counsel, but were never authenticated, identified, or offered into evidence, and no witness testified that such statements were in fact made by anyone. Thus, these proposed findings are rejected for lack of evidence. 28, 29, 30, 31. These proposed findings are essentially irrelevant. 32, paragraphs 2, 4, and 5. These proposed findings are not relevant since Mr. Haag's testimony as to his own arrest has been rejected. 32, paragraph 7. Rejected for the reasons stated above with respect to proposed findings of fact 10 and 14. As to John Mossup: 6 and 7. Subordinate to findings that Mr. Mossup was quite intoxicated. 13. There is no issue regarding the propriety of having administered a sobriety test, and thus this proposed finding is not relevant. 17, 18, 19, 19a, 19b, 20, paragraph 4. Subordinate to finding of fact 26. Moreover, the Petitioner does not assert in its proposed findings of fact that the portion of the arrest from handcuffing of Mr. Mossup to placement in the patrol car involved excessive force. 25, paragraph 2, "and that he was banging his head on the screen." Rejected due to subsequent clarifying testimony. T. 67. 25, paragraph 7. The time for manifestation of a black eye injury is not supported by the record. T. 73. The proposed finding that Mr. Mossup was banging his head on the cage is not supported by clear enough testimony. See finding of fact 31. The proposed finding that Mr. Mossup's injuries occurred prior to the arrest is rejected as discussed in finding of fact 30. 35, 36, 51. These proposed findings, based upon the testimony of the Respondent, have been rejected as not credible for the reasons discussed in findings of fact 36-52. The proposed finding that Mr. Mossup was "giving everyone a hard time" at the sally port is rejected as discussed in findings of fact 39 and 40. This proposed finding is not relevant. A smaller back seat is consistent with the evidence that Mr. Mossup was kicking the screen and banging his head on the window. The evidence does not suggest that the back seat was so small that Mr. Mossup's body was compressed into a position of complete immobility. 43 through 48. These proposed findings of fact are subordinate to, and supportive of, finding of fact 54. 52. The evidence supports a finding of that a blood-like substance was found, but a finding that it was blood is not supported by the evidence. Finding of fact 42. Findings of fact proposed by the Respondent: 4. With respect to the second sentence, this proposed finding is based upon testimony of Mr. Haag which, in this instance, has been found to be not worthy of belief. See findings of fact 4-10. Thus, this finding of fact is rejected. 7, 9, and 11. These proposed findings are based upon testimony of Mr. Haag which, in this instance, has been found to be not worthy of belief. See findings of fact 4-10. Thus, these findings of fact are rejected. Further, proposed finding of fact 9 concerning the manner in which Mr. Haag's feet were injured, is rejected due to Mr. Haag's earlier inconsistent statement as to the cause of those injuries. Finding of fact 20. 16. The availability of "less forceful methods" was not shown by a preponderance of the evidence. It is clear that the Respondent tried to talk to him during the sobriety test, and Mr. Mossup was too drunk to respond to talking. Bending a person's finger out of place, or placing painful pressure on selected body points is not less violent than a blow to the ribs or the stomach. Use of pressure points may be less noticeable, but the pain is functionally equivalent. Moreover, Respondent was reasonably concerned about the safety of himself and others. Traffic was continuing to pass by on the highway, and Mr. Mossup was behaving drunkenly and unpredictably on the median. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1498 Tallahassee, Florida 32302 William G. Whitcomb, Esquire 1534 Hendry Street, Suite 202 Fort Myers, Florida 33901 Rod Caswell, Director Criminal Justice Standards Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Robert R. Dempsey Executive Director Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Janet E. Ferris, Esquire General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 =================================================================
The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1995) (hereinafter, "Florida Statues"), by obtaining his real estate license by means of fraud, misrepresentation, or concealment.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of real estate. Respondent is licensed as a real estate sales person pursuant to license number 0626375. Respondent was last licensed as a sales person with a non- licensed owner located at 1510 Noble Street, Longwood, Florida 32750. Respondent submitted an application for license dated April 4, 1995. Question 9 on the application asked the applicant whether or not he or she has: . . . ever been convicted of a crime, found guilty, or entered a plea of nolo contendere . . ., even if adjudication was withheld. This question applies to any violation of the laws of any municipality, county, state, or nation. . . . Respondent answered "yes" to question 9. Under the section of question 9 that requires an applicant who answers yes to explain the answer, Respondent disclosed that he had been arrested for driving under the influence and that the matter was pending. Respondent did not disclose that he had any other criminal history. On August 20, 1987, Respondent pled nolo contendere to a charge of criminal mischief. He was placed on probation for one year. On May 11, 1979, Respondent was adjudicated guilty of the charge of indecent exposure. He was sentenced to jail for 15 days, ordered to attend counseling, and placed on probation. Respondent attested to the veracity of his answers to the questions in the application, including his responses to question 9. His signature was properly notarized. Respondent's failure to disclose his prior criminal history was a reckless or careless disregard of the truth of the matters asserted in Respondent's response to question 9. Respondent knew or should have known that his failure to disclose his prior criminal history was a material misstatement of fact. Petitioner relied on Respondent's sworn responses in his application when Petitioner issued a license to Respondent on June 16, 1995. One of the purposes of question 9 is to assist Respondent in assessing an applicant's propensity for honesty, trustworthiness, and good moral character. In relevant part, Section 475.17(1)(a) requires a licensee such as Respondent to be honest, truthful, trustworthy, and of good moral character.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent guilty of violating Section 475.25(1)(m), revoking Respondent's license, and imposing an administrative fine in the amount of $1,000. DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 6th day of May, 1998. COPIES FURNISHED: 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 Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Geoffrey T. Kirk, Esquire Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Jeffrey H. Stewart, pro se 1510 Noble Street Longwood, Florida 32750
The Issue The issue at the hearing was whether Petitioner is entitled to an exemption from disqualification of employment as a person who has direct contact with aged or disabled adults.
Findings Of Fact In 1991 Petitioner was 18 years old. She and her family lived in a very violent area of Gretna, Florida. Until the incident which is involved here, Petitioner had managed to stay out of trouble and avoid becoming mean and violent like many of her neighbors. Sometime in 1996, Petitioner was employed by the Cerebral Palsey Foundation to care for its disabled clients. Petitioner's duties included direct contact with the clients of the Cerebral Palsey Center. The background screen revealed that on June 19, 1991, Petitioner was arrested for aggravated assault. The arrest was the result of a verbal altercation between a young woman who lived down the street from Petitioner, and Petitioner, and members of Petitioner’s family. The young woman was a vicious bully, known to be violent and to carry a knife which she would readily use on those she victimized. Petitioner had personally witnessed several times that the woman cut other people she was fighting with her knife. After an exchange of words, the young woman chased Petitioner home, threatening serious bodily harm. Petitioner believed she had her knife with her. She was terrified and knew that if she did not stand up to this woman, she would not be safe from her. After Petitioner got home, she got her brother’s shotgun and went back outside to the street with the weapon. Petitioner did not point the weapon at the woman, even though the woman was taunting her to “go ahead and shoot her.” Petitioner simply stood with the weapon in her hands. Petitioner was scared, not thinking clearly, and only wanted the woman to go away. The police arrived within a short time after Petitioner exited her home. She obeyed the commands of the officer when he told her to put the weapon down. The officer arrested everyone involved in the altercation, including the woman who had chased Petitioner. Petitioner plead no contest to one count of aggravated battery, a felony. As a consequence of the plea, Petitioner was fined the minimum amount and sentenced to two years probation. Adjudication of guilt was withheld. Petitioner successfully completed her sentence during which she received counseling for anger control. The anger control counseling was terminated by the counselor after two sessions because Petitioner did not have poor anger control but was young and scared when the incident occurred. This incident was the one and only time Petitioner had been in trouble. She has been a good citizen since. Petitioner has since matured greatly and has had a child. She has managed to educate herself and gain the necessary skills to become an aide in an adult facility. She is also on her way to finishing her degree to become a licensed practical nurse. The greater weight of the evidence and the more remarkable evidence in this case, is that Petitioner did not succumb to the violent neighborhood in which she lived. This incident occurred because she was young and very scared of a person most people would be and should be scared of. When she was able, she moved out, received an education and has continued to make herself a better person. These qualities say more good things about Petitioner’s character than one anomalous violent incident to which she reacted. In short, Petitioner’s history shows that she is of good character and is not a violent person. Moreover, through her education, she has received training on how to deal with an aged or disabled adult who might be violent. The setting and aggression of an aged or disabled adult is simply not the same as the setting and intentionally malicious, bullying violence with which Petitioner was confronted when she was 18 years old. Her reaction then at 18 is not indicative of her reaction now. Based on the record in this case, Petitioner has established by clear and convincing evidence that (a) her plea of no contest to aggravated assault was not the type of incident which would absolutely preclude her from working with disabled or elderly persons; (b) that the aggravated assault was the result of self-defense from a person of violent character and understandable fear of that person; (c) that she will not be and is not a danger to disabled or elderly persons with which she might come into contact; and (d) that she was never a person lacking in moral character and was never a danger to such disabled or elderly persons. The Petitioner is therefore entitled to an exemption from disqualification from employment.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order granting Petitioner, Titesheia Sherman, an exemption from disqualification from employment. DONE AND ENTERED this 24th day of February, 1998, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 24th day of February, 1998. COPIES FURNISHED: Titesheia Sherman Post Office Box 567 Quincy, Florida 32351 Charles A. Finkel, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 200A Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On January 29, 1979, Snyder applied with the Department for eligibility for licensure as a general lines agent. The application was received by the Department on February 2, 1979. The Department requested additional information concerning that application from Snyder on February 12, 1979, which information was received by the Department on February 26, 1979. The Department made timely denial of the application by letter dated May 11, 1979, which letter was received by Snyder on or about May 16, 1979. On December 29, 1972, Snyder was convicted of grand larceny in Manatee County, Florida, a felony involving moral turpitude. Snyder was placed on probation for three (3) years with one of the conditions of probation being full restitution of the stolen funds. Snyder's probation was terminated on January 13, 1975, after compliance with the conditions of probation, and her civil rights were restored on June 18, 1975. In 1970, Snyder was married for the first time. In February, 1976, she was divorced. Until three weeks before this hearing, Snyder's ex-husband was in prison in Florida for murder and armed robbery, at which time he escaped. During the course of this marriage Snyder's husband refused to work but continued to incur debts and to exert usually strong influence on his wife, the Petitioner in this case. In 1972, when she was nineteen, Snyder, out of desperation and concern for her family and as a result of intensive pressure from her husband, stole $500 from her employer the City of Bradenton in 1972. Snyder was charged with the crime, plead guilty and subsequently made full restitution and paid an additional fine. Snyder worked as an office manager for an insurance agent in Palmetto, Florida, for a year, subsequent to her job with the City of Bradenton, then worked as a secretary underwriter for T.C.I. Insurance Company and as a waitress in Orlando, where in both jobs she handled a good deal of money without incident. While a student at the University of Central Florida, Snyder was elected to the student finance committee. Snyder finished first in her class when taking the 240 hour course required by the State for licensure as a general lines agent. Snyder attained her general lines agent license in California and until recently worked for Metropolitan Insurance Company where she had an outstanding employment record. The evidence and the demeanor of the witness indicate and it is concluded as a matter of fact that her prior criminal record was a product of an unusual situation and does not reflect upon the present honesty or reliability of Snyder.
Findings Of Fact On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a final order granting the Petitioner's application for licensure as a limited surety agent (bail bondsman). DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 4th day of June, 1996. COPIES FURNISHED: Alvie Edwards, pro se 1544 Bay Street Southeast St. Petersburg, Florida 33701 Dickson E. Kesler, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue Whether or not Petitioner may be granted an exemption to work in a position of special trust.
Findings Of Fact Petitioner has been continuously employed with North Florida Evaluation and Treatment Center (NFETC) since November 9, 1994. NFETC is a facility operated by DCF. NFETC houses mentally unstable, criminally charged adult male patients. Petitioner began work at NFETC as a custodial worker. In 1996, he was sought out by his superiors to be trained as a Unit Treatment and Rehabilitation Specialist (UTR). UTRs have direct care and treatment of patients. He completed 180 training hours on or about December 31, 1996. In early 1997, he was promoted to the position of UTR. On January 10, 1997, Petitioner was certified as having completed ACT training. ACT involves DCF-approved methods for safely subduing violent patients. Since his promotion to UTR, Petitioner has performed adequately as a UTR. He has never been involved in a violent incident involving patients. He has not had any disciplinary actions taken against him. A letter from Petitioner's supervisor at NFETC was admitted in evidence without objection. That letter attests to a four-year working relationship with Petitioner during which he has always been "intelligent, creative, dedicated, energetic, and resourceful. . . . He has always remained calm and served as a stabilizing force for others." Prior to the summer of 1998, the position of UTR was not considered a "position of special trust." In the summer of 1998, DCF authorities at NFETC designated all UTR positions as "positions of special trust," and a screening revealed Petitioner's criminal record, which barred him from employment as a UTR. Since then, and pending resolution of the issue herein, Petitioner has continued to be employed at NFETC in a non-direct care position, at a lesser rate of pay. Petitioner's disqualifying criminal offense involved his plea of nolo contendere to a charge of domestic battery (statute number unspecified) on June 16, 1995. At that time, the court withheld an adjudication of guilt; placed Petitioner on probation for one year, with a special condition that he attend the Batterer's Intervention Program; and waived all court costs. On October 4, 1995, Petitioner was in court for violating his probation. Although Petitioner testified that this court appearance was the result of missing or being late for a scheduled meeting with his probation officer due to his brother's death, court documents indicate that Petitioner once again had been arrested for domestic battery (statute unspecified), a charge to which he plead guilty. Petitioner conceded that he spent seventeen days in jail on this occasion. Where Petitioner's version of the facts differs from the court documents admitted in evidence, I find the court documents to be more credible. However, the court documents also show that on this occasion, Petitioner was reinstated to supervised probation. By July 1996, Petitioner had completed all 26 sessions of the Batterer's Intervention Program, spanning six months. Apparently, he did not begin the program until after the last act of domestic violence. During these sessions, Petitioner participated in "acting out" possible physical altercation scenarios and was trained in new methods of avoiding them, new ways of dealing with anger, and how to anticipate ways in which to handle similar situations without violence in the future. On August 5, 1996, a Petition for Unsuccessful Termination of Probation was presented to the court, because Petitioner "would be unable to comply with the [probation] requirements in a timely manner." As a result of this petition, the court discharged Petitioner from probation unsuccessfully and waived the remaining costs of supervision. The most information that can be gleaned from the court documents and Petitioner's testimony concerning the reasons behind the unsuccessful termination of his probation in 1996, is that Petitioner was unable to pay all supervision costs on time, had lost some period of reporting to his probation officer due to his jail time in October 1995, and had unsuccessfully completed his probation due to the domestic battery guilty plea on October 4, 1995. Petitioner testified that he has not been arrested since October 4, 1995. However, he also acknowledged that prior to the initial June 16, 1995, domestic violence charge, there may have been as many as three other arrests as a result of physical altercations with his ex-wife. Petitioner testified that the nature of the June 1995 incident which gave rise to the disqualifying offense was merely that he "put his hands on" his wife to stop her from hitting him, during a period of time in which he was under great stress due to several deaths in his immediate family, the birth of a new baby, and his job as a long-haul trucker. His ex-wife confirmed each of these elements of stress in Petitioner's life at that time, but she was asked no questions concerning the physicality of the disqualifying June 1995 incident, and Petitioner's continuous employment at NFETC since November 1994, would seem to negate his story of being a long-haul trucker in June 1995. Upon all the evidence, I do not find Petitioner credible as to his description of the disqualifying incident. Upon all the evidence, I also do not find credible Petitioner's and his ex-wife's testimony that Petitioner did not strike his wife after 1994. At some point subsequent to October 1995, the couple divorced. Petitioner pays his child support regularly. His NFETC employment provides insurance for his two children. He visits his children regularly at his ex-wife's home and entertains them in his own home. He has a good relationship with both children. He has become friends with his ex-wife Petitioner lives with and cares for his aged and infirm mother. Petitioner attends no church regularly but does attend several churches occasionally. He contributes to the Boys and Girls Clubs of America through the United Way collection at NFETC. He has completed sixteen hours of a writing class in spelling and grammar, which should enhance his performance as a UTR.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying the requested exemption to work in a position of special trust at this time and specifying therein the earliest date that Petitioner may reapply (one year from his last application) if he chooses to do so. DONE AND ENTERED this 5th day of February, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 5th day of February, 1999. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16 Avenue, Box 3 Gainesville, Florida 32601 Willie Williams, Jr. 821 Southeast 12th Avenue Gainesville, Florida 32601 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue By Administrative Complaint dated February 20, 1991 and filed with the Division of Administrative Hearings on April 23, 1991, the Department of Professional Regulation, Division of Real Estate, alleged that Respondent had obtained a real estate license by means of fraud in that Respondent had a prior criminal charge and 1976 conviction in New Jersey and had not disclosed same in his July 30, 1990 application for licensure as a real estate salesman, contrary to and in violation of Subsection 475.25(1)(m) F.S.
Findings Of Fact Petitioner is the state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints against real estate licensees pursuant to the laws of the state of Florida, in particular Section 20.30 F.S. and the rules promulgated pursuant thereto. Respondent is now, and was at all times material hereto, a licensed real estate broker in the state of Florida, having been issued license number 0566757 in accordance with Chapter 475, F.S. The last license issued was as a nonactive salesman, in care of 380 Mercers Fernery Road, DeLand, Florida 32720. On his July 30, 1990 application, Respondent made a sworn application for licensure as a real estate salesman with the Petitioner. Question No. 7 of the July 30 application read, in pertinent part, as follows: 7. 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? Under oath, Respondent answered "no" to the foregoing Question No. 7. Thereafter, Petitioner based this instant prosecution on a series of loose pages which purported to be a report from the U.S. Department of Justice, Federal Bureau of Investigation (Petitioner's Exhibit B). This item is not a business record of the Petitioner, and Petitioner has shown no reason this printed hearsay should be admitted and considered. Consequently, it has not been admitted or considered. Respondent was interviewed by Petitioner's investigator. The investigator, Mr. Miller, testified concerning his interview of Respondent, but nothing in their conversation constituted an "admission of a party opponent." Nor was anything said in that conversation sufficient to supplement or explain any other testimony or exhibit. See, Section 120.58(1) F.S. Likewise, the conversation did not even support the allegations of the Administrative Complaint. Respondent's testimony at formal hearing was disjointed and inconclusive but to the general effect that at some time he had been arrested in New Jersey in connection with a burglary of his dwelling and a subsequent police search thereof which produced a cache of marijuana. He denied telling a deliberate lie on his real estate application and stated he simply could not recall anything further about the New Jersey incident which he described.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the agency enter a Final Order dismissing with prejudice the Administrative Complaint. DONE and ENTERED this 27th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1990.
Findings Of Fact Petitioner was a member of the United State Army stationed in Korea from the Fall, 1983 until early 1984, having achieved the rank of E-5. In December, 1983 Petitioner overpurchased certain rationed items. Specifically, he purchased three months of rationed items, having accumulated allocations from prior months, although he was only authorized to utilize the ration allocation for the current month. Petitioner testified he did not know, and was not told, that unused allocations for rationed items could not be accumulated and utilized later. Petitioner plead guilty to the misdemeanor charge resulting from this overpurchase. He spent two months in confinement, was reduced in grade from E-5 to E-1, and forfeited $150 in pay for four months. As a result of his loss in grade, Petitioner understood that his pay would be reduced to that of E-1. However, upon receipt of his pay following his reduction in grade, he realized his pay had only been reduced the $150 per month he was to forfeit for four months, but had not been reduced to that of E-1. He allowed another month to go by, and when the adjustment still was not made he reported this to his commanding officer. Shortly thereafter, Petitioner was reassigned to duty within the United States, and he testified he reported the continued overpayment to his new commanding officer. A total of eight months elapsed after he was reduced in grade when he continued to receive E-5 pay. Thereafter, Petitioner was charged in December, 1984 with the misappropriation of government funds, a felony, and on February 26, 1985 he plead guilty to this charge. He was confined for six months, without pay, and given a misconduct discharge. On or about May 29, 1986 Petitioner applied for licensure as a real estate salesman in the State of Florida, and in response to Question 6 he fully disclosed his guilty pleas to the two offenses described above, the sentences imposed, and the fact that he had received a misconduct discharge. On or about September 11, 1986 Petitioner was notified on behalf of Respondent that his application for licensure would be denied based upon his answer to Question 6 and the offenses noted therein. Petitioner timely requested a hearing. Petitioner honestly disclosed his prior offenses occurring in 1983 and 1984 on his application for licensure. He offered the testimony of Andrew Carl Atkison, a friend and former business associate, in mitigation and to establish his honesty since his misconduct discharge.
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
